'Trumping' Affirmative Action

Abstract

This Essay examines the Trump administration’s actions to eliminate affirmative action, along with the broader ramifications of these actions. While former-President Trump’s judicial appointments have garnered much attention, the Essay focuses on the actions of his Department of Justice, Civil Rights Division. It lays out the Department of Justice’s investigations of Harvard and Yale, highlighting how they have augmented recent lawsuits challenging race-conscious admissions policies by Students for Fair Admissions. It considers the timing of the DOJ’s actions, particularly with respect to Students for Fair Admissions, Inc. v. President & Fellows of Harvard College. It examines the strategies used by Students for Fair Admissions and the Department of Justice—how they have used Asian American plaintiffs and forced universities to reveal information about their admissions processes—and considers the broader social and political impact of these strategies. The Essay also analyzes how the litigation challenging affirmative action has employed ambiguities in prior cases involving race-conscious university admissions. Although President Joe Biden’s administration can undo some of the Department of Justice’s actions, these actions have set the stage for affirmative action to be “trumped.”

Keywords: affirmative action, race-conscious university admissions, DOJ