ARI SHAPIRO, HOST:
The Justice Department is considering whether to sue universities over their affirmative action policies. The New York Times got a copy of a department hiring notice that outlines the idea. This evening, the White House released a statement that the reporting was inaccurate and that the posting was specific to one complaint filed by a coalition of Asian Americans. On Morning Edition today, we heard reaction to the New York Times story from Vanita Gupta, who led the civil rights division under President Obama.
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VINITA GUPTA: The thing that is atypical here is that the Justice Department is really turning civil rights law on its head. It was civil rights laws that were aimed at ensuring that students of color and all students are able to access education in an equal way and to be able have a diverse student body.
SHAPIRO: Now we're going to hear from an attorney who was involved in cases where white students brought these kinds of suits. Bob Driscoll was also a Justice Department official in the George W. Bush administration. Before the Justice Department put out the statement denying the New York Times report, I asked Driscoll whether he thought the DOJ would implement an idea like this.
BOB DRISCOLL: I suspect it will. I mean I think it's something a Republican administration is likely to do - to investigate whether or not there are civil rights violations related to college admissions.
SHAPIRO: What would that look like if the Justice Department did become involved on behalf of white students claiming racial discrimination in college admissions?
DRISCOLL: Well, I'm not sure that it'd be necessarily on behalf of white students. I think it could be on behalf of Asians or any number of other students. It would essentially, I assume, be actions taken under funding statutes which dictate that recipients of federal funds can't discriminate based on race.
SHAPIRO: So threatening to withhold funds.
DRISCOLL: That - I think that would be the endgame of an investigation - would be, you know, findings of intentional discrimination and a threat to withhold funds absent modification of admissions policies.
SHAPIRO: Is this something that you considered doing during the Bush administration? And if you decided not to, why not?
DRISCOLL: Well, the law was not as clear as it is now.
SHAPIRO: You mean because of Supreme Court rulings since then.
DRISCOLL: Right. I mean we were in the midst of litigating the Grutter and Gratz cases, the University of Michigan cases, when I was at the Department of Justice. And we took kind of a, I would say, somewhat middle-ground position. But we argued that they should be available to be used in certain circumstances where they were narrowly tailored. We never brought suit on behalf of white students or tried challenge anyone for meeting it. Although we did argue that the University of Michigan admissions program were unconstitutional. We made that argument in the Supreme Court in the Gratz case.
SHAPIRO: Can you tell me what specifically investigators from the Justice Department might be looking for when they conduct an investigation like this?
DRISCOLL: They might be able to get some of the information from OCR, the Office of Civil Rights, from the Department of Education, which collects a lot of data. And they might get data directly from the schools. And I think what they would get is things like average GPAs and SATs broken down by race for admissions purposes. They would also get racial breakdowns I think by various classes, get explanations of the admissions process, explanations of the various tips and weights that people get for athletics and for other things and be looking at the impact of those statistically odd admissions. I think what they'd be looking for is if there's a statistical case that is strong enough to begin to infer some kind of intentional discrimination.
SHAPIRO: Could you imagine many currently existing affirmative action programs surviving this kind of test?
DRISCOLL: Oh, I think many could. I think that in particular, the elite schools and frankly the schools with a lot of money - they make sure the applications pass through a lot of hands and that they're not very formulaic or mechanistic processes. Now, they may end up with some fairly mechanistic results in terms of they may hit the identical number of, you know, percentage of black and Hispanic students kind of every year. But they will send the application through enough hands in order to say, well, everything is subjective, and we liked the essay, or we didn't; and that's what explains any discrepancies that exist.
SHAPIRO: So you think public schools might be a more likely target for these kinds of cases.
DRISCOLL: Yeah. I think anyone with large volumes of applications where it's harder to effectively, you know, for lack of a better term, launder (laughter) your decisions through large committees with lots of review...
SHAPIRO: Your using the term launder makes me think that you see even the constitutionally legitimate affirmative action programs as kind of a facade for a goal that you think is not constitutionally legitimate.
DRISCOLL: I think that there is a lot of dishonesty that goes on along these programs. I think the true justification for them is the justification the Supreme Court has rejected, which is essentially a societal makeup call, which I think might well be justified from policy grounds. It's just unconstitutional - that simply to make up for the societal-wide discrimination. As of right now, diversity is the only constitutional justification, and I'm not positive that it is being done as narrowly tailored as the schools say it is.
SHAPIRO: Attorney Bob Driscoll, former Justice Department official in the George W. Bush administration, thanks a lot.
DRISCOLL: Thank you. Transcript provided by NPR, Copyright NPR.