Yeomans Work

Side-Stepping the Bureaucracy on Affirmative Action

December 5, 2017

News broke over the summer that the Justice Department’s Civil Rights Division (CRT) intended to investigate affirmative action in higher education.

The news was a stunning reversal of Obama CRT policy and somewhat baffling given the Supreme Court’s recent approval of the University of Texas’s affirmative action program. The move, however, was consistent with Jeff Sessions’s long-held views and appealed to Trump’s base, much of which resents minority gains and is openly hostile toward higher education generally. More recently, CRT announced that it was investigating a complaint that Harvard University’s affirmative action program intentionally discriminated against Asian Americans on the basis of race. And most recently, word leaked out of a dispute between Harvard and CRT over the production of information requested by CRT.

This episode is emblematic of the Trump administration’s effort to undermine policies designed to promote inclusion and diversity. It is also an example of the importance of procedural regularity in the administration of justice. The complaint that CRT is pursuing was filed with both the Justice Department and the Department of Education in 2015. The Department of Education dismissed the complaint almost immediately on the basis that the same dispute was being litigated in a private lawsuit in federal court. That lawsuit was backed by Ed Blum, the right-wing activist who had previously engineered the challenge to the Voting Rights Act that resulted in evisceration of the Act in Shelby County v. Holder in 2013. He had also driven the challenge to UT’s affirmative action program that, on its second trip to the Supreme Court, resulted in a ruling in 2016 reaffirming the constitutionality of using race in admissions to promote diversity. Meanwhile, the complaint against Harvard languished in the Justice Department.

The Trump administration, working hand-in-glove with the private litigants, saw the Harvard complaint as an opportunity. But, knowing that the career attorneys in CRT who handle such litigation would raise valid policy, legal, and procedural objections to pursuing the complaint, the political appointees in CRT took control of the investigation. They staffed it primarily with other political appointees and issued a memorandum asking for volunteers to work on the matter.

It is highly irregular for CRT to launch an investigation into a two and a half year old education complaint pursuant to Title VI of the 1964 Civil Rights Act (which prohibits racial discrimination by recipients of federal funds) that has been dismissed by the Department of Education and is already being litigated in a well-resourced private lawsuit. Moreover, the case, which threatens a stark reversal of a position taken by CRT under Obama, is an attempt to re-litigate affirmative action law that was settled recently in the Supreme Court.

For all of these reasons, career attorneys in CRT would have resisted the move as inconsistent with prevailing law and a misuse of public funds. That’s their job. It’s what makes the career bureaucracy so valuable as guardians of the rule of law, good policy, and the public fisc. It’s also what frequently frustrates incoming administrations and has infuriated Trump, who lacks understanding of or respect for the institutions that make our democracy work.

To circumvent the career bureaucracy, the Trump administration followed a previously-used path: it pulled the investigation from its usual place, put it under the direct control of political appointees, and recruited like-minded career lawyers to work with them. The Justice Department has jurisdiction over the complaint because it makes grants to Harvard through its Office of Justice Programs (OJP). That office has initial responsibility for ensuring that the recipients of its funds do not discriminate. In this instance, OJP delegated authority for the investigation to CRT. Normally, either the Federal Coordination and Compliance Section or, more likely, the Education Section of CRT would conduct the investigation.

According to standard procedure, career trial attorneys would conduct the investigation, then write a lengthy memorandum laying out the facts and the law. The memorandum would make a recommendation regarding whether to proceed toward litigation. The recommendation would go to a career deputy section chief, who would then send it to the career section chief with a recommendation. Only then might the recommendation reach a political appointee. At each stage, career employees would contribute expertise in the relevant law and the skills of litigation, immersion in CRT’s standards for pursuing a lawsuit, an understanding of the history of CRT and the past course of such suits in court, and due regard for the other business competing for the time and resources of the relevant section.

All of this expertise is wasted when political appointees start and conduct the process. They make it much more likely that decisions will be guided by ideologically-determined goals; that facts will be shaped to fit the ultimate goal; and that legal arguments will be grounded in policy rather than objective legal analysis. Moreover, it is simply bad management for political appointees who are supposed to be supervising large swaths of CRT to become bogged down in the daily tasks of investigation and litigation. It is one thing to compose an amicus brief and quite another to run an extended investigation and litigate a case. Notably, the Reagan administration engaged in similar procedural shenanigans in its assault on race conscious remedies.

Ultimately, the procedurally-irregular involvement of political appointees at this level of law enforcement risks undermining its legitimacy. Whenever political appointees step in to take responsibility away from career lawyers, concern arises that politics will subdue the law.

The abuses in CRT represent one way in which the Trump administration is assaulting and circumventing the bureaucracy. It bears remembering that the bureaucracy exists to implement the laws passed by congress. It is populated overwhelmingly by dedicated public servants who believe in the rule of law, have deep expertise in the laws and programs they implement, understand the procedural frameworks in which government must operate, and recognize that they serve the enduring law and not just the passing whims of each administration.

Incoming presidents – especially those who have run on promises to shake up government – learn that they cannot simply snap their fingers to make things happen. Rather, they have to accomplish change through hard work that takes time and filters out actions that are unlawful, waste resources, or are dumb policy.

Trump has been more frustrated than most because of his astonishing ignorance of government and the deficiencies of temperament he brought to the job. He has lashed out in a variety of ways, including slashing attacks on the work of government agencies from the CIA to the EPA, and failure (whether through incompetence or intent to undermine agencies) to fill vacancies. We can only hope his time in office will end before he does irreparable damage.

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Bill Yeomans is the Senior Justice Fellow at Alliance for Justice. He currently serves as Lecturer in Law at Columbia Law School, and previously taught constitutional law, civil rights, and legislation at American University Washington College of Law. He also served for 26 years in the Department of Justice, where he litigated cases involving voting rights and discrimination in employment, housing, and education, and prosecuted police officers and racially motivated violent offenders before assuming a series of management positions, including acting Assistant Attorney General. For three years, Bill served as Sen. Edward M. Kennedy’s chief counsel on the Senate Judiciary Committee, and has also held positions at AFJ and the American Constitution Society. The opinions of the writer are his own and do not necessarily represent the positions of Alliance for Justice.