Republicans Propose New Office To Enforce Affirmative Action Ban

Legislation from J.D. Vance and Jim Banks would create special inspector general to investigate discriminatory admissions practices

(Glen Cooper/Getty Images)
December 5, 2023

Congressional Republicans on Tuesday introduced a bill that would create a dedicated office for investigating race discrimination in college admissions, the most dramatic effort yet to enforce the Supreme Court's ban on affirmative action.

The College Admissions Accountability Act, introduced by Sen. J.D. Vance (R., Ohio) and Rep. Jim Banks (R., Ind.), would establish a special inspector general within the Education Department—separate from the Office of Civil Rights—to probe potential violations of the colorblind standard set forth in Students for Fair Admissions v. Harvard, which ruled that race-conscious admissions programs violate the 14th Amendment. The bill would also bar schools that flout the decision from receiving any form of federal aid.

"Every student in America is entitled to equal protection under the law, regardless of their background," Vance told the Washington Free Beacon. "This bill creates the means necessary to enforce the Court's decision and hold colleges and universities accountable for illegal discrimination on the basis of race."

The proposed law comes as universities around the country are combing for loopholes in the affirmative action ban. Some institutions have overhauled their essay prompts to focus on race and identity—even though the Supreme Court said essays couldn't be used as a work-around—while others have advised faculty not to create a "record" of "discriminatory intent" and warned that socioeconomic preferences don't "do the trick demographically."

Columbia Law School even announced that it would require short video statements from applicants to provide "insight into their personal strengths." The plan, which would have given admissions officers a visual proxy for race, was junked after the Free Beacon asked Columbia for comment.

The proposed bureaucracy, the Office of the Special Inspector General for Unlawful Discrimination in Higher Education, would take direct aim at these evasions. "Following the Court's ruling, several American colleges and universities issued statements or unveiled new policies at odds with its letter and spirit," the bill reads. "Institutions of higher education, including their offices of admission, must comply with the Constitution and laws of the United States, as interpreted by the judiciary."

The bill would create a new mechanism for applicants and university employees to file discrimination claims against admissions departments. Those claims would be investigated by the special inspector general—nominated by the president and confirmed by the Senate—who could then recommend enforcement actions, including the revocation of federal funds, to the secretary of education and attorney general.

The office would also submit quarterly reports to Congress on the allegations it has received and what corrective steps have been taken. That means the secretary of education and attorney general, while theoretically free to ignore the office’s recommendations, would face public pressure to lay down the law.

Universities, meanwhile, would be at constant risk of humiliation if they adopt the sort of race-based policies that have become de rigueur throughout higher education. Though focused on admissions, the bill also covers "financial aid determinations" and "academic programs," empowering the inspector general to go after scholarships, fellowships, and research programs that exclude non-minorities.

"The federal government has given the universities free rein to discriminate against white and Asian students," Christopher Rufo, the conservative activist behind numerous state laws banning critical race theory, said of the bill. "Senator Vance's proposed legislation will put a stop to this."

Conservatives argue the new inspector general role is necessary because the Education Department's Office for Civil Rights, which oversees campus compliance with nondiscrimination law, has proven unable or unwilling to enforce the rules on the books. It can take over four years for the office to resolve discrimination cases, said Mark Perry, an economist at the American Enterprise Institute who has filed over 800 complaints against race- and sex-based programs across the country. And schools often avoid punishment by making superficial changes that let the discrimination persist.

Last year, for example, Perry filed a complaint against a girls-only coding camp, "Girls < RUN>:\THE\ WORLD," at the University of Minnesota, Twin Cities. The Office of Civil Rights made the camp add a disclaimer saying it was "open to all students regardless of sex"—but did not require the university to update its marketing materials for the program, which included a page with the question, "Why an All Girls* Camp?"

"The Office of Civil Rights will accept the most minor, superficial, disingenuous changes," Perry said. And the length of its investigations means that "universities can continue to discriminate year after year."

The snail's pace has only gotten more sluggish as the agency, which handles allegations of sexual harassment as well as race discrimination, has seen its caseload balloon over the past decade, reaching a record high of 18,804 complaints in 2022. Amid the deluge, the Office of Civil Rights removed the opportunity for complainants to appeal dismissals—a move Perry said exacerbated what was already an uphill battle.

"Right now, if I'm frustrated or feel like I'm not being treated fairly, there's nobody I can go to," he told the Free Beacon. The inspector general office, which would deal only with race discrimination, could provide a streamlined alternative to the now-defunct appeals process.

This focus on efficiency hints at a larger shift in the politics of civil rights enforcement. It was historically Democrats who sought to expand the civil rights bureaucracy and Republicans who sought to constrain it, in part through budget and staffing cuts—such as those proposed by the Trump administration in 2020—at agencies like the Equal Employment Opportunity Commission. But with the Supreme Court steering anti-discrimination law in a more colorblind direction, conservatives could become the main beneficiaries of a stronger enforcement apparatus.

"The Supreme Court has neither the power of the purse nor of the sword to enforce its judgments, but Congress can indeed put teeth into the justices' pronouncements," said Ilya Shapiro, the director of constitutional studies at the Manhattan Institute. "A special inspector general focused on this issue would help make that happen."

The bill, which appropriates $25 million for the new role and is cosponsored by Sens. Ted Budd (R., N.C.), Mike Braun (R, Ind.), Josh Hawley (R., Mo.), Eric Schmitt (R., Mo.), and Marco Rubio (R., Fla.), does include a sunset clause that would terminate the office after 12 years. Republicans seem to be betting that recalcitrant universities will, after a decade of robust enforcement, throw in the towel and evolve colorblind norms.

The office "might not be necessary in 12 years," Perry said, "if it becomes standard and normal for universities to follow the law."