Sessions Nixes 24 DOJ Guidance Documents

WASHINGTON (CN) – Attorney General Jeff Sessions on Tuesday withdrew 24 Justice Department guidance documents, including several Obama administration statements regarding the use of race as a factor in college admissions.

The guidance documents, which are informal statements from departments that do not carry the force of law, touch on issues from affirmative action to the ability of asylum seekers and refugees to work while in the country.

Sessions announced the Justice Department would no longer issue such documents in November, calling the practice a circumvention of the formal administrative rulemaking process. The department also repealed 25 guidance documents in December, according to a Justice Department press release.

“The American people deserve to have their voices heard and a government that is accountable to them,” Sessions said in a statement Tuesday. “When issuing regulations, federal agencies must abide by constitutional principles and follow the rules set forth by Congress and the president. In previous administrations, however, agencies often tried to impose new rules on the American people without any public notice or comment period, simply by sending a letter or posting a guidance document on a website. That’s wrong, and it’s not good government.”

One of the rescinded documents is a May 6, 2014 joint letter from the Department of Justice and the Department of Education affirming that the Supreme Court’s decision in Schuette v. Coalition to Defend Affirmative Action did not disturb existing law on affirmative action “absent any restrictions in state law.”

The Supreme Court in that case upheld a voter-ratified amendment to the Michigan Constitution that prohibited “all sex-and race-based preferences in public education, public employment and public contracting.”

The guidance document noted, however, the opinion “leaves intact the court’s prior holdings recognizing that institutions of higher education and elementary and secondary schools may use all legally permissible methods to achieve their diversity goals.”

“These include, absent any restrictions in state law, appropriately tailored programs that consider the race of individual applicants as one of several factors in an individualized process to achieve the educational benefits that flow from a diverse student body,” the document states.

Sessions also rescinded a September 2013 document from the Departments of Justice and Education concerning the Supreme Court’s ruling in Fisher v. University of Texas at Austin, in which the court held state schools may use race as a factor in admissions decisions but that such policy must receive strict judicial scrutiny.

“The Departments of Education and Justice strongly support diversity in higher education,” the now-rescinded document states. “Racially diverse educational environments help to prepare students to succeed in our increasingly diverse nation. The future workforce of America must be able to transcend the boundaries of race, language and culture as our economy becomes more globally interconnected.”

Lawyers’ Committee for Civil Rights Under Law President Kristen Clarke said in a statement that the decision to rescind the documents does not change the law surrounding affirmative action, but it could be a harbinger of future action from the Trump administration to chip away at the practice.

“The rescission of this guidance does not overrule 40 years of precedent that affirms the constitutionality of a university’s limited use of race in college admissions,” Clarke said. “This most recent decision by the Department of Education is wholly consistent with the administration’s unwavering hostility towards diversity in our schools.”

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