Another piece of statistical evidence would be systematic under-admission of some groups of students, such as Asian Americans. A lawsuit against Harvard University (my home institution) alleges that Asian American applicants are rejected disproportionally when measured by their grades and test scores -- and that Harvard’s “holistic,” diversity-based approach is a smokescreen for discrimination.
It’s notoriously hard to prove intentional discrimination by statistical evidence. The magic bullet would be internal documents showing that somewhere, some university is cheating by expressly giving points for race and setting quotas. It’s unlikely, but not impossible, that such evidence exists at some institution that has been sloppy in following the law.
The other route for the Department of Justice would be to start investigating for litigation now, and wait for Kennedy or Justices Ruth Bader Ginsburg or Stephen Breyer to retire before a case wends its way through the lower courts and ultimately to the Supreme Court. The goal would not be to ask Kennedy to reconsider his position, but to wait until there are five votes to overrule the Fisher case, or at least narrow it.
Either way, the Justice approach is a significant departure from past practice -- because for the most part, anti-affirmative-action litigation has always been a private affair. The named plaintiffs in such cases are typically candidates who say they were denied admission on the basis of race.
The federal government always has the opportunity to weigh in on such cases as a friend of the court. The George W. Bush administration, for example, asked the Supreme Court to treat the University of Michigan’s admissions practices as unconstitutional quotas in the course of the litigation that ended in 2003.
But that’s a far cry from the federal government leading the charge against affirmative action in higher ed. Here Trump and Sessions will be breaking new ground. It’s another reminder that, whatever limits Trump faces in building coalitions to pass legislation, there is plenty he can do solely in the executive sphere to affect the country’s future.
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