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Attorney General Jeff Sessions Is Withdrawing Obama-Era "Guidance Documents" About Affirmative Action

Other documents that Sessions has pulled included guidance on the right of refugees and asylees to work and juvenile detention policies.

Last updated on July 3, 2018, at 7:59 p.m. ET

Posted on July 3, 2018, at 5:50 p.m. ET

Jim Bourg / Reuters

The Justice Department announced Tuesday afternoon that Attorney General Jeff Sessions had withdrawn 24 internal guidance documents — most but not all dating back to the Obama administration — including materials about affirmative action and the right of refugees and asylees to work.

This is the second wave of documents repealed by Sessions as part of a broader effort to undo what he has characterized as inappropriate rulemaking by the Justice Department. Sessions withdrew the first group of 25 documents in late December. At the time, the documents were described as "unnecessary, inconsistent with existing law, or otherwise improper." Tuesday's announcement used similar language, adding "outdated" to the list.

The Justice Department announcement did not specify why each of the 24 documents were withdrawn. Later versions of some of the documents on Sessions' list are still on the Justice Department's website — it was not immediately clear if the withdrawals affected just the earlier versions or the substance of the guidance in its entirety. A spokesperson did not immediately return a request for comment.

Seven of the rescinded documents are about affirmative action. They include a "Dear Colleague Letter" jointly issued in December 2011 by the Justice Department and the Department of Education that offered guidance to schools about how they could lawfully pursue policies aimed at increasing diversity in higher education as well as in elementary and secondary schools. Sessions also withdrew documents that interpreted US Supreme Court rulings on affirmative action.

The NAACP slammed the Trump administration's move to rollback guidelines on race in college admissions.

“By encouraging schools to not consider race during the admissions process or potentially in any other circumstance, President Trump is undermining the benefits of diversity in schools and accelerating the socio-economic divide. Rolling back access to quality education for all students is a top priority for this Administration," NAACP president and CEO Derrick Johnson said in a statement.

The withdrawn documents announced Tuesday also include a two-page flyer from May 2011 titled "Refugees and Asylees Have the Right to Work." Published by an immigration employment–focused office within the Civil Rights Division, the document includes sections with information for workers with refugee and asylee status and for employers. It states that individuals with refugee or asylee status are allowed to work in the United States indefinitely, and explains how they can prove their eligibility to work.

Sessions' decision to rescind the 2011 document does not change the right of refugees and asylees to work — that is spelled out in federal law. But it means employers and workers can no longer rely on that document to understand the Justice Department's interpretation of the law as it relates to refugees and asylees in the workplace.

A January 2017 document titled, "Employment Rights and Resources for Refugees and Asylees," is still operative, according to a Justice Department spokesperson, who said the 2011 version was withdrawn to eliminate inconsistencies and avoid confusion. A 2016 version of DOJ guidance on refugee and asylee work rights was still available on the department's website; the spokesperson declined to comment on whether that would be formally withdrawn as well.

Three of the rescinded documents involve language access issues — one was a draft version of guidance for court systems about best practices for language access, one was described as a planning tool for federal agencies that may encounter people with limited English proficiency, and one was a "frequently asked questions" document about protections for nonnative English speakers under federal civil rights laws.

Seven of the rescinded documents relate to the work of the Justice Department's Office of Juvenile Justice and Delinquency Prevention, including policy guidance on juveniles who are held in adult jails.

Sessions rescinded an April 6, 2016, document known as a Dear Colleague Letter that provides additional guidance for applicants seeking funding from the National Institute of Justice to research school safety–related issues. The letter explains specific topics the institute was interested in funding research on, including disparities based on race, national origin, sex, and disability in school discipline, and the role of law enforcement officers in schools.

Other rescinded documents included "Federal Protections Against National Origin Discrimination" from 2006 — a DOJ spokesperson said there is a 2011 version of that guidance still operative — "Look at the Facts, Not at the Faces: Your Guide to Fair Employment," from 2009, and "Looking for the Best Mortgage," a December 2010 brochure that offers advice to prospective homebuyers.

According to the Justice Department, Sessions has rescinded the following 24 documents so far in 2018:

March 17, 2011: OJJDP Memorandum re Status Offenders and the JJDPA.

October 20, 2010: OJJDP Memorandum re Status Offenders and the JJDPA.

June 17, 2014: Revised Guidance on Jail Removal and Separation Core Requirements.

2011: Disaggregating MIP Data from DSO and/or Jail Removal Violations: OJJDP Guidance for States.

OJJDP Policy Guidance for Nonsecure Custody of Juveniles in Adult Jails and Lockups; Notice of Final Policy.

OJJDP Guidance Manual: Audit of Compliance Monitoring Systems.

2009: OJJDP Disproportionate Minority Contact Technical Assistance Manual, Fourth Edition.

2016: Bureau of Justice Assistance State Criminal Alien Assistance Program Guidelines.

April 6, 2016: National Institute of Justice Dear Colleague Letter regarding additional topics and research questions of high priority and particular interest to the NIJ as part of its Comprehensive School Safety Initiative.

Dec. 14, 2010: Looking for the Best Mortgage.

Aug. 6, 2015: FRB: Putting Your Home on the Loan Line is Risky Business.

April 30, 2006: Federal Protections Against National Origin Discrimination.

July 2009: Look at the Facts, Not at the Faces: Your Guide to Fair Employment.

May 2011: Refugees and Asylees Have the Right to Work.

On or before Feb. 12, 2003: Language Assistance Self-Assessment and Planning Tool for Recipients of Federal Financial Assistance.

March 1, 2011: FAQs About the Protection of Limited English Proficiency (LEP) Individuals Under Title VI of the Civil Rights Act of 1964 and Title VI Regulations.

Dec. 18, 2012: Draft Language Access Planning and Technical Assistance Tool for Courts.

Dec. 2, 2011: Dear Colleague Letter Regarding the Use of Race by Educational Institutions.

Dec. 2, 2011: 2011 Guidance on the Voluntary Use of Race to Achieve Diversity in Postsecondary Education.

Dec. 2, 2011: 2011 Guidance on the Voluntary Use of Race to Achieve Diversity and Avoid Racial Isolation in Elementary and Secondary Schools.

September 27, 2013: Dear Colleague Letter on the Voluntary Use of Race to Achieve Diversity in Higher Education After Fisher v. University of Texas at Austin (Fisher I).

September 27, 2013: Questions and Answers About Fisher v. University of Texas at Austin (Fisher I).

UPDATE

Updated with information about the status of Justice Department guidance on the right of refugees and asylees to work and about national origin discrimination.

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