Last week, the New York Times alerted its readers to a Justice Department plan to investigate whether colleges are discriminating against white applicants.  The New York Times obtained a leaked memo that asked for lawyers interested in "investigations and possible litigation related to intentional race-based discrimination in college and university admissions."

The Times interpreted this to mean that the Justice Department wanted to investigate whether affirmative action violates the rights of white applicants.  The Justice Department fired back that it was merely investigating a complaint filed by Asian-Americans that they were being discriminated against by Harvard.

Despite the Department of Justice's clarification, a variety of pundits rushed to condemn the Trump administration and defend affirmative action.  Writing in Inside Higher Ed, Michael S. Roth characterized this as an effort by privileged elites to deny members of marginalized groups an education.  Writing in Slate, Richard Thompson Ford called it a "reactionary attack on affirmative action" that "won't succeed."

In their rush to defend the use of race in college admissions, these defenders of race-conscious admissions failed to contemplate what precisely they are defending.  Strictly speaking, they are defending the right of colleges and universities to use race and ethnicity as a factor in making admissions decisions.

In a country with close to five thousand degree-granting institutions, both four-year and two-year schools, nobody's opportunity to go to college is threatened.  Racial preferences play a major factor only at top-tier universities.  The question is not whether any particular student gets to go to college, but where.

In other words, defenders of affirmative action are defending the right of the wealthiest and most powerful universities to grant admissions preferences on the basis of race and ethnicity.  These elite institutions use admissions preferences to ensure "diversity."  In practice, the pursuit of "diversity" means using admissions preferences to ensure that a university's racial and ethnic makeup resembles underlying regional or national demographics.

From a policy perspective, the relevant question is whether publicly funded institutions should be allowed to do that.  One could offer the argument that places like Harvard and Yale are private institutions and should be free to admit whom they want.  However, as recipients of government largesse, these institutions are governed by anti-discrimination law.

Defenders of affirmative action argue that these programs benefit minorities, but this misses the point.  Whether these programs are beneficial to minorities is separate from the question of whether publicly funded schools should be allowed to discriminate.  And make no mistake: granting massive admissions preferences on the basis of race is discrimination.