In 2016, a divided Supreme Court upheld the use of race-based admissions in colleges, deciding that such policies do not necessarily violate the Constitution's Equal Protection Clause. The court has ruled that colleges and universities can use affirmative action to help minority students get into school, but conservatives over the years have argued that these programs hurt the chances of white and Asian-American applicants.
"Once again, the Trump administration works to create confusion where none exists, needlessly muddying civil rights practices in schools", said Catherine E. Lhamon, assistant education secretary for civil rights under Obama. They were not making up new law and were more of a resource for schools to use as they established student assignment plans and admissions policies.
The new policy would depart from the stance taken by the Obama administration, which in a 2011 policy document said schools have a "compelling interest" in ensuring a diverse student body.
The Obama-era letters and memos on affirmative action did not have the weight of law.
"We condemn the Department of Education's politically motivated attack on affirmative action and deliberate attempt to discourage colleges and universities from pursuing racial diversity at our nation's colleges and universities", Kristen Clarke, president and executive director of the Lawyers' Committee for Civil Rights Under Law told CNN. Instead, universities have been directed to be "race neutral" in the application process.
On Tuesday, Harvard and other universities were defiant in defending their admissions policies as legal.
Harvard says its admissions policies comply with US laws and that it has worked to boost financial aid to ensure economic, as well as racial, diversity in its classes.
But McDonough said the administration's action could have a "chilling effect" on colleges as they review their admission methods.
Civil liberties groups immediately decried the move, saying it went against decades of court rulings that permit colleges and universities to take race into account.
The guidance that will be reversed Tuesday provided examples of different educational contexts within which institutions could permissibly consider race.
"We're now looking at a post-Kennedy Supreme Court".
Rachel Kleinman, senior counsel at the NAACP Legal Defense Fund, said withdrawing the guidance could deter districts from implementing policies to increase diversity.
The policy shift comes at a pivotal moment in the long-running affirmative action debate.