On Valentine’s Day, the Trump administration shocked faculties and schools with its latest assault on DEI and scholar physique range. The U.S. Division of Schooling’s Workplace for Civil Rights launched a Expensive Colleague letter that warned faculties and schools that they might lose federal funding in the event that they discriminate on the premise of race.
This letter revealed novel, unsupported authorized theories relating to the applying of federal civil rights legal guidelines to colleges and schools. Actually, OCR’s letter sweeps so broadly that it claims to ban sure concerns of race that stay completely authorized below well-established authorized doctrine.
Whereas the specter of dropping federal funding has been a side of Title VI of the Civil Rights Act since its passage in 1964, the letter particularly takes goal at DEI programming in addition to the usage of “race as a consider admissions, monetary support, hiring, coaching, and different institutional programming.”
Though the letter contains some right statements of nondiscrimination legislation, OCR makes assertions which are troubling and unsupported by sound authorized reasoning. As a part of the workforce that wrote OCR’s steerage on this very challenge within the wake of the Supreme Court docket’s ruling in College students for Honest Admissions v. Harvard, I’m disturbed by how politics is driving coverage steerage that can harm instructional establishments and college students from kindergarten by school.
In describing the scope of SFFA, OCR’s newest steerage makes an attempt to smuggle in a authorized commonplace that seems nowhere within the court docket’s opinion. The letter states, “Counting on non-racial data as a proxy for race, and making choices based mostly on that data, violates the legislation … It might, for example, be illegal for an academic establishment to get rid of standardized testing to realize a desired racial stability or to extend racial range.”
Right here, OCR baselessly claims that not solely can schools not take into account race as a consider admissions, in addition they can’t make race-neutral adjustments to admissions insurance policies that assist enhance scholar physique range—comparable to eliminating standardized testing. That declare falls firmly exterior not solely the bounds of SFFA but in addition the many years of Supreme Court docket case legislation that precede it.
In Grutter (2003), Justice Sandra Day O’Connor considers whether or not the College of Michigan Legislation Faculty may use a lottery system for admissions. In Fisher (2016), Justice Anthony Kennedy implicitly approves of the Texas high 10 % plan, maybe essentially the most well-known race-neutral technique to extend racial range. And in SFFA (2023), the plaintiff’s briefs themselves embody endorsements of attainable race-neutral alternate options Harvard may have legally pursued comparable to adopting socioeconomic preferences in admissions.
But in its most up-to-date letter, OCR makes an attempt fairly the pinnacle faux in its declaration that SFFA dictates that faculties and schools should abandon race-neutral methods meant to extend scholar physique range. Whereas in actuality SFFA says nothing concerning the permissibility of those race-neutral methods, a separate line of instances tackles these authorized questions head-on—and contradicts the Trump administration’s unfounded steerage.
In Coalition for TJ, Boston Guardian Coalition and different latest instances, teams much like College students for Honest Admissions have challenged adjustments to admissions insurance policies of prestigious, selective excessive faculties that have been adopted partially to extend scholar physique range. In some instances, the colleges reconfigured weighting for standardized assessments; in others, faculties assured that every feeding center faculty will get a sure variety of seats. In all the instances, the college districts gained. The place now superior by OCR in its latest letter has failed to search out footing in two courts of attraction. And simply final yr, the Supreme Court docket declined to additional evaluation the selections in TJ and Boston.
What OCR makes an attempt to do with its letter is extraordinary. It tries to advance a authorized principle with assist from a Supreme Court docket case that claims nothing concerning the matter. On the identical time, OCR ignores latest judicial opinions in instances that instantly handle this query.
No matter how legally infirm OCR’s proclamations are, faculties and schools will possible really feel pressured to conform. This might imply that the menace alone will lead faculties and schools to chop efforts to legally pursue racially various scholar our bodies and racially inclusive campus environments. Because of this, our nation’s lecture rooms and campuses will sadly look much less just like the communities that they sit in and serve, all due to shoddy policymaking and authorized sleight of hand.
