On Valentine’s Day, the Trump administration shocked faculties and faculties with its latest assault on DEI and scholar physique variety. The U.S. Division of Schooling’s Workplace for Civil Rights launched a Pricey Colleague letter that warned faculties and faculties that they might lose federal funding in the event that they discriminate on the idea of race.
This letter revealed novel, unsupported authorized theories relating to the applying of federal civil rights legal guidelines to varsities and faculties. Actually, OCR’s letter sweeps so broadly that it claims to ban sure issues of race that stay completely authorized underneath well-established authorized doctrine.
Whereas the specter of dropping federal funding has been a aspect 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 assist, hiring, coaching, and different institutional programming.”
Though the letter consists of some right statements of nondiscrimination regulation, OCR makes assertions which might be troubling and unsupported by sound authorized reasoning. As a part of the workforce that wrote OCR’s steerage on this very subject within the wake of the Supreme Court docket’s ruling in College students for Truthful Admissions v. Harvard, I’m disturbed by how politics is driving coverage steerage that may damage 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 normal that seems nowhere within the court docket’s opinion. The letter states, “Counting on non-racial info as a proxy for race, and making choices primarily based on that info, violates the regulation … It will, as an example, be illegal for an academic establishment to eradicate standardized testing to attain a desired racial stability or to extend racial variety.”
Right here, OCR baselessly claims that not solely can faculties not contemplate race as a consider admissions, in addition they can’t make race-neutral modifications to admissions insurance policies that assist enhance scholar physique variety—reminiscent of eliminating standardized testing. That declare falls firmly exterior not solely the bounds of SFFA but additionally the many years of Supreme Court docket case regulation that precede it.
In Grutter (2003), Justice Sandra Day O’Connor considers whether or not the College of Michigan Regulation College may use a lottery system for admissions. In Fisher (2016), Justice Anthony Kennedy implicitly approves of the Texas prime 10 % plan, maybe essentially the most well-known race-neutral technique to extend racial variety. And in SFFA (2023), the plaintiff’s briefs themselves embody endorsements of attainable race-neutral alternate options Harvard may have legally pursued reminiscent of adopting socioeconomic preferences in admissions.
But in its most up-to-date letter, OCR makes an attempt fairly the top pretend in its declaration that SFFA dictates that faculties and faculties should abandon race-neutral methods meant to extend scholar physique variety. 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 Dad or mum Coalition and different current instances, teams just like College students for Truthful Admissions have challenged modifications to admissions insurance policies of prestigious, selective excessive faculties that have been adopted partially to extend scholar physique variety. In some instances, the colleges reconfigured weighting for standardized checks; in others, faculties assured that every feeding center faculty will get a sure variety of seats. In all the instances, the varsity districts received. The place now superior by OCR in its current letter has failed to seek out footing in two courts of enchantment. And simply final 12 months, the Supreme Court docket declined to additional evaluate the selections in TJ and Boston.
What OCR makes an attempt to do with its letter is extraordinary. It tries to advance a authorized idea with help from a Supreme Court docket case that claims nothing concerning the matter. On the similar time, OCR ignores current judicial opinions in instances that immediately handle this query.
No matter how legally infirm OCR’s proclamations are, faculties and faculties will seemingly really feel pressured to conform. This might imply that the menace alone will lead faculties and faculties to chop efforts to legally pursue racially various scholar our bodies and racially inclusive campus environments. In consequence, our nation’s school 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.
