On Valentine’s Day, the Trump administration shocked faculties and faculties with its latest assault on DEI and pupil physique range. The U.S. Division of Training’s Workplace for Civil Rights launched a Pricey Colleague letter that warned faculties and faculties that they could 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. In reality, OCR’s letter sweeps so broadly that it claims to ban sure issues of race that stay completely authorized beneath 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 using “race as a think about admissions, monetary support, hiring, coaching, and different institutional programming.”
Though the letter contains some appropriate statements of nondiscrimination regulation, OCR makes assertions which are troubling and unsupported by sound authorized reasoning. As a part of the crew that wrote OCR’s steering on this very difficulty 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 steering that may damage instructional establishments and college students from kindergarten via faculty.
In describing the scope of SFFA, OCR’s newest steering 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 info as a proxy for race, and making choices based mostly on that info, violates the regulation … It could, as an illustration, be illegal for an academic establishment to eradicate standardized testing to realize a desired racial steadiness or to extend racial range.”
Right here, OCR baselessly claims that not solely can faculties not think about race as a think about admissions, in addition they can’t make race-neutral adjustments to admissions insurance policies that assist improve pupil physique range—similar to eliminating standardized testing. That declare falls firmly outdoors not solely the bounds of SFFA but in addition 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 Faculty might use a lottery system for admissions. In Fisher (2016), Justice Anthony Kennedy implicitly approves of the Texas high 10 % plan, maybe probably 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 options Harvard might have legally pursued similar to 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 pupil physique range. Whereas in actuality SFFA says nothing concerning the permissibility of those race-neutral methods, a separate line of circumstances tackles these authorized questions head-on—and contradicts the Trump administration’s unfounded steering.
In Coalition for TJ, Boston Dad or mum Coalition and different current circumstances, 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 pupil physique range. In some circumstances, the faculties reconfigured weighting for standardized assessments; in others, faculties assured that every feeding center college will get a sure variety of seats. In all the circumstances, the college districts gained. The place now superior by OCR in its current letter has failed to search out footing in two courts of enchantment. And simply final 12 months, the Supreme Court docket declined to additional evaluate the choices in TJ and Boston.
What OCR makes an attempt to do with its letter is extraordinary. It tries to advance a authorized concept with help from a Supreme Court docket case that claims nothing concerning the matter. On the identical time, OCR ignores current judicial opinions in circumstances that immediately tackle this query.
No matter how legally infirm OCR’s proclamations are, faculties and faculties will probably 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 pupil our bodies and racially inclusive campus environments. Consequently, 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.