The Division of Schooling issued a threatening letter this month addressed to all instructional establishments that obtain federal funds. The letter presents an excessive and implausible interpretation of the regulation governing variety, fairness and inclusion coverage. It calls for that colleges abandon not simply affirmative-action-like applications that take into account the race of people but in addition insurance policies which might be blind to people’ race if these insurance policies have been adopted, even partly, to advertise racial variety.
The letter additionally claims that federal regulation prohibits colleges from educating or selling sure concepts about race that the division deems unacceptable.
The division offers colleges till Feb. 28 to adjust to this interpretation of the regulation or danger dropping their federal funding, which might endanger the existence of many faculties and universities. This menace is a brazen try and bully colleges into making coverage modifications that the regulation doesn’t require.
The first authorized authority the letter cites is the Supreme Court docket’s 2023 choice in College students for Honest Admissions v. Harvard, which successfully ended affirmative motion in college admissions. Among the letter’s calls for, equivalent to eliminating scholarship applications that take into account an applicant’s race, are affordable extensions of the court docket’s choice. However the letter goes past these calls for, misreading the regulation in a approach that additional imperils racial variety in colleges.
There are lots of methods to advertise various and inclusive campuses with out counting on race. Faculties can broaden monetary assist for poor college students. They will remove legacy admissions. They will favor candidates whose dad and mom didn’t attend school. Such insurance policies don’t deal with anybody otherwise based mostly on race, and so they additionally serve reliable targets unrelated to race, equivalent to socioeconomic variety.
So why does the Division of Schooling object to such insurance policies? As a result of colleges adopting them have typically hoped that they’d promote racial variety. The division’s letter contends that when policymakers search that end result, the ensuing insurance policies are unlawful even when race-neutral. It argues that such insurance policies embody “preferences” which might be impermissible.
However the regulation doesn’t assist this idea. The Supreme Court docket’s affirmative-action choice in 2023 didn’t render racial variety an illegal curiosity — certainly, it described that curiosity as “commendable” and “worthy.” Courts have lengthy distinguished between “benign” racial aims (equivalent to variety) and “invidious” ones (equivalent to segregation). The Supreme Court docket didn’t change that distinction. What it modified have been the signifies that colleges can use to pursue variety: They now should be race-neutral.
Race-neutral alternate options aren’t affirmative motion in disguise. As a result of they don’t consider folks otherwise based mostly on race, these applications don’t danger what the Supreme Court docket noticed as affirmative motion’s harms, together with stereotyping and stigma. That is additionally why such insurance policies have lengthy been supported by critics of affirmative motion.
The Division of Schooling’s letter additionally overreaches in its try and police colleges’ communication of sure concepts about race. It cites “D.E.I. applications” that educate, for instance, “that sure racial teams bear distinctive ethical burdens that others don’t.” That passage of the letter is temporary, and what precisely it prohibits is left imprecise. However the implication is that the division interprets Title VI of the Civil Rights Act of 1964 as proscribing what colleges can educate college students.
That is fallacious and harmful. It’s fallacious as a result of Title VI precludes colleges from treating college students otherwise based mostly on race, not from expressing (or permitting school members to precise) specific views on race. It’s harmful as a result of the Division of Schooling is threatening to punish speech by withdrawing funding. The letter’s vagueness as to what speech it considers impermissible solely worsens the issue, as a result of given the threatened sanctions, these uncertain of whether or not they might communicate are prone to err on the facet of silence.
The Division of Schooling can in fact criticize speech it disagrees with. However the First Modification doesn’t permit the federal government to limit speech based mostly on such disagreement, together with by conditioning funds.
Lately, many individuals have criticized school campuses, generally with justification, for being insufficiently dedicated to free speech. However when you care about free speech, the Division of Schooling’s anti-D.E.I. effort is a treatment far worse than the illness. Even on the “wokest” of campuses, dissenters are usually free to critique D.E.I. They might face social penalties (or in uncommon cases, institutional self-discipline) however they haven’t confronted a menace from the federal authorities to their college’s existence.
Faculties ought to adjust to the Supreme Court docket’s ruling on affirmative motion. They need to be ready to remove related insurance policies that deal with folks otherwise based mostly on race. However colleges mustn’t cave to the Division of Schooling’s indefensible additional calls for, and the courts should curtail this blatant overreach.
