Eliminating racial discrimination means eliminating all of it, as the Supreme Court held just two months ago in the Students for Fair Admissions cases striking down race-preferential admissions at Harvard and the University of North Carolina. Yet many universities have _ essentially revealed _ they plan to disregard the intent of the ruling and continue factoring race into the admissions process, albeit more subtly than before.
In Students for Fair Admissions, the Supreme Court held that Harvard and North Carolina could no longer pursue racial diversity through openly discriminatory admissions practices. In response, universities are now asking: What about more veiled forms of discrimination?
But the Supreme Court already answered this unequivocally: Proxy discrimination is illegal. “Universities may not simply establish through application essays or other means the regime that we hold unlawful today,” Chief Justice Roberts wrote, adding, “What cannot be done directly cannot be done indirectly.”
The Department of Education’s Office for Civil Rights, tasked with making sure that universities follow civil rights law, should have issued guidance making it clear that even cleverly disguised race discrimination is unlawful. Unfortunately, its recently issued _ FAQ document _ ignores this looming problem.
The FAQ guidance from the department states, “Nothing in the SFFA decision prohibits institutions from continuing to seek the admission and graduation of diverse student bodies, including along the lines of race and ethnicity, through means that do not afford individual applicants a preference on the basis of race in admissions decisions.”
A university may have “diversity” as a goal, but only if it seeks genuine multidimensional diversity. It cannot use “diversity” as a euphemism for preferred racial demographics.
Some public K-12 school districts have already resorted to proxy discrimination. The Fairfax County School Board in Virginia at science magnet Thomas Jefferson High School uses a couple of proxies for race, notably middle school attendance, to achieve its racial goals. Our firm, Pacific Legal Foundation, represents the parent and alumni group Coalition for TJ in challenging the reengineered admissions scheme. Our petition _ is pending before the Supreme Court. Similar cases have been filed in Boston _ and _ New York City _.
Remarks _ from a recent Association of American Law Schools conference suggest similar evasive efforts afoot at law schools post-_Students for Fair Admissions. Panelists spoke about how to “protect diversity gains” via “race conscious, but also race-neutral, means” such as “zip code[s].”
Instead of recommending law schools stop discriminating, panelists advised burying evidence of discriminatory intent. Tim Lynch, vice president and general counsel at the University of Michigan, lamented that courts “look into text messages, they look for anything that could be used for evidence of discriminatory intent” and noted that “it’s very difficult for your tenured faculty members perhaps to hold back.” He suggested, “Look at your websites and materials. What do they actually say?” and “Have an undergrad go online” to look for evidence of discrimination to scrub.
The Education Department should have reaffirmed that schools cannot discriminate overtly or covertly. Instead, it has turned a blind eye to indirect discrimination. The Supreme Court should correct that error by granting cert in Coalition for TJ and upholding genuine equality under the law.
This op-ed was originally published in the Washington Examiner on September 12, 2023.