As Elie Mystal mentioned on Thinking Like A Lawyer’s 400th episode, we’re still wading in the wake of what SFFA v. Harvard will mean for well… everyone. That said, we’ve definitely made some predictions about what will be next on the chopping block. We’re starting to get some answers. Our speculation has largely been focused on what admissions in higher ed would look like — because that’s what the case was about — but a recent letter shows we should be just as interested in what’s happening in K-12 education. On Valentine’s Day, the Department of Education’s Office for Civil Rights dropped a Dear John letter telling all schools interested in keeping federal aid to break up with any use of discrimination by race or its proxies:
Although some programs may appear neutral on their face, a closer look reveals that they are, in fact, motivated by racial considerations. And race-based decision-making, no matter the form, remains impermissible. For example, a school may not use students personal essays, writing samples, participation in extracurriculars, or other cues as a means of determining or predicting a student’s race and favoring or disfavoring such students…Relying on non-racial information as a proxy for race, and making decisions based on that information, violates the law. That is true whether the proxies are used to grant preferences on an individual basis or a systematic one.
While the word choice here was “determining” and “predicting,” the real concern is seeing how long it takes for the government to punish “acknowledging the mention of race” or some other protected characteristic by proxy. And it might not seem like much of a chilling effect for now, but when losing federal funding is on the line, is it really worth a school risking accepting an applicant with a background that could be read as having anything to do with diversity?
Would a school risk their funding for accepting a student who talked about how formative participation in the Urban Debate League was to them because they know they might get accused of using “Urban” as a proxy for Black? Even if the applying student happened to be white? If a student applying to North Carolina Agricultural and Technical State University has her application rejected, does the school risk losing funding because her application *mentioned* that the study habits and leadership skills she picked up as a Girl Scout in her writing sample and Girl Scouts are predominately white? Even if the applicant was Black, who is to say that the school did or didn’t discriminate against her because they assumed she was white?
The problem with defending against “taking a closer look” rhetoric is that once the seer assesses the wrongdoer’s “true intentions” and flips the burden of proof, good luck with proving the negative.
Chris Williams became a social media manager and assistant editor for Above the Law in June 2021. Prior to joining the staff, he moonlighted as a minor Memelord™ in the Facebook group Law School Memes for Edgy T14s. He endured Missouri long enough to graduate from Washington University in St. Louis School of Law. He is a former boatbuilder who is learning to swim, a published author on critical race theory, philosophy, and humor, and has a love for cycling that occasionally annoys his peers. You can reach him by email at cwilliams@abovethelaw.com and by tweet at @WritesForRent.
The post The Department Of Education Finally Dropped The ‘No DEI By Proxy’ Shoe We Were All Waiting For appeared first on Above the Law.
As Elie Mystal mentioned on Thinking Like A Lawyer’s 400th episode, we’re still wading in the wake of what SFFA v. Harvard will mean for well… everyone. That said, we’ve definitely made some predictions about what will be next on the chopping block. We’re starting to get some answers. Our speculation has largely been focused on what admissions in higher ed would look like — because that’s what the case was about — but a recent letter shows we should be just as interested in what’s happening in K-12 education. On Valentine’s Day, the Department of Education’s Office for Civil Rights dropped a Dear John letter telling all schools interested in keeping federal aid to break up with any use of discrimination by race or its proxies:
Although some programs may appear neutral on their face, a closer look reveals that they are, in fact, motivated by racial considerations. And race-based decision-making, no matter the form, remains impermissible. For example, a school may not use students personal essays, writing samples, participation in extracurriculars, or other cues as a means of determining or predicting a student’s race and favoring or disfavoring such students…Relying on non-racial information as a proxy for race, and making decisions based on that information, violates the law. That is true whether the proxies are used to grant preferences on an individual basis or a systematic one.
While the word choice here was “determining” and “predicting,” the real concern is seeing how long it takes for the government to punish “acknowledging the mention of race” or some other protected characteristic by proxy. And it might not seem like much of a chilling effect for now, but when losing federal funding is on the line, is it really worth a school risking accepting an applicant with a background that could be read as having anything to do with diversity?
Would a school risk their funding for accepting a student who talked about how formative participation in the Urban Debate League was to them because they know they might get accused of using “Urban” as a proxy for Black? Even if the applying student happened to be white? If a student applying to North Carolina Agricultural and Technical State University has her application rejected, does the school risk losing funding because her application *mentioned* that the study habits and leadership skills she picked up as a Girl Scout in her writing sample and Girl Scouts are predominately white? Even if the applicant was Black, who is to say that the school did or didn’t discriminate against her because they assumed she was white?
The problem with defending against “taking a closer look” rhetoric is that once the seer assesses the wrongdoer’s “true intentions” and flips the burden of proof, good luck with proving the negative.
Chris Williams became a social media manager and assistant editor for Above the Law in June 2021. Prior to joining the staff, he moonlighted as a minor Memelord™ in the Facebook group Law School Memes for Edgy T14s. He endured Missouri long enough to graduate from Washington University in St. Louis School of Law. He is a former boatbuilder who is learning to swim, a published author on critical race theory, philosophy, and humor, and has a love for cycling that occasionally annoys his peers. You can reach him by email at [email protected] and by tweet at @WritesForRent.
