Racial preferences and proxies
In his majority opinion in SFFA, Chief Justice Roberts walked a fine line between prohibiting the use of racial preferences in admissions and allowing schools to consider the many ways race can influence applicants’ opportunities, character, and trajectory. On one hand, he wrote that “nothing in this opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise.” On the other, he warned that “universities may not simply establish through application essays or other means the regime we hold unlawful today. … [W]hat cannot be done directly cannot be done indirectly.”
The Trump administration seems determined to prevent schools from circumventing the Supreme Court’s anti–affirmative action rulings by “relying on non-racial information as a proxy for race, and making decisions based on that information.” In its February DCL, the Department of Education claimed that “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 a student.” With little explanation, it added the controversial claim that it would “be illegal for an educational institution to eliminate standardized testing to achieve a desired racial balance or to increase racial diversity.”
Attorney General Bondi’s July memo went even further. Selection criteria used by a school for admissions, employment, or honors become “legally problematic” if they were “selected because they correlate with, replicate, or are used as a substitute for” race, sex, and other “protected characteristics”; or if they were “implemented with the intent to advantage or disadvantage individuals based on protected characteristics.” In a statement of remarkable breadth, Bondi concluded, “Intent to influence demographic representation risks violating federal law.” For example, scholarship programs cannot “target ‘underserved geographic areas’ or ‘first-generation students’ if the criteria are chosen to increase participation by specific racial or sex-based groups.”
The upshot is that the Justice and Education departments claim broad discretion to investigate and punish schools for any selection criteria regulators suspect has been used to advantage or disadvantage individuals based on their race or sex. Given the subjectivity of such determinations, schools are advised to base selection decisions on “specific, measurable skills and qualifications directly related to job performance or program participation.”
In its agreements with individual colleges, the administration has insisted that “restoring merit-based opportunity” means basing admissions almost entirely on grades and test scores. That is why a recent executive order requires all selective colleges to release data on the race, grade point averages, and test scores of all admitted and rejected applicants. The message is clear: If a school admits Black or Hispanic students with lower grades or test scores than white or Asian students, it invites a lengthy investigation by the federal government, not to mention court suits brought by Edward Blum.
How fully the administration will cleave to these quantitative measures of meritocracy remains to be seen. In its April 11 letter to Harvard, it first required the school to “adopt and implement merit-based admissions policies,” but then demanded that it “reform its recruitment, screening, and admissions of international students to prevent admitting students hostile to the American values and institutions inscribed in the U.S. Constitution and Declaration of Independence.” Moreover, “every teaching unit found to lack viewpoint diversity must admit a critical mass of new students who will provide viewpoint diversity.” Apparently, meritocracy has not totally displaced diversity; rather a new form of diversity has displaced the old.
The Trump administration’s effort to uproot racial “proxies” and to instill its understanding of merit has at least three implications for K–12 schools. First and most obviously, it presents a challenge to school districts that want to create greater racial, ethnic, and income diversity in exam schools. Recent efforts to change admission criteria at famed schools such as Boston Latin School, Thomas Jefferson High School in northern Virginia, and Lowell High School in San Francisco were driven by complaints that the students they served were disproportionately white and Asian. So far, federal judges have ruled that criteria used to change the composition of exam schools are constitutional as long as they do not create hard-and-fast racial quotas—regardless of the motivation behind the change.
The Trump guidelines, though, make all such revisions suspect. In May the Department of Education initiated an investigation of Thomas Jefferson High School, alleging that the 2020 decision to substitute “holistic review” for test-based admissions was motivated by a desire to change the racial composition of the student body and thus a violation of Title VI. If, as the Department claims, it is illegal “to eliminate standardized testing to achieve a desired racial balance or to increase racial diversity,” is it also illegal to reduce the weight given to those tests? Here again, it will take years for the courts to resolve this issue. In the meantime, the threat of federal investigations and funding cut-offs will weigh on school officials.
Second, the new guidelines on racial “proxies” invite challenges to the “controlled choice” plans used by some cities to assign students to schools. According to The Century Fund, about a hundred school districts in the country have sought to increase socioeconomic and racial diversity in their schools by giving parents the opportunity to rank their preferences for the schools their children will attend (the “choice” component), but honoring those requests only to the extent that they create greater demographic diversity (the “control” component).
Although The Century Fund applauds these initiatives, it concedes that lack of transparency is central to their success: “[S]ocioeconomic school integration is often a fragile political issue, limiting administrators desire to discuss the existence and success of assignment plans and other programs to promote integration.” The report notes that “specific information about assignment plans” is “often inaccessible,” and that “some district and charter leaders may believe it is in the best interest of their integration strategies to operate under the radar rather than attract attention that may subject them to renewed scrutiny.”
It is quite likely that federal courts will find the Trump administration has gone well beyond Supreme Court jurisprudence in limiting efforts to promote either racial or socioeconomic diversity. But the government’s ability to investigate “controlled choice” plans and to probe the extent to which they employ racial criteria will make it much harder for school officials to avoid political controversy.
Third, Trump’s executive orders require federal agencies to revise the Biden administration’s rules on school discipline and prohibit them from using the type of “disparate impact analysis” on which those rules were based. The implications of these directives are hard to anticipate. It is likely that schools that have complied with Obama and Biden commands to reduce out-of-school punishments and to eliminate rules that disproportionately affected minority students will be pressured to reinstate their previous disciplinary practices. Schools that had modified their tracking procedures to reduce socioeconomic or racial segregation could also face the threat of federal investigations—possibly (and ironically) on the grounds that they have had a “disparate impact” on white and Asian students. Teachers disturbed by lax discipline could use the threat of federal intervention to force changes in school policy, as could parents dissatisfied with the abandonment of advanced classes. Regardless of the outcome of federal investigations or lawsuits, the publicity created by federal intervention can be politically decisive.
