During my elementary school days, I always looked forward to Feb. 14, Valentine’s Day. On that day we would suspend normal school in the afternoon to have a party. It was innocent fun, because we would have freaked out had we grasped the romantic overtones of the holiday.
Every member of the class would receive a Valentine card from each classmate. And of course there was candy, especially the little conversation hearts with messages like “Be Mine.” It’s been a long time, but I understand that conversation heart messages have evolved to things like “GOAT.” Back in my day (a phrase I try to refrain from using), we would have thought we were being compared to the animal, not our favorite athlete.
On Feb. 14 this year, America’s schools and colleges received a Valentine from the U.S. Department of Education in the form of a Dear Colleague letter from Craig Trainor, acting assistant secretary for civil rights at the department. “Dear Colleague” is neither a message found on conversation hearts nor the kind of salutation one normally sends to those they love. The tone of Trainor’s letter is not exactly romantic, containing the phrase “morally reprehensible” in the opening sentence.
The purpose of the Dear Colleague letter is to outline the obligations that educational institutions receiving federal funds have to avoid discriminating with regard to race. It gives colleges and schools a two-week window (since passed) to correct their practices, without specifying exactly what they must do. At the end of two weeks, the Education Department sent out a list of frequently asked questions that toned down some of the rhetoric found in the original letter.
The letter invokes the potential threat of revoking federal funding. If the Dear Colleague Valentine included a conversation heart, the message wouldn’t be “You’re so fine” but rather “You’re so fined.”
I will leave it to others to weigh in on the legal issues raised by the letter and how colleges and universities (and schools) should respond. I am more interested in the issues and assumptions underlying the letter itself, particularly those impacting admission.
It can be argued that the Dear Colleague letter is guilty of burying the lead. Hidden in a footnote is what is perhaps the most important statement in the letter: “This guidance does not have the force and effect of law.” Even that may overstate the gravity of the letter. Its author is an acting assistant director in an office (civil rights) that is being dismantled in a number of agencies throughout the government. And how seriously should we take threats from a department that seems to be on a fast track to being eliminated?
There are several examples of false equivalences within the document. It states, “In recent years, American educational institutions have discriminated against students on the basis of race, including white and Asian students, many of whom come from disadvantaged backgrounds and low-income families.” It is also true that many do not come from those backgrounds, but why does that matter? Is this “discrimination” equivalent to the racial discrimination against nonwhites in earlier times?
Similarly, there is a contention that smaller racial or ethnic graduation ceremonies, conducted in addition to, not in lieu of, the overall ceremony, are “a shameful echo of a darker period in this country’s history,” encouraging “segregation by race.” Is the Education Department claiming that this is the same thing as segregation before Brown v. Board of Education?
Dear Colleague relies on an expansive interpretation of the Supreme Court decision in SFFA v. Harvard, stating that federal law prohibits consideration of race not only in admission but also in “hiring, promotion, compensation, financial aid, scholarships, prizes, administrative support, discipline, housing, graduation ceremonies.” Clearly all or many of those areas are likely to be litigated in the wake of the Harvard case, but that decision had only to do with admission, and even with regard to admission, Chief Justice John Roberts’s opinion was focused on colleges sculpting their classes to achieve a desired level of racial balance, not their ability to consider race as a factor in evaluating individual applicants.
There are two broader issues here. One is whether diversity is an intrinsic value, good in itself, or an instrumental value, good because it helps accomplish another value. I think colleges have treated diversity as intrinsically good, worth pursuing for its own sake. I think that’s a mistaken view. Diversity is valuable when it allows for a better educational experience, helping students to understand and appreciate viewpoints and experiences other than their own.
The second is whether race is a foundational component of an individual’s experience and perspective. Of course it is—how could it not be? Many of my male students of color had to worry every time they drove about being stopped by police for no apparent reason in a way my white students didn’t. The danger lies in assuming that all members of a particular racial or ethnic group automatically have a common experience or perspective.
Perhaps the most questionable assertion in the Dear Colleague letter is that even race-neutral programs can be in violation of the law. The letter argues 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 students.”
In ethics, intent is always a key component. It is certainly possible for colleges to guess at a student’s race based on where they live or went to high school or what they choose to write about in a personal essay. Seven or eight years ago, when many colleges added a “personal identity” essay to their applications, I wondered if they were preparing for a Supreme Court overturning of precedent regarding race-based admission. Colleges shouldn’t use essay questions as a subterfuge to determine an applicant’s race, but it is different when a student volunteers information about race in sharing their story. The relevant principle is that every applicant should be considered as an individual, with all that entails, including race.
Another statement in the Dear Colleague letter is particularly interesting, contending that it would “be unlawful for an educational institution to eliminate standardized testing to achieve a desired racial balance or to increase racial diversity.” Why pick standardized testing as an example? Disregarding the fact that the statement assigns testing a respect and power that is unjustified, is the Education Department presupposing that test-optional admission is solely about race? Would it also be unlawful for an institution to add standardized testing to decrease racial diversity? What about if decreasing diversity is an unintended consequence of adding testing?
The Dear Colleague letter includes the requisite bashing of DEI programs, arguing that they “teach students that certain racial groups bear unique moral burdens that others do not.” If that is indeed true, who does that refer to? Is the burden referred to borne by whites who are descendants of those who practiced both de jure and de facto discrimination, or is the burden on those who were victims of that discrimination? There are certainly excesses under the umbrella of DEI, but it has become a straw man blowing a dog whistle.
