I’d like to devote my email this week to reviewing the outcome of three complaints — filed against three different educational entities by the Center for Equal Opportunity with the U.S. Department of Education’s Office for Civil Rights (OCR) — that have been successfully resolved for us during the Trump administration. Together they cover the waterfront of much politically correct race-based decisionmaking in higher education. We hope they will encourage others to file similar complaints with OCR.
Texas Tech Medical School: “Diversity” Racial Preferences in Admissions Rejected
As a result of a complaint that the Center for Equal Opportunity filed in 2004 (!) against Texas Tech, the medical school there last year signed a Resolution Agreement (RA) with OCR, ending its use of racial preferences in admissions. As of March 1 last year, “an applicant’s race and/or national origin are no longer to be considered.” Kudos to all concerned, including Texas Tech.
Our complaint was filed when, after the Supreme Court had issued its 2003 decisions narrowly upholding the use of racial-admission preferences in some circumstances at the University of Michigan, Texas Tech announced that it would begin considering race, notwithstanding the fact that it had not been doing so and had achieved plenty of racial and ethnic diversity nonetheless. In our view, since the Court made clear that race was not to be used except as a last resort, Texas Tech’s announced new policy was unjustifiable.
In the course of the 15-year investigation that followed, the university clarified or backed away from its 2004 pronouncement until, by last November, only the investigation of the five health-science schools remained. They, too, then clarified or backed away, so that by early this year the medical school was the only outlier. And finally last year it came around, too. The relevant documents are posted on our website, here.
All this is significant for two reasons.
First, it shows again that the Trump administration is serious about enforcing the civil-rights laws so that they forbid discrimination against all racial and ethnic groups, and will not turn a blind eye toward politically correct racial discrimination in the way the Obama administration did. (To get into the weeds just a bit: The one possible quibble I have with the RA is that it does not explicitly require consideration of the considerable costs of using race in admissions, such as “mismatch” — but this is actually better considered part of the “compelling interest” prong rather than the “narrow tailoring” prong of “strict scrutiny” under the Supreme Court’s jurisprudence.)
Second, the more schools there are that do not use racial preferences, the harder it becomes for other schools to justify their use. The law permits the use of racial preferences in admissions only as a last resort to achieve the “educational benefits” of a “diverse” student body. But if a lot of other schools don’t need to use them, then what excuse do the remaining schools have?
Consider: In addition to Texas Tech, medical schools elsewhere throughout the country — for starters, in California, Washington, Michigan, Nebraska, Arizona, and Oklahoma, all of which have banned the use of preferences in public universities there by ballot initiative — no longer use racial preferences. And if preferences aren’t used in California and Washington, then why do they have to be used on Oregon? If they’re not used in Arizona and Oklahoma and West Texas, then why are they used in Colorado and New Mexico? And if they aren’t used in Nebraska and Michigan, then why are they used in Iowa and Wisconsin?
I have to add also that, as objectionable as the use of racial preferences is in any context, it is especially disturbing when nonmeritocratic political correctness is used to choose people who will have literally life-and-death responsibilities.
Washington University in St. Louis: Racially Exclusive Non-Admission Programs Rejected
Kudos also to the Trump administration, Washington University in St. Louis, and (of course!) the Center for Equal Opportunity regarding the recent resolution reached regarding a complaint that CEO filed last June with OCR about an illegally discriminatory program being run by the university.
Here the program at issue granted various awards to WUSL students, but only if they were black. A poster advertising the program was sent by a member of the university community to us, and we filed a complaint with OCR. The resolution agreement makes this program — and indeed other WUSL financial-aid programs that may have been race-restricted — open to all students “without regard to race, color or national origin.” The complaint that we filed with OCR (and the poster that we attached to the complaint), as well as the letter we received from OCR this month (which attached the determination letter and the resolution), are posted on CEO’s website here.
Whatever one thinks of racially preferential programs — and CEO opposes them all — a program that is not only racially preferential, but racially exclusive, is illegal. The Supreme Court has narrowly upheld the use of race and ethnicity by schools only as part of a calculus in which students are given “individualized consideration”; if students are told they cannot even apply to a program unless they are the right color, then obviously no individualized consideration is being given.
Any school currently engaging in such discrimination is vulnerable to complaints like the one we filed. And so we hope: (a) such a school would not end the program, but change it so that it is open to all students; and (b) if the discrimination persists, then anyone aware of such discrimination bring it to the attention of the Education Department’s Office for Civil Rights, which can be done by visiting its website here.
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Let me drop a footnote at this point elaborating on our position that any racially exclusive educational program (scholarships, internships, awards, etc.) is illegal. Such programs cannot survive the Supreme Court’s stated requirement in the 2003 Grutter and Gratz cases that any use of race must also involve “individualized consideration.” Later, in the Seattle/Louisville cases, the Court likewise demanded “meaningful individualized review of applicants” as opposed to using racial classifications in a “nonindividualized, mechanical” way. The opposing claim that a racially excluded student can always apply for some other scholarship etc. smacks of “separate but equal”; ignores the fact that each scholarship is different in terms of, for example, resources and prestige; and proves too much since the Court has long rejected similar set-asides in admissions. What’s more, the fact that most schools have been able to thrive without racially exclusive programs belies the claim that there is no viable alternative to them.
Kentucky Department of Education: Non-Diversity Rationalizations Rejected, Too
In the case involving the Kentucky Department of Education, the Center for Equal Opportunity and the American Civil Rights Institute (founded by Ward Connerly) filed a complaint with OCR in December 2003 (!) against the KDoEd, alleging that it was illegally discriminating on the basis of race and ethnicity in its administration of two scholarship programs. The KDoEd case is significant for its skepticism about non-diversity justifications for racial preferences, rejecting for example the “role model” justification and, in this instance, the claim that the discrimination would somehow remedy past segregation. The relevant papers are available here.
Conclusion
Again, the three matters challenged by CEO here and resolved by OCR in this administration implicate much politically correct race-based decisionmaking in higher education. We hope the way OCR resolved these cases will encourage others to file more complaints with OCR.
