WU: The Visible Hand vs. Equal Justice

On August 14, 2023, the U.S. Department of Education Office for Civil Rights (OCR) and the U.S. Department of Justice Civil Rights Division (CRD) jointly released guidance titled “Questions and Answers Regarding the Supreme Court’s Decision in Students for Fair Admissions, Inc. v. Harvard College and University of North Carolina.” Designed to help colleges and universities navigate the admissions landscape after SCOTUS’s landmark ruling in June 2023, this guidance document showcases the federal government’s political will to trample underfoot the court’s decision, which resoundingly overturns race-conscious admissions.

First and foremost, the OCR-CRD joint guidance intentionally misrepresents the ruling. In simple numerical terms, the document spends seventeen paragraphs addressing how colleges and universities may still consider race in admissions, build a racially diverse student body, target outreach to underrepresented groups, collect demographic data, and maintain programs that foster safety and belonging. On the other hand, only two short paragraphs explicate the ruling’s main arguments in favor of equal protection, colorblindness, and non-discrimination in admissions.

Such an engineered imbalance—despite the fact that the court’s majority opinion only contains one sentence at the end about permitting the discussion of race and race-related experiences in college essays—proves many critics of race consciousness right: when given an inch, proponents of racial preferences will take a mile.

Both agencies have engaged in distasteful race-baiting under the pretense of helping colleges and universities better understand the ruling. To signal that schools can and should still embrace holistic admissions, the guidance highlights that applicants’ individual backgrounds include “those related to their race, experiences of racial discrimination, or the racial composition of their neighborhoods and schools.” It offers the following examples to illustrate this:

A university could consider an applicant’s explanation about what it means to him to be the first Black violinist in his city’s youth orchestra or an applicant’s account of overcoming prejudice when she transferred to a rural high school where she was the only student of South Asian descent. An institution could likewise consider a guidance counselor or other recommenders’ description of how an applicant conquered her feelings of isolation as a Latina student at an overwhelmingly white high school to join the debate team. Similarly, an institution could consider an applicant’s discussion of how learning to cook traditional Hmong dishes from her grandmother sparked her passion for food and nurtured her sense of self by connecting her to past generations of her family.

The racialist overtones of statements like these imply that the Biden administration sees individual students as representatives of their racial and ethnic categories who are vying for trophies in a tedious, identity-victimhood marathon. The racial and ethnic classifications of a student are not incidental, but essential, to his identity.

[More from Wenyuan Wu: “California’s ‘Equity Math’ Showdown”]

By paying lip service to equal justice and overselling racial diversity, both offices have effectively absconded from their sworn duties to safeguard and advance civil rights, which are, fundamentally, the individual rights of equal opportunity, equal access, and equal protection. OCR’s mission is “to ensure equal access to education and to promote educational excellence throughout the nation through vigorous enforcement of civil rights,” while the CRD is tasked with enforcing “federal statutes prohibiting discrimination on the basis of race, color, sex, disability, religion, familial status, national origin, and citizenship status.” But instead of urging American colleges and universities to heed the ruling’s firm stance on non-discrimination, the two offices play with fire.

Their political overreach is accentuated by the guidance’s exhaustive discussion on how schools should help underrepresented students “feel a sense of belonging and support once on campus.” The document points out that colleges and universities can create and sustain “offices of diversity, campus culture centers…support clubs, activities, and affinity groups- including those that have a race-related theme.”

The federal government fails to mention that many academic practices and programs, implemented in the name of “student belonging,” are being challenged through lawsuits and federal civil rights complaints. The Pacific Legal Foundation, a California-based public interest law firm, is representing J.D. Haltigan in a lawsuit against the University of California (UC) system, alleging that UC Santa Cruz rejected Haltigan’s job application because he refused to comply with the school’s diversity, equity, and inclusion (DEI) statement requirement. Six California community college professors are now suing their employer for forcing them to espouse DEI and so-called “anti-racism” in the classroom. That lawsuit has been filed by the Foundation for Individual Rights and Expression, a national organization that defends free speech and academic freedom.

Wellesley Public Schools, a public K–12 school district in Boston, settled a lawsuit filed by Parents Defending Education, which challenged the school district’s racially segregated “affinity groups.” The organization also brought eight federal civil rights complaints in 2021 against school districts in Colorado, Illinois, Massachusetts, New York, North Carolina, South Carolina, Vermont, and Oregon over similar practices. OCR is the federal agency that receives these complaints.

To be clear, even before this federal guidance was issued, many schools have been eager to circumvent the SFFA ruling. The University of California, located in a state where racial preferences in public institutions have been banned since 1996, has pledged to share its “expertise and lessons learned” with its academic partners “to achieve a higher education landscape that reflects the rich diversity of our nation.” Strong evidence shows that, for at least the last three years, UC has used test-blind undergraduate admissions to racially balance its student body. Yale University, another school subject to a federal complaint and a lawsuit over alleged racial discrimination in undergraduate admissions, has vowed to create “an inclusive, diverse, and excellent educational environment,” on account of its “strong disagreement with the Court’s decisions.”

[More from Wenyuan Wu: “Legalizing Discrimination in California—Take Two”]

Diversity-minded schools and government agencies, in their ideologically monotone response to the landmark court ruling, are effectively encouraging the use of race-neutral alternatives to achieve racial balancing—defying the Supreme Court’s majority opinion that a university’s freedom to create “a racially diverse student body” “was not unlimited,” since “racial and ethnic distinctions of any sort are inherently suspect.” Throughout the OCR-CRD guidance document, colleges and universities are encouraged to consider students’ “experiences of racial discrimination,” geographic location, neighborhood, high school, family background, and more in conducting targeted outreach and making admissions decisions. The guidance also implores schools to investigate “whether the mechanics of their admissions processes,” including “standard testing requirements [and] prerequisite courses such as calculus,” “are inadvertently screening out students.”

Admittedly, race-neutral alternatives are qualitatively better than racial preferences. But many seemingly neutral measures have served as subterfuges that use non-racial criteria as proxies for race. In other words, rather than considering an applicant’s full profile on an individual basis, many race-conscious admissions practices will always choose the race-neutral preferences that yield the greatest gains in racial diversity.

Through its unsolicited endorsement of diversity over equality, the federal government has just given race-conscious college bureaucrats, admissions officers, and other higher education policymakers its blessing to continue their rampant discrimination.

Image: Adobe Stock


2 thoughts on “WU: The Visible Hand vs. Equal Justice

  1. A prior generation of segregationists pulled a lot of the same stunts in an earlier effort to defy a Supreme Court ruling they disliked.

    The University of Mississippi allowed anyone to apply, but the application had to include a couple of letters of recommendation from Univ of Mississippi alumni — all of whom were White. Hence Meredith v. Fair, 298 F.2d 695 and SCOTUS saying “no”, that’s a distinction without a difference from your old “White Only” admissions policy.

    And it’s going to take at least a dozen lawsuits to finally drive a stake through the heart of Affirmative Retribution — possibly including one directly against the Departments of Justice and Education. (If a *state* files the suit, it goes directly to the Supreme Court, and as OCR has control over Federal funds going to state universities, I don’t see how states wouldn’t have standing…)

    But the larger thing to understand here is that there are two distinctly different ways of viewing the world, and they go all the way back to the American and French Revolutions (if not earlier) — is society composed of *individuals* with INDIVIDUAL rights, or is society composed of *groups* with collective GROUP rights?

    The American Revolution was largely influenced by John Locke’s concept of everyone having personal God-given rights to one’s Life, one’s Liberty, and one’s Property — with Jefferson changing the latter to “Pursuit of Happiness” for the same reason that we now change “Rights of Man” to “Human Rights” so as to be inclusive as there were property qualifications for voting in the 18th Century.

    By contrast, the mantra of the French Revolution was “Liberty, Fraternity, and Equality” — they were stressing group or caste rights, with the individual’s rights existing only in the context of those of the group in which the individual was a member.

    A century later this becomes the debate between Booker T. Washington and WEB DuBois about what to do about the “Freedmen” — the former slaves. Or “enslaved people” or whatever term we are supposed to use this week to be less insensitive than we were last week — “Freedmen” is the term that was used at the time.

    Booker T. Washington had been born a slave and valued individual education, building a lot of small school houses of which the Black communities were immensely proud (remember that it had been illegal to teach a slave how to read). WEB DuBois was from Massachusetts which had eliminated slavery in 1801/1803 and had graduated from Harvard. DuBois is famous (or infamous) for his concept of “the top 10 percent” and wanting to only educate the “top 10 percent” of Blacks who would then speak for the entire Black race.

    Individual rights versus group rights — and the latter like in a labor union, your individual rights only exist within the context of the union’s willingness to grieve them with management.

    And the thing to understand is that the Educrats — including those at the Departments of Justice and Education — are all students of DuBois. Affirmative Action, Critical Race Theory, Social Justice Theory, Oppression Theory — all of this comes out of DuBois and his concept of collective group rights.

    Bluntly stated, they’re not even speaking the same language that we are. To them, Asians are fungible — to us, they are not only unique individuals but the very concept of “Asian” itself is questionable. We know that, for example, the Vietnamese and Cambodian peoples have issues that go back centuries — to them, there’s no distinction between Vietnamese and Cambodian, or Chinese versus Japanese, etc.

    This is why they simply can not recognize the concept of an “individual” right — to them, you only have the rights of your group. As we are not going to convince them otherwise, we are going to need to litigate…

    1. And it’s OK with the DuBois crowd that most of Baltimore’s black high school students probably can’t read. Because they’re not the 10%. The DuBois followers’ goal is not for black people to join society productively, but to be a bludgeon to tear down society.

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