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Here’s How Biden Admin Is Evading SCOTUS’ Affirmative Action Ban

August 17, 2023

The U.S. Department of Education has advice for colleges on how to skirt the law and get around a recent Supreme Court decision that condemned racism. For Americans hoping the rest of Washington would follow the high court’s rejection of prejudice, the Education Department has plans to keep racial preferences around.

In a “Dear Colleague Letter” and “Frequently Asked Questions” document released Aug. 14, education officials said college admissions officers should substitute words such as “underserved” and “disadvantaged” for “race.” The letter says, “Students from disadvantaged backgrounds” are “disproportionately students of color.” True, colleges can already “ultimately consider for admission” a “robust pool of talented students from underrepresented groups.”

But the new guidance reads, “For Institutions of higher education, [new student recruiting] may mean redoubling efforts to recruit and retain talented students from underserved communities, including those with large numbers of students of color.”

So what comes first, talent or race? Education officials write that “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…” What if the applicant were the best violinist? Or the most improved? His achievements are lost in this song of identity politics and skin color.

Then, in a shocking display of the soft bigotry of low expectations, education officials encourage schools to lower their standards, saying institutions of higher learning should consider whether “prerequisite courses such as calculus” or asking students to submit his or her application on time will “advance institutional interests.”

The Education Department’s new guidance also advocates for offices of diversity, equity, and inclusion (DEI) on campus, despite the significant evidence that DEI training programs do not change individual attitudes and behavior. The guidance praises institutions that try to enroll students from a diverse set of races and ethnicities. Yet federal policymakers do not show the same appreciation for a diversity of ideas, which, according to numerous polls, students say is sorely lacking on college campuses today. (The importance of a “robust exchange of ideas” receives a footnote.)

DEI offices support bias response teams (BRT), which courts have said chill speech on university campuses. The University of Michigan, for one, disbanded its BRT in a settlement agreement with an advocacy organization in 2019.

Indeed, the race-based policies Education Secretary Miguel Cardona is supporting make it easier for colleges to exercise racial preferences in hiring and admissions, including by requiring “loyalty oaths” on faculty job applications. But surveysfind that college administrators’ use of racial preferences in admissions is highly unpopular with the American public. And Arizona’s public universities now claim they do not require loyalty oaths, just months after Goldwater Institute research uncovered the extent of the practice. State lawmakers elsewhere are disbanding DEI offices entirely.

Since the Supreme Court justices released their opinion in Students for Fair Admissions v. Harvard and Students for Fair Admissions v. University of North Carolina, policymakers at the Education Department have criticized the ruling. Secretary Cardona insisted that the majority opinion had caused a “crisis” and driven America to a “low point.”

In the release of this new guidance on how to circumvent the ruling, he reiterated his feelings, somewhat less histrionically, by calling the opinion “disappointing.” If the Education Department were really “committed” to “vigorous” enforcement of the Civil Rights Act of 1964, as the agency claims in its new guidance, then why did Students for Fair Admissions—instead of the department—have to file a lawsuit to protect the idea of equality under the law?

With the agency’s new documents, Washington has revealed that identity politics matters more to the administration than effort and hard work. Indeed, the department goes so far as to take a swipe at academic rigor and personal responsibility. After losing in the court of public opinion and the nation’s highest courtroom, federal bureaucrats are setting a poor example for students by encouraging college administrators to go around the law.

Families and students everywhere should condemn the department’s persistent support of racism and low standards. Surely the next generation of leaders does not need an object lesson from federal bureaucrats in how to be devious.

Jonathan Butcher is a Senior Fellow at the Goldwater Institute and the Will Skillman Senior Fellow in Education at The Heritage Foundation. 



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