Apparently when President Trump says “illegal DEI,” he means lawful and common sense efforts to combine public faculties. At the very least, that’s the takeaway from the Division of Training’s new investigation towards Fairfax County Public Colleges.
Trump officers declare Fairfax County violated federal regulation when it adopted an admissions coverage designed to “change the demographic make up” of its best highschool. This concept, which equates integration with segregation, dates again to Barry Goldwater, who remarked in 1964 that “the Structure is color-blind … and so it’s simply as flawed to compel youngsters to attend sure faculties for the sake of so-called integration as for the sake of segregation.”
It appears Trump agrees. Sadly for him, the Supreme Courtroom doesn’t.
Simply final yr, the court docket declined to overturn a ruling for Fairfax County. As I explained at the time, that call made sense. Even because the Supreme Courtroom has shifted laborious proper, a long time of conservative case regulation — together with from Chief Justice John Roberts — condone racial objectives reminiscent of range, equality and inclusion.
The brand new investigation tracks Trump’s disregard for courts and his tendency towards bluster over substance. However in essential respects, it additionally exposes that Trump’s warfare on DEI lacks any ethical and authorized foundation.
Some context is useful. For decades, Black advocates sought to desegregate Thomas Jefferson Excessive College, one of many nation’s top-ranked public faculties. As just lately as 2012, the NAACP filed a civil rights grievance alleging that the college’s admissions insurance policies discriminated towards African American and Hispanic college students and college students with disabilities. Issues shifted in 2020. As racial justice protests erupted throughout the globe, native leaders grappled with the truth that in a county with roughly 100,000 Black residents, Thomas Jefferson Excessive College admitted so few Black college students that the quantity was too small to report. The state convened a job power to look at the causes of this ongoing exclusion at Thomas Jefferson and different Virginia faculties.
Following a sequence of hearings, the board revised the college’s admissions course of, eliminating a $100 utility price and a standardized testing requirement. Opposite to ongoing claims that the brand new coverage compromised “advantage,” the board raised the minimal GPA for admission from 3.0 to three.5 and added an honors course requirement. The brand new coverage additionally applied a holistic analysis that included new “expertise elements,” reminiscent of whether or not the applicant certified for lowered meals or is an English language learner. The up to date course of additionally ensured that every center college obtain quite a lot of seats equal to 1.5 % of its eighth-grade class.
The college board resolved that “[t]he admission course of should use solely race-neutral strategies that don’t search to realize any particular racial or ethnic combine, stability or targets.” Which means admissions officers will not be instructed the race, ethnicity, intercourse or title of any applicant. In Supreme Courtroom parlance, your complete admissions course of was “colorblind.”
The brand new course of produced promising outcomes. In its inaugural yr, Thomas Jefferson Excessive College acquired 1,000 more applicants than the prior cycle. This bigger applicant pool additionally “included markedly extra low-income college students, English-language learners, and ladies than had prior lessons at TJ.” According to the heightened GPA requirement, the admitted class’s imply GPA was increased than within the 5 previous years.
The brand new course of additionally yielded better racial range. Black college students comprised 10 % of the applicant pool and acquired almost 8 % of affords and Hispanic college students comprised 11 % of the applicant pool and acquired over 11 % of affords. The general share of Asian American college students decreased from the previous yr, however Asian People continued to benefit from the highest share yield of all racial teams. And because the Fourth Circuit detailed, Asian American college students from traditionally underrepresented center faculties “noticed a sixfold improve in affords, and the variety of low-income Asian American admittees to TJ elevated to 51 — from a mere one in 2020.”
Briefly, Thomas Jefferson Excessive College adopted a “race-neutral” course of to pursue a set of objectives that included growing Black and Hispanic illustration. That is the exact kind of follow the Trump administration denigrates as “unlawful DEI.”
Efforts to advertise racial range do represent DEI. However they’re removed from unlawful. In truth, Students for Fair Admissions v. Harvard — the 2023 determination hanging down Harvard College’s formal consideration of applicant race — helps many of the DEI insurance policies Trump now targets.
Writing for almost all, Chief Justice Roberts deemed Harvard’s underlying objectives as “worthy” and “commendable.” Justice Brett Kavanaugh made the purpose extra straight; writing for himself, Kavanaugh noted that “racial discrimination nonetheless happens and the results of previous racial discrimination nonetheless persist” and that “universities nonetheless can, after all, act to undo the results of previous discrimination in lots of permissible methods that don’t contain classification by race.”
The actions of the highschool sq. with Kavanaugh’s name for insurance policies that attend to race however don’t differentiate between particular person college students on this foundation. This could short-circuit the Division of Training’s investigation towards Fairfax County. However it’s unlikely to stall Trump’s want to outlaw integration.
The Pacific Authorized Basis, which initiated the lawsuit towards Fairfax County and stays a power on the fitting, needs to revive Goldwater’s hostile strategy to integration. Think about the following FAQ on Pacific Authorized’s web site: “faculties could use or not use standardized assessments, essays, interviews, or auditions, so long as their causes for utilizing or not utilizing them will not be racial.” By this logic, a highschool might lawfully get rid of an admissions price if motivated by public relations considerations, however it might be illegal to take that very same motion if performed to lower racial boundaries that exclude low-income Black and Hispanic college students.
Now take into account increased schooling. Per Pacific Authorized, Harvard College might get rid of admissions preferences for the youngsters of alumni and rich donors if performed to appease alumni strain. However it might be illegal for Harvard to take the identical motion if the objective is growing the variety of Asian American college students or mitigate unearned racial preferences that circulate to rich white candidates.
The upshot is that affirmative efforts to cut back racial inequality — every thing Trump dubs “unlawful DEI” — stay authorized and morally simply. So, not less than for now, integration doesn’t equate to segregation.
Jonathan Feingold is an affiliate professor at Boston College College of Regulation. He’s an professional in affirmative motion, antidiscrimination regulation, schooling regulation, and important race concept.