At the Chronicle of Higher Education, Liliana Garces explains how the anti-diversity “Dear Colleague” letter is overstepping by the Department of Education.
n February 14, the U.S. Department of Education’s Office for Civil Rights (OCR) issued guidance that departs from the U.S. Supreme Court’s explicit ruling in Students for Fair Admissions v. Harvard (SFFA) and attempts to widely expand the scope of that ruling to areas that are not within the jurisdiction of the department or OCR.
As higher-education leaders across the country take in the department’s letter, they are right to pause to take account of the court’s ruling in SFFA and limit any action related to the letter and its guidance accordingly.
As a legal and education scholar over the last 15 years, I have played a leading role in litigation on race-conscious admissions as counsel of record in “friend of the court” briefs filed before the U.S. Supreme Court. And I have examined the role of past guidance from OCR, which has historically served as a valuable resource for researchers, educators, and advocates.
The current “Dear Colleague” letter deviates significantly from this tradition in several critical ways, which are important for higher-education leaders to understand. The letter is far-reaching in its enforcement and a widely expansive distortion of the court’s ruling.
Overreach in Defiance of the Court’s Ruling
First, the content of the current letter widely expands, without any legal authority, the parameters of the court’s decision in Students for Fair Admissions v. Harvard. The court was explicit in noting that the cases involved decisions about “whether a university may make admissions decisions that turn on an applicant’s race.”
Instead, the letter attempts to broadly expand the reach of the decision to areas that are not expressly covered therein, such as “hiring, promotion, compensation, discipline, and housing,” to name a few. The court’s decision has nothing to do with these areas, many of which are governed by different legal standards.
OCR is effectively demanding new obligations of institutions without the proper legal authority to do so. In consultation with their legal counsel, institutions should remain focused on areas that the Supreme Court addressed in its majority opinion and not expand to those clearly outside its purview.