On Tuesday, July 3, 2018, the Department of Education (ED) and the Department of Justice (DoJ) announced their joint decision to repeal seven regulatory documents promulgated by the Obama administration that put the weight of the Federal government in favor of racial preferences in higher education, by means of "diversity" and other euphemisms. The National Association of Scholars (NAS) applauds this decision by Secretary of Education Betsy DeVos and Attorney General Jeff Sessions.
These regulatory documents gave colleges and universities "guidance" that they should interpret the Supreme Court's unclear jurisprudence to maximize race preferences and minimize individual merit. Essentially, they provided a roadmap for how university bureaucrats could discriminate while paying lip service to the Supreme Court's hesitations about forthright race preferences. This was guidance the colleges were unlikely to refuse, for fear of how they would be punished by Federal bureaucrats if they failed to toe the line.
In 2011, NAS President Peter Wood criticized the first of these seven rescinded documents, the 2011 “Dear Colleague” letter. Wood noted that the guidance documents “seem to sanction common university practices which circumvent the law," adding, “The Departments of Education and Justice justify the new ‘guidance’ as an explanation of how colleges and universities can expand the use of race without running afoul of federal law. But they are very loose in their reading of Supreme Court rulings over the last decade.” “This,” he says, “is contrary to the spirit of existing law.”
The Departments of Justice and Education now confirm Wood’s critique, and judge that the documents “advocate policy preferences and positions beyond the requirements of the Constitution, Title IV, and Title VI. […] By suggesting to public schools, as well as recipients of federal funding, that they take action or refrain from taking action beyond plain legal requirements, the documents are inconsistent with governing principles for agency guidance documents.”
The NAS applauds this step by the Departments of Education and Justice--and calls on them to do more. Even if the Federal government has ceased its pressure on American colleges to engage in race discrimination, the Supreme Court allows the practice, by way of the fig leaf of diversity. Many university administrators, perhaps most, need no external guidance as they eagerly practice race discrimination. The executive branch should work to formulate guidance that will minimize the scope of race preferences in higher education, with an eye toward eliminating them entirely.
NAS firmly believes that America lives up to its highest ideals when it judges individuals as individuals. We welcome this action by the Departments of Education and Justice, which gives hope that an ugly chapter in American history may soon come to an end.