A group of state attorneys general is asking educators at all levels to have courage in the face of lost funding and lawsuit threats by the federal administration.
The administration is attacking Diversity, Equity, Inclusion, and Accessibility policies, or DEI, on a variety of fronts. Illinois Attorney General Kwame Raoul is among the collection of 15 top lawyers for states and the District of Columbia who have issued guidance on how to deal with administration demands. Above all, Raoul said, during an online workshop for educators, don't give in to fear of loss of funding, lawsuits, or boycotts.
"But it's also important to know that if you capitulate to an unfounded criticism of your policies, this is an administration that won't stop at its first request. It will keep on coming at you because you have demonstrated vulnerability to unfounded threats," said Raoul.
Raoul urged schools and businesses to keep using the tools that make workplaces successful. The types of policies that prevent discrimination in the workplace or educational institution in the first place, he said, often have elements of DEI.
"So, it's important to continue in the workplace embracing employee resource groups, to review statistics to see how inclusive the environment actually is, to embrace pipeline programs for students and for employees. None of that is illegal," said Raoul.
The attorneys general, mainly from blue states, acknowledged the legal landscape has changed with the Supreme Court case Students For Fair Admissions (SFFA) v. Harvard. That ruling prevents higher education from using race as a plus factor in admissions.
Earlier this year, Craig Trainor, the Education Department acting assistant secretary for civil rights, sent a "Dear Colleague" letter to most K-12 schools and higher education institutions which relies heavily on the SFFA case. Trainor warned against programs that may appear on the face of them to be neutral but are "in fact, motivated by racial considerations." The letter said race-based decision-making, no matter the form, remains impermissible.
"It's important to not just surrender to this notion of just being risk averse in your balancing of what is worthy of fighting for."Kwame Raoul, Illinois attorney general
"A school may not use students’ personal essays, writing samples, participation in extracurriculars, or other cues as a means of determining or predicting a student’s race and favoring or disfavoring such students. Relying on non-racial information as a proxy for race, and making decisions based on that information, violates the law. That is true whether the proxies are used to grant preferences on an individual basis or a systematic one,” said the letter.
Massachusetts Attorney General Andrea Campbell said that's overreach because the ruling is actually very narrow.
"SFFA has nothing to do with K through 12 schools," said Campbell.
Campbell said the case also does not address hiring and employment policy issues. Even in the context of college admissions, Raoul said the ruling still allows a lot.
"It does not prohibit seeking ways to expand the pool of applications that may come into higher education institutions. It does not prohibit creating a welcoming environment within institutions for diverse groups based on their background," said Raoul.
Raoul noted Supreme Court Chief Justice John Roberts pointed out applicants can talk about how race has impacted their lives and institutions can consider that.
California Attorney General Rob Bonta said the allegations the letter makes are not only ill defined in a legal sense, they are also sometimes internally contradictory.
"It is completely irrational and mind boggling to suggest that the things that address discrimination are discrimination," said Bonta.
The Education Department letter said the administration will "no longer tolerate the overt and covert racial discrimination that has become widespread in this Nation’s educational institutions.”
“The law is clear: treating students differently on the basis of race to achieve nebulous goals such as diversity, racial balancing, social justice, or equity is illegal under controlling Supreme Court precedent,” said the letter.
Bonta said he's not even sure people in the administration know what DEI really is other than a culture war buzzword.
"Our core constitutional provisions and laws in the United States like the 13th, 14th, and 15th Amendments, the Civil Rights Act of 1964, the Voting Rights Act of 1965, the Americans with Disabilities Act, the laws that tackle age discrimination and promote pay equity, those are all what folks would call DEI," said Bonta.
Bonta said when such programs produce more talent and remove barriers it's good for people and the nation. He said diversity programs are tools to make institutions successful, and the Dear Colleague letter is bluster.
"This is something I have described as a soft power that they have. The legal authority they point to doesn't justify their position, but through intimidation, fear, scare tactics they are bullying folks into submission even though the action they are requesting is not required in the authority they are citing," said Bonta.
The attorneys general group said it is entirely appropriate for institutions to take a pause and assess their programs, current case law, and the climate to make sure they are consistent. There is a fine line to walk in that assessment.
"It's important to not just surrender to this notion of just being risk averse in your balancing of what is worthy of fighting for," said Raoul.
There is yet another bulwark to federal threats.
"Rely on your state laws. They have not gone away. They are not lesser than an executive order in this context. If anything, they are lawful and they require us to comply with them," said Campbell.
The group said it may be tempting for institutions to try to duck conflict in an indirect way. Kwame Raoul urged institutions to avoid scrubbing the words and trying to keep the sense of the policy.
"But that's capitulating just to say ... there's nothing inherently wrong with the nomenclature of diversity, equity, inclusion, or accessibility, and we should not run from the language because we have an administration and extremists that seek to have us do so," said Raoul.
Andrea Campbell said if institutions do not continue to push diversity and equity, they will probably see an uptick in discrimination claims or environments that are not as inclusive as they need to be. Campbell said this moment is dark and divisive, but children are struggling. She said this is an opportunity for people and institutions to look in the mirror and ask themselves what they are going to do.
