On August 14, the Departments of Justice and Education took steps to limit the impact of the Supreme Court’s decision in this summer’s landmark affirmative action cases.
Chief Justice Roberts wrote a sweeping majority opinion that envisioned a “colorblind” society, with implications beyond just affirmative action. How could the Executive Branch limit the impact of that decision just by publishing a Dear Colleague Letter and a set of Frequently Asked Questions?
Who Makes Law?
Many laws are made by Congress passing a bill which is signed by the President. Or, in this case, Congress proposed the 14th Amendment to the Constitution, which was ratified by the States. The 14th Amendment promises “equal protection of the laws.”
Once a provision of the Constitution or statute is in effect, specific people can file lawsuits to challenge how the law is applied. In this case, a group called Students for Fair Admissions brought a challenge to the Harvard and University of North Carolina admissions policies. The parties can battle in court back and forth and file appeals, but the U.S. Supreme Court has the final say. Once the Supreme Court makes a decision, all of the parties must follow the decision.
The Executive Branch or independent agencies can make law as well. Frequently, Congress gives an agency the power to enforce a specific law by making decisions. Under the Supreme Court’s Chevron case, all courts will defer to the agency’s interpretation of a statute.
Each agency can make decisions in two basic ways. First, agencies can conduct a rulemaking to write generally applicable regulations. Alternatively, the agency can bring together the affected parties and hold an on-the-record proceeding using a hearing officer or an Administrative Law Judge. For example, hearing officers process thousands of cases deciding disputes over Social Security eligibility.
Both rulemakings and adjudications are subject to the Administrative Procedure Act. After the agency adopts a final rule or issues an order in an adjudication, parties can take the agency to court to seek judicial review to overturn the agency action.
What is a “Dear Colleague” Letter?
A “Dear Colleague Letter” is not a formal part of federal administrative law. In 2011, during the Obama Administration, Catherine E. Lhamon Assistant Secretary for Civil Rights sent “Dear Colleague Letters” to all colleges and universities announcing that sexual violence was a violation of Title IX and to set rules to restrict how schools should process sexual violence complaints.
The idea was that to avoid court review of these edicts, the Department of Education could not issue an order or conduct a rulemaking, so Ms. Lhamon dictated policy to the schools using guidance documents labeled as “Dear Colleague Letters.”
Since schools did not want to lose federal funds, and each school’s Title IX Coordinator was trained to keep the Education Department satisfied, schools treated the “Dear Colleague Letters” effectively as enforceable laws, despite violating the Administrative Procedure Act. The career staff with the Office of Civil Rights also applies them when processing complaints submitted by third parties.
RELATED: Who Decides Admissions Policy At Cornell?
Since 1996, Congress has expedited procedures to repeal any rule under the Congressional Review Act (CRA). Such a move would also prevent the agency from adopting another rule on the same topic. In 2018, the CRA was used to revoke a “guidance document” that was issued without a formal Administrative Procedure Act rulemaking.
When President Obama left office in 2017, so did Lhamon. The Trump administration quickly rescinded her “Dear Colleague Letter” regarding Title IX procedures. Instead, the Department of Education conducted a rulemaking in 2020 to describe how schools should process sexual assault complaints.
When Joe Biden became president, he appointed Lhamon back to her position as head of the Civil Rights Office, and she is both issuing new “Dear Colleague Letters” as well as conducting a rulemaking to repeal the 2020 Title IX due process reforms.
If Lhamon’s plans are brought to fruition, Title IX offices would process sexual assault complaints with procedures that lack due process, and litigants will not be able to file court challenges against the new “Dear Colleague Letter” regarding affirmative action in college admissions.
Limits on the Supreme Court decision
The Supreme Court ended all college affirmative action based upon race. In response, the Dear Colleague Letter noted:
Students should feel comfortable presenting their whole selves when applying to college, without fear of stereotyping, bias, or discrimination. And information about an individual student’s perseverance, especially when faced with adversity or disadvantage, can be a powerful measure of that student’s potential.
This was in response to the Asian-American students at Harvard and UNC complaining that they were denied admission due to “stereotyping, bias or discrimination.”
The Dear Colleague Letter and FAQ encourages colleges to keep working for demographic diversity, without focusing upon viewpoint diversity. They encourage colleges to include essay questions in the applications that ask about any handicaps that an applicant had to overcome.
Applications are also allowed to ask demographic questions such as race in order to measure the overall demographics of the accepted class and the entering class. However, race also cannot be used as a deciding factor outside a “holistic review” of each applicant.
Although the Supreme Court did not address the issue, the FAQs throw a red flag on legacy admissions:
In addition, nothing in the decision prevents an institution from determining whether preferences for legacy students or children of donors, for example, run counter to efforts to promote equal opportunities for all students in the context of college admissions.
Once the students are admitted and arrive on campus, the FAQs give a green light to sponsoring separate identity group clubs or activities:
An institution may also offer or support clubs, activities, and affinity groups—including those that have a race-related theme—to ensure that students have a space to celebrate their shared identities, interests, and experiences, so long as the clubs, activities, and affinity groups are open to all students regardless of race. Similarly, an institution may host meetings, focus groups, assemblies, or listening sessions on race related topics if all interested students may participate, regardless of their race.
Because Cornell’s administration has provided “safe spaces” for each identity group that exclude all others, this may require Cornell to alter its practices, if not its stated policies. This is consistent with Ruth Bader Ginsburg’s ‘54 decision in Christian Legal Society v. Martinez (2010) that upheld colleges’ right to impose non-discrimination membership requirements on registered student organizations.
The campus is waiting for the 15-member Admissions Task Force to deliver its final report, which is due by August 31. Given this late-breaking guidance from the federal government, perhaps the Day Hall lights are burning into the night as the report is altered to reflect the latest Dear Colleague Letter.
The Supreme Court’s direct holding may have been narrow, but the overall teaching of the Court should cause every member of the Cornell community to reflect on how our admission policies serve society and furthers Cornell’s mission. These questions will eventually return to the Supreme Court.
