Ed Discrimination Threats

On Valentine's Day, the Department of Education sent out a "Dear Colleague" letter on the subject of discrimination, a strongly-worded reminder that when the Musktrump administration says they want to "send education back the states," they mean "the states that don't do things that they object to," and what they object to most of all is the giant wave of discrimination against white guys.

"Discrimination on the basis of race, color, or national origin is illegal and morally reprehensible," is the lead line from Craig Trainor, Acting Assistant Secretary for Civil Rights. Trainor was a special council for the House Committee on the Judiciary under Jim Jordan, and Senior Litigation Counsel with the America First Policy Institute under former Florida Attorney General Pam Bondi, and Of Counsel with The Fairness Center. And it's possible that his opening sentence might not mean what you think it means, as witnessed by the next paragraph:

In recent years, American educational institutions have discriminated against students on the basis of race, including white and Asian students, many of whom come from disadvantaged backgrounds and low-income families. These institutions’ embrace of pervasive and repugnant race-based preferences and other forms of racial discrimination have emanated throughout every facet of academia. For example, colleges, universities, and K-12 schools have routinely used race as a factor in admissions, financial aid, hiring, training, and other institutional programming. In a shameful echo of a darker period in this country’s history, many American schools and universities even encourage segregation by race at graduation ceremonies and in dormitories and other facilities.

Trainor is only clearing his throat. "Educational institutions have toxically indoctrinated students" with the "false premise" that the US is built upon systemic and structural racism. "Discriminatory practices" have been justified "under the banner of 'diversity, equity, and inclusion.'" In DEI is used to discriminate against white guys, and that's just going too far.

Trainor spends a paragraph on the Students for Fair Admissions, the 2023 case that struck down affirmative action college admissions. The court determined that such action is only justified when remediating a specific case of discrimination or avoiding an imminent threat (like a prison race riot). "Nebulous concepts" like diversity and racial balancing are not an excuse.

Trainor would like to take this decision and run with it--and run really far. To Trainor it's simple-- "if an educational institution treats a person of one race differently than it treats another person because of that person's race, that educational institution violates the law."

Using any kind of information, from personal essays to extracurricular activities to try to figure out the student's race and act on that conclusion is illegal. "Relying on non-racial information as a proxy for race" is illegal. And this definition is also mind-blowingly broad--

It would, for instance, be unlawful for an educational institution to eliminate standardized testing to achieve a desired racial balance or to increase racial diversity.

Because, I guess, diversity is illegal.

And he's just seeing the threats everywhere, transposing old talking points about CRT into the newest Big Scary Thing.

DEI programs, for example, frequently preference certain racial groups and teach students that certain racial groups bear unique moral burdens that others do not.

"Frequently"? I'm thinking "never" might be the correct term here.

The Department 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.

The remainder of the letter is the Vague Threats portion. If your educational institution is caught doing Bad Things, "appropriate measures" will be taken. That means a loss of federal funding.

The loss of federal funding threat takes us back to the central problem of Musktrump policy-- if, as Project 2025 promised, the major hunks of federal funding are first turned into no-strings-attached block grants for the states to use as they wish (cough--vouchers--cough) and then zeroed out in a decade, then the feds will have no way to deny any school federal funding.

The proper response to all of this is for schools to stay the course and let the Department come after them. But some districts will fold quickly, and we will continue to see stories like the one out of Fort Campbell schools where Black History Month is off and librarians are scrambling to get books that say much of anything about race are yanked off the shelves. Some districts are going to fold because they're scared, and some administrators will fold because they have permission to be just as racist as they want to be.

PEN America released a response:

The administration’s outrageous “Dear Colleague” letter seeks to declare it a civil rights violation for educational institutions to engage in any diversity-related programming or to promote any diversity-related ideas – potentially including everything from a panel on the Civil Rights Movement to a Lunar New Year celebration. This declaration has no basis in law and is an affront to the freedom of speech and ideas in educational settings. It represents yet another twisting of civil rights law in an effort to demand ideological conformity by schools and universities and to do away with critical inquiry about race and identity.

Or even to just allow students to know the various points of view exist.

I get the average person's discomfort with DEI programs, particularly those whose experience is with the many poorly conceived terribly run DEI programs out there. Too many organizations ran a DEI something-or-other because they had heard it was the flavor of the month, ort a necessary CYA checklist to work through.

But the BLM/CRT/DEI manufactured panics have thrived on harvesting racism. roles, whether in corporations or movies or narratives, were always supposed to be white guys by default, and you were only supposed to change that default white guy to something else if there was a good reason for it, and just "because this would work better and be a better reflection of actual society if it wasn't all white guys" did not strike a lot of white guys as a good enough reason. And certainly, "Well, let's just start with the idea that the default is a blank to fill in with any version of human expression and experience" felt like something was being taken away from Default White Guys.

Likewise, the whole idea that there were some parties that white guys couldn't automatically get into--that stung, too. Of course, there were always barriers for white guys to get into lady parties, but we dealt with that by making those women-dominated spaces as less valid, less important-- what kind of girly man would want to get in there anyway. But when various other cultural subgroups started in--that stung, too (best captured by complaints about not being "allowed" to use the N word). Why isn't the Super Bowl Halftime show for us? Everything ought to be for us white guys.

None of which is to say that sorting out and dealing with the legacy of hundreds of years of racial issues in this country is a simple fix with a single answer and that we won't continue to have disagreements between reasonable people and a full range of responses including responses that are extreme in either direction.

But this disingenuous MAGA baloney is not part of an attempt to sort out the issues. It's zero sum thinking (if that group is getting something, it must have to be taken away from my group). It's a twisted catch-22; we shouldn't celebrate things like the Civil Rights Movement just because they were important to Black People (but only Black people needed the movement). It's an act that reveals all the talk of local control and small government to be a lie, because this is the work of greatr big hamfisted government. It's a grotesque editing of history to excise all the stories in which we were not the heroes-- and to choke off the very nature of history, which is a conversation and not a single answer set in stone. It's not an attempt to seek understanding, but to force a single understanding on others. And in too many cases, it's a five-year-olds taunt--"See, you made me stop saying things I liked to say, so I'm going to pretend to use the same rules to stop you from saying what you want to say. Neener neener! I know you are, but what am I?" And in its haste to settle some scores with a broad brush, it's also swiping away at LGBTQ persons, women, persons with disabilities, every kind of minority group they can imagine.

DEI at its root, done right, is simply a call to be decent. To set aside assumptions that merit comes in only certain external packaging, and to recognize that if your organization looks radically different from the country as a whole, you're missing something. It's a willingness to hear all the threads of history, and really listen without interrupting to say, "Well, but MY story--"

With all due respect to Alicia Keys, DEI is not a gift. Yes, "the more voices, the more powerful the sound" is dead on. But that's not a gift-- it's the bare minimum that we owe each others as fellow humans on this planet. It's the bare minimum required to keep our country strong.

The MAGA pretzel version of freedom means "I am free to promote the ideas I want to promote, and I am free to silence those that I wish to suppress." So we get the new notion of religious freedom, which simultaneously means that your religious school should be able to exercise its freedom to discriminate against people it chooses to target, but it also be free from regulation of its discriminatory behavior. When Aryan Academy isn't given public tax dollars to fund its discrimination against students it wants to reject, that's discrimination, but when they discriminate against those students, that's freedom. (all of which is exactly the sort of thing you can expect from Musktrump's Federal Department of Religious Bias).

In the new Department of Education, "discrimination" means "any time the white (or Asian) straight male kids don't get something that other kids get." And the resolution is to the problem is to take away that something from the other kids.

A "dear colleague" letter carries no particular weight. They are used to show folks which way the federal wind is blowing and thereby serve as a threat. Sowing fear is of course a major technique of this crowd, a design for getting as much prior compliance as they can with enough vagueness to scare the folks out there doing the actual work. The correct response is to throw sand in the machines and make these thugs work for every inch of compliance they get.

Easy for me to say, I know, but here's the thing-- these folks are never satisfied. The idea that you can buy peace with compliance is a fool's game, and "Now that we've done what they want, they'll leave us alone" is a naive delusion. The wholesale erasure of Verboten Words from websites, the elimination of books that so much as mention forbidden topics-- it's just book burning for the digital age. And there will never come a point when they sit back and say, "Okay, that's enough." And they will always keep coming for the schools.