On August 6, the Department of Justice issued a letter (made public) to Duke Law School finding that Duke had “deliberately discriminated on the basis of race in its decisions to admit or deny applicants.” The government is seeking a “voluntary resolution agreement.” This is not the place to litigate the issue of whether and to what extent Duke Law is in violation of the law. At some point soon, Duke will respond (publicly or not), whether to dispute DoJ’s findings or to indicate how they intend to change their policies. We have only the findings of the DoJ and the evidence revealed in the letter, evidence which the government claims shows intentional discrimination. And so this is presently one chapter in an evolving story. What is worth reflecting upon in the moment, however, are the ways in which Duke Law must puzzle through an official letter that is ambiguous in some respects, is somewhat anomalous in others, and so presents some difficulty in crafting a suitable response.
First and foremost, the story of purposeful discrimination told in this short letter has some holes in it — or to put the point less provocatively, rests on a few key assumptions and beliefs. Begin with the quotation on p.2 which is presented as a smoking gun. It is from the Admissions director and reads: “I’d prefer not to say that we will have to work harder to enroll a diverse class. This is true, but I don ‘t want folks to think we didn’t work harder if when the class is not as diverse as we would like.“ The DoJ reads this as saying, in essence, “working harder means that we will need to get around SFFA and put a thumb on the scale in favor of minority applicants.” But it is just as plausible to read it as saying that “working harder” refers to other efforts, such as seeking applicants in places (HBCUs, Hispanic-serving institutions, etc) were there are more minoritized individuals, encouraging applicants from diverse groups through various outreach tactics, reaching out to diverse admittees, highlighting their holistic admissions policies and the role of personal statements, which statements may reveal difficulties overcome and special contributions they might make to the Duke Law community. These are all permissible admissions strategies and there is nothing in the “gotcha” quotation that suggests that these are or are not the strategies Duke is pursuing.
So there must be something more by way of a smoking gun than this, no? The DoJ points to parts of emails (with no additional context) by then-Duke law professor Neil Siegel who says in the quoted part that what he likes ”is that the approach leaves lots of room for faculty to emphasize racial/ethnic diversity as well as diversity along other salient dimensions of difference, including nationality, religion, gender, gender identity, sexual orientation, and ideology.” Nothing especially revealing here without any further evidence that the “approach” is one that gives extra points for race. Indeed, the DoJ acknowledges that Duke Law has described its revised admissions policies as “race-neutral.” Where then is the evidence of subterfuge, of Duke Law calling its policies race neutral while really advancing race preferences? Is the Siegel email, combined with the content-less mention that the faculty has praised Duke’s post-SFAA policy, truly evidence that Duke Law is discriminating on the basis of race.
This seems less of a smoking gun than a lot of smoke. But, to be fair to the DoJ’s letter, there is more to the story than that. The apparent fulcrum of the intentional discrimination claim in the first of this two-part letter is that preference “give preference for those applicants who demonstrate that commitment” to “advancing the rule of law and the protection of democratic institutions,” is illegal, insofar as there is a correlation between applicants who meet this criteria and the race of the applicant. The DoJ puts substantial weight on the declaration that this new part of the application will “possibly [help] [Duke’s] diversity goals.” What part of the Court’s decision in SFFA suggests that this is illegal? Nowhere does the Court say that having a goal of a diverse student body is unconstitutional; the issue is how the school goes about achieving its goals. And so it is ambiguous, if not worse than that, to assert as evidence of intentional discrimination that Duke Law hopes that attention to the rule of law and protection of democratic institutions will yield a diverse student body (which, again to take Duke Law’s statements on its own terms, is spoken about as “diversity of perspective and experience”).
Ambiguous as well is the sentence that leads off another paragraph in the letter. Here the DoJ says: “Post-SFFA guidance states that Duke Law ‘may consider applicants’ discussion of how race affected their life, be it through discrimination, inspiration, or otherwise.’” Later in the paragraph, the DoJ says: “Duke Law states that it values ‘students with a wide range of experiences, backgrounds, and interests that may not be directly related to their legal ambitions’ and encourages applicants to ‘highlight different elements’ of themselves.” But what exactly is illegal about this? Purportedly, this is merely a pretext for discriminating on the basis of race. The evidence for this is, again, in statements by Duke Law administrators that the law school cares about the racial diversity of its class. The linchpin sentence in this regard is on p.4: “The record shows those variables were used to advance racial diversity goals and thereby operated as material race-related proxies in admissions outcomes.” But lacking actual evidence that Duke Law intended these applicant statements merely as proxies, it is hard to know how Duke Law should respond, beyond reiterating what they have said (according to statements in fact quoted in the government’s letter) and that is that their policies are “race-neutral.” Curiously, that Duke says, in the whole quotation, it intends in the coming year to the admissions dean outlined an objective for the coming year to “[c]ontinue to focus on developing effective race-neutral admissions policies” would seem to be more exculpatory than inculpatory. Isn’t this a laudable goal? Or a least a perfectly legal one? Might not “effective” in this context mean the promise that Duke Law might in fact achieve its diversity goals without using racial preferences? Effective might have a more sinister meaning, but that alternative meanings are plausible raises the ambiguity of what Duke Law is supposed to say, other than that they are committed to obeying the law while also aiming to achieve diversity objectives. One possible reading of the government’s position is that diversity goals are no longer appropriate. If that is its position, the government ought to be explicit about it, so that Duke could, if it wishes, offer a rebuttal.
It is hard to see a through-line from these quoted Duke statements to a finding that the law school has been purposively skirting the law. Maybe they have been doing so, and presumably a full-blown lawsuit would oblige the plaintiff to come up with better evidence of such machinations — better, that is, than what the DoJ is offering here. It is hard to avoid the surmise that the government fundamentally doesn’t trust Duke Law’s insistence that their policies are race neutral and thus law compliant. They will not believe that Duke endeavors to thread the needle of recruiting a racially diverse class while complying with the Court’s clear holding that discrimination on the basis of race is illegal. But such beliefs need to have a basis in evidence. Just as Duke Law must do more in its respond than to declare “trust us,” the government must do more than to say “we don’t believe you when you say that you are pursuing race neutral strategies.”
But now we come to what the DoJ is really hanging their hat on, and in ways that reveal a different, and perhaps ultimately more vexing, ambiguity. The last two pages of the letter focus on statistical evidence of discrimination. The smoking gun here is the delta between LSAT and admissions scores of African-American and Hispanic applicants on the one hand, and the scores of White and Asian applicants on the other. Here the DoJ declares that “the applicant-level data produced by Duke Law indicate that a black or Hispanic student has a substantially higher likelihood of being offered admission than a white or Asian student with the same academic credentials.” This evidence is without doubt highly relevant to a consideration of discrimination, and the DoJ insists that “[t]he magnitude and durability of these preferences across multiple cycles (including post-SFFA) confirm intentional discrimination.” Duke Law may or may not have something to say about these results, and it is best to the law school to respond in the way it wants.
An ambiguity in this finding remains nonetheless. The assumption undergirding the government’s claim is that Duke Law is admitting students principally on the basis of GPA and test scores. However, we do not know enough from this letter (and certainly I don’t have any inside knowledge) to confirm that this is the case. Like every other law school, Duke speaks in its admissions materials about holistic admissions; it considers grades and test scores, but also considers other factors. Suppose that it goes down the path of discounting the relevance of GPA and LSAT scores, for multiple reasons, but not as an end-run around SFFA. Would this be illegal? Why could not Duke Law or any other law school take a page from the playbook of colleges and universities that have abandoned the SAT or ACT (noting a trend, but an uncertain one, as schools struggle over admissions criteria)? To be sure, the ABA accreditation rules require that students furnish a “valid and reliable admissions test,” but this standard does not tell law schools how exactly to use this test in making admissions decisions.
Let us not be altogether too clever here. The significant difference between the numbers of minoritized applicants and non-minoritized applicants is something for Duke Law to explain, especially in a world in which we are reasonably confident that this and other law schools put enormous weight on these scores in making admissions and financial aid decisions. However, the deep ambiguity revealed by the government’s legal position here is precisely this: Does SFFA essentially require that admissions decisions be principally numbers driven? What would be legally problematic if a law school truly thought that devaluing undergrad grades and test scores would be better for the law school because it might bring it a more diverse class, one that would enable it to achieve diversity goals while also enrolling a class that could bring talents and abilities not easily measured by the traditional means of aggregating GPA and admissions test scores? For all the clarity that SFFA provided as matter of constitutional and statutory law, it leaves ambiguous the legality of outside-the-box admissions strategies. More narrowly, it leaves ambiguous as well a question that matters to the Duke imbroglio and that is whether Duke is in legal jeopardy because of the difference between the minority and non-minority admissions numbers, notwithstanding its commitment to a stated policy that says that it looks at many factors in making admissions decisions.
These ambiguities are problematic, not only for Duke but for law schools looking for guidance in determining what admissions policies are both legal and optimal.