If you think the federal government should stick to the Constitution with what it does in education, your job is usually pretty easy: advocate it basically do nothing. The Constitution gives Washington only specific, enumerated powers, and the authority to meddle in education is not among them. But it gets more complicated when it comes to the federal role in ensuring that states and districts don’t discriminate in their provision of education. That should mitigate against quick, sweeping pronouncements that the Trump administration rescinding Obama‐era guidance on admissions and race is the right thing to do.
While the areas in which the feds may actively involve themselves are generally limited to the powers laid out in Article I, Section 8 of the Constitution — and no, they do not include anything deemed to be serving the “general welfare” or involving tax dollars — it is the 14th Amendment that empowers Washington to stop discrimination by government.
As a baseline, then, there is no clear Constitutional reason that the federal government should not offer guidance about what public colleges and school districts can do regarding race and admissions. But then the complications start.
The first is what is the right procedure for Washington to establish and enforce rules? Education Secretary Betsy DeVos is focused on letting the Supreme Court set guidelines in its rulings and having districts and states look directly to those when making policies. “The Supreme Court has determined what affirmative action policies are constitutional, and the court’s written decisions are the best guide for navigating this complex issue,” she wrote.
Meanwhile, the Department of Justice is emphasizing following proper procedures by creating formal regulations, as opposed to issuing “Dear Colleague” letters.
“In previous administrations…agencies often tried to impose new rules on the American people without any public notice or comment period, simply by sending a letter or posting a guidance document on a website,” stated Attorney General Jeff Sessions in a press release itemizing rescinded guidance. “That’s wrong, and it’s not good government.”
The next complication is whether federal power should apply to only government entities, or also private. The right answer is usually “only government,” because unlike private people, government does not enjoy association, religious, and other rights, and it can legally impose itself on people ultimately at the point of a gun. But when private schools receive oodles of federal cash the distinctions become blurred, and that is certainly the case in higher education, with colleges heavily dependent on students paying with federal loans and grants, and institutions often getting lots of other government funds.
Finally, there is the root quandary: While most Americans would probably say the ultimately correct position is for government to be color‐blind, for centuries most Americans and their governments weren’t even close to that and the price paid, especially by African‐Americans, has been very steep. But how do we ameliorate the effects of past racially‐driven wrongs without policies that take race into account? Finding the answer to that is even tougher knowing that people who did not perpetuate the past wrongs could well end up paying some of the price.
I’ve argued that the right way to navigate the almost impossible passageway between making up for past sins and repeating them is for private colleges to embrace affirmative action, and publics to essentially admit by lottery. Free people must voluntarily atone for past wrongs, while government must cease any race‐conscious decision‐making. The implication for federal policy is that private schools like Harvard would be left alone, but the University of Michigan totally changed. That said, such policies must not come by federal executive fiat, either in the form of “Dear Colleague” letters or regulations. They would have to come through state and federal legislative processes scrutinized by the judicial system.
Of course, there are many highly defensible reasons to oppose my proposal, and it is more an ideal than a plan. And the more immediate concern is far more basic: We need to acknowledge how complicated this is, and carefully proceed with an assumption that disagreement isn’t based in bad will or animus, but many different valuations of competing goods.