On February 14th, Craig Trainor, Acting Assistant Secretary for Civil Rights for the Department of Education, sent the following Dear Colleague memo. Note that this has precedent. The OCR has sent numerous Dear Colleague letters in the past, none of which are legally binding. At face value, they are simply memos with no authority, although they do serve as leading indicators of potential legal action that the Department of Education may consider trying to adopt. But, as the Ninth Circuit Court of Appeals in Perez v. St. Rose Dominican Hospitals has already affirmed, Dear Colleague letters lack the force of law, especially when it comes to private lawsuits seeking monetary damages.
My intention is not to interpret every sentence of Mr. Trainor’s memo. At the global level, it is far broader than the ruling and opinion by Chief Justice John Roberts on SFFA and misconstrues even the admissions component of his opinion. This is notwithstanding Mr. Trainor’s additions of basically everything a school does, from hiring to graduation ceremonies. This memo is a sledgehammer when a scalpel that limited itself to admissions would have been more appropriate. As often is the case, such a sledgehammer approach, if turned into law (which would violate years of legal precedent), would have collateral damage that hurts both individuals (while not helping others) and higher education, an area in which the U.S. has long been a world leader.
The purpose of this letter is simply to answer the questions my firm is receiving from law school applicants about the memo’s implications, especially in light of the ABA’s recent decision to halt enforcement of its diversity standard for law schools. I will put these into two general categories of how law schools can and have responded. To be clear, there is more nuance than two broad categories, and I do not fault either one. My goal is to articulate these responses as the two overarching global-level possibilities versus overly detailed and impossible-to-know multiple scenarios.
Law school deans are lawyers, and lawyers are trained to be incredibly risk-averse. Response 1 is to be proactive to the Dear Colleague letter so that if parts or all of the memo do become law, the spotlight will not immediately shine directly on you, the law school. I would posit that if you are a law school that has traditionally garnered a good deal of national media attention, especially political attention, there is likely more pressure to take this course of action. I would be remiss, however, not to add that taking this position allows the Department of Education to bypass the courts and get what they want through simple bluffing and flooding the zone with an all-encompassing memo. The risk-averse approach has led to language changes in law school applications and websites but could go as far as to, say, eliminate multicultural/affinity graduation ceremonies for black students (although there seems to be no harm to white students that another group would simply want to have their own cultural celebration; in legal terms, there is no disparate impact). This could also mean eliminating interviews of law school applicants, a trend that has grown considerably among admissions practices as schools look to admit students who fit their law school’s culture and are hirable. As a former admissions officer and dean of career services, I strongly favor interviews as a means to get to know applicants better. Admitting someone based on two static and inherently flawed numbers (LSAT and GPA) alone is a horrible way to serve as gatekeepers to the legal profession and risks putting students into tremendous debt without ever gaining employment as an attorney after law school. Such a change would have an equally deleterious impact on students across all racial backgrounds; a white jobless applicant from an underprivileged socioeconomic background would be just as crushed by stifling debt as an applicant of any other racial background, and the fervor to ignore all diverse backgrounds in Mr. Trainor’s Dear Colleague memo could, in turn, stand to harm applicants of all races.
Response 2 is to do nothing—as nothing currently needs to be done—and to wait and see how the courts rule on changing long-standing legal precedent. If they do overturn past decisions, it is at that point that law schools should and will change their policies to abide by the rule of law. But if they do not, response 2 would be to say, “Why let a memo dictate our values, principles, and how we choose to operate our law school within the law?”
No dean or college president I have spoken to claims to know how this will ultimately transpire, nor should they. While my wording may favor response 2, I certainly understand why some law schools will opt for response 1. Additionally, the ABA suspending the enforcement of its diversity mandate may make schools more likely to lean toward response 1, as they could feel as if they have lost a powerful ally to continue pursuing diversity aims (though this is purely speculation on our part and not something we have heard yet from schools).
What does this mean as an applicant? Right now, schools should and likely will stay the course for admissions in this current cycle. If you have already applied to a law school and they have already reviewed your application, they incredibly likely will not unscore your application that was reviewed by the school before the non-legally binding memo was sent. I suspect diversity numbers will be up this year based on the demographic application data we have. If I were an underrepresented applicant in this cycle, I would likely be more apt to accept an offer this year than reapply next, as so much is in flux.
Next cycle, I suspect diversity numbers may slide down from this year. But we do not know that for certain, and so much will depend on how this all shakes out in the courts. Beyond this cycle, quite frankly—as I am hearing from the leaders in higher education I have recently spoken with—I do not know. This all very well could be PR bluster and negotiation from the Department of Education that asks for radical change knowing it may lead to getting a much smaller change. Or, it could lead to overturning years of legal precedent in many areas of higher education—precedent where it is entirely acceptable to support any group so long as there is no disparate impact on other groups.
In the short term, outside of website language changes, I do not see this significantly impacting the current admissions cycle. In the months ahead, we will continue to follow and analyze the developing situation vis-à-vis how it may impact next cycle in law school admissions and beyond.
Sincerely,
Mike Spivey
CEO, The Spivey Consulting Group