Do Schools Have Lawyers?
Civil rights law is very clear, and rejects almost all forms of critical theory-inspired racial segregation. Yet schools are violating it right and left
Let me start out by saying this is about something that “is”, rather than something that “ought to be”. It is an essay about various practices by educators that clearly violate civil rights laws prohibiting racial segregation. It’s entirely possible that law should be changed, or that courts have been too restrictive with respect to what are called “benign” forms of racial discrimination. Those arguments have been widely aired. But there is little doubt on what the law is right now. What is weird is that educational institutions are widely violating it.
What is the law with respect to educational institutions and racial segregation? It’s pretty simple. Under current court precedents, it is almost never permitted. The only lawful justification for racial segregation is if it is absolutely necessary to serve a compelling state interest. The only such interest that has been held sufficiently compelling in the educational context is racial diversity in the entering class, and the only remedy that has been held absolutely necessary is mild affirmative action programs that give prospective students from historically oppressed minority groups a relatively small preference as part of a holistic evaluation of their applications. That’s it. Every other form of state-sponsored racial segregation in education is illegal. (To be clear, this principle does not apply to student-sponsored activity; accordingly, schools can allow Black Students Associations and the like.)
Accordingly- separate parent-teacher conferences for Black parents? Illegal. Racially segregated dorms? Illegal. Large hiring preferences for minority job applicants until the faculty is diversified? Illegal.
What’s going on here? Obviously, on one level, it’s pretty obvious- schools are a hot bed of critical theories that sometimes endorse racial segregation as a tool to improve the educational outcomes of minorities and to fight systemic racism. But I mean something else. Organizations do not generally enact policies that brazenly violate laws in this fashion. They don’t like defending lawsuits, which costs money and causes bad publicity when you lose them. For this reason, big, rich entities hire in-house lawyers and legal departments to advise them and protect against exposure to a lawsuit.
So what, then, is going on here? I’m guessing, but I suspect that one of the effects of the university environment being steeped with all this critical theory is that it does not even occur to a lot of academics that this stuff is illegal. After all, it seems like everyone is trying to be more “anti-racist”, and that sort of thing can’t possibly violate the law, right? The result would be that they do not even run these decisions by in-house legal counsel.
This can’t, of course, last. Eventually parents or conservative public interest law firms are going to bring lawsuits challenging these policies, and they are going to win and possibly even force payouts of damages and attorney’s fees. But it still amazes me that it will have to come to that. There’s a serious lack of communication between educators and their schools’ lawyers- otherwise this would not be happening in the first place.