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“…In the July Justice Department memo from Bondi, the Trump administration warned against “ostensibly neutral criteria that function as substitutes for explicit consideration of race.”
For instance, it noted that “diversity statements,” or asking applicants about “cross-cultural skills” or “obstacles they have overcome,” could be illegal if used to advantage certain races.
… The memo also said that measures to benefit low-income students can’t be targeted to “areas or populations to achieve racial or sex-based outcomes.” A DOJ spokeswoman declined to elaborate.
To some, the suggestion that race-neutral measures could be illegal if they seek to achieve racial diversity marked a striking goal-post shift from what opponents of affirmative action have previously argued.
… “Universities prohibited from engaging in racial discrimination by state law continue to enroll racially diverse classes by race-neutral means,” wrote Justice Clarence Thomas, in a concurrence in the affirmative-action case.
… Richard Kahlenberg testified as an expert witness in the case, arguing against traditional affirmative action on the grounds that schools can achieve racial diversity through other methods, such as through preferences for students from poor families. “The Department of Justice can’t change the law, but the fear is it could intimidate some universities,” said Kahlenberg, who works at the center-left Progressive Policy Institute.
The DOJ memo is a “very aggressive interpretation of the law,” said David Bernstein, a law professor at George Mason University….”
