Apparently when President Trump says “illegal DEI,” he means lawful and common-sense efforts to integrate public schools. At least, that’s the takeaway from the Department of Education’s new investigation against Fairfax County Public Schools.
Trump officials claim Fairfax County violated federal law when it adopted an admissions policy designed to “change the demographic make up” of its most competitive high school. This theory, which equates integration with segregation, dates back to Barry Goldwater, who remarked in 1964 that “the Constitution is color-blind … and so it is just as wrong to compel children to attend certain schools for the sake of so-called integration as for the sake of segregation.”
It seems Trump agrees. Unfortunately for him, the Supreme Court does not.
Just last year, the court declined to overturn a ruling for Fairfax County. As I explained at the time, that decision made sense. Even as the Supreme Court has shifted hard right, decades of conservative case law — including from Chief Justice John Roberts — condone racial goals such as diversity, equality and inclusion.
The new investigation tracks Trump’s disregard for courts and his tendency toward bluster over substance. But in important respects, it also exposes that Trump’s war on DEI lacks any moral and legal basis.
Some context is helpful. For decades, Black advocates sought to desegregate Thomas Jefferson High School, one of the nation’s top-ranked public schools. As recently as 2012, the NAACP filed a civil rights complaint alleging that the school’s admissions policies discriminated against African American and Hispanic students and students with disabilities. Things shifted in 2020. As racial justice protests erupted across the globe, local leaders grappled with the fact that in a county with roughly 100,000 Black residents, Thomas Jefferson High School admitted so few Black students that the number was too small to report. The state convened a task force to examine the causes of this ongoing exclusion at Thomas Jefferson and other Virginia schools.
Following a series of hearings, the board revised the school’s admissions process, eliminating a $100 application fee and a standardized testing requirement. Contrary to ongoing claims that the new policy compromised “merit,” the board raised the minimum GPA for admission from 3.0 to 3.5 and added an honors course requirement. The new policy also implemented a holistic evaluation that included new “experience factors,” such as whether the applicant qualified for reduced meals or is an English language learner. The updated process also ensured that each middle school receive a number of seats equal to 1.5 percent of its eighth-grade class.
The school board resolved that “[t]he admission process must use only race-neutral methods that do not seek to achieve any specific racial or ethnic mix, balance or targets.” This means that admissions officials are not told the race, ethnicity, sex or name of any applicant. In Supreme Court parlance, the entire admissions process was “colorblind.”
The new process produced promising results. In its inaugural year, Thomas Jefferson High School received 1,000 more applicants than the prior cycle. This larger applicant pool also “included markedly more low-income students, English-language learners, and girls than had prior classes at TJ.” Consistent with the heightened GPA requirement, the admitted class’s mean GPA was higher than in the five preceding years.
The new process also yielded greater racial diversity. Black students comprised 10 percent of the applicant pool and received nearly 8 percent of offers and Hispanic students comprised 11 percent of the applicant pool and received over 11 percent of offers. The overall percentage of Asian American students decreased from the preceding year, but Asian Americans continued to enjoy the highest percentage yield of all racial groups. And as the Fourth Circuit detailed, Asian American students from historically underrepresented middle schools “saw a sixfold increase in offers, and the number of low-income Asian American admittees to TJ increased to 51 — from a mere one in 2020.”
In short, Thomas Jefferson High School adopted a “race-neutral” process to pursue a set of goals that included increasing Black and Hispanic representation. This is the precise type of practice the Trump administration denigrates as “illegal DEI.”
Efforts to promote racial diversity do constitute DEI. But they are far from illegal. In fact, Students for Fair Admissions v. Harvard — the 2023 decision striking down Harvard University’s formal consideration of applicant race — supports most of the DEI policies Trump now targets.
Writing for the majority, Chief Justice Roberts deemed Harvard’s underlying goals as “worthy” and “commendable.” Justice Brett Kavanaugh made the point more directly; writing for himself, Kavanaugh noted that “racial discrimination still occurs and the effects of past racial discrimination still persist” and that “universities still can, of course, act to undo the effects of past discrimination in many permissible ways that do not involve classification by race.”
The actions of the high school square with Kavanaugh’s call for policies that attend to race but do not differentiate between individual students on this basis. This should short-circuit the Department of Education’s investigation against Fairfax County. But it is unlikely to stall Trump’s desire to outlaw integration.
The Pacific Legal Foundation, which initiated the lawsuit against Fairfax County and remains a force on the right, wants to revive Goldwater’s hostile approach to integration. Consider the following FAQ on Pacific Legal’s website: “schools may use or not use standardized tests, essays, interviews, or auditions, as long as their reasons for using or not using them are not racial.” By this logic, a high school could lawfully eliminate an admissions fee if motivated by public relations concerns, but it would be unlawful to take that same action if done to decrease racial barriers that exclude low-income Black and Hispanic students.
Now consider higher education. Per Pacific Legal, Harvard University could eliminate admissions preferences for the children of alumni and wealthy donors if done to appease alumni pressure. But it would be unlawful for Harvard to take the same action if the goal is increasing the number of Asian American students or mitigate unearned racial preferences that flow to wealthy white applicants.
The upshot is that affirmative efforts to reduce racial inequality — everything Trump dubs “illegal DEI” — remain legal and morally just. So, at least for now, integration does not equate to segregation.
Jonathan Feingold is an associate professor at Boston University School of Law. He is an expert in affirmative action, antidiscrimination law, education law, and critical race theory.
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