The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Tiana Lowe at the Washington Examiner reports:
The Department of Education has informed Princeton University that it is under investigation following the school president's declaration that racism was "embedded" in the institution.
President Christopher L. Eisgruber published an open letter earlier this month claiming that "[r]acism and the damage it does to people of color persist at Princeton" and that "racist assumptions" are "embedded in structures of the University itself."
According to a letter the Department of Education sent to Princeton that was obtained by the Washington Examiner, such an admission from Eisgruber raises concerns that Princeton has been receiving tens of millions of dollars of federal funds in violation of Title VI of the Civil Rights Act of 1964, which declares that "no person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." . . . .
"Based on its admitted racism, the U.S. Department of Education ("Department") is concerned Princeton's nondiscrimination and equal opportunity assurances in its Program Participation Agreements from at least 2013 to the present may have been false," the letter reads. "The Department is further concerned Princeton perhaps knew, or should have known, these assurances were false at the time they were made. Finally, the Department is further concerned Princeton's many nondiscrimination and equal opportunity claims to students, parents, and consumers in the market for education certificates may have been false, misleading, and actionable substantial misrepresentations in violation of 20 U.S.C. § 1094(c)(3)(B) and 34 CFR 668.71(c). Therefore, the Department's Office of Postsecondary Education, in consultation with the Department's Office of the General Counsel, is opening this investigation."
Readers may recall that in the University of Michigan affirmative action cases (Gratz and Grutter), some briefs filed in defense of the university's use of race in admissions argued that such use of race should be permissible to ameliorate the effects of the university's own prior racial discrimination. The University of Michigan did not embrace these arguments, however, and the above report helps explain why. Even assuming it was the case that there had been racial discrimination at the University of Michigan, had the university made any such admission to justify its use of race in admissions, it could have opened itself up to liability and prompted a federal inquiry, much like the one Princeton has to deal with now.