Dan’s analysis may understate the problems with the letter and how far beyond SFAA and other binding Supreme Court authority the DOJ has gone. In SFAA, the petitioners agreed that racial and ethnic diversity is beneficial in educational institutions. The petitioners argued instead that racial diversity could be achieved by focusing on race-neutral policies. The U.S. Supreme Court not only endorsed race-neutral alternatives, it was the reason offered by the petitioners for why previous affirmative action policies were not narrowly tailored because, according to the petitioners, race-neutral practices could achieve the same racial and ethnic diversity. See, e.g., Thomas concurrence (“Race-neutral policies may thus achieve the same benefits of racial harmony and equality without any of the burdens and strife generated by affirmative action policies.”).
Dan and others identify problems with the letter, separate and apart from what Duke Law may or may not have done. Some of this includes: (1) the letter treats statements of Duke’s law faculty, administrators, and others about valuing “broad diversity” as evidence of unlawful activity even though the Supreme Court has emphasized it is not illegal for universities to pursue racial diversity among their student body, so long as they don’t use race as a factor in admission decisions; (2) it classifies standard race-neutral measures (such as focusing on socio-economic status) as illegal “proxies” effectively seeking to penalize Duke Law for following SFFA’s command to seek race-neutral admissions methods; (3) it condemns the school’s policies for taking into account a candidate’s individual life circumstances even though SFAA was explicit that: “as all parties agree, nothing in this opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise”; and (4) it ignores non-numerical credentials upon which admission decisions are based (letters of recommendation, personal statements, past work experience, co-curriculars etc.), focusing on LSAT and doing so despite the Supreme Court’s repeated admonition that numerical disparities or differences in median credentials among admitted cohorts do not, standing alone, prove intentional racial discrimination. As one commentator wrote about the letter’s focus on LSATs: “[A]s a former admissions officer, my immediate question is: What happened to the rest of the application? Two applicants can have the same 3.8 GPA and 170 LSAT while having very different opportunities, responsibilities, work histories, leadership, and experiences. LSAT + GPA ≠ the applicant.”
All this seems similar to the DOJ letters sent to medical schools, where commentators have criticized the DOJ for overreach, their threats to student privacy, misinterpretations of Supreme Court precedent, and the assault on academic independence. See Johanna Alonso, What We Know About the Government’s Investigations Into Medical Schools, Inside Higher Ed, July 29, 2026 (noting that “initial findings from probes into medical schools’ admissions practices have left experts questioning the government’s evidence and analysis.”).
