As
Elie
Mystal
mentioned
on
Thinking
Like
A
Lawyer’s
400th
episode,
we’re
still
wading
in
the
wake
of
what
SFFA
v.
Harvard
will
mean
for
well…
everyone.
That
said,
we’ve
definitely
made
some
predictions
about
what
will
be
next
on
the
chopping
block.
We’re
starting
to
get
some
answers.
Our
speculation
has
largely
been
focused
on
what
admissions
in
higher
ed
would
look
like
—
because
that’s
what
the
case
was
about
—
but
a
recent
letter
shows
we
should
be
just
as
interested
in
what’s
happening
in
K-12
education.
On
Valentine’s
Day,
the
Department
of
Education’s
Office
for
Civil
Rights
dropped
a
Dear
John
letter
telling
all
schools
interested
in
keeping
federal
aid
to
break
up
with
any
use
of
discrimination
by
race
or
its
proxies:
Although
some
programs
may
appear
neutral
on
their
face,
a
closer
look
reveals
that
they
are,
in
fact,
motivated
by
racial
considerations.
And
race-based
decision-making,
no
matter
the
form,
remains
impermissible.
For
example,
a
school
may
not
use
students
personal
essays,
writing
samples,
participation
in
extracurriculars,
or
other
cues
as
a
means
of
determining
or
predicting
a
student’s
race
and
favoring
or
disfavoring
such
students…Relying
on
non-racial
information
as
a
proxy
for
race,
and
making
decisions
based
on
that
information,
violates
the
law.
That
is
true
whether
the
proxies
are
used
to
grant
preferences
on
an
individual
basis
or
a
systematic
one.
While
the
word
choice
here
was
“determining”
and
“predicting,”
the
real
concern
is
seeing
how
long
it
takes
for
the
government
to
punish
“acknowledging
the
mention
of
race”
or
some
other
protected
characteristic
by
proxy.
And
it
might
not
seem
like
much
of
a
chilling
effect
for
now,
but
when
losing
federal
funding
is
on
the
line,
is
it
really
worth
a
school
risking
accepting
an
applicant
with
a
background
that
could
be
read
as
having
anything
to
do
with
diversity?
Would
a
school
risk
their
funding
for
accepting
a
student
who
talked
about
how
formative
participation
in
the
Urban
Debate
League
was
to
them
because
they
know
they
might
get
accused
of
using
“Urban”
as
a
proxy
for
Black?
Even
if
the
applying
student
happened
to
be
white?
If
a
student
applying
to
North
Carolina
Agricultural
and
Technical
State
University
has
her
application
rejected,
does
the
school
risk
losing
funding
because
her
application
*mentioned*
that
the
study
habits
and
leadership
skills
she
picked
up
as
a
Girl
Scout
in
her
writing
sample
and
Girl
Scouts
are
predominately
white?
Even
if
the
applicant
was
Black,
who
is
to
say
that
the
school
did
or
didn’t
discriminate
against
her
because
they
assumed
she
was
white?
The
problem
with
defending
against
“taking
a
closer
look”
rhetoric
is
that
once
the
seer
assesses
the
wrongdoer’s
“true
intentions”
and
flips
the
burden
of
proof,
good
luck
with
proving
the
negative.
Chris
Williams
became
a
social
media
manager
and
assistant
editor
for
Above
the
Law
in
June
2021.
Prior
to
joining
the
staff,
he
moonlighted
as
a
minor
Memelord™
in
the
Facebook
group Law
School
Memes
for
Edgy
T14s.
He
endured
Missouri
long
enough
to
graduate
from
Washington
University
in
St.
Louis
School
of
Law.
He
is
a
former
boatbuilder
who
is
learning
to
swim, a
published
author
on
critical
race
theory,
philosophy,
and
humor,
and
has
a
love
for
cycling
that
occasionally
annoys
his
peers.
You
can
reach
him
by
email
at [email protected] and
by
tweet
at @WritesForRent.