Remember how GMU law professor Lloyd Cohen used the Freedom of Information Act to test for the extent of affirmative action at Thomas Jefferson High School?  Nine years after Cohen filed an official complaint, the Department of Education’s Office for Civil Rights finally got back to him.  They find his case unconvincing.  Highlights from their full response:

OCR enforces Title VI of the Civil Rights Act of 1964,42 U.S.C. § 2000d, as implemented by regulations at 34 C.F.R. Part 100, which bars public schools, as well as private institutions that receive federal financial assistance, from discriminating on the basis of race, color, or national origin. Racial discrimination by school districts that violates the Equal Protection Clause of the Fourteenth Amendment to the Constitution also violates Title VI.


We note here, at the outset, that Title VI does not require a school district to rely solely on objective measures, such as grades and test scores, to admit applicants. A school may, consistent with Title VI, elect to consider a range of other, difficult to quantify factors, such as motivation, leadership, personal achievements and teacher recommendations, in admitting students to a school.

Further, the use of race as a factor in admissions, in and of itself, is not a violation of federal law. The U.S. Department of Education and the U.S. Department of Justice have recognized, as has a majority of Justices on the U.S. Supreme Court, the compelling interests that K-12 schools have in obtaining the benefits that flow from achieving a diverse student body and avoiding racial isolation. [emphasis mine]

I’m no lawyer.  But given this utterly elastic standard (you can’t “discriminate on the basis of race” but you can “use race as a factor in admissions”), I don’t see how Cohen could possibly win.  Still, he’s is already appealing.  Highlights from his full appeal:

You state that “the Division has maintained that it was not considering the race of the applicants in the admissions decisions to the School during 2002.” Let me list some of the facts in this matter that make this assertion completely non-credible.

First, there is the quote from the Guidelines that you copy in your letter to me. It clearly instructs the selection committees to take race into consideration in their determinations.

Second, we have the assignment of members to the various selection committees. As I document in my article… the makeup of these committees is carefully structured to represent a particular ethnic distribution–one by the way that does not remotely match the distribution of the student body of the school.

Third, we have an article written by the then Superintendent of the Fairfax County Schools. In 2003 Superintendent Daniel A. Domenech published: Metamorphosis: From Statistics into Cockroaches, A Response to Professor Cohen’s ‘A Study of Invidious Racial Discrimination in Admissions at Thomas Jefferson High School for Science and Technology: Monty Python and Franz Kafka Meet a Probit Regression’ in volume 67 of the Albany Law Review.  In that article Superintendent Domenech never disputes my claim that race was used in the admissions process but instead justifies such use of race as contributing “to sustaining a well rounded and diverse community of learners at TJ.”

Fourth, and of over-riding importance, is the unnecessary inclusion of information on race in each applicant’s file. While (as I document) much of the core information on performance is either expurgated or dumbed down in the files presented to the selection committees, one piece of information that the Division claims is not counted at all is prominently displayed–the race of the applicant. When, for the entire history of our nation, race has been a prominent basis of discrimination, when the issue of the racial distribution of the student body of TJ has been heatedly discussed for a decade, it is simply incredible that this information is simply gratuitously and unnecessary prominently displayed in each file if it is not intended that it be employed in the decision making process.

The DOE’s reply and Cohen’s appeal delve into the statistics in great detail.  Personally, I’d like to see all this data publicly released and used in econometrics classes.  Indeed, adjudicating between the DOE and Cohen would be a fantastic senior project for TJ students, though I wouldn’t envy the teacher who gave such an assignment…
P.S. Both the DOE’s letter and Lloyd Cohen’s appeal are used with Cohen’s permission.

Update: Cohen link fixed.