When Opportunity Becomes a Preference

A Late-Breaking Conversation on Justice When does removing a barrier to opportunity become an unlawful preference? That question has suddenly moved from legal theory to an active national policy debate. The Trump administration has proposed a new Treasury/IRS rule that could threaten the federal tax-exempt status of private schools and colleges that provide admissions preferences, scholarships, financial assistance, or other benefits based on race, color, or national or ethnic origin. The administration says the principle is straightforward: help disadvantaged students—but don’t select them for assistance because of race. That’s a serious argument. And I think it deserves a serious response. In this late-breaking episode of Conversations on Justice, I interrupt our planned series on disparate impact because this proposal puts almost everything we’ve been discussing into real time: merit, colorblindness, equal treatment, Griggs v. Duke Power, and the difference between using race to make a decision and examining race to understand whether a supposedly neutral system is actually working. Treasury expressly allows schools to assist disadvantaged students using race-neutral factors such as income, geography, first-generation status, individual hardship, military-family status, and academic achievement. Fine. Let’s try it. But then let’s do something else. Measure what happens. Do those race-neutral tools actually expand opportunity? Do they reach poor students? Rural students? First-generation students? Students from historically disadvantaged communities? And if substantial racial disparities remain, are institutions still permitted to look at those numbers and ask: Why? That’s where I believe the debate becomes much more difficult. There is an enormous difference between: choosing someone because of race and examining racial outcomes to determine whether a neutral system is working fairly. The first can be discrimination. The second is inquiry. Yet if those two ideas become legally indistinguishable, we risk solving colorblindness by becoming data-blind. And you cannot diagnose a disparity you’ve forbidden yourself to see. This episode also asks a larger question about merit. If two equally talented students earn admission to college, but only one can afford to attend, financial assistance doesn’t manufacture intelligence. It doesn’t lower the academic standard. It removes a financial barrier. Sometimes removing a barrier is what finally allows merit to matter. And that principle extends beyond race. The poor white student growing up in rural Appalachia matters too. So does the first-generation student. The child attending an under-resourced school. The student whose ZIP code gave them fewer opportunities but no less potential. Different circumstances. Same question: Are we measuring ability—or are we allowing barriers unrelated to ability to determine who gets through the door? I support the aspiration of a colorblind society. But colorblindness should never require blindness to evidence. We can reject racial favoritism without rejecting racial inquiry. We can pursue race-neutral solutions while still measuring whether they work. And we can believe deeply in merit while recognizing that opportunity does not create merit. Sometimes... it simply opens the door and lets merit walk through. This is When Opportunity Becomes a Preference, a late-breaking Conversation on Justice about race, class, merit—and who gets through the door. Get full access to Justice ReDesigned at steventeske.substack.com/subscribe