Duke Law, the Justice Department, and America’s Most Expensive Argument About Fairness

There are few spectacles more American than watching a prestigious law school and the United States Department of Justice prepare to fight over what the law means.

It is like seeing two etiquette instructors wrestle in a restaurant lobby. Both sides insist they are defending order. Both sides accuse the other of violating the rules. Everyone nearby quietly moves the wineglasses out of reach.

The Justice Department announced on August 6 that its Civil Rights Division had concluded Duke University School of Law intentionally discriminated on the basis of race when admitting its 2023, 2024, and 2025 classes. According to the department, Duke continued pursuing race-based outcomes after the Supreme Court’s 2023 decision in Students for Fair Admissions v. Harvard restricted the use of race in college admissions. Duke says it is reviewing the findings and remains committed to following the law while preserving its academic mission.

That sentence—“committed to following the law while preserving its academic mission”—is elite-university language for “Our lawyers have advised us to stop talking until the expensive people enter the room.”

I do not blame Duke for choosing its words carefully. It is a law school. If anyone understands that every adjective can become an exhibit, it should be the institution charging future attorneys a small kingdom for the privilege of learning how to object to one.

But beneath the cautious statements and legal terminology is a question Americans keep trying to answer with the emotional maturity of relatives fighting over a will: What does fairness actually require when the starting line was never fair?

The Justice Department’s answer is clean, forceful, and appealing in its simplicity. Race cannot be used to decide who receives an opportunity. If Duke favored Black and Hispanic applicants over white and Asian applicants with comparable credentials, then Duke violated Title VI and ignored the Supreme Court. Good intentions, the department argues, do not convert racial discrimination into justice.

That principle deserves to be taken seriously. I do not want admissions officers sorting human beings by ancestry while congratulating themselves on their compassion. I do not want a rejected applicant told, implicitly or explicitly, that the racial box checked on an application made the difference. Any institution claiming to evaluate individuals should actually evaluate individuals. That is not reactionary. It is the minimum moral promise behind equal treatment.

Yet I also refuse to pretend that an admissions process becomes neutral merely because the race box disappears. America has mastered the art of removing the label while keeping the machinery. We can erase race from a form and still ask about neighborhoods shaped by segregation, schools funded by property values, extracurricular activities purchased with disposable income, recommendation letters strengthened by social access, unpaid internships made possible by parental support, and standardized tests improved by tutors who charge more per hour than some families spend on groceries.

Then we gather the results, call them merit, and act astonished that privilege has excellent penmanship.

The Allegation

The Justice Department says Duke did more than merely read applicants’ life stories. Its findings allege that the school revised its mission statement, asked applicants how they would advance that mission, and instructed reviewers to tag certain responses. One tag reportedly captured “diversity of perspective and experience.” Other tags identified characteristics such as receiving a Pell Grant—traits that the department argues can correlate with race.

The department’s theory is straightforward: Duke could no longer look directly at racial demographic data, so it allegedly constructed a side door. Race went out through the front entrance after the Supreme Court’s ruling, changed jackets in the parking lot, and returned disguised as “perspective,” “experience,” and socioeconomic context.

DOJ also says Black and Hispanic applicants had a substantially higher chance of admission than white and Asian applicants with the same academic credentials. It highlights an especially provocative statistic: in 2024 and 2025, the median LSAT scores of rejected white and Asian applicants exceeded those of admitted Black applicants.

That comparison is guaranteed to set the internet on fire because Americans love a single number that permits us to stop thinking. The LSAT becomes an oracle. A score enters the temple, merit emerges from the smoke, and nobody has to confront the annoying possibility that a person might possess qualities not measured by timed logical-reasoning questions.

The LSAT matters. Grades matter. Academic performance matters. A law school unable to acknowledge that should replace its admissions office with a raffle drum and at least make the process entertaining.

But median scores do not prove that every rejected applicant was more qualified than every admitted applicant. They do not tell us about undergraduate rigor, writing ability, work history, recommendations, obstacles overcome, intellectual originality, public service, or the hundred subjective judgments selective schools have always made. Admissions offices have never simply ranked applicants by test score and marched down the list. If they did, universities could replace entire departments with a spreadsheet and use the savings to reduce tuition, which is precisely why this efficient idea will never be considered.

The government may possess far more detailed evidence than the public summary reveals. Its findings letter may show patterns, internal instructions, and decision-making that together establish intentional discrimination. If so, Duke should answer for it. But a press release is still a press release. It is an accusation delivered with governmental authority, not a final judicial determination handed down after both sides test the evidence.

That distinction matters, especially when the accuser is the Justice Department. The government does not become infallible merely because its allegations arrive beneath an eagle seal.

The Convenient Rebirth of Civil-Rights Enforcement

I confess to feeling a little whiplash watching the federal government discover an intense passion for protecting people from discrimination.

Apparently, civil-rights enforcement is alive, vigorous, and ready for action—as long as the alleged victims fit the administration’s preferred political story. This does not automatically make the Duke investigation illegitimate. Hypocrisy is not an alibi. A selective enforcer can still identify a real violation.

But selective moral urgency deserves scrutiny.

The Trump administration has made universities a recurring target, challenging diversity programs, threatening federal funding, and framing elite campuses as ideological fortresses hostile to merit. Reuters reports that rights advocates have raised concerns about free expression, due process, and academic freedom as the administration broadens its pressure campaign against higher education.

That context does not erase DOJ’s evidence. It does tell me not to consume the announcement as though it descended from a politically sterile cloud.

Every administration chooses priorities. Every Justice Department exercises discretion. But when enforcement repeatedly lands on institutions that double as cultural enemies of the president, skepticism is not cynicism. It is basic maintenance.

I can believe Duke may have crossed a legal line while also believing the administration enjoys using civil-rights law as a crowbar against universities it already despises. Two things can be true at once, although modern politics treats this idea like an exotic medical procedure not covered by insurance.

The right wants the story to be simple: arrogant liberal administrators were caught replacing merit with racial favoritism.

The left wants a different simplicity: an authoritarian administration is weaponizing the government to destroy diversity and intimidate universities.

Reality, having no communications director, is under no obligation to choose either slogan.

Merit, Our Most Photogenic Myth

Whenever affirmative action returns to the news, “merit” arrives wearing a white robe and pretending it has never met money.

I believe in achievement. I believe effort, discipline, preparation, and talent should matter. I also believe Americans use the word merit as a laundering service for advantages we would rather not describe honestly.

A student attends a well-funded school, grows up in a quiet home, receives private tutoring, participates in expensive activities, visits colleges before applying, hires an admissions consultant, and studies for the LSAT without working a night shift. Another student navigates overcrowded classrooms, family responsibilities, unstable housing, weak counseling, and employment while completing the same application. If the first student earns a higher score, we call the outcome meritocratic because the number at the end is easier to measure than the unequal journey that produced it.

That does not mean the lower score should automatically win. It means the score is evidence, not revelation.

Selective admissions have always included judgment. Legacy status is judgment. Athletic recruitment is judgment. Geographic diversity is judgment. Preference for veterans, musicians, entrepreneurs, future donors, children of donors, and people who can throw a football through a November crosswind—all judgment. Yet racial diversity is routinely discussed as though it alone contaminated an otherwise immaculate laboratory.

If we are finally purifying admissions, wonderful. Let us purify the entire thing.

End legacy preferences. End donor influence. End quiet favors for the connected. Publish the weight assigned to every factor. Explain why one applicant’s violin recital signifies character while another applicant’s years caring for siblings become a touching paragraph nobody remembers. Show us how “fit” works before it enters a conference room and emerges as destiny.

But that is not usually what happens. Instead, America identifies one contested preference, declares war on it, and leaves the inherited machinery humming politely in the background.

The child of an alumnus can receive a discreet institutional advantage and somehow this remains tradition. A first-generation applicant writes about navigating poverty and suddenly we need a federal investigation to determine whether biography has become contraband.

Again, if Duke used first-generation status or Pell eligibility merely as code for race, that would be improper under the legal standard the government invokes. But those characteristics also matter on their own. Poverty is real. Educational disadvantage is real. Being the first person in a family to enter higher education can shape an applicant’s achievements, opportunities, and perspective.

The government must prove more than correlation if it wants to establish a deliberate racial proxy. Otherwise, any serious attempt to consider economic hardship becomes suspicious because race and class remain entangled by history. We would be telling schools they may not consider race and should hesitate to consider the conditions produced by racial inequality, because acknowledging those conditions could look too much like considering race.

That is how a country solves injustice: first prohibit the diagnosis, then question every symptom.

Essays Are Not X-Rays, but Numbers Are Not Souls

The personal essay has become the center of this dispute because the Supreme Court did not say universities must ignore everything an applicant says about race. Chief Justice John Roberts wrote that nothing prohibited schools from considering an applicant’s discussion of how race affected that person’s life, provided the consideration was tied to individual character or ability rather than race itself.

That sounds manageable until thousands of applications arrive and admissions officers must distinguish identity from experience, experience from character, and character from institutional goals—all while acting as though these categories do not overlap.

Imagine telling an applicant: “You may explain how race shaped your life, but we may only value the shaping, not the race; the lesson, not the identity; the resilience, not the source of the adversity. Please express this clearly in 250 words.”

Nothing says equal justice like a metaphysical writing prompt graded by committee.

There is an obvious risk that essays become a workaround. A university cannot legally award a racial preference simply because the applicant communicated race through narrative instead of checking a box. If the essay is effectively a password—mention the correct identity, receive the desired boost—the process remains racial sorting with better prose.

There is an opposite risk too. Schools may become so afraid of litigation that they flatten applicants into scores and GPAs, treating the human experiences behind those numbers as legally radioactive. Applicants will still have biographies, but institutions will learn to look away from the parts most likely to attract federal attention.

I do not consider that progress. I consider it bureaucracy’s favorite substitute for morality: remove discretion, worship the metric, and claim nobody made a choice.

Asian Applicants Should Not Be Used as Political Furniture

One part of this debate has bothered me for years: Asian American applicants are frequently invoked as proof of discrimination, then treated as disposable once their usefulness to the argument expires.

If Duke disadvantaged Asian applicants because of race, that is wrong. Full stop. No historical explanation or diversity goal makes an individual applicant less deserving of equal treatment. Asian Americans are not a statistical inconvenience to be absorbed into somebody else’s theory of justice.

But political movements that suddenly speak with great concern about Asian students should be asked whether that concern survives outside litigation against affirmative action. Does it survive hate crimes, workplace discrimination, immigration debates, stereotyping, and the enormous differences among communities compressed into the category “Asian”? Or are Asian applicants being rented as plaintiffs in a larger ideological campaign?

The same people demanding that every applicant be treated as an individual often discuss Asian Americans as a single high-scoring bloc. It is an impressive trick: oppose racial generalization through racial generalization.

The moral standard should be consistent. No applicant should be penalized for being Asian, white, Black, Hispanic, Indigenous, or anything else. No applicant should be reduced to a demographic instrument. That principle becomes meaningful only when we retain it after the press conference ends.

Duke Has Questions to Answer

For all my suspicion of the administration’s motives, Duke does not deserve automatic absolution because it uses the vocabulary of inclusion.

Prestigious universities are extraordinarily skilled at converting moral aspiration into administrative ritual. They create mission statements, committees, strategic frameworks, listening sessions, task forces, dashboards, and beautifully designed PDF reports. Eventually the original human problem disappears beneath enough branded paperwork to qualify for archaeological excavation.

If Duke instructed reviewers to tag essays in ways designed to reconstruct racial data it claimed not to use, it should explain why. If admissions officers tracked race-linked characteristics to preserve a preferred racial composition, the public deserves more than a sentence about academic mission. If similarly qualified applicants were treated differently because of race, Duke should correct the practice rather than hide behind benevolent intent.

Institutions love good intentions because intentions are self-issued credentials. Outcomes are more troublesome. Procedures are worse. Internal documents are catastrophic.

Duke should release as much information as privacy law permits. Explain the tags. Explain how they affected decisions. Explain the statistical model. Explain whether the department accounted for nonnumerical factors. Explain what changed after the Supreme Court ruling. Explain who approved those changes and what legal advice supported them.

Do not give us another polished statement produced by seventeen administrators and a vice president for strategic semicolons. Give us facts.

The Government Has Questions to Answer Too

DOJ should release enough of its analysis for independent experts to evaluate its claims. “Same academic credentials” sounds precise, but precision can be theatrical. Which credentials? LSAT and GPA alone? Were work experience, recommendations, undergraduate institution, course difficulty, essays, residency, military service, socioeconomic disadvantage, and other factors controlled for? How large were the differences? What model was used? Were the relevant data and assumptions disclosed to Duke?

If the case is strong, transparency strengthens it. If the case depends on presenting medians without context, transparency will reveal that too.

The department must also distinguish between evidence of intentional discrimination and evidence that a holistic process produced racial differences. Unequal outcomes can signal discrimination, but they are not automatically proof of it. Curiously, some conservatives understand this distinction perfectly when racial disparities appear in policing, housing, employment, health, or wealth. The moment a selective university produces an outcome they dislike, however, statistical disparity becomes a burning bush.

Consistency remains the rarest credential in Washington.

What Fairness Might Actually Look Like

My own view is inconvenient because it offers no faction the full emotional refund it expects.

I do not support racial quotas, covert or explicit. I do not support punishing applicants for their ancestry. I do not believe a university’s desired class composition grants it permission to manipulate individual decisions until the demographic picture looks right.

I also do not believe fairness requires historical amnesia. Schools should be able to consider poverty, educational deprivation, disability, family responsibilities, neighborhood conditions, first-generation status, work obligations, and individual experiences with discrimination. If an applicant explains how race affected a specific life, that experience should not become inadmissible simply because the country would prefer inequality to remain abstract.

The focus should be the individual. Not an applicant as a representative of a race. Not an applicant as a tool for institutional branding. Not an applicant as a mascot for an anti-diversity campaign. A person: achievements, obstacles, abilities, choices, potential, and character.

That approach will still produce disagreement because holistic admissions are subjective. There is no formula capable of turning thousands of complicated lives into an unquestionably fair ranking. The fantasy that such a formula exists is comforting to people who mistake quantification for objectivity.

We can improve the process, though. Ban legacy preferences. Limit donor influence. Expand socioeconomic consideration. Audit outcomes for unlawful discrimination. Require institutions to document why nonacademic factors matter. Protect applicant privacy while allowing meaningful oversight. Make elite schools justify the privileges they distribute instead of accepting “trust us” from organizations with endowments larger than national economies.

Most importantly, expand opportunity beyond a handful of prestige factories. The admissions war becomes so vicious because Americans have decided that entry into a small club of famous institutions determines who deserves access to power. We fight over who gets through Duke’s door while paying far less attention to why so many other doors lead to debt, instability, or nowhere.

The Case Beneath the Case

This dispute is nominally about Duke Law. It is actually about a country unable to agree on what equality means.

One vision says equality requires blindness to race. The law should treat each person identically, and institutions should refuse to distribute benefits or burdens according to ancestry.

Another says blindness can preserve inequality when people arrive carrying the accumulated effects of a history the institution has chosen not to see.

Both visions contain a moral truth. Both can become dishonest.

Colorblindness can become a noble phrase used to protect unequal arrangements from examination. Diversity can become a noble phrase used to conceal crude racial engineering. Merit can become inherited advantage wearing a test score. Equity can become discrimination wearing a mission statement.

Our political culture is built to ignore those contradictions. It rewards certainty, outrage, and the rapid conversion of incomplete evidence into permanent identity. By the time Duke responds in detail, millions of people will already know exactly what happened because the headline confirmed what they believed before reading it.

I am trying to resist that reflex.

I want the Justice Department to prove its claim. I want Duke to answer it. I want white and Asian applicants protected from discrimination. I want Black and Hispanic applicants treated as individuals rather than presumed beneficiaries of lowered standards. I want universities permitted to recognize hardship without rebuilding racial preferences in secret. I want government oversight without political intimidation.

Apparently, this collection of desires is now considered ideological homelessness.

So be it.

The law should not accept benevolence as a defense for discrimination. It should not accept statistical theater as proof of discrimination either. Duke’s prestige should earn it no deference, and DOJ’s seal should earn it no exemption from skepticism.

If Duke built a workaround to preserve race-based admissions, it should stop. If the administration exaggerated contextual review into intentional discrimination to advance a broader assault on universities, it should be challenged. If the truth contains pieces of both, then the public may have to endure the terrible burden of thinking beyond a slogan.

I realize this is a lot to ask from a nation that now treats every developing story as an audition for civil war.

But fairness was never going to be achieved by pretending the past vanished, and it will not be achieved by assigning moral value to skin color in the present. It requires something harder: rules that recognize individuals, institutions willing to expose their reasoning, and a government capable of enforcing the law without turning enforcement into political theater.

That is the real examination here. Duke Law is taking it. The Justice Department is taking it. So are the rest of us.

And unlike the LSAT, this test does not reward us for choosing the least wrong answer quickly.

It asks whether we can remain principled when the facts complicate our side.

Judging by the national response so far, I would not start printing the acceptance letters.

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Sources: U.S. Department of Justice findings announcement, Reuters reporting and Duke’s response, and the Supreme Court’s 2023 decision in Students for Fair Admissions. The Justice Department’s findings are allegations by the government; as of this writing, Duke says it is reviewing them, and no court has entered judgment on these newly announced claims.