Duke University discriminated against White and Asian American applicants. But the DOJ's racial proxies argument deserves more scrutiny.

Duke University Law School got caught defying the Supreme Court’s 2023 ruling on affirmative action, and conservative outlets were quick to call them out.

The National Review closed its editorial by complaining that rooting out race-conscious admissions shouldn’t require “unceasing legal and administrative effort.” Strip out the firebrand language and the frustration is reasonable enough from a conservative perspective. Compliance with a Supreme Court ruling shouldn’t be optional. The Justice Department’s findings run six pages, and the substance is difficult to deny whether you’re a proponent of affirmative action or not.

The DOJ discovered Duke emphasized DEI as a core commitment in internal communications in 2023. After Students for Fair Admissions (SFFA) v. Harvard, Duke Law rewrote its mission statement to promote a “diversity of perspective and experience.” It asked prospective students to write a supplemental essay on how they would advance this mission, attaching a “Diversity/Services” tag to essays that correlated with racial characteristics. Justice Roberts' majority opinion in SFFA specifically cautioned schools against using application essays to bypass race-neutral admissions.

The National Review alleges Duke used “racial proxies,” such as supplemental essays, to admit less qualified Black and Hispanic applicants, citing LSAT scores as evidence. Admitted Black applicants had a median LSAT score of 166, compared to 173 for White and Asian American applicants. Emails affirming Duke’s commitment to racial diversity, along with the essay as a clear “proxy,” make the case.

Whether Duke defied the Supreme Court isn’t really in doubt. What we don’t have is a legally coherent understanding of what counts as a “racial proxy.”

What counts as a racial proxy?

The DOJ letter flags a second category of evidence: admissions reviewers were instructed to tag applicant characteristics “commonly correlated with race, such as being a Pell Grant recipient.” First-generation status appears in the same passage.

Pell eligibility is an income test. Since the FAFSA overhaul took effect for 2024–2025, a student qualifies based on their family’s adjusted gross income, family size, tax filing status, and how those numbers compare to federal poverty guidelines for their state. First-generation status measures whether either parent finished a bachelor’s degree. The department’s own guidance on whether these count as racial proxies is ambiguous.

Attorney General Pam Bondi’s July 2025 memo introduced the term “unlawful proxy discrimination.” Its operative section establishes two triggers: a neutral criterion becomes unlawful when it’s selected because it correlates with or substitutes for racial characteristics. Or when it’s implemented with the intent to advantage or disadvantage people on that basis. Both depend on why a school picked a criterion — neither concerns a correlation on its own.

Bondi’s memo gets more specific in its best-practices section. Socioeconomic status, first-generation status, and geographic diversity must not be used if selected to prioritize individuals by racial characteristics. What schools should use instead, in the memo’s own words: universally applicable criteria such as academic merit or financial hardship, applied without regard to demographic goals. A program serving low-income students passes muster so long as it’s universally applied rather than aimed at particular populations to produce a racial result.

The passage resides in a section the memo twice labels “non-binding suggestion” rather than a requirement. It shows how the DOJ reads its own rule. Weighing financial hardship is permitted. Choosing a hardship criterion for the racial mix it delivers is not.

This distinction is meaningful, and the Duke letter blurs it. A tag for Pell Grant status is evidence of intent to discriminate only if you already believe the tag was chosen to achieve a racial yield. At Duke, you might believe that, given everything else. Apply the same inference at a school without an email trail and diversity essay, and the tag becomes incriminating on its own.

Everything in admissions is a proxy

A proxy refers to a stand-in for something else, which could reasonably describe everything an applicant submits. Jim Jump, a former academic dean, makes this exact point. AP courses are a proxy for academic rigor. GPA is a proxy for academic achievement and signals little without context. SAT scores are a proxy for ability.

Each of them also correlates with race, and these correlations are well documented. AP availability depends on what a district can afford. Test scores climb with a spend on preparation. Average LSAT performance splits by thirteen points between Black and White test-takers, a gap attributed to disparities in K–12 schools and unequal access to prep courses.

Nobody would argue that academic transcripts are illegal, so the complaint can’t rest on correlation. It has to show intent, which is exactly what the Bondi memo calls out. Jump’s distinction is the one that withstands legal scrutiny: expanding access through outreach, in his example, is a different act than engineering an admissions process to produce a class with a particular racial composition. Duke did the second thing. A Pell Grant tag does the first. So does recruiting in a district that offers no AP courses, as long as admissions officers can plausibly say they were looking to redress financial hardship.

What this means for the future of student essays

Roberts preserved something specific in SFFA, which gets lost in coverage of cases like Duke’s. A college may consider what an applicant writes about how race shaped their lives, through discrimination or inspiration or anything else, so long as schools reward character and contribution. The DOJ investigation targets how institutions assign and use essays. Neither the memo, the Supreme Court ruling, nor the DOJ letter tells a seventeen-year-old to pull the life out of their application.

The instinct to sanitize essays is the wrong one. Families reading about tags and racial proxies might conclude that any mention of background becomes a liability. But that’s a mistake. Write about the shift you worked at your uncle’s auto shop, and what you learned about your racial identity from the way customers spoke to him. Wax poetic about the afternoon you sat at the kitchen table translating a FAFSA form for a Spanish-speaking parent. 

Specificity is the ground the Supreme Court left standing, because character and contribution exist in the details. And these details don’t function as a proxy for clicking a demographic box.

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