Labor & Employment Law Daily Wrap Up, AGENCY NEWS—HHS, DOE investigating affirmative action practices of Duke Health and the Duke Law Journal, (Aug 1, 2025)

By Patricia K. Ruiz, J.D.

In one letter, the agency heads argue that affirmative action “carries a host of excuses and hides behind a smug superiority that such ‘benefitted’ races cannot compete under merit-based consideration.”

The Department of Health and Human Services (HHS) demanded in a joint letter with the Department of Education (DOE) that Duke University cooperate with an investigation by the federal government into allegations of systemic racial discrimination by the Duke University School of Medicine and other components of Duke Health. Separately, the DOE’s Office for Civil Rights has initiated an investigation into the University and the Duke Law Journal based on recent reporting that Duke discriminates on the bases of race, color, and/or national origin by using these factors to select law journal members.

Duke Health affirmative action. In the letter sent to the university and its medical school by HHS Secretary Robert F. Kennedy, Jr., and Education Secretary Linda McMahon, they outline the agencies’ expectations for a partnership-style pathway for the university to work with the agencies in uncovering prohibited race-based discrimination in the form of affirmative action and f to come into compliance with civil rights laws. The allegations spurring the investigation include illegal and wrongful racial preferences and discriminatory activity in recruitment, student admissions, scholarships and financial aid, mentoring and enrichment programs, hiring, and promotion. The letter states that racial preferences and the “rejection of merit” in hiring, student admissions, governance, patient care, and other operations endangers human lives. The letter argues that the “vile racism” of affirmative action “carries a host of excuses and hides behind a smug superiority that such ‘benefitted’ races cannot compete under merit-based consideration.”

Request for cooperation. “Our Departments have historically recognized Duke’s commitment to medical excellence and would prefer to partner with Duke to uncover and repair these problems, rather than terminate this relationship,” the letter states, requesting that Duke Health review all of its policies and practices for the use of race preferences and take immediate action to “reform all of those that unlawfully take account of race or ethnicity to bestow benefits or advantages.” The letter also requests that Duke Health provide clear and verifiable assurances to the government that the new policies “will be implemented faithfully going forward,” including by making any necessary organizational, leadership, and personnel changes. The letter also asked Duke to form a Merit and Civil Rights Committee, which “must be made up of those members of Duke’s leadership and medical faculty most distinguished in and devoted to genuine excellence in the field of medicine.”

Duke Law Journal. In separate but related news, the DOE’s Office of Civil Rights is investigating Duke and the Duke Law Journal based on recent reporting claiming that Duke Law Journal circulated a packet last year that included an additional grading rubric for its editor selection competition, which is judged based on a points-based grading system and the applicants’ first year GPA. The Journal afforded certain applicants the opportunity to receive up to 10 points for describing how their “membership in an underrepresented group” promoted “diverse voices” and between three and five additional points if they held “a leadership position in an affinity group.” The Journal reportedly only sent the packet to affinity groups and allegedly instructed applicants not to share it with other students. A similar investigation was announced involving the Harvard Law Review in April.

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