Suppose that a university wants to preferentially admit students with backgrounds correlated with, but distinct from, a racial group. Assume that the university accepts federal funding, and so falls under the recent Supreme Court ruling Students for Fair Admissions v. Harvard. Could the university legally preferentially admit:
Students recently descended from people who were enslaved? (e.g. a significant fraction of the student's ancestors as of 200 years ago were enslaved?)
Students who speak specific languages, or specific dialects of English?
Students who grew up in areas with low public funds, such as students who attended poorly-funded public schools in their K-12 education?
Assume for the sake of the argument that these admissions decisions produce outcomes which are racially correlated, but that students are not asked about their race when applying, and racial information is not considered when making admissions decisions.
I'm primarily interested in US federal law here. If these questions are not yet settled, any initial indications would also be of interest.
To be more specific, one could argue, for each of these admissions criteria, that they are proxies for racial criteria, and are therefore impermissible. One could also argue that a person of any racial background could fulfill any of the criteria, and therefore that they are fine.
How would a court decide whether criteria are illegal proxies for racial information, or sufficiently distinct to be legal? Are there cases that handle the question of whether certain information is a proxy for impermissible information?
