The Times Higher Education has prompted a debate in the teaching academy over a call for “Black bereavement leave” by Angel Jones, a visiting assistant professor teaching educational leadership courses at Southern Illinois University-Edwardsville. Jones wrote that Black educators need time off to cope with the killings of black individuals in society. The leave would not depend on the educators knowing or having any relationship to the deceased.

Jones wrote in the academic publication that

“Some may have thought I was joking when I mentioned Black bereavement leave, but I wasn’t. We need space and time to grieve without having to explain or defend it. And since the grief process, like the Black community, is not a monolith, flexibility is required.

…

Some may need a day off while others may just need to be able to work from home. Some may need a small extension on a deadline while others may need to have something removed from their plate completely.”

Jones said that such leave can help faculty connect with students and the community at large. She also said that the leave will show real commitment to racial justice since “history has shown us that Black educators often have to exert additional emotional energy to pick up the slack the academy leaves behind after it sends its obligatory, and often performative, statement to the campus community.” She insists that “anti-Blackness is intentional” so it requires actions like black bereavement leave.

“while those obviously copy-pasted, campus-wide emails are the bare minimum, Black faculty and staff don’t even get that. Where is the acknowledgment of our pain? Where are our counselling services? Where is our grace for missed meetings and deadlines while we mourn? Yes, we have jobs to do and students to support, but we also have trauma to process.”

The question is whether such race-based leave would be constitutional. Jones is calling for a categorical leave option only available to black educators. That could trigger a challenge by non-Black faculty.

The Supreme Court has required satisfaction of the strict scrutiny test in race-based programs but has not (thus far) ruled out any consideration of race in admissions or other benefits. If subject to a strict scrutiny analysis, the universities would need to show a “compelling state interest” and that the program is “narrowly tailored” to achieve that purpose. The key here is that Jones is arguing for a categorical benefit based solely on race as opposed to a case-by-case determination by university administrators. The latter is more likely to survive challenge as based on an individual professor’s need for accommodation or care.

Universities have increasingly embraced race-based programs from “Affinity housing” to safe spaces for minority students. This issue came up in a little reported exchange in the oral argument in Students for Fair Admissions v. the University of North Carolina between Justice Amy Coney Barrett and David Hinojosa, the director of the Educational Opportunities Project at the Lawyers’ Committee for Civil Rights Under Law:

JUSTICE BARRETT: One question. One — one difference between your brief and your position and University of North Carolina’s is that from the student’s perspective — and you were getting at this in some of your answers to Justice Sotomayor early on about confederate statues and the presence of white supremacist groups — is that from the student perspective, you know, students — the educational benefit to the students might be in the form of counteracting feelings of isolation, sticking out, not being supported.

In light of that, I’m wondering if you have anything to say about affinity groups and affinity housing? I think one thing at least insofar as I’m aware at the time Grutter was decided and certainly Bakke, that kind of a phenomenon where you have groups, say, where, you know, black students and allies can live or, you know, black student groups, same for, you know, Hispanic groups, et cetera, was not a phenomenon that was around then.

And — and I think one of the benefits is that it allows minority students to ban together to reduce some of the feelings of isolation that you’ve been talking about. Do your clients have a position on that and whether that would be — because whatever we say or however broadly we wrote this opinion, that rationale about the educational benefits of diversity presumably might have some bearing on those questions that are post-admission questions?

MR. HINOJOSA: Yes, Your Honor. So, you know, those — those do invite, you know, very difficult questions. And I think that’s how and why a potential color-blind ruling from this Court, you know, may disrupt things even further, but also about how, you know, certain conditions may apply on a case-by-case basis. So I may not be making too much sense with what I just said there, but, you know, in terms of affinity groups, for example, research shows that affinity groups have incredible benefits not just, you know, for its own members but in helping the broader community understand, for example, you know, racial and cultural issues, you know, that they might raise. It’s not my understanding that there are any affinity groups, especially, for example, you know, black student associations that —

JUSTICE BARRETT: I’m really thinking

MR. HINOJOSA: — exclude any students.

JUSTICE BARRETT: — mostly about affinity housing. And I — I understand Chapel Hill does not have it, but UNC Wilmington does. Would your clients have a position on affinity housing?

MR. HINOJOSA: I — I — I do not know, Your Honor.

If non-Black faculty are denied the same leave, they could get standing by showing that such leaves increases their own burden for teaching and student engagement. They could also claim that they have comparative bereavement demands that are not given such categorical accommodations.

Jones received her Ph.D from George Washington University, two degrees from Georgia State University, and her B.A. from Syracuse University. He faculty bio states that her “work is grounded in Critical Race Theory and Critical Race Feminism and acknowledges the roles that race and racism play in the lives of Black students.”