Education, Justice Depts. Issue Race Guidance After Fisher

By Mark Walsh — September 27, 2013 4 min read
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The departments of Education and Justice on Friday issued informal guidance emphasizing their view that under the U.S. Supreme Court’s Fisher decision in June that colleges may continue to take account of an individual’s race to ensure diversity in student enrollment.

“The court preserved the well-established legal principle that colleges and universities have a compelling interest in achieving the educational benefits that flow from a racially and ethnically diverse student body and can lawfully pursue that interest in their admissions programs,” said a letter to college and university presidents signed by Catherine E. Lhamon, the Education Department’s assistant secretary for civil rights, and Jocelyn Samuels, the acting assistant attorney general for the Justice Department’s civil rights division.

“An individual student’s race can be considered as one of several factors in higher education admissions as long as the admissions program meets the well-established ‘strict scrutiny’ standard,” the question-and-answer guidance says regarding the court’s June 24 decision in Fisher v. University of Texas at Austin.

In their 7-1 ruling in Fisher, the justices reaffirmed key precedents that racial diversity is a compelling educational interest, but they gave opponents of affirmative action fresh legal ammunition to continue attacking race-conscious programs. The majority said that a lower court had failed to hold the university’s race-conscious admissions plan to the demanding burden of “strict scrutiny” as articulated in the high court’s landmark decisions on affirmative action in education.

The guidance from the Education and Justice departments tends to emphasize the parts of the decision that reaffirmed diversity as a compelling governmental interest.

“The court followed long-standing precedent recognizing that colleges and universities have a compelling interest in ensuring student body diversity, and can take account of an individual applicant’s race as one of several factors in their admissions program as long as the program is narrowly tailored to achieve that compelling interest,” the guidance says.

“The court sent a very clear signal in Fisher that 40 years of precedent [on race diversity in education] still stands,” Lhamon said at a panel discussion about the guidance Friday morning at the Justice Department building in Washington.

The new document also stresses that two guidance documents from the Educaton and Justice departments in 2011, one for higher education and one for K-12, remain sound because they are based on standards for race-conscious actions by educational institutions that were undisturbed by the Fisher ruling.

Some higher education advocates and experts at the session expressed concerns about how long the Fisher decision would be the last word on affirmative action from the high court. (After the Supreme Court remanded the case to the U.S. Court of Appeals for the 5th Circuit, in New Orleans, that appeals court asked for new briefing on several issues that is due in November.)

“There is a tone” in the opinion that says “bring on the next case,” Bradley Quin, the head of the College Board’s diversity colloborative, said from the audience. “The situation is still pregnant with perils down the road.”

Lhamon of the Education Department’s office for civil rights responded, “I don’t read the tea leaves the way you do. ... I don’t read [the Fisher decision] as an invitation to further litigation. But we don’t control what people do.”

Anurima Bhargava, the head of the educational opportunities section in the Justice Department’s civil rights division, noted that the Fisher case has been the only challenge to race-conscious admissions programs since the landmark 2002 Supreme Court decisions involving the University of Michigan, in Grutter v. Bollinger and Gratz v. Bollinger.

“This should be a moment of care,” said Bhargava. “It should not be a moment of fear.”

Richard D. Kahlenberg, an expert on diversity in college admissions at the Century Foundation, said after the panel discussion, which he attended, that the guidance and tone of officials from the Education and Justice departments seemed to be downplaying some of the ways the Fisher decision had called for lower courts to give closer scrutiny to race-conscious plans.

“I think the [Obama] administration is in denial,” Kahlenberg said. To suggest that the Grutter and Fisher decisions are completely aligned, “I don’t how people can say that with a straight face,” he added.

“There is a different standard under Fisher about the steps you have to go through” to determine that race-neutral alternatives do not work to achieve diversity, he said.

“I don’t think [the new guidance] provides a credible reading of Fisher and may, in fact, encourage the justices to revisit the issue sooner than later,” Kahlenberg said.

[UPDATE 4:30 p.m. Friday: Kahlenberg expanded on his thoughts with a contribution to the Chronicle of Higher Education here.]

A version of this news article first appeared in The School Law Blog.