By guest blogger Mark Walsh
President Donald Trump’s administration on Tuesday rescinded several guidance documents issued under President Barack Obama that emphasized permissible ways for schools and colleges to take race into account to promote student diversity.
The U.S. Departments of Justice and Education issued a “Dear Colleague” letter that said they “have reviewed the documents and have concluded that they advocate policy preferences and positions beyond the requirements of the Constitution,” as well as provisions of the Civil Rights Act of 1964 that promote desegregation and bar discrimination based on race (and other factors) in federally funded schools.
The action rescinds Obama administration guidance documents issued in 2011, 2013, 2014, and 2016, several of which were interpretations of then-recent U.S. Supreme Court decisions about the use of race in college admissions.
“The Supreme Court has determined what affirmative action policies are constitutional, and the court’s written decisions are the best guide for navigating this complex issue,” Secretary of Education Betsy DeVos said in a statement. “Schools should continue to offer equal opportunities for all students while abiding by the law.”
Beyond advocating policy positions that go beyond legal requirements, the “Dear Colleague” letter says, the Obama-era documents “prematurely decide, or appear to decide, whether particular actions violate the Constitution or federal law.”
“By suggesting to public schools, as well as recipients of federal funding, that they take action or refrain from taking action beyond plain legal requirements, the documents are inconsistent with governing principles for agency guidance documents,” the letter states.
Interpreting Supreme Court Rulings
With the Trump administration’s action, the three most recent presidential administrations have sought to put their gloss on the legal landscape for the consideration of race in education.
It should be kept in mind that the U.S. Supreme Court has had much to say about the permissible uses of race in K-12 and higher education, and courts examining a race-conscious program would be bound by those rulings more than by guidance documents issued by the departments of Education and Justice.
The Supreme Court spoke most recently on diversity in higher education in 2016, when the justices ruled 4-3 in Fisher v. University of Texas at Austin to uphold the race-conscious admissions plan at the flagship UT campus.
Justice Anthony M. Kennedy, who announced last week his intention to retire from the court, wrote the majority opinion upholding the plan.
“It remains an enduring challenge to our nation’s education system to reconcile the pursuit of diversity with the constitutional promise of equal treatment and dignity,” Kennedy wrote.
In the K-12 arena, the court in 2007 sharply limited the use of race in assigning students to schools in districts that were no longer, or never had been, under court supervision.
Kennedy joined the judgment in Parents Involved in Community Schools v. Seattle School District that invalidated voluntary race-conscious assignment plans in the Seattle and Jefferson County, Ky., school districts. But he wrote a significant concurrence that said it could still be a compelling interest for a school district to seek a diverse student population.
“Race may be one component of that diversity, but other demographic factors, plus special talents and needs, should also be considered,” Kennedy wrote.
In 2008, President George W. Bush’s administration released guidance building on the Parents Invovled decision that said, “The Department of Education strongly encourages the use of race-neutral methods for assigning students to elementary and secondary schools.”
In 2011, President Barack Obama’s administration issued guidance documents for both K-12 and higher education that offered its own interpretation, one that was more open to the use of race than the Bush administration’s view.
The K-12 document expanded on areas Kennedy had cited in his Parents Involved concurrence as ones where schools could continue to take race into account if it were narrowly tailored. These included school siting decisions, feeder patterns, and admission to competitive K-12 schools and programs.
The Trump administration has signaled its position against the use of race in college admissions by supporting a lawsuit by a private group that challenges Harvard University’s admissions program, which takes race into account.
The retirement of Kennedy from the high court this summer has sparked abundant speculation that a likely more conservative replacement by Trump would eventually lead to a reversal on race-conscious admissions plans.
Groups on both sides of the question of using race in education responded quickly to the news of the Trump administration’s move.
Roger Clegg, the president of the Center for Equal Opportunity, a Washington-based group that has long opposed race-conscious programs, said in a statement: “The Obama guidance in this area was bad law and bad policy, and it’s good news if it is indeed being withdrawn. Being opposed to racial preferences is not being against diversity, which is what the critics will claim: It’s simply being against discrimination. The federal government should not be going out of its way to encourage such discrimination, which is what the Obama guidance did.”
Advocates for educators, though, were worried the move could undermine efforts nationwide to ensure that school districts reflect the diverse populations they serve.
“It is imperative that the nation’s school system leaders have the flexibility they need in addressing the racial and economic diversity of their schools and students,” said Noelle Ellerson Ng, the associate executive director for policy and advocacy at AASA, the School Superintendents Association, in an email. “Given that guidance is non-binding and does not have the power of the law, AASA errs on the side of equity, diversity and flexibility, and opposes the Trump administration’s latest proposal.”
And the Alliance for Excellent Education, a research and advocacy organization that works on college-and-career readiness also had deep concerns.
“Any messaging or policy that undercuts the notion that diversity is a strength that should be embraced at all levels is concerning,” Phillip Lovell, the vice president for policy development and government relations, said in an email.
The Obama guidance encouraged districts to try practices that the Alliance thinks should be embraced, not rescinded. For instance, it urged school districts mulling a district-wide specialized academic program, such as a computer science magnet, to house the program at a low-performing school, if doing so would help boost racial diversity.
Meanwhile, John B. King Jr., who served as Obama’s second education secretary and now leads the Education Trust, a civil rights organization, said rescinding the guidance sends the wrong message at a moment when the nation’s schools and colleges are becoming increasingly diverse.
“More than 60 years later, our nation still has not fulfilled the promise of Brown v. Board of Education,” King said. “Research shows the benefits of diversity for all students; and innovative practices in schools, on campuses, and in communities to advance diversity can help protect the future prosperity of our nation and the long-term health of our economy.”
Staff writers Catherine Gewertz and Alyson Klein contributed to this article.