Law & Courts

Guidance on Race-Based Factors Gets Polarized Response

By Mark Walsh — December 09, 2011 6 min read
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Civil rights advocates and opponents of affirmative action are sharply divided on the wisdom—and legal soundness—of new Obama administration guidance to schools and colleges on how much flexibility they have in considering the race of students in areas such as attendance zones and admissions.

The guidance was released this month after more than two years of lobbying by civil rights groups, which argued that a similar document issued by the U.S. Department of Education’s office for civil rights in 2008, under President George W. Bush, did not faithfully advise schools and colleges on the permissible uses of race under the relevant U.S. Supreme Court decisions.

“I think the [new] policy is head and shoulders above the Bush policy, which was highly erroneous and misleading” in interpreting high court decisions on race-conscious policies, said John C. Brittain of the National Coalition on School Diversity, a Washington-based group made up of civil rights and education organizations.

But opponents of affirmative action and race-conscious government policies criticized the new guidance as misguided and politically motivated. And they point out that the guidance was released just as the Supreme Court might be ready to take up a new case on race in college admissions.

“The Obama administration doesn’t seem to understand that the country is inexorably going through the process of winding down from racial preferences,” Ward Connerly, the founder and president of the American Civil Rights Institute, a Sacramento, Calif.-based organization opposed to such preferences, said last week. “They are counseling [educational] institutions on how to discriminate.”

A Paper Trail

The federal departments of Education and Justice jointly issued separate documents for K-12 schools and postsecondary institutions that outline both race-neutral and race-conscious practices that officials say may be used to advance racial diversity and avoid racial isolation.

Legal Landscape

The U.S. departments of Education and Justice have offered guidance on ways in which educational institutions may legally take the race of students into account in admissions or assignment programs.

K-12 Schools
Race may be considered in:
• School siting, such as taking racial-diversity goals into account when deciding where to place a specialized academic program.
• Feeder patterns, such as feeding underperforming elementary schools into higher-achieving middle schools to help achieve racial diversity.
• School zoning, such as drawing attendance zones to achieve socioeconomic diversity of students even when that would promote racial diversity.
• Admission to competitive programs. A district could give special consideration to students from neighborhoods specifically because of their racial composition, treating all students from the selected neighborhood without regard to race.

Higher Education
Race may be considered in:
• Admissions, where institutions may look at an applicant’s socioeconomic status, first-generation college status, or other race-neutral criteria to help achieve racial diversity.
• Development of pipeline programs, or partnerships with K-12 schools or other colleges, based on racial composition of the school, or based on race-neutral factors.
• Recruitment and outreach programs could target districts or schools with significant numbers of potential applicants who are of races underrepresented in the institution’s applicant pool.

Supreme Court Precedents
The new federal guidance is based primarily on three U.S. Supreme Court decisions.
Grutter v. Bollinger and Gratz v. Bollinger
In Grutter, the high court in 2003 upheld the University of Michigan Law School’s admissions program that considered students’ race in an effort to achieve a critical mass of underrepresented racial groups in its student body. The majority opinion by Justice Sandra Day O’Connor said that the law school’s individualized, holistic review of student applications was narrowly tailored to serve the compelling governmental interest of achieving diversity.

In Gratz, the court applied similar principles to strike down Michigan’s undergraduate-admissions program because it automatically awarded a significant point bonus to applicants from underrepresented racial groups.

Parents Involved in Community Schools v. Seattle School District
In this 2007 decision, the court struck down race-conscious plans for assigning students in the Seattle and the Jefferson County, Ky., school systems. The majority said the two districts had not shown that they had seriously considered race-neutral alternatives and that the plans did not allow meaningful, individualized review of student assignments. In a key concurrence, Justice Anthony M. Kennedy said plans that seek to achieve racial diversity or avoid racial isolation through more generalized race-conscious measures might pass legal muster.

SOURCE: U.S. Departments of Education and Justice

“Diverse learning environments promote development of analytical skills, dismantle stereotypes, and prepare students to succeed in an increasingly interconnected world,” Attorney General Eric H. Holder Jr. said in announcing the guidance Dec. 2 with Secretary of Education Arne Duncan.

The new guidance provides the Obama administration’s outlook on what schools and colleges may do under three key Supreme Court rulings on race and education. They include Grutter v. Bollinger and Gratz v. Bollinger, two 2003 rulings that outlined the ways higher education institutions could take race into account in student admissions.

The third is a 2007 decision, Parents Involved in Community Schools v. Seattle School District, in which the court invalidated race-conscious student-assignment plans in the Seattle and Jefferson County, Ky., school districts under the equal-protection clause of the 14th Amendment. The court majority held that the districts’ use of race was not narrowly tailored to meet their student-diversity goals, and that the districts had not seriously considered race-neutral alternatives.

But in providing the crucial fifth vote for the majority in Parents Involved, Justice Anthony M. Kennedy issued a concurrence in which he stressed that there remained permissible ways for school districts to take race into account. The new K-12 guidance focuses on that concurrence, which when grouped with the views of the four justices who dissented from the main ruling, stands for the proposition that districts have compelling interests in achieving diversity and avoiding racial isolation.

“Thus, a majority of justices … expressed the view that schools must have flexibility in designing polices that endeavor to achieve diversity or avoid racial isolation,” the K-12 guidance says.

The guidance encourages districts to first consider race-neutral approaches to meet their diversity goals, such as relying on students’ socioeconomic status, parental education levels, or neighborhood characteristics in making student-assignment decisions.

However, the guidance says that districts “are not required to implement such approaches if, in their judgment, the approaches would not be workable.”

That is a departure from the Bush-era guidance, which stressed that race-neutral approaches must be attempted before turning to race-conscious options.

“This means school authorities don’t have to adopt a race-neutral plan and try it,” Mr. Brittain, a law professor at the University of the District of Columbia, said of the new guidance. “But they do have to identify what race-neutral plans there are, and why they would not have worked. They have to provide a paper trail.”

Both the K-12 and postsecondary documents provide examples of both race-neutral and race-conscious options for educational institutions to use to achieve racial diversity or eliminate racial isolation.

The guidance stresses that schools and colleges may use a variety of “generalized” race-conscious policies, such as taking account of the overall racial composition of a neighborhood. Any program that considers a student’s race as a decisionmaking factor must provide that student with an “individualized review,” the K-12 guidance says, such as using race as a “plus factor” along with other, nonracial considerations, to achieve its racial-diversity goals.

“A school district should not evaluate student applicants in a way that makes a student’s race his or her defining factor,” says the K-12 guidance, in reference to decisions on competitive academic programs, for example.

Eye on White House

Civil rights groups have been lobbying the Obama administration since 2009 for the guidance, Mr. Brittain said, including his own group as well as the NAACP Legal Defense and Educational Fund, the Mexican-American Legal Defense and Educational Fund, and the Lawyers’ Committee for Civil Rights Under Law.

“We have been pulling, pushing, probing, and persuading,” he said, including numerous meetings with Attorney General Holder and Secretary Duncan, in addition to meetings at the White House with President Barack Obama’s domestic-policy advisers.

“Finally it has come out, but the delay has chilled diversity efforts,” Mr. Brittain said.

Opponents of racial preferences had a different view about the timing.

“Clearly, this is political,” said Mr. Connerly, who as a member of the California board of regents in 1995 was the driving force behind the rollback of most race-conscious admissions policies at University of California campuses. “President Obama has contributed to the perception that he is ‘post-racial,’ but now that he is in political trouble, he has become more pro-racial and pro-ethnic.”

Sharon L. Browne, a lawyer with the Pacific Legal Foundation, another Sacramento-based organization that fights race-conscious policies, expressed doubts about the soundness of the federal guidance. She also said the timing was curious in light of the possibility that the Supreme Court may return to the issue soon.

“I would think that school districts, if they take this guidance to heart, are going to find themselves facing litigation,” she said.

The foundation, Mr. Connerly’s institute, and a handful of other groups have filed a friend-of-the-court brief supporting an appeal brought to the Supreme Court by a white student who contends she was rejected for undergraduate admission at the University of Texas at Austin because of the university’s race-conscious admissions policy.

The U.S. Court of Appeals for the 5th Circuit, in New Orleans, in January 2011 upheld the university’s policy, which considers race as one factor for admission after Texas students from the top 10 percent of their high school classes claim places at the university guaranteed by a state law.

The high court is considering whether to grant review of the white student’s appeal in Fisher v. University of Texas at Austin (Case No. 11-345). Last week, the state of Texas filed a response arguing that the court should not take up the case because, among other reasons, the student plaintiff is about to graduate from another university and thus no longer has standing as a potential undergraduate applicant to UT-Austin.

The high court could decide by January whether to take the case.

A version of this article appeared in the December 15, 2011 edition of Education Week as Guidance on Race-Based Factors Gets Polarized Response


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