Obama Administration Says Schools May Use Race for Diversity

Bloomberg Business Week
December 02, 2011, 4:19 PM EST

By Greg Stohr


(Updates with comment from guidance in third paragraph.)

Dec. 2 (Bloomberg) -- The Obama administration told school districts and universities they may consider the race of students in programs to foster diversity, revoking Bush administration guidelines that had advocated race-neutral enrollment policies.

The U.S. Justice Department and Education Department laid out approaches schools can use to promote racial diversity in documents released today. The policy represents the administration’s interpretation of three recent Supreme Court decisions that have limited the use of race, without outlawing it altogether.

Full Story: http://www.businessweek.com/news/2011-12-02/obama-administration-says-schools-may-use-race-for-diversity.html

OCR and Justice Release Joint Guidance on Voluntary Efforts to Promote Racial Diversity

The Department of Justice's Civil Rights Division and the Department of Education's Office for Civil Rights have just released new guidance on how educators can lawfully pursue voluntary policies to achieve diversity or avoid racial isolation.

The Dear Colleague letter can be reached at: http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201111.html. As Assistant Attorney General Tom Perez stated, "Diversity is a remarkable source of strength."

A copy of the joint guidance follows.

Dear Colleague Letter
OFFICE OF THE ASSISTANT SECRETARY
U.S. Department of JusticeCivil Rights Division
U.S. Department of EducationOffice for Civil Rights
More Resources
Dear Colleague LetterPDF (136K)
Guidance ESEPDF (290K)
Guidance PSEPDF (124K)

December 2, 2011

Dear Colleague:

Today, the United States Department of Education (ED) and the United States Department of Justice (DOJ) are jointly issuing guidance that explains how educational institutions can lawfully pursue voluntary policies to achieve diversity or avoid racial isolation within the framework of Titles IV and VI of the Civil Rights Act of 1964, the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution, and current case law. The guidance is presented in two documents, one for elementary and secondary schools and the other for postsecondary institutions. This guidance replaces August 2008 letters titled “The Use of Race in Assigning Students to Elementary and Secondary Schools” and “The Use of Race in Postsecondary Student Admissions” issued by ED’s Office for Civil Rights (OCR). Concurrent with the issuance of this guidance, the August 2008 letters are withdrawn.
The new guidance documents review three key Supreme Court rulings on the use of race by educational institutions, and provide examples of options that schools and postsecondary institutions may wish to consider in structuring programs that lawfully further diversity or reduce racial isolation. Both guidance documents provide examples of different educational contexts within which institutions may permissibly consider race to pursue their compelling objectives. For example, the elementary and secondary guidance discusses school districts’ options in areas such as student assignment, student transfers, school siting, feeder patterns, and school zoning. Similarly, the postsecondary guidance provides examples of how colleges and universities can further diversity in contexts including admissions, pipeline programs, recruitment and outreach, and mentoring, tutoring, retention, and support programs.
OCR and DOJ are available to provide technical assistance, and welcome questions about the application of this guidance to educational institutions. To submit questions or receive technical assistance, please contact the OCR regional office for your state or territory at http://wdcrobcolp01.ed.gov/CFAPPS/OCR/contactus.cfm. To contact DOJ for assistance, please contact the Educational Opportunities Section at (202) 514-4092, (877) 292-3804, or education@usdoj.gov.
Sincerely,
/S/
/S/
Russlynn Ali
Assistant Secretary
Office for Civil Rights
U.S. Department of Education
Thomas E. Perez Assistant Attorney General Civil Rights Division U.S. Department of Justice
Attachments

http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201111.html

Administration Issues Civil Rights Guidance on American Recovery and Reinvestment Act

The Director of the Office of Management and Budget, Peter Orszag, issued preliminary guidance on the federal agencies' use of funds appropriated under the recently-passed stimulus bill. The guidance, issued on February 18, 2009, includes language that emphasizes the importance of federal agency compliance with existing equal opportunity statutes, regulations and executive orders:

1.6 What additional responsibilities exist for Executive Branch agencies?

The Executive Branch shall distribute Recovery Act funds in accordance with:
"All anti-discrimination and equal opportunity statutes, regulations, and Executive Orders that apply to the expenditure of funds under Federal contracts, grants, cooperative agreements, loans, and other forms of Federal assistance. Grant-making agencies shall ensure that their recipients comply with Title VI of the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972, Section 504 of the Rehabilitation Act of 1973, the Age Discrimination Act of 1975, and any program-specific statutes with anti-discrimination requirements. Generally applicable civil rights laws also continue to apply, including (but not limited to) the Fair Housing Act, the Fair Credit Reporting Act, the Americans With Disabilities Act, Title VII of the Civil Rights Act of 1964, the Equal Educational Opportunities Act, the Age Discrimination in Employment Act, and the Uniform Relocation Act.

To review the entire OMB guidance, go to: http://www.whitehouse.gov/omb/assets/memoranda_fy2009/m09-10.pdf

The Use of Race in Postsecondary Student Admissions

OCR Guidance: The Use of Race in Postsecondary Student Admissions
US. Department of Education
Office for Civil Rights


The Office for Civil Rights in the U.S. Department of Education issues this guidance to provide postsecondary institutions with information on how OCR assesses the use of race in admissions consistent with Title VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d (Title VI). This guidance sets out the applicable Title VI principles, including pertinent standards enunciated by the U.S. Supreme Court in the past five years.

This guidance represents the Department’s current thinking on this topic. It does not create or confer any rights for or on any person. This guidance does not impose any requirements beyond those required under applicable law and regulations.
If you are interested in commenting on this guidance, please email us your comment at OCR@ed.gov or write to us at the following address: Assistant Secretary for Civil Rights, 400 Maryland Avenue, SW, Potomac Center Plaza, Washington, D.C. 20202-1100.
AUG 28 2008

Dear Colleague:
I am writing to clarify how the Office for Civil Rights (OCR) in the United States Department of Education evaluates whether the use of race in admissions by a postsecondary institution is consistent with Title VI of the Civil Rights Act of 1964 (hereinafter “Title VI”). OCR is responsible for enforcing Title VI, which prohibits discrimination based on race, color, or national origin by recipients of Federal financial assistance, including public, and most private, postsecondary institutions.
OCR has received numerous inquiries, from postsecondary institutions, individuals and private organizations, about the impact of the Supreme Court’s 2003 decisions in Gratz v. Bollinger, 539 U.S. 244 (2003) (“Gratz”), and Grutter v. Bollinger, 539 U.S. 306, (2003) (“Grutter”). In Grutter v. Bollinger, 539 U.S. 306 (2003), the Supreme Court (hereinafter “the Court”) concluded, “student body diversity is a compelling state interest that can justify the use of race in university admissions.” The Court therefore found lawful the way that the Law School at the University of Michigan had sought to achieve diversity. In contrast, the Court found the use of race in the related case of Gratz v. Bollinger, 539 U.S. 244 (2003), to be unlawful. In Gratz, which involved the undergraduate college of the University of Michigan, the Court found unlawful the way the undergraduate school had made race “a decisive factor for virtually every minimally qualified underrepresented minority applicant.” Id. at 274. The undergraduate school had failed to consider “each applicant's individualized qualifications, including the contribution each individual's race or ethnic identity will make to the diversity of the student body, taking into account diversity within and among all racial and ethnic groups.” Id. at 277.
The Court’s response to the different approaches chosen by the Law School and undergraduate college provides broad parameters to guide postsecondary institutions through the constitutional and Title VI issues that arise if race (as well as color or national origin) is used in admissions. Specifically, the Court applies “strict scrutiny” to admissions policies in order to ensure that burdens placed on individuals because of their race are narrowly tailored to serve a compelling governmental interest.
Consistent with these decisions, OCR’s policy continues to be that racial classifications in admissions policies are impermissible unless they are “narrowly tailored” to meet a “compelling governmental interest” such as the remediation of past discrimination or, in the context of higher education, to achieve appropriate student body diversity. Due to their highly suspect nature, racial classifications will only be permitted if there exists “the most exact connection between justification and classification.” Id. at 270 (quoting Fullilove v. Klutznick, 448 U.S. 448, 537, 65 L. Ed. 2d 902, 100 S. Ct. 2758 (1980) (Stevens, J., dissenting))
As a result, if a postsecondary institution seeks to use racial classifications in admissions, it will bear the burden of providing sufficient detail about its process to enable OCR to determine whether the institution is complying with Title VI. Under the Fourteenth Amendment to the U.S. Constitution, a public educational institution is the government actor that must be able to justify its decision to use racial classifications. Both public and private institutions receiving Federal financial assistance are required under Title VI to be able to justify these decisions. The Title VI regulations require recipients to keep records and to submit “timely, complete and accurate compliance reports” when such a report is necessary to enable OCR to ascertain whether the recipient is in compliance with the Title VI regulations, 34 C.F.R. § 100.6(b).
When developing admissions policies, postsecondary institutions must comply with the constitutional principles of equal protection. OCR is available to provide more detailed technical assistance to individual postsecondary institutions on a case-by-case basis.
The parameters outlined below describe factors that have been and will continue to be used by OCR in assessing whether the particular use of race in admissions by a postsecondary institution receiving Federal financial assistance is permissible. OCR will apply these parameters when undertaking Title VI investigations and in OCR’s other applicable enforcement activities:
Use of race must be essential to an institution’s mission and stated goals;
The diversity sought by the postsecondary institution must be broader than mere racial diversity;
Quotas are impermissible;
Providing individualized consideration is paramount and there must be no undue burden on other-race applicants;
Before using race, there must be serious good faith consideration of workable race-neutral alternatives; and
Periodic reviews are necessary and the use of race must have a logical end point.
I look forward to continuing our work together to ensure equal access to education and to promote educational excellence throughout the nation. Thank you for your efforts on behalf of America’s students.

Sincerely,
Stephanie J. MonroeAssistant Secretaryfor Civil Rights
http://www.ed.gov/about/offices/list/ocr/letters/raceadmissionpse.html