U.S. Agencies Jointly Issue Guidelines on the Voluntary Use of Race to Achieve Diversity, but California Constitution’s Limits on Consideration of Race Still Apply

On December 2, 2011, the U.S. Departments of Education (ED) and Justice (DOJ) jointly issued guidelines on the voluntary use of race to achieve diversity in postsecondary education and to achieve diversity and avoid racial isolation in elementary and secondary schools 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, which is presented in two documents, one for postsecondary institutions and one for K-12 schools, replaces August 2008 letters issued by ED’s Office for Civil Rights (OCR).

The guidance documents reflect the view of ED and DOJ that there is a compelling interest in achieving a diverse student body, and, in the context of K-12 education, avoiding racial isolation. Their intent is to address the degree of flexibility that educational institutions have to take proactive steps, in a manner consistent with principles articulated in Supreme Court opinions, to meet these compelling interests.  As the Supreme Court has made clear, such steps can include taking account of the race of individual students in a narrowly tailored manner.  The documents will no doubt prompt further discussion and debate of complex legal and policy issues, and are therefore likely to be of interest to many educators regardless of whether their institutions are currently contemplating the adoption of specific practices according to the guidelines.  However, California’s public colleges, universities, school districts, and county offices of education must also continue to comply with provisions of the California Constitution that more strictly limit the consideration of race, among other factors, for purposes of achieving diversity.

Legal Framework - Federal

As to the legal framework, the postsecondary guidance reviewed Grutter v. Bollinger (2003) 539 U.S. 306, 123 S.Ct. 2325 and Gratz v. Bollinger (2003) 539 U.S. 244, 123 S.Ct. 2411.  In Grutter, the Court recognized that the benefits of student body diversity in postsecondary institutions are “substantial,” as well as “important and laudable” and accepted the law school’s goal to achieve broad diversity where race was “‘only one element in a range of factors a university properly . . . consider[ed] in attaining the goal of a heterogeneous student body.’”  It further concluded the law school could seek a “critical mass” of students of underrepresented groups in order dispel stereotypes about minorities and to ensure there are enough members of underrepresented minority groups to participate in the classroom without feeling isolated or feeling like spokespersons for their race.

Having found there was a compelling interest in achieving diversity, the Court next evaluated whether the law school’s admissions program was narrowly tailored.  It looked to several criteria in concluding the admissions program was narrowly tailored: the school had considered workable race-neutral alternatives; admissions program provided for flexible and individualized review of applicants; the school did not unduly burden students of any racial group; and the school’s assurance it would “terminate its race-conscious program as soon as practicable” so that consideration of race was limited in time and subject to periodic review.

In Gratz, the Court accepted that the undergraduate college had a compelling interest in achieving diversity, including racial diversity, in its undergraduate student body.  However, the Court found the university had failed to narrowly tailor its admissions program to achieve that interest because the university used a point system that automatically awarded 20 points, one-fifth of the points required to guarantee admission, to every “underrepresented minority” applicant solely because of race.  Thus, race was unlawfully “a decisive factor for virtually every minimally qualified underrepresented minority applicant.” Additionally, the university failed to provide an individualized review of applicants. The Court rejected the argument that the sheer volume of applications for admission made individualized review impossible.

The K-12 guidance reviews Parents Involved in Community Schools v. Seattle School District No. 1 (2007) 551 U.S. 701, 127 S.Ct. 2738.  While the Court in this decision declined to rule on whether the interests that were asserted by certain Seattle and Louisville school districts were compelling, it held that the two districts had failed to demonstrate that their use of individual students’ race was narrowly tailored to meet their goals.  Using the factors articulated in Grutter, the Court noted that: serious consideration of race-neutral alternatives had not been shown; the use of race had minimal impact, casting doubt on whether such was needed; the districts defined diversity in limited terms that did not adequately reflect the diversity within the districts; and the districts’ plans did not provide for a meaningful, individualized review of student assignments.

Both guidance documents provide examples of different educational contexts within which institutions may permissibly consider race to pursue their compelling objectives.  The postsecondary guidance discusses use of race in admissions, recruitment, pipeline programs, and in mentoring, tutoring, retention and support programs.  Similarly, the K-12 guidance discusses districts’ options in matters such as student assignment, student transfers, school and program siting, feeder patterns, school zoning, and grade realignment.

Legal Framework - California

The guidance, however, addresses only federal law, and is not the whole story. The California Constitution, Article 1, Section 31, approved by the voters as Proposition 209 in 1996, prohibits discrimination or “preferential treatment” based on race (among other factors) in public employment, public education, or public contracting, subject to certain exceptions, including actions required to establish or maintain eligibility for federally funded programs.

This provision of the California Constitution has been held by the courts to impose strict limitations on the ability of public entities to give any consideration to race in the provision of any benefit, and was the basis of a 2001 decision by the California Court of Appeal invalidating statutes providing for affirmative action in community college employment.  Connerly v. State Personnel Board (2001) 92 Cal.App.4th 16.  This and other decisions based on the California Constitution, Article 1, Section 31, are not affected by the recent federal guidance, and public higher education institutions, as well as K-12 agencies, must continue to adhere to them.

For more information, the guidance documents are available at the OCR website:  Postsecondary guidance; and K-12 guidance.

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