Promoting Racial Preferences
In two new memos, the Education Department encourages racial discrimination.


The main purpose of the Department of Education’s Office for Civil Rights is to ensure that American students do not face discrimination — a mission it fulfills both by handling actual complaints of discrimination and by issuing guidelines to help schools comply with the law. However, its two most recent guidance memos on the subject of “diversity” — one concerning elementary and secondary schools, the other regarding higher education — were designed for a different purpose entirely.

These memos, written in conjunction with the Civil Rights Division of the Justice Department, do not have the force of law. However, they do lay out the criteria by which the Obama administration will evaluate allegations of discrimination. They also encourage schools to discriminate on the basis of race, and to push the boundaries of Supreme Court precedent.

Whereas the Bush administration’s guidance memos on these topics were brief, to-the-point explanations of the limits the Supreme Court had put on racial preferences and the administration’s plans for enforcing them, the new memos enthusiastically endorse the use of racially biased policies. In regards to elementary and secondary schools, the guidance informs us that “racially diverse schools provide incalculable educational and civic benefits by promoting cross-racial understanding, breaking down racial and other stereotypes, and eliminating bias and prejudice.” It also asserts that “the academic achievement of students at racially isolated schools often lags behind that of their peers at more diverse schools” and that “racially isolated schools often have fewer effective teachers, higher teacher turnover rates, less rigorous curricular resources (e.g., college preparatory courses), and inferior facilities and other educational resources.” The memo cites no evidence for these claims — though, in fairness, the last two are rendered virtually meaningless anyhow by their use of the word “often.”

In higher education, we are told, “the benefits of participating in diverse learning environments flow to an individual, his or her classmates, and the community as a whole. These benefits greatly contribute to the educational, economic, and civic life of this nation.” This is another rather creative evaluation of the evidence.

To gain these supposed benefits, the memos encourage schools to push the envelope rather than to stay comfortably within the limits of the law. The higher-ed guidance is clearly meant to help the University of Texas at Austin defend its affirmative-action program in Fisher v. UT Austin, a case likely to be heard by the Supreme Court soon; and the elementary- and secondary-education memo pushes back against a 2007 Supreme Court decision limiting the use of race in assigning students to schools.

In the late ’90s, following a court ruling that invalidated racial preferences, the state of Texas passed a Top 10 Percent law — meaning that the top 10 percent of each high school’s graduating class is guaranteed admission to any state college. This is a way of ensuring that even students in the state’s poorest districts — disproportionately, blacks and Hispanics — have a chance of getting into college. While black and Hispanic enrollment at UT-Austin still declined because of the court ruling striking down preferences, it did so only modestly, in part thanks to this policy (from 4 percent to 3.3 percent for blacks and from 15.8 percent to 13.7 percent for Hispanics).