School districts would be well-advised to ignore this twelve-page document, since it is bad policy — and will only get them into legal trouble.
The guidance does not provide a safe harbor. Indeed, consider the statement in its first paragraph that it “replaces the August 28, 2008 letter” issued by the Bush administration. How safe can the harbor be if its contours vary from administration to administration? Even if this administration won’t sue you, groups that prefer the Bush administration’s interpretation might.
As Education Week reported soon after the guidance was released, “Civil rights advocates and opponents of affirmative action are sharply divided on the wisdom — and legal soundness — of new Obama administration guidance.” The story also noted that the new guidance is “a departure from the Bush-era guidance,” and that it was immediately criticized by Ward Connerly and conservative litigator Sharon Browne of the Pacific Legal Foundation, which has played a key role over the years in challenging K–12 race-based policies. Browne said, “I would think that school districts, if they take this guidance to heart, are going to find themselves facing litigation.”
Browne is right. Race-based decisionmaking is permissible only if it furthers a “compelling” interest, the courts have ruled, and the guidance presumes that “diversity” is such an interest. But Justice Anthony Kennedy has warned that, in his view, whether diversity is compelling or not depends on its “meaning and definition,” and the guidance — apparently recognizing that such a definition would hinge on local circumstances — gives no such definition.
There are three hurdles that schools face in asserting that they have a compelling interest here. They show why schools should not want to engage in race-based decisionmaking, even if the lawyers say they may be able to get away with it.
First, while the guidance asserts that racially balanced student bodies yield what Chief Justice Roberts has described skeptically as “intangible socialization benefits,” the social-science data on which the guidance relies are controversial. If the benefits are not certain, but only possible, then their value must be accordingly discounted.
Second, at best, the benefits asserted are only marginal. It is not — and could not credibly be — asserted that effective education of K–12 children is impossible without racial classifications and racial balancing. Putting together the first and second points: Education may be a compelling interest, but a one-in-three chance, say, of achieving at best a small improvement in one part of the school’s educational mission is not.
And there’s a third problem as well: The inherent costs in classifying children by their skin color and treating them differently on that account are overwhelming and unavoidable. For an educational interest to be sufficiently compelling to justify racial discrimination, its purported educational benefits must significantly outweigh the various costs to the school system and to the wider society. Chief Justice John Roberts has made it clear that such “costs are undeniable” when school districts categorize people by skin color. In particular, it is ludicrous to argue that the way to teach students that race is an irrelevant characteristic and that racial essentialism is a bad thing is for the government to assign students on the basis of race.