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The Obama Administration’s Bad Advice on Affirmative Action



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The Obama administration’s Justice Department and Education Department issued jointly today some “guidance” for universities on the meaning of the Supreme Court’s decision last June in Fisher v. University of Texas. The guidance is unenlightening and misleading, and schools are well-advised not to rely on it.

The guidance predictably reiterates that the administration “strongly support[s] diversity,” but, as a legal matter, this is irrelevant if a school is sued, since whether in a particular case there are educational benefits stemming from such diversity is an educational judgment, not a political one. We know already that the Obama administration is more concerned about politically correct racial balancing than it is about educational outcomes: Witness its shameful opposition to Louisiana’s school-voucher system (although, to be perfectly fair, that may also be motivated in part by the administration’s obeisance to teachers’ unions).

The guidance is misleading in at least two important respects. First, it says the Fisher opinion “recognized” that there is a compelling interest in diversity, but the opinion did not revisit that issue, because it said it had not been asked to. (The accompanying press release, by the way, seems to acknowledge the guidance’s overstatement, and says only that the Court “preserved” this precedent, which is more accurate.) Likewise, when the guidance says that the educational benefits of diversity have been “long recognized by the Court,” this is also quite misleading, since there has been only one decision by the Court — Grutter v. Bollinger in 2003 — where racial preferences in university admissions have been upheld on that ground.

Second, the guidance acknowledges — it has to — but buries the one respect in which Fisher did break new ground, namely by stressing that “strict scrutiny” must indeed be strict, and that the amount of deference given universities will be less than many (including the Obama administration, which had urged a contrary outcome in the Fisher case) had thought prior to the Court’s decision. Despite the Court’s new warning, today’s guidance insists that the administration’s pre-Fisher guidance — at the university and the K–12 level — remains in effect, but of course relying on that is even more dangerous for schools (see also my critique of the old guidance here).

Today’s guidance is flimsy — a cover letter that is barely over one page, and seven superficial questions-and-answers that, at best, provide no insights not readily obvious to anyone who has read the Court’s 13-page Fisher opinion — and relying on any of it will only get schools into legal trouble. The guidance does not provide a safe harbor since it does not bind anyone outside the Obama administration, and of course the Obama administration would never challenge a racial-preference program, no matter how blatantly illegal it was.  Conversely, there are plenty of groups eager to challenge schools’ racial preferences, and indeed litigation against the University of Texas itself continues apace, with new briefs being filed on remand next month.

The fact is that this guidance is designed not to help schools follow the law, but to push them to adopt dubious race-based policies that the Supreme Court has warned against, and that have prompted lawsuits in the past, but that the Obama administration and its political allies stubbornly support. The whole tone of the new guidance is to offer encouragement to schools that want to engage in racial and ethnic discrimination: The administration promises that it “will continue to be a resource” for such schools.

It is as if the FBI offered eager encouragement to state and local police that wanted to engage in racial profiling without violating the law. Whether such discrimination may sometimes be legally permissible or not, why should the federal government issue a document the tone of which is not a stern warning about the many legal pitfalls, but cheerful encouragement to the police to do as much of it as they can get away with? Why urge schools to get as close to the legal line as they can, when it is unnecessary and bad policy for them to approach it at all?



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