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.
#ad#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).
Then, in 2003, the Supreme Court handed down its most recent affirmative-action cases, Grutter v. Bollinger and Gratz v. Bollinger. These decisions upheld the use of preferences with some restrictions: For example, schools may not use racial quotas or award massive amounts of credit solely on the basis of race, and must consider race-neutral alternatives to affirmative action in good faith. In response, UT-Austin implemented a policy that took race into account, layering explicit racial preferences on top of the Top 10 Percent policy. Several years later, two white students who failed to gain admission sued. The Supreme Court is likely to hear the case; given that the author of Grutter, Sandra Day O’Connor, has been replaced by a strong critic of affirmative action, Samuel Alito, the Court could substantially reduce the leeway permitted under its earlier rulings.
As Roger Clegg has noted on Phi Beta Cons, the Obama administration’s guidance arrived “just in time to be cited by the University of Texas in its brief to the Supreme Court in the Fisher case, due Wednesday.” The higher-ed guidance memo claims that if race-neutral methods of increasing diversity are not “workable” — because, for example, they can’t provide “the diversity the institution seeks” — schools may legally go ahead with racially discriminatory policies. The guidance does not mention that UT-Austin is facing a lawsuit for behaving in just this manner.
#ad#Regarding admissions to elementary and secondary schools, the Court’s most recent ruling is 2007’s Parents Involved v. Seattle School District No. 1. The Court struck down a Seattle district’s policy of using race as a “tiebreaker” in high-school admissions, as well as a Jefferson County, Ky., policy of using race to assign students to elementary schools and rule out transfer requests. However, many of the arguments the Court employed in this decision are easily skirted by switching to a different form of racial preferences. For example, it said that because the districts’ policies had such a small impact, they could have achieved the same amount of diversity using race-neutral policies — an argument that a school can easily answer by implementing a race-preference policy that has a bigger impact.
When the Bush administration offered guidance based on this ruling, it pointed out that the Court requires schools to consider race-neutral alternatives to preferences and “strongly encourage[d]” the use of these race-neutral methods. The Obama administration, by contrast, encourages schools to use preferences. Once again, schools are told not to bother with race-neutral measures if they’re not “workable,” a strategy that practically dares passed-over white applicants to sue.
The guidance also applies the Court’s higher-ed decisions to elementary and secondary education, claiming that a school is “authorized by Grutter” to “consider the race of individual students if it does so in a manner that is narrowly tailored to meet a compelling interest” — even though the Grutter decision was explicitly limited to “the context of higher education,” and even though the Parents Involved decision chided lower courts for trying to apply the decision to other contexts.
The Department of Education’s Office for Civil Rights is meant to enforce federal civil-rights laws. In encouraging schools to engage in racial discrimination, and in using “guidance” memos to put pressure on the Supreme Court, it has achieved something like the opposite of that.
— Robert VerBruggen is an associate editor of National Review.