Politics & Policy

Bad Guidance on Racial Preferences

Justice Lewis F. Powell, Jr.
The Obama administration encourages schools to push legal boundaries.

As the K–12 school year draws to a close, school boards and superintendents will have to decide about tweaking student assignments for the fall. As they do so, they will also have to decide how much weight to give to the Obama administration’s “Guidance on the Voluntary Use of Race to Achieve Diversity and Avoid Racial Isolation in Elementary and Secondary Schools,” which was released jointly late last year by the Education and Justice Departments.

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.

#ad#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.

#page#The administration’s accompanying press release asserts that the guidance is “primarily based on three Supreme Court decisions, Parents Involved in Community Schools v. Seattle School District No. 1, Grutter v. Bollinger and Gratz v. Bollinger.” Yet in two of these three decisions (PICS and Gratz), the Court struck down the race-based policies at issue. In the third (Grutter), it narrowly upheld them, by a 5–4 vote, only after subjecting the use of race there to constitutional “strict scrutiny.”

What’s more, the Court has now — subsequent to the guidance’s release — granted review in Fisher v. University of Texas. In this case, which challenges the use of racial preferences in undergraduate admissions at that school, the Court will reconsider, clarify, and possibly even overturn Grutter (there are a number of reasons this may well happen, such as the fact that Justice O’Connor, who cast the decisive fifth vote in Grutter, has now been replaced by the more conservative Justice Alito). It would make no sense for a school system to embrace race-based policies in reliance on Grutter before Fisher is decided, since if the use of such policies is scaled back for universities, it will be scaled back at least as much for K–12 schools (the Court has made clear that the latter have less legal leeway than the former).

#ad#Even before review was granted in Fisher, it was very odd that the guidance should have relied on the PICS decision, since five justices voted to strike down the race-based K–12 assignments there. But some have opined that the outcome there was reminiscent of the Court’s 1978 Bakke decision, in that both cases saw 4–1–4 splits, and that the opinion by a lone justice (Justice Powell in Bakke, Justice Kennedy in PICS) states what is, as a practical matter, “the law.”

There are some important differences, however. In particular, Powell’s decision stood alone because it went off in a direction — that the educational benefits of “diversity” amount to a compelling interest — that was completely different from what the other eight justices wrote. By contrast, Kennedy’s rationale is intermingled with Chief Justice Roberts’s opinion for the other justices in the majority, which is unsurprising since, on these issues, Kennedy has consistently been a part of the Court’s conservative majority. Kennedy did not join a word of the liberals’ dissenting opinions in PICS, and he did join Roberts much of the time, so to know “the law” you really have to read both the Roberts and Kennedy opinions. My quotes from Roberts and Kennedy above all came from the PICS decision.

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, legal help, and “technical assistance” to schools that want to engage in racial and ethnic discrimination. 

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?

I’ve been hard on this guidance, so let me end on two more positive notes. It is good that it at least recognizes the ascending order of legal difficulty as one moves from policies that are truly nondiscriminatory to those that are “race neutral” (but still racially motivated) to “race based” (but not on an individual basis — for example, by neighborhood) to race-based (by individual).

And by saying, “It will be helpful” for school districts to “have documents” or “maintain documents” describing how racially preferential programs came to be designed, the guidance will facilitate Freedom of Information Act requests for such documents and subsequent legal challenges to such programs. The Center for Equal Opportunity and other anti-preference groups will take advantage of that.

Bottom line: School districts should ignore skin color and national origin in deciding which students should go to which schools. Period. 

— Roger Clegg is president and general counsel of the Center for Equal Opportunity.

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