On Friday afternoon, the U.S. Departments of Justice and Education released joint guidance to universities and school districts regarding the permissible use of race to promote diversity in elementary, secondary, and postsecondary education. The new sets of guidance–which were featured in a front-page story in the New York Times Saturday–are important because they suggest school districts and universities have more room to use race under U.S. Supreme Court precedents than had been indicated by George W. Bush’s administration. I generally think the new guidance is positive, particularly in the K-12 arena, though the timing and tone of the higher-education guidance raises some questions in my mind.
Two positive features of the new guidance stand out. First, it puts the administration on record as supporting school integration not only to promote tolerance among students (which it does) but also as an education reform strategy to raise academic achievement at the K-12 level. “Racially isolated schools often have fewer effective teachers, higher teacher turnover rates, less rigorous curricular resources” and the like, the guidance notes. This emphasis is something of a departure for an administration that has done little to address racial and economic segregation in schooling, and has been a big champion of charter schools, which, as a group, are even more segregated than regular public schools. This change is very welcome given decades of research suggesting one of the most powerful ways of raising academic achievement for disadvantaged youth is to give them a chance to attend an economically integrated school. On this score, I strongly agree with civil-rights groups who applauded the issuance of the guidance.
I also like the guidance’s emphasis that at both the K-12 and higher-education levels, before resorting to the use of race, institutions should explore the use of race-neutral alternatives. In higher education, for example, the guidance says that in implementing a diversity program, institutions should “consider whether there are race-neutral approaches that you can use, such as looking at socioeconomic status or the educational level attained by parents.” In college admissions, the document outlines five ideas for creating diversity, the first four of which are race-neutral and include innovative programs, such as suggesting that four-year colleges give a preference to applicants of all races from high schools or community colleges based on the school or two-year college’s socioeconomic or racial makeup. These types of approaches may have prompted the headline in the Times: “U.S. Urges Creativity By Colleges to Achieve Diversity.”
Having said that, the thrust of the legal advice is to give educators assurance that they have a great deal of institutional discretion to use race if, in their judgement, race-neutral approaches fail to produce sufficient diversity. In a key section, the guidance provides: “Institutions are not required to implement race-neutral approaches if, in their judgement, the approaches would be unworkable. In some cases, race-neutral approaches will be unworkable because they will be ineffective to achieve the diversity the institution seeks.” This language may suggest more latitude for colleges than courts are in practice going to provide.
As I’ve suggested elsewhere, in the higher-education arena, unlike nonselective admissions to K-12 schooling, the use of race is in tension with traditional ideas of merit-based selection; it would, therefore, be wise for the administration to begin backing a transition from affirmative action based on race to affirmative action based on class, given research finding that today socioeconomic barriers are seven times as large as racial barriers. Making a strong statement on behalf of racial preferences in higher education–at the very moment a conservative Supreme Court is deciding whether to take a new challenge to affirmative action as part of its docket–seems like poor timing, especially given that the administration has had almost three years to issue an alternative to the Bush administration’s August 2008 letters.
To my mind, the two guidance documents mostly represent a fair reading of Supreme Court precedents on school integration and affirmative action. But the law on racial preferences in higher education is more likely than not going to change in the near future, and I suspect universities will in the coming years be pushed much harder to come up with creative, race-neutral ways to promote diversity than the administration’s guidance suggests.