WASHINGTON, D.C. – The new federal guidance on the use of race in college admissions may not constitute new legal doctrine, but it still represents an “important political signal” that the Obama administration is supportive of efforts to diversify America’s colleges and universities.
That is the reaction among a chorus of diversity proponents and a college admissions official on the guidance issued jointly last week by the U.S. Department of Education and the U.S. Department of Justice.
“We could just as easily have an administration that is hostile to the higher education community’s effort to diversify students, faculty and the community,” said Barmak Nassirian, associate executive director for external relations at the American Association of College Registrars and Admissions Officers.
“It is obviously happy news when you have an administration that supports our efforts,” Nassirian continued. “That’s a very practical impact. That’s not insignificant.”
Shirley J. Wilcher, executive director of the American Association for Affirmative Action, voiced similar laudatory remarks for the guidance.
“This is important because an institution doesn’t want to run afoul of the federal government or incur an investigation because it has not properly interpreted a Supreme Court decision,” Wilcher said. “That’s why colleges and universities were waiting to hear how this administration was going to interpret the law as it relates to diversity.”
“And it has in a way that—at least in our view—is consistent with the (Supreme Court’s) decision in Grutter and Gratz.” Wilcher added.
Wilcher was referring to the 2003 Supreme Court decisions that upheld—while striking down part of—the University of Michigan’s admissions policy.
Both decisions are cited in the guidance titled “Guidance on the Voluntary Use of Race to Achieve Diversity in Postsecondary Education.” The guidance was jointly issued from the Office for Civil Rights within the U.S. Department of Education and the Civil Rights Division of the U.S. Department of Justice.
In the Grutter decision, the guidance states, the Court held that postsecondary institutions “have a compelling interest in the benefits that flow from a diverse student body.”
It notes how, in the Gratz decision, the Court “struck down the University’s undergraduate admissions program, however, because the University used a point system that automatically awarded 20 points, one-fifth of the points required to guarantee admission, to every ‘underrepresented minority’ applicant solely because of race.”
The guidance offers this advice to colleges and universities as they craft their diversity policies in the college admissions process:
When an institution is taking an individual student’s race into account in an admissions or selection process, it should conduct an individualized, holistic review of all applicants. That is, the institution should evaluate each applicant’s qualifications in a way that does not insulate any student, based on his or her race, from comparison to all other applicants. An institution may assign different weights to different diversity factors based on their importance to the program. Race can be outcome determinative for some participants in some circumstances. But race cannot be given so much weight that applicants are defined primarily by their race and are largely accepted or rejected on that basis.
Conducting an individualized review will help to ensure that the institution considers the impact of its decision-making on all its applicants. Finally, the institution should periodically review its programs to determine whether the use of racial classifications remains necessary and should modify its practices as needed.
“It is significant in that it clearly states that colleges and universities can take race into account to promote diversity consistent with the way the Supreme Court decision was written in 2003,” Wilcher said. “That means—at least during the Obama administration—colleges and universities can affirmatively act to promote diversity consistent with the guidance given by this administration, and they need not be concerned about government investigations.”
However, the memo itself came with the caveat that the issues it addresses “relate to a complex area of the law,” and encouraged colleges and universities to contact the Department of Education or the Department of Justice “with questions or for further assistance in applying the guidance to a specific situation.”
While diversity proponents hailed the guidance as a positive sign, others sounded caution about investing too much stock in the practical effect of the guidance, especially since justices in the Supreme Court could opt to revisit the issue of race in college admissions in the pending Fisher v. University of Texas, a case in which the school’s use of race and ethnicity in its admissions practices has been challenged.
“If they do, then the Obama guidance becomes much less relevant,” said Richard D. Kahlenberg, senior fellow at The Century Foundation.
“The big question looming in everyone’s mind is whether now, under the law, affirmative action will change with this University of Texas case,” Kahlenberg said, noting that the makeup of the court is “more conservative than it was in 2003.”
Opponents of race-based affirmative action say the law already disfavors the use of race and ethnicity in college admissions and portrayed the Obama administration as trying to help post-secondary institutions sidestep this aspect of the law.
“The Supreme Court has made clear that the use of racial and ethnic classifications and preferences is highly disfavored—while universities are permitted to use racial classifications if they conclude there are compelling educational benefits in doing so, this action triggers strict scrutiny and is presumptively illegal,” Roger Clegg, president of the Center for Equal Opportunity, which opposes the use of race in college admissions, wrote in a recent opinion piece.
“Further, the Court deferred to a university’s determination that there were such compelling educational benefits; the federal government is entitled to no such deference, and it has no warrant to be pushing other universities in this direction,” Clegg wrote. “And yet here is the federal government going out of its way to facilitate such discrimination.”
Clegg also questioned the timing of the guidance and suggested that it might have been issued so that it can be cited in the pending University of Texas case.
Although Kahlenberg, of The Century Foundation, is a proponent of class-based affirmative action, he also questioned the timing of the guidance.
“One question I have for the administration is about the timing of its publication,” Kahlenberg said. “This seems like an odd time to make a strong statement in support of race-based affirmative action given that the Supreme Court is about to decide whether to take this new case.
“It’s a bad thing for the Obama administration politically if the Supreme Court takes the Texas case and raises the issue of affirmative action, because for the administration, this is a no-win. Either he backs off on affirmative action, which would alienate his base, or he comes out very strongly in favor of a policy that is pretty unpopular with the broader American public. So it’s in the administration’s interest to avoid this issue. I found the timing of the publication of this guidance strange.”