Department of Education Issues Guidance on Race-Based Student Admissions and Assignment

By Jackie Wernz

Last month, the Department of Education and Department of Justice issued joint guidance on the consideration of race in student admissions and assignment policies in public schools.  The Departments issued separate guidance documents for elementary and secondary (K-12) schools and public institutions of higher education, although the documents offer fundamentally similar advice.  The legal soundness of policies that address racial diversity in student admissions and assignment policies remains an open question.  K-12 schools and public colleges and universities, however, that wish to consider such policies should at least comply with the guidelines set forth in the guidance to provide the most legal support for such policies.

The two guidance documents interpret important United States Supreme Court decisions from the last decade in the K-12 and higher education context.  In the three cases, the schools considered the individual race of students in admissions or assignment decisions.  The Court applied an exacting standard to the schools’ decisions, known as “strict scrutiny.”  Under that standard, a race-based decision can only be upheld if it is narrowly tailored to meet a compelling governmental interest.  In other words, the decision should closely fit the goals of achieving diversity or avoiding racial isolation and include race no more than necessary to meet those ends.  

Based on the Supreme Court’s decisions, the Departments set forth a number of key steps that schools can take to achieve diversity or avoid racial isolation in both K-12 and higher education schools.  Although there are some specific steps particular to the level of school involved (K-12 versus higher education), the general suggestions include:

• Considering race-neutral approaches that could be used, such as looking at socioeconomic status or parental education level.  The guidance made clear that, according to the Departments, schools may consider the racial impact of choices when selecting among race-neutral means;
• Considering an approach that relies on the general use of racial criteria only if a race-neutral measure is unworkable.  For example, in the K-12 context, consider the racial demographics of feeder schools or neighborhoods when giving assignment preferences, rather than the races of individual students.  Under the Departments’ reading of the relevant Supreme Court precedents, “strict scrutiny” would not be applied to such methods and so it would be much easier for a school to defend such methods than those that address individual students’ races;
• Considering approaches that take into account individual student race only if race-neutral and generalized race-based approaches would be unworkable to achieve the compelling interests.  Even when you take individual race into account, evaluate students as an individual and do not make race the deciding factor in admissions or assignment policies;
• Periodically reviewing the program to determine if the means chosen is needed; and
• Maintaining documents that describe the compelling interest and the process the institution followed to arrive at the decision, including alternatives considered, why they were rejected, and how the chosen method furthers the compelling interest.

The guidance then provides practical examples of actions that K-12 and postsecondary institutions may consider to foster diversity and limit racial isolation.  Schools may wish to review these examples for ideas of methods that could be used to address racial diversity among students.