Colleges May Keep Race-Conscious Admissions 'With Care,' U.S. Officials Say

September 27, 2013

Colleges still may lawfully consider race as one of several factors in admissions as long as their programs are narrowly tailored to meet a compelling interest in campus diversity, federal officials said on Friday.

Their remarks echoed the language in a new document released by the U.S. Departments of Education and Justice to clarify the implications of the U.S. Supreme Court's recent ruling in Fisher v. University of Texas at Austin.

The ruling, issued in June, has sparked questions about the future of race-conscious admissions programs, the demise of which has been predicted by some college presidents and legal scholars. In remanding the case to the U.S. Court of Appeals for the Fifth Circuit, the Supreme Court ruled that a lower court had failed to apply a strict-scrutiny standard in reviewing the university's consideration of race in admissions.

The ruling led some experts to conclude that the court will now hold colleges to a higher standard when determining whether race-conscious policies are necessary for achieving racial diversity. Some critics of affirmative action have even said that colleges must first try race-neutral alternatives before they may consider race in admissions.

But during a panel discussion here on Friday, Jocelyn Samuels, acting assistant attorney general in the Justice Department's Civil Rights Division, said Fisher had not changed longstanding legal precedent. The ruling, she said, "requires that universities go about this business with care, but it can be done ... it has been done."

The document, "Questions and Answers about Fisher v. University of Texas at Austin," describes this summer's ruling as an affirmation of the Supreme Court's 2003 ruling in Grutter v. Bollinger. One question asks, "Did the Supreme Court change what colleges and universities must do to narrowly tailor their admissions programs to meet the compelling interest in diversity?"

The answer: "No."

A 'Workable Alternative'

The explanation that follows includes a discussion of so-called race-neutral admissions policies. Since the Fisher ruling, some admissions officers and general counsels have asked how, exactly, their institutions should go about determining whether other means of achieving racial diversity would work.

"Before taking into account an individual student's race in the admissions process," the document says, "colleges and universities must determine that available, race-neutral alternatives do not suffice to achieve the benefits of diversity."

But that does not mean colleges must adopt any such alternatives before considering race, said Catherine E. Lhamon, assistant secretary in the Education Department's Office for Civil Rights. "They don't have to be tried and used first," she said.

In 2011 the department released a document on the use of race to achieve diversity at colleges. That guidance, she said, still applies. "An institution may deem unworkable," the document says, "a race-neutral alternative that would be ineffective or would require it to sacrifice another component of its educational mission." Colleges, Ms. Lhamon said, must assess whether there is a "workable alternative," and whether it could be used at a "tolerable expense."

Ms. Samuels seconded that advice. A college, she said, need not test every possible race-neutral program to conclude such strategies would not work on its campus.

"'Workable race-neutral alternatives' is something that depends on the facts of any particular case," she said. Many factors, such as the size of a given college's endowment, she said, might make a specific admissions program more or less practical.

Discussing admissions policies is one thing; compiling evidence of those discussions is another. "It is helpful to document all your thinking about this," Ms. Samuels said. She advised college officials to keep records of the race-neutral alternatives they consider, and of their reasons for not using them.

Moreover, Ms. Samuels suggested, a college must define the benefits of diversity, and establish a means of assessing institutional progress. "What are the standards," she said, "by which you are going to evaluate whether you have, in fact, achieved your goals for diversity?"