Obama Administration Gives Colleges Broad Leeway on Affirmative Action

December 02, 2011

The Obama administration on Friday released its first guidelines on affirmative action in higher education. In doing so, it showed that it takes an expansive view of the educational benefits of diversity and intends to give colleges and universities considerable leeway in determining whether they can achieve desired levels of diversity without explicitly considering applicants' ethnicity or race.

The Education and Justice Departments jointly released the guidelines, which were accompanied by separate guidance from the two agencies on the integration of elementary and secondary schools. In issuing the new guidance, the two agencies said they were repealing the last round of such guidelines from the Education Department, issued under President George W. Bush in March 2008. That document had angered some advocates for minority students by appearing to discourage the use of affirmative action, telling colleges receiving federal aid that they may not consider race in admissions unless it is "essential" to their "mission and stated goals."

The new guidelines, which drew praise on Friday from some of the same civil-rights groups that had objected to the old ones, appeared to actively encourage colleges to consider applicants' race if it was deemed necessary to achieve diversity. "Ensuring that our nation's students are provided with learning environments comprised of students of diverse backgrounds is not just a lofty ideal," the document argues. The benefits of students' participation in diverse educational environments, it says, "greatly contribute to the educational, economic, and civic life of this nation."

The release of the new guidelines comes as the U.S. Supreme Court is being urged by critics of affirmative action to take up a lawsuit challenging a decision by the University of Texas at Austin to revive its consideration of applicants' race and ethnicity in undergraduate admissions. Those who want the Supreme Court to refuse to hear the case—and, effectively, leave intact a federal appeals-court ruling upholding Texas' race-conscious admission policies—have until Wednesday to submit briefs arguing why the justices should not reconsider the appeals-court ruling.

The Obama administration weighed in on behalf of the University of Texas before the U.S. Court of Appeals for the Fifth Circuit, strongly endorsing Texas' argument that it needed race-conscious admissions policies because a state law guaranteeing admission to students at the top of their high-school classes had not provided the university with sufficient levels of diversity to reap the educational benefits it sought. The Obama administration is expected to take steps before the Supreme Court to try to keep that ruling from being overturned.

Several Fifth Circuit judges who disagreed with that court's decision issued a strongly worded dissent, echoed in the plaintiff's request for a Supreme Court hearing. They argued that the appellate court's ruling showed too much deference to the views of college administrators and failed to consider the success of the state's class-rank-based admission guarantee as an alternative to the university's consideration of race.

The guidelines issued by the Obama administration on Friday suggest, however, that it does not plan to be in the business of second-guessing colleges' decisions on such matters. "Institutions are not required to implement race-neutral approaches if, in their judgment, the approaches would be unworkable," the new guidelines say. "In some cases," they add, "race-neutral approaches will be unworkable because they will be ineffective to achieve the diversity the institution seeks. Institutions may also reject approaches that would require them to sacrifice a component of their educational mission or priorities," such academic selectivity.

In a statement accompanying the new guidance, Attorney General Eric H. Holder Jr. said, "Diverse learning environments promote development of analytical skills, dismantle stereotypes, and prepare students to succeed in an increasingly interconnected world." The guidelines themselves argue that learning environments comprising students from diverse backgrounds "provide an enhanced educational experience for individual students," that interactions between students of different backgrounds "can raise the level of academic and social discourse both inside and outside the classroom," and that educational institutions that create such environments "help students sharpen their critical-thinking and analytical skills."

Although the U.S. Supreme Court accepted such assertions of the educational benefits of diversity when it upheld race-conscious admission policies in two 2003 decisions involving lawsuits against the University of Michigan, even some educational researchers who strongly support race-conscious admission policies now acknowledge that it is naïve to believe such policies always bring educational benefits, and sometimes they can actually cause educational harm.

Among the advocates for minority students who on Friday welcomed the Obama administration's new guidance, John A. Payton, president of the NAACP Legal Defense and Educational Fund, called it "an important reaffirmation of the federal government's commitment to the vital work of redeeming the promise" of the Supreme Court's landmark Brown v. Board of Education school-desegregation decision. The Leadership Conference on Civil Rights issued a statement that said: "This thoughtfully crafted guidance affirms, as a majority of Supreme Court justices have recognized, that K-12 schools, colleges, and universities have compelling interests in ensuring integration and alleviating racial and economic isolation in our schools."

But Edward Blum, director of the Project on Fair Representation, an advocacy group that has helped mount the legal challenge against the race-conscious admissions policy of the University of Texas, told The Wall Street Journal that the administration "appears to be stretching an outdated doctrine which only encourages school administrators to use racial classifications and preferences to achieve racial proportionality."

Roger B. Clegg, president of the Center for Equal Opportunity, which opposes racial and ethnic preferences, issued a statement arguing that “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.” Nevertheless, he said, the Obama administration may have done conservatives a favor, because its new guidance “shows the necessity of the Supreme Court granting review” of the University of Texas case.