Sept. 19

Guidance or Spin on Affirmative Action Rulings?

More than five years ago, the U.S. Supreme Court handed down two landmark decisions about the consideration of race in college admissions decisions — permitting race to be considered, but only in some circumstances.

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Citing “numerous inquiries,” the U.S. Education Department’s Office for Civil Rights recently issued a “Dear Colleague” letter to colleges, outlining its interpretations of the rulings. Calling systems that rely on race “highly suspect,” the department draws attention to the limits on the consideration of race. While everyone agrees that that the Supreme Court did set limits, the letter is being criticized in some quarters as designed to discourage colleges from legal and educationally necessary use of affirmative action.

OCR interpretations of the state of the law are important because the agency investigates complaints from people who believed they have suffered illegal discrimination in education. Many times colleges will settle complaints with OCR, even saying that they disagree with the agency, to avoid a protracted fight with the agency. On the other hand, the Bush administration is in a lame duck stage that gives colleges more leeway.

The OCR’s new letter and the controversy over it concerns what everyone agrees was a “yes, but…” answer from the Supreme Court on the legality of affirmative action. While the Supreme Court absolutely barred quotas (as it had previously) and affirmed that race and ethnicity could be considered, it is in the limitations that the Supreme Court set that the legal fights continue. Generally, the Supreme Court said that colleges needed to consider applicants — minority and white alike — as individuals, going through the same admissions system, and that there are broad reasons to pursue diversity.

After the Supreme Court decisions came down, many colleges adjusted their admissions policies, with systems that gave points for minority status replaced with programs that involved more individual consideration of applicants. Other colleges added essays or eliminated the use of standardized test scores.

In its letter to colleges, OCR reminded them that they “bear the burden of providing sufficient detail” about programs so the agency can judge their legality. The agency then described the “parameters” it would use in evaluating the consideration of race in admissions:

• “Use of race must be essential to an institution’s mission and stated goals.”
• “The diversity sought by the postsecondary institution must be broader than mere racial diversity.”
• “Providing individualized consideration is paramount and there must be no undue burden on other-race applicants.”
• “Before using race, there must be serious good faith consideration of workable race-neutral alternatives.”
• “Periodic reviews are necessary and the use of race must have a logical end point.”

Taking issue with the letter on Thursday was the NAACP Legal Defense Fund, which noted that the legal standards were set by the Supreme Court five years ago, and raised questions about why this guidance would be arriving now. “There is no reason for such clarification at this time,” the Legal Defense Fund said in a statement. “Rather, it seems that more than five years after those decisions, OCR is issuing this letter to further its efforts to subvert and give unnecessary pause to higher education institutions that are pursuing a racially diverse student population in a constitutional manner.”

The letter is part of a pattern in which “OCR has supported and even facilitated efforts to shut down programs that seek to increase educational access and opportunity for students of color and women,” the fund said. In the case of this letter, the Legal Defense Fund said that OCR was minimizing the ways the court upheld the consideration of race, while stressing and exaggerating what colleges can’t do.

“Contrary to OCR’s assertion, the Supreme Court did not hold that ‘the use of race must be essential to an institution’s missions and goals’; instead the Court indicated that a school’s ‘educational judgment that [student body] diversity is essential to its educational mission is one to which we defer’ and the use of race must be narrowly tailored to achieve the school’s recognized interest in student body diversity,” the Legal Defense Fund statement said.

The fund also noted that the Supreme Court did not define as a quota any “attention” to numbers or goals of achieving a critical mass of minority students. The bottom line for the fund: “Consistent with these requirements, higher education institutions can and should continue to take steps to create and maintain a diverse student body, and to open the pathways of leadership to members of all racial and class backgrounds.”

The Center for Equal Opportunity, however, praised OCR. Roger Clegg, the center’s president, said that the letter, “while belated, is a helpful and legally sound description of what the Supreme Court held.”

While the Supreme Court did not bar the use of race, Clegg said, “any such discrimination is extremely difficult to justify and will be viewed with great skepticism by the Court.” So OCR “is quite correct to state that it will view such discrimination with similar skepticism,” he said. Clegg said that Thursday’s Legal Defense Fund statement shows that organization to “prefer that politically correct discrimination be treated as no big deal.”

Ada Meloy, general counsel at the American Council on Education, said that she thought the Legal Defense Fund analysis was “more careful and accurate” than OCR’s. Maloy noted that OCR has been encouraging colleges to use “race neutral alternatives,” and that she read the letter as “kind of discouraging” of policies that consider race.

She also noted the lame duck status of the Bush administration. “I see this as perhaps the final proclamation on this issue from this administration,” she said. “I wouldn’t see most colleges being thrown off by this.”

— Scott Jaschik

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