Center for Equal Opportunity

The nation’s only conservative think tank devoted to issues of race and ethnicity.

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Bad Guidance on Racial Preferences

As the K–12 school year draws to a close, school boards and superintendents will have to decide about tweaking student assignments for the fall. As they do so, they will also have to decide how much weight to give to the Obama administration’s “Guidance on the Voluntary Use of Race to Achieve Diversity and Avoid Racial Isolation in Elementary and Secondary Schools,” which was released jointly late last year by the Education and Justice Departments.  The guidance encourages schools to consider students’ race and ethnicity in deciding who goes to which school.


School districts would be well-advised to ignore this twelve-page document, since it is bad policy — and will only get them into legal trouble.

The guidance does not provide a safe harbor. Indeed, consider the statement in its first paragraph that it “replaces the August 28, 2008 letter” issued by the Bush administration. How safe can the harbor be if its contours vary from administration to administration? Even if this administration won’t sue you, groups that prefer the Bush administration’s interpretation might.

As Education Week reported soon after the guidance was released, “Civil rights advocates and opponents of affirmative action are sharply divided on the wisdom — and legal soundness — of new Obama administration guidance.” The story also noted that the new guidance is “a departure from the Bush-era guidance,” and that it was immediately criticized by Ward Connerly and conservative litigator Sharon Browne of the Pacific Legal Foundation, which has played a key role over the years in challenging K–12 race-based policies. Browne said, “I would think that school districts, if they take this guidance to heart, are going to find themselves facing litigation.”

Browne is right. Race-based decision making is permissible only if it furthers a “compelling” interest, the courts have ruled, and the guidance presumes that “diversity” is such an interest. But Justice Anthony Kennedy has warned that, in his view, whether diversity is compelling or not depends on its “meaning and definition,” and the guidance — apparently recognizing that such a definition would hinge on local circumstances — gives no such definition.

I give more details about the legal problems with the Obama administration’s guidance in my full discussion on National Review Online here.

But you know, the fact is that this guidance is designed not to help schools follow the law:  The aim is to push them to adopt dubious race-based policies that the Supreme Court has warned against, and that have prompted lawsuits in the past, but that the Obama administration and its political allies stubbornly support. 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.
It is as if the FBI offered eager encouragement to state and local police that wanted to engage in racial profiling without violating the law: Whether such discrimination may sometimes be legally permissible or not, why should the federal government issue a document the tone of which is not a stern warning about the many legal pitfalls, but cheerful encouragement to the police to do as much of it as they can get away with? Why urge schools to get as close to the legal line as they can, when it is unnecessary and bad policy for them to approach it at all?

I’ve been hard on this guidance, so let me end on a more positive note:  By saying, “It will be helpful” for school districts to “have documents” or “maintain documents” describing how racially preferential programs came to be designed, the guidance will facilitate Freedom of Information Act requests for such documents and subsequent legal challenges to such programs. The Center for Equal Opportunity will take advantage of that.

Bottom line: School districts should ignore skin color and national origin in deciding which students should go to which schools. Period.