The new guidelines issued by the Departments of Justice and Education replaced a 2008 document that essentially warned colleges and universities against considering race at all. Instead, the guidelines focus on the wiggle room in the court decisions involving the University of Michigan, suggesting that institutions use other criteria — students’ socioeconomic profiles, residential instability, the hardships they have overcome — that are often proxies for race. Schools could even grant preferences to students from certain schools selected for, among other things, their racial composition, the new document says.
“Post-secondary institutions can voluntarily consider race to further the compelling interest of achieving diversity,” reads the 10-page guide sent to thousands of college admissions officials on Friday afternoon. In some cases, it says, “race can be outcome determinative.”
The administration issued a parallel 14-page outline on Friday for the nation’s 17,000 public school districts, explaining what government lawyers consider to be acceptable ways that educators can seek to reduce racial segregation, which has been increasing nationwide.
The two documents, issued as the presidential campaign heats up and as the Supreme Court considers whether to hear a new affirmative action case, were designed to give educators a clear administration interpretation of three high court cases that, since 2003, have limited the use of race in admissions, zoning and other school policies.
The contrast with the Bush guidelines interpreting the same three cases is stark. Where the Bush administration’s letter in 2008 states, “Quotas are impermissible,” the 2011 version says “an institution may permissibly aim to achieve a critical mass of underrepresented students.” Even in addressing the same principles, the framework is practically reversed.
Bush guidelines: “Before using race, there must be a serious good faith consideration of workable race-neutral alternatives.”
Obama guidelines: “Institutions are not required to implement race-neutral approaches if, in their judgment, the approaches would be unworkable.”
Colleges seeking to increase diversity while not running afoul of Supreme Court guidelines, the new document says, “could select schools (including community colleges) based on their demographics (e.g., their racial or socioeconomic composition), and grant an admission preference” to graduates of those schools. They could also “select high schools for partnership” based, among other things, on “racial composition of the school’s student body” and former partnerships with historically black colleges and universities”; consider race as they select students for mentoring programs; and sponsor retention or support programs that highlight, for example, “the accomplishments of Latino business leaders.”
Ada Meloy, general counsel for the American Council on Education, which represents 1,800 universities and colleges, predicted that educators would immediately begin to pursue ways to draw more racial minorities, as the new guidelines would ease fears of legal challenge.
“University administrators have been confused about how they could follow the court’s rulings and still achieve the benefits of diversity,” Ms. Meloy said. “So they will welcome this practical, step-by-step set of directions.”
For kindergarten through 12th grade, the guidelines tell school districts that they can shape policies on locating schools, drawing attendance boundaries and governing student transfers to achieve a better racial mix. For example, a school district with two elementary schools with distinctly different demographics could consider making one school serve kindergarten through second grade and the other grades 3 to 5 in order to force a better mix.
“Diverse learning environments promote development of analytical skills, dismantle stereotypes and prepare students to succeed in an increasingly interconnected world,” Attorney General Eric H. Holder Jr. said in a statement. “The guidance announced today will aid educational institutions in their efforts to provide true equality of opportunity.”
Lee C. Bollinger, an advocate of affirmative action, was the named defendant, as president of the University of Michigan, in the two 2003 Supreme Court cases that laid down new markers on the permissible use of race in admissions. He described the new guidelines as “perfect.”
“It’s a very fair interpretation of what the court decided,” said Mr. Bollinger, a First Amendment scholar who is now president of Columbia University, “which is primarily that race can be one of many factors, and as long as your policies truly embody that approach, you’ll be fine, and can strive for diversity in all its benefits.”
In Grutter v. Bollinger, the court ruled that universities can take race into account as one factor in a broad consideration of students’ traits and qualifications. On the same day, in Gratz v. Bollinger, the high court said Michigan’s undergraduate college had unlawfully made race “a decisive factor for virtually every minimally qualified underrepresented minority applicant.” In a separate case involving the Seattle and Louisville, Ky., districts, the court said in 2007 that it was unlawful to consider the race of individual students directly in assigning them to public schools.
The Supreme Court will soon decide whether to hear a new case, in which a white student has sued the University of Texas, arguing that she was denied admission because of her race. Some legal experts have predicted that the court’s conservative majority could further restrict the use of race in admissions at public universities.
This week, the Department of Education released a report documenting how schools serving low-income students get less state and local money for teacher salaries than schools serving higher-income students.
“The administration is making strong policy statements on low-income children and students of color, outlining remedies,” said Bob Wise, a former Democratic governor of West Virginia who heads an education nonprofit organization aimed at improving high school graduation rates. “They seem to be putting some markers down as the election begins,” he said, adding that the new set of guidelines “tries to keep within the letter of the Supreme Court opinions, while probably pushing the spirit.”