Justice Department Encourages Racial Quotas: Schools Get Advice on Race, Admissions

DECEMBER 3, 2011

By JESS BRAVIN

The Obama administration issued new guidance Friday advising schools and colleges on how they can make race-based enrollment decisions to promote campus diversity, shortly before the Supreme Court is set to consider whether to re-examine a 2003 case holding that universities could sometimes use race in admissions decisions.

"Diverse learning environments promote development of analytical skills, dismantle stereotypes and prepare students to succeed in an increasingly interconnected world," Attorney General Eric Holder said in a joint release by the Justice and Education departments.

The departments withdrew prior guidance from the Bush administration, which officials said was too vague to assist school administrators seeking to promote diverse student enrollment. The new guidance parses the Supreme Court's most recent rulings on student diversity to suggest policies the administration believes would not violate the 14th Amendment's guarantee of equal protection of the laws.

Like the former Bush administration guidance, the new documents advise schools to use race-neutral policies if possible. If those prove insufficient, however, the new guidance states that a school "may consider a student's race as a 'plus factor' (among other, nonracial considerations) to achieve its compelling interests" in diversity.

The documents pay little attention to the thrust of a widely noted 2007 plurality opinion by Chief Justice John Roberts in a 5-4 Supreme Court decision invalidating integration programs adopted by school boards in Louisville, Ky., and Seattle.

The chief justice took a highly skeptical view of race-conscious enrollment policies, even those intended for benign purposes such as promoting diversity. "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race," he wrote.

The Justice Department relies more heavily on the court's 5-4 opinion in 2003 upholding the University of Michigan Law School's admissions formula, which considered an applicant's race in order to build a "critical mass" of minority students who could contribute to the educational experience.

The 2003 majority opinion by Justice Sandra Day O'Connor, who has since retired from the court, found that educational diversity was a "compelling" government interest and the Michigan plan had been "narrowly tailored" to attain it—the legal standard for permissible use of racial classifications.

While the Obama administration moves to promote racial diversity, a petition pending at the court seeks to invalidate a race-conscious admissions policy at the University of Texas at Austin. If the justices agree to hear the case, it could provide an opportunity for the court's strengthened conservative majority to narrow or even overturn Justice O'Connor's 2003 opinion.

"The Department of Justice appears to be stretching an outdated doctrine which only encourages school administrators to use racial classifications and preferences to achieve racial proportionality," said Edward Blum, director of the Project on Fair Representation, an advocacy group that sponsors lawsuits targeting race-conscious policies, including the pending Texas case. "Eventually, the law will forbid this never-ending abuse of equal protection," Mr. Blum said.