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WASHINGTON -- The Obama administration has aligned itself strongly with the right of colleges to consider race and ethnicity in admissions decisions.

Guidance issued jointly Friday afternoon by the Departments of Education and Justice states that diversity is an important educational goal, and that colleges should be able to use a variety of methods (including the consideration of race and ethnicity in admissions) to achieve diversity. In many ways, the guidance is consistent with the arguments made by colleges that consider race in admissions decisions -- but it represents a reversal from 2008 guidance issued by the Bush administration that stressed the limits on the rights of colleges to consider race in admissions.

The guidance issued Friday doesn't have the force of federal court rulings, but is important nonetheless. The guidance outlines the way the Obama administration would consider complaints it receives about admissions policies. Further, the guidance appears to offer backing to the affirmative action program of the University of Texas at Austin. Federal courts have backed the Texas plan, which considers race and ethnicity in admissions, but those challenging Texas have asked the U.S. Supreme Court to consider the case.

If the Supreme Court accepts the case for review, and that could happen by early in 2012, these issues will be front and center nationally -- in legal, political and educational circles.

The new Obama administration guidance opens by outlining "compelling" reasons for colleges to focus on educating a diverse group of students.

"Ensuring that our nation's students are provided with learning environments comprised of students of diverse backgrounds is not just a lofty ideal. As the Supreme Court has recognized, the benefits of participating in diverse learning environments flow to an individual, his or her classmates, and the community as a whole. These benefits greatly contribute to the educational, economic, and civic life of this nation," the guidance states.

"Learning environments comprised of students from diverse backgrounds provide an enhanced educational experience for individual students. Interacting with students who have different perspectives and life experiences can raise the level of academic and social discourse both inside and outside the classroom; indeed, such interaction is an education in itself. By choosing to create this kind of rich academic environment, educational institutions help students sharpen their critical thinking and analytical skills."

Then the guidance goes on to talk about various ways that colleges can promote diversity. The guidance notes that past Supreme Court decisions have suggested the importance of considering race-neutral ways to promote diversity. And the guidance states that this is vital to do, further noting that some race-neutral techniques (such as emphasizing economic background, admitting students in the top percentages of their high school class without regard to test scores, and other methods) may be legal even if they disproportionately help members of minority groups.

Further -- and this could go to the heart of the University of Texas appeal -- the guidance says that just because race-neutral approaches exist does not mean that colleges have to be satisfied with them.

"Institutions are not required to implement race-neutral approaches if, in their judgment, the approaches would be unworkable," the guidance says. "In some cases, 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 (e.g., academic selectivity)."

In the Texas case, the plaintiffs argue that Texas should not be allowed to consider race directly in admissions because of the success of a race-neutral policy: admitting the top 10 percent of graduates of all Texas high schools. Because Texas has many high schools that are overwhelmingly Latino or overwhelmingly black, the 10 percent policy does assure that significant numbers of minority applicants are admitted to UT Austin. The university has argued -- to date with success in federal courts -- that just because it achieves some diversity with that plan does not mean it shouldn't be able to consider race in admissions decisions, as part of an effort to achieve greater levels of diversity.

The main caution for colleges in the new guidance is on the importance of making sure that all applicants go through the same admissions system, and that any efforts to consider issues of race and ethnicity do not create separate systems for members of different groups.

"When an institution is taking an individual student’s race into account in an admissions or selection process, it should conduct an individualized, holistic review of all applicants," the guidance says. "That is, the institution should evaluate each applicant’s qualifications in a way that does not insulate any student, based on his or her race, from comparison to all other applicants. An institution may assign different weights to different diversity factors based on their importance to the program. Race can be outcome determinative for some participants in some circumstances. But race cannot be given so much weight that applicants are defined primarily by their race and are largely accepted or rejected on that basis."

The overall tone of the document is one that is supportive of a range of institutional efforts to promote diversity, and that is trying to help colleges assure the legality of their efforts. The guidance suggests that colleges develop formal plans, monitor those plans, and link the plans to educational goals of the institutions.

Ada Meloy, general counsel for the American Council on Education, said that the new guidance was "very welcome" and "very useful." She said that she believes many colleges are doing the kinds of things outlined in the guidance, and should receive legal backing for doing so.

Several civil rights groups that back the consideration of race in admissions issued statements late Friday backing the Obama administration's take on these issues.

"Significantly, as the new guidance recognizes ...  educational diversity and avoiding racial isolation are not only compelling governmental interests but also among our country’s highest priorities. Integrated schools and diverse universities are essential to the fabric of our democracy because they provide all children with the skills necessary to participate meaningfully in our nation’s civic life and to flourish in our globalizing workplaces," says a statement from the NAACP Legal Defense and Educational Fund.

But Roger Clegg, president of the Center for Equal Opportunity, a group that opposes the consideration of race in admissions, said he disagreed with the guidance. He said that the Obama administration's analysis focused selectively on parts of Supreme Court decisions, not paying much attention to the limits set by other parts of the decisions on the consideration of race.

While Clegg said that currently Supreme Court rulings do permit the consideration of race in some circumstances, he said that the Obama administration guidance misreads the intent of those decisions. "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," he said.
"The Supreme Court has made clear that the use of racial and ethnic classifications and preferences is highly disfavored -- that it triggers strict scrutiny and is presumptively illegal. And yet here is the federal government going out of its way to facilitate such discrimination, to urge schools to get close to a line that there is no need for them to approach and certainly no reason for the federal government to encourage them to approach."  
There was one part of the guidance that Clegg said would be helpful to opponents of considering race in admissions: the Obama administration's recommendation that colleges "maintain documents that describe your compelling interest, and the process your institution has followed in arriving at your decisions, including alternatives you considered and rejected and the ways in which your chosen approach helps to achieve diversity. These documents will help you answer questions that may arise about the basis for your decisions." Clegg said that his group and others could file open records requests at public colleges for such documents, and would use the results to determine potential colleges to sue.
Clegg said that it was "suspicious" that the Obama administration released the guidance days before the University of Texas files its brief with the Supreme Court. Texas will presumably now tell the Supreme Court to rely on the Obama administration's analysis and not to consider the institution's admissions policies, he said. But Clegg said that "conservatives can be delighted" that the Obama administration issued the guidance because it shows why the Supreme Court should take the Texas case and bar colleges from considering race and ethnicity in admissions.

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