Wednesday, July 11, 2018

Trump Administration's Reversal of Affirmative Action Guidance Aims to Scare Schools Away from Diversity and Integration

The following essay first appeared in USA Today.
The Trump administration’s decision to reverse federal guidance on the use of race in education is a scare tactic. It will scare universities away from doing exactly what they can and should do to enroll the most qualified and diverse students. It will scare public school districts away from taking steps to prevent resegregation that is harming all students. The use of race in both contexts is clearly constitutional under existing Supreme Court precedent. The only gray area involves the line between permissible and impermissible uses of race. 

Racial quotas, for instance, have long been unconstitutional, whereas the consideration of race as one among many factors in the pursuit of the educational benefits of diversity has been approved by the court for decades. Similarly, while school districts cannot reassign an individual student based on race alone, districts can consider race in redrawing school attendance zones to promote integration. 

Rather than acknowledge these lines and the fact that some uses of race are appropriate and necessary for improving educational opportunities, the administration will dissuade colleges, universities and school districts from doing anything to promote diversity and integration.

Compelling interest in diversity, or not?

The nation has been here before. When the University of Michigan’s admissions policies were before the Supreme Court in Grutter v. Bollinger in 2003, the Bush administration argued that colleges and universities should not be able to consider race. The court rejected that argument, saying race could be considered narrowly to achieve the educational benefits of a diverse student body.

In 2007 in Parents Involved in Community Schools v. Seattle, the Bush administration made the same argument regarding school districts’ voluntary efforts to integrate. And though it was a 4-1-4 decision, five justices agreed there is a compelling interest in avoiding racial isolation that school districts may pursue. 

Yet the Bush administration still discouraged schools from exercising the discretion the Supreme Court had just afforded them. Shortly after Parents Involved, the Office for Civil Rights at the U.S. Department of Education explicitly encouraged "the use of race-neutral methods for assigning students to elementary and secondary schools.” It never once articulated how a school that wished to pursue integration, but could not achieve it through race-neutral measures, could or should move forward. 

The silence was deafening but the message clear. The federal government would not support districts in the pursuit of integration. Even worse, it might impede their efforts.  Public school districts needed leadership and guidance in an area fraught with complicated politics and legal doctrine. Without it, all but a few districts were entirely scared away from integration even though the court had said they could pursue it. 

That is why civil rights advocates fought so hard for the Obama administration to simply take down the Bush administration guidance. Saying nothing at all was better than saying things that scared educators. The Obama administration went further and replaced the Bush-era policy with an evenly stated explanation of what the Constitution allows schools to do. It did the same for colleges and universities.

If there was any overreach in this area — as the Trump administration claims — it was by the Bush administration when it sought to push a view of the law that had failed before the Supreme Court. The Obama administration corrected that overreach and offered schools the guidance they desperately wanted and needed. That guidance did not require a single institution to do anything it did not want. It merely offered guidelines to those that of their own volition wanted to improve educational opportunities for their students.

In the initial years following Grutter and Parents Involved, uncertainty abounded and the Bush administration exploited it. This time around, schools are in a better position to see Trump’s policy reversal for what it is — an attempt to use executive power to remake the law as it wishes it to be rather than as it is. 

Schools should ignore Trump, heed courts

Since the Obama guidance, the Supreme Court has reaffirmed the educational benefits of diversity as a compelling interest in Fisher v. University of Texas. In Fisher, it also upheld the consideration of race in an admissions program that took numerous factors into consideration and sought to enroll students who achieved against the odds of their personal circumstances. Since the Obama guidance, several courts of appeals have also held that public schools can legitimately consider race in pursuing integration.

In short, the Bush administration policy has failed and the Trump administration is trying to resuscitate it under the rhetoric of an Obama overreach. Our schools must be smart enough to ignore it. As Justice Lewis F. Powell first wrote in 1978 and the Supreme Court repeated in Grutter, “nothing less than the ‘nation’s future depends upon leaders trained through wide exposure’ to the ideas and mores of students as diverse as this Nation of many peoples.”

Rescinding Obama guidance does not merely ask schools to achieve diversity and integration through other means, it is a heavy handed suggestion that they abandon the goals of integration and diversity completely.

Racial Integration and Diversity | Permalink


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