On Wednesday, July 3, the Departments of Education and Justice announced that they withdrew a group of Obama-era guidances regarding the use of race in school admissions. Although the Independence Day holiday and excitement about a Supreme Court nomination somewhat eclipsed this news, it nonetheless drew some strong reactions. Democratic Member of Congress Emanuel Cleaver tweeted that the decision to withdraw the guidance was “disgraceful,” and former Obama DOJ official Vanita Gupta said that the withdrawal “ in furtherance of [the] Trump administration’s agenda of intolerance and discrimination” was “advancing a vision of America that is particularly hostile to students of color.”
How true are these claims? First, it’s important to look at the role that guidance documents actually play in federal law enforcement. A guidance is a mere interpretation or general statement of policy concerning how an agency intends to exercise its discretionary authority in enforcing the underlying statute. It merely interprets or tells regulated persons which kinds of cases the agency is most likely to pursue. An interpretation or a general statement of policy cannot impose new duties on regulated persons. Making up new duties not contained in the statute itself is not part of an agency’s discretionary authority. In the case of race and college admissions, the law of the land is set forth in a series of Supreme Court decisions, most importantly Bakke v. Regents of the University of California, Grutter v. Bollinger, and the Fisher v. Texas duo. The issuance and withdrawal of ED and DOJ’s guidance documents does not change that fundamental legal reality.
What do these cases require? Admittedly, this is not entirely an easy question; I myself have criticized Fisher II on this blog for lack of clarity. Nonetheless, all of these major cases are in accord that the Constitution and Title VI require non-discrimination in racial matters as a general rule. There are, however, exceptions to this general principle. Among them, selective colleges and universities can use race in admissions in pursuit of student body diversity. The educational benefits that flow from student body diversity is, in some measure, an academic judgment to which some, but not complete, judicial deference is owed. But no deference is owed in determining whether a university’s use of race is narrowly tailored to achieve a university’s permissible goals. In sum, while universities have some latitude to use race-preferential admissions in pursuit of student body diversity, there are also considerable constraints on universities’ use of race.
Unfortunately, much of the media coverage on these issues seems to misunderstand the basic rule of these cases. An Associated Press article about the guidances’ withdrawal, for example, bore the headline “Government allowing colleges to leave race out of decisions.” Well… yes. The Equal Protection Clause has always allowed colleges to leave race out of decisions. The only question in recent years has been under what limited circumstances colleges may consider race to achieve student body diversity.
The withdrawn guidances also seemed to have the relevant principle backwards. One of these documents opens with a multi-paragraph paean to the virtues of diverse learning environments. There is no corresponding discussion of the benefits of race-neutral approaches to admissions; indeed, the words “race-neutral” do not appear until several pages into the document, in a summary of Grutter. At a press conference that I attended regarding the issuance of those new guidances, then-Deputy Associate Attorney General Jocelyn Samuels used the phrase “We’re from the government, and we’re here to help” to describe the Civil Rights Division’s posture toward colleges and universities that wanted to use race-preferential admissions policies. The Center for Equal Opportunity’s Roger Clegg was correct to analogize the guidance to “the F.B.I. issuing a document on how you can engage in racial profiling in a way where you won’t get caught.”
It should not, then, be surprising that the Departments of Education and Justice have chosen to withdraw these documents. Doing so moves federal enforcement of civil rights law closer to the principles articulated in the relevant major Supreme Court cases. While clearly some critics of the decision wish a legal regime more permissive toward race preferences, such arguments must be pitched elsewhere.