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Brief #22—Education

Policy Summary
Trump administration is rescinding seven Obama-era policies which encouraged schools to look at race as one among many factors in admissions. The seven affirmative action policies are among 24 documents rescinded on the Department of Justice’s website. The DOE/DOJ claim that the documents advocate policy preferences beyond the requirements of the Constitution, and Title IV and VI of the Civil Rights Act of 1964. The Trump administration reposted a previously withdrawn George W. Bush administration document, encouraging the use of race-neutral methods for assigning students to elementary and secondary schools. The race-neutral policy is based on the Supreme Court’s decision in Parents Involved in Community Schools v. Seattle School Dist. No. 1, which held that a race-conscious approach is inconsistent with Title VI which prohibits discrimination based on race, color, or national origin by school districts. The Court held that schools must make a good-faith consideration of workable race-neutral alternatives before implementing a race-conscious approach in accordance with the “strict scrutiny” standard. To be constitutional, a program must look at each applicant as an individual, and not simply as a racial group. However, because socioeconomic status is not subject to a “strict scrutiny” standard, under a race-neutral approach, schools may use socioeconomic status to determine admissions.

A senior Justice Department official denied that these decisions were rolling back protections for students of color but rather hewing the department closer to the letter of the law. In Tuesday’s joint letter issued by the Departments of Education and Justice, officials wrote that “protections from discrimination on the basis of race remain in place.” Officials replaced Guidance on the Voluntary Use of Race to Achieve Diversity and Avoid Racial Isolation in Elementary and Secondary Schools. In the document, the Departments recognized the compelling interests that K-12 schools have in obtaining benefits from achieving a diverse student body and avoiding racial isolation in an increasingly multicultural world. Consistent with the principles articulated in Supreme Court opinions, the guidance lays out a strategic plan for schools to meet these compelling interests, and when it is more practical to use a race-conscious approach when a race-neutral approach becomes unworkable in achieving a diversity student body. LEARN MORE

Previous cases reveals how a race-neutral/colorblind approach to the letter of the law has systematically denied equal protection for people of color. As established in Johnson v. California (2005), facially discriminatory laws based on race or national origin must pass a “strict scrutiny” standard, in which there must be a compelling governmental interest independent of the racial classification and the use of race must be narrowly tailored to that particular interest. The Supreme Court has held that governmental interest is compelling to remedy the effects of intentional discrimination and to obtain a diverse student body in higher education.

Today, schools like University of Michigan want more freedom to consider race and believe that race should be considered among many factors during admissions. This perspective is aligned with the the Supreme Court’s race-conscious approach in Brown v. Board of Education. In Brown, the Court ruled that there was no constitutional violation from using race and discouraged a colorblind approach. During this period, the Court had trouble guiding states on how to remedy inequalities that were fundamentally ingrained in the public consciousness and culture. Although Brown eliminated separate but equal, states remained resistant to desegregation policies even until the 1990s. For instance, Dowell (1991) held that dissolution of the desegregation decree was permissible because federal supervision was not intended to last forever. Civil Rights cases later established that policies “under color of law” (i.e. state’s unwritten policies or customs) were unconstitutional. In other words, although private discrimination by individuals was not unconstitutional because individuals were not considered state actors, it did not mean that such discrimination was constitutionally protected. Because the states’ role is to ensure the equality of civil rights, states have an affirmative obligation to push back on private discrimination when it does arise.

The ratification of the 14th Amendment during the Reconstruction era was a response to the vestiges of slavery – the denial of life, liberty and the pursuit of happiness. Justice Harlan stated that the purpose of the 13th Amendment was to eviscerate all the vestiges of slavery – to not only make former slaves U.S. citizens in form but also in substance through equal participation in civil society. Last year, the Trump administration’s decision to redirect resources of the Justice Department’s civil rights division towards suing universities over affirmative action admissions policies deemed to discriminate against white applicants not only lacks historical basis but only makes sense if whites were once an enslaved group systematically denied their fundamental rights by the federal government. Furthermore, this perspective ignores the reality that the greatest benefactors of affirmative action have historically been white women.

Louis D. Brandeis Center, a human rights organization that champions Jewish causes, filed an amicus brief in 2012, arguing that “race conscious admission standards are unfair to individuals, and unhealthy for society at large.” On the contrary, using a colorblind approach when we are still struggling today to provide equal participation to all citizens and debating civil rights’ extension over public education will only move us further back to the vestiges of slavery. LEARN MORE

Engagement Resources

  • Chiefs for Change – An education reform nonprofit aimed at facilitating change through policy and advocacy, building a unique community of practice, and cultivating a pipeline of diverse education leaders.
  • Poverty and Race Research Action Council –The Council is a civil rights policy organization aimed at helping to connect advocates with social scientists working on race and poverty issues, and to promote a research-based advocacy strategy on structural inequality issues.
  • The National Coalition on School Diversity – The Coalition is a network of national civil rights organizations, university-based research centers, and state and local coalitions working to increase support for government initiatives that promote diversity in schools.

This Brief was prepared by USRESIST NEWS Analyst Tina R Lee: Contact tina@usresistnews.org

Photo by Joanna Kosinska

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