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Professional Opinion

Potential Pitfalls of Using Race in the K12 Admissions Process

The new guidelines issued by the Department of Education’s Office for Civil Rights pose risks for school districts that employ them.
Protestors challenge polices using race to help determine where children go to school.
Protestors gathered at the Supreme Court in D.C. in 2006. The court heard arguments on lawsuits brought by parents in Louisville and Seattle, challenging policies that use race to help determine where children attend school.

The issue of whether race can or should play a role in school admissions has long plagued school districts and the courts. As districts across the country struggle to achieve diversity in a legally permissible way, whether and to what extent race may be used remains a thorny issue. Educators searching for answers encounter a complicated body of law that often leads to more questions than answers.  

This issue became even more complicated on December 2, 2011, when the Department of Education’s Office for Civil Rights issued guidelines to explain how K12 schools may legally consider race in the admissions process. According to the guidelines, districts may use individual race classifications when assigning or allocating students so long as these practices are carefully crafted to achieve diversity and limit racial isolation. While the DOE cautions districts that they should first consider race-neutral approaches, the guidelines further state that districts are only required to use race-neutral alternatives if they are workable.

Are DOE guidelines constitutional?

The problem with the DOE’s guidelines, however, is that they are constitutionally questionable and pose significant risks for school districts that employ them. The current state of the law does not support, and in some cases directly refutes, the DOE’s position. Consequently, districts should proceed with extreme caution when deciding whether to employ race as a factor in admissions policies.

The legal issues surrounding race-  conscious admissions policies have their roots in the Equal Protection Clause of the Fourteenth Amendment. This 1868 law protects people from disparate treatment based on their race or ethnicity. Because of this protection, all race-based actions are subject to strict scrutiny. Accordingly, a party employing such a policy must demonstrate that the use of race is necessary to further a compelling government interest and that the process is as narrowly tailored as possible to achieve its goal.

Supreme Court decisions  

The Supreme Court first considered the role of race in school admissions policies in Regents of the University of California v. Bakke, a 1978 case that involved medical school admissions. Unfortunately, the resulting opinion was highly fractured, featuring two plurality opinions that carried four justices each. In the end, the only official holding in Bakke was that excluding an applicant from medical school on the basis of race was unconstitutional. As a result, courts and schools struggled for 20 years to follow Bakke with little to no certainty of the constitutionality of their policies.

Then in 2003, the Court accepted two new cases involving race-based admissions policies, Grutter v. Bollinger and Gratz v. Bollinger. In Grutter, the Court upheld a law school admissions policy that considered race as one of many student characteristics that would contribute to school diversity. But the Court’s nearly simultaneous decision in Gratz struck down a policy that automatically awarded twenty bonus points to a minority applicant to an undergraduate program. Therefore, taken together, Grutter and Gratz stand for the proposition that race may be one of many factors considered in higher education admissions, but it cannot be the sole factor.

Four years later, the Supreme Court considered race-conscious placement policies in K12 schools in Parents Involved in Community Schools v. Seattle School District No. 1. In that case, the Seattle and Jefferson County School Districts  each implemented a policy where the race of individual students was used when assigning them to schools. A majority of the Court held that the districts’ methods were not narrowly tailored to meet a compelling government interest because the districts failed to consider race-neutral alternatives and also because the policy resulted in only minimal impacts. Notably, the Court did not decide whether achieving diversity is a compelling government interest for K12 schools. Additionally, the Court specifically stated that Parents Involved was not governed by Grutter because that case dealt with a university as opposed to a K12 school.

Districts must tread carefully

When this body of law is examined in its entirety, it becomes clear that the DOE’s guidelines are based on a highly selective, and therefore dangerous, reading of the law. The DOE relies upon cherry-picked portions of concurring and dissenting opinions from Parents Involved to assert that a majority of the Supreme Court has conclusively recognized that “obtaining the benefits that flow” from racial diversity is a compelling interest for K12 schools. But the Court expressly declined to rule on that very issue in Parents Involved. Further, the DOE fails to note that two members of its alleged “majority” are no longer on the Court—Justices Stevens and Souter. Equally problematic is the DOE’s reliance upon Grutter as justification for its guidelines, when the Supreme Court specifically stated that Grutter is not applicable to elementary and secondary schools.

Another potential minefield for districts is the language employed by the DOE in its guidelines. For instance, the DOE states that districts need only use race-neutral approaches if they are “workable,” but it does not define what constitutes a workable alternative. Consequently, districts that opt to use race in admissions leave themselves open to lawsuits in which different courts may have different opinions of whether a district made sufficient efforts to find a workable race-neutral policy.

Political and legal implications

Not surprisingly, the political and legal implications of the DOE’s guidelines remain to be seen. However, in February 2012, the Supreme Court granted certiorari to hear Fisher v. University of Texas-Austin. That case questions the legality of UT’s consideration of race as one factor for admission. A federal district court upheld UT’s policy in 2009, and a three-judge panel of the Fifth Circuit confirmed that it did not violate the Equal Protection Clause. Experts have opined that the Court’s decision to reconsider this issue may be tied to the DOE’s release of its guidelines.

Whatever the Court’s motivations, it is unlikely that its opinion in Fisher will have significant meaning for K12 districts since the Court has long distinguished between policies applicable to colleges and universities and those governing K12 schools. Given the continued uncertainty in this area of the law, following the DOE’s guidelines will not provide complete protection to even the most well-intentioned district. This is particularly true given the significant discrepancies between the DOE’s conclusions and the Supreme Court’s opinions in Grutter, Gratz and Parents Involved.

The DOE’s guidance represents the opinion of its lawyers, a status far removed from legally binding precedent. Attorneys fees to defend this type of lawsuit are an expense most districts cannot afford, especially considering that statutes may permit plaintiffs to recover their fees in the event they successfully challenge a race-based policy. Until there is authoritative guidance from the Supreme Court on race-conscious policies for K12 schools, school districts would do well to avoid using race as a factor in admitting or allocating students.

John Munich is a partner in the St. Louis office of Stinson Morrison Hecker LLP, where he is the practice group leader for Stinson’s Education Litigation Group. John has tried over a dozen major school-funding and school-desegregation lawsuits. Jamie Boyer is a partner and member of the Education Litigation Group at Stinson Morrison Hecker LLP. She assists states in evaluating and formulating their school funding formulas and has represented several states in school funding litigation. Erin Guffey is an associate in the St. Louis office of Stinson Morrison Hecker LLP.