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Back to January Ed Reporter

Education Reporter
NUMBER 312 THE NEWSPAPER OF EDUCATION RIGHTS JANUARY 2012

Civil Rights Office Promotes Racial Discrimination
Affirmative action is illegal, but that hasn't kept the Obama administration from finding ways to make sure classrooms remain enmeshed in the fight for so-called civil rights. New federal guidance documents, issued jointly by the Departments of Justice and Education on December 2, claim to give school administrators greater freedom by explaining how elementary, secondary, and postsecondary schools can "lawfully pursue voluntary policies to achieve diversity or avoid racial discrimination." Rather than discouraging racial discrimination, however, the documents facilitate it by telling administrators that they do not have to use race-neutral methods of promoting diversity if these are not "workable." Examples of unworkable methods include inadequate racial diversity at an institution - though it's unclear just what determines sufficient diversity.
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Elementary and secondary school administrators are encouraged to use the guidelines to "lawfully further diversity or reduce racial isolation" in areas including "school assignment, student transfers, school siting, feeder patterns and school zoning." Postsecondary institutions "may permissibly consider race to pursue their compelling objectives" in "admissions, pipeline programs, recruitment and outreach, and mentoring, tutoring, retention, and support programs." These guidelines replace those adopted in August 2008, which recommended that administrators not consider race at all when considering admissions.

Though the new guidelines purport to explain lawful ways to consider race in the classroom, their legality is at best disputable. National Association of Scholars (NAS) president Peter Wood said the documents

. . . represent a sharp departure from previous federal policy and on several points are unlikely to withstand judicial scrutiny. They seem to sanction common university practices which circumvent the law . . . they are very loose in their reading of Supreme Court rulings over the last decade. For example, they give college officials broad new powers to rely on their own 'judgment' for when and how to take race into account. This is contrary to the spirit of the existing law. The Obama administration has, unfortunately, put itself on the side of higher education's 'diversicrats' who have already been engaging in racial discrimination under the pretext of pursuing diversity.

Even assuming the legality of such measures, an increasing amount of research shows that affirmative action does not advance minority advancement, but rather impedes it. As Jeff Jacoby wrote recently in the Boston Globe,

The inability of racial preferences to vault more minority students into high scholastic achievement shouldn't come as a surprise. When an elite institution relaxes its usual standards to admit more blacks and Hispanics, it all but guarantees that those academically weaker students will have trouble keeping up with their better-prepared white and Asian classmates. This is the cruelty of affirmative-action "mismatch" — the steering of minorities to schools where they are less likely to succeed . . . If it weren't for race-based admissions policies, in other words, underrepresented minorities wouldn't be so underrepresented.

Jacoby goes on to cite San Diego law professor Gail Heriot, one of a three-member civil rights commission urging the Supreme Court to reexamine the relationship between racial diversity efforts and the Fourteenth Amendment:

Skin color was always an ill-contrived proxy for diversity of experiences and beliefs. What more than 30 years of race-based admissions have made clear, Heriot argues, is that "even with the best motives in the world, race-based admissions do far more harm than good." Especially to the students they are supposed to help.

Racially-based admissions standards not only hold back minorities, but also do a disservice to students whose academic merit is ignored in the rush to ensure adequate diversity. Susan Jones of CNSnews.com writes,

Some of the examples included in the document make it clear that the goal of achieving diversity is more important than allowing schools to select the brightest students.

Under the guidelines on admitting students to competitive schools or programs, the administration offers the following example: "A school district could identify race-neutral criteria for admission to a school (e.g., minimum academic qualifications and talent in art) and then conduct a lottery for all qualified applicants rather than selecting only those students with the highest scores under the admission criteria, if doing so would help to achieve racial diversity or avoid racial isolation."

Another example says: "If it would help achieve racial diversity or avoid racial isolation, a school district could decide to admit all applicants with grades that put them within the top quartile of their class at the schools from which the competitive program draws."

The new guidelines are just part of an ongoing effort to expand the reach of affirmative-action like policies into the classroom. The education department's office for civil rights (OCR) has teamed up with the civil rights division in the Justice Department to launch dozens of new "compliance reviews" in the past months meant to root out civil rights issues that have never been addressed before. These include the use of discipline against minority students, possible disparities in students' access to charter schools, and increased scrutiny into potential discrimination against lesbian, gay, bisexual, and transgender students.

 
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