OCR and DOJ Clarify Use of Race in College and University Admissions

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The U.S. Department of Education's Office for Civil Rights (OCR) and the U.S. Department of Justice (DOJ) recently issued a Dear Colleague Letter and related questions and answers about the use of race in admissions following the U.S. Supreme Court’s ruling in Fisher v. University of Texas at Austin. Colleges and universities seeking to achieve racial and ethnically diverse student bodies should review these materials to ensure that their admissions procedures pass muster under Title VI of the Civil Rights Act.

In Fisher, while the Court did not decide whether the university's policy of using race as a factor in admissions was constitutional, it said that university affirmative action policies must be reviewed with strict scrutiny. OCR and the DOJ take the position that Fisher “preserved the well-established legal principle” that achieving a diverse student body is a compelling interest that colleges and universities may pursue in their admissions programs.

The newly issued guidance clarifies that colleges and universities may lawfully consider the race of individual applicants as one of several factors as long as the admissions program can pass the heightened “strict scrutiny” standard. OCR and the DOJ caution that such college and university admissions programs must be narrowly tailored to meet a compelling interest in diversity. Colleges and universities also must demonstrate that available, race-neutral alternatives are insufficient to achieve the benefits of diversity such as cross-cultural understanding and classroom dialogue and a reduction in racial isolation.

The Dear Colleague Letter also makes clear that the December 2011 OCR/DOJ Guidance on the Voluntary Use of Race To Achieve Diversity in Postsecondary Education remains in effect. The 2011 guidance outlines a legal framework under Grutter v. Bollinger and Gratz v. Bollinger for the voluntary use of race in college and university admissions for institutions seeking to achieve a diverse student body.

The guidance clarifies that colleges and universities acting to achieve diversity must be able to show how that objective fits within their missions and must consider race-neutral approaches (e.g., looking at socioeconomic status or parental educational level) and the racial impact of such approaches. It also provides examples of when colleges and universities may consider the race of individual students in the admissions process, as well as guidance regarding the use of pipeline, recruitment, outreach, and mentoring programs.