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Guidance on School Race Diversity Rescinded

On July 3, 2018, the U.S. Departments of Justice and Education jointly released a new “Dear Colleague Letter” (DCL) withdrawing the following previously released guidance documents:

  • December 2, 2011 Dear Colleague Letter Regarding the Use of Race by Educational Institutions;
  • 2011 Guidance on the Voluntary Use of Race to Achieve Diversity in Postsecondary Education dated December 2, 2011;
  • 2011 Guidance on the Voluntary Use of Race to Achieve Diversity and Avoid Racial Isola­tion in Elementary and Secondary Schools dated December 2, 2011;
  • September 27, 2013 Dear Colleague Letter on the Voluntary Use of Race to Achieve Diversity in Higher Education After Fisher v University of Texas at Austin [Fisher I]
  • September 27, 2013 Questions and Answers About Fisher v University of Texas at Austin [Fisher I]
  • May 6, 2014 Dear Colleague Letter on the Supreme Court Ruling in Schuette v Coalition to Defend Affirmative Action; and
  • September 30, 2016 Questions and Answers About Fisher v University of Texas at Austin [Fisher II].

In the now-withdrawn documents, the Depart­ments analyzed how schools made decisions based on race and discussed steps schools could take to increase racial diversity and avoid racial isolation. For example, the guidance indicated that schools could meet those objectives by placing schools in locations that would draw students from varying socioeconomic groups and assigning students to schools based on household annual incomes.

The Departments now conclude, however, that the previous guidance inappropriately advocated policy preferences and appeared to prematurely conjecture whether particular actions would violate the Constitu­tion or federal law. The DCL confirms that agency guidance should plainly set forth applicable legal re­quirements, rather than suggesting that recipients of funding take a particular course of action.

Schools officials should review their school policies to determine whether those policies reference, or are based on, the withdrawn guidance. If so, the policies should be revised accordingly.