Departments of Education and Justice: Race-Conscious Methods of Achieving Diversity Still Permissible

The U.S. Departments of Education and Justice on Tuesday sent a letter providing guidance to confirm that the U.S. Supreme Court’s decision in Schuette v. Coalition to Defend Affirmative Action, issued last month, leaves untouched previous Court holdings on the permissibility of race-conscious methods of achieving diversity goals at elementary and secondary schools.

“The Departments of Education and Justice strongly support diversity in elementary, secondary, and higher education, because racially diverse educational environments help to prepare students to succeed in our increasingly diverse nation,” the letter states. “The educational benefits of diversity, long recognized by the Court and affirmed in research and practice, include cross-racial understanding and dialogue, the reduction of racial isolation, and the breaking down of racial stereotypes. Furthermore, to be successful, the future workforce of America should transcend the boundaries of race, language, and culture as our economy becomes more globally interconnected.”

In Schuette, the Court in a 6-2 decision overturned the Sixth Circuit Court of Appeal’s ruling and upheld a Michigan voter initiative that bans the practice of race-conscious admissions to the state’s public universities.

But in her dissent, Justice Sonia Sotomayor – who was joined by Justice Ruth Bader Ginsburg – expressed concern with the ruling and underscored the case’s focus on the political process and the necessity to protect all voters involved in that process.

“Contrary to today’s decision, protecting the right to meaningful participation in the political process must mean more than simply removing barriers to participation. It must mean vigilantly policing the political process to ensure that the majority does not use other methods to prevent minority groups from partaking in that process on equal footing,” Sotomayor said. “I firmly believe that our role as judges includes policing the process of self-government and stepping in when necessary to secure the constitutional guarantee of equal protection.”

That guarantee, as yesterday’s letter reaffirms, is still that – a guarantee. And absent any restrictions in a particular state’s law, policies that consider race as one of several factors are still legally permitted.