NAACP Objects to Ed Department Letter on Race

The Department of Education provides occasional guidance to school districts in the form of "Dear Colleague" letters.

A recent letter, the office for civil rights opined on the issue of race in student assignment under the U.S. Supreme Court’s 2007 decision in Meredith v Jefferson County Board of Education (combined with Parents Involved in Community Schools v. Seattle School District).

The NAACP's Legal Defense and Education Fund quickly disputed the Bush Administration's legal analysis saying the Department of Education's "interpretation of the decision is inaccurate in a number of respects."

In Parents Involved, a majority of the Supreme Court justices (the four Justices who would have upheld the student assignment plans from Seattle and Louisville at issue in the case, and Justice Kennedy, who found some aspects of those plans unacceptable but approved of their purpose) recognized that school districts have compelling interests in promoting student diversity and avoiding racial isolation in elementary and secondary school settings.

The majority agreed that, in Justice Kennedy's words, a school district can, in its "discretion and expertise", take affirmative steps to avoid racial isolation and to achieve a diverse student population, Parents Involved, 127 S.Ct. at 2797, and that school officials may "consider the racial makeup of schools and adopt general policies to encourage a diverse student body, one aspect of which is its racial composition." Parents Involved, 127 S.Ct. at 2792.

But the U.S. Department of Education’s office for civil rights focused only the court's race-neutral language.

In the two page “Dear colleague” letter dated Aug. 28 the OCR says:

“The Department of Education strongly encourages the use of race-neutral methods for assigning students to elementary and secondary schools.”

“Genuinely race-neutral measures” such as those based on a student’s socioeconomic status would not trigger the highest level of court scrutiny, the office says.

As Mark Walsh over at the School Law Blog points out,

"The letter takes no notice of the key concurring opinion by Justice Anthony M. Kennedy in the cases from Seattle and Jefferson County, Ky."

Anurima Bhargava, the director of the civil rights group’s education practice, said the letter “is very limited in its reading” of the high court decision. “It’s as if Kennedy hadn’t written,” she said.

The court ruled 5-4 in June of last year that assignment plans in the two districts that and sometimes relied on race-based assignments to achieve diversity in individual schools, violated the equal-protection clause of the 14th Amendment.

But Justice Kennedy wrote that while those districts used race in an unconstitutional manner, it would be permissible for districts to take race into account under certain circumstances, such as when choosing sites for new schools, drawing attendance zones based on neighborhood demographics, or allocating resources for special programs.