School district policies to promote diversity are still viable, and recent Supreme Court rulings have bolstered existing laws that allow narrowly defined diversity policies. Districts must be careful, however, to design policies that meet these standards.
A panel of prominent education attorneys gave their advice on how build policies and programs that meet the current legal standard during a July 16 webinar organized by the National School Boards Association’s (NSBA) Council of School Attorneys (COSA).
A ruling last month in Fisher v. University of Texas at Austin upheld a 2003 decision in Grutter v. Bollinger, which permitted the use of race in university admissions if such policies were narrowly tailored. That decision, as well as a 2007 ruling in PICS v. Seattle School Dist., has made diversity a more complex—but not impossible–area for school districts to navigate.
“Diversity is still in place and still very much supported by the federal government,” Anurima Bhargava, Chief of the Educational Opportunities Section at the U.S. Department of Justice, told the audience of school attorneys.
NSBA was pleased with the Fisher ruling because schools are able to put into place diversity policies that advance students’ educations and did not erode the existing laws, said NSBA General Counsel Francisco M. Negrón, Jr.
The panelists offered advice to help clarify the new ruling and how to create policies that will support student learning in a diverse environment. The first step, all agreed, is clearly defining the desired outcomes.
“As school districts consider voluntary diversity policies, it’s important to articulate why you have an interest in diversity,” said Negrón, who added that research shows a diverse student body can improve student learning and test scores. NSBA and the College Board filed an amicus brief in the Fisher case that noted diversity could promote 21st century education goals and that policies considering many student characteristics, including race and diversity, are essential for achievement.
School leaders also need to shift their thinking and view diversity as a means to their educational goals, not the district’s demographics or quotas, panelists said.
And institutions must be prepared to show very clearly that they considered race-neutral alternatives before instituting a race-conscious policy—they have to be clear that none of the race-neutral alternatives would work as well, the panelists said.
School districts also must periodically review their policies, particularly considering changing demographics and enrollments, noted John W. Borkowski, a partner with the Hogan Lovells law firm in Washington, D.C.
“You can’t have a policy that is permanent,” he said.
But the Fisher case is not the end of the story. Diversity policies also will be impacted by the Supreme Court’s 2013-14 term through Schuette v. Coalition to Defend Affirmative Action, a case from the U.S. Court of Appeals for the Sixth Circuit that will determine the fate of a proposal to amend the Michigan constitution to prohibit discrimination in public agencies, including public schools and universities. NSBA will argue in an amicus brief that the measure would restrict a school district’s abilities to use race-conscious policies to achieve diversity.