prompt_front: You are given two reports by the government agency.



Question: Write a one-page summary of the report 1.



Report 2: The last several years have seen renewed debate over the role that race plays in higher education—a debate over "affirmative action " A high-profile lawsuit challenging Harvard University's consideration of race in admitting its incoming classes, and the recent withdrawal of Obama Administration-era guidance addressing similar race-conscious policies, have focused the debate on "affirmative action" in perhaps its more familiar sense: the voluntary consideration of student applicants' race as a way of increasing the participation of racial minorities in higher education  Meanwhile, a recent lawsuit involving Maryland's university system has brought renewed attention to "affirmative action" in its other, original sense: the mandatory use of race by public higher education systems to eliminate the remnants of state-imposed racial segregation  This report addresses "affirmative action" in each of these two senses and discusses how the federal courts have analyzed them under the Fourteenth Amendment's guarantee of "equal protection " The report first considers "affirmative action" in its original sense: the mandatory race-conscious measures that the federal courts have imposed on de jure segregated public university systems  The Supreme Court has made clear that a state that had a segregated system of education must eliminate all "vestiges" of that system, including through expressly race-conscious remedies  In its consequential 1992 decision United States v  Fordice , the Court charted a three-step inquiry for assessing whether a state has fulfilled that constitutional obligation, examining whether a current policy is traceable to the de jure segregated system, has continued discriminatory effect, and can be modified or practicably eliminated consistent with sound educational policy  Outside this de jure context, "affirmative action" has come to refer to a different category of race-conscious policies  These involve what the Court once called the "benign" use of racial classifications —voluntary measures designed not directly to remedy past governmental discrimination, but to increase the representation of racial minorities previously excluded from various societal institutions  And in the context of higher education the Court has addressed one type of policy in particular: the use of race as a factor in admissions decisions, a practice now observed by many public and private colleges and universities  As this report explains, the federal courts have come to subject these voluntary "affirmative action" policies to a particularly searching form of review, known today as strict scrutiny  And they have so far upheld those policies under a single theory: that the educational benefits that flow from a diverse student body uniquely justify some consideration of race when deciding how to assemble an incoming class  To rely on that diversity rationale, however, the Court now requires universities to articulate in concrete and precise terms what their diversity-related goals are, and why they have chosen those goals in particular  And even once those goals are established, a university must still show that its admissions policy achieves its diversity-related goals as precisely as possible, while ultimately "treat[ing] each applicant as an individual " Because both lines of cases discussed here have their roots in the Equal Protection Clause, this report focuses primarily on public universities, all of which are directly subject to constitutional requirements  But those same requirements apply equally to private colleges and universities that receive federal funds pursuant to Title VI of the Civil Rights Act of 1964 (Title VI or the Act), which similarly prohibits recipients of federal dollars from discriminating on the basis of race  This report concludes by discussing the role that Title VI plays in ensuring equal protection in higher education, both public and private, including several avenues for congressional action under the Act  Though government-sanctioned racial segregation in public education is commonly associated with primary and secondary schools, numerous states had also mandated or permitted racial segregation in institutions of higher education, including through the latter part of the 20 th century, categorically excluding black students solely because of their race  Though the Supreme Court held decades ago that state-sanctioned racial segregation in higher education violates the Equal Protection Clause, such intentional segregation, or practices arising from formerly de jure segregated university systems and their discriminatory effects, may still persist  Addressing such circumstances, the Supreme Court has held the Equal Protection Clause to require states to eliminate all vestiges of their formerly de jure segregated public university systems that continue to have discriminatory effect  As the Court concluded in United States v  Fordice , state actors "shall be adjudged in violation of the Constitution and Title VI [of the Civil Rights Act]" to the extent they have failed to satisfy this affirmative duty to dismantle a de jure segregated public university system  A state actor therefore remains in violation of the Equal Protection Clause today if it maintains a policy or practice "traceable" to a formerly de jure segregated public university system that continues to foster racial segregation  Where such a violation is shown, race-conscious measures are not only constitutionally permissible, but may be constitutionally required to remedy and eliminate such unconstitutional remnants  As in the K-12 context, a number of states maintained racially segregated public university systems and denied black students admission to post-secondary schools—including colleges, law schools, and doctoral programs —on the basis that these institutions educated white students only  Prior to 1954—the year of the Supreme Court's landmark Brown v  Board of Education decision ( Brown I ) —the Court had interpreted the Equal Protection Clause to permit state-sanctioned racially segregated public educational systems, provided that the separate schools for black students were substantially equal to those reserved for white students  For example, in its 1950 decision Sweatt v  Painter , the Court addressed an equal protection claim raised by a black student challenging the University of Texas Law School's denial of his admission based on his race, pursuant to its white-only admissions policy  At the time of the plaintiff's application in 1946, the state did not have a law school that admitted black students  Denying the plaintiff's requested relief for admission, the state trial court instead granted additional time to Texas to create a law school for black students; the state thereafter created a law school at the Texas State University for Negroes  The Supreme Court, however, held that the law school—which, among other features, lacked accreditation —did not offer an education "substantially equal" to that which the plaintiff would receive at the University of Texas Law School  On that basis—the absence of a separate but equivalent legal education—the Court held that the Equal Protection Clause required the plaintiff's admission to the University of Texas Law School  A decisive turn in the Court's interpretation and application of the Equal Protection Clause, however, came by way of its 1954 decision in Brown I   There, the Court held for the first time that race-based segregation "in the field of public education" violates the Equal Protection Clause  The Court concluded that race-based segregation in public schools deprives minority students of equal educational opportunities, and observed that segregation commonly denotes inferiority of the minority group  Segregated educational facilities, the Court concluded, are "inherently unequal " The Court's holding in Brown I applies with equal force to public higher education—that is, to public colleges and universities —as does the Court's subsequent 1955 decision in the same case (" Brown II "), in which the Court addressed how school authorities and federal courts were to implement the mandate of Brown I   Indeed, one of the Court's earliest applications of Brown I and Brown II was in the higher education context  In that case, State of Fla  Ex  Rel  Hawkins v  Board of Control , the Supreme Court vacated a Florida supreme court decision that declined to order the state's white-only law school to admit a black student  Relying on language in Brown II that courts could consider practical obstacles to a school's transition to desegregation, the Florida court refused to order the plaintiff's admission  The Supreme Court vacated the state court's decision, concluding that in the case of admitting a black student "to a graduate professional school, there [wa]s no reason for delay" and that he was "entitled to prompt admission under the rules and regulations applicable to other qualified candidates " Following Brown I and Brown II , the Court's equal protection jurisprudence in the public education context expanded significantly to address questions regarding the scope and sufficiency of state actions to "dismantle" racially segregated systems in public school districts across the country, and various challenges to district court-ordered remedies  As the Court revisited these legal standards over time, it continued to describe the affirmative duty of formerly segregated public school entities as the duty to "take all steps necessary to eliminate the vestiges of the unconstitutional de jure system" to the extent practicable  Turning to the context of higher education, the Court addressed, in its 1992 decision United States v  Fordice , how these equal protection principles and legal standards apply to a state's affirmative duty to dismantle a formerly de jure segregated public university system  Though it had "many occasions to evaluate whether a public school district has met its affirmative obligation to dismantle its prior de jure segregated system in elementary and secondary schools," the Court explained, Fordice presented the issue of "what standards to apply" in determining whether the state has met this obligation in the university context  At issue before the Court was Mississippi's prior de jure public university system  The Court observed that since establishing the University of Mississippi as an institution of "higher education exclusively of white persons" in 1848, Mississippi had created four more exclusively white institutions and three exclusively black institutions through 1950  Thereafter, it continued to maintain its racially segregated public university system, and admitted its first black student to the University of Mississippi in 1962 "only by court order " For the "next 12 years," the state's segregated university system "remained largely intact " Around 1987, when the case went to trial, over 99 percent of the state's white students attended the five universities that had been formerly white-only, while the three formerly black-only institutions had student bodies between 92 percent to 99 percent black  Citing its precedent addressing de jure segregation in the K-12 context, the Court stated that "[o]ur decisions establish that a [s]tate does not satisfy its constitutional obligations until it eradicates policies and practices traceable to its prior de jure dual system that continue to foster segregation " Perhaps critically, in the context of remedying a formerly de jure segregated system, a state's "adoption and implementation of race-neutral policies alone " is not sufficient to demonstrate that it has "completely abandoned its prior dual system " Aside from segregative admissions policies, the Court explained, a state's other policies may shape and determine student choice and attendance, and continue to foster segregation  Instead, to determine whether a state has satisfied its affirmative duty to dismantle its de jure public university system, the Court set out a three-step analysis  First , the analysis examines whether the challenged policy or practice maintained by the state is "traceable to its prior [ de jure ] system " By way of example, the Court identified four policies that, in its view, were "readily apparent" vestiges of de jure segregation: admissions standards based on a test-score range originally adopted for discriminatory reasons; unnecessary program duplication throughout the university system (e g , multiple institutions offering the same "nonbasic" courses); the state's academic mission assignments to its higher education institutions (e g , assigning the broadest academic missions to only formerly white-only institutions and the narrowest academic mission to a formerly black-only institution); and the continued operation of all public universities established in the de jure segregated system  With respect to traceability, the Court's analysis reflects that where a current policy functions based on distinctions or a framework created in a formerly de jure system, traceability can be shown  For example, when concluding that the state's designation of academic missions to its universities was traceable to de jure segregation, the Court cited evidence that the state's current method of assigning its universities into three academic missions levels largely mirrored a three-tiered grouping of its universities in the de jure system  In addition and more generally, an interim change or new, nondiscriminatory justification for a current policy does not necessarily sever its traceability to a de jure system  Where the traceability of a policy or policies is shown, a party need not show discriminatory intent with respect to those challenged policies  Where traceability is not shown—that is, where the policies "do not have such historical antecedents" to de jure segregation—an equal protection challenge would then require "a showing of discriminatory purpose " In those instances, the Court explained, "the question becomes whether the fact of racial separation establishes a new violation of the Fourteenth Amendment under traditional principles " Second , once traceability is shown, the analysis turns to whether those traceable policies have continued discriminatory or "segregative" effects in student choice, enrollment, or other facets of the university system  At this stage, the Court noted that a court should not consider "this issue in isolation," but rather examine the "combined effects" of all the challenged policies together "in evaluating whether the State ha[s] met its duty to dismantle its prior de jure segregated system " In light of this instruction, it appears the focus of the second step of the test is not on establishing causation between specific racial disparities and specific policies—by this stage, a court has already found traceability—but rather to evaluate whether a state has sufficiently dismantled its formerly de jure system  Consistent with the state's burden of proving it has dismantled its de jure segregated system, the state must show the absence of segregative effects; plaintiffs are not required to establish this second element  Third , because traceable policies that have discriminatory effects "run afoul of the Equal Protection Clause," such policies must accordingly "be reformed to the extent practicable and consistent with sound educational practices " Thus, at the third step, a court assesses whether traceable policies can be "practicably eliminated" "consistent with sound educational practices," with the burden on the state to show that the challenged policies are "not susceptible to elimination without eroding sound educational policy " Because the Court remanded the case to the lower court to address practicable elimination, its analysis in Fordice on this point is limited  The Court suggested, however, that if a current policy lacks sound educational justification, it reasonably follows that it can be practicably eliminated in part or in whole  In addition, the Court observed that in some cases, a merger or closure of institutions could be constitutionally required to eliminate vestiges, should other methods fail to eliminate their discriminatory effects  Finally, the Court repeatedly stated that so long as vestiges remain, which have discriminatory effects, the state remains in violation of the Equal Protection Clause unless it can show it cannot practicably eliminate those policies or practices  In addition, Justice O'Connor, in a separate concurring opinion in Fordice , emphasized the "narrow" circumstances under which a state could maintain a traceable policy or practice with segregative effects  In her view, courts may "infer lack of good faith" on the part of the state if it could accomplish educational objectives through less segregative means, and the state has a "'heavy burden'" to explain its preference for retaining the challenged practice  Moreover, even if the state shows that retaining certain traceable policies or practices is "essential to accomplish its legitimate goals," Justice O'Connor asserted that the state must still prove it has "counteracted and minimized the segregative impact of such policies to the extent possible " The Court in Fordice observed that the closure or merger of certain institutions may be constitutionally required, consistent with its holding that any vestige of a de jure segregated system that continues to have discriminatory effect must be eliminated to the extent practicable and consistent with sound educational policy  Yet that invited a new—and more difficult—set of questions: which institutions would be most subject to closure or merger, and under what circumstances would such action be required? Significantly, the Court did not categorically identify which institutions would be most subject to such remedial action —a state's flagship, formerly white-only institutions from which a de jure system originated, for example, or formerly black-only institutions created to preserve white-only admission at other institutions  Instead, the Court concluded that it was unable to determine—on the record presented in Fordice —whether closures or mergers were required in that case and directed the lower court on remand to "carefully explore" several considerations  This instruction to the lower court, while not part of the holding in Fordice , suggests that several factors are relevant for determining whether merger or closure is constitutionally required  In addition, the Court observed that maintaining all eight higher education institutions in Mississippi was "wasteful and irrational," particularly in light of the close geographic proximity between some of the universities  This observation suggests that close proximity between institutions offering similar programs could be a relevant factor in assessing remedial closure or merger as well  Regarding the fate of a state's historically black institutions, Justice Thomas, in a concurring opinion, did not read Fordice to "forbid[]" those institutions' continued operation or "foreclose the possibility that there exists 'sound educational justification' for maintaining historically black colleges as such  " Justice Thomas emphasized that "[d]espite the shameful history of state-enforced segregation," historically black colleges and universities were and remain institutions critical to the academic flourishing and leadership development of many students, and observed that "[i]t would be ironic, to say the least, if the institutions that sustained blacks during segregation were themselves destroyed in an effort to combat its vestiges " In his view, though a state is not constitutionally required to maintain its historically black institutions as such, their continued operation is constitutionally permissible, so long as admission is open to all students "on a race-neutral basis, but with established traditions and programs that might disproportionately appeal to one race or another " Following Fordice , plaintiffs, including the United States in Title VI enforcement actions, have brought suit challenging practices allegedly traceable to a state's de jure segregated university system  Challenged practices have included unnecessary program duplication, which the Court identified in Fordice as one of the "readily apparent" remnants of de jure segregation, as well as others such as scholarship policies, funding practices, and the use of curricula at formerly white-only institutions with little representation of black history and culture  More recently, in 2018, a legal challenge against the State of Maryland alleged that practices relating to capital and operational funding, unnecessary program duplication, and the limited institutional missions of the state's formerly black-only institutions are traceable to the state's formerly de jure segregated higher education system  To date, however, only a few federal appellate courts have had occasion to analyze Fordice -based claims, and the Supreme Court has not, since its 1992 decision, addressed claims challenging higher education policies or practices as unconstitutional vestiges of de jure segregation  Though development of the Fordice standard in federal case law is limited, the few appellate decisions applying Fordice provide at least some analytical examples and reflect discernible differences in approach, particularly with respect to the evidence sufficient to satisfy the third element of the Fordice standard—that elimination of a practice is not possible, despite being traceable and having continued discriminatory effect  As discussed above, the Supreme Court in Fordice identified "unnecessary program duplication" as a practice traceable to the prior de jure segregated system of higher education at issue in that case, stating that "it can hardly be denied" that such duplication was a requisite feature of the prior dual system because "the whole notion of 'separate but equal' required duplicative programs in two sets of schools " Drawing upon that rationale, courts that have addressed unnecessary program duplication have generally had little difficulty tracing duplicative courses and degree programs to prior de jure segregation  On the matter of if and how program duplication might be eliminated, however, there is lesser consensus  Generally, federal courts have considered several methods for eliminating program duplication, such as transferring existing programs from one institution to another, eliminating certain programs altogether, creating cooperative programs, and—perhaps most drastically—merging institutions  Plaintiffs have also raised equal protection challenges to state funding practices that allocate all or most of their federal and state land grants to institutions that were formerly white-only in a de jure system while dedicating significantly less or no funds to formerly black-only institutions  More specifically, these cases have concerned a state's allocation of federal land grants provided annually to support research on agricultural issues and the dissemination or "extension" of that research  At issue in Knight v  Alabama , for example, was the State of Alabama's allocation of federal funds between its two land grant universities, Auburn University, formerly white-only in the de jure system, and Alabama A&M University (A&M), formerly established as black-only  The state allocated to Auburn the entirety of Alabama's approximately $4 million in federal aid for agricultural research, and allocated an additional $14 million to Auburn in state funds  Meanwhile, the state had "for years" allocated no federal aid to A&M and given state funds for agricultural research in amounts that "today still totals less than $200,000 each year " The U S  Court of Appeals for the Eleventh Circuit held that the state's current funding allocation was traceable to de jure segregation and instructed the lower court on remand to make determinations with respect to the second and third parts of the Fordice test  On the issue of practicable elimination, the Eleventh Circuit observed that reduced efficiency would not necessarily render a proposed modification impracticable or educationally unsound  By contrast, the Fifth Circuit affirmed a district court's ruling that permitted a state to retain its traceable funding practices  There, despite finding traceability and discriminatory effects, the district court had concluded, based on inefficiencies related to running more than one agricultural research program, that it was not practicable for the state to eliminate its exclusive funding allocation to its formerly white-only land grant institution  The Supreme Court has not revisited its analysis in Fordice , leaving open questions about the permissible applications of its three-part legal standard to an array of fact patterns and legal theories  Similarly, as discussed above, few courts of appeals have addressed claims under Fordice , limiting the development and interpretation of Fordice in federal case law  One such unresolved question is under what circumstances, if any, traceability can be established under Fordice when a state makes changes to an originally discriminatory policy such that the current policy functions differently, but there is still some evidence of traceability between the two, or perpetuation of similar segregative effects under the changed policy as under the original policy  In addition, the Supreme Court and circuit courts have not yet expressly addressed how far a district court may go in remedying an unconstitutional vestige or remnant of a prior de jure public university system  In the K-12 context, the Supreme Court has upheld district court orders that set certain faculty and student ratios at schools in noncompliant school districts, to desegregate them pursuant to Brown and its progeny   It remains unclear, however, whether the district courts enjoy similar authority under Fordice to order similarly extensive remedies  Indeed, the few cases alleging Fordice -type claims that did reach the federal appellate courts ultimately resolved in settlements, thus leaving little judicial guidance on the scope of a court's authority to mandate specific remedies if a state fails to dismantle its formerly de jure segregated public university system  With respect to these unresolved questions, the Supreme Court's express reliance in Fordice on precedent addressing de jure segregation in the primary and secondary school context suggests that at least some of this same precedent should inform future analyses, with adaptation to the higher education context  A finding of a state entity's intent to segregate students by race in the higher education context is critical to showing a violation of the Equal Protection Clause, and has significant legal consequences  In such cases of de jure —that is, intentional, state-imposed —segregation, the state has an affirmative duty under the Equal Protection Clause to eliminate all vestiges of its de jure system by dismantling the infrastructure and other mechanisms that produced the discriminatory segregation  According to the Supreme Court's 1992 Fordice decision, this duty commands more than just the repeal of state laws sanctioning racial segregation in higher education  The state must also uproot or reform any policy or practice "traceable" to its formerly de jure system that continues to have discriminatory effect  In Fordice , the state's intent to racially segregate its higher education system was plain: with the founding of the University of Mississippi in 1848, Mississippi explicitly set out to create a public university "dedicated to the higher education exclusively of white persons," and racially segregated its public university system over the next 100 years through the creation of other "exclusively white institutions" and "solely black institutions " Nor was Mississippi's system unique in this regard  "[D]ual system[s]" of public higher education—one for black students, another for white—were codified in other state and local laws throughout the country  Thus far, federal courts that have addressed de jure segregation in higher education have done so in the context of such codified segregation, as in Fordice   The absence of a codified dual system of higher education, however, may not mean that a university system was not or is not intentionally segregated  As reflected in the Supreme Court decision Keyes v  School District No  1, Denver, Colorado , even when state authorities have not segregated their public schools by statute, they may still have engaged in unconstitutional racial segregation  Thus, in the K-12 context, federal courts have found de jure segregation based on evidence reflecting a state actor's impermissible segregative intent  This line of cases would appear to apply in the context of higher education as well  As the Court noted in Fordice , where a plaintiff is unable to show that a policy or practice is a vestige of prior de jure segregation, she may nonetheless prove a "new" constitutional violation with evidence of a present-day intent to racially segregate students "under traditional principles" governing discriminatory intent  This would be consistent with the Court's application of Brown and its progeny broadly across "the field of public education," including higher education, as reflected in Fordice   Because the Supreme Court has yet to address segregative intent in higher education, it is unclear what intent evidence would be sufficient to establish a de jure segregated public university or institution, apart from a law codifying such segregation  As a general matter, though, a court's determination of discriminatory intent is a fact-intensive, "sensitive inquiry " And the Supreme Court has observed that this is even more so in cases alleging de jure segregation in public education  Where the evidence indicates, for example, that a state actor undertook a policy or practice knowing that doing so would have the "foreseeable" effect of segregating students by race, that evidence may support an inference of de jure segregation  In addition, at least in the K-12 context, a finding of a state entity's segregative intent in one part of a school system creates a rebuttable presumption that segregation found in other parts of the same system was also intentional  De jure segregation proved by such nonstatutory evidence generally triggers the same affirmative obligation on the state to eliminate the vestiges of its state-imposed segregation, as when de jure segregation is shown through state or local laws  Though segregative intent analyses at the K-12 level may be instructive, the guidance these decisions provide may be limited by the nature of the evidence at issue in those particular cases: the method of student assignment to elementary or secondary schools, for example, or the drawing of attendance zones to create racially segregated schools  It appears unlikely that such evidence would be at issue or directly applicable in cases alleging segregative intent at the collegiate or graduate level  Nonetheless, these decisions generally suggest that categorical distinctions—between evidence indicative of de jure segregation and evidence of existing segregation insufficiently linked to state intent—are difficult to draw  Indeed, given the difficulties that can arise in a court's analysis of "segregative intent," over the years a number of Justices have called into question the rationale and basis for the distinction between de jure and so-called de facto segregation, though the majority of the Court has recognized and continues to recognize this distinction  Whatever the open questions may be regarding the evidence sufficient to show segregative intent, particularly in the higher education context, Fordice instructs that a plaintiff need not provide evidence of new discriminatory intent when alleging that a state has failed to eliminate vestiges of a prior de jure segregated system  And with respect to remedying intentional racial segregation, the Court has repeatedly held that a state not only may use a broad array of explicit race-conscious policies and practices to remedy its constitutional violation, but often must do so  By themselves, race-neutral measures simply may not be enough, the Court has explained, to provide equitable, make-whole relief for intentionally segregative acts  This affirmative obligation to consider race arises, however, only in the context of de jure segregation  Outside that de jure context, institutions of higher education subject to the Equal Protection Clause have no such duty to remedy racial segregation  Nor may they—or the federal courts, for that matter—use the same broad array of race-conscious measures available for remedying de jure segregation  De jure segregation, however, is not the only context in which race-conscious measures in higher education may be used  For over forty years colleges and universities have considered race as a way of increasing the racial diversity of their student bodies, independent from a legal basis relating to de jure segregation  Thus far, however, the Supreme Court has addressed only one type of discretionary race-conscious measure in the higher education context: admissions policies  And when evaluating these discretionary policies, the Court reviews them under a notably different analytical lens, looking to their precision in achieving certain concretely defined and "compelling" educational interests, as explained more fully below  "Affirmative action" in its original sense grew out of the states' affirmative obligation under the Equal Protection Clause to rid their public institutions of the lingering vestiges of de jure segregation  But "affirmative action" has also come to refer to race-conscious policies developed outside this de jure context  These are policies voluntarily adopted by institutions to help racial minorities overcome the effects of their earlier exclusion  And unlike the measures ordered by the courts to right the wrongs of de jure segregation, these policies are strictly voluntary, with their legality consequently turning on constitutional considerations unlike those involved in the de jure context  "Affirmative action" in this more familiar, voluntary sense has also been among the most contentious subjects in constitutional law  In the forty years since Regents of the University of California v  Bakke , when the Court first addressed those programs' constitutionality, the Justices have divided sharply over when or whether such programs can survive constitutional scrutiny  And a major point of disagreement among the Justices—lingering to this day —is how strictly to review those policies and what the government or other state entity must do to justify its use of "benign" racial classifications  In recent decisions, the Court has reviewed such classifications under a seemingly "elastic" regime of strict scrutiny, accepting those classifications only where they have been narrowly tailored to serve compelling government interests  The constitutional guarantee of equal protection broadly prohibits the government from employing "arbitrary classification[s] " And the use of racial classifications in particular has long been of special concern for the courts  Indeed, this "heightened judicial solicitude" for racial categorizing has roots nearly as old as the Fourteenth Amendment itself  As the Supreme Court explained in an early decision under the Amendment, the "spirit and meaning" of the Equal Protection Clause was "that the law in the States shall be the same for the black as for the white; that all persons, whether colored or white, shall stand equal before the laws of the States, and, in regard to the colored race,     that no discrimination shall be made against them by law because of their color " In the decades since, the Court has only made clearer that it regards the government's use of racial classifications as "inherently suspect" and therefore subject to more demanding scrutiny than other classifications, which are typically reviewed only for basic rationality  There has been significant disagreement, however, over just how rigidly the courts should scrutinize a racial classification, especially when the point of the classification is to benefit racial minorities, as in the case of affirmative action  That issue came before the Court for the first time in Bakke , involving a challenge to an affirmative action admissions program begun at the then newly created medical school at the University of California at Davis (the Medical School)  And the Court's fractured decision there prefigured the central disagreements that the Justices still face in reviewing so-called "benign" racial classifications  In the early 1970s, not long after the Medical School opened, it adopted a race-conscious admissions policy to increase its enrollment of certain "disadvantaged" students  Under that policy, the school each year would set aside 16 seats in its entering class of 100 specifically for members of this "disadvantaged" group, to be admitted by a "special admissions" committee  Although many white students sought admission under this "special" policy, the committee considered only students of specifically identified racial minorities  After Allan Bakke, a white male, twice sought—and was denied—admission to the school, he brought suit challenging the set-aside under the Equal Protection Clause as well as Title VI, which prohibits institutional recipients of federal funds—like the Medical School—from discriminating on the basis of race  Bakke's case eventually found its way to the Supreme Court and into the hands of a divided bench  The Justices found themselves particularly at odds over the case's threshold question—what level of scrutiny the Court should apply in reviewing Bakke's challenge  Justice Stevens, writing for a quartet of Justices, concluded that the program violated Title VI, sidestepping the constitutional question  Another four Justices would have reached the equal protection challenge, and in doing so would have required the Medical School to point to "important governmental objectives" that justified its admissions policy's use of "remedial" racial classifications, along with evidence that their use was "substantially related to" achieving those important objectives   Under that standard—a form of intermediate scrutiny —these Justices would have upheld the policy  Justice Powell, announcing the Court's judgment but writing for himself, insisted that all "racial and ethnic distinctions" drawn by the government must be regarded as "inherently suspect," calling for "the most exacting judicial examination " What that meant in Bakke , according to Justice Powell, was that the Medical School would need to prove that its use of the "special admissions" carve-out was "precisely tailored to serve a compelling governmental interest"—the standard of review now known simply as strict scrutiny   And because, in his view, the school could come forward with no such proof, Justice Powell concluded that its affirmative-action policy could not survive the Court's scrutiny, whether under the Fourteenth Amendment or the overlapping standards of Title VI  Because Bakke yielded no majority opinion, it could only hint at how the Court might treat other "benign" race-conscious policies that did not involve the sort of apparent quota invalidated in that case or cases outside the unique context of higher education  That uncertainty would last another decade, as the Court, in another series of splintered decisions, weighed constitutional challenges to differently structured affirmative action policies in other contexts, each time without resolving the appropriate standard of review  That uncertainty appeared to abate with the Court's 1989 decision in Richmond v  J A  Croson , Co  There, for the first time, five Justices clearly signaled that they would apply strict scrutiny to affirmative action plans implemented at the state and local levels, including the program they invalidated in that case, involving the City of Richmond's set-aside of public work funds for minority-owned businesses  But the next year, in Metro Broadcasting, Inc  v  FCC , the Court, in another 5-4 ruling, suggested that it would review federal affirmative action plans differently  In the Court's view there, "benign race-conscious measures mandated by Congress " need only "serve important governmental objectives" and be "substantially related to the achievement of those objectives"—satisfying an intermediate level of scrutiny  Just a few years later, however, in Adarand Constructors, Inc  v  Peńa , the Supreme Court reversed course  There, in a federal contracting case, the Court drew a different lesson from its pre- Metro line of race-classification cases: in the view of the Adarand majority, "any person, of whatever race, has the right to demand that any governmental actor subject to the Constitution justify any racial classification subjecting that person to unequal treatment under the strictest judicial scrutiny " That simple rule therefore precluded the divided regime upheld in Metro Broadcasting , subjecting the states' use of racial classifications to strict scrutiny, while relaxing the review of comparable classifications enacted by Congress  Instead, the Adarand Court held, "[f]ederal racial classifications, like those of a State, must serve a compelling governmental interest, and must be narrowly tailored to further that interest " And to the extent that Metro Broadcasting was "inconsistent" with that uniform rule, it was accordingly overruled  After Adarand strict scrutiny therefore became the test of any classification that subjected individuals to unequal treatment based on their race, no matter which state actor was doing the classifying  And the Court expressly extended that holding to the context of higher education  As the Court reaffirmed in Fisher v  University of Texas , "because racial characteristics so seldom provide a relevant basis for disparate treatment," "[r]ace may not be considered [by a university] unless [its] admissions process can withstand strict scrutiny " It therefore appears that a classification that subjects individuals to unequal treatment because of their race, even if for a "benign" purpose, will have to satisfy strict scrutiny  In its canonical formulation, that test calls for measuring such classifications along the two dimensions Justice Powell identified in Bakke : (1) the classification must serve a compelling governmental interest and (2) the use of that classification must also be narrowly tailored to achieving that interest  The government has the burden of proving both, and neither is easy to do  Indeed, in the sixty years that separated the Court's now-repudiated decision in Korematsu v  United States from Grutter v  Bollinger , when the Court first upheld an affirmative action policy at a public university, the only other "racial classifications upheld under strict scrutiny [have been] race-based remedies for prior racial discrimination by the government " To many commentators "strict scrutiny" has thus come to seem rather more "strict in theory, but fatal in fact" —a point sometimes echoed by the Justices themselves  Strict scrutiny may typically be fatal in fact, but affirmative action policies in higher education have been a notable exception  Partly this has to do with the Equal Protection Clause itself, and the often crucial difference that a particular context makes in deciding cases under that "broad provision[] " And for several Justices the context of affirmative action, involving the arguably "benign" use of race, has seemed particularly distinctive  Yet, despite this contextual difference, the Court has made it clear that its scrutiny of race-conscious admission policies is still every bit as strict  Or, as Justice Kennedy put the point in the first Fisher case, even though "[s]trict scrutiny must not be 'strict in theory, but fatal in fact,'" it must also "not be strict in theory but feeble in fact " This seeming tension—between the strictness of the Court's scrutiny and its approval of race-conscious admissions policies—has led the Court to adjust its framework for scrutinizing similar policies over the years
Report 2:  See appendix III for a sample RVAR template  We analyzed 81 RVARs developed by the 10 FEMA regions from July 2012 through December 2016 and found that regions did not consistently obtain and document information on all elements related to each of the six regulatory factors in their RVARs  As shown in table 6, all 81 RVARs had at least some elements documented but not all for each of the IA regulatory factors  For example, for the IA concentration of damages regulatory factor, the six elements to be addressed include the number of homes destroyed, damaged or affected, damage concentration, and damage to critical facilities  While 44 of the 81 RVARs documented all of the six elements, 37 documented some but not all of the elements  Similarly, for the trauma regulatory factor, the four elements to be addressed include injuries, death, power outages, and disruption of community functions  While 30 of the 81 RVARs documented all of the four elements, 51 documented some but not all of the elements  For the insurance coverage factor, while five RVARs documented all of the elements, 73 RVARs documented some but not all of the elements  Elements under this factor include home ownership, insurance, and flood insurance, when applicable  None of the six regulatory factors were fully documented across all RVARs  See appendix IV for detailed information on the extent to which all of the elements of the six regulatory factors were documented in the RVARs from July 2012 through December 2016  FEMA headquarters officials acknowledged that information related to all the elements for each of the IA regulatory factors were missing from the RVARs  They stated that they had not collected all information on all factors because one factor may have more weight than another based on the specific incident that has occurred  However, they also indicated that they do not fully know and have not evaluated all of the reasons why a region may have omitted information on an element of a factor  FEMA headquarters officials agreed that having complete information on all elements of the regulatory factors in the RVARs would assist in their recommendation process  Standards for Internal Control in the Federal Government suggest that agencies should establish and operate monitoring activities to ensure that internal controls—such as the documentation of all of the elements of the IA regulatory factors FEMA regions considered—are effective, and to take corrective actions as appropriate  Because it is unclear why regions are not completely documenting all elements related to the current six regulatory factors, such an evaluation could help FEMA identify whether any corrective steps are needed  Doing so could help FEMA ensure it is achieving its stated goals in providing consistency in the evaluation process and in the types of factors it considers  Officials we interviewed in 9 of the 10 FEMA regions and state emergency management offices in all 11 states reported the positive relationship they maintain with each other as a strength in the IA declaration process  For example, both FEMA regional officials and state emergency management officials stated that they have a good working relationship and are in regular communication via telephone or in-person meetings with each other  Also, state emergency management officials we spoke to stated that whenever they are in need of assistance, they know they can reach out to FEMA regional officials for assistance  However, FEMA regional and state emergency management officials we spoke to also reported various challenges with the process  These include the subjective nature of the IA regulatory factors given the lack of eligibility thresholds, the lack of transparency in the decision-making process, and difficulty gathering information on IA regulatory factors  Subjective nature of the IA factors and lack of eligibility thresholds  Officials from 9 of 10 FEMA regions stated the subjective nature of the IA program is a challenge; and officials in 6 of the 10 regions also said they found the lack of eligibility thresholds a challenge  An official in one region stated that unlike FEMA’s Public Assistance program, which has minimum thresholds for eligibility, it is unclear when states should apply for IA funds  Under the Public Assistance program, for example, for states or tribes to qualify for assistance, they must demonstrate that they have sustained a minimum of $1 million in damages and the impact of damages must amount to $1 00 per capita in the state  An official in another region explained that although the subjectivity of the IA factors provides flexibility in determining the type of IA program needed, having some quantifiable criteria could help officials explain to states why their requests were denied or approved  Similarly, officials we interviewed in 7 of the 11 states said they found the subjective nature of the factors with no threshold to be a challenge  A state emergency management official in one state said this subjectivity makes it difficult to determine whether or not the state should make an IA request  A state emergency management official in another state reported that the subjectivity can cause the IA declaration process to be inconsistent, and it is not always clear how or why certain declarations were approved and others were not  Further, a state emergency management official in an additional state also pointed to the subjective nature of the factors with no threshold as a reason for not being able to provide a more detailed rationale behind a declaration denial  To illustrate this, table 7 shows how four states requested IA declarations related to the same tornado in 2012 and varied in what they reported across the six IA factors, such as the levels of damages incurred, special populations among their residents, and insurance coverage  Two of these four states—Kentucky and Indiana—received IA declarations and the other two—Ohio and Illinois—were denied  Lack of transparency  Another challenge reported by FEMA regional and state emergency management officials was the lack of transparency in how FEMA evaluates and provides a recommendation to the President on whether a declaration is warranted  For example, officials we interviewed in 4 of 10 regions indicated the lack of transparency as a challenge  A FEMA official in one region stated that the region would like more transparency regarding what FEMA headquarters recommends to the President and whether the President’s decision aligns with FEMA’s recommendation  State emergency management officials we interviewed in 10 of 11 states also reported that lack of transparency with the IA process is a challenge  For example, an emergency management official in one state said it is not clear how or if FEMA considers all of the factors  Also, an emergency management official in another state reported that it was unclear to him why his state’s declaration request was denied while the requests of other states with similar incidents were declared  Difficulty gathering information on IA regulatory factors  Officials in 4 of 10 FEMA regions reported difficulty gathering information, such as income or insurance coverage, as a challenge  An official in one region stated that it is difficult to obtain information related to IA factors from states  For example, the official said that calculating the concentration of damages is difficult absent technical guidance from FEMA headquarters, as the current guidance only accounts for the number of structure damage but not the impact of damage  Further, officials in two FEMA regions stated that states lack a dedicated IA official, making it difficult for state officials, who play multiple roles, to provide the necessary information related to the IA factors in their IA declaration request  Additionally, a state emergency management official in one state also reported that lack of staff resources in her state makes it difficult to verify all the local damage assessments prior to making a declaration request  Pursuant to the Sandy Recovery Improvement Act of 2013, in November 2015, FEMA issued a Notice of Proposed Rulemaking to revise the six current IA regulatory factors to the following proposed factors: state fiscal capacity and resource availability; uninsured home and personal property losses; disaster-impacted population profile; impact to community infrastructure; casualties; and disaster-related unemployment  According to FEMA headquarters officials, the revisions aim to provide more objective criteria, clarify the threshold for eligibility, and speed the declaration  The officials said the proposed rule also seeks to provide additional clarity and guidance for all the established factors  Table 8 shows FEMA’s description of current and proposed IA factors  FEMA received public comments from 14 states in the Federal Register during the comment period for the proposed rule and proposed guidance  The 14 states expressed concern about the proposed factor for state fiscal capacity and resource availability, including the reliability and relevance of data sources such as total taxable resources  These states expressed concern that the data collection necessary to meet the new requirements would fall upon them, adding to the cost burden of completing an IA disaster declaration request  They also explained that the use of total taxable resources and other similar data is not an effective way to assess a state’s current ability to provide resources following a disaster  Also, these states indicated that the data points such as total taxable resources and per capita personal income that would be used to evaluate state fiscal capacity are outdated and inaccurate and would be an inefficient way to evaluate a state’s true fiscal capacity to respond to a disaster  Regarding the other five proposed factors, several states in their comments raised questions about ambiguities in interpreting the factors or the feasibility and cost of gathering related data  For example, in regards to the factor on disaster impacted population, five states expressed concern that the data required for the disaster-impacted population factor would be a cost burden to the state or that the data would be inappropriate for evaluation  Additionally, two states said unemployment related to a disaster incident for the disaster-related unemployment factor would be hard to quantify in the first 30 days following a disaster  They stated that this was especially an issue given that states work to submit an IA disaster declaration request as soon as possible following a disaster  According to the Office of Management and Budget’s Office of Information and Regulatory Affairs website, the projected date for finalization of the proposed rule is September 2018; however, as of April 2018, FEMA officials stated that they were not certain whether that timeframe would be met  Until the proposed rule is finalized, we will not know the extent to which the various challenges FEMA regions and state officials raised in our interviews and in comments on the proposed rule will be addressed  FEMA has obligated over $8 6 billion nationwide in IA from calendar years 2008 through 2016, highlighting the importance of FEMA’s evaluation of states’ and tribes’ IA declaration requests  FEMA’s regional offices evaluate the request and make a regional recommendation through the Regional Administrator’s Validation and Recommendation, which documents information on all relevant IA regulatory factors  FEMA has developed the Regional Administrator’s Validation and Recommendation to ensure regions consistently obtain and document the information needed by FEMA to make a disaster declaration recommendation to the President based on the IA regulatory factors  However, FEMA’s regional offices do not consistently obtain and document information on all elements of the current IA regulatory factors  Because it is unclear why regions are not always documenting all of the elements related to these factors, evaluating the reasons why could help FEMA identify if any corrective steps are needed  Doing so could also help FEMA ensure it is meeting its stated goals in providing consistency in the evaluation process and in the types of factors it considers  We recommend that the Administrator of FEMA evaluate why regions are not completing the Regional Administrator’s Validation and Recommendations for each element of the current IA regulatory factors and take corrective steps, if necessary  We provided a draft of this report to DHS for its review and comment  DHS provided written comments, which are summarized below and reproduced in full in appendix V  DHS concurred with the recommendation and described planned actions to address it  In addition, DHS provided written technical comments, which we incorporated into the report as appropriate  DHS concurred with our recommendation that FEMA evaluate why regions are not completing the Regional Administrator’s Validation and Recommendations for each element of the IA regulatory factors and take corrective steps, if necessary  DHS stated that a FEMA working group consisting of headquarters stakeholders will draft survey questions for FEMA region officials to identify the common reasons why an element of an IA regulatory factor may not be addressed within a RVAR  According to DHS, the working group will also analyze, assess, and present the findings of the survey responses to FEMA senior leadership, and if needed, FEMA will develop and send a memorandum to the regions with additional guidance regarding the appropriate preparation of RVARs  DHS stated that the estimated completion date is in the fall of 2018  These actions, if implemented effectively, should address the intent of our recommendation  We will send copies of this report to the Secretary of Homeland Security, the FEMA Administrator, and the appropriate congressional committees  If you or your staff have any questions about this report, please contact me at (404) 679-1875 or curriec@gao gov  Contact points for our Offices of Congressional Relations and Public Affairs may be found on the last page of this report  Key contributors to this report are listed in appendix VI  Table 9 provides the total number of Individual Assistance declaration requests made, declared, and denied, by region, state, and tribe for disaster declarations requested from calendar years 2008 through 2016  Table 10 provides Federal Emergency Management Agency’s (FEMA) Individual Assistance (IA) actual obligations for declarations made from calendar years 2008 through 2016 by state and type of disaster  As part of the Federal Emergency Management Agency’s (FEMA) declaration process, FEMA’s regional offices are to evaluate states’ or tribes’ declaration requests, including the IA declaration request, and make a recommendation called the Regional Administrator’s Validation and Recommendation (RVAR) and submit the RVAR to FEMA headquarters  In June 2012, FEMA headquarters issued a template for FEMA regional offices to use in developing the RVAR as identified in figure 3  Tables 11 through 16 provide information on each element of the 6 Individual Assistance (IA) regulatory factors documented in the Regional Administrator’s Validation and Recommendation (RVAR) from July 2012 through December 2016 by the Federal Emergency Management Agency region  In addition to the contact named above, Aditi Archer (Assistant Director), Su Jin Yon (Analyst-In-Charge), Hiwotte Amare, Eric Hauswirth, Susan Hsu, Jun S  (Joyce) Kang, Christopher Keisling, Heidi Nielson, Hadley Nobles, Anne Rhodes-Kline, and Jerome (Jerry) Sandau made significant contributions to this report 

ground_truth: In February 2017, components of California's Oroville Dam failed, leading to the evacuation of nearly 200,000 nearby residents. FERC is the federal regulator of the Oroville Dam and over 2,500 other dams associated with nonfederal hydropower projects nationwide. FERC issues and renews licenses—which can last up to 50 years—to dam operators and promotes safe dam operation by conducting safety inspections and reviewing technical engineering studies, among other actions. GAO was asked to review FERC's approach to overseeing dam safety. This report examines: (1) how FERC collects information from its dam safety inspections and the extent of its analysis, and (2) how FERC evaluates engineering studies of dam performance to analyze safety, among other objectives. GAO analyzed documentation on a non-generalizable sample of 42 dams associated with projects relicensed from fiscal years 2014 through 2017, selected based on geography and hazard classifications, among other factors. GAO also reviewed FERC regulations and documents; and interviewed FERC staff associated with the selected projects and technical consultants, selected based on the frequency and timing of their reviews. The Federal Energy Regulatory Commission's (FERC) staff generally followed established guidance in collecting safety information from dam inspections for the dams GAO reviewed, but FERC has not used this information to analyze dam safety portfolio-wide. For these 42 dams, GAO found that FERC staff generally followed guidance in collecting safety information during inspections of individual dams and key structures associated with those dams. (See figure.) However, FERC lacks standard procedures that specify how and where staff should record safety deficiencies identified. As a result, FERC staff use multiple systems to record inspection findings, thereby creating information that cannot be easily analyzed. Further, while FERC officials said inspections help oversee individual dam's safety, FERC has not analyzed this information to identify any safety risks across its portfolio. GAO's prior work has highlighted the importance of evaluating risks across a portfolio. FERC officials stated that they have not conducted portfolio-wide analyses because officials prioritize the individual dam inspections and response to urgent dam safety incidents. However, following the Oroville incident, a FERC-led initiative to examine dam structures comparable to those at Oroville identified 27 dam spillways with varying degrees of safety concerns, on which FERC officials stated they are working with dam licensees to address. A similar and proactive portfolio-wide approach, based on analysis of common inspection deficiencies across the portfolio of dams under FERC's authority, could help FERC identify safety risks prior to a safety incident. Guidelines recognize that each dam is unique and allow for flexibility and exemptions in its use. FERC staff use the studies to inform other components of their safety approach, including the analysis of dam failure scenarios and their review of safety to determine whether to renew a license. GAO recommends that FERC: (1) develop standard procedures for recording information collected as part of its inspections, and (2) use inspection information to assess safety risks across FERC's portfolio of dams. FERC agreed with GAO's recommendations.

prompt_front: You are given two reports by the government agency.



Question: Write a one-page summary of the report 2.

Report 1: According to the National Inventory of Dams, as of January 2016 there are approximately 90,500 dams in the United States and about 2 5 percent of these (approximately 2,100 dams) are associated with hydropower projects  Hydropower projects are owned and operated by both non-federal entities—such as private utility companies, municipalities, and state government agencies—or federal government agencies—primarily the U S  Army Corps of Engineers (the Corps) and the Bureau of Reclamation  Collectively, these dams associated with hydropower projects account for about 8 percent of the total electric generating capacity in the United States  Hydropower projects generally consist of one or more dams and other key components associated with hydroelectric power generation and water storage, and are uniquely designed to accommodate watersheds, geology, and other natural conditions present at the time of construction  These components include both those that allow operators to adjust reservoir water levels, such as spillways and gates, as well as those that produce and distribute electricity, such as transmission lines and powerhouses, among others  (See fig  1 ) The Federal Power Act provides for FERC’s regulatory jurisdiction over a portfolio of about 1,000 non-federal hydropower projects comprising over 2,500 dams  While FERC does not construct, own, or operate dams, it licenses and provides oversight of non-federal hydropower projects to promote their safe operation  Licensees are responsible for the safety and liability of dams, pursuant to the Federal Power Act, and for their continuous upkeep and repair using sound and prudent engineering practices  FERC officials in each of the agency’s five regional offices work directly with licensees to help ensure these projects comply with licenses and meet federal guidelines for dam safety  In addition, stakeholder groups such as the Association of State Dam Safety Officials can assist licensees in staying current on federal and state dam laws and regulations, dam operations and maintenance practices, and emergency action planning, among other things  FERC’s regulations, supplemented by its Operating Manual and Engineering Guidelines, establish a framework for its dam safety oversight approach  FERC’s Operating Manual provides guidelines for the FERC staff performing inspections that are aimed at ensuring that structures are safe, are being properly maintained, and are being operated safely  FERC’s Engineering Guidelines provides FERC staff and licensees with procedures and criteria for the review and analysis of license applications, project modification proposals, technical studies, and dam designs  For example, one chapter presents guidelines for FERC staff to use to determine the appropriateness and level of geotechnical investigations and studies for dams  The Engineering Guidelines states that every dam is unique and that safety analysis of each dam require that engineers apply technical judgement based on their professional experience  As part of FERC’s safety oversight approach, it assigns a hazard classification to each dam in accordance with federal guidelines that consider the potential human or economic consequences of the dam’s failure  The hazard classification does not indicate the structural integrity of the dam itself, but rather the probable effects if a failure should occur  Depending on the hazard classification, the extent of and the frequency of safety oversight activities can vary  Low hazard dams are those where failure —an uncontrolled release of water from a water-retaining structure—would result in no probable loss of human life but could cause low economic and/or environmental losses  Significant hazard dams are those dams where failure would result in no probable loss of human life, but could cause economic loss, environmental damage, or other losses  High hazard dams are those dams where failure would probably cause loss of human life  FERC has designed a multi-layered oversight approach that involves both independent and coordinated actions with dam owners and independent consultants  Key elements of this approach include ensuring licensees have a safety program in place, conducting regular safety inspections, reviewing technical analyses, and analyzing safety as a part of project relicensing  (See fig  2 ) Licensee’s dam safety program  According to FERC guidance, licensees have the most important role in ensuring dam safety through continuous visual surveillance and ongoing monitoring to evaluate the health of the structure  Beyond this expectation for continuous oversight, FERC requires licensees of high and significant hazard dams to have an Owner’s Dam Safety Program  FERC dam safety inspection  The dam safety inspection, also called operation inspection, is a regularly-scheduled inspection conducted by a FERC regional office project engineer primarily addressing dam and public safety  FERC’s Operating Manual establishes the frequency that a FERC engineer conducts dam safety inspections  Independent consultant inspection and potential failure mode analysis  FERC requires licensees to hire a FERC-approved independent consulting engineer to inspect and evaluate high hazard dams and certain types of dams above a certain height or size and submit a report detailing the findings  Additionally, FERC requires the licensee of a high or significant hazard dam to conduct a potential failure mode analysis  A potential failure mode analysis is an exercise to identify and assess all potential failure modes under normal operating water levels and under extreme conditions caused by floods, earthquakes, and other events  FERC relicensing of projects  FERC issues hydropower licenses for the construction of new hydropower projects, and reissues licenses for existing projects when licenses expire  Licensees may submit applications for a new license for the continued operation of existing projects as part of a process known as relicensing  During relicensing, in addition to the power and development purposes for which FERC issues licenses, FERC must evaluate safety, environmental, recreational, cultural, and resource development among other factors when evaluating projects, according to its guidance  In addition, FERC requires licensees to conduct various engineering studies related to dam performance in accordance with FERC safety requirements  Required engineering studies focus on dam performance as affected by hydrology, seismicity, and dam stability  Licensees may also produce engineering studies, such as a focused spillway assessment, for their own operations or at the request of FERC  We found, based on our analysis of the 42 dam safety inspections we reviewed, that FERC staff generally conducted and collected information from these inspections consistent with guidance in its Operating Manual  According to FERC’s Operating Manual, staff’s approach to conducting these inspections and collecting information is to include preparing for the inspection by reviewing documents, conducting a field inspection of the dam and associated project components, and discussing inspection findings with licensees and with FERC supervisors  Preparation for inspection: We found that FERC staff generally met document review requirements in preparation for safety inspections of the 42 dams we reviewed  (See table 1 ) According to the Operating Manual, FERC staff are to review safety-related information contained in documents such as potential failure mode analyses and hazard potential classifications  For example, we found that staff documented their review of the most recent independent consultant inspection report and potential failure mode analysis for each of the 16 high hazard dams we reviewed  FERC staff told us that they generally used checklists when preparing for these inspections  For example, some of the staff told us they tailor the checklist included in the Operating Manual, based on the dam’s type, characteristics, and hazard classification  Additionally, for each of the dams in our sample, staff stated that they prepared for the inspection by reviewing prior inspection reports and recommendations  Field inspection: We found that FERC staff generally met requirements for reviewing project components and documenting their findings from field inspections of the 42 dams we reviewed  (See table 2 ) According to the Operating Manual, FERC staff are to conduct visual inspections of the dam, typically alongside the licensee, to assess the dam and project components by observing their condition and identifying any safety deficiency or maintenance requirement  Also during the inspection, FERC staff are to compare current conditions of the dam and project components to those described in prior inspection reports, and as applicable, collect information on the licensee’s progress towards resolving deficiencies and maintenance issues that can affect safety  To assess safety, FERC staff we interviewed stated that they primarily rely on their engineering judgment  Inspection findings: According to our interviews with FERC staff from selected projects, we found that staff generally followed FERC guidance in discussing inspection findings with licensees and supervisors prior to preparing inspection reports to document their findings  According to the Operating Manual, following the dam safety inspection, FERC staff are to discuss the inspection with the licensee, giving direction on how to address any findings  Additionally, upon returning to the office, staff are to discuss inspection findings with their supervisors who may suggest additional actions  FERC staff are then to develop a dam safety inspection report that documents observations and conclusions from their pre-inspection preparation and their field inspection and identifies follow-up actions for the licensee  We found that FERC staff prepared inspection reports to document findings from the 42 dam safety inspections we reviewed  In response to inspection findings, FERC requires licensees to submit a plan and schedule to remediate any deficiency, actions that FERC staff then reviews, approves, and monitors until the licensees have addressed the deficiency  While we found that FERC staff conducted inspections and collected inspection findings consistently in the files we reviewed, FERC’s approach to recording information varies across its regions, thus limiting the usefulness of the information  FERC’s approach to recording inspection information relies on multiple systems to record inspection information and affords broad discretion to its staff on how to characterize findings, such as whether to track inspection findings as maintenance issues or as safety deficiencies  As related to systems for recording inspection information, FERC staff use the Data and Management System (DAMS), the Office of Energy Projects-IT (OEP-IT) system, as well as spreadsheets  In particular, according to FERC staff: Four out of FERC’s five regional offices use DAMS—which is primarily a workload tracking tool—to track plans and schedules associated with safety investigations and modifications as well as inspection follow-up items  FERC staff stated that since the inspection information in DAMS is recorded as narrative text in a data field instead of as discrete categories, sorting or analysis of the information is difficult  One regional office uses OEP-IT to track safety deficiencies while the system is more widely used across FERC to track licensees’ compliance with the terms and conditions of their licenses  Three out of FERC’s five regional offices also use spreadsheets and other tools that are not integrated with DAMS or OEP-IT to track inspection information and licensee progress toward resolving safety deficiencies  FERC staff said that use of these different systems to record deficiencies identified during inspections limits their ability to analyze safety information  For example, according to FERC officials, OEP-IT was not designed to track safety deficiency information and is not compatible with DAMS for use in tracking information on a national level  Furthermore, because spreadsheets and other tools are specific to the regional office in which they are used, FERC staff does not use the information they contain for agency-wide analysis  Concerning decisions on how to characterize inspection findings, FERC staff relies on professional judgment, informed by their experience and the Engineering Guidelines, to determine whether to track inspection findings as a safety deficiency or as a maintenance item, according to FERC officials  With input from their supervisors, FERC staff also determines what information to record and how to track the status of the inspection finding  For example, staff assigned to a dam at a FERC- licensed project in New Hampshire observed concrete deterioration on several parts of the dam and its spillway and asked the licensee to monitor all concrete surfaces, making repairs as necessary  According to staff we interviewed, regional staff and supervisors decided not to identify this as a deficiency to be tracked in DAMS because concrete deterioration is normal and to be expected in consideration of the area’s harsh winter weather  In contrast, staff assigned to a dam at a FERC- licensed project in Minnesota observed concrete deterioration on several parts of the project, including the piers and the powerhouse walls, and entered the safety item in DAMS as requiring repair by the licensee  FERC officials stated they are comfortable with the use of professional judgement to classify and address inspection findings because it is important to allow for consideration of the characteristics unique to each situation and how they affect safety  FERC’s approach to recording inspection information is inconsistent because FERC has not provided standard language and procedures about how staff should record and track deficiencies including which system to use  Federal standards for internal control state that agencies should design an entity’s information system and related control activities to achieve objectives and control risks  In practice, this means that an agency would design control activities—such as policies and procedures—over the information technology infrastructure to support the completeness, accuracy, and validity of information processing by information technology  FERC officials acknowledged that there are inconsistent approaches in where and how staff record safety deficiency information, approaches that limit the information’s usefulness as an input to its oversight  While the agency has not developed guidance, officials stated that FERC plans to take steps to improve the consistency of recorded information by replacing the OEP-IT system with a new system, tentatively scheduled for September 2018, that will have a specific function to track dam safety requirements  However, this new system will not replace the functions of DAMS, which FERC will continue to use to store inspection information  The two will exist as parallel systems with the eventual goal of the two systems’ sharing information  By developing standard language and procedures to standardize the recording of information collected during inspections, FERC officials could help ensure that the information shared across these systems is comparable, steps that would allow FERC to identify the extent of and characteristics associated with common safety deficiencies across its entire portfolio of regulated dams  Moreover, with a consistent approach to recording information from individual dam safety inspections, FERC will be positioned to proactively identify comparable safety deficiencies across its portfolio and to tailor its inspections towards evaluating them  While FERC uses inspection information to monitor a licensee’s efforts to address a safety deficiency for an individual dam, FERC has not analyzed information collected from its dam safety inspections to evaluate safety risks across the entire regulated portfolio of dams  For example, FERC has not reviewed inspection information to identify common deficiencies among certain types of dams  Federal standards for internal control state that agencies should identify, analyze, and respond to risks related to their objectives  These standards note that one method for management to identify risks is the consideration of deficiencies identified through audits and other assessments  Dam safety inspections are an example of such an assessment  As part of such an approach, the agency analyzes risks to estimate their significance, which provides a basis for responding to the risk through specific actions  Furthermore, in our previous work on federal facilities, we have identified that an advanced use of risk management involving the ability to gauge risk across a portfolio of facilities could allow stakeholders to comprehensively identify and prioritize risks at a national level and direct resources toward alleviating them  FERC officials stated that they have not conducted a portfolio-wide analysis in part due to the inconsistency of recorded inspection data and because such an evaluation has not been a priority compared to inspecting individual dams  According to officials, the FERC headquarters office collects and reviews information semi-annually from each of its five regional offices on the progress of outstanding dam investigations and modifications in those regions  FERC’s review is designed to monitor the status of investigations on each individual dam but does not analyze risks across the portfolio of dams at the regional or national level  For example, officials from the New York Regional Office stated they do not perform trend analysis across the regional portfolio of dams under their authority, but they compile year-to-year data for each separate dam to show any progression or changes from previous data collected from individual dams  A portfolio-wide analysis could help FERC proactively identify safety risks and prioritize them at a national level  FERC officials stated that a proactive analysis of its portfolio could be useful to determining how to focus its inspections to alleviate safety risks, but it was not an action that FERC had taken to date  The benefits of a proactive analysis, for example, could be similar to those FERC derived from the analysis it conducted in reaction to the Oroville Dam incident  To conduct this analysis, FERC required 184 project licensees, identified by FERC regional offices as having spillways similar to the failed spillway at the Oroville Dam, to assess the spillways’ safety and capacity  According to FERC officials, these assessments identified 27 dam spillways with varying degrees of safety concerns  They stated that FERC’s spillway assessment initiative was a success because they were able to target a specific subgroup of dams within the portfolio and identify these safety concerns at 27 dam spillways  FERC officials stated that they are working with the dam licensees to address these safety concerns  A similar and proactive approach based on analysis of common deficiencies across the portfolio of dams under FERC’s authority could also help to identify any safety risks that may not have been targeted during the inspections of individual dams and prior to a safety incident  As directed by FERC, licensees and their consultants develop and review, or update, various engineering studies related to dam performance to help ensure their dams meet FERC requirements and remain safe  FERC regulations and guidelines describe the types and frequency of studies and analyses required based on dams’ hazard classifications  For all high hazard and some significant hazard dams, existing studies are to be reviewed by each licensee’s consultants every 5 years, as part of the independent consultant inspection and accompanying potential failure mode analysis  According to FERC officials, for those significant hazard dams that do not require an independent consultant inspection and for low hazard dams, FERC’s regulations and guidelines do not require any studies, but in practice FERC directs many licensees to conduct them  FERC also may request engineering studies in response to dam safety incidents at other projects, or engage a board of consultants to oversee the completion of a study  For example, as previously noted, following the Oroville Dam incident in 2017, FERC requested a special assessment of all dams with spillways similar to the failed spillway at the Oroville Dam  To develop these studies, all six of the consultants we interviewed stated that they follow guidelines provided by FERC and other dam safety agencies  Specifically, they stated that they use FERC’s Engineering Guidelines, which provide engineering principles to guide the development and review of engineering studies  In recognition of the unique characteristics of each dam, including its construction, geography, and applicable loading conditions, the Guidelines provides consultants with flexibility to apply engineering judgment, and as a result, the approach that licensees and their consultants use and the focus of their reviews of engineering studies may vary across regions or projects  For example, one independent consultant we interviewed noted that seismicity studies are not highlighted during the independent consultant inspections for projects in the Upper Midwest in comparison to projects in other areas of the country because the region is not seismically active, but that inspections do look closely at ice loads during the winter months  To create these studies, we found that licensees and their consultants generally use data from other federal agencies and rely on available modeling tools developed by federal agencies and the private sector to evaluate dam performance  For example, many of the engineering studies we reviewed rely on data from the National Weather Service and the National Oceanic and Atmospheric Administration to estimate precipitation patterns and the U S  Geological Survey to estimate seismic activity  In addition, licensees and their consultants use modeling tools and simulations, such as those developed by the Corps to estimate hydrology, to develop engineering studies  FERC staff noted that the engineering studies developed by licensees and their consultants generally focus on the analysis of extreme events, such as earthquakes and floods  In reference to extreme events, FERC staff said that both actual past events and likely future events are considered in determining their magnitude  FERC staff noted the probable maximum flood—the flood that would be expected to result from the most extreme combination of reasonably possible meteorological and hydrological conditions—as an example of a dam design criterion that is based on application of analysis of extreme events  In describing the efficacy of probable maximum flood calculations, FERC officials stated that they had not observed a flood that exceeded the probable maximum flood calculated for any dam and noted that their Engineering Guidelines provides a conservative approach to estimating the probable maximum flood and other extreme events  FERC officials stated that requiring a conservative approach to estimating extreme events helps to mitigate the substantial uncertainty associated with these events, including in consideration of emerging data estimating the effects of climate change on extreme weather events  Once developed, engineering studies we reviewed often remained in effect for a number of years, until FERC or the licensee and its consultant determined an update was required  For example, we found that the hydrology studies were 20 years or older for 17 of the 42 dams in our review, including for 9 of the 16 high hazard dams in our sample  FERC’s Engineering Guidelines states that studies should be updated as appropriate  For example, FERC’s Engineering Guidelines on hydrology studies state that previously accepted flood studies are not required to be reevaluated unless it is determined that a re-analysis is warranted  The Guidelines notes that FERC or the consultant may consider reanalyzing the study for several reasons, including if they identify (1) significant errors in the original study; (2) new data that may significantly alter previous study results; or (3) significant changes in the conditions of the drainage basin  FERC staff and consultants we interviewed stated that age alone is not a primary criterion to update or replace studies and that studies should be updated as needed depending on several factors including age, new or additional data, and professional judgment  Consultants we interviewed identified some limitations that can affect their ability to develop engineering studies for a dam  For example, they noted that some dams may lack original design information, used prior to construction of the dam, which includes the assumptions and calculations used to determine the type and size of dam, the amount of water storage capacity, and information on the pre-construction site geology and earthquake potential  FERC officials estimated that for a large percentage of the dams they relicense, the original information is no longer available  For example, according to the report from the independent forensic team investigating the Oroville Dam incident and as previously noted, some design drawings and construction records for the dam’s spillway could not be located and some other documents that were available were not included in the most recent independent consultant inspection report submitted to FERC  To overcome the lack of original design information, FERC told us that licensees and their consultants may use teams of experts, advanced data collection techniques, and other modern methods, where feasible, to assess the dam’s ability to perform given current environmental conditions  In cases where design or other engineering information is incomplete, consultants stated that they generally recommend the licensee conduct additional studies based on the risk presented by the missing information but also noted that the financial resources of a licensee may affect its willingness and ability to conduct additional studies  However, FERC officials stated that FERC staff are ultimately responsible for making decisions on whether additional engineering studies are needed to evaluate a dam’s performance  FERC has established policies and procedures that use formal guidance, and permit the use of professional judgment, to evaluate and review engineering studies of dam performance submitted by licensees and their consultants  FERC officials in both the headquarters and regional offices emphasized that their role as the regulator is to review and validate engineering studies developed by the licensee and their consultants  FERC generally does not develop engineering studies as officials noted that dam safety, including the development of engineering studies, is primarily the licensee’s responsibility  To carry out their responsibility to ensure public safety, FERC staff stated they use procedures and criteria in the FERC Engineering Guidelines to review engineering studies and apply professional judgment to leverage their specialized knowledge, skills, and abilities to support their determinations of dam safety  FERC’s Engineering Guidelines provides a framework for the review of engineering studies, though the Guidelines recognizes that each dam is unique and allows for flexibility and exemptions in their use  Moreover, the Guidelines notes that analysis of data is useful when evaluating a dam’s performance, but should not be used as a substitute for judgment based on experience and common sense  Because FERC’s Engineering Guidelines allows for the application of professional judgment, the methods used to review these studies vary depending on the staff, the region, and individual dam characteristics  For example, FERC staff said that when they review consultants’ assumptions, methods, calculations and conclusions, in some cases they may decide to conduct a sensitivity analysis if—based on the staff’s judgment—they need to take additional steps to validate or confirm factors of safety for the project  FERC officials also stated that staff may conduct their own independent analyses, as appropriate, such as evaluating a major structural change to the dam or validating submitted studies  For example, as part of its 2016 review of the Union Valley Dam in California, FERC staff validated the submitted hydrology study by independently calculating key inputs, such as precipitation rates and peak floods, to evaluate the dam’s performance and verify the spillway’s reported capacity  In addition, FERC has established various controls to help ensure the quality of its review, including using a risk-based review process, assigning multiple staff to review the studies, and rotating staff responsibilities over time  We have previously found in our reporting on other regulatory agencies that practices such as rotating staff in key decision-making roles, and including at least two supervisory staff when conducting oversight reviews help reduce threats to independence and regulatory capture  Risk-based review process  FERC’s review approach is risk-based, as the frequency of staff’s review of these studies is based on the hazard classification of the dam as well as professional judgment  FERC relies on three primary engineering studies (hydrology, seismicity, and stability), and others as appropriate, which form the basis for determining if a dam is safe  In addition, FERC requires licensees to hire a FERC-approved independent consulting engineer at least every 5 years to inspect and evaluate high hazard and other applicable dams and submit a report detailing the findings as part of the independent consultant inspection process  In general, for the dams we reviewed, we found that FERC staff reviewed engineering studies for dams subject to independent consultant inspections (which are typically high or significant hazard dams) more frequently than those engineering studies associated with dams for which FERC does not require an independent consultant inspection (typically low hazard dams)  For example, we found FERC staff had reviewed the most recent hydrology studies for all 22 high and significant hazard dams in our sample subject to independent consultant inspections within the last 6 years and documented their analysis  According to FERC officials, for dams not subject to an independent consultant inspection, FERC staff review engineering studies on an as needed basis, depending on whether the underlying assumptions and information from the previous studies are still relevant  For example, for the 20 dams in our study not subject to an independent consultant inspection, we found that most (15) of these studies were reviewed by FERC within the past 10 years, usually during the project’s relicensing  Multiple levels of supervisory review  As part of FERC’s quality control and internal oversight process, multiple FERC staff are to review the studies produced by the licensee and its consultant, with the number of successive reviews proportional to the complexity or importance of the study, according to FERC officials  FERC’s Operating Manual establishes the general procedure for the review of engineering studies  To begin the review process, the staff assigned to a dam is to review the engineering study and prepares an internal memo on its findings; that memo is then to be reviewed for accuracy and completeness by both a regional office Branch Chief, and the Regional Engineer  If necessary, Washington, D C , headquarters office staff are to review and approve the final memo  Upon completion of review, FERC staff are to provide a letter to the licensee indicating any particular areas where additional information is needed or where more studies are needed to evaluate the dam’s performance  According to FERC officials, each level of review adds successive quality control steps performed by experienced staff  We have previously found in reporting on other regulatory agencies that additional levels of review increases transparency and accountability and diminishes the risk of regulatory capture  Rotation of FERC staff responsibilities  As part of an internal quality control program to help minimize the risk of missing important safety- related items, FERC officials told us they rotate staff assignments and responsibilities approximately every 3 to 4 years  According to FERC officials, this practice decreases the chance that a deficiency would be missed over time due to differences in areas of engineering expertise between or among staff  We have previously found in our reporting on other regulatory agencies that strategies such as more frequently rotating staff in key roles can help reduce the risk to supervisory independence and regulatory capture  Some FERC regional offices have developed practices to further enhance their review of these studies  For example, the New York Regional Office established a subject matter expert team that helps review dams with unusually complex hydrology issues  This team was created, in part, because FERC staff noted that some of the hydrology studies conducted in the 1990s and 2000s were not as thorough as they would have wanted, and warranted a re-examination  Currently, the New York Regional Office is reviewing the hydrology analysis associated with 12 dam break studies to determine if the hydrology data used in developing these studies were as rigorously developed and validated  According to the FERC staff in this office, utilizing a team of subject matter experts has reduced Regional Office review time and improved the hydrology studies’ accuracy  FERC staff in the New York Regional Office also told us that they are working with other regional offices on setting up similar technical teams  For example, FERC staff in the New York Regional Office have been working with the Portland Regional Office to set up a similar team  FERC procedures require the use of engineering studies at key points over the dam’s licensing period to inform components of its safety oversight approach, including during the potential failure mode analyses of individual dams as well as during relicensing  Potential failure mode analysis  The potential failure mode analysis is to occur during the recurring independent consultant inspection and is conducted by the licensee’s independent consultant along with other key dam safety stakeholders  As previously explained, the analysis incorporates the engineering studies and identifies events that could cause a dam to potentially fail  During the potential failure mode analysis, FERC, the licensee, the consultant, and other key dam safety stakeholders are to refer to the engineering studies to establish environmental conditions that inform dam failure scenarios, the risks associated with these failures, and their consequences for an individual dam  Further, according to a FERC white paper on risk analysis, FERC is beginning to use information related to potential failure modes as inputs to an analysis tool that quantifies risks at each dam  With this information, FERC expects to make relative risk estimates of dams within its inventory and establish priorities for further study or remediation of risks at individual dams, according to the white paper  Relicensing  During relicensing, FERC staff are to review the engineering studies as well as information such as historical hydrological data and extreme weather events, which also inform their safety evaluation of the licensee’s application  FERC officials also stated that as a result of their relicensing review, they might alter the articles of the new license before it is issued should their reviews indicate that environmental conditions affecting the dam’s safety have changed  We found that FERC generally met its requirement to evaluate dam safety during the relicensing process for the 42 dams we reviewed  During the relicensing process, we found that for the dams we reviewed, FERC staff review safety information such as the past reports, inspections, and studies conducted by FERC, the licensee, and independent consultants and determine whether or not a dam owner operated and maintained its dam safely  According to FERC staff, the safety review for relicensing is generally a summary of prior safety and inspection information, rather than an analysis of new safety information, unless the licensee proposes a change to the operation or structure  FERC’s review during relicensing for the high hazard and significant hazard dams we reviewed was generally consistent with its guidance and safety memo template, though the extent of its review of low hazard dams varied  (See fig  3 ) For example, for the 22 high and significant hazard dams we reviewed, the safety relicensing memos followed the template and nearly all included summaries of hydrology studies, stability analyses, prior FERC inspections, and applicable independent consultant reports  For the 20 low hazard dams, FERC staff noted that some requirements in the template are not applicable or have been exempted and therefore were not reviewed during relicensing  While low hazard dams were more inconsistently reviewed during relicensing, FERC staff also noted that there has been a recent emphasis to more closely review, replace, or conduct engineering studies, such as the stability study, for low hazard dams during relicensing  Moreover, FERC staff told us that the safety risks associated with these dams are minimal, as the failure of a low hazard dam, by definition, does not pose a threat to human life or economic activity  According to FERC staff, if a licensee proposed altering the dam or its operations in any way as part of its application for a new license, FERC staff would review the proposed change and may recommend adding articles to the new license prior to its issuance to ensure dam safety  FERC officials noted that, as part of their review, any structural or operational changes proposed by the licensee during relicensing are reviewed by FERC  These officials also noted that FERC generally recommends modifications to the licensees’ proposed changes prior to their approval and inclusion in the new license  However, FERC officials noted that, in some cases, additional information is needed prior to approving the structural or operational change to ensure there are no risks posed by the changes  In those instances, FERC may recommend that articles be added to the new license, that require the licensee to conduct additional engineering studies of the issue and submit them to FERC for review and approval  For example, during the relicensing of the Otter Creek project in Vermont in 2014, the licensee proposed changes to the project’s operation resulting from construction  As a result, FERC’s staff recommended adding a number of articles to the license, including that the licensee conduct studies to evaluate the effect of the change on safety and to ensure safety during construction  During relicensing, third parties—such as environmental organizations, nearby residents and communities, and other federal agencies, such as the U S  Fish and Wildlife Service—may provide input on various topics related to the project, including safety  However, FERC officials said that very few third parties file studies or comments related to dam safety during relicensing  FERC’s template and guidance do not specifically require the consideration of such analyses as part of its safety review, and we did not identify any safety studies submitted by third parties for dams or reviewed by FERC in our sample  According to FERC officials, when stakeholders submit comments during relicensing, the comments tend to focus on environmental aspects of the project, such as adding passages for fish migration  Further, FERC is not required under the Federal Power Act to respond to any comments, including those related to dam safety, from third parties, according to FERC officials  However, according to FERC officials, courts have held that the Administrative Procedure Act precludes an agency from arbitrarily and capriciously ignoring issues raised in comments  Furthermore, these officials stated that if a court determines that FERC did not sufficiently address issues raised during the relicensing process, its orders are subject to being reversed and remanded by applicable United States courts of appeals  Moreover, FERC officials noted that the information needed to develop third party safety studies, such as the dam design drawings and engineering studies, are property of the licensee, rather than FERC  In addition, this information may not be readily available to third parties or the public if FERC designates it as critical energy infrastructure information, which would preclude its release to the general public  FERC staff we interviewed stated that there have been no instances where the Commission denied a new license to a licensee as a result of its safety review during relicensing  FERC staff stated that given the frequency of other inspections, including the FERC staff inspections, and independent consultant inspections, it is unlikely staff would find a previously unknown major safety issue during relicensing  FERC staff told us that rather than deny a license for safety deficiencies, FERC will keep a dam owner under the terms of a FERC license to better ensure the licensee remedies existing safety deficiencies  Specifically, FERC staff noted that under a license, FERC can ensure dam safety by (1) closely monitoring the deficiency’s remediation progress through its inspection program, (2) adding license terms in the new license tailored to the specific safety deficiency, and (3), as necessary, pursuing compliance and enforcement actions, such as civil penalties or stop work orders, to enforce the terms and conditions of the license  For example, prior to and during the relicensing of a FERC-licensed project in Wisconsin in 2014, FERC’s review identified that the spillway capacity was inadequate  While the project was relicensed in 2017 without changes to the spillway, FERC officials stated that they have been overseeing the plans and studies of the remediation of the spillway through their ongoing inspection program  However, if an imminent safety threat is identified during the relicensing review, FERC officials stated that they will order that the licensee take actions to remedy the issue immediately  Moreover, FERC officials noted that, if necessary, a license can be revoked for failure to comply with the terms of its license  FERC designed a multi-layered safety approach—which uses inspections, studies, and other assessments of individual dams—to reduce exposure to safety risks  However, as the spillway failure at the Oroville Dam project in 2017 demonstrated, it is not possible to eliminate all uncertainties and risks  As part of a continuing effort to ensure dam safety at licensed projects, FERC could complement its approach to evaluating the safety of individual dams by enhancing its capability to assess and identify the risks across its portfolio of licensed dams  Specifically, while FERC has collected and stored a substantial amount of information from its individual dam safety inspections, FERC’s approach to recording this information is inconsistent due to a lack of standard language and procedures  By clarifying its approach to the recording of information collected during inspections, FERC officials could help ensure that the information recorded is comparable when shared across its regions  Moreover, the absence of standard language and procedures to consistently record inspection information impedes a broader, portfolio- wide analysis of the extent of and characteristics associated with common safety deficiencies identified during FERC inspections  While FERC has not yet conducted such an analysis, a proactive assessment of common safety inspection deficiencies across FERC’s portfolio of licensed dams— similar to its identification of dam spillways with safety concerns following the Oroville Dam incident—could help FERC and its licensees identify safety risks prior to a safety incident and to develop approaches to mitigate those risks  We are making the following two recommendations to FERC: FERC should provide standard language and procedures to its staff on how to record information collected during inspections, including how and where to record information about safety deficiencies, in order to facilitate analysis of safety deficiencies across FERC’s portfolio of regulated dams  (Recommendation 1) FERC should use information from its inspections to assess safety risks across its portfolio of regulated dams to identify and prioritize safety risks at a national level  (Recommendation 2) We provided a draft of this report to FERC for review and comment  In its comments on the draft report, FERC said it generally agreed with the draft report’s findings and found the recommendations to be constructive  FERC said that it would direct staff to develop appropriate next steps to implement GAO’s recommendations  These comments are reproduced in appendix IV  In addition, FERC provided technical comments, which we incorporated as appropriate  As agreed with your offices, unless you publicly announce the contents of this report earlier, we plan no further distribution until 30 days from the report date  At that time, we will send copies to the Chairman of FERC and other interested parties  In addition, the report will be available at no charge on the GAO website at http://www gao gov  If you or your staff have any questions about this report, please contact me at 202-512-2834 or vonaha@gao gov  Contact points for our Office of Congressional Relations and Public Affairs may be found on the last page of this report  GAO staff who made major contributions to this report are listed in appendix V  FERC seeks to ensure licensees’ compliance with FERC regulations and license requirements, including remediating safety deficiencies, by using a mix of preventative strategies to help identify situations before they become problems and reactive strategies such as issuing penalties  As part of its efforts, FERC published a compliance handbook in 2015 that provides an overall guide to compliance and enforcement of a variety of license requirements, including dam safety  The handbook includes instructions for implementing FERC rules, regulations, policies, and programs designed to ensure effective compliance with license conditions, which include dam safety, to protect and enhance beneficial public uses of waterways  FERC developed a range of enforcement actions, that include holding workshops to encourage compliance and issuing guidance, that increase in severity depending on the non- compliance issue  (See fig  4 ) More broadly, FERC’s guidance directs officials to determine enforcement actions and time frames for those actions on a case-by-case basis, depending on the characteristics of the specific compliance issue  According to FERC officials, many of these safety compliance discussions are handled informally  In addition, their compliance approach emphasizes activities that assist, rather than force, licensees to achieve compliance, according to its guidance  These activities include facilitating open lines of communication with licensees, participating in technical workshops, and publishing brochures and guidance documents, among other efforts  Also, according to these officials, FERC works with licensees to provide guidance and warnings of possible non-compliance matters, in order to avoid usage of any enforcement tools, if possible  According to FERC officials, any safety issues that endanger the public will result in immediate penalty or removal of the dam from power generation, but this action is not lightly taken  Additionally, the length of time between when a safety deficiency is identified and is resolved varies substantially depending on the specific project  As stated earlier in this report, FERC works with licensees to determine a plan and schedule for investigating safety issues and making any needed modifications  However, FERC officials stated that the majority of safety compliance issues are resolved within a month  However, FERC officials stated that if a licensee repeatedly does not take steps to address a compliance issue, FERC will explore enforcement actions through a formal process  According to officials, FERC’s enforcement options are based on authorities provided under the Federal Power Act and such options are flexible because of the variation in hazards, consequences, and dams  According to FERC officials, to ensure compliance with safety regulations, if a settlement cannot be reached, FERC may, among other things, issue an order to show cause, issue civil penalties in the form of fines to licensees, impose stop work or cease power generation orders, revoke licenses, and seek injunctions in federal court  Nevertheless, FERC officials stated that there is no specific requirement for how quickly the compliance issues or deficiencies should be resolved and that some issues can take years to resolve  For example, in 2004, the current licensee of a hydroelectric project operating in Edenville, Michigan, acquired the project, which was found by FERC to be in a state of non-compliance at that time  FERC staff made numerous attempts to work with the licensee to resolve the compliance issues  However, they were unable to resolve these issues and as a result issued a cease generation order in 2017, followed in 2018 by a license revocation order  In practice, FERC’s use of these enforcement tools to resolve safety issues has been fairly limited, particularly in comparison to other license compliance issues, according to FERC officials  Since 2013, FERC has issued one civil penalty for a safety-related hydropower violation and has issued compliance orders on eight other projects for safety-related reasons, including orders to cease generation on three projects  For the 14 projects and 42 dams we reviewed, FERC licensees and their consultants used a variety of tools to develop engineering studies of dam performance (see table 3)  These tools included programs and modeling tools developed by government agencies, such as the U S  Army Corps of Engineers (the Corps), as well as commercially available modeling tools  FERC officials stated that they also used a number of the same tools used by its licensees and consultants  Similarly, for the 14 projects and 42 dams we reviewed, FERC licensees and their consultants used a variety of datasets to develop engineering studies of dam performance (see table 4)  These datasets included data maintained and updated by various government agencies, including the United States Geological Survey and National Oceanic and Atmospheric Administration  FERC officials stated that they also used a number of the same datasets used by its licensees and consultants  This report assesses: (1) how FERC collects information from its dam safety inspections and the extent to which FERC analyzes it; (2) how FERC evaluates engineering studies of dam performance to analyze safety, and (3) the extent to which FERC reviews dam safety information during relicensing and the information FERC considers  This report also includes information on FERC actions to ensure licensee compliance with license requirements related to dam safety (app  I) and selected models and data sets used to develop and evaluate engineering studies of dam performance (app  II)  For each of the objectives, we reviewed laws, regulations, FERC guidance, templates, and other documentation pertaining to FERC’s evaluation of dam safety  In addition, we reviewed an independent forensic team’s assessment of the causes of the Oroville Dam incident, including the report’s analysis of FERC’s approach to ensuring safety at the project, to understand any limitations of FERC’s approach identified by the report  We also reviewed dam safety documentation, including dam performance studies, FERC memorandums, the most recent completed inspection report, and other information, from a non-probability sample of 14 projects encompassing 42 dams relicensed from fiscal years 2014 through 2017  (See table 5 ) We selected these projects and dams to include ones that were geographically dispersed, had varying potential risks associated with their potential failure, and had differences in the length of their relicensing process  We developed a data collection instrument to collect information from the dam safety documentation and analyzed data from the sample to evaluate the extent to which FERC followed its dam safety guidance across the selected projects  To develop the data collection instrument, we reviewed and incorporated FERC oversight requirements from its regulations, guidance, and templates  We conducted three pre-tests of the instrument, and revised the instrument after each pre-test  To ensure consistency and accuracy in the collection of this information, for each dam in the sample, one analyst conducted an initial review of the dam safety documentation; a second analyst reviewed the information independently; and the two analysts reconciled any differences  Following our review of the information from the dam safety documentation, we conducted semi-structured interviews with FERC engineering staff associated with each of the 14 projects and 42 dams to obtain information about FERC’s inspections, review of dam performance studies, and analysis of safety during the relicensing of these projects  Our interviews with these FERC staff provided insight into FERC’s dam safety oversight approach and are not generalizable to all projects  We also interviewed FERC officials responsible for dam safety about dam safety practices  In addition, to review how FERC collects information from its dam safety inspections and the extent to which FERC analyzes it, we also reviewed inspection data from FERC’s information management systems from fiscal years 2014 through 2017  To assess the reliability of these data, we reviewed guidance and interviewed FERC officials  We determined that the data were sufficiently reliable for our purposes  We compared FERC’s approach to collecting, recording and using safety information to federal internal control standards for the design of information systems and related control activities  We also reviewed our prior work on portfolio- level risk management  To evaluate how FERC evaluates engineering studies of dam performance to analyze dam safety, we reviewed FERC policies and guidance  We interviewed six independent consultants having experience inspecting and analyzing FERC-regulated dams to understand how engineering studies of dam performance are developed  We selected consultants who had submitted an inspection report to FERC recently (between December 2017 and February 2018) based on the geographic location of the project they reviewed and experience conducting these inspections, and the number of reports submitted to FERC over this time period  (See table 6 ) Our interviews with these consultants provided insight into FERC’s approach to conducting and reviewing studies and are not generalizable to all projects or consultants  To evaluate the extent to which FERC reviews dam safety information during relicensing and the information it considers, we reviewed templates developed by FERC to assess safety during the relicensing and analyzed the extent to which staff followed guidance in these templates for the 14 projects and 42 dams in our sample  We also interviewed stakeholders, including the National Hydropower Association and Friends of the River to obtain general perspectives on FERC’s relicensing approach  Our interviews with these stakeholders provided insight into FERC’s approach to relicensing, and these views are not generalizable across all stakeholders  To review actions to ensure licensee compliance with license requirements related to dam safety, we reviewed FERC’s guidance related to compliance and enforcement and interviewed FERC officials responsible for implementation of the guidance  To review information on models and datasets used to develop and evaluate engineering studies of dam performance, we reviewed dam safety documentation associated with the projects in our sample (described previously), reviewed FERC documentation, and interviewed FERC officials  We conducted this performance audit from July 2017 to October 2018 in accordance with generally accepted government auditing standards  Those standards require that we plan and perform the audit to obtain sufficient, appropriate evidence to provide a reasonable basis for our findings and conclusions based on our audit objectives  We believe that the evidence obtained provides a reasonable basis for our findings and conclusions based on our audit objectives  Andrew Von Ah, (202) 512-2834 or vonaha@gao gov  In addition to the contact named above, Mike Armes (Assistant Director); Matt Voit (Analyst-in-Charge); David Blanding; Brian Chung; Geoff Hamilton; Vondalee Hunt; Rich Johnson; Jon Melhus; Monique Nasrallah; Madhav Panwar; Malika Rice; Sandra Sokol; and Michelle Weathers made key contributions to this report 


Report 2:  And since Bakke that framework appears to have shifted in two significant respects, corresponding to each of the two prongs of strict scrutiny  First, the Court now requires public universities that adopt affirmative action admissions policies to explain in increasingly "concrete and precise" terms what diversity-related educational goals those policies serve and why the university has chosen to pursue them  Anything less, the Court has held, would fail to present an interest sufficiently compelling under strict scrutiny  Second, the Court also now expects universities to prove that their policies achieve those "concrete and precise goals" in an appropriately "flexible" way, as most clearly exemplified by the Harvard plan that Justice Powell singled out in Bakke   That model has yielded "five hallmarks" of an appropriately tailored affirmative action policy, criteria that have since guided lower courts in assessing other affirmative action plans  For a university's affirmative action policy to survive strict scrutiny, a university must first "demonstrate with clarity that its 'purpose or interest is both constitutionally permissible and substantial " The Court has recognized only a single interest that meets that standard: "the attainment of a diverse student body " What exactly that interest amounts to—and how, consequently, a university should ensure it has appropriately tailored its policy to achieve that interest—has been a point of uncertainty since Bakke   With its two decisions in Fisher v  University of Texas , however, the Court appears now to require a more "concrete and precise" articulation of the diversity-related educational goals a university hopes to achieve through its affirmative action admissions policy  In addition, the Court also now appears to expect a university to provide a reasoned and principled explanation of why the school believes it important to achieve those goals  The diversity rationale emerged with the Court's first encounter with a voluntary affirmative-action policy, in Bakke   There—in an opinion for the Court joined by no other Justice—Justice Powell explained what interests clearly would not count as compelling enough to satisfy strict scrutiny  Those included the Medical School's alleged interest in having "some specified percentage" of certain racial or ethnic groups in a student body and its interest in "remedying     the effects of societal discrimination," as well as the school's particular interest in "the delivery of health-care services to communities currently underserved " None of these interests, Justice Powell concluded, provided a reason substantial enough to justify turning to race-conscious measures  Nor has the Court said otherwise since  But Justice Powell was also clear about what interest he believed would satisfy strict scrutiny: "student body diversity " And just as importantly, he also explained why: colleges and universities, he suggested, had a uniquely academic interest in promoting an "atmosphere of speculation, experiment, and creation"—an interest, more simply, in "academic freedom " That interest, Justice Powell observed, was not only "essential to the quality of higher education," but had also long "been viewed as a special concern of the First Amendment " Thus the "right to select those students who will contribute the most to the robust exchange of ideas" not only allowed a university "to achieve a goal that is of paramount importance in the fulfillment of its mission," it also represented a "countervailing constitutional interest" that, in Justice Powell's view, called for the Court's respect  In Bakke , Justice Powell set out the basic theory for why diversity could justify an affirmative action policy, at least "in the context of a university's admissions program  But he gave few details about what that interest encompassed  As he saw it, that interest must have its limits: pursuing diversity would not allow a university to resort to racial quotas, for example, nor could the school disregard other "constitutional limitations protecting individual rights " But Justice Powell declined to indicate where those other limitations fell or how they circumscribed the goals a university could permissibly seek in the name of a diverse student body  And because the Bakke Court fractured as it did, with no one opinion commanding a majority of the Justices' votes, the lessons of that case have been hard to discern, especially after the Court appeared to decline a similar diversity rationale in later cases outside higher education  Perhaps unsurprisingly, the lower courts soon came to reflect this uncertain division of opinion in later cases involving affirmative action programs at other public universities  Some clarity over Bakke 's diversity theory came in 2003, with a pair of decisions reviewing affirmative action policies of the University of Michigan: Grutter v  Bollinger , challenging the university's law school admission program, and Gratz v  Bollinger , challenging the policy used by the university's undergraduate program  Grutter , especially, helped clarify what an interest in diversity involved, and how a university could rely on that interest to defend a race-conscious admissions policy  Under the admissions policy of the University of Michigan Law School ( the Law School) challenged in Grutter , applicants to incoming classes were admitted under a policy that weighed a composite of the applicant's LSAT score and undergraduate GPA along with several more individualized factors, including the applicant's race  The Law School set out to create classes with what it called a "critical mass of underrepresented minority students," to ensure that those students felt "encourage[d]     to participate in the classroom and not feel isolated " The school, however, never explicitly assigned a numerical target for any particular racial group, though it did track, on an ongoing basis, "the racial composition of the developing class " A rejected white applicant claimed the Law School's admission policy discriminated against her based on her race, in violation of the Equal Protection Clause and Title VI  And her challenge eventually reached the Supreme Court, alongside its companion case, Gratz , challenging the university's admissions policy for its undergraduate program  Given the uncertainties surrounding Bakke 's bottom line, the first major question in Grutter centered on the basic goal of the Law School's policy: Is achieving student diversity an interest compelling enough to justify a school's use of race at all in its admissions decisions? And for the first time the Supreme Court held that it was  Writing for a clear majority, Justice O'Connor adopted the view Justice Powell set out in Bakke : "student body diversity is a compelling state interest that can justify the use of race in university admissions " More than that, the Court made clear that it was willing to defer to the Law School's understanding of that interest, and its goal of "enroll[ing] a 'critical mass' of minority students '" As Justice O'Connor explained for the Court, by enrolling a "critical mass" of students, the Law School was trying to achieve the "substantial" "educational benefits that diversity is designed to produce"—benefits such as "promot[ing] cross-racial understanding," "break[ing] down racial stereotypes," "promot[ing] learning outcomes," and "better prepar[ing students] as professionals " Achieving a "critical mass" of underrepresented students, the Court agreed, was simply one way that the Law School could try to vindicate those diversity-related educational benefits  And because this interest was deemed compelling enough to satisfy strict scrutiny, the Court was therefore willing to treat the school's use of the "critical mass" target as a permissible proxy for achieving those benefits  Not all the Justices agreed, however, that the university's invocation of "critical mass" made the diversity interest more concrete or compelling  In dissent, Justice Kennedy sided with Chief Justice Rehnquist's view that "the concept of critical mass [was] a delusion used by the Law School to mask its attempt to make race an automatic factor in most instances and to achieve numerical goals indistinguishable from quotas " That "delusion," according to Justice Kennedy, did not just make the school's appeal to "critical mass" "inconsistent with [the] individual consideration" of applicants  It also, in his view, turned the school's admissions policy into a veiled form of racial balancing  And all four dissenting Justices found that result incompatible with the Equal Protection Clause  Grutter appeared to settle the major question left open by the fractured decision in Bakke : whether achieving student diversity was a compelling enough interest for a public university to justify its consideration of race in its admissions policies  Grutter confirmed not only that the Court still viewed student diversity as a compelling interest, but also that a school could vindicate that interest by seeking to enroll a "critical mass" of underrepresented minorities in its incoming classes  The ruling also effectively swept aside contrary lower court decisions that struck down other state universities' affirmative action policies, including in Texas  In the wake of Grutter , the University of Texas (UT Austin) decided to revisit its applicant review process, eventually choosing to introduce race as one of the factors considered in its admissions policy  Under the revised policy, UT Austin would continue to admit all Texas high school students who graduated in the top ten percent of their class, and fill in the rest of its incoming undergraduate classes using an index score incorporating two assessments: (1) an "Academic Index" (AI) that weighed the applicant's SAT score and academic record; and (2) a "Personal Achievement Index" (PAI) that included a more holistic appraisal of the student's character and, following post- Grutter revisions, also factored in the applicant's race  Abigail Fisher, a white Texas student whose application to UT Austin was rejected under this process, challenged the AI-PAI system  That system, she argued, had discriminated against her as a white applicant by allegedly allowing race to figure in the decision to reject her application, in violation of the Equal Protection Clause  Her challenge eventually made its way to the Supreme Court as Fisher v  University of Texas , where the Supreme Court remanded the challenge to the lower court to review UT Austin's policy under strict scrutiny ( Fis her I ), and then upon appeal upheld the school's admission policy ( Fis her II )  In her suit, Fisher did not challenge Grutter 's basic holding—that the university had a compelling interest in student diversity, or even that the school could pursue that interest in diversity by enrolling a "critical mass" of underrepresented minorities  But when the Court finally took up her challenge on the merits in Fisher II , Justice Kennedy also took the occasion to revisit Grutter 's analysis, offering several "controlling principles" on behalf of the four-Justice majority that would guide its review of UT Austin's race-conscious admissions policy  In Fisher II , as in Fisher I , Justice Kennedy confirmed that Grutter 's bottom line remained good law: "obtaining 'the educational benefits that flow from student body diversity,'" he confirmed, was still an interest compelling enough to satisfy strict scrutiny  But perhaps mindful of his dissent in Grutter , Justice Kennedy also clarified that "asserting an interest in the educational benefits of diversity writ large" would not suffice  That, he explained, would make the "university's goals" too "elusory or amorphous" "to permit judicial scrutiny of the policies adopted to reach them " The Court thus cut two new benchmarks for reviewing a university's asserted interest in resorting to race as a factor in its admissions policy  First, the university had to articulate "precise and concrete goals" that its race-conscious policy served, goals "sufficiently measurable" under "judicial scrutiny " And, second, the university had to provide a "'reasoned, principled explanation' for its decision to pursue those goals"—a sound academic rationale, in other words, for wanting to achieve whatever diversity-related goals it set for itself  In the majority's view, UT Austin's use of race in its admissions decisions measured up to both benchmarks  According to the Court, the first benchmark was straightforwardly met: the goals UT Austin articulated, Justice Kennedy pointed out, effectively "mirror[ed] the 'compelling interest' th[e] Court ha[d] approved in its prior cases " And under Grutter , the majority concluded, those benefits passed constitutional muster  Notably, however, achieving critical mass was not among those Justice Kennedy listed  Nor did Justice Kennedy return to the question he raised in Grutter : whether the "critical mass" concept even has a place among the "concrete and precise goals" that could survive strict scrutiny  But that question was also arguably beside the point in Fisher II   As Justice Kennedy emphasized for the Court, the goals that UT Austin articulated were clearly constitutionally adequate, having come nearly verbatim from the Court's case law  And the university's officials had all offered "the same, consistent 'reasoned, principled explanation'" for pursuing them—meeting the Court's second benchmark  That was apparently enough for the Court to conclude that a compelling interest justified the university's diluted use of race in its holistic review of applications  With Fisher I and II , the Court reiterated that the educational benefits that come with a racially diverse student body count among the few interests compelling enough to survive strict scrutiny  But Fisher I and II also narrowed that interest: seeking student body diversity had to involve objectives more specific than the simple desire for "diversity writ large " Rather, under the Fisher formulation, the university must articulate the "concrete and precise goals" it expects its affirmative action policy to accomplish, along with a "reasoned, principled explanation" of why it has chosen to pursue them  So long as a university does that, it will likely have a strong case, under Fisher I and II , that a compelling interest supports its use of a race-conscious admissions policy  That, however, is only the first of two tests that a policy has to pass under strict scrutiny  The second—probing whether the university has narrowly tailored its policy to achieve those diversity-related benefits—has proved equally critical in the Court's review of affirmative action policies  And once again owing to Justice Powell's opinion in Bakke , the Court appears to have embraced a model of what a narrowly tailored policy looks like: Harvard College's admissions program endorsed in Bakke , now more commonly known as the "Harvard plan " The Harvard plan has also provided the Court with a basis for developing more specific criteria for evaluating other affirmative action policies—what one court has described as the "five hallmarks of a narrowly tailored affirmative action plan " The first affirmative action program to come before the Court—the policy challenged in Bakke at U C  Davis's Medical School—was also the first to falter under the Court's scrutiny  But because the Justices were unable to cobble together a majority there, they also settled on no single rationale for why the Medical School's policy could not survive the Court's scrutiny  This uncertainty left the lower courts without clear guidance on the permissibility of race-conscious admissions policies structured differently than the one struck down in Bakke   In announcing the judgment in Bakke , however, Justice Powell offered a clear reason why, in his view, the Medical School's policy could not survive a challenge under the Equal Protection Clause  The school's 16-seat set-aside for minority students was not "the only effective means of serving [the school's] interest in diversity" —in constitutional parlance, the set-aside was not narrowly tailored  And to explain why not, Justice Powell pointed to the Harvard plan as an example of an appropriately tailored affirmative action policy  That plan, according to Justice Powell, had several significant features that distinguished it—favorably—from the set-aside struck down in Bakk e : In [Harvard's] admissions program, race or ethnic background [is] deemed a "plus" in a particular applicant's file, yet it does not insulate the individual from comparison with all other candidates for the available seats  The file of a particular black applicant may be examined for his potential contribution to diversity without the factor of race being decisive when compared, for example, with that of an applicant identified as an Italian-American if the latter is thought to exhibit qualities more likely to promote beneficial educational pluralism  Such qualities could include exceptional personal talents, unique work or service experience, leadership potential, maturity, demonstrated compassion, a history of overcoming disadvantage, ability to communicate with the poor, or other qualifications deemed important     [And] the weight attributed to a particular quality may vary from year to year depending upon the 'mix' both of the student body and the applicants for the incoming class  Unlike this "flexible" system of review, the Medical School policy at issue in Bakke was rigid: reserving a predetermined number of seats for a "selected ethnic group " In Justice Powell's view, that technique effectively precluded a more holistic review, that "treats each applicant as an individual " "[R]ace or ethnic origin," as he saw it, did not serve as "a single though important element" of an applicant's file in the Medical School's policy; it had instead become a factor that "foreclosed" other applicants "from all consideration for [certain] seat[s] simply because [they were] not the right color or had the wrong surname " A program like that, Justice Powell concluded, could not be narrowly tailored—precisely because another more individualized and "holistic" model, like Harvard's, could serve instead  Even if Bakke suggested that the Court's scrutiny of a race-conscious admissions policy would be every bit as strict as for other racial classifications, later cases have made clear that such scrutiny need not always be fatal  The companion cases of Grutter v  Bollinger and Gratz v  Bollinger offer clear examples: each involved affirmative action admissions policies at the University of Michigan, and each yielded a different bottom line, with the Court upholding the Law School's policy in Grutter while striking down the university's undergraduate admissions policy in Gratz   But those diverging results appeared to proceed from a common starting point: how closely the challenged admissions policy resembled the Harvard plan  In the case of the Law School's admissions policy, the Court found the resemblance quite close  As Justice O'Connor explained for the Court in Grutter , "the Law School engages in a highly individualized, holistic review of each applicant's file, giving serious consideration to all the ways an applicant might contribute to a diverse educational environment " It therefore did not award "mechanical, predetermined diversity 'bonuses' based on race or ethnicity " And "[l]ike the Harvard Plan, the Law School's admissions policy" accorded each applicant the same sort of flexible consideration that Justice Powell had called for in Bakke   That "policy st[ood] in sharp contrast," however, with the way the Court viewed the university's undergraduate admissions policy in Gratz   Under the undergraduate policy, admissions officers automatically awarded "20 points, or one-fifth of the points needed to guarantee admission, to every single 'underrepresented minority' applicant solely because of race " As Chief Justice Rehnquist explained for the Court, that policy therefore violated a basic feature of "[t]he admission program Justice Powell described" in Bakke —a program that "did not contemplate that any single characteristic automatically ensured a specific and identifiable contribution to a university's diversity " The result was a policy that did not "offer applicants the individualized selection process described in Harvard's example," and that could consequently not pass strict scrutiny  On that point Justice O'Connor also agreed  As she explained in supplying her decisive fifth vote, the undergraduate policy simply did not "enable[] admissions officers to make nuanced judgments with respect to the contributions each applicant is likely to make to the diversity of the incoming class," unlike the Law School's more holistic policy  This was true even though the undergraduate policy "assign[ed] 20 points to some 'soft' variables other than race," such as "leadership and service, personal achievement, and geographic diversity " None of that, in Justice O'Connor's view, could counteract the more problematic effect of those factors' being "capped at much lower levels," so that "even the most outstanding national high school leader could never receive more than five points for his or her accomplishments—a mere quarter of the points automatically assigned to an underrepresented minority solely based on the fact of his or her race " That weighting, though not problematic in all cases, had all but ensured there "that the diversity contributions of applicants [could not] be individually assessed " A thumb pressed that heavily on the racial scale, Justice O'Connor concluded, came too close to the "nonindividualized, mechanical" balancing condemned by Bakke to survive strict scrutiny  Despite their contrasting results, Gratz and Grutter gestured at several basic criteria by which to assess a university's race-conscious admissions policy  Those criteria, as the U S  Court of Appeals for the Ninth Circuit later described them, could be summed up in "five hallmarks of a narrowly tailored affirmative action plan " And all five can be traced in one way or another to Justice Powell's analysis of the Harvard plan  1  No Quotas  Perhaps the clearest violation of the requirement that a policy be narrowly tailored is the use of racial quotas  As Justice O'Connor explained in Grutter , a "'quota' is a program in which a certain fixed number or proportion of opportunities are reserved exclusively for certain minority groups," consequently "insulat[ing] the individual [applicant] from comparison with all other candidates for the available seats " And as Justice Powell emphasized in Bakke , and as has been consistently reaffirmed by the Court since, "[t]o be narrowly tailored, a race-conscious admissions program cannot use a quota system " This ban on quotas therefore precludes the use of a rigid set-aside like the one challenged in Bakke   And it likewise rules out the sort of "mechanical," automatic points system that was once in place at the University of Michigan's undergraduate college and was later invalidated in Gratz   2  Individualized Consideration  The flip side of the Court's refusal to accept racial quotas has been its insistence on individualizing the consideration of applicants  As Justice Kennedy reaffirmed in Fisher I , echoing Justice Powell's description of the Harvard plan in Bakke , an appropriately tailored program "must 'remain flexible enough to ensure that each applicant is evaluated as an individual and not in a way that makes an applicant's race or ethnicity the defining feature of his or her application '" And as the Court suggested in Gratz and Grutter , an acceptable plan will therefore engage in a "highly individualized, holistic review of each applicant's file, giving serious consideration to all the ways an applicant might contribute to a diverse educational environment " Such review allows "the use of race as one of many 'plus factors' in an admissions program," like in the University of Michigan Law School's policy upheld in Grutter   It also appears to bar a school from "automatically award[ing] points to applicants from certain racial minorities" as an effectively decisive factor, as it became under the university's undergraduate policy  3  Serious, Good-Faith Consideration of Race-Neutral or More Flexible Alternatives  Neither of these two criteria, however, implies that a university must exhaust "every conceivable race-neutral alternative" before turning to a race-conscious policy  Instead, a university need only provide evidence that it undertook "serious, good faith consideration of workable race-neutral alternatives" before resorting to its choice of a race-conscious plan, but that those alternatives either did not suffice to meet its approved educational goals or would have required some sacrifice of its "reputation for academic excellence " The same holds true, moreover, of more flexible race-conscious alternatives  Thus Justice Powell explained in Bakke that the Medical School's program was not narrowly tailored when the school could have adopted the more individualized, holistic program then in use at Harvard, an option the Medical School apparently did not consider  4  No Undue Harm  Even though the Court has allowed the use of race-conscious admissions policies under the exacting standard of strict scrutiny, it has also long "acknowledge[d] that 'there are serious problems of justice connected with the idea of preference itself '" In Grutter , Justice O'Connor drew another corollary from that apparent discomfort with racial preferences  "[A] race-conscious admissions program," she explained, must "not unduly harm members of any racial group " What this corollary means more specifically remains unclear; so far it has received only passing attention from the Court  At the least, Justice O'Connor suggested, a race-conscious admissions policy must not "unduly burden individuals who are not members of the favored racial and ethnic groups " And in Grutter , Justice O'Connor put more flesh on that analysis: an affirmative action policy that closely resembled the Harvard plan, she suggested, would not "unduly harm" other applicants  It remains to be seen, however, whether this principle might take on new life in the Court's review of other plans  5  Ongoing Review  In Grutter , Justice O'Connor also drew a fifth and final corollary from the basic premise that the Fourteenth Amendment was meant "to do away with all governmentally imposed discrimination based on race " "[R]ace-conscious admissions policies," she concluded, "must be limited in time " This requirement, Justice O'Connor explained for the Court, reflected a consideration apparently unique to racial classifications: "however compelling their goals, [they] are potentially so dangerous that they may be employed no more broadly than the interest demands " Doctrinally, this meant there could be no "permanent justification" for race-conscious admissions policies in higher education; sooner or later they had to end, as the university conceded in its briefing  Practically, this "logical end point" could come in one of several ways  It could take the form of an explicit "durational limit," such as a sunset provision  Or it could arrive as a result of "periodic reviews to determine whether racial preferences are still necessary to achieve student body diversity " But, however a university chooses to pursue that end, it has an "ongoing obligation to engage in constant deliberation and continued reflection regarding its admissions policies" and the role race plays in them, or whether it should continue to play one at all  For several Justices this ongoing obligation of review also pointed to something more definite—an expiration date, when "the use of racial preferences will no longer be necessary to further [the school's] interest" in student body diversity  Looking back over the quarter-century since Bakke , Justice O'Connor "expect[ed]" that day to come twenty-five years after casting her deciding votes in Gratz and Grutter —ten years from this writing  What exactly this meant, as either a practical or doctrinal matter, also remains unclear  Indeed, even then several of her fellow Justices seemed less sure, or simply unsure, what to make of that unusually specific constitutional deadline  But with six Justices having since departed the Court, Justices O'Connor and Kennedy included, it remains to be seen whether in the next ten years race-conscious admissions policies will reach this foreordained "logical end point " What seems clear for now, however, is that the Harvard plan described in Bakke remains the Court's working model of a constitutionally satisfactory race-conscious admissions policy  And that, as the Court has consistently said since, is a policy capable of achieving the diversity "essential" to the life of a modern university, while still "treat[ing] each applicant as an individual " Race has come to play two major doctrinal roles in higher education today, mirroring the two senses of "affirmative action" discussed in this report: the mandatory role, rooted in the affirmative obligation states have to eliminate the vestiges of de jure segregation, and the voluntary role, particularly in admissions decisions at selective colleges and universities  In the context of higher education, the Court has so far considered these two forms of "affirmative action" only in relation to public universities, and then primarily as a matter of constitutional law, under the Fourteenth Amendment's Equal Protection Clause  But many of those cases have also involved claims brought under Title VI of the Civil Rights Act of 1964 (Title VI or the Act)  And while the Court has read Title VI's protections to overlap with the Equal Protection Clause, Congress still has a significant say over the substantive scope of Title VI as well as its enforcement  Title VI generally protects participants in federally funded "program[s] or activit[ies]" from discrimination based on their "race, color, or national origin " To ensure that statutory right, the Act grants all federal funding agencies the authority to issue implementing regulations, and the power to enforce the regulations they issue  In practice, much of the interpretive authority falls to the U S  Department of Justice (DOJ), and for educational programs, the U S  Department of Education (ED)  Both DOJ and ED have also established their own processes for receiving and investigating complaints of suspected Title VI violations  ED, meanwhile, has also issued its own set of rules to govern the federal education dollars it disburses each year, reaching some 4,700 colleges and universities  Every agency that awards federal funds—ED included—has the authority not just to issue implementing regulations but to enforce those rules against noncompliant recipients, including through an investigation that may, upon a finding of noncompliance, result in the termination, suspension, or refusal to grant federal funds  Thus, for example, where ED finds a school in violation of Title VI or its implementing regulations the department may seek to cut off federal funding through an "administrative fund termination proceeding," as it has in at least some cases  And since the passage of the Civil Rights Restoration Act of 1987, the courts have read the scope of liability under Title VI broadly  With respect to the termination of funds, a Title VI violation in one program at a college or university could therefore jeopardize funding for the institution as a whole  Withdrawing funds may be the ultimate means of enforcing Title VI, but it is far from exclusive  DOJ, for its part, has also sought to achieve compliance through the federal courts, intervening in some private suits alleging Title VI violations and otherwise representing executive branch agencies, such as ED, in lawsuits seeking enforcement of Title VI  DOJ has participated in cases challenging practices of formerly de jure segregated public university systems as well as in settlements resolving such Fordice -related claims  DOJ has also taken a position in cases challenging affirmative action admissions policies, most recently in the ongoing litigation surrounding Harvard College's admissions policies  ED has ventured into this area as well, having recently opened investigations into the admissions decisions at several prominent private universities  Congress continues to have considerable say over how Title VI works—at least within the parameters of the Supreme Court's equal protection jurisprudence  Perhaps the most direct way of doing so is by amendment  As a general matter, Congress could revise Title VI in one of two directions, to make the statute either (1) more restrictive than the Court's current Equal Protection jurisprudence or (2) expressly permissive of race-conscious measures that the Court has upheld or has thus far not addressed  In the more restrictive direction, Congress could prohibit recipients of federal funds from using voluntary race-conscious measures at all—a result that four Justices in Bakke argued Title VI already requires, but which the Court has so far not embraced  A statutory revision of that kind would also implicitly reject the Harvard Plan discussed in Bakke , by excluding race as a permissible factor in admissions decisions at the many universities subject to Title VI, including the many private universities that receive federal funds  And, consequently, an amendment along these lines would make unlawful the type of admissions policies that the Court has approved under the Equal Protection Clause, like those at issue in Grutter and Fisher II   On the other hand, Congress could expressly open other avenues for effectuating Title VI's antidiscrimination mandate  This could include incorporating a private right of action to bring suit under Title VI, which, at present, is an implied right with no statutorily defined remedies  More consequentially, Congress could also amend Title VI to provide for disparate impact liability—that is, a Title VI violation based on a funding recipient's use of certain policies or practices that disproportionately and negatively impact members of a protected class, as already exists under Title VII of the same Act  A provision addressing disparate impact liability—either its availability or foreclosure under Title VI—would resolve a significant and ongoing debate on the issue  Such an addition would also be one way of clarifying whether Congress does in fact intend for Title VI to be read coextensively with the Equal Protection Clause  Beyond legislative amendments, Congress also exercises oversight over the agencies charged with carrying out Title VI's antidiscrimination mandate  As discussed earlier, DOJ and ED are primarily responsible for enforcing Title VI in educational programs  For its part, ED investigates and seeks compliance through its Office for Civil Rights, while the Educational Opportunities Section of the Department of Justice's (DOJ's) Civil Rights Division typically enforces Title VI in educational programs for the department  Both offices maintain public archives documenting their past and current investigations, as well as wider-ranging reports detailing their enforcement priorities and investigatory procedures  And because Title VI applies to a wide variety of entities that receive federal financial assistance, not just colleges and universities, DOJ also publishes news and updates on Title VI enforcement activity in other programmatic areas, from agencies across the federal government  Race has come to play two major doctrinal roles in higher education today, reflecting the two senses of "affirmative action" discussed in this report  "Affirmative action" in its original sense grew out of the affirmative obligation imposed on the states by the Equal Protection Clause to eliminate the vestiges of de jure segregation from their public schools  And in that sense, "affirmative action" involves the mandatory use of race-conscious measures in higher education to right the enduring wrongs of state-sanctioned segregation  But "affirmative action" has also come to refer to race-conscious policies outside this de jure context—policies voluntarily adopted by institutions to help racial minorities overcome the effects of their earlier exclusion  In higher education, none has been more salient—or stirred more debate—than the race-conscious admissions policies that colleges and universities across the country have used to diversify their student bodies  Thus far, remedial measures addressing de jure segregation, and voluntary measures designed to promote student-body diversity, have been the only race-conscious measures that the Court has approved under the Equal Protection Clause  And both remain areas of active litigation and administrative enforcement  Over the years, however, the Court has made it clear that it will subject voluntary "affirmative action" policies to especially close scrutiny, approving them only when they can be shown to be narrowly tailored to serve compelling educational goals  It has approved such polices twice already, most recently in 2016  Still, several Justices have suggested that the rationales supporting these voluntary race-conscious measures will one day run out  But for the time being, at least, these two lines of authority nevertheless provide a place for affirmative action in higher education today  This authority, however, leaves questions as of yet unexplored  It appears to be an open question, for example, whether a public institution of higher education can cite its own history of intentional exclusion, or else its "past discrimination," as a basis for adopting a race-conscious admissions policy, among other measures  Whether—and how—the courts might assess such untested arguments would likely turn on a range of factors, including the further development of the two lines of authority addressed in this report  Regardless of those and other possible developments, however, Congress still has a significant say in in this area, through its authority not just to revise Title VI but to oversee the Act's enforcement 

ground_truth: When federal courts have analyzed and addressed "affirmative action" in higher education, they have done so in two distinct but related senses, both under the Fourteenth Amendment's guarantee of "equal protection." The first has its roots in the original sense of "affirmative action:" the mandatory use of race by public education systems to eliminate the remnants of state-imposed racial segregation. Because state-sanctioned race segregation in public education violates the Fourteenth Amendment's Equal Protection Clause, in certain cases involving a state's formerly de jure segregated public university system, a state's consideration of race in its higher education policies and practices may be an affirmative obligation. As the U.S. Supreme Court explained in its consequential 1992 decision United States v. Fordice, equal protection may require states that formerly maintained de jure segregated university systems to consider race for the purpose of eliminating all vestiges of their prior "dual" systems. Drawing upon its precedent addressing racially segregated public schools in the K-12 context, the Court established a three-part legal standard in Fordice for evaluating the sufficiency and effectiveness of a state's efforts in "dismantl[ing]" its formerly de jure segregated public university system. To that remedial end, mandatory race-conscious measures—in this de jure context—are not limited to admissions. Instead, remedies may also address policies and practices relating to academic programs, institutional missions, funding, and other aspects of public university operations. Outside this de jure context, "affirmative action" has come to refer to a different category of race-conscious policies. These involve what the Court at one time called the "benign" use of racial classifications—voluntary measures designed not to remedy past de jure discrimination, but to help racial minorities overcome the effects of their earlier exclusion. And for institutions of higher education, the Court has addressed one type of affirmative action policy in particular: the use of race as a factor in admissions decisions, a practice now widely observed by both public and private colleges and universities. The federal courts have come to subject these voluntary race-conscious policies—"affirmative action" in its perhaps more familiar sense—to a particularly searching form of review known as strict scrutiny. And even though this heightened judicial scrutiny has long been regarded as strict in theory but fatal in fact, the Court's review of race-conscious admissions policies in higher education has proved a notable exception, with the Court having twice upheld universities' use of race as one of many factors considered when assembling their incoming classes. The Court has long grappled with this seeming tension—between the strictness of its scrutiny and its approval of race-conscious admissions policies—beginning with its landmark 1978 decision in Regents of the University of California v. Bakke through its 2016 decision in Fisher v. University of Texas. Though the Equal Protection Clause generally concerns public universities and their constitutional obligations under the Fourteenth Amendment, federal statutory law also plays a role in ensuring equal protection in higher education. To that end, Title VI of the Civil Rights Act of 1964 prohibits recipients of federal funding—including private colleges and universities—from, at a minimum, discriminating against students and applicants in a manner that would violate the Equal Protection Clause. Federal agencies, including the Departments of Justice and Education, investigate and administratively enforce institutions' compliance with Title VI.