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|**U.S. Department of Justice***Civil Rights Division* | **U.S. Department of
          Education***Office for Civil Rights*
|----------------------------------------------------- | -------------------------------------------------------------------

**Introduction**

The United States Department of Education (ED) and the United States Department
  of Justice (DOJ) (collectively, the Departments) are issuing this guidance
  to explain how, consistent with existing law, elementary and secondary schools
  can voluntarily consider race to further compelling interests in achieving
  diversity and avoiding racial isolation.  This guidance replaces the August
  28, 2008 letter issued by ED’s Office for Civil Rights (OCR) entitled “The
Use of Race in Assigning Students to Elementary and Secondary Schools.”

More than 50 years ago, *Brown v. Board of Education*recognized that
  “education is perhaps the most important function of state and local governments. . . .It
  is the very foundation of good citizenship.”1  Providing
  students with diverse, inclusive educational opportunities from an early age
  is crucial to achieving the nation’s educational and civic goals.

As the Supreme Court has explained, elementary and secondary schools (also
  referred to in this guidance as K-12 schools) are “pivotal to sustaining our
  political and cultural heritage;”2 they
  teach “that our strength comes from people of different races, creeds, and
  cultures uniting in commitment to the freedom of all.”3****  Racially diverse schools provide incalculable educational and civic benefits by promoting
  cross-racial understanding, breaking down racial and other stereotypes, and
  eliminating bias and prejudice.  Our “‘nation’s future depends upon leaders
  trained through wide exposure’ to the ideas and mores of students as diverse
  as this Nation of many peoples.”4

Conversely, where schools lack a diverse student body or are racially isolated
  (*i.e*., are composed overwhelmingly of students of one race), they
  may fail to provide the full panoply of benefits that K-12 schools can offer. 
  The academic achievement of students at racially isolated schools often lags
  behind that of their peers at more diverse schools.  Racially isolated schools
  often have fewer effective teachers, higher teacher turnover rates, less rigorous
  curricular resources (*e.g.,* college preparatory courses), and inferior
  facilities and other educational resources.  Reducing racial isolation in schools is also important because students who are not
  exposed to racial diversity in school often lack other opportunities to interact
with students from different racial backgrounds.5

For all these reasons, the Departments recognize, as has a majority of Justices
  on the Supreme Court, the compelling interests that K-12 schools have in obtaining
  the benefits that flow from achieving a diverse student body and avoiding racial
  isolation.6  This
  guidance addresses the degree of flexibility that school districts have to
  take proactive steps, in a manner consistent with principles articulated in
  Supreme Court opinions, to meet these compelling interests.

Section I of this guidance describes the relevant legal framework for considering
  race to further the compelling interests in achieving diversity and avoiding
  racial isolation in K-12 schools.  Section II sets forth considerations for
  school districts in their voluntary use of race to achieve their compelling
  interests.  Section III provides a summary of key steps for school districts
  seeking to achieve diversity or avoid racial isolation.  Section IV provides
  examples of ways that, in light of this guidance, school districts may choose
  to advance these compelling interests.

**I. LEGAL FRAMEWORK**

Under the Civil Rights Act of 1964, the Departments are responsible for enforcing
  federal laws that bar public schools, as well as private institutions that
  receive federal financial assistance, from discriminating on the basis of race,
  color, or national origin.  *See* 42 U.S.C. § 2000(c)-(d) (Title IV
  and Title VI).7 
  Racial discrimination by school districts that violates the Equal Protection
  Clause of the Fourteenth Amendment to the Constitution also violates Titles
  IV and VI.8 Accordingly,
  the Departments here consider not only federal statutory law, but also case
  law interpreting the Equal Protection Clause, particularly the Supreme Court’s
  decision in *Parents Involved in Community Schools v. Seattle School District
  No.**1*(*Parents Involved*).9

In *Parents Involved*, the Supreme Court considered challenges to voluntary
  efforts by the Seattle, Washington, and Jefferson County (Louisville), Kentucky,
  school districts to use individualized racial classifications to achieve diversity
  or avoid racial isolation through their student assignment plans.  A majority
  of the Justices recognized that seeking diversity and avoiding racial isolation
  are compelling interests for school districts.  *Id.* at 783, 797 (Kennedy,
  J., concurring in part and concurring in the judgment); *id*. at 838-42
  (Breyer, J., dissenting).  However, the Court struck down both school districts’
  uses of individualized racial classifications in assigning students to schools.
   *Id*. at 733-35; *id.* at 782 (Kennedy, J., concurring in part
and concurring in the judgment).

Chief Justice Roberts issued the lead opinion, which was joined by three other
Justices in its entirety (the plurality opinion), and by Justice Kennedy in part
and in the judgment.  Justice Kennedy issued a separate concurrence addressing
those areas where he disagreed with the Chief Justice’s plurality opinion and
discussing how schools can pursue the compelling interests in achieving a diverse
student population or avoiding racial isolation.  Justice Breyer’s dissenting
opinion was joined by the remaining three Justices.

**A.  The Opinion of the Court in *Parents Involved***

The portions of the plurality opinion that Justice Kennedy joined constitute
  the opinion of the Court. The Court affirmed its prior holdings that “when
  the government distributes burdens or benefits on the basis of individual racial
  classifications, that action is reviewed under strict scrutiny.”  *Id.* at
  720. To survive strict scrutiny, a school district that considers race in making
  individual student assignment decisions must show that the use of race is narrowly
  tailored to achieve a compelling governmental interest. *Id.*

Although the Court declined to rule on whether the interests that were asserted
  by Seattle and Louisville were compelling, it held that the two school districts
  in that case had failed to demonstrate that their use of individual students’
  race was narrowly tailored to meet their goals.  *Id.*at 722-25.  In
  making this determination, the Court generally applied the four-prong narrow
  tailoring test from its 2003 decision in *Grutter v. Bollinger*.  That
  test assesses whether an educational institution has considered workable race-neutral
  alternatives; whether its plan provides for flexible and individualized review
  of students; whether it has minimized undue burdens on other students; and
  whether its plan is limited in time and subject to periodic review.  *See
  Grutter*, 539 U.S. at 334-43.10

In applying these factors in *Parents Involved*, the Court noted that:
 Seattle and Louisville had not demonstrated that they seriously considered race-neutral
alternatives; the individual racial classifications used had a minimal impact
that cast doubt on their necessity; the districts defined diversity in overly
limited terms that did not adequately reflect the diversity within the districts;
and the districts’ plans did not provide for a meaningful, individualized  review
  of student assignments.  Consequently, the Court held that Seattle’s and Louisville’s
  consideration of the race of individual students in their student assignment
plans was impermissible.*Parents Involved*, 551 U.S. at 723-24; 734-35.

**B. Justice Kennedy’s Concurrence**

While  Justice Kennedy joined the opinion of the Court that Seattle’s and
  Louisville’s uses of individual racial classifications were not narrowly tailored,
  he wrote separately to emphasize that the Court’s decision should not be read
  as prohibiting state and local authorities from considering the racial makeup
  of schools and adopting “general policies to encourage a diverse student body.”  *Id.* at
  788 (Kennedy, J., concurring in part and concurring in the judgment).

Together with the four dissenting Justices, Justice Kennedy recognized that
  K-12 school districts have compelling interests both in achieving diversity
  and in avoiding racial isolation, and he concluded that school districts could
  voluntarily adopt measures to pursue these goals.  *Id.* at 797-98; *see
  also id.*at 838-45 (Breyer, J., dissenting).

Importantly, Justice Kennedy drew a distinction between school district plans
  that rely on the race of individual students and plans that seek to achieve
  diversity or****avoid racial isolation through more generalized
  race-conscious measures:

If school authorities are concerned that the student-body compositions of
  certain schools interfere with the objective of offering an equal educational
  opportunity to all of their students, they are free to devise race-conscious
  measures to address the problem in a general way and without treating each
  student in different fashion solely on the basis of a systematic, individual
  typing by race.

*Id.* at 788-89 (Kennedy, J., concurring in part and concurring in
the judgment).

Justice Kennedy went on to state that race-conscious approaches that do not
  rely on individual racial classifications are “unlikely” to “demand strict
  scrutiny” and are likely to pass constitutional muster.  In so doing, he also
  provided some examples of the sorts of approaches that he had in mind:

School boards may pursue the goal of bringing together students
  of diverse backgrounds and races through other means, including strategic site
  selection of new schools; drawing attendance zones with general recognition
  of the demographics of neighborhoods; allocating resources for special programs;
  recruiting students and faculty in a targeted fashion; and tracking enrollments,
  performance, and other statistics by race.  These mechanisms are race conscious
  but do not lead to different treatment based on a classification that tells
  each student he or she is to be defined by race, so it is unlikely any of them
  would demand strict scrutiny to be found permissible.  Executive and legislative
  branches, which for generations now have considered these types of policies
  and procedures, should be permitted to employ them with candor and with confidence
  that a constitutional violation does not occur whenever a decisionmaker considers
the impact a given approach might have on students of different races.

*Id.* at 789 (citation omitted).

Furthermore, while the Seattle and Louisville school districts failed to show
  the necessity of classifying individual students by race in their plans, Justice
  Kennedy refused to rule out approaches that in appropriate circumstances take
  account of the race of individual students in school assignment.  *Id.* at
  790. He explained that a school district can employ a “more nuanced individual
  evaluation of school needs and student characteristics that might include race
  as a component.”  *Id*.  Such an individualized approach would be informed
  by the narrow tailoring analysis set forth in *Grutter*,“though of course
  the criteria relevant to student placement would differ based on the age of
the students, the needs of the parents, and the role of the schools.”  *Id*.

Thus, a majority of Justices has concluded that school districts have flexibility
  in determining how voluntarily to achieve diversity or avoid racial isolation
  in their schools.  Although *Parents Involved* ultimately was decided
  on other grounds, a majority of the Justices expressed the view that schools
  must have flexibility in designing policies that endeavor to achieve diversity
  or avoid racial isolation, and, at least where those policies do not classify
  individual students by race, can do so without triggering strict scrutiny.
   *Id.* at 789 (Kennedy, J., concurring in part and concurring in the
  judgment); *id.* at837 (Breyer, J., dissenting).  Thus, although there
  was no single majority opinion on this point, *Parents Involved* demonstrates
  that a majority of the Supreme Court would be “unlikely” to apply strict scrutiny
  to generalized considerations of race that do not take account of the race
  of individual students.

*Parents Involved*also reaffirmed that when a district chooses to
  take into account the race of individual students in providing benefits or
  imposing burdens, it must meet the strict scrutiny standard, demonstrating
  that its plan is narrowly tailored to meet the compelling interest in achieving
  diversity or avoiding racial isolation in schools.  *Id.* at 787.  The
  Court has repeatedly emphasized, however, that the application of strict scrutiny,
  in and of itself, is “‘not fatal in fact.’” *Grutter,*539 U.S. at 327
  (quoting *Adarand v. Pena*, 515 U.S. 200, 237 (1995)).

The Departments will examine efforts to achieve diversity and avoid racial
  isolation in K-12 education in light of each of these principles.  This guidance
  seeks to outline, in practical terms, the legal requirements applicable to
  such efforts, recognizing that whether a particular approach comports with
  the law depends on the relevant facts and context.

**II. APPLICATION TO ELEMENTARY AND SECONDARY EDUCATION**

This Section sets out considerations for school districts in their voluntary
use of race to achieve diversity or avoid racial isolation.  The discussion in
this and the following sections assumes that districts are acting to achieve
diversity or avoid racial isolation; districts should be prepared to explain
how these objectives fit within their overall mission. Nothing in this guidance
should be understood to suggest that race, or racial impact, may be considered
in furtherance of an invidious purpose.11

Approaches to achieve diversity or avoid racial isolation fall into two broad
  categories: those that do not rely on the race of individual students, and
  those that do.  School districts should consider approaches that do not rely
  on the race of individual students before adopting approaches that do.

Approaches that do not rely on the race of individual students include both
  race-neutral and generalized race-based approaches.  Race-neutral approaches
  can take racial impact into account but do not rely on race as an express criterion. 
  Generalized race-based approaches use race as an express criterion, but****do
  not rely on the race of individual students or treat individual students differently
  because of their race.

**A.  Approaches That Do Not Rely on the Race
      of Individual Students**

School districts should first determine if they can meet their compelling
  interests by using race-neutral approaches.  Race-neutral approaches can be
  used for decisions about individual students, such as admissions decisions
  for competitive schools or programs, as well as for decisions made on an aggregate
  basis, such as the drawing of zone lines that affect a large number of students. 
  A district using race-neutral criteria for the purpose of achieving diversity
  or avoiding racial isolation may, “with candor . . . consider[]
  the impact a given approach might have on students of different races.” *Parents
  Involved*, 551 U.S. at 789 (Kennedy, J., concurring in part and concurring
  in the judgment). Examples of race-neutral approaches include — but are not
  limited to — the use of criteria such as:  students’ socioeconomic status;
  parental education (*e.g.*, highest degree attained or years of education);
  students’ household status (*e.g.*, dual or single-parent household);
  neighborhood socioeconomic status; geography (*e.g.*, existing neighborhood
  lines); and composition of area housing (*e.g.*, subsidized housing,
  single-family home, high-density public housing, or rental housing).

School districts are required to use race-neutral approaches only if they
  are workable.  *See Grutter*, 539 U.S. at 339(requiring the law school
  to give “serious, good faith consideration of workable race-neutral alternatives
that will achieve the diversity [it] seeks”). 12 
School districts are not required to implement such approaches if, in their judgment,
the approaches would not be workable.  In some cases, race-neutral approaches
will be unworkable because they will be ineffective to achieve the diversity
that the school district seeks or to address racial isolation in the district’s
schools.  School districts may also reject race-neutral approaches that would
require  them to sacrifice a component of their educational mission or  priorities
(*e.g.*, academic selectivity).13

When race-neutral approaches would be unworkable to achieve their compelling
  interests, school districts may employ generalized race-based approaches. 
  Generalized race-based approaches employ expressly racial criteria, such as
  the overall racial composition of neighborhoods, but do not involve decision-making
  on the basis of any individual student’s race.  For example, a school district
  could draw attendance zones based on the racial composition of particular neighborhoods,
  as well as on race-neutral factors such as the average household income and
  average parental education level of particular neighborhoods within the school
  district.  All students within those zones would be treated the same regardless
  of their race.14

**B.  Approaches That Rely On Individual Racial
      Classifications**

As authorized by *Grutter* and referenced in Justice Kennedy’s concurrence
  in *Parents Involved*, a school district may only consider the race
  of individual students if it does so in a manner that is narrowly tailored
  to meet a compelling interest.  Thus, when schools adopt approaches that consider the race of individual students,
  they should do so in a manner that closely fits their goals of achieving diversity
  or avoiding racial isolation and includes race no more than necessary to meet
  those ends.  *See Grutter*, 539 U.S. at 333-34.

As an initial matter, a district should first determine that race-neutral approaches
  would be unworkable to achieve its compelling interests before relying on individual
  racial classifications.

In implementing programs that consider a student’s race as a factor, schools
  should provide each student with an individualized review appropriate to the
  K-12 context.15 
  A district may consider a student’s race as a “plus factor” (among other, non-racial
  considerations) to achieve its compelling interests.  But no student applicant
  to a school or program should be insulated – based on his or her race – from
  an assessment or comparison to all other student applicants, to ensure that
  the district minimizes the impact of its program on those other students.

In addition, a school district should not evaluate student applicants in a
  way that makes a student’s race his or her defining feature.  School districts
  should consider how the range of student attributes, including both non-racial
  characteristics (*e.g.*, a student’s socioeconomic status or parental
  educational background) and racial characteristics, contribute to meeting the
  district’s compelling interest in achieving****diversity or avoiding
  racial isolation.

Based on its particular educational objectives and unique needs, a district
  should determine how it will achieve the benefits that it is pursuing through
  its program to promote diversity16 or
  avoid racial isolation.  Finally, a school district that uses individual racial
  classifications should periodically review the program to determine whether
such racial classifications remain necessary and modify its practices as needed.

It will be helpful for districts to have documents that describe their educational
  objectives and the process they followed in structuring their programs, including
  alternatives that they considered and rejected.  These documents will assist
in answering any questions that arise.

**III. KEY STEPS FOR IMPLEMENTING PROGRAMS TO ACHIEVE DIVERSITY OR AVOID
  RACIAL ISOLATION**

Based on the foregoing, here is a checklist of key steps for school districts
  seeking to achieve diversity or avoid racial isolation:

*Identifying the Reason for Your Plan*

- Determine how these compelling interests relate to your school district’s
      mission and unique circumstances.
- Evaluate how you will know when your compelling interest has been achieved.

*Implementing Your Plan*

- Consider whether there are race-neutral approaches that you can use, such
      as looking at socioeconomic status or the educational level attained by parents.  In
      selecting among race-neutral approaches, you may take into account the racial
      impact of various choices.  If you determine that race-neutral measures
      would be unworkable, consider whether using an approach that relies on the
      generalized use of racial criteria, such as the racial demographics of feeder
      schools or neighborhoods, would help to achieve your goals.
- If race-neutral and generalized race-based approaches would be unworkable to
        achieve your compelling interest(s), you may then consider approaches that take
        into account the race of individual students.  When doing so, evaluate each student
        as an individual and do not make the student’s race his or her defining characteristic. 
        Periodically review your program to determine if you continue to need to consider
        the race of individual students to achieve your compelling interest. It is important
        to ensure that race is used to the least extent needed to workably serve your
        compelling interest.

*General Considerations*

- Continue to consider factors that you ordinarily weigh in student assignment
      and other decisions, such as current and projected student enrollment, travel
      times, and sibling attendance issues.  As you review these factors in light
      of changes, such as increased or decreased demand at school sites, you should
      also examine your practices to achieve diversity or avoid racial isolation
      and modify them if needed.
- Your district’s process for students or parents to raise concerns about school
      assignments or other school decisions should be open to students or parents
      who wish to raise concerns about decisions made pursuant to efforts to achieve
      diversity or avoid racial isolation.
- It would be helpful to maintain documents that describe your compelling interest,
      and the process your institution has followed in arriving at your decisions,
      including alternatives you considered and rejected and the ways in which your
      chosen approach helps to achieve diversity or avoid racial isolation.  These
      documents will help you answer questions that may arise about the basis for
      your decisions.

**IV.  APPROACHES TO ACHIEVING DIVERSITY OR AVOIDING RACIAL ISOLATION**

This Section provides practical examples of actions that schools may consider,
  consistent with prior Supreme Court opinions and the principles set forth in
  the previous Sections, as necessary to achieve diversity or avoid
  racial isolation.  The examples include race-neutral approaches as well as
  generalized uses of race, and identify when a school district
  may consider the race of individual students.

In choosing among options, school districts should keep in mind the framework
  discussed above.  We encourage school districts to contact us for technical
  assistance in applying this guidance to their particular situations.

These examples are intended to be illustrative, not exhaustive.  Districts
  may choose to pursue more than one of these options (*e.g.,*a combination
  of school zoning and school choice for some or all of their schools) or may
  design other options that are consistent with this guidance.17

In addition to the approaches discussed below, school districts may wish to
  consider using recruitment to achieve diversity or avoid racial isolation. 
  For instance, if a school district is seeking to increase the diversity in
  the applicant pool of a competitive magnet school with a predominantly white
  student body, the district could, as part of its general outreach and recruitment
  of potential applicants, place flyers or make announcements at schools with
  a predominantly non-white student population or encourage individual non-white
  students to apply.  Such actions simply enlarge the applicant pool and help
  to ensure that it is inclusive; they do not determine which students will ultimately
  be admitted to the program.

**A.**  **School and Program Siting Decisions**

School districts routinely make decisions about the siting of schools and
  special programs, such as non-competitive magnet schools or specialized academic,
  athletic, or extracurricular programs.  School districts seeking to achieve
  diversity or avoid racial isolation may make siting decisions to further those
  interests.  School siting decisions, by their nature, will of course also involve
  numerous other considerations, such as construction costs, transportation needs,
  geographic obstacles, and enrollment projections.

A school district’s decision to close a school or to discontinue a special
  program in an effort to achieve diversity or avoid racial isolation is analyzed
  in the same manner as the decision to site a school or program.

**Examples**

**Example 1**:  A school district that has two potential locations
  for the siting of a new school – one that would draw students from varying
  socioeconomic groups and the other that would draw primarily from one socioeconomic
  group – might choose the location that would enroll a socioeconomically diverse
  student population if it also furthers the district’s interest in racial diversity
  or avoiding racial isolation.

**Example 2**:  When a school district is deciding where to site
  a specialized academic program (*e.g*., a nursing or computer science
  program) designed to improve educational attainment and to draw students from
  across the school district, it might choose to do so at a low-performing school
  if the program would also help to achieve racial diversity or avoid racial
  isolation.

**Example 3**:  A school district might determine where to site
  a new school based on criteria that expressly include the racial characteristics
  of a particular geographic area.  If this school is open to all students within
  that area, the siting decision would use race only in a general way and would
  not be based on any individual student’s race.

**B.** **Decisions about Grade Realignment and
Feeder Patterns**

School districts use grade alignments and feeder patterns to assign students
  to schools and to make decisions about which schools will serve each grade.
   School districts seeking to achieve diversity or avoid racial isolation may
  design or redesign such programs to further those interests.

**Examples**

**Example 1**:  A school district has two K-5 elementary schools,
  one of which has a large enrollment of students whose households have higher
  than average annual incomes and the other of which has a student population
  whose households have lower than average annual incomes.  The district could
  mix students from lower and higher income households in one grade K-2 school
  and one grade 3-5 school, if doing so also helps to achieve racial diversity
  or avoid racial isolation.

**Example 2**:  A school district might choose to feed underperforming
  elementary schools into higher performing middle schools if this also helps
  to achieve racial diversity or avoid racial isolation.

**Example 3**:  A school district could create feeder patterns
  for elementary schools that expressly include the racial makeup of the population
  of the elementary school as a whole as a criterion in determining which elementary
  schools would feed into which middle schools.  All students at a particular
  elementary school would then be assigned to the same middle school, without
  regard to the race of any individual student.

**C.  School Zoning Decisions**

School districts often use attendance zones to assign students to schools. 
    An attendance zone is a geographically defined area in which all students
    who reside in the area are assigned to particular schools.  School districts
    seeking to achieve diversity or avoid racial isolation may draw or re-draw
    attendance zones to further those interests.

**Examples**

**Example 1**:  A school district that must zone for two schools
  in proximity to one another might categorize the geographic area around the
  schools by socioeconomic status (or some other race-neutral characteristic).
  It could then draw attendance zones to achieve socioeconomic diversity, recognizing
  that it would also help to achieve racial diversity or avoid racial isolation.

**Example 2**:  A school district could develop a variety of
  race-neutral requirements for possible new attendance zones, including equalizing
  enrollment, minimizing travel times (including facilitating students’ walking
  to school), and ensuring peer continuity (*e.g.*, assigning elementary
  school classmates to the same middle school). In choosing among possible assignment
  plans based on these criteria, the school district could choose the one that
  best advances its interest in achieving racial diversity or avoiding racial
  isolation.

**Example 3**:  A school district could create attendance zones
  that consider the relative racial composition of areas in combination with
  the average household income and educational levels of parents in those areas
  (*e.g.*, highest degree attained or years of education).  All students
  in a given area would then, regardless of their individual race, receive the
  same consideration when applying to a particular school based on how much their
  zoned area would contribute to the diversity of or reduce the racial isolation
in that school.

**D. Open and Choice Enrollment Decisions**

Some school districts use open enrollment or school choice programs to assign
  students to schools.  These programs allow parents to choose among (or rank
  by preference) district schools.  The district then assigns students based
  in part on their parents’ choices.  School districts seeking to achieve diversity
  or avoid racial isolation may design or redesign such programs to further those
  interests.

**Examples**

**Example 1**:  A school district in which students of different
  races are concentrated in different attendance zones could implement a district-wide
  lottery system that allows parents to identify and rank a certain number of
  schools and then randomly assigns students based on the parents’ choices.

**Example 2**:  A school district could design a program that
  clusters existing schools (*i.e.*, create large attendance zone areas
  that encompass several neighborhoods and multiple schools that serve the same
  grade levels) based on a race-neutral factor such as the socioeconomic composition
  of different geographic areas.  The district could then provide parents with
  choices from among the schools within their assigned cluster in a manner that
  furthers socioeconomic diversity.  In some circumstances, clustering schools
  based on the socioeconomic composition of particular geographic areas may also
  help to achieve racial diversity or avoid racial isolation.

**Example 3**:  A school district could design****a
  program to cluster existing schools based on their racial composition.  The
  district could then provide parents with choices from among the schools within
  their assigned cluster that would help to foster diversity or avoid racial
  isolation.

**Example 4**:  A school district could use a program that assigns
  a diversity priority to each “planning area” (*i.e.,* a geographic area
  of a small number of residential blocks) based on the area’s racial demographics,
  economic data, and educational demographics.  Students could then be assigned
  to a school based on a combination of parents’ choices and a lottery that gives
  priority based on the planning area in which they reside.

If a school district determines that these types of approaches would be unworkable,
  it may consider using an individual student’s race as one factor among others
  in considering how an individual student’s school assignment would contribute
  to achieving diversity or avoiding racial isolation.  In so doing, a school
  district should follow the legal guidelines specifically described in Section
II(B) above regarding the consideration of individual students’ race.

**E. Admission to Competitive Schools and Programs**

Some school districts have schools or programs to which students apply and are
  selected through a competitive admissions process.  School districts seeking
  to achieve diversity or avoid racial isolation may develop admissions procedures
  for competitive schools or programs to further those interests.

**Examples**

**Example 2:**For students who meet the basic admissions criteria,
  a school district could give greater weight to the applications of students
  based on their socioeconomic status, whether they attend underperforming feeder
  schools, their parents’ level of education, or the average income level of
  the neighborhood from which the student comes, if the use of one or more of
  these additional factors would help to achieve racial diversity or avoid racial
isolation.

**Example 3**:  If it would help achieve racial diversity or
  avoid racial isolation, a school district could decide to admit all applicants
  with grades that put them within the top quartile of their class at the schools
  from which the competitive program draws.

**Example 4**:  A school district could give special consideration
  to students from neighborhoods selected specifically because of their racial
  composition and other factors.  In the selection process, a district would
  treat all the students who live in the selected neighborhood the same regardless
  of their race.

If a school district concludes that these types of programs would be unworkable
  to achieve diversity or avoid racial isolation, the district may then consider
  using race as one factor among others in the selection of individual students
  for admission to competitive schools or programs.  In so doing, a school district
  should follow the legal guidelines specifically described in Section II(B)
  above regarding the consideration of individual students’ race.

**F.  Inter- and Intra-District Transfers**

Numerous school districts use transfer programs to allow students to move between
    schools within and outside the district.  School districts seeking to achieve
    diversity or avoid racial isolation may use transfer programs to further
those interests.

**Examples**

**Example 1:**  A school district might categorize neighborhoods
based on average household income and allow a student from a geographic area
with a lower than average household income to transfer out of his or her assigned
school and into a school that draws from a geographic area with a higher than
average household income if it would help to achieve racial diversity or avoid
  racial isolation.

**Example 2:**  A school district could design a transfer program
  that expressly relies upon the overall racial composition of geographic areas
  within the district.  For example, in evaluating requests to transfer into
  a predominantly Asian-American school, a school district could give priority
  to students who live in a neighborhood comprised predominantly of non-Asian-American
  households, regardless of the race of the particular student requesting the
  transfer.  All students from this neighborhood would be treated the same in
the decision-making process.

**Example 3**:  Two or more adjacent districts (for example, a predominantly African-American
  urban district and a predominantly white suburban district) could collaborate
  to facilitate district-to-district student transfers, by which students in
  each district (regardless of their particular race) could apply to transfer
  voluntarily to a school in the other district.  All students from a district
  would be treated the same in the decision-making process, without regard to
  the race of any individual student.

If a school district determines that these types of approaches would be unworkable,
  it may consider using an individual student’s race as one factor among others
  in considering whether to approve or deny the student’s transfer request. 
  In so doing, a school district should follow the legal guidelines specifically
  described in Section II(B) above regarding the consideration of individual
  students’ race.

**Conclusion******

This document provides guidance and examples of approaches that school districts
  can voluntarily use to further their compelling interests in achieving diversity
  and avoiding racial isolation, consistent with case law under Title IV, Title
  VI, and the Equal Protection Clause of the Fourteenth Amendment to the Constitution.

The issues discussed herein relate to a complex area of the law, and the
  Departments encourage school districts to contact us with questions or for
  further assistance in applying this guidance in a specific district.  To contact
  the OCR regional office for your state or territory, please visit 
  http://wdcrobcolp01.ed.gov/CFAPPS/OCR/contactus.cfm,
  or contact OCR’s Customer Service Team at:

OCR@ed.gov


To reach the Department of Justice, please contact:

education@usdoj.gov




1 347 U.S. 483,
	493 (1954). 2*Grutter
    v. Bollinger*, 539 U.S. 306, 331 (2003) (quoting *Plyler v. Doe*,
    457 U.S. 202, 221 (1982)). 3*Parents
    Involved in**Cmty.**Sch. v. Seattle**Sch. Dist.**No.
    1*, 551 U.S. 701, 782 (2007) (Kennedy, J., concurring in part and concurring
    in the judgment). 4*Grutter*,
    539 U.S. at 324 (quoting *Regents of Univ. of Cal. v. Bakke*, 438
    U.S. 265, 313 (1978) (opinion of Powell, J.)).5*See Parents
    Involved,*551 U.S. at 798 (“[N]eighborhoods in our communities do not
    reflect the diversity of our Nation as a whole.” (Kennedy, J., concurring
    in part and concurring in the judgment)). 6 The Departments
	also recognize the compelling interest in remedying the vestiges of past
	racial discrimination, which is not the focus of this guidance. Numerous
	school districts are required to consider race pursuant to desegregation orders,
	compliance plans, or other legal mandates to remedy discrimination. This guidance
	does not address the remedial use of racial classifications in these or other
	circumstances; nothing in it should be read to imply any limitations on remedial
	orders by courts or administrative agencies. In addition, nothing in this guidance
	addresses other claims of compelling interests justifying the consideration
	of race, which the Departments will consider on a case-by-case basis. *See
	Parents Involved,*551
	U.S. at 720  (stating that the Court’s opinion was issued “[w]ithout attempting
	in these cases to set forth all the interests a school district might assert”).  7 Throughout
    this guidance, references to “race” includes race, color, and national origin. 
    When evaluating efforts to promote diversity or avoid racial isolation that
    fall within the scope of Title VI (and Title IV in the case of DOJ), the
    Departments will apply this guidance.8*See Alexander
    v. Sandoval,*532 U.S. 275, 280-81 (2001) (citing *Bakke*, 438
    U.S. at 287 (opinion of Powell, J.)).  9 The Court’s
    decisions in *Grutter*, and *Gratz v. Bollinger*, 539 U.S.
    244 (2003), are also relevant to the Department’s analysis.  In *Grutter*,
    the Court held that student body diversity, including racial diversity, is
    a compelling interest for higher education institutions, and affirmed the
    consideration of individual students’ race as a factor in the holistic review
    of applicants to the University of Michigan Law School.  *Grutter*,
    539 U.S. at 328, 333-37.  In *Gratz*, while accepting student body
    diversity as a compelling interest, the Court held that the University’s
    race-conscious plan was not narrowly tailored to achieve that interest because,
    among other things, the University used a point system that awarded 20 percent
    of the total number of points needed for admission based solely on an applicant’s
    race, rather than conducting a more individualized assessment.  *Gratz*,
    539 U.S. at 268-71, 275.10 For a
    more detailed discussion of the narrow tailoring factors that apply to individual
    racial classifications used to promote diversity in postsecondary educational
    institutions, see the Departments’ “Guidance on the Voluntary Use of Race
    to Achieve Diversity in Postsecondary Education.”11*See,
	e.g.*,*Parents Involved*, 551 U.S. at 788-89 (Kennedy, J., concurring
	in part and concurring in the judgment) (clarifying that the leeway to “devise
	race-conscious measures” to achieve diversity or avoid racial isolation extends
	only to circumstances where school districts “pursue the goal of bringing together
	students of diverse backgrounds and races”); *cf., e.g.*,*Vill. of
	Arlington Heights v. Metro. Hous. Dev. Corp.*, 429 U.S. 252, 264-68 (1977); *Washington
	v. Davis*, 426 U.S. 229, 239-42 (1976). 12 In deciding
    whether a given approach is workable, a school district can consider both
    its current and projected racial demographics.  For example, a district can
    consider how the rapidly changing population of a neighborhood will affect
    racial diversity in that neighborhood’s schools.13*See
    Grutter*, 539 U.S. at 340. 14 The fact
    that the school district did not follow the steps set forth above will not,
    by itself, cause the Departments to conclude in the course of their enforcement
    activities that there has been a violation of Title IV or Title VI.   However,
    the district must consider whether non-individualized uses of race are workable
    before relying on the race of individual students.   15 A school
    district's use of individual racial classifications may differ based on the
    type of school or program at issue (*e.g*., a high school with competitive,
    merit-based admission as compared to a non-competitive elementary school). 
    Where a program is noncompetitive, the types of individualized criteria described
    by the Supreme Court in the postsecondary cases (*Bakke, Grutter*and*Gratz*)
    are generally inapplicable. 16 A school
	district may permissibly aim to achieve a “critical mass” of underrepresented
	students.  A critical mass is the level of enrollment of underrepresented students
	that is necessary to realize the educational benefits that a school district
	is seeking, including “encourag[ing] underrepresented minority students to participate
	in the classroom and not feel isolated,” *Grutter*, 539 U.S. at 318,
	or dispelling stereotypes about characteristically minority viewpoints on issues. 
	A school district that attempts to obtain a critical mass of underrepresented
	students to achieve its compelling interests is not engaging in impermissible
	racial balancing*.  Id.* at 329-30.   Moreover, while a district should
	focus on the qualitative benefits of diversity or avoiding racial isolation,
	it is permissible to pay some attention to numbers.  As the Court recognized
	in*Grutter*, “‘[s]ome attention to numbers,’ without more, does not
	transform a flexible admissions system into a rigid quota.”  *Id*. at
	336 (quoting *Bakke*, 438 U.S. at 323 (opinion of Powell, J.)). 17 In addition
    to enrolling a diverse student body or reducing racial isolation, school
    districts will want to preserve those gains.  Therefore, districts may employ
    mentoring, tutoring, retention, and support programs to maintain diversity
    or reduce racial isolation.  The legal considerations regarding such programs
    are addressed in the Departments’ “Guidance on the Voluntary Use of Race
    to Achieve Diversity in Postsecondary Education.” These same considerations
    apply to the use of such programs by school districts.

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