');
	document.write('

|**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, postsecondary institutions can
  voluntarily consider race to further the compelling interest of achieving diversity. 
  This guidance replaces the August 28, 2008 letter issued by ED’s Office for
Civil Rights (OCR) entitled “The Use of Race in Postsecondary Student Admissions.”

Ensuring that our nation’s students are provided with learning environments
  comprised of students of diverse backgrounds is not just a lofty ideal.  As
  the Supreme Court has recognized, the benefits of participating in diverse
  learning environments flow to an individual, his or her classmates, and the
  community as a whole.  These benefits greatly contribute to the educational,
  economic, and civic life of this nation.

Learning environments comprised of students from diverse backgrounds provide
  an enhanced educational experience for individual students.1 
  Interacting with students who have different perspectives and life experiences
  can raise the level of academic and social discourse both inside and outside
  the classroom; indeed, such interaction is an education in itself.  By choosing
  to create this kind of rich academic environment, educational institutions
  help students sharpen their critical thinking and analytical skills.

These skills not only enhance academic progress, but also prepare students
  to succeed in the professional world.  The skills students need for success
  in “today’s increasingly global marketplace can only be developed through exposure
  to widely diverse people, cultures, ideas, and viewpoints.”2 
  Moreover, postsecondary institutions play a unique role in opening doors for
  “all segments of American society, including people of all races and ethnicities.”3 
  As a result, “attaining a diverse student body is at the heart of [a university’s]
  proper institutional mission.”4

For all these reasons, the Departments recognize the compelling interest that
  postsecondary institutions have in obtaining the benefits that flow from achieving
  a diverse student body.5 
  This guidance addresses the degree of flexibility that postsecondary institutions
  have to take proactive steps, in a manner consistent with principles articulated
  in Supreme Court opinions, to meet this compelling interest.  As the Supreme
  Court has made clear, such steps can include taking account of the race of
  individual students in a narrowly tailored manner, as described below.

Section I of this guidance describes the relevant legal framework for considering
  race to further the compelling interest in achieving diversity in postsecondary
  institutions.  Section II sets forth considerations for postsecondary institutions
  in their voluntary use of race to achieve diversity.  Section III summarizes
  key steps for institutions seeking to achieve diversity. Section IV provides
  examples of ways that, in light of this guidance, postsecondary institutions
  may choose to advance this compelling interest.

**I. LEGAL FRAMEWORK**

Under the Civil Rights Act of 1964, the Departments are responsible for enforcing
  federal laws that bar public colleges and universities, as well as private
  colleges and universities 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).6 
  Racial discrimination by institutions that violates the Equal Protection Clause
  of the Fourteenth Amendment to the Constitution also violates Titles IV and
  VI.7  Accordingly,
  the Departments here consider not only federal statutory law, but also case
  law interpreting the Equal Protection Clause, particularly the Supreme Court’s
  decisions in *Grutter v. Bollinger*8 and *Gratz
  v. Bollinger.*9

**A. *Grutter v. Bollinger*******

In *Grutter*, the Court evaluated the University of
  Michigan Law School’s admissions program under the strict scrutiny standard
  of review, requiring that the Law School demonstrate that its program was narrowly
  tailored to serve a compelling government interest. The Court has repeatedly
  emphasized 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)).  Applying that standard, the Court held that postsecondary
  institutions have a compelling interest in the benefits that flow from a diverse
  student body.  In reaching this result, the Court followed its tradition, grounded
  in the First Amendment, of “giving a degree of deference to a university’s
  academic decisions, within constitutionally prescribed limits.”  *Grutter,*539
  U.S. at 328.  As described further below, the Court also held that the Law
  School’s program was narrowly tailored to meet its compelling interest.

**1. The Law School Had a Compelling Interest in Achieving Diversity.**

The Court recognized that the benefits of student body diversity in institutions
  of higher education are “substantial,” as well as “important and laudable.”  *Id*.
  at 330.  One aspect of such student body diversity, the Court recognized, can
  be racial diversity.  The Court accepted the Law School’s goal to achieve broad
  diversity where race was “‘only one element in a range of factors a university
  properly . . . consider[ed] in attaining the goal of a heterogeneous student
  body.’”  *Id*. at 324 (quoting *Bakke*, 438 U.S. at 314 (opinion
  of Powell, J.)).

The Court also held that the Law School could permissibly seek a “critical
  mass” of students of underrepresented groups — a concept “defined by reference
  to the educational benefits that diversity is designed to produce” — as part
  of its efforts to achieve student body diversity.  *Id*. at 330.  The
  Court recognized that a critical mass is necessary to dispel stereotypes about
  minorities, including assumptions that minorities share the same characteristic
  viewpoints, as well as to ensure that there are enough members of underrepresented
  minority groups for those students to participate in the classroom without
  feeling isolated or feeling like spokespersons for their race.  *Id.*at
  318-19.10

**2. The Law School’s Admissions Program Was Narrowly Tailored.**

The Court looked to several criteria in concluding that the Law School’s admissions
  program was narrowly tailored: whether the Law School had considered workable
  race-neutral alternatives; whether the admissions program provided for flexible
  and individualized review of applicants; whether it unduly burdened students
  of any racial group; and whether the consideration of race was limited in time
  and subject to periodic review.  *See id*. at 334-43.

**Consideration of Workable Race-Neutral Alternatives**

The Court held that before using race as a factor in individualized admissions
  decisions, a postsecondary institution must conduct a serious, good faith review
  of workable race-neutral alternatives to achieve the diversity that it seeks.  *Id.* at
  339.  An institution may deem unworkable a race-neutral alternative that would
  be ineffective or would require it to sacrifice another component of its educational
  mission.  *Id.*at 339-40.  Applying this standard, the Court found
  that the Law School “adequately considered race-neutral alternatives currently
  capable of producing a critical mass without forcing the Law School to abandon
  the academic selectivity that is the cornerstone of its educational mission.”  *Id.* at
340.

**Flexible and Individualized Review**

The Court concluded that the Law School’s admissions program provided for
  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.” *Id*. at 337. Under the Law School’s program,
  race was not an applicant’s “defining feature” across the board, *id.* at
  337; race played no role in some admissions decisions while in others it was
  the “determinative” factor.  *Id*. at 319.

**Effect on Other Students**

The Law School did not unduly burden members of any racial group because it
  allowed each applicant to compete with every other applicant for every available
  opening, and made decisions based on individualized consideration of “‘all
  pertinent elements of diversity.’”  *Id.*at 341 (citing *Bakke*,
  438 U.S. at 319 (opinion of Powell, J.)).  The Court noted that the Law School’s
  program also resulted in the admission of certain “nonminority applicants who
  have greater potential to enhance student body diversity over underrepresented
  minority applicants.”  *Id*. (quoting *Bakke*, 438 U.S. at 317
(opinion of Powell, J.)).

**Limited in Time and Subject to Periodic Review**

The Court held that admissions programs must be limited in time and subject
  to periodic review “to determine whether racial preferences are still necessary
  to achieve student body diversity.”  *Id*. at 342.  The Court accepted
  the Law School’s assurances that it would “terminate its race-conscious admissions
  program as soon as practicable.”  *Id*. at 343.

**B. *Gratz v. Bollinger***

In *Gratz*, the Court — for the reasons set forth in *Grutter* —
accepted that the University of Michigan had a compelling interest in achieving
diversity, including racial diversity, in its undergraduate student body.  The
Court struck down the University’s undergraduate admissions program, however,
because the University used a point system that automatically awarded 20 points,
one-fifth of the points required to guarantee admission, to every “underrepresented
minority” applicant solely because of race.  *Id.*at
270*.*The Court explained that this policy was not sufficiently flexible
and had “the effect of making ‘the factor of race ... decisive’ for virtually every
minimally qualified underrepresented minority applicant.”  *Id*. at 272
(quoting *Bakke*, 438 U.S. at 317 (opinion of Powell, J.)).  The Court
also faulted the University for failing to provide an individualized review of
applicants, and dismissed the argument that the sheer volume of applications
for admission made individualized review impossible.

**II. APPLICATION TO POSTSECONDARY EDUCATION**

This Section sets out considerations for postsecondary institutions in their
  voluntary use of race to achieve diversity.  The discussion in this and the
  following sections assumes that postsecondary institutions are acting to achieve
  diversity; institutions should be prepared to explain how this objective fits
  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

The institution should, based on its particular educational objectives and
  unique needs, determine how it will achieve the desired benefits it is pursuing.
   An institution may permissibly aim to achieve a critical mass of underrepresented
students, as described in Section I(A)(1) above.

In implementing its program, an institution should consider whether it can
  meet its compelling interest in diversity by using race-neutral approaches. 
  An institution using a race-neutral approach for the purpose of achieving diversity
  may consider the impact a given approach might have on students of different
  races,12 andthus
  may take into account how employing the approach would help achieve diversity.
  Race-neutral mechanisms can be used for decisions made about individual students,
  such as admissions decisions, as well as for decisions made on an aggregate
  basis, such as selecting partner schools that would serve as pipelines to the
  institution.13

Institutions are not required to implement race-neutral approaches if, in
  their judgment, the approaches would be unworkable.    In some cases, race-neutral
  approaches will be unworkable because they will be ineffective to achieve the
  diversity the institution seeks.  Institutions may also reject approaches that
  would require them to sacrifice a component of their educational mission or
  priorities (*e.g.*, academic selectivity).14

When an institution is taking an individual student’s race into account in
  an admissions or selection process, it should conduct an individualized, holistic
  review of all applicants.  That is, the institution should evaluate each applicant’s
  qualifications in a way that does not insulate any student, based on his or
  her race, from comparison to all other applicants.  An institution may assign
  different weights to different diversity factors based on their importance
  to the program.  Race can be outcome determinative for some participants in
  some circumstances.  But race cannot be given so much weight that applicants
  are defined primarily by their race and are largely accepted or rejected on
  that basis.

Conducting an individualized review will help to ensure that the institution
considers the impact of its decision-making on all its applicants.  Finally,
the institution should periodically review its programs to determine whether
the use of racial classifications remains necessary and should modify its practices
as needed.

**III. KEY STEPS FOR IMPLEMENTING PROGRAMS TO ACHIEVE DIVERSITY**

Based on the foregoing, here is a checklist of key steps for colleges and
  universities seeking to achieve diversity:

*Identifying the Reason for Your Plan*

- Determine how this compelling interest relates to your institution’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 race-neutral approaches would be unworkable to achieve your compelling
      interest, you may then consider approaches that take into account the race
      of individual students.  When taking into account an individual student’s race
      among other factors to achieve diversity, 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.
- 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.  These documents will help you
      answer questions that may arise about the basis for your decisions.

**IV. APPROACHES TO ACHIEVING DIVERSITY**

This Section provides practical examples of actions that postsecondary institutions
  may consider, consistent with prior Supreme Court opinions and the principles
  set forth in the previous Sections, as necessary to achieve diversity.  In
  choosing among options, postsecondary institutions should keep in mind the
  framework discussed above.  We encourage institutions to contact us for technical
  assistance in applying this guidance to their particular situations.

These examples are intended to be illustrative, not exhaustive.  Institutions
  may choose to pursue more than one of these options (*e.g.*, a combination
  of recruiting and pipeline programs as well as admissions procedures) or may
  design other options that are consistent with this guidance.

**A.  Admissions**

Postsecondary institutions may develop admissions procedures designed to achieve
  diversity.

**Examples**

**Example 1**:  An institution could consider an applicant’s
  socioeconomic status, first-generation college status, geographic residency,
  or other race-neutral criteria if doing so would assist in drawing students
  from different racial backgrounds to the institution.

**Example 2**:  An institution could include in its admissions
  procedures special consideration for students who have endured or overcome
  hardships such as marked residential instability (*e.g.*, the student
  moved from residence to residence or school to school while growing up) or
  enrollment in a low-performing school or district.

**Example 3**:  An institution could implement a plan that guarantees
  admission to a top percentile of students graduating from all in-state high
  schools.

**Example 4**:  An institution could select schools (including community
colleges) based on their demographics (*e.g.*, their racial or socioeconomic
composition), and grant an admission preference to all students who have graduated
from those schools, regardless of the race of the individual student.

**Example 5**:  An institution could consider an individual student’s
  race among other factors in its admissions procedures; in so doing, an institution
  should follow the legal guidelines concerning the individualized use of race
  that are set forth above.

**B. Pipeline Programs**

Institutions of higher education may develop pipeline programs to promote
  diversity at the undergraduate or graduate levels.  Pipeline programs include
  partnerships between postsecondary institutions and school districts (or specific
  schools), as well as other programs to introduce potential applicants to the
  institution.  For example, a postsecondary institution might invite students
  from the partner school or program to the institution’s campus for informational
  visits, mentoring or tutoring, summer classes, and workshops on academic, career,
  and other interests.  The postsecondary institution might also send its own
  volunteers or staff to the partner school or program.  The institution typically
  selects its partner (*e.g.,* a school, district, or community college)
  and in some programs, the institution may select individual students to participate
  in its program.

Pipeline programs can foster student body diversity at a postsecondary institution
  by increasing potential applicants’ awareness of the institution and by assisting
  a diverse group of potential applicants to be better prepared to qualify for
  admission.  In addition, pipeline programs are often used as a means to connect
  an institution to the local community.

**Examples**

**Example 1**:  An institution could select high schools for
  partnership based on one or more of the following:  school-wide performance
  on standardized tests, school-wide socioeconomic characteristics, geographic
  proximity to the institution, racial composition of the school’s student body,
  or the similarity of academic or programmatic themes between the institution
  and the school with which it is partnering.  In selecting schools using such
  criteria, a college or university may take into account the impact of those
  criteria on the diversity of its programs.

**Example 2**:  An institution could form partnerships with other
  institutions of higher education, such as Historically Black Colleges and Universities
  (HBCUs), other minority-serving institutions, or community colleges to help
  the institution increase diversity.

**Example 3**:  An institution that selects individual students
  for participation in programs could consider race among a range of factors,
  such as socioeconomic status, parental education level, work experience, or
  personal essays, to help the institution to achieve its interest in diversity.
   When taking account of an individual student’s race as a factor, an institution
  should follow the legal guidelines concerning the individualized use of race
  that are set forth above.

**C. Recruitment and Outreach**

Postsecondary institutions may develop recruitment and outreach initiatives
  in an attempt to further diversity by broadening their applicant pools and
  thereby increasing the number of applicants from underrepresented groups. 
  While recruitment and outreach efforts do not guarantee or increase the likelihood
  of admission for any applicant, efforts that are more inclusive can assist
  postsecondary institutions to increase the diversity of their applicant pools.

**Examples**

**Example 1:**  An institution’s recruitment and outreach procedures could target
  school districts or high schools that are underrepresented in the institution’s
  applicant pool by focusing on geographic underrepresentation (*e.g.*,
  schools in the Midwest, or urban or rural communities) or other characteristics
  (*e.g.*, low-performing schools or schools with high dropout rates). 
  Such targeting may also assist the institution in achieving racial diversity.

**Example 2:**  An institution could target districts or schools
  that enroll students who are predominantly from low-income households to help
  the institution achieve its interest in racial diversity.

**Example 3:**  As part of its overall recruitment efforts, a postsecondary institution
  could target geographic areas, specific districts or schools, or colleges (*e.g.*,
  community colleges, or, at the graduate level, HBCUs or other minority-serving
  institutions), that have a significant number of potential applicants who are
  of races underrepresented in the institution’s applicant pool.

**Example 4:**  An institution could consider other recruitment and outreach
  tools to increase diversity in its applicant pool, such as, as part of its
  overall recruitment efforts, direct mail and other outreach efforts to potential
  applicants — including the use of advertising in media aimed at specific racial
  groups, participation by admissions staff in community-sponsored events aimed
  at informing underrepresented groups about the institution, and encouraging
  individual students to apply.

**D. Mentoring, Tutoring, Retention, and Support Programs**

Many institutions operate mentoring, tutoring, retention, and support programs
  for enrolled students who may need additional assistance in academic or other
  areas to succeed at the institution.  The Departments recognize that a postsecondary
  institution seeking the educational benefits of diversity not only must enroll
  a diverse group of students, but also must retain those students.

**Examples**

**Example 1**:  An institution could provide mentoring, tutoring,
  or other academic support to all enrolled students who are at risk of not completing
  their programs.

**Example 2:**  A college could sponsor a selective mentoring
  program in which there are a limited number of spaces for student participants.
  In selecting participants for the program, the college could consider race
  among a range of attributes, such as grade point averages, community service
  and faculty recommendations.  When taking account of an individual student’s
  race as a factor, an institution should follow the legal guidelines concerning
  the individualized use of race that are set forth above.

**Example 3**:  An institution could sponsor retention or support
  programs open to all students that offer content that the institution believes
  might be of particular interest to a group targeted for retention.  Such programs
  could, for example, hold motivational lectures (*e.g.*, highlighting
  the accomplishments of Latino business leaders or the artistic achievements
  of Pacific Islanders), and could include small group follow-up workshops with
  mentors.

**Conclusion**

This document provides guidance and examples of approaches that postsecondary
  institutions can voluntarily use to further their compelling interests in achieving
  diversity, 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 postsecondary institutions to contact us with questions or for further
assistance in applying the guidance to a specific situation.  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*Grutter
	v. Bollinger*, 539 U.S. 306, 330 (2003). 2*Id*.3*Id*.
    at 331-32.4*Id.* at
    329.5 The Departments
    also recognize the compelling interest in remedying the vestiges of past
    racial discrimination, which is not the focus of this guidance. Some postsecondary
    institutions 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 in Cmty. Sch. v. Seattle Sch. Dist.
    No. 1*, 551 U.S. 701, 720 (2007) (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”).6 Throughout this
	guidance, references to “race” includes race, color, and national origin. 
	When evaluating efforts to promote diversity that fall within the scope of Title
	VI (and Title IV in the case of DOJ), the Departments will apply this guidance.7*See Alexander
    v. Sandoval*, 532 U.S. 275, 280-81 (2001) (citing *Regents of Univ.
    of Cal. v. Bakke*, 438 U.S. 265, 287 (1978) (opinion of Powell, J.)). 8 539 U.S.
    306 (2003).9 539 U.S. 244
    (2003).  This guidance is also informed by *Parents Involved*, which
    discussed the use of race in student assignment in the K-12 context.  Further
    information on the *Parents Involved* decision is contained in the
    Departments’ “Guidance on the Voluntary Use of Race to Achieve Diversity
    and Avoid Racial Isolation in Elementary and Secondary Schools.” 10 The Court
    also recognized that the concept of critical mass could involve “some attention
    to numbers”:  “[t]here is of course ‘some relationship between numbers and
    achieving the benefits to be derived from a diverse student body, and between
    numbers and providing a reasonable environment for those students admitted.’”  *Id.*at
    336 (quoting *Bakke*, 438 U.S. at 323 (opinion of Powell, J.)).
     Indeed, “‘some attention to numbers,’ without more, does not transform a
    flexible admissions system into a rigid quota.”  *Id.*  Such consideration
    of numbers is distinct from setting impermissible quotas, which exist where
    an institution:  (1) imposes a fixed number or percentage that must
    be attained or that cannot be exceeded; and (2) insulates particular
    categories of individuals, based on their race, from comparison with all
    other candidates for the available openings within its schools or programs.  *Id*.
    at 335.11*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 entities “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*Parents
    Involved*, 551 U.S. at 789 (Kennedy, J., concurring in part and concurring
    in the judgment).13*See* Section
    IV(B) below (describing pipeline programs).  14*See* *Grutter*,
539 U.S. at 340.

Top