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SELECTION OF SCHOOLS AND STUDENTS:
DIVERSITY, EQUITY, AND EXCELLENCE
Office for Civil Rights, U.S. Department of Education
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Pursuing Diversity in Schools
The Rationale
IMPORTANCE OF SEEKING DIVERSITY AND
AVOIDING RACIAL ISOLATION
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Integration improves student achievement. For example:
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In an August 2009 study, Mickelson and Bottia presented a
“comprehensive synthesis of the educational, behavioral, and social
science literatures” on the “social science record about school
composition effects on mathematics outcomes in K-12 schools.” After
selecting 58 studies that met certain inclusion criteria, they found that
“[t]ogether, the 58 research studies provide strong evidence that
school racial diversity has positive effects on mathematics
outcomes. The preponderance of the studies employs diverse
samples, uses valid and reliable data, and conducts sophisticated
analyses that replicate results of other studies…”
“Roslyn Arlin Mickelson & Martha Bottia, “Integrated Education and Mathematics Outcomes: A Synthesis of Social Science
Research,” UNC Charlotte, August 3, 2009, p. 9.
IMPORTANCE OF SEEKING DIVERSITY AND
AVOIDING RACIAL ISOLATION
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“[F]ound that the black-white gap in reading achievement is significantly
smaller in schools with between 25% and 54% black, Hispanic, and NativeAmerican students; that is, racially diverse schools have smaller gaps than
high schools with either very small or very large proportions of
disadvantaged minority students.”
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Shelly Brown-Jeffy, “The Race Gap in High School Reading Achievement: Why School Racial Composition Still Matters,” 13
Race, Gender & Class 268, 290 (2006), from Roslyn Arlin Mickelson, “Twenty-First Century Social Science on School Racial
Diversity and Educational Outcomes,” Ohio State Law Journal, Vol. 69:1173, p. 1203.
In a study published in 2006, Douglas Harris conducted perhaps the largest
study ever on racial composition’s impact upon student achievement,
measuring test score data to examining the effects of segregation in more
than 22,000 schools with more than 18 million students in 45 states. He found
that there was a “general pattern” that both “African Americans and
Hispanic students continue to learn more in schools with fewer minorities.”
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Douglas N. Harris, Ctr. For Am. Progress, “Lost Learning, Forgotten Promises: A National Analysis Of School Racial
Segregation, Student Achievement, and ‘Controlled Choice’ Plans,” Center for American Progress, 2006, p. 18, available at
http://www.americanprogress.org/issues/2006/11/pdf/lostlearning.pdf.
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Pursuing Diversity in Schools
The Legal Landscape
VOLUNTARY USE OF RACE GUIDANCE
DEPARTMENTS OF EDUCATION AND JUSTICE
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Issued in December 2011 to provide guidance to higher
education institutions, school districts, and K-12 schools
seeking to achieve a diverse student body.
Guidance on the Voluntary Use of Race to Achieve Diversity
in Postsecondary Education:
http://www.ed.gov/ocr/docs/guidance-pse-201111.html
Guidance on the Voluntary Use of Race to Achieve Diversity
and Avoid Racial Isolation in Elementary and Secondary
Schools:
http://www.ed.gov/ocr/docs/guidance-ese-201111.html
VOLUNTARY USE OF RACE GUIDANCE
SUPREME COURT CASES
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The Guidance relies primarily on three U.S. Supreme Court
cases:
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Grutter v. Bollinger, 539 U.S. 306 (2003)
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Gratz v. Bollinger, 539 U.S. 244 (2003)
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Parents Involved in Community Schools v. Seattle School Dist.
No. 1, 551 U.S. 701 (2007)
VOLUNTARY USE OF RACE GUIDANCE
THE SUPREME COURT
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The Court’s postsecondary decisions
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Grutter v. Bollinger 539 U.S. 306 (2003)—Court found use of
race permissible where University of Michigan’s Law School
considered race of individual students as one factor – among
many other factors–when making admissions decisions
Gratz v. Bollinger 539 U.S. 244 (2003)—Court found use of
race impermissible where the University of Michigan’s
undergraduate school used a point system in its admissions
process that automatically gave 20 points to applicants from
underrepresented racial groups (a minimum of 100 points was
needed for admission)
VOLUNTARY USE OF RACE GUIDANCE
THE SUPREME COURT
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The Court’s postsecondary decisions:
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Grutter: Postsecondary institutions have a compelling interest in the educational
benefits that flow from a diverse student body.
The Grutter Court held that the Law School could seek a “critical mass” of
students from underrepresented racial groups.
¤  “Critical mass” can include having flexible, numerical goals but cannot include
quotas.
The Grutter Court explained that in order for the consideration of the race of
individual students to be permissible, there must be a compelling interest and the
use of race must be “narrowly tailored.”
Narrow tailoring meant the Law School had to do four things:
1. 
Consider non-racial alternatives
2. 
Judge each student on his or her own merits
3. 
Minimize undue burdens on students not receiving a “plus” for race
4. 
Conduct periodic reviews to reassess whether use of race is still necessary
VOLUNTARY USE OF RACE GUIDANCE
THE SUPREME COURT
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The Court’s K-12 decision
§  In Parents Involved, the Supreme Court resolved two separate
cases involving the public school systems in Seattle, Washington
and in Louisville, Kentucky.
§  The issue in Parents Involved was whether school districts may
voluntarily “choose to classify students by race and rely upon
that classification in making student assignments.”
VOLUNTARY USE OF RACE GUIDANCE
THE SUPREME COURT
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The Court’s K-12 decision
§  Parents Involved decision was sharply divided, and the 5-4
majority opinion held that neither plan was permissible because
the plans were not “narrowly tailored.”
–  Districts failed to show they had considered race-neutral
alternatives.
–  Districts had allowed race to be broadly decisive instead of
race being one of many factors taken into consideration.
§  The Court did not rule on whether elementary and secondary
schools have a compelling interest in student body diversity.
§  However, the opinions of five justices – Justice Kennedy in his
concurring opinion and the four dissenters – support the
Guidance’s position that avoiding racial isolation and seeking
diversity are compelling interests for school districts.
VOLUNTARY USE OF RACE GUIDANCE
THE SUPREME COURT
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Justice Kennedy’s concurring opinion
§  Explained that the Court’s decision (parts of which Kennedy
joined) 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.”
§  Kennedy stated, “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.”
VOLUNTARY USE OF RACE GUIDANCE
COMPELLING INTERESTS
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The Guidance, relying on Parents Involved, recognizes compelling
interests in:
§  Student body diversity; and
§  Avoiding racial isolation.
VOLUNTARY USE OF RACE GUIDANCE
COMPELLING INTERESTS (CONTINUED):
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Benefits of student body diversity
–  Promotes cross-racial understanding
–  Promotes cooperation among the races
–  Has the potential to eliminate prejudice and bias, and to break down
racial stereotypes
–  Promotes learning outcomes
Benefits of avoiding racial isolation
–  Brings together students of different racial, ethnic, and economic
backgrounds
–  Promotes cross-racial understanding
–  Improved student achievement, particularly for students of color
–  Helps ensure that all students have equal opportunity
The Guidance relies on the same concept of “critical mass” that was
discussed in the postsecondary context.
VOLUNTARY USE OF RACE GUIDANCE
NARROW TAILORING
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Narrow tailoring (triggered when individuals are classified by
their race) at the elementary and secondary school level involves
the same principles that the Court outlined in Grutter, namely:
1. 
Consider non-racial alternatives.
2. 
Judge each student on his or her own merits, if the
decision relies in part on an evaluation of merit.
3. 
Minimize undue burdens on students not receiving a “plus”
for race.
4. 
Conduct periodic reviews to reassess whether use of race
is still necessary.
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Pursuing Diversity in Schools
Examples of what a school district may do
VOLUNTARY USE OF RACE GUIDANCE
DEPARTMENTS OF EDUCATION AND JUSTICE
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School Zoning
Districts may
§  Re-draw student attendance zones based on a range of nonracial factors, for example
¤  Socioeconomic status of neighborhoods
¤  Types of housing, such as single-family homes or
subsidized housing
¤  Number of English learners
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Consider the racial composition of neighborhoods when
drawing attendance zone lines
VOLUNTARY USE OF RACE GUIDANCE
DEPARTMENTS OF EDUCATION AND JUSTICE
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Grade Alignment/Feeder Patterns
Districts may
§  Consolidate schools or realign grades to create a school that is
more socioeconomically diverse.
¤  For example, two K-5 elementary schools (one high SES,
the other low SES) could be realigned to create one K-2
school and one 3-5 school
§  Modify feeder patterns to assign students based on the racial
composition of their neighborhood (e.g., assign students from a
predominantly minority elementary school and a predominantly
white elementary school to the same middle school)
VOLUNTARY USE OF RACE GUIDANCE
DEPARTMENTS OF EDUCATION AND JUSTICE
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Siting Decisions
Districts may
§  Consider the socioeconomic status or the racial composition of
neighborhoods in deciding where to build a school, place an
educational program, or enhance facilities (e.g., new athletic
field)
VOLUNTARY USE OF RACE GUIDANCE
DEPARTMENTS OF EDUCATION AND JUSTICE
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Student Assignment
Districts may
§  Assign individual students to schools based on non-racial factors:
–  Student’s socioeconomic status
–  Parental education level
–  Prior academic performance of the student
–  Overall academic performance of the student’s current school
–  Special talents (for competitive programs – for example,
music ability in a fine arts program)
§  Give greater weight to students who live in predominantly one-race
neighborhoods
§  Develop or modify choice programs (e.g., magnets, charters, themed
schools, and non-neighborhood schools) that consider the overall
racial or socioeconomic characteristics of neighborhoods when
deciding who will be admitted
VOLUNTARY USE OF RACE GUIDANCE
DEPARTMENTS OF EDUCATION AND JUSTICE
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Student Assignment (continued)
Districts may
§  Consider the race of individual students as one factor among others
when assigning students
¤  Must meet “narrow tailoring” test
§  Develop a lottery for student enrollment that allocates points based
on a range of factors, including
¤  Student or feeder school socioeconomic status
¤  Racial composition of particular neighborhoods
¤  An individual’s race may be given weight if necessary to
achieve the district’s compelling interests, as long as race is not
given so much weight that an applicant is largely defined by his
or her race
§  Target recruitment and outreach efforts at specific underrepresented
populations to increase their enrollment within the school or
competitive program
VOLUNTARY USE OF RACE GUIDANCE
DEPARTMENTS OF EDUCATION AND JUSTICE
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Inter- and Intra-District Transfer Decisions
Districts may
§  Permit students to transfer from schools based on the overall
racial or socioeconomic composition of a student’s
neighborhood
§  Consider the race of individual students – as one factor among
others – in the approval or denial of student transfer requests
¤  Must meet “narrow tailoring” test
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Pursuing Diversity in Schools
Magnet Schools as a Tool
MAGNET SCHOOLS AS A TOOL
SUPPORTING VOLUNTARY DESEGREGATION AND INTEGRATION
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Magnet schools have a long history of being a tool for
desegregation
¤  Part of many court-ordered desegregation plans
¤  Infuse parental choice into a strategy designed to bring
together a diverse student body
2013 MSAP competition placed renewed emphasis on the
desegregative purpose of the grant by nearly doubling the weight of
the selection criteria that speak to this critical purpose of the
program
Many of the specific examples of how school districts may lawfully
pursue the voluntary use of race would be well-suited to magnet
schools (e.g., lotteries, targeted recruitment, and school/program
siting decisions).
MAGNET SCHOOLS AS A TOOL
SUPPORTING VOLUNTARY DESEGREGATION AND INTEGRATION
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Socioeconomic Diversity (Using Free and Reduced Price Lunch Data)
§  USDA runs the National School Lunch Program
§  Aggregate data (e.g., this neighborhood is 40-50% FRPL-eligible)
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USDA has said this use of data for student assignment purposes is okay
Must make sure individual eligibility is not identifiable (no 0% and 100%)
Can be very useful in drawing attendance zones or in identifying zip
codes or other geographic areas for targeting recruitment and/or lottery
preference
MSAP exception for individual eligibility data use
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Current applicants and grantees are participating in a federal education
program, and so may choose to use an individual’s FRPL status in student
selection
MAGNET SCHOOLS AS A TOOL
SUPPORTING VOLUNTARY DESEGREGATION AND INTEGRATION
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EXAMPLE Student selection process (simple):
§  District has a pure choice magnet school centrally located in the
downtown area of a small city surrounded by a rural area
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Nearby neighborhoods are overwhelmingly Black but mixed income
District is about 50% Black overall, so would like the school to be similar
demographically
Targeted recruiting efforts: school information fairs in outlying
neighborhoods that have more Latino, Asian, and white families
Lottery priorities:
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Siblings of current students get absolute priority
Children of parents who work with the school’s business partners nearby
get absolute priority
Residents of two zip codes that are low-income (one is majority Latino and
the other is majority white) are entered into the lottery twice
MAGNET SCHOOLS AS A TOOL
SUPPORTING VOLUNTARY DESEGREGATION AND INTEGRATION
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EXAMPLE Student selection process (complex):
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District is divided into zones based on census tracts (2 tracts per zone)
Each zone is categorized (high, middle, low) according to the percentage
of its students who are
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(1) lower socioeconomic status
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measured by parent education level: up to high school diploma, some
college, college or graduate degree
(2) members of a racial or ethnic minority group
(3) English language learners (ELL) or
(4) students with disabilities (SWD)
Those classifications are weighted to give an overall ranking
The magnet lottery uses a random lottery, grouping applicants by zone, to
accept about 33% students overall from each type of zone
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Each school also has small neighborhood zone with absolute preference
so the lottery gives slight preference for applicants from dissimilar zones
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Other Civil Rights Issues
Recent guidance from OCR
Office for Civil Rights Guidance
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http://www2.ed.gov/about/offices/list/ocr/publications.html
Title IX Coordinators (April 2015)
¤  English Learner Guidance Package (January 2015)
¤  Questions and Answers on Single-Sex Education (December 2014)
¤  Effective Communication with Persons with Disabilities (November 2014)
¤  Equal Access to Educational Resources (October 2014)
¤  Peer Harassment and Bullying (including Sexual Violence, Bullying and FAPE)
¤  School Enrollment Procedures
¤  Charter Schools Guidance
¤  School Discipline Guidance Package
¤  Supporting Pregnant and Parenting Students Pamphlet
¤  Prohibition on retaliation
¤  Extracurricular activities, including athletics, for students with disabilities
¤  Voluntary Use of Race to Achieve Diversity and Reduce Racial Isolation
¤  Electronic Books Readers and Emerging Technologies and Students with Disabilities
¤  Frequently Asked Questions About Section 504 and the Education of Children with Disabilities
¤  Student Placement in Elementary and Secondary Schools and Section 504 and Title II
The Civil Rights Data Collection is available at http://ocrdata.ed.gov/ and is a wealth of information that
can help districts identify disparities that may suggest civil rights concerns.
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Questions? Comments?
We welcome hearing about your district’s
experiences
TECHNICAL ASSISTANCE
WHO DO I ASK FOR HELP?
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If you or your district would like additional information or
have technical assistance questions about OCR’s guidance on
the voluntary use of race, please contact the regional
enforcement office that serves your state. Office contacts can
be found at
http://wdcrobcolp01.ed.gov/CFAPPS/OCR/contactus.cfm
For technical assistance with magnet schools, particularly
regarding MSAP and OCR’s role, you may contact OCR’s
staff MSAP coordinator, Mary Hanna-Weir at
[email protected] or 202-453-5940.
THANK YOU
U.S. DEPARTMENT
OF EDUCATION