The United States Department of Justice and the United States Department of Education recently issued a jointly-authored Dear Colleague Letter  and accompanying “Questions and Answers” document discussing the Supreme Court’s June 2013 decision in Fisher v. University of Texas at Austin. This joint guidance reaffirmed the Departments’ mutual belief in the value of efforts by colleges and universities to create racially diverse student bodies “in a lawful manner,” and observed that the Supreme Court “did not change” what institutions must do to narrowly tailor their efforts to meet the compelling interest in diversity.  After Fisher, as before, institutions must not make race the defining feature of a candidate’s application for admission, and must demonstrate that the consideration of an individual applicants’ race in admissions is necessary because workable race-neutral alternatives do not suffice.

This characterization is consistent with the Supreme Court’s opinion in Fisher.  However, as we have observed previously, the most significant aspect of Fisher is its emphasis on a reviewing court’s obligation to perform a searching inquiry to determine the necessity of race-conscious measures and, correspondingly, the need for institutions to be able to prove that they have engaged in an ongoing consideration of race-neutral alternatives.  In this regard, one question left unanswered by the Supreme Court was whether an institution must actually attempt to implement race-neutral alternatives before implementing race-conscious policies, or whether an institution need only demonstrate that a race-neutral alternative cannot be expected to work under prticular circumstances.

While the Dear Colleague Letter and Q&A did not address this question or otherwise provide direct guidance on what level of consideration must be given to race-neutral alternatives, a senior Office of Civil Rights official remarked publically the same day that such alternatives “don’t have to be tried and used” before implementing race-conscious practices.  This provides a welcome degree of comfort to colleges and universities that OCR will not require them to put affirmative action policies on hold in order to first experiment with race-neutral measures, but institutions should nevertheless ensure that they can demonstrate the basis for their conclusions that those policies are necessary to create the desired diversity in their respective student bodies.

However, there is some concern that this message may be unrealistically comforting.  Already in some states, either as a result of litigation, laws passed by state legislatures or the impact of public referendums, public institutions are prohibited from considering race at all in the admissions process.  The Supreme Court is poised to rule on the legality of such a ban via referendum in Michigan.  In oral argument in that case, at least some justices expressed skepticism that such a ban was prohibited.  Where the Court may go in the future on the permissibility of race conscious admissions decisions for private institutions is not free from doubt.  As a result, some schools are looking more closely at implementing race-neutral practices where possible.