Dear College and University Counsel:

I am writing to reaffirm the Department of Education's position that, under the Constitution and Title VI of the Civil Rights Act of 1964, it is permissible in appropriate circumstances for colleges and universities to consider race in making admissions decisions and granting financial aid. They may do so to promote diversity of their student body, consistent with Justice Powell's landmark opinion in Regents of the University of California v. Bakke, 438 U.S. 265, 311-315 (1978). See also Wygant v. Jackson Bd. of Education, 476 U.S. 267, 286 (1986) (O'Connor, J., concurring). They also may do so to remedy the continuing effects of discrimination by the institution itself or within the state or local educational system as a whole.¹

The Department's position is reflected in its published regulations and its guidances on the application of Bakke, race-targeted financial assistance, and desegregation of institutions of higher education.² That position has not changed as a result of the Fifth Circuit's decision earlier this year in the Hopwood case or the Supreme Court's recent determination not to grant certiorari to review the Fifth Circuit's decision. Hopwood v. Texas, 78 F.3d 932 (5th Cir. 1996), cert. denied, Texas v. Hopwood, No. 95-1773 (July 1, 1996).

In denying certiorari, the Supreme Court neither affirmed nor reversed the Fifth Circuit panel's decision in Hopwood, which took the position that the University of Texas Law School could not take race into account in admissions either to promote diversity or to remedy the effects or the State's formerly segregated system of public education, but could only seek to remedy the Law School's own discrimination. The denial of certiorari does not mean that the Supreme Court departed from Justice Powell's opinion in Bakke that a college or university has a compelling interest in taking race into account in a properly devised admissions program to achieve a diverse student body. Nor does it mean that the Supreme Court accepts the Fifth Circuit's narrow view of the permissible remedial predicate justifying the consideration of race by institutions of higher education.

Consequently, the Department continues to believe that, outside of the Fifth Circuit, it is permissible for an educational institution to consider race in a narrowly tailored manner in either its admissions program or its financial aid program in order to achieve a diverse student body or to remedy the effects of past discrimination in education systems. Within the Fifth Circuit, the law is unclear after the panel's decision in Hopwood .³ Given this uncertainty, the Department will await further proceedings in the case, which is now on remand from the panel decision, or subsequent rulings in other cases before determining whether further guidance is necessary.

The Department's Office of Civil Rights will continue to provide technical assistance to institutions in their efforts to develop programs that comply with Title VI of the Civil Rights Act of 1964.

Sincerely,

Judith A. Winston



¹ City of Richmond v. J.A. Croson Co., 488 U.S. 469, 491-92 (1989); United States v. Fordice, 505 U.S. 717, 732 n.7 (1992).

² 34 CFR Part 100; Race-targeted Financial Aid Notice, 59 Federal Register 8756 (Feb. 23, 1994); Fordice Notice, 59 Federal Register 4271 (Jan. 31, 1994); Bakke Notice, 44 Federal Register 58509 (Oct. 10, 1979); Sept. 7, l995 letter from Judith Winston, General Counsel, United States Department of Education, to College and University Counsel regarding the Supreme Court's denial of certiorari in Podberesky v. Kirwin, 38 F.3d 147 (4th Cir. 1994) and its decision in Adarand Constructors v. Pena, 115 S. Ct 2097 (1995); Revised Criteria Specifying the Ingredients of Acceptable Plans to De

³ See Texas v. Hopwood, No. 95-1773 (July 1, 1996) (opinion of Ginsburg, J. joined by Souter, J.); Whittmer v. Howard A. Peters III, 1996 WL 363399, 2-3 (7th Cir. 1996); Hopwood v. State of Texas, 84 F.3d 720, 722-24 (5th Cir. 1996) (Politz, King, Wiener, Benavides, Stewart, Parker and Dennis, JJ., dissenting), 724-25 (Stewart, J., dissenting).