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Still Separate, Still Unequal Lesson Plan

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Still Separate, Still Unequal Lesson Plan

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This resource provides a lesson plan for educators to participate in to help them to be more conscious of the unfair acts that occur in the education system for our students of color. Without this consciousness, educators are left confused about what students face on a daily basis and are then not capable of helping them through these times. This resource can be used to enhance  cultural competence and rejuvenate care and awareness in educators once again.

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Still Separate, Still Unequal: Teaching about School Segregation and Educational Inequality (Published 2019)

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Although many students learn about the struggles to desegregate schools in the civil rights era, segregation as a current reality is largely absent from the curriculum. This teaching resource uses Times articles and Op-Eds to investigate the issue.

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What is Affirmative Action and how does it help us?

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What is Affirmative Action and how does it help us?

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Affirmative Action: Should Race Be a Factor in College Admissions?

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1. Make college preparatory courses in K-12 more intentional. Make cultural awareness and competence a priority for students, educators, and administrators. This should be a district-wide initiative.

2. K-12 institutions should partner with local colleges and universities in the area to help students have a real-life experience with preparing for college.

3. Find ways for the research, policy, and legal communities assist institutions in preparing for a future that seems to constantly change.

4.  Use the strategies that admissions and enrollment management leaders use to support racial, ethnic, and socioeconomic diversity in this evolving legal and policy environment and note the strategies that appear to be working.

5.  One of the challenges of this work has been taking into consideration all of the variation that institutions of higher education can face as they work to implement diversity-driven initiatives. Find ways to simplify the process by creating a universal inclusion initiative.

6. Embrace the educational benefits of diversity (i.e., how does a diverse—in terms of race, ethnicity, socioeconomic factors, or others—student body positively impact the educational experience of its institution and of society at large).

(Espinosa, Gaertner, & Orfield, 2015)

Espinosa, L.L., Gaertner, M.N., & Orfield, G. (2015). Race, class, and college access.  American Council on Education. Retrieved from https://www.acenet.edu/Documents/Race-Class-and-College-Access-Achieving-Diversity-in-a-Shifting-Legal-Landscape.pdf

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Rickey Townsend, Benjamin Franklin Middle School, Dallas, Texas, Teacher of the Year 2018-2019; Co-Founder of Crowned Scholars

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Rickey Townsend, Benjamin Franklin Middle School, Dallas, Texas, Teacher of the Year 2018-2019; Co-Founder of Crowned Scholars

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I recently spoke with Rickey Townsend, a professional in his field, about his experience with this legal issue. Mr. Townsend is a seventh grade mathematics teacher at Benjamin Franklin Middle School in Dallas, Texas. He is also the co-founder and COO of a non-profit organization called Crowned Scholars where he among other educators has the essential focus to build the holistic young black man through academic mentoring, intentional conversations, and civic engagement. During the interview, I asked several questions about his experience with preparing students of color for college. He started by saying, “A high percentage of my students are brown; by high percentage, I mean like 90 percent or more. This has always been my school experience. This is where my passion for elevating their experiences grew for me” (R. Townsend, personal communication, November 14, 2019). He answered my questions by stating that: Colorism and factors about how race can affect an individual's American experience are prevalent topics in America's education system  today, still. As much as we have progressed in our treatment of one another on the basis of race and diversity, prejudice and assumptions, there is still work to be done in the education system. The education system lacks equity and tact when they cannot provide a learning experience that is suitable for each student. They fail our children when they cannot find ways to  include each curious mind in their plans. A major concern in the education system currently as it relates to race and equity in education is that students of color will lack the opportunity to better their lives through receiving a fair education.

He mentioned that the best practices an educator could use to ensure racial equity as we prepare our students for their professional lives are:

1. Encourage holistic admissions policies. In other words, admissions qualifications should not solely be dependent upon one factor alone; decision-makers should consider various factors including, but not limited to academic stance, quality of high schools, and students' professional recommendations.

2. Consider where society is with affirmative action and do the opposite. Sometimes, affirmative action in society works as a “band-aid” term to falsely represent inclusion and acceptance of all but, in reality, it is just that, a band-aid term.

3. And lastly, create a learning environment of equity throughout your institution. Create opportunities for all students to reach their potential. Do not make one demographic of students feel like they are any different than their peers. They can feel your apprehension and they tend to mirror that emotion.

"What we do not understand as educators is that when we call students out for being different and we do not prepare them for academic wellness, we hurt them in other areas of their development. It is one thing to prepare your students for college admissions, but it is another thing when they are fighting for equality in the process at the Supreme Court level because colleges do not think that they are as special as their K-12 teachers told them they were. We mess up as educators when we are not realistic with our students. If we as educators are not prepared for the discrimination that many of our students of color will face at the collegiate level, then our students will not be prepared" (R. Townsend, personal communication, November 14, 2019).

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Code of Ethics of the Education Profession

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Code of Ethics of the Education Profession

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Educators--
Shall not on the basis of race, color, creed, sex, national origin, marital status, political or religious beliefs, family, social or cultural background, or sexual orientation, unfairly— a. Exclude any student from participation in any program; b. Deny benefits to any student; c. Grant any advantage to any student (NEA, n.d., para. 6).

This ethical code protects students from unfair treatment on the basis of their demographical makeup. It is a creed that should be adopted by all educational institutions to create a harmonious and fair  learning environment for all students.

NEA (n.d.)..  Code of ethics of the education profession. National Education Association. Retrieved from http://www.nea.org/home/30442.htm

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Diversity Programs in College Admissions

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Diversity Programs in College Admissions

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This resource represents a pivotal moment in the education system as it was experiencing an outpour of support and acknowledgement of changes that needed to be made in schools regarding race and college admissions. The article brings to light various issues that were beginning to be brought to the nation's attention once again through the use of students and educators' voices at a Supreme Court level. Without the attention that these individuals brought to the issue of racial discrimination in the college admissions process, students of color would still be silenced by the unfair practices of our policymakers.

Flannery, M.E. (2012).

NEA urges Supreme Court to uphold diversity programs in college admissions. NEA Today. Retrieved from http://neatoday.org/2012/10/10/nea-urges-supreme-court-to-uphold-diversity-programs-in-college-admissions-2/

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The consideration of race in college admissions may be soon settled by the U.S. Supreme Court-but not before justices have heard the resounding voice of the National Education Association and its members on the importance of diversity in education.

"I work for the National Education Association," NEA General Counsel Alice O'Brien said today in a rally on the steps of the Court, as justices inside heard oral arguments ina landmark case of affirmative action in higher education. "Diversity programs such as the one at issue in this case are worth fighting for, and I am proud to say that the NEA has been and will continue to be in the vanguard of this fight!" O'Brien told the cheering crowd.

At the rally, students and educators waved "Diversity Works!" signs in the air as they listened to more than 30 speakers from different organizations explain why diversity is still a worthwhile goal for American higher education. In addition to the NEA, representatives from the NAACP, NOW, and AFSCME, along with Rev. Al Sharpton and Rev. Jesse Jackson, rallied support for affirmative action. Students also attended, waving handmade signs saying "I am more than my test scores," and "I am not a model minority."

"The students in high-poverty, minority-segregated schools are more than a statistic," O'Brien continued. "They are young people with hopes and dreams just like the students who grow up in more affluent circumstances with abundant opportunities and resources. These young people overcome obstacles that others never confront. It is all together fitting and proper to take that reality into account in making admissions decisions."

In the case of Fisher v. University of Texas, the plaintiff, a white woman denied admission in 2008, argues that the university discriminated against her because of her race. She has lost her case before a trial court and a federal court of appeals, both of which found that the university's use of race as part of a "holistic multi-factor individualized assessment of each applicant," is permitted by law. Today, the Supreme Court takes up the issue. Among its considerations will be more than 70 amicus briefs filed in support of the university, including a powerful argument filed earlier this year by NEA's attorneys.

In its brief, which was cosigned by 27 NEA state associations, the People for the American Way and labor unions including AFL-CIO, AFSCME and SEIU, NEA strongly urges the Court to uphold the practices that promote diversity in higher education. "NEA has a deep and abiding commitment to equal opportunity in all aspects of our society and to the proposition that equal education opportunities, including the opportunity to learn with students of races other than one's own, are a fundamental prerequisite to such equality," according to the brief.

It was the sixteenth amicus brief that NEA has filed since 1969 in support of affirmative action and the value of diversity in educational and employment settings.

"NEA has a long and proud history of supporting affirmative action," said NEA President Dennis Van Roekel. "We know without a doubt that diverse classrooms better prepare students for a diverse workforce and life in our vibrant, diverse society."
The Case At Hand
In the case of University of Texas, most students are admitted to the college through a Top Ten Percent Plan, which automatically admits any Texas resident who graduates in the top 10 percent of her high school class. To fill the remaining spots, university officials do a more individualized assessment of the candidates, looking at factors such as academic performance, essays, leadership qualities, work experience-and race.

Their consideration of race is completely legal under existing law, which was settled in 2003 by a Supreme Court that included now-retired Justice Sandra Day O'Connor. In that case, which had to do with admissions decisions at the University of Michigan law school, the Court ruled that an admissions policy that looks at a variety of factors including race, but does not amount to a quota system, would be constitutional.

Photos: Emma Chadband and Edward Graham
The Court obviously is different today. O'Connor has been replaced by the more conservative Justice Samuel Alito. But the arguments haven't changed a bit, notes Mary Ann Pacheco, an English professor at Rio Hondo Community College in California and winner of NEA's 2012 César Chávez Acción y Compromiso Human and Civil Rights Award. "To me, it comes down to the same question: Is there an intrinsic value in diversity? And, to me, the answer is so obvious. Diversity is value-added to any institution-whether it's a university or NEA."

A one-race school doesn't serve well its students who someday will set out to work in a very diverse America. (For the first time in history, Census data shows that white babies accounted for less than half of American births in 2011.) Nor does it serve America to deny opportunities to minority students who could be our future scientists, entrepreneurs, teachers and doctors, said Pacheco.

Candace Shivers, who teaches sociology and human services at Mount Wachusett Community College in northern Massachusetts, has students who will go on to work with elderly or disabled clients. Those clients won't all be white, like her students. "Their clientele is going to look like America," said Shivers, who is one of very few minority professors on her campus.

Yet, even as America becomes more racially diverse, its K-12 schools remain mostly segregated. Two out of five Black and Hispanic students attend "intensely segregated schools," according to NEA's amicu s brief. ("I have at least a dozen students who tell me I'm their first black teacher," noted Professor Shivers.) And, the reality is that many of those all-Black or all-Hispanic schools still suffer from persistent inequalities, such as a lack of Advanced Placement courses. Meanwhile, research shows that students in integrated schools do better academically-both majority and minority students.

There is this myth, Pacheco suggested, that the world has changed so much over the past years that race is no longer a factor in America. In truth, "we're a long way from being there. To think that we are is naïve at best and foolish at worst," she said.

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NEA Urges Supreme Court to Uphold Diversity Programs in College Admissions - NEA Today

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The consideration of race in college admissions may be soon settled by the U.S. Supreme Court-but not before justices have heard the resounding voice of the National Education Association and its members on the importance of diversity in education.

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Potential student, Abigail Fisher, a white Texan, was denied admission to the University of Texas at Austin for the Fall 2008 entering class. Fisher sued the university, arguing that the denial violated her Fourteenth Amendment right to equal protection because she was denied admission to the public university in favor of minority applicants with lesser credentials. The court ruled that the primary reason that the plaintiff in the case was denied admission to the university was not its consideration of race in admissions, but its “10 percent plan,” in which the top 10 percent of high school graduates are admitted to the public college or university of their choice.

This case represents the thin line of protection that is present when fighting cases regarding race and college admissions. This thin line is what is hard for law- and policymakers to define or protect individuals from.

This case is a pivotal case that sets the stage for many other students fighting for fairness in their admissions process.

This case gives insight as to what the 14th Amendment stands for and who it is meant to protect.

Jaschik, S. (2016).

Supreme Court upholds consideration of race. Inside Higher Ed. Retrieved from https://www.insidehighered.com/news/2016/06/24/supreme-court-upholds-consideration-race-admissions

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WASHINGTON -- The U.S. Supreme Court on Thursday upheld the University of Texas at Austin's consideration of race and ethnicity in college admissions. Some parts of the decision in the case, Fisher v. University of Texas at Austin, related to features unique to that university.

But other parts of the case will likely apply to admissions and financial aid policies in most of American higher education.

The court ruled that the primary reason that the plaintiff in the case was denied admission to the university was not its consideration of race in admissions, but its "10 percent plan," in which the top 10 percent of high school graduates are admitted to the public college or university of their choice.

The university does have "a continuing obligation" to meet the legal test of "strict scrutiny" by "periodically reassessing the admission program's constitutionality, and efficacy, in light of the school's experience and the data it has gathered since adopting its admissions plan, and by tailoring its approach to ensure that race plays no greater role than is necessary to meet its compelling interests," the decision says.

At the time that the plaintiff was rejected for admission, however, the decision said, the university had met that burden.

"The record here reveals that the university articulated concrete and precise goals -- e.g., ending stereotypes, promoting 'cross-racial understanding,' preparing students for 'an increasingly diverse workforce and society,' and cultivating leaders with 'legitimacy in the eyes of the citizenry' -- that mirror the compelling interest this court has approved in prior cases," said the decision.

The decision was written by Justice Anthony M. Kennedy, generally considered a swing vote on many issues, but who has consistently in the past been skeptical of education policies based on race. He was joined by Justices Ruth Bader Ginsburg, Stephen G. Breyer and Sonia Sotomayor.

In a dissent, Justice Samuel Alito Jr. -- joined by Chief Justice John Roberts and Justice Clarence Thomas -- strongly criticized the decision and the University of Texas policies. The dissent calls the university's arguments "shifting, unpersuasive and, at times, less than candid."

Justice Elena Kagan, who worked on the case as solicitor general before she joined the Supreme Court, recused herself from the case. When Justice Antonin Scalia died in February, the stage was set for a ruling by only seven justices. Scalia consistently opposed the consideration of race in admissions, so his death may have cleared the way for today's decision. A four-four tie on the case would still have left the University of Texas policies intact, but would have not have the same power as a precedent on the issue.

A defeat for affirmative action had been widely expected because, with Kagan not voting, only three justices on the court are considered reliable backers of affirmative action.

Michael A. Olivas, the William B. Bates Distinguished Chair in Law at the University of Houston and interim president of the university's downtown campus, is one of the few legal observers who has consistently predicted that affirmative action would survive the legal challenge brought by Abigail Fisher, a white woman rejected for admission by the University of Texas. Via email on Monday, he said, "It is about time that Fisher accepts that she was inadmissible, and that she lost, once again. No applicant of color would ever get so many bites at the apple, and whites still make up a disproportionate percent of percentage plan admits and discretionary admits at UT."

Fisher, through her lawyers, released this statement: "I am disappointed that the Supreme Court has ruled that students applying to the University of Texas can be treated differently because of their race or ethnicity. I hope that the nation will one day move beyond affirmative action."

Leaders of many higher education groups praised the ruling. President Obama spoke about the decision at a White House briefing, saying, "I'm pleased that the Supreme Court upheld the basic notion that diversity is an important value in our society, and that this country should provide a high-quality education to all our young people, regardless of their background. We are not a country that guarantees equal outcomes, but we do strive to provide an equal shot to everybody. And that's what was upheld today."

Hillary Clinton, the presumptive Democratic nominee for president, tweeted her approval.

Donald Trump, the presumptive Republican nominee, has not weighed in since the decision was announced.

Today's ruling is the second time the Supreme Court has considered the Fisher case.
The Supreme Court on Affirmative Action in Higher Education

1978: In Regents of the University of California v. Bakke, the court ruled that the medical school at the University of California, Davis, could not reserve some slots with separate admissions standards for minority applicants. But the court also ruled that colleges could consider race and ethnicity in admissions decisions in ways that did not create quotas.

2003: In Gratz v. Bollinger, the court ruled that the University of Michigan at Ann Arbor had unconstitutionally used an undergraduate admissions system in which underrepresented minority applicants received points on the basis of their ethnic or racial background.

2003: In Grutter v. Bollinger, the court ruled that the University of Michigan's law school was within its constitutional rights in considering applicants' race and ethnicity because it did so through a "holistic" review and not by simply awarding points based on race and ethnicity.

2013: In Fisher v. University of Texas at Austin, the court ruled that lower courts needed to apply "strict scrutiny" and not give colleges deference in reviews of challenges to the consideration of race and ethnicity in admissions decisions.

Ruling 7 to 1, the court in 2013 found that the U.S. Court of Appeals for the Fifth Circuit had erred in not applying "strict scrutiny" to the policies of UT Austin, which were challenged by Fisher. She said that her rights were violated by UT Austin's consideration of race and ethnicity in admissions decisions. Fisher's lawyers argued that the University of Texas need not consider race because it has found another way to assure diversity in the student body, the 10 percent plan.

Fisher was a high school senior when she first sued UT Austin in 2008. She enrolled at and graduated from Louisiana State University after she was rejected by UT but has continued the legal case over her rejection.

The 2013 ruling essentially raised the bar for colleges in terms of how they had to justify the consideration of race and ethnicity in admissions, but did not bar its use.

In July 2014, a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit upheld, 2 to 1, the UT admissions plan. And it is an appeal of that ruling on which the U.S. Supreme Court ruled today.

The majority decision from the appeals court said that just because Texas could get some diversity based on the percentage plan alone does not mean it can't do more than that. "An emphasis on numbers in a mechanical admissions process is the most pernicious of discriminatory acts because it looks to race alone, treating minority students as fungible commodities that represent a single minority viewpoint," the judges wrote. "Critical mass, the tipping point of diversity, has no fixed upper bound of universal application, nor is it the minimum threshold at which minority students do not feel isolated or like spokespersons for their race."

Further, the appeals court said that the University of Texas is correct not to rely solely on the percentage plan, which in turn works because of segregation. The plaintiff's "claim can proceed only if Texas must accept this weakness of the top 10 percent plan and live with its inability to look beyond class rank and focus upon individuals," the decision says. "Perversely, to do so would put in place a quota system pretextually race neutral. While the top 10 percent plan boosts minority enrollment by skimming from the tops of Texas high schools, it does so against this backdrop of increasing resegregation in Texas public schools, where over half of Hispanic students and 40 percent of black students attend a school with 90 [to] 100 percent minority enrollment."

Justice Alito's dissent argued that the majority decision did not comply with the Supreme Court's 2013 decision. "At best, the university's attempted articulations of 'critical mass' before this court are subjective, circular or tautological," the dissent says. "The university explains only that its 'concept of critical mass is defined by reference to the educational benefits that diversity is designed to produce.' And, in attempting to address when it is likely to achieve critical mass, the university explains only that it will 'cease its consideration of race when it determines ... that the educational benefits of diversity can be achieved at UT through a race-neutral policy ....'

"These articulations are insufficient. Under the rigors of strict scrutiny, the judiciary must 'verify that it is necessary for a university to use race to achieve the educational benefits of diversity.' It is not possible to perform this function when the university's objective is unknown, unmeasurable or unclear."
Anxious Presidents
College and university presidents, most of whom backed the University of Texas, have been waiting anxiously for today's ruling.

Michael V. Drake, president of Ohio State University, was formerly chancellor of the University of California, Irvine, which is banned by the California Constitution from considering race or ethnicity in admissions. He said that the California limits "make the job of creating inclusive higher education that much more difficult."

He said that Ohio State, like Texas, does consider race and ethnicity, but as one factor among many. "We are looking for the very best, looking at a variety of factors," he said. "This decision affirms the real value of inclusion in a society like ours -- particularly in bringing people from traditionally marginalized groups into our system."

Thomas Sullivan, a lawyer and legal scholar who is president of the University of Vermont, said he saw the decision as a strong victory for higher education. The court could have ruled strictly on technical grounds that Fisher didn't have standing, or ordered more hearings. Instead, he said, the court affirmed prior rulings on the value of diversity and also of the appropriate role for colleges in determining (within some limits) their admissions policies.

"This is a big win in terms of saying colleges should have some discretion," he said. At the same time, he noted that the decision continues to outline requirements (as past decisions have done) for colleges to meet before they use race or ethnicity as a factor in admissions.
Deference to Higher Education
A key part of the first Supreme Court ruling in Fisher was that colleges and universities were, as Sullivan noted, owed some deference on these issues. The earlier ruling limited that deference, and Justice Kennedy cited that limit. "No deference is owed when determining whether the use of race is narrowly tailored to achieve the university's permissible goals," he noted.

But while that provision attracted considerable attention last time around, Kennedy stressed areas where colleges should in his opinion receive deference. He quoted from the earlier decision: "The decision to pursue 'the educational benefits that flow from student body diversity' ... is, in substantial measure, an academic judgment to which some, but not complete, judicial deference is proper."

In this case, Kennedy also said that it was relevant that the University of Texas was acting under the percentage plan -- even if Fisher didn't challenge that -- and that the Texas Legislature imposed the percentage plan as a race-neutral way to promote some level of diversity. Justice Kennedy noted that without Fisher having challenged the plan, there wasn't a legal record on the plan itself.

"That legislative response, in turn, circumscribed the university's discretion in crafting its admissions policy," Kennedy wrote. "These circumstances refute any criticism that the university did not make good-faith efforts to comply with the law."

While Kennedy strongly defended the constitutionality of the Texas admissions policies, he also stressed the obligations of the university (and presumably other colleges) to constantly evaluate whether they need to consider race and ethnicity to achieve diversity. Colleges, he said, must gather data on various strategies to promote diversity.

"As the university examines this data, it should remain mindful that diversity takes many forms. Formalistic racial classifications may sometimes fail to capture diversity in all of its dimensions and, when used in a divisive manner, could undermine the educational benefits the university values," the decision says. "Through regular evaluation of data and consideration of student experience, the university must tailor its approach in light of changing circumstances, ensuring that race plays no greater role than is necessary to meet its compelling interest."
The Influence of Race
In his dissent, Justice Alito argued that in fact the university is doing what Kennedy would bar: making race the key factor in admissions.

"Although UT claims that race is but a 'factor of a factor of a factor of a factor,' UT acknowledges that 'race is the only one of [its] holistic factors that appears on the cover of every application,'" Alito wrote, quoting from depositions. "Consideration of race therefore pervades every aspect of UT's admissions process."

Further, Alito questions why Latino applicants receive more of an edge in admissions than do Asian-American applicants, who also add to diversity. And he adds that the university's argument that it needs a "critical mass" of minority students is too vague to be a justification.

Alito argues that the majority is ignoring the earlier Fisher decision in not sufficiently questioning the university's arguments.

"The majority's uncritical deference to UT's self-serving claims blatantly contradicts our decision in the prior iteration of this very case, in which we faulted the Fifth Circuit for improperly 'deferring to the university's good faith in its use of racial classifications,'" Alito writes. "As we emphasized just three years ago, our precedent 'ma[kes] clear that it is for the courts, not for university administrators, to ensure that' an admissions process is narrowly tailored."

It is possible that there will be further challenges to colleges' consideration of race. Parts of the decision do rest on unique factors at the University of Texas. But many critics and supporters of affirmative action expected this to be the case that might change things dramatically. For now, a legal battle that started in 2008 appears to be over.

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Supreme Court upholds consideration of race in admissions

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WASHINGTON -- The U.S. Supreme Court on Thursday upheld the University of Texas at Austin's consideration of race and ethnicity in college admissions. Some parts of the decision in the case, Fisher v. University of Texas at Austin, related to features unique to that university.

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Harvard University is currently celebrating a Supreme Court win in the court decision that allowed them to continue using race as a factor in its admissions decisions following a federal judge's ruling in a high-profile and contentious case that had major implications for the entire higher education industry.

This ruling is seemingly a positive use of race in college admissions, but is not considerate of the negative effects it could have on other populations of students.

This case is an example of how race-conscious admissions can create less segregated learning opportunities.

The purpose of this decision was to continue to consider students of color in the admission process for the purpose of creating a more diverse learning experience.

The consideration of race in the admissions process to Harvard University is a part of the holistic admissions initiative that many schools need to adopt.

Camera, L. (2019).

Judge upholds Harvard’s race-based admissions policy. U.S. News. Retrieved from https://www.usnews.com/news/education-news/articles/2019-10-01/judge-upholds-harvards-race-based-admissions-policy

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Harvard University can continue using race as a factor in its admissions decisions following a federal judge's ruling Tuesday in a high-profile and contentious case that had major implications for the entire higher education industry.

"For purposes of this case, at least for now, ensuring diversity at Harvard relies, in part, on race conscious admissions," the judge, Allison Burroughs, wrote in the conclusion of her . "The students who are admitted to Harvard and choose to attend will live and learn surrounded by all sorts of people, with all sorts of experiences, beliefs and talents. They will have the opportunity to know and understand one another beyond race, as whole individuals with unique histories and experiences. It is this, at Harvard and elsewhere that will move us, one day, to the point where we see that race is a fact, but not the defining fact and not the fact that tells us what is important, but we are not there yet."

The long-awaited decision rejects the plaintiff's charge that Harvard discriminated against Asian Americans in admissions and affirmed that race-based admissions policies are still needed to ensure diversity on campuses - though a time may come when that's not the case, Burroughs said.

"Harvard College's admissions process aims to evaluate each individual as a whole person," Lawrence Bacow, president of Harvard, said in a statement. "The consideration of race, alongside many other factors, helps us achieve our goal of creating a diverse student body that enriches the education of every student. Everyone admitted to Harvard College has something unique to offer our community, and today we reaffirm the importance of diversity-and everything it represents to the world."

The plaintiff, Students for Fair Admission, plans to appeal this decision to the First Court of Appeals and, if necessary, to the U.S Supreme Court.

"Students for Fair Admissions is disappointed that the court has upheld Harvard's discriminatory admissions policies," Edward Blum, president of Students for Fair Admissions said in a statement. "We believe that the documents, emails, data analysis and depositions SFFA presented at trial compellingly revealed Harvard's systematic discrimination against Asian-American applicants."

Blum, whose group opposes race-based admissions policies, headed a previous lawsuit that reached the high court twice, in 2013 and 2016, featuring as a plaintiff a white student from Texas who was rejected from the University of Texas at Austin. The court ultimately found the school's use of race in its admissions policy constitutional.

In this renewed effort from Blum, however, Students for Fair Admissions, as the sole plaintiff, argued that Harvard intentionally discriminates against Asian American applicants by using an admissions policy that has a disproportionately negative effect on them and is intentionally aimed at limiting the number of Asian Americans who attend the college.

Supporters of the lawsuit said that Harvard's policy, which was put in place to ensure minority - predominately African American - representation, is holding back Asian Americans. They argued that if race were not a factor and admissions were governed on traditional academic measures like test scores and transcripts, more Asian American students would qualify to attend. They argued that, if anything, considering an applicant's race leads administrators to discount Asian American applicants.

The lawsuit was backed by the Asian American Coalition for Education and the Asian American Legal Foundation, along with more than 150 other Asian American organizations, the majority of whom represent Chinese Americans.

Editorial Cartoons on Education

They were opposed in equal measure by dozens of other Asian American organizations and civil rights groups who defend the consideration of race in what they describe as a "holistic" admissions policy used by Harvard and who argue that Blum and others are using the Asian American community in what amounts to racial mascotting.

The vastly different experiences subgroups in the Asian American demographic face showcases why affirmative action, in their view, is necessary. For example, the limited amount of federal data show that Southeast Asian students - those who draw their heritage from countries like Burma, Cambodia, Laos, Thailand and Vietnam - perform academically worse than East Asian students, or those whose heritage includes China, Japan and South Korea.

The lawsuit against Harvard played to this oversight, they argued, by lumping together all Asian American applicants to make the argument that when compared to white applicants they are discriminated against - a tactic that served Students for Fair Admissions well in recruiting support among the Asian American community.

"This ruling is an important victory in the ongoing struggle for equal opportunity in higher education and reaffirms what the United States Supreme Court has held unequivocally for 40 years: that racial diversity can be vitally important to a student's education," said Jin Hee Lee, senior deputy director of litigation at NAACP Legal Defense Fund, which represented 25 Harvard student and alumni organizations that filed amicus briefs in support of Harvard's admissions policy.

"Due to pervasive racial inequality in primary and secondary education, as well as racial bias in standardized testing, colleges and universities cannot provide their students with the known benefits of diversity without considering race as one of many factors, in admissions," Lee said in the statement.

As part of the lawsuit, Students for Fair Admissions made public a preliminary and unpublished report conducted in 2013 by Harvard's Office of Institutional Research about its admissions policies. The school ultimately scrapped the report and it was never finalized, but it served to bolster the group's argument.

The report showed, Students for Fair Admissions argued, that if the Harvard used an academics-only admissions model, Asian Americans would have comprised more than 43 percent of the class in 2013 compared to their actual 19 percent. Today, Asian American students comprise 22 percent of the admitted class of 2021, according to the school's self-reported ethnicity breakdown. White students make up 49 percent, African American students make up 15 percent and Hispanic students 12 percent.

The Photos You Should See - Sept. 2019

The report also found that Asian American admission rates were lower than white admission rates every year over a 10-year period even though Asian American outperformed white applicants on most metrics.

But the judge rejected that argument as a basis for revoking Harvard's use of race in admissions, writing in the opinion that "race conscious admissions programs that survive strict scrutiny will have an important place in society and help ensure that colleges and universities can offer a diverse atmosphere that fosters learning, improves scholarship, and encourages mutual respect and understanding."

The lawsuit lifted the curtain on an elite university's admissions policy, which had long been shrouded in secrecy, forcing Harvard to reveal for the first time how its admissions officers treat special categories, including legacy applicants, applicants whose families made sizeable donations, children of faculty and recruited athletes, the latter of which were admitted 86 percent of the time.

The revelation, among others, plays into the ongoing narrative that higher education is a rigged system accessible only to the wealthiest and most elite families - a point further bolstered by the recent college admissions scandal, in which parents paid a college counselor a combined $25 million to help students cheat on college entrance exams and gain them admission to elite colleges and universities as recruited athletes when in reality they were not athletes at all.

To be sure, income inequality in education has a long history, in large part because so much of K-12 budgets are dependent on local property taxes, meaning wealthier and majority white communities with higher tax bases automatically have more money to pay for things like better teachers, AP courses and college counselors - all of which provide a leg up in the college admissions process.

Combine that with families who can also afford coaching for the SAT and ACT, additional counselors who go over college essays with a fine-tooth comb and costs for recreational sports, music lessons and other extracurriculars, and admission to the most elite colleges is assumed by many lower-income students and students of color to be out of reach.

As one recent study found, 38 colleges, including five Ivy League schools, enrolled more students whose families are among the top 1 percent of income earners than from the entire bottom 60 percent. And children whose parents are in the top 1 percent of earners are 77 times more likely to attend an Ivy League college than those whose parents are in the bottom income quintile, the same report found.

Race-conscious admission policies are a major way colleges and universities have attempted to correct for that inequity, especially at elite schools that most heavily depend on affirmative action to maintain diversity.

Colleges and universities were quick to applaud the judge's ruling.

"We are gratified that this decision unambiguously respects more than four decades of U.S. Supreme Court precedent," Ted Mitchell, president of the American Council on Education, which represents more than 1,700 colleges and universities and opposed the challenge to Harvard along with 36 other higher education groups, said in a statement. "Today's ruling is especially gratifying because it occurs against a backdrop of continuing attacks on what remains the settled law of the land in this area."

Higher education policy experts have had time now to think about a world in which colleges and universities are not allowed to consider race in admissions decisions.

Indeed, when twice the Supreme Court took up Fisher v. University of Texas, in 2013 and then in 2016, admissions officers across the country feverishly looked for ways to ensure diversity should the court rule against the school system. The result, according to those involved in that effort, was pulling together various geospatial data points and building models that extrapolate information on large groups of students.

But Burrough's ruling in the case delays that for now.

"As time marches on and the effects of entrenched racism and unequal opportunity remain obvious, this goal might be optimistic and may need to change, but it remains imperative that Harvard and other schools that make use of racial preferences to achieve a diverse learning environment," she wrote.

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Judge Upholds Harvard's Race-Based Admissions Policy

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Harvard University can continue using race as a factor in its admissions decisions following a federal judge's ruling Tuesday in a high-profile and contentious case that had major implications for the entire higher education industry.

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Equal Protection Clause of the 14th Amendment 

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Equal Protection Clause of the 14th Amendment 

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Equal Protection Clause of the 14th Amendment; U.S. Const. amend. XIV §1

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

LINK:
https://constitutioncenter.org/interactive-constitution/amendment/amendment-xiv

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The 14th Amendment of the U.S. Constitution

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SECTION. 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

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Civil Rights and Affirmative Action; 15 U.S.C. §719 (o)

All Federal officers and agencies shall take such affirmative action as is necessary to assure that no person shall, on the grounds of race, creed, color, national origin, or sex, be excluded from receiving, or participating in any activity conducted under, any certificates, permit, right of-way, lease, or other authorization granted or issued pursuant to this chapter.

LINK:
https://www.govinfo.gov/content/pkg/USCODE-2000-title15/pdf/USCODE-2000-title15-chap15C-sec719o.pdf

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Title VI of the Civil Rights Act of 1964

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Title VI of the Civil Rights Act of 1964

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Title VI of the Civil Rights Act of 1964; 34 C.F.R. §100.

No person in the United States shall, on the ground of race, color, or national origin be excluded from participation in, be denied the benefits of, or be otherwise subjected to discrimination under any program to which this part applies.

LINK:
https://www2.ed.gov/policy/rights/reg/ocr/edlite-34cfr100.html#S3

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[Notice to Readers]
TITLE 34-EDUCATION

SUBTITLE B-REGULATIONS OF THE OFFICES OF THE DEPARTMENT OF EDUCATION

CHAPTER 1-OFFICE FOR CIVIL RIGHTS, DEPARTMENT OF EDUCATION
PART 100-NONDISCRIMINATION UNDER PROGRAMS RECEIVING FEDERAL ASSISTANCE THROUGH THE DEPARTMENT OF EDUCATION EFFECTUATION OF TITLE VI OF THE CIVIL RIGHTS ACT OF 1964
Sec.

100.1 Purpose.

100.2 Application of this regulation.

100.3 Discrimination prohibited.

100.4 Assurances required.

100.5 Illustrative application.

100.6 Compliance information.

100.7 Conduct of investigations.

100.8 Procedure for effecting compliance.

100.9 Hearings.

100.10 Decisions and notices.

100.11 Judicial review.

100.12 Effect on other regulations; forms and instructions.

100.13 Definitions.

Appendix A to Part 100-Federal Financial Assistance to Which These Regulations Apply

Appendix B to Part 100-Guidelines for Eliminating Discrimination and Denial of Services on the Basis of Race, Color, National Origin, Sex, and Handicap in Vocational Education Programs

Authority: Sec. 602, 78 Stat. 252; 42 U.S.C. 2000d-1, unless otherwise noted.

Source: 45 FR 30918, May 9, 1980, unless otherwise noted.

§ 100.1 Purpose.

The purpose of this part is to effectuate the provisions of title VI of the Civil Rights Act of 1964 (hereafter referred to as the "Act") to the end that no person in the United States shall; on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be otherwise subjected to discrimination under any program or activity receiving Federal financial assistance from the Department of Education.

( Authority: Sec. 601, Civil Rights Act of 1964; 78 Stat. 252; 42 U.S.C. 2000d)

§ 100.2 Application of this regulation.

This regulation applies to any program to which Federal financial assistance is authorized to be extended to a recipient under a law administered by the Department, including the Federal financial assistance listed in appendix A of this regulation. It applies to money paid, property transferred, or other Federal financial assistance extended after the effective date of the regulation pursuant to an application approved prior to such effective date. This regulation does not apply to (a) any Federal financial assistance by way of insurance or guaranty contracts, (b) money paid, property transferred, or other assistance extended before the effective date of this regulation, (c) the use of any assistance by any individual who is the ultimate beneficiary, or (d) any employment practice, or any employer, employment agency, or labor organization, except to the extent described in § 100.3. The fact that a type of Federal assistance is not listed in appendix A shall not mean, if title VI of the Act is otherwise applicable, that a program is not covered. Federal financial assistance under statutes now in force or hereinafter enacted may be added to this list by notice published in the FEDERAL REGISTER.

(Authority: Secs. 602, 604, Civil Rights Act of 1964; 78 Stat. 252, 253; 42 U.S.C. 2000d-1, 2000d-3)

§ 100.3 Discrimination prohibited.

(a) General. No person in the United States shall, on the ground of race, color, or national origin be excluded from participation in, be denied the benefits of, or be otherwise subjected to discrimination under any program to which this part applies.

(b) Specific discriminatory actions prohibited. (1) A recipient under any program to which this part applies may not, directly or through contractual or other arrangements, on ground of race, color, or national origin:

(i) Deny an individual any service, financial aid, or other benefit provided under the program;

(ii) Provide any service, financial aid, or other benefit to an individual which is different, or is provided in a different manner, from that provided to others under the program;

(iii) Subject an individual to segregation or separate treatment in any matter related to his receipt of any service, financial aid, or other benefit under the program;

(iv) Restrict an individual in any way in the enjoyment of any advantage or privilege enjoyed by others receiving any service, financial aid, or other benefit under the program;

(v) Treat an individual differently from others in determining whether he satisfies any admission, enrollment, quota, eligibility, membership or other requirement or condition which individuals must meet in order to be provided any service, financial aid, or other benefit provided under the program;

(vi) Deny an individual an opportunity to participate in the program through the provision of services or otherwise or afford him an opportunity to do so which is different from that afforded others under the program (including the opportunity to participate in the program as an employee but only to the extent set forth in paragraph (c) of this section).

(vii) Deny a person the opportunity to participate as a member of a planning or advisory body which is an integral part of the program.

(2) A recipient, in determining the types of services, financial aid, or other benefits, or facilities which will be provided under any such program, or the class of individuals to whom, or the situations in which, such services, financial aid, other benefits, or facilities will be provided under any such program, or the class of individuals to be afforded an opportunity to participate in any such program, may not, directly or through contractual or other arrangements, utilize criteria or methods of administration which have the effect of subjecting individuals to discrimination because of their race, color, or national origin, or have the effect of defeating or substantially impairing accomplishment of the objectives of the program as respect individuals of a particular race, color, or national origin.

(3) In determining the site or location of a facilities, an applicant or recipient may not make selections with the effect of excluding individuals from, denying them the benefits of, or subjecting them to discrimination under any programs to which this regulation applies, on the ground of race, color, or national origin; or with the purpose or effect of defeating or substantially impairing the accomplishment of the objectives of the Act or this regulation.

(4) As used in this section, the services, financial aid, or other benefits provided under a program receiving Federal financial assistance shall be deemed to include any service, financial aid, or other benefits provided in or through a facility provided with the aid of Federal financial assistance.

(5) The enumeration of specific forms of prohibited discrimination in this paragraph and paragraph (c) of this section does not limit the generality of the prohibition in paragraph (a) of this section.

(6) (i) In administering a program regarding which the recipient has previously discriminated against persons on the ground of race, color, or national origin, the recipient must take affirmative action to overcome the effects of prior discrimination.

(ii) Even in the absence of such prior discrimination, a recipient in administering a program may take affirmative action to overcome the effects of conditions which resulted in limiting participation by persons of a particular race, color, or national origin.

(c) Employment practices. (1) Where a primary objective of the Federal financial assistance to a program to which this regulation applies is to provide employment, a recipient may not (directly or through contractual or other arrangements) subject an individual to discrimination on the ground of race, color, or national origin in its employment practices under such program (including recruitment or recruitment advertising, employment, layoff or termination, upgrading, demotion, or transfer, rates of pay or other forms of compensation, and use of facilities), including programs where a primary objective of the Federal financial assistance is (i) to reduce the employment of such individuals or to help them through employment to meet subsistence needs, (ii) to assist such individuals through employment to meet expenses incident to the commencement or continuation of their education or training, (iii) to provide work experience which contributes to the education or training of such individuals, or (iv) to provide remunerative activity to such individuals who because of handicaps cannot be readily absorbed in the competitive labor market. The following, under existing laws, have one of the above objectives as a primary objective:

(A) Projects under the Public Works Acceleration Act, Pub. L. 87-658, 42 U.S.C. 2641-2643.

(B) Work-study under the Vocational Education Act of 1963, as amended, 20 U.S.C. 1371-1374.

(C) Programs assisted under laws listed in appendix A as respects employment opportunities provided thereunder, or in facilities provided thereunder, which are limited, or for which preference is given, to students, fellows, or other persons in training for the same or related employments.

(D) Assistance to rehabilitation facilities under the Vocational Rehabilitation Act, 29 U.S.C. 32-34, 41a and 41b.

(2) The requirements applicable to construction employment under any such program shall be those specified in or pursuant to Part III of Executive Order 11246 or any Executive order which supersedes it.

(3) Where a primary objective of the Federal financial assistance is not to provide employment, but discrimination on the ground of race, color, or national origin in the employment practices of the recipient or other persons subject to the regulation tends, on the ground of race, color, or national origin, to exclude individuals from participation in, to deny them the benefits of, or to subject them to discrimination under any program to which this regulation applies, the foregoing provisions of this paragraph (c) shall apply to the employment practices of the recipient or other persons subject to the regulation, to the extent necessary to assure equality of opportunity to, and nondiscriminatory treatment of, beneficiaries.

(d) Indian Health and Cuban Refugee Services. An individual shall not be deemed subjected to discrimination by reason of his exclusion from benefits limited by Federal law to individuals of a particular race, color, or national origin different from his.

(e) Medical emergencies. Notwithstanding the foregoing provisions of this section, a recipient of Federal financial assistance shall not be deemed to have failed to comply with paragraph (a) of this section if immediate provision of a service or other benefit to an individual is necessary to prevent his death or serious impairment of his health, and such service or other benefit cannot be provided except by or through a medical institution which refuses or fails to comply with paragraph (a) of this section.

(Authority: Sec. 601, 602, 604, Civil Rights Act of 1964; 78 Stat. 252, 253, 42 U.S.C. 2000d, 2000d-1, 2000d-3)

§ 100.4 Assurances required.

(a) General. (1) Every application for Federal financial assistance to which this part applies, except an application to which paragraph (b) of this section applies, and every application for Federal financial assistance to provide a facility shall, as a condition to its approval and the extension of any Federal financial assistance pursuant to the application, contain or be accompanied by an assurance that the program will be conducted or the facility operated in compliance with all requirements imposed by or pursuant to this part. In the case of an application for Federal financial assistance to provide real property or structures thereon, the assurance shall obligate the recipient, or, in the case of a subsequent transfer, the transferee, for the period during which the real property or structures are used for a purpose for which the Federal financial assistance is extended or for another purpose involving the provision of similar services or benefits. In the case of personal property the assurance shall obligate the recipient for the period during which he retains ownership or possession of the property. In all other cases the assurance shall obligate the recipient for the period during which Federal financial assistance is extended pursuant to the application. The responsible Department official shall specify the form of the foregoing assurances, and the extent to which like assurances will be required of subgrantees, contractors and subcontractors, transferees, successors in interest, and other participants. Any such assurance shall include provisions which give the United States a right to seek its judicial enforcement.

(2) Where Federal financial assistance is provided in the form of a transfer of real property or interest therein from the Federal Government the instrument effecting or recording the transfer shall contain a covenant running with the land to assure nondiscrimination for the period during which the real property is used for a purpose for which the Federal financial assistance is extended or for another purpose involving the provision of similar services or benefits. Where no transfer of property is involved but property is improved with Federal financial assistance, the recipient shall agree to include such a covenant to any subsequent transfer of the property. Where the property is obtained from the Federal Government, such covenant may also include a condition coupled with a right to be reserved by the Department to revert title to the property in the event of a breach of the covenant where, in the discretion of the responsible Department official, such a condition and right of reverter is appropriate to the statute under which the real property is obtained and to the nature of the grant and the grantee. In the event a transferee of real property proposes to mortgage or otherwise encumber the real property as security for financing construction of new, or improvement of existing, facilities on such property for the purposes for which the property was transferred, the responsible Department official may agree, upon request of the transferee and if necessary to accomplish such financing, and upon such conditions as he deems appropriate, to forbear the exercise of such right to revert title for so long as the lien of such mortgage or other encumbrance remains effective.

(b) Continuing Federal financial assistance. Every application by a State or a State agency for continuing Federal financial assistance to which this regulation applies (including the Federal financial assistance listed in part 2 of appendix A) shall as a condition to its approval and the extension of any Federal financial assistance pursuant to the application (1) contain or be accompanied by a statement that the program is (or, in the case of a new program, will be) conducted in compliance with all requirements imposed by or pursuant to this regulation, and (2) provide or be accompanied by provision for such methods of administration for the program as are found by the responsible Department official to give reasonable assurance that the applicant and all recipients of Federal financial assistance under such program will comply with all requirements imposed by or pursuant to this regulation.

(c) Elementary and secondary schools. The requirements of paragraph (a) or (b) of this section with respect to any elementary or secondary school or school system shall be deemed to be satisfied if such school or school system (1) is subject to a final order of a court of the United States for the desegregation of such school or school system, and provides an assurance that it will comply with such order, including any future modification of such order, or (2) submits a plan for the desegregation of such school or school system which the responsible Department official determines is adequate to accomplish the purposes of the Act and this part, at the earliest practicable time, and provides reasonable assurance that it will carry out such plan; in any case of continuing Federal financial assistance the responsible Department official may reserve the right to redetermine, after such period as may be specified by him, the adequacy of the plan to accomplish the purposes of the Act and the regulations in this part. In any case in which a final order of a court of the United States for the desegregation of such school or school system is entered after submission of such a plan, such plan shall be revised to conform to such final order, including any future modification of such order.

(d) Assurance from institutions. (1) In the case of any application for Federal financial assistance to an institution of higher education (including assistance for construction, for research, for special training project, for student loans or for any other purpose), the assurance required by this section shall extend to admission practices and to all other practices relating to the treatment of students.

(2) The assurance required with respect to an institution of higher education, hospital, or any other institution, insofar as the assurance relates to the institution's practices with respect to admission or other treatment of individuals as students, patients, or clients of the institution or to the opportunity to participate in the provision of services or other benefits to such individuals, shall be applicable to the entire institution.

(Authority: Sec. 601, 602, Civil Rights Act of 1964; 78 Stat. 252; 42 U.S.C. 2000d, 2000d-1. Sec. 182; 80 Stat. 1209; 42 U.S.C. 2000d-5)
§ 100.5 Illustrative application.
The following examples will illustrate the programs aided by Federal financial assistance of the Department. (In all cases the discrimination prohibited is discrimination on the ground of race, color, or national origin prohibited by title VI of the Act and this regulation, as a condition of the receipt of Federal financial assistance).

(a) In federally-affected area assistance (Pub. L. 815 and Pub. L. 874) for construction aid and for general support of the operation of elementary or secondary schools, or in more limited support to such schools such as for the acquisition of equipment, the provision of vocational education, or the provision of guidance and counseling services, discrimination by the recipient school district in any of its elementary or secondary schools in the admission of students, or in the treatment of its students in any aspect of the educational process, is prohibited. In this and the following illustrations the prohibition of discrimination in the treatment of students or other trainees includes the prohibition of discrimination among the students or trainees in the availability or use of any academic, dormitory, eating, recreational, or other facilities of the grantee or other recipient.

(b) In a research, training, demonstration, or other grant to a university for activities to be conducted in a graduate school, discrimination in the admission and treatment of students in the graduate school is prohibited, and the prohibition extends to the entire university.

(c) In a training grant to a hospital or other nonacademic institution, discrimination is prohibited in the selection of individuals to be trained and in their treatment by the grantee during their training. In a research or demonstration grant to such an institution discrimination is prohibited with respect to any educational activity and any provision of medical or other services and any financial aid to individuals incident to the program.

(d) In grants to assist in the construction of facilities for the provision of health, educational or welfare services, assurances will be required that services will be provided without discrimination, to the same extent that discrimination would be prohibited as a condition of Federal operating grants for the support of such services. Thus, as a condition of grants for the construction of academic, research, or other facilities at institutions of higher education, assurances will be required that there will be no discrimination in the admission or treatment of students.

(e) Upon transfers of real or personal surplus property for educational uses, discrimination is prohibited to the same extent as in the case of grants for the construction of facilities or the provision of equipment for like purposes.

(f) Each applicant for a grant for the construction of educational television facilities is required to provide an assurance that it will, in its broadcast services, give due consideration to the interests of all significant racial or ethnic groups within the population to be served by the applicant.

(g) A recipient may not take action that is calculated to bring about indirectly what this regulation forbids it to accomplish directly. Thus, a State, in selecting or approving projects or sites for the construction of public libraries which will receive Federal financial assistance, may not base its selections or approvals on criteria which have the effect of defeating or of substantially impairing accomplishments of the objectives of the Federal assistance as respects individuals of a particular race, color or national origin.

(h) In some situations, even though past discriminatory practices attributable to a recipient or applicant have been abandoned, the consequences of such practices continue to impede the full availability of a benefit. If the efforts required of the applicant or recipient under § 100.6(d), to provide information as to the availability of the program or activity and the rights of beneficiaries under this regulation, have failed to overcome these consequences, it will become necessary under the requirement stated in paragraph (i) of § 100.3(b)(6) for such applicant or recipient to take additional steps to make the benefits fully available to racial and nationality groups previously subject to discrimination. This action might take the form, for example, of special arrangements for obtaining referrals or making selections which will insure that groups previously subjected to discrimination are adequately served.

(i) Even though an applicant or recipient has never used discriminatory policies, the services and benefits of the program or activity it administers may not in fact be equally available to some racial or nationality groups. In such circumstances, an applicant or recipient may properly give special consideration to race, color, or national origin to make the benefits of its program more widely available to such groups, not then being adequately served. For example, where a university is not adequately serving members of a particular racial or nationality group, it may establish special recruitment policies to make its program better known and more readily available to such group, and take other steps to provide that group with more adequate service.

(Authority: Sec. 601, 602, Civil Rights Act of 1964; 78 Stat. 252; 42 U.S.C. 2000d, 2000d-1)
§ 100.6 Compliance information.
(a) Cooperation and assistance. The responsible Department official shall to the fullest extent practicable seek the cooperation of recipients in obtaining compliance with this part and shall provide assistance and guidance to recipients to help them comply voluntarily with this part.

(b) Compliance reports. Each recipient shall keep such records and submit to the responsible Department official or his designee timely, complete and accurate compliance reports at such times, and in such form and containing such information, as the responsible Department official or his designee may determine to be necessary to enable him to ascertain whether the recipient has complied or is complying with this part. For example, recipients should have available for the Department racial and ethnic data showing the extent to which members of minority groups are beneficiaries of and participants in federally-assisted programs. In the case in which a primary recipient extends Federal financial assistance to any other recipient, such other recipient shall also submit such compliance reports to the primary recipient as may be necessary to enable the primary recipient to carry out its obligations under this part.

(c) Access to sources of information. Each recipient shall permit access by the responsible Department official or his designee during normal business hours to such of its books, records, accounts, and other sources of information, and its facilities as may be pertinent to ascertain compliance with this part. Where any information required of a recipient is in the exclusive possession of any other agency, institution or person and this agency, institution or person shall fail or refuse to furnish this information the recipient shall so certify in its report and shall set forth what efforts it has made to obtain the information. Asserted considerations of privacy or confidentiality may not operate to bar the Department from evaluating or seeking to enforce compliance with this part. Information of a confidential nature obtained in connection with compliance evaluation or enforcement shall not be disclosed except where necessary in formal enforcement proceedings or where otherwise required by law.

(d) Information to beneficiaries and participants. Each recipient shall make available to participants, beneficiaries, and other interested persons such information regarding the provisions of this regulation and its applicability to the program for which the recipient receives Federal financial assistance, and make such information available to them in such manner, as the responsible Department official finds necessary to apprise such persons of the protections against discrimination assured them by the Act and this regulation.

(Approved by the Office of Management and Budget under control number 1870-0500)

(Authority: Sec. 601, 602, Civil Rights Act of 1964; 78 Stat. 252; 42 U.S.C. 2000d, 2000d-1)

[45 FR 30918, May 9, 1980, as amended at 53 FR 49143, Dec. 6, 1988]
§ 100.7 Conduct of investigations.
(a) Periodic compliance reviews. The responsible Department official or his designee shall from time to time review the practices of recipients to determine whether they are complying with this part.

(b) Complaints. Any person who believes himself or any specific class of individuals to be subjected to discrimination prohibited by this part may by himself or by a representative file with the responsible Department official or his designee a written complaint. A complaint must be filed not later than 180 days from the date of the alleged discrimination, unless the time for filing is extended by the responsible Department official or his designee.

(c) Investigations. The responsible Department official or his designee will make a prompt investigation whenever a compliance review, report, complaint, or any other information indicates a possible failure to comply with this part. The investigation should include, where appropriate, a review of the pertinent practices and policies of the recipient, the circumstances under which the possible noncompliance with this part occurred, and other factors relevant to a determination as to whether the recipient has failed to comply with this part.

(d) Resolution of matters. (1) If an investigation pursuant to paragraph (c) of this section indicates a failure to comply with this part, the responsible Department official or his designee will so inform the recipient and the matter will be resolved by informal means whenever possible. If it has been determined that the matter cannot be resolved by informal means, action will be taken as provided for in § 100.8.

(2) If an investigation does not warrant action pursuant to paragraph (1) of this paragraph (d) the responsible Department official or his designee will so inform the recipient and the complainant, if any, in writing.

(e) Intimidatory or retaliatory acts prohibited. No recipient or other person shall intimidate, threaten, coerce, or discriminate against any individual for the purpose of interfering with any right or privilege secured by section 601 of the Act or this part, or because he has made a complaint, testified, assisted, or participated in any manner in an investigation, proceeding or hearing under this part. The identity of complainants shall be kept confidential except to the extent necessary to carry out the purposes of this part, including the conduct of any investigation, hearing, or judicial proceeding arising thereunder.

(Authority: Sec. 601, 602, Civil Rights Act of 1964; 78 Stat. 252; 42 U.S.C. 2000d, 2000d-1)
§ 100.8 Procedure for effecting compliance.
(a) General. If there appears to be a failure or threatened failure to comply with this regulation, and if the noncompliance or threatened noncompliance cannot be corrected by informal means, compliance with this part may be effected by the suspension or termination of or refusal to grant or to continue Federal financial assistance or by any other means authorized by law. Such other means may include, but are not limited to, (1) a reference to the Department of Justice with a recommendation that appropriate proceedings be brought to enforce any rights of the United States under any law of the United States (including other titles of the Act), or any assurance or other contractual undertaking, and (2) any applicable proceeding under State or local law.

(b) Noncompliance with § 100.4. If an applicant fails or refuses to furnish an assurance required under § 100.4 or otherwise fails or refuses to comply with a requirement imposed by or pursuant to that section Federal financial assistance may be refused in accordance with the procedures of paragraph (c) of this section. The Department shall not be required to provide assistance in such a case during the pendency of the administrative proceedings under such paragraph except that the Department shall continue assistance during the pendency of such proceedings where such assistance is due and payable pursuant to an application therefor approved prior to the effective date of this part.

(c) Termination of or refusal to grant or to continue Federal financial assistance. No order suspending, terminating or refusing to grant or continue Federal financial assistance shall become effective until (1) the responsible Department official has advised the applicant or recipient of his failure to comply and has determined that compliance cannot be secured by voluntary means, (2) there has been an express finding on the record, after opportunity for hearing, of a failure by the applicant or recipient to comply with a requirement imposed by or pursuant to this part, (3) the expiration of 30 days after the Secretary has filed with the committee of the House and the committee of the Senate having legislative jurisdiction over the program involved, a full written report of the circumstances and the grounds for such action. Any action to suspend or terminate or to refuse to grant or to continue Federal financial assistance shall be limited to the particular political entity, or part thereof, or other applicant or recipient as to whom such a finding has been made and shall be limited in its effect to the particular program, or part thereof, in which such noncompliance has been so found.

(d) Other means authorized by law. No action to effect compliance by any other means authorized by law shall be taken until (1) the responsible Department official has determined that compliance cannot be secured by voluntary means, (2) the recipient or other person has been notified of its failure to comply and of the action to be taken to effect compliance, and (3) the expiration of at least 10 days from the mailing of such notice to the recipient or other person. During this period of at least 10 days additional efforts shall be made to persuade the recipient or other person to comply with the regulation and to take such corrective action as may be appropriate.

(Authority: Sec. 601, 602, Civil Rights Act of 1964; 78 Stat. 252; 42 U.S.C. 2000d, 2000d-1. Sec. 182, 80 Stat. 1209; 42 U.S.C. 2000d-5)
§ 100.9 Hearings.
(a) Opportunity for hearing. Whenever an opportunity for a hearing is required by § 100.8(c), reasonable notice shall be given by registered or certified mail, return receipt requested, to the affected applicant or recipient. This notice shall advise the applicant or recipient of the action proposed to be taken, the specific provision under which the proposed action against it is to be taken, and the matters of fact or law asserted as the basis for this action, and either (1) fix a date not less than 20 days after the date of such notice within which the applicant or recipient may request of the responsible Department official that the matter be scheduled for hearing or (2) advise the applicant or recipient that the matter in question has been set down for hearing at a stated place and time. The time and place so fixed shall be reasonable and shall be subject to change for cause. The complainant, if any, shall be advised of the time and place of the hearing. An applicant or recipient may waive a hearing and submit written information and argument for the record. The failure of an applicant or recipient to request a hearing for which a date has been set shall be deemed to be a waiver of the right to a hearing under section 602 of the Act and § 100.8(c) of this regulation and consent to the making of a decision on the basis of such information as may be filed as the record.

(b) Time and place of hearing. Hearings shall be held at the offices of the Department in Washington, DC, at a time fixed by the responsible Department official unless he determines that the convenience of the applicant or recipient or of the Department requires that another place be selected. Hearings shall be held before a hearing examiner designated in accordance with 5 U.S.C. 3105 and 3344 (section 11 of the Administrative Procedure Act).

(c) Right to counsel. In all proceedings under this section, the applicant or recipient and the Department shall have the right to be represented by counsel.

(d) Procedures, evidence, and record. (1) The hearing, decision, and any administrative review thereof shall be conducted in conformity with sections 5-8 of the Administrative Procedure Act, and in accordance with such rules of procedure as are proper (and not inconsistent with this section) relating to the conduct of the hearing, giving of notices subsequent to those provided for in paragraph (a) of this section, taking of testimony, exhibits, arguments and briefs, requests for findings, and other related matters. Both the Department and the applicant or recipient shall be entitled to introduce all relevant evidence on the issues as stated in the notice for hearing or as determined by the officer conducting the hearing at the outset of or during the hearing. Any person (other than a Government employee considered to be on official business) who, having been invited or requested to appear and testify as a witness on the Government's behalf, attends at a time and place scheduled for a hearing provided for by this part, may be reimbursed for his travel and actual expenses of attendance in an amount not to exceed the amount payable under the standardized travel regulations to a Government employee traveling on official business.

(2) Technical rules of evidence shall not apply to hearings conducted pursuant to this part, but rules or principles designed to assure production of the most credible evidence available and to subject testimony to test by cross-examination shall be applied where reasonably necessary by the officer conducting the hearing. The hearing officer may exclude irrelevant, immaterial, or unduly repetitious evidence. All documents and other evidence offered or taken for the record shall be open to examination by the parties and opportunity shall be given to refute facts and arguments advanced on either side of the issues. A transcript shall be made of the oral evidence except to the extent the substance thereof is stipulated for the record. All decisions shall be based upon the hearing record and written findings shall be made.

(e) Consolidated or joint hearings. In cases in which the same or related facts are asserted to constitute noncompliance with this regulation with respect to two or more Federal assistance statutes to which this part applies, or noncompliance with this part and the regulations of one or more other Federal departments or agencies issued under title VI of the Act, the responsible Department official may, by agreement with such other departments or agencies where applicable, provide for the conduct of consolidated or joint hearings, and for the application to such hearings of rules of procedures not inconsistent with this part. Final decisions in such cases, insofar as this regulation is concerned, shall be made in accordance with § 100.10.

(Authority: Sec. 602, Civil Rights Act of 1964; 78 Stat. 252; 42 U.S.C. 2000d-1)
§ 100.10 Decisions and notices.
(a) Decisions by hearing examiners. After a hearing is held by a hearing examiner such hearing examiner shall either make an initial decision, if so authorized, or certify the entire record including his recommended findings and proposed decision to the reviewing authority for a final decision, and a copy of such initial decision or certification shall be mailed to the applicant or recipient and to the complainant, if any. Where the initial decision referred to in this paragraph or in paragraph (c) of this section is made by the hearing examiner, the applicant or recipient or the counsel for the Department may, within the period provided for in the rules of procedure issued by the responsible Department official, file with the reviewing authority exceptions to the initial decision, with his reasons therefor. Upon the filing of such exceptions the reviewing authority shall review the initial decision and issue its own decision thereof including the reasons therefor. In the absence of exceptions the initial decision shall constitute the final decision, subject to the provisions of paragraph (e) of this section.

(b) Decisions on record or review by the reviewing authority. Whenever a record is certified to the reviewing authority for decision or it reviews the decision of a hearing examiner pursuant to paragraph (a) or (c) of this section, the applicant or recipient shall be given reasonable opportunity to file with it briefs or other written statements of its contentions, and a copy of the final decision of the reviewing authority shall be given in writing to the applicant or recipient and to the complainant, if any.

(c) Decisions on record where a hearing is waived. Whenever a hearing is waived pursuant to § 100.9(a) the reviewing authority shall make its final decision on the record or refer the matter to a hearing examiner for an initial decision to be made on the record. A copy of such decision shall be given in writing to the applicant or recipient, and to the complainant, if any.

(d) Rulings required. Each decision of a hearing examiner or reviewing authority shall set forth a ruling on each finding, conclusion, or exception presented, and shall identify the requirement or requirements imposed by or pursuant to this part with which it is found that the applicant or recipient has failed to comply.

(e) Review in certain cases by the Secretary. If the Secretary has not personally made the final decision referred to in paragraphs (a), (b), or (c) of this section, a recipient or applicant or the counsel for the Department may request the Secretary to review a decision of the Reviewing Authority in accordance with rules of procedure issued by the responsible Department official. Such review is not a matter of right and shall be granted only where the Secretary determines there are special and important reasons therefor. The Secretary may grant or deny such request, in whole or in part. He may also review such a decision upon his own motion in accordance with rules of procedure issued by the responsible Department official. In the absence of a review under this paragraph, a final decision referred to in paragraphs (a), (b), (c) of this section shall become the final decision of the Department when the Secretary transmits it as such to Congressional committees with the report required under section 602 of the Act. Failure of an applicant or recipient to file an exception with the Reviewing Authority or to request review under this paragraph shall not be deemed a failure to exhaust administrative remedies for the purpose of obtaining judicial review.

(f) Content of orders. The final decision may provide for suspension or termination of, or refusal to grant or continue Federal financial assistance, in whole or in part, to which this regulation applies, and may contain such terms, conditions, and other provisions as are consistent with and will effectuate the purposes of the Act and this regulation, including provisions designed to assure that no Federal financial assistance to which this regulation applies will thereafter be extended under such law or laws to the applicant or recipient determined by such decision to be in default in its performance of an assurance given by it pursuant to this regulation, or to have otherwise failed to comply with this regulation unless and until it corrects its noncompliance and satisfies the responsible Department official that it will fully comply with this regulation.

(g) Post-termination proceedings. (1) An applicant or recipient adversely affected by an order issued under paragraph (f) of this section shall be restored to full eligibility to receive Federal financial assistance if it satisfies the terms and conditions of that order for such eligibility or if it brings itself into compliance with this part and provides reasonable assurance that it will fully comply with this part. An elementary or secondary school or school system which is unable to file an assurance of compliance with § 100.3 shall be restored to full eligibility to receive Federal financial assistance, if it files a court order or a plan for desegregation which meets the requirements of § 100.4(c), and provides reasonable assurance that it will comply with the court order or plan.

(2) Any applicant or recipient adversely affected by an order entered pursuant to paragraph (f) of this section may at any time request the responsible Department official to restore fully its eligibility to receive Federal financial assistance. Any such request shall be supported by information showing that the applicant or recipient has met the requirements of paragraph (g)(1) of this section. If the responsible Department official determines that those requirements have been satisfied, he shall restore such eligibility.

(3) If the responsible Department official denies any such request, the applicant or recipient may submit a request for a hearing in writing, specifying why it believes such official to have been in error. It shall thereupon be given an expeditious hearing, with a decision on the record, in accordance with rules of procedure issued by the responsible Department official. The applicant or recipient will be restored to such eligibility if it proves at such hearing that it satisfied the requirements of paragraph (g)(1) of this section. While proceedings under this paragraph are pending, the sanctions imposed by the order issued under paragraph (f) of this section shall remain in effect.

(Authority: Sec. 602, Civil Rights Act of 1964; 78 Stat. 252; 42 U.S.C. 2000d-1)
§ 100.11 Judicial review.
Action taken pursuant to section 602 of the Act is subject to judicial review as provided in section 603 of the Act.

(Authority: Sec. 603, 78 Stat. 253; 42 U.S.C. 2000d-2)
§ 100.12 Effect on other regulations; forms and instructions.
(a) Effect on other regulations. All regulations, orders, or like directions heretofore issued by any officer of the Department which impose requirements designed to prohibit any discrimination against individuals on the ground of race, color, or national origin under any program to which this regulation applies, and which authorize the suspension or termination of or refusal to grant or to continue Federal financial assistance to any applicant for or recipient of assistance for failure to comply with such requirements, are hereby superseded to the extent that such discrimination is prohibited by this regulation, except that nothing in this regulation shall be deemed to relieve any person of any obligation assumed or imposed under any such superseded regulation, order, instruction, or like direction prior to the effective date of this regulation. Nothing in this regulation, however, shall be deemed to supersede any of the following (including future amendments thereof):

(1) Executive Order 11063 and regulations issued thereunder, or any other regulations or instructions, insofar as such Order, regulations, or instructions prohibit discrimination on the ground of race, color, or national origin in any program or situation to which this regulation is inapplicable, or prohibit discrimination on any other ground; or

(2) Requirements for Emergency School Assistance as published in 35 FR 13442 and codified as 34 CFR, part 280.

(b) Forms and instructions. The responsible Department official shall issue and promptly make available to interested persons forms and detailed instructions and procedures for effectuating this part.

(c) Supervision and coordination. The responsible Department official may from time to time assign to officials of the Department, or to officials of other departments or agencies of the Government with the consent of such departments or agencies, responsibilities in connection with the effectuation of the purposes of title VI of the Act and this regulation (other than responsibility for review as provided in § 100.10(e)), including the achievements of effective coordination and maximum uniformity within the Department and within the Executive Branch of the Government in the application of title VI and this regulation to similar programs and in similar situations. Any action taken, determination made, or requirement imposed by an official of another Department or Agency acting pursuant to an assignment of responsibility under this section shall have the same effect as though such action had been taken by the responsible official of this Department.

(Authority: Sec. 602, Civil Rights Act of 1964; 78 Stat. 252; 42 U.S.C. 2000d-1)
§ 100.13 Definitions.
As used in this part:

(a) The term Department means the Department of Education.

(b) The term Secretary means the Secretary of Education.

(c) The term responsible Department official means the Secretary or, to the extent of any delegation by the Secretary of authority to act in his stead under any one or more provisions of this part, any person or persons to whom the Secretary has heretofore delegated, or to whom the Secretary may hereafter delegate such authority.

(d) The term reviewing authority means the Secretary, or any person or persons (including a board or other body specially created for that purpose and also including the responsible Department official) acting pursuant to authority delegated by the Secretary to carry out responsibilities under § 100.10(a)-(d).

(e) The term United States means the States of the United States, the District of Columbia, Puerto Rico, the Virgin Islands, American Samoa, Guam, Wake Island, the Canal Zone, and the territories and possessions of the United States, and the term "State" means any one of the foregoing.

(f) The term Federal financial assistance includes (1) grants and loans of Federal funds, (2) the grant or donation of Federal property and interests in property, (3) the detail of Federal personnel, (4) the sale and lease of, and the permission to use (on other than a casual or transient basis), Federal property or any interest in such property without consideration or at a nominal consideration, or at a consideration which is reduced for the purpose of assisting the recipient, or in recognition of the public interest to be served by such sale or lease to the recipient, and (5) any Federal agreement, arrangement, or other contract which has as one of its purposes the provision of assistance.

(g) The term program or activity and the term program mean all of the operations of-

(1)(i) A department, agency, special purpose district, or other instrumentality of a State or of a local government; or

(ii) The entity of such State or local government that distributes such assistance and each such department or agency (and each other State or local government entity) to which the assistance is extended, in the case of assistance to a State or local government;

(2)(i) A college, university, or other postsecondary institution, or a public system of higher education; or

(ii) A local educational agency (as defined in 20 U.S.C. 8801), system of vocational education, or other school system;

(3)(i) An entire corporation, partnership, or other private organization, or an entire sole proprietorship-

(A) If assistance is extended to such corporation, partnership, private organization, or sole proprietorship as a whole; or

(B) Which is principally engaged in the business of providing education, health care, housing, social services, or parks and recreation; or

(ii) The entire plant or other comparable, geographically separate facility to which Federal financial assistance is extended, in the case of any other corporation, partnership, private organization, or sole proprietorship; or

(4) Any other entity that is established by two or more of the entities described in paragraph (g)(1), (2), or (3) of this section; any part of which is extended Federal financial assistance.

(Authority: 42 U.S.C. 2000d-4)

(h) The term facility includes all or any portion of structures, equipment, or other real or personal property or interests therein, and the provision of facilities includes the construction, expansion, renovation, remodeling, alteration or acquisition of facilities.

(i) The term recipient means any State, political subdivision of any State, or instrumentality of any State or political subdivision, any public or private agency, institution, or organization, or other entity, or any individual, in any State, to whom Federal financial assistance is extended, directly or through another recipient, including any successor, assign, or transferee thereof, but such term does not include any ultimate beneficiary.

(j) The term primary recipient means any recipient which is authorized or required to extend Federal financial assistance to another recipient.

(k) The term applicant means one who submits an application, request, or plan required to be approved by a Department official, or by a primary recipient, as a condition to eligibility for Federal financial assistance, and the term application means such an application, request, or plan.

(Authority: Sec. 602, Civil Rights Act of 1964; 78 Stat. 252; 42 U.S.C. 2000d-1)

APPENDIX A TO PART 100 -- FEDERAL FINANCIAL ASSISTANCE TO WHICH THESE REGULATIONS APPLY

Part 1 -Assistance Other Than Continuing Assistance to States

1. Loans for acquisition of equipment for academic subjects, and for minor remodeling (20 U.S.C. 445).

2. Construction of facilities for institutions of higher education (20 U.S.C. 701-758).

3. School Construction in federally-affected and in major disaster areas (20 U.S.C. 631-647).

4. Construction of educational broadcast facilities (47 U.S.C. 390-399).

5. Loan service of captioned films and educational media; research on, and production and distribution of, educational media for the handicapped, and training of persons in the use of such media for the handicapped (20 U.S.C. 1452).

6. Demonstration residential vocational education schools (20 U.S.C. 1321).

7. Research and related activities in education of handicapped children (20 U.S.C. 1441).

8. Educational research, dissemination and demonstration projects; research training; and construction under the Cooperation Research Act (20 U.S.C. 331-332(b)).

9. Research in teaching modern foreign languages (20 U.S.C. 512).

10. Training projects for manpower development and training (42 U.S.C. 2601, 2602, 2610a-2610c).

11. Research and training projects in Vocational Education (20 U.S.C. 1281(a), 1282-1284).

12. Allowances to institutions training NDEA graduate fellows (20 U.S.C. 461-465).

13. Grants for training in librarianship (20 U.S.C. 1031-1033).

14. Grants for training personnel for the education of handicapped children (20 U.S.C. 1431).

15. Allowances for institutions training teachers and related educational personnel in elementary and secondary education, or post-secondary vocational education (20 U.S.C. 1111-1118).

16. Recruitment, enrollment, training and assignment of Teacher Corps personnel (20 U.S.C. 1101-1107a).

17. Operation and maintenance of schools in Federally-affected and in major disaster areas (20 U.S.C. 236-241; 241-1; 242-244).

18. Grants or contracts for the operation of training institutes for elementary or secondary school personnel to deal with special educational problems occasioned by desegregation (42 U.S.C. 2000c-3).

19. Grants for in-service training of teachers and other schools personnel and employment of specialists in desegregation problems (42 U.S.C. 2000c-4).

20. Higher education students loan program (Title II, National Defense Education Act, 20 U.S.C. 421-429).

21. Educational Opportunity grants and assistance for State and private programs of low-interest insured loans and State loans to students in institutions of higher education (Title IV, Higher Education Act of 1965, 20 U.S.C. 1061-1087).

22. Grants and contracts for the conduct of Talent Search, Upward Bound, and Special Services Programs (20 U.S.C. 1068).

23. Land-grant college aid (7 U.S.C. 301-308; 321-326; 328-331).

24. Language and area centers (Title VI, National Defense Education Act, 20 U.S.C. 511).

25. American Printing House for the Blind (20 U.S.C. 101-105).

26. Future Farmers of America (36 U.S.C. 271-391) and similar programs.

27. Science clubs (Pub. L. 85-875, 20 U.S.C. 2, note).

28. Howard University (20 U.S.C. 121-129).

29. Gallaudet College (31 D.C. Code, Chapter 10).

30. Establishment and operation of a model secondary school for the deaf by Gallaudet College (31 D.C. Code 1051-1053; 80 Stat. 1027-1028).

31. Faculty development programs, workshops and institutes (20 U.S.C. 1131-1132).

32. National Technical Institute for the Deaf (20 U.S.C. 681-685).

33. Institutes and other programs for training educational personnel (parts D, E, and F, Title V, Higher Education Act of 1965) (20 U.S.C. 1119-1119c-4).

34. Grants and contracts for research and demonstration projects in librarianship (20 U.S.C. 1034).

35. Acquisition of college library resources (20 U.S.C. 1021-1028).

36. Grants for strengthening developing institutions of higher education (20 U.S.C. 1051-1054); National Fellowships for teaching at developing institutions (20 U.S.C. 1055), and grants to retired professors to teach at developing institutions (20 U.S.C. 1056).

37. College Work-Study Program (42 U.S.C. 2751-2757).

38. Financial assistance for acquisition of higher education equipment, and minor remodeling (20 U.S.C. 1121-1129).

39. Grants for special experimental demonstration projects and teacher training in adult education (20 U.S.C. 1208).

40. Grant programs for advanced and undergraduate international studies (20 U.S.C. 1171-1176; 22 U.S.C. 2452(b)).

41. Experimental projects for developing State leadership or establishment of special services (20 U.S.C. 865).

42. Grants to and arrangements with State educational and other agencies to meet special educational needs of migratory children of migratory agricultural workers (20 U.S.C. 241e(c)).

43. Grants by the Secretary to local educational agencies for supplementary educational centers and services; guidance, counseling, and testing (20 U.S.C. 841-844; 844b).

44. Resource centers for improvement of education of handicapped children (20 U.S.C. 1421) and centers and services for deaf-blind children (20 U.S.C. 1422).

45. Recruitment of personnel and dissemination of information on education of handicapped (20 U.S.C. 1433).

46. Grants for research and demonstrations relating to physical education or recreation for handicapped children (20 U.S.C. 1442) and training of physical educators and recreation personnel (20 U.S.C. 1434).

47. Dropout prevention projects (20 U.S.C. 887).

48. Bilingual education programs (20 U.S.C. 880b-880b-6).

49. Grants to agencies and organizations for Cuban refugees (22 U.S.C. 2601(b)(4)).

50. Grants and contracts for special programs for children with specific learning disabilities including research and related activities, training and operating model centers (20 U.S.C. 1461).

51. Curriculum development in vocational and technical education (20 U.S.C. 1391).

52. Establishment, including construction, and operation of a National Center on Educational Media and Materials for the Handicapped (20 U.S.C. 1453).

53. Grants and contracts for the development and operation of experimental preschool and early education programs for handicapped (20 U.S.C. 1423).

54. Grants to public or private non-profit agencies to carry on the Follow Through Program in kindergarten and elementary schools (42 U.S.C. 2809 (a)(2)).

55. Grants for programs of cooperative education and grants and contracts for training and research in cooperative education (20 U.S.C. 1087a-1087c).

56. Grants and contracts to encourage the sharing of college facilities and resources (network for knowledge) (20 U.S.C. 1133- 1133b).

57. Grants, contracts, and fellowships to improve programs preparing persons for public service and to attract students to public service (20 U.S.C. 1134-1134b).

58. Grants for the improvement of graduate programs (20 U.S.C. 1135-1135c).

59. Contracts for expanding and improving law school clinical experience programs (20 U.S.C. 1136-1136b).

60. Exemplary programs and projects in vocational education (20 U.S.C. 1301-1305).

61. Grants to reduce borrowing cost for construction of residential schools and dormitories (20 U.S.C. 1323).

62. Surplus real and related personal property disposal for educational purposes (40 U.S.C. 484(k)).
Part 2 - Continuing Assistance to States
1. Grants to States for public library service and construction, interlibrary cooperation and specialized State library services for certain State institutions and the physically handicapped (20 U.S.C. 351-355).

2. Grants to States for strengthening instruction in academic subjects (20 U.S.C. 441-444).

3. Grants to States for vocational education (20 U.S.C. 1241-1264).

4. Arrangements with State education agencies for training under the Manpower Development and Training Act (42 U.S.C. 2601-2602, 2610a).

5. Grants to States to assist in the elementary and secondary education of children of low-income families (20 U.S.C. 241a-242m).

6. Grants to States to provide for school library resources, textbooks and other instructional materials for pupils and teachers in elementary and secondary schools (20 U.S.C. 821-827).

7. Grants to States to strengthen State departments of education (20 U.S.C. 861-870).

8. Grants to States for community service programs (20 U.S.C. 1001-1011).

9. Grants to States for adult basic education and related research, teacher training and special projects (20 U.S.C. 1201-1211).

10. Grants to States educational agencies for supplementary educational centers and services, and guidance, counseling and testing (20 U.S.C. 841-847).

11. Grants to States for research and training in vocational education (20 U.S.C. 1281(b)).

12. Grants to States for exemplary programs and projects in vocational education (20 U.S.C. 1301-1305).

13. Grants to States for residential vocational education schools (20 U.S.C. 1321).

14. Grants to States for consumer and homemaking education (20 U.S.C. 1341).

15. Grants to States for cooperative vocational educational program (20 U.S.C. 1351-1355).

16. Grants to States for vocational work-study programs (20 U.S.C. 1371-1374).

17. Grants to States to attract and qualify teachers to meet critical teaching shortages (20 U.S.C. 1108-1110c).

18. Grants to States for education of handicapped children (20 U.S.C. 1411-1414).

19. Grants for administration of State plans and for comprehensive planning to determine construction needs of institutions of higher education (20 U.S.C. 715(b)).

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civil rights; national origin discrimination; racial discrimination; employment discrimination; limited english proficient; english (second language);

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Notice to Readers] TITLE 34-EDUCATION SUBTITLE B-REGULATIONS OF THE OFFICES OF THE DEPARTMENT OF EDUCATION CHAPTER 1-OFFICE FOR CIVIL RIGHTS, DEPARTMENT OF EDUCATION PART 100-NONDISCRIMINATION UNDER PROGRAMS RECEIVING FEDERAL ASSISTANCE THROUGH THE DEPARTMENT OF EDUCATION EFFECTUATION OF TITLE VI OF THE CIVIL RIGHTS ACT OF 1964 Sec. 100.1 Purpose.

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Texas House Bill 588 of 1998; HB 588 (1998)

Many local educational institutions in Texas have adopted the Texas Ten Percent plan or the TTP. This plan guarantees high school students in the top 10% of their class admission into a Texas public collegiate institution despite any factors. For students who do not make the top 10%, according to this plan, they may be considered on the basis of their academics and other factors which may include race.

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The Texas Ten Percent Plan (TTP) provides students in the top 10 percent of their high-school class with automatic admission to any public university in the state, including the two flagship schools, the University of Texas at Austin and Texas A&M. Texas created the policy in 1997 after a federal appellate court ruled, in Hopwood v. Texas, that the state's previous affirmative-action system based on racial preferences was unconstitutional. Through the TTP Plan, the state sought to maintain diversity in its most-competitive public universities in a race-neutral way. The program soon became the model for similar policies in Florida and California.

Percent plans in Texas and elsewhere have sparked considerable controversy. Some critics allege that they force the most-selective public colleges to admit underprepared students from low-performing schools and to deny admission to better-prepared students; others complain that they don't do enough to promote diversity. After the Supreme Court upheld some forms of race-conscious affirmative action in 2003, UT-Austin quickly reinstated racial preferences in admissions, triggering a challenge that led to the Supreme Court's most recent affirmative-action case. In Fisher v. University of Texas at Austin, the Supreme Court in 2013 directed a lower court to consider whether the school's use of racial preferences is essential to yield sufficient diversity in its student body. The key question the court must address: whether race-neutral methods, such as TTP, could accomplish the same goal. Often lost in the debate over these policies is a more basic question: do they benefit the students who receive automatic admissions? Given their academic accomplishments, many of the students who gain admission under a percent plan may have been admitted to selective universities in the absence of the plan. But the number of students admitted under such plans has increased over time in Texas, suggesting that the programs have in fact had a sizable effect on enrollments. Additionally, percent plans may not just affect whether students apply to and attend college, but where they apply and matriculate. In this study, we examine the effect of being eligible for automatic admission under the Texas Ten Percent Plan. We compare students in a large urban school district who just made it into their high-school's top 10 percent to students who just missed the cutoff. We find that eligibility for automatic admissions under the TTP Plan increases the likelihood that students enroll at a flagship Texas university by at least 60 percent. This increase in flagship enrollment displaces enrollment in private universities, however, and therefore has no effect on overall college enrollment or on the quality of college attended. The effects on flagship enrollment are only observed in high schools that send many of their graduates to college, suggesting that automatic admission may have little effect on the college choices of students in the state's most-disadvantaged schools. The Texas Plan

The TTP Plan requires that students who are ranked in the top 10 percent of their class be admitted to the Texas public college of their choice. The state grants flexibility to districts in how they choose to calculate grade-point average (GPA) and class rank. To receive automatic admission, students must provide a transcript, along with their application, that verifies that their class rank falls within the top 10 percent. They must also take either the SAT or the ACT, although for students in the top 10 percent of their high-school class, these tests are not used for admissions decisions. For students not in the top 10 percent of their high-school class, admissions decisions are based on standard criteria, including GPA and class rank, admissions test scores, and nonacademic factors such as personal statements and extracurricular activities. Following the Supreme Court's 2003 Grutter v. Bollinger decision upholding limited affirmative-action policies in use at the University of Michigan law school, the UT-Austin (but not Texas A&M) reinstated race-conscious affirmative action. The aggressiveness of the new affirmative-action policy, however, is unclear. We are not aware of any research that examines the true extent to which racial preferences are used in the post- Grutter era. Data The data for our study come from an unnamed large urban school district in Texas. We focus our analysis on 17,057 graduates from the 2002 through 2008 graduating classes. For each of these students, we have information on demographics, high school attendance, courses taken and grades received each semester, exit-exam scores, and whether they graduated. Our data do not include the students' class ranks, so we construct them ourselves following the procedure used by the district. First, we compute cumulative GPA at a given point in time using grades received in courses taken up to that juncture. Second, we rank students within their schools based on cumulative GPA to determine absolute class rank. Finally, we calculate the percentile class rank by dividing absolute class rank by the number of students in a school with a valid cumulative GPA. Our main analysis uses the class rank at the end of 11th grade, which is the criterion most commonly used for automatic admission to UT-Austin and Texas A&M. Our information on college enrollment comes from the National Student Clearinghouse (NSC), a nonprofit organization that is now the nation's leading source for postsecondary degree and enrollment verification. The NSC data include, for each semester, observations for each NSC-reporting institution that a student attends, including date of enrollment and completion. We supplement the NSC data with additional information on the institutions students attend from the federal government's Integrated Postsecondary Education Data System (IPEDS), including whether the institution is public or private and where it is located. The IPEDS data also enable us to construct measures of college "quality" and cost. Our first quality measure is the Barron's ranking of how competitive admission is at a particular college, which is available from the National Center for Education Statistics. A second measure of quality is the fraction of applicants who are admitted. We measure cost using the tuition "sticker price" that students face at a particular institution. This is only a proxy for the actual tuition students will have to pay, since many of the students in our sample come from disadvantaged backgrounds and would qualify for substantial financial aid. Nonetheless, because selective institutions generally charge a higher price, tuition provides a general indication of relative school quality. Our data indicate that students in the top 10 percent of their high-school class are more likely to be white and female and less likely to be low-income than their peers (see Figure 1). As expected, students in the top 10 percent are higher-performing across all measures of academic achievement. Students in the top 10 percent are more likely to graduate with a recommended or distinguished diploma, take a college entrance exam, and have much higher high school exit-exam scores than their peers. Fifty-eight percent of students in the top 10 percent enroll in college, compared to just 30 percent of students districtwide, but only 21 percent of the top 10 percent enroll in a Texas flagship (see Figure 2). Methods Our goal is to study the effect of being eligible for automatic admission to the Texas public universities via membership in the top 10 percent of one's high-school class. The challenge we face is that TTP-eligible and -ineligible students are obviously quite different, most importantly in terms of academic performance. To measure the effect of being in the top 10 percent, we use an approach that mimics random assignment into the top 10 percent. Specifically, our regression discontinuity research design compares the outcomes of students whose class rank is just above or below the cutoff. As long as students cannot exert complete control over their exact class rank, students on either side of the threshold should be similar in all respects other than whether they are in the top 10 percent. The primary threat to this research design would be if students eager to attend a flagship institution were able to manipulate their class rank in order to end up just above the 10 percent cutoff. Although students may alter the mix of courses they take and petition for better grades in order to increase their chances of being in the top 10 percent of their class, course performance is at least somewhat uncertain and students are unlikely to have precise information about the GPAs of their classmates. This makes it unlikely that students can manipulate their class rank with enough precision to bias our results. Although eligibility for automatic admission to the Texas public universities is the most noteworthy consequence of being in the top 10 percent, the policy in place in Texas during this time included outreach efforts by the flagships that targeted students in or near the top 10 percent, especially at schools that serve large numbers of disadvantaged students. This outreach may have had independent effects on college enrollment by, for instance, increasing information about college. As such, our results should be interpreted as reflecting the combined effect of automatic admission and the outreach efforts that are part of the TTP Plan. In addition, our results are specific to students near the eligibility cutoff. In other words, they may not tell us what effect automatic admission would have for students far below or above the 10 percent cutoff. Even so, the effect of the TTP Plan on college outcomes near the eligibility cutoff has considerable policy relevance. The controversy surrounding the plan largely stems from the perception that the law lets "underqualified" students gain admission to the state's most-selective public universities. Our estimates shed light on the plan's impact on students for whom this claim is most likely to be relevant: students admitted under the plan in a relatively low-performing urban district. Moreover, our results are informative about the likely consequences of any changes in the TTP cutoff, such as UT-Austin's fall 2011 decision to limit automatic admissions to 75 percent of the entering class. Results We first examine the effect of TTP on college enrollment and college choice in the fall following graduation from high school. Only about 9 percent of students who just miss being in the top 10 percent enroll in a flagship. We find that barely securing membership in the top 10 percent increases flagship enrollment by at least 5 percentage points, with positive effects at both UT-Austin and Texas A&M (see Figure 3). This result implies that program eligibility increases the likelihood of flagship enrollment by almost 60 percent, a very large effect. But does this effect on flagship enrollment translate into an overall increase in the likelihood of enrolling in college? We find no evidence that this is the case, suggesting that increased flagship enrollment must be displacing enrollment at some other type of institution. One possibility is that students who enrolled in a flagship because they were eligible for automatic admission would have gone to another university had they missed it. And, indeed, we find that program eligibility sharply reduces enrollment at private or out-of-state colleges. Next, we examine whether TTP status affects the quality of the colleges students attend. This is important, because the plan is designed to improve access to elite universities by guaranteeing access to the state's flagship institutions. Also, much of the opposition to the TTP Plan centers on the claim that students admitted via the TTP Plan's automatic-admission guarantee will take spots from better-qualified students who are not admitted under the TTP Plan because they attend more-competitive high schools. To examine this issue, we first calculate the effect of eligibility for automatic admission on the probability of enrolling in a college ranked by Barron's as a "most" or "highly" competitive institution. We also use a measure of selectivity defined as the fraction of applicants to a college who were admitted. For both measures, we find no clear evidence that program eligibility increases the quality of institutions students attend. We do find some evidence that TTP eligibility leads to attending colleges with lower tuitions, however, as would be expected if students are attending a public flagship instead of a private college. An important question is whether students who are admitted under the TTP Plan drop out of these highly selective schools at a higher rate than other students. For instance, it may be that students admitted because of TTP are not able to do well in the rigorous academic environment of the flagship universities. However, we found no evidence that being in the top 10 percent affected the likelihood of transferring to a less-selective institution (as measured by the Barron's competitive admissions ratings) or the probability of dropping out of college. Finally, we examine whether our results vary for students from different racial and socioeconomic backgrounds and from high schools that send more and less of their graduates to college. We find no consistent evidence that TTP effects are different for underrepresented minority students than for other students. The effects of program eligibility are the same for black and white students. We do, however, find stronger evidence of TTP effects for students who are not economically disadvantaged than for their low-income peers. When we compare TTP effects at high schools with different college-going rates, we find that the positive effects on flagship enrollment are largest in the schools with relatively high college-going rates (where at least 25 percent of graduates enroll in college in the fall following graduation). At these high schools, being in the top 10 percent increases the flagship enrollment rate by at least 9 percentage points. In contrast, we do not find any evidence of impacts on flagship enrollment for students from high schools with low college-sending rates. When interpreting these results, it is important to remember that even the higher college-sending high schools in the district have relatively low college-sending rates relative to the state as a whole. Nonetheless, eligibility for automatic admission appears to have little effect on college enrollment and choice for the most-disadvantaged urban high schools. Conclusions

The difference in earnings between college graduates and nongraduates has risen in recent decades, and research indicates that attending selective colleges yields a larger economic return than attending less-selective institutions. The benefits of attending a selective college appear to be especially large for lower-income black and Hispanic students. Yet disadvantaged and underrepresented minority students attend selective colleges at far lower rates than do higher-income and white students. Devising strategies to close these gaps has considerable significance for social and economic policy. Yet we find little evidence that the automatic admissions guarantee leads to increases in the quality of the colleges students attend. Instead, the increases in flagship enrollment appear to decrease enrollment at comparably ranked private institutions. Thus, offering eligibility for automatic admission does not appear to increase access to selective colleges in general, even though it increases access to the best public universities in Texas. Our results demonstrate that eligibility for automatic admission does appear to increase enrollment at flagship universities for students in an urban school district that sends relatively few students to college. In particular, we also find these effects for underrepresented minority students. These findings are noteworthy because a key goal of the TTP Plan, and percent plans in general, is to increase access to top public universities for traditionally underserved populations. But the effects on flagship enrollment are concentrated in the district's most-advantaged schools. Indeed, when we calculate effects by the percentage of students at a high school who attend college, we find no evidence of effects on college choice in the schools with the lowest college-sending rates. Although the college-sending rates of the highest-performing high schools in the sample are low relative to Texas as a whole, our findings suggest that offering eligibility for automatic admission may not be effective at accomplishing even the narrow goal of increasing access to the top public universities for students in the most-disadvantaged settings. There are important questions that our paper does not address. Because we use data from an urban school district, our findings may not reflect how automatic admission guarantees affect students in rural or suburban schools. The effects in rural areas are important because the TTP Plan aims to increase geographic diversity at the state's public universities. Likewise, the effects in suburban areas have significance because many of the criticisms about the policy's fairness stem from concerns that it places students in suburban districts at a disadvantage because it is harder for them to get into the top 10 percent. It is nonetheless plausible that the lack of effects on college selectivity that we find may hold in higher-income districts as well, since students in these districts who fall just shy of the top 10 percent likely face fewer informational and financial barriers to enrolling in high-quality colleges absent an automatic admissions guarantee than do students in our sample. Finally, our results cannot speak to the overall effects of instituting the TTP Plan. These effects might include strategic behavior such as choosing less-competitive high schools to make it easier to get the admission guarantee as well as changes in student effort and course-taking behavior. Determining whether these and other unintended consequences of percent plans exist is an important area for future research. In the meantime, our evidence suggests that although the policy clearly increases the number of eligible students who attend Texas's top two universities, the program appears to have simply shifted students from selective private or out-of-state colleges to the two flagship universities. That may have lowered educational costs for eligible students, but it did not enhance the quality of their higher education opportunities. Lindsay Daugherty is associate policy researcher at the RAND Corporation. Paco Martorell is economist at the RAND Corporation and research scholar with the Center for Research on Education Policy at the University of Texas at Dallas's Texas Schools Project. Isaac McFarlin Jr. is assistant research scientist of public policy at the University of Michigan and research scholar with the Center for Research on Education Policy at the University of Texas at Dallas's Texas Schools Project.

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The Texas Ten Percent Plan's Impact on College Enrollment

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The Texas Ten Percent Plan (TTP) provides students in the top 10 percent of their high-school class with automatic admission to any public university in the state, including the two flagship schools, the University of Texas at Austin and Texas A&M. Texas created the policy in 1997 after a federal appellate court ruled, in Hopwood v.

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Grutter v. Bollinger, 2003; Grutter v. Bollinger, 539 U.S. §306 (2003)

This case arose when a student from the University of Michigan Law School alleged that she experienced discrimination in her admissions process when the school geared its attention more towards minority groups. The potential student argued that the school’s involvement in affirmative action ruined her chances of being accepted into the school. The Supreme Court ruled that a school who chooses to focus on minority groups in its admissions process does not violate the Fourteenth Amendment’s Equal Protection Clause as long as it takes into consideration other factors that validates the students’ qualifications.

LINK: http://cdn.loc.gov/service/ll/usrep/usrep539/usrep539306/usrep539306.pdf

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Welcome to our first annual training on cultural competence for educators as we discuss the effects that race has on college admissions for our students of color. Today we are joined by K-12 educators and administrators from each school in our district, and college admission representatives from a few of our local colleges.  As the superintendent of the district, it is my job to ensure that you all are executing a fair educational experience that prepares our marginalized population of students for their college admissions process. In my own educational experience, I was in AVID courses which are to prepare students for college, and I also took dual credit classes which afforded me actual college credits towards a college degree, but despite this preparation, I experienced bias in my collegiate admissions process. Many of our students experience this on a yearly basis. According to a report released by Georgetown University’s Center on Education and the Workforce, it has been found, “that admission practices and inequality in state education funding are creating two separate and unequal tracks to public colleges and universities” (Smith, 2018, para. 1). Many of us are aware of the breach of fairness that students of color experience in the process of being admitted into colleges, but not many of us know the laws that are against this breach.  Unfortunately, the Supreme Court has not discussed how lower courts should judge the feasibility of non-race focused methods which are usually extremely varied and complex settings. The Supreme Court generally  “take[s] account of a university’s experience and expertise in adopting or rejecting certain admissions processes” (pg. 3). They tend to make it the university's obligation to demonstrate their policies, and the makes it the Judiciary’s obligation to determine the admissions process. In other words, lower courts generally defer to college and university experts and administrators when considering these complex decisions but retain great discretion to make their own judgments on whether nonracial strategies would even work (Espinosa, Gaertner, & Orfield, 2015).  It is each of our jobs to prepare students for their futures after they leave our classrooms; that preparation begins when your students walk into your kindergarten classrooms and it continues until they graduate from high school. The purpose of this training is to provide education representatives with the appropriate information, knowledge of the laws that protect you and your students, and an all-around better understanding of your position of ensuring that each one of your students experience fairness in their college preparatory futures.

Espinosa, L.L., Gaertner, M.N., & Orfield, G. (2015). Race, class, and college access.  American Council on Education. Retrieved from https://www.acenet.edu/Documents/Race-Class-and-College-Access-Achieving-Diversity-in-a-Shifting-Legal-Landscape.pdf

Smith, A.A. (2018). Racial inequality in college enrollment patterns. Inside Higher Ed. Retrieved from https://www.insidehighered.com/quicktakes/2018/11/14/racial-inequality-college-enrollment-patterns

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I experienced this crude, sometimes unintentional, bias when I applied to attend my now Alma mater. In the process, the admissions coach that was assigned to my application made three comments that set the tone to a negative collegiate start: The education department may be too much for a first generation student, especially being that you will be one of only three students of color. You may need to start with lower level courses since no one in your family has gone to college before and your chances of dropping out are higher. Your experience here will be somewhat of a challenge because of your background. I was appalled, disgusted and I felt alone. This counselor did not take into consider the fact that I had graduated high school with a 3.8 GPA on a four point scale, or that I was entering my freshmen year with college credits, or that many members of my extended family had already attended and graduated from college; all she could see was her own biases. My collegiate experiences and the experiences that many students continue to face today while working to earn their education led me to speak with a fellow educator about his experience as not only a teacher to many students of color, but his own collegiate experiences as well.