New School Racial Accommodation Guidance Gives Important Insights For Schools & Other Organizations On Obama Administration Affirmative Action Enforcement

Race One Of Many Enforcement Priorities On Administration Agenda

Schools as well as U.S. private businesses and governmental agencies generally should examine two new guidance documents available here detailing what voluntary affirmative action and racial integration options that the Obama Administration views current law as allowing jointly released by the Departments of Justice and Education on December 2, 2011 for insights into the Administration’s affirmative action and race discrimination agenda.

The guidance withdraws and replaces Bush Administration Guidance with the legal standards that the Obama Administration for voluntary affirmative action in the schools under the Equal Protection Clause of the Fourteenth Amendment and Titles IV and VI of the Civil Rights Act of 1964 as construed by the Obama Administration.  Not unexpectedly, the Obama Administration views the allowable and desirable voluntary affirmative actions to be significantly more expansive than the Bush Administration policy previously recognized.

Although the two documents– one for school districts and one for colleges and universities specifically relate to voluntary affirmative action efforts in schools, it shows important insights for both schools and other business and government organizations about the Obama Administration’s perspectives on affirmative action. 

The guidance specifically addressed the consideration of race by educational institutions is primarily based on three Supreme Court decisions, Parents Involved in Community Schools v. Seattle School District No. 1,  Grutter v. Bollinger and Gratz v. Bollinger..   It makes clear that the Obama Administration believes educators can permissibly – and are expected by the Administration to consider the race of students in carefully constructed plans to promote diversity or, in K-12 education, to reduce “racial isolation.” 

The guidance also gives many examples of options that the Obama Administration says  schools and postsecondary institutions can consider to further diversity or reduce racial isolation.  Among other options, the guidance for K-12 schools discusses school and program site selection, drawing school attendance boundaries, grade realignment and restructuring feeder patterns, among other options.  The guidance for postsecondary institutions describes how race can be taken into account in admissions, in pipeline programs, in recruitment, and in mentoring, tutoring, retention and support programs as efforts to achieve diversity.

The new policy is part of a ongoing series of guidance and enforcement actions by the Obama Administration which expand expectations and enforcement of racial and other federal discrimination laws In light of the rising risks of enforcement, U.S. school and other agencies, as well as private businesses should act to control their exposure by reviewing, updating and strengthening their policies, practices and workforce and vendor training to minimize the risks and costs of paying discrimination judgments and defending discrimination investigations, charges or lawsuits brought by private plaintiffs, the Justice Department or other federal regulators or both.

Enforcing federal race and other discrimination laws is a high priority of the Obama Administration.   Business and government agency leaders increasingly recognize the need to tighten procedures to manage these discrimination risks.

The new policies and other recent regulatory and enforcement actions should alert private businesses and state and local government agencies that they should exercise special care to prepare to defend their actions against potential disability or other Civil Rights discrimination challenges.  All organizations, whether public or private need to ensure both that their organizations, their policies, and people in form and in action understand and comply with current federal nondiscrimination laws and that these compliance activities are well-documented to facilite defense against potential challenges.  When reviewing these responsibilities, many state and local governments and private businesses may need to update their understanding of current requirements.  The scope and applicability of  federal nondiscrimination and other laws have been expanded or modified in recent years by the differences in perspectives of the Obama Administration from the Bush Administration, as well as statutory, regulatory, judicial precendent and enforcement changes 

For Help With Compliance & Risk Management and Defense

If you need help in auditing or assessing, updating or defending your organization’s compliance, risk manage or other  internal controls practices or actions, please contact the author of this update, attorney Cynthia Marcotte Stamer here or at (469)767-8872.

Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization, management attorney and consultant Ms. Stamer is nationally and internationally recognized for more than 24 years of work helping private and governmental organizations and their management; employee benefit plans and their sponsors, administrators, fiduciaries; employee leasing, recruiting, staffing and other professional employment organizations; schools and other governmental agencies and others design, administer and defend innovative compliance, risk management, worforce, compensation, employee benefit, privacy, procurement and other management policies and practices. Her experience includes extensive work helping employers implement, audit, manage and defend union-management relations, wage and hour, discrimination and other labor and employment laws, procurement, conflict of interest, discrimination managment, privacy and data security, internal investigation and discipline and other workforce and internal controls policies, procedures and actions.  The Chair of the American Bar Association (ABA) RPTE Employee Benefits & Other Compensation Committee, a Council Representative on the ABA Joint Committee on Employee Benefits, Government Affairs Committee Legislative Chair for the Dallas Human Resources Management Association, and past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, Ms. Stamer works, publishes and speaks extensively on management, reengineering, investigations, human resources and workforce, employee benefits, compensation, internal controls and risk management, federal sentencing guideline and other enforcement resolution actions, and related matters.  She also is recognized for her publications, industry leadership, workshops and presentations on these and other human resources concerns and regularly speaks and conducts training on these matters. Her insights on these and other matters appear in the Bureau of National Affairs, Spencer Publications, the Wall Street Journal, the Dallas Business Journal, the Houston Business Journal, and many other national and local publications. For additional information about Ms. Stamer and her experience or to access other publications by Ms. Stamer see here or contact Ms. Stamer directly.

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©2011 Cynthia Marcotte Stamer.  Non-exclusive right to republish granted to Solutions Law Press.  All other rights reserved.

About Cynthia Marcotte Stamer

Management attorney and operations consultant Cynthia Marcotte Stamer uses a client objective oriented approach to help businesses, governments, associations and their leaders manage people, performance, risk, legislative and regulatory affairs, data, and other essential elements of their operations.
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