The law dean of the University of St. Thomas has released an open letter to Bob Morse, the head of the college rankings of U.S. News & World Report, objecting to the magazine's decision to declare the law school "unranked." The law school was declined a ranking after it reported that it had provided both accurate and inaccurate data on its job placement rates, and the inaccurate data had been used to rank the school. Thomas M. Mengler, the dean, noted that the magazine typically does not change rankings when errors are discovered after the rankings are released -- even in cases where the information provided was intentionally incorrect. "If the decision to 'unrank' is indeed a change in protocol, this leads to the policy concern I would like to highlight – the fact that your decision will create a disincentive for law schools to promptly report mistaken or erroneous data," Mengler wrote. "When other law schools lied, you called on all law schools to protect the integrity of the data and ultimately the reporting. We did that even for an unintentional mistake. And while we are willing to live with the unfortunate consequences, I fear your decision will serve as a disincentive for others to self-report errors."
Brian Kelly, editor of the magazine, responded with a letter in which he said: "We made this decision for the 2013 law school rankings at a time of continuing conversation about law school data, both inside and outside the academy. Some schools have been accused of publishing inaccurate or misleading data. The American Bar Association is imposing more stringent reporting rules. And at U.S. News our responsibility is to continue to provide timely and relevant information about law schools to our readers, and to make them aware of new developments or changes in information. That is what we did in this case."
It's the time of year that elite colleges and universities report on the shrinking percentage of applicants they admitted this year. The low admission rates aren't actually a surprise, since many of these colleges already announced new records in the number of applicants (and had no plans for significant increases in their class size). The figures from Harvard University tend to attract the most attention because of the very low admit rate (5.9 percent this year). With its prestige and very high yield rate (the percentage of accepted applicants who enroll), Harvard's admit rate tends to be among the lowest most years. Other institutions announcing admissions data this week include Yale University and Williams College. Among the institutions announcing drops in admit rates were Cornell University (16.2 percent, down from 18 percent), Johns Hopkins University (17.7 percent, down from 18.3 percent) and the University of Pennsylvania (12.3 percent, down from 12.4 percent).
Later this year, the Supreme Court will hear arguments in Fisher v. University of Texas. Fisher will be the latest higher education affirmative action case argued before the Court. The timing is curious. Grutter was just decided in 2003. In it, the Supreme Court upheld a race-conscious admissions plan at the University of Michigan Law School. So why are we back here so soon? Why is the Supreme Court set to review a race-conscious admissions plan that aligns so closely with Grutter precedent? The answer to those questions likely lies in Grutter itself, specifically the dissent of Justice Anthony Kennedy.
Justice Kennedy lodged strong objections to the majority’s scrutiny of the admissions plan reviewed in Grutter. The judicial standard for reviewing race-conscious apportionments of public benefits is strict scrutiny. Under strict scrutiny, race-conscious admissions plans at public institutions like the University of Michigan are constitutional only if "they are narrowly tailored to further a compelling governmental interest." So the standard essentially has two exacting requirements: a compelling public interest and a narrowly tailored means of furthering it. One without the other renders the plan in question unconstitutional.
Kennedy has twice affirmed his view that diversity in public education can amount to a compelling public interest. In his Grutter dissent, he references "a university’s compelling interest in a diverse student body." He later extended this view to the K-12 level in Parents Involved in Community Schools. In that case, Kennedy joined with the conservative wing in striking down race-conscious school assignment plans in Louisville and Seattle. But while the other conservative justices declined to deem diversity in K-12 a compelling interest, Kennedy asserted, "Diversity, depending on its meaning and definition, is a compelling educational goal." So, for Kennedy, the race-conscious plans in both Grutter and Parents Involved suffered not from lack of compelling interests, but from lack of narrow tailoring. It is worth nothing that because of the vote split among the justices in Parents Involved, Kennedy’s concurrence is the controlling decision.
But it is his Grutter dissent that gives us the best clue as to why the Supreme Court agreed to hear Fisher. The four dissenting justices were deeply troubled by the degree of deference afforded Michigan Law. Justice Kennedy was so troubled that he wrote a dissent, separate from the one he signed onto with the other conservative justices. He took particular issue with the concept of "critical mass." Critical mass was defined as "a number that encourages underrepresented minority students to participate in the classroom and not feel isolated." Michigan Law argued that critical mass was central to achieving its educational objectives, but it did not identify numbers or percentages that signified having reached such mass. (Critical mass is an important subtext in Fisher because Texas is arguing that the purpose of its consideration of race in admissions is to cure woefully inadequate classroom diversity.) The majority accepted the law school’s definition of critical mass, and deemed constitutional the manners in which it is sought in the admissions process.
The dissenting justices, however, felt that the goal of critical mass was a farce — or as Justice Kennedy termed it, "a delusion." They felt that the admissions plan was actually an unconstitutional quota system. Justice Kennedy, in his separate dissent, argued that certain racial demographic consistencies and correlations demonstrated that the law school sought "numerical goals indistinguishable from quotas." (For example, the dissent highlighted data showing close correlations between the percentages of blacks, Hispanics, and Native Americans in the applicant pool and their corresponding percentages among those admitted.) And while he accepted Michigan Law’s assertion that its educational objectives required diverse students, he felt that the deferential review of the law school’s methods of achieving diversity fell far short of strict scrutiny.
Judicial deference to educational decisions is about as old as U.S. education itself. Often termed academic abstention, courts have historically been loath to question the judgments of professional educators. Thus, colleges and universities enjoy broad autonomy in making decisions deemed "academic" in nature, including those relating to admissions.
But it is on this issue of deference where we could see Fisher diverge from Grutter. The Grutter majority concluded, based on the law school’s descriptions, that the race-conscious admissions process bore "the hallmarks of a narrowly tailored plan." The dissenting justices, however, felt that strict scrutiny required the law school to not only describe the process, but to also provide explanations for outcomes they found suspicious. In addition to the consistencies and correlations Kennedy found troubling, the dissenters took issue with what they deemed differential treatment of different racial groups. They wanted the law school to explain why black applicants were admitted at higher rates than Hispanic applicants. Essentially, they questioned why critical mass seemed to mean different things for different groups. And they chastised the majority for its "unprecedented" deference.
The Supreme Court is a little more conservative today than when Grutter was decided. And given the ideological split, Justice Kennedy will likely cast the deciding vote in Fisher. It is safe to assume that the University of Texas will carry a heavier burden in showing that its consideration of race in admissions passes constitutional muster. But more significantly, Fisher will allow the conservative wing of the Supreme Court to re-do Grutter in a less deferential image.
The district court judge who originally dismissed the Fisher case remarked, "as long as Grutter remains good law, UT’s current admissions program remains constitutional." We will soon see to what extent Grutter will remain good law. And more importantly, we will soon know to what extent, and under what circumstances, public colleges and universities can pursue compelling educational objectives through the use of race-conscious admissions practices.
Aaron N. Taylor is a professor at Saint Louis University School of Law. You can follow him on Twitter at @TheEdLawProf.
Princeton Review is selling the test-prep business around which a larger education business has grown, and is giving the purchaser -- the private equity firm Charlesbank Capital Partners -- its name, the Associated Press reported. Princeton Review was once the upstart in the test-prep business, boasting of teaching test-takers how to outsmart testing companies, but of late has faced competition both from less expensive outfits and from boutique operations. The company will now focus on its Penn Foster division, a for-profit online education provider; it at one point seemed to be an effort to diversify the company's operations, but now appears to be its focus.
A Long Island district attorney on Tuesday announced that the College Board and the ACT had agreed to tighter security measures for those taking the SAT and the ACT. Nassau County authorities have charged 20 people with involvement in schemes in which supposed test-takers paid others to take the SAT for them. Among the new rules:
Test registrants will be required to upload a photograph of themselves when they register for the SAT or ACT. The photo will be printed on admissions tickets and the test site roster, and checked against the photo ID registrants provide at the test center, and the photo will accompany students’ scores as they are reported to high schools and colleges.
Uploaded photos will be retained in a database available to high school and college admissions officials.
All test registrants will be required to identify their high school during registration so that high school administrators receive students’ scores as well as their uploaded photos.
All test registrants will provide their date of birth and gender, which will be printed on the test site roster.
Standby test registration will be eliminated.
Students will certify their identity in writing at the test center, and acknowledge the possibility of a criminal referral and prosecution for engaging in criminal impersonation.
Proctors will check students’ identification more frequently at test centers. IDs will be checked upon entry to the test center, re-entry to the test room after breaks, and upon collection of answer sheets.
Kathleen M. Rice, the Nassau County district attorney, said that "these reforms close a gaping hole in standardized test security that allowed students to cheat and steal admissions offers and scholarship money from kids who played by the rules."
Bob Schaeffer, public education director of the National Center for Fair & Open Testing (a critic of standardized testing), said that the new system "is likely to reduce significantly, if not eliminate entirely, the likelihood of impersonators entering an exam center." But he added that the new measures do "nothing" for "much more common types of cheating: collaboration among students once they are inside the test site or copying answers as the result of wandering eyeballs." He also questioned why the enhanced security rules, which he said were "technically feasible at least a decade ago," were adopted only after the Nassau County investigations.
The number of Law School Admission Tests administered in the last year dropped by 16 percent over one year and 25 percent over two years, The New York Times reported. The drops come amid widespread reports that many law school graduates are having difficulty finding jobs for which law degrees are required, and lawsuits against some law schools for allegedly providing inaccurate job-placement data to prospective students.
"For a long time there has been this culturally embedded perception that if you go to law school, it will be worth the money," Kyle McEntee of Law School Transparency, an organization pushing for more openness about job placement, told the Times. "The idea that law school is an easy ticket to financial security is finally breaking down."
The California State University System will close enrollment on most of its campuses for the spring 2013 semester, eliminating spots for about 16,000 would-be students, because of budget cuts imposed by the state, system officials said Monday. The statements by Robert Turnage, the system's assistant vice chancellor for budget, came in a call with reporters in advance of a trustee meeting later this week. Turnage told reporters that the system would limit enrollment next spring to all but a few hundred students who quality for transfer to one of eight campuses under a recent state law. (The campuses are Channel Islands, Chico, East Bay, Fullerton, Los Angeles, San Francisco, San Bernardino and Sonoma.)
The number of students whose enrollment is blocked could rise to 25,000 in the 2013-14 academic year, Turnage said, depending on the outcome of November ballot measures that seek to raise taxes to supplement the state budget.
Enrolling in college in the United States remains a top goal of students at national high schools in major Chinese cities, according to a new poll by Art & Science Group, which advises American colleges on enrollment strategies. The survey found that nearly all (94 percent) of students at these high schools are interested in college in an English-speaking country, and that 78 percent are interested in enrolling in the United States. Asked to rate the quality of colleges in the United States, Britain and Canada, the Chinese students gave the U.S. the best marks for academic quality, teaching critical thinking, the quality of facilities and prestige. Britain was on top in campus beauty and an emphasis on the liberal arts. (The scores were quite close for most categories.) Asked to identify challenges to study in the United States, 45 percent worried that they might not be academically prepared, 37 percent said that they didn't know enough about American colleges and universities, 28 percent said that they were concerned about their English skills, 25 percent worried about being far from home and 21 percent worried about whether their families could afford it.