Loyal readers of Inside Higher Ed, and especially those who read the comments after its diversity-related articles, know that I don’t like racial preferences. They can -- and should -- read here and here and here how I’ve urged the Supreme Court to rule in Fisher v. University of Texas. They should also make generous year-end donations to the Center for Equal Opportunity, as I’m pretty sure the Supreme Court has already mandated that.
But rather than rehash my views on racial preferences, I thought today I would discuss in broad terms how this issue might play out by giving straight answers and making fearless predictions on a series of questions that are critical to that discussion. Here we go.
How will the Fisher litigation end? The University of Texas will lose. A majority of the Supreme Court will vote against the university, and there won’t be a remand. The decision will be broad enough to make it harder for higher education institutions to continue the use of racial preferences, but alas, it will not foreclose them altogether.
All of that is tentative, of course. It’s possible that the university could win, in a couple of ways. There might be an affirmance of the Fifth Circuit’s decision upholding the institution’s use of racial preferences by an equally divided Supreme Court, if Justice Anthony M. Kennedy decides that he’s sick of the case and votes with the three liberals. (Justice Elena Kagan is recused.) Or there might be a remand for a full trial, and the university might win there, and the inevitable appeal might fail, and the Supreme Court could refuse further review.
On the other hand, it’s also possible that the Supreme Court will not only rule against UT when it hands down its decision but also overturn its unfortunate 5-4 decision in Grutter v. Bollinger in 2003 and declare that racial preferences in college and university admissions are illegal, period. That’s what I’m hoping for.
Barring that happy outcome, however, the end of the Fisher litigation will not mean the end of the struggle. So we have to ask and answer some more questions.
Will lawsuits continue even after Fisher? Of course. Two already have been filed: one against Harvard University and another against the University of North Carolina at Chapel Hill. There will probably be more.
Our side is not going to give up. We really don’t like racial discrimination and what political correctness in all its manifestations is doing to our country.
And the outcome in Fisher cannot possibly result in insulating the use of racial preferences at other colleges and universities from legal challenges. Justice Kagan is recused, remember. The best the left can hope for is a 4-4 vote that will leave the state of the law essentially unchanged.
Who will win the presidential election in 2016? Barring my dream decision in Fisher, that’s what is really important, because it will determine the shape of the judiciary, and in particular the Supreme Court. If a Republican wins, then there’s a good chance that in a few years there will be a majority of justices willing to overturn Grutter. If Hillary Clinton wins, then an overturning of Grutter becomes much less likely for the foreseeable future, once Justices Kennedy, Antonin Scalia and Clarence Thomas are replaced by her appointment of Justices Lani Guinier, Che Guevara and Bill Clinton.
Fortunately, however, our next president will in fact be Marco Rubio, and he will nominate two excellent justices -- replacing Justices Stephen G. Breyer and Ruth Bader Ginsburg with Justices Ted Cruz and Hans von Spakovsky -- whom the Republican-controlled Senate will quickly confirm. President Rubio will also name Donald Trump as U.S. representative to the United Nations, by the way.
Will the public ever accept racial preferences in college and university admissions? No. Of course not. Parents don’t like to see their children treated differently because of their skin color or what country their ancestors came from. That’s not going to change, no matter how unhappy that makes Lee Bollinger or his evil twin, Al Sharpton.
Will college and university officials ever voluntarily renounce racial preferences? No. I mean, are you kidding? Have you seen how these people have reacted to the student protests lately, and then you ask if they are voluntarily going to get rid of racial preferences? Sheesh, what a stupid question.
Will the political process ban racial preferences? It has in some states, and it could in other states. It’s even possible that Congress could ban them -- but that would take a Republican president and strong Republican majorities in both houses, and a spine among Republican politicians heretofore completely lacking when it comes to this issue. So don’t hold your breath.
So, in summary, what are the possible scenarios? The use of racial preferences will end when the Supreme Court rules against them (or if the relevant political bodies ban them).
When that happens, there will still be programs that result in racial and ethnic diversity -- more or less legally (by race-neutral means like top 10 percent plans, aggressive recruiting, ending legacy preferences and the like) and more or less illegally (by admission officials outright cheating or by their smuggling racial considerations into their “holistic” review of applicants). But don’t get me wrong -- there will be much, much less of racial preference if it is driven completely underground in this way, so I’m all for it.
Conversely, the use of racial preferences will continue so long as courts and the political branches allow it. The academic culture is too politically correct for that to change in the foreseeable future.
At oral argument this week -- in addressing the reaction to his carefully wrought opinion saying that colleges and universities had to show that they had tried really, really hard to achieve the educational benefits of diversity without using racial preferences before they could use racial preferences -- Justice Kennedy lamented, “It is as if nothing happened.”
Sorry, Justice Kennedy, but that’s right, and it encapsulates a truth even broader than you might have meant: don’t expect university officials to operate in good faith on this issue. Unless you prohibit racial preferences, their use of race will remain heavy-handed and mechanical. The only way to get the nuanced and highly individualized use of race that you (and Justice Sandra Day O’Connor before you and Justice Lewis F. Powell before her) want is to ban them outright.
It doesn’t matter how unpopular racial preferences are or how ineffective or counterproductive or unfair or stigmatizing or divisive. College and university officials don’t care.
And that’s not a fearless prediction -- that’s just the way it is.
Roger Clegg is president and general counsel of the Center for Equal Opportunity, which opposes racial preferences in university admissions and joined an amicus brief supporting Abigail Fisher and filed by Pacific Legal Foundation.
Today the U.S. Supreme Court again hears oral arguments in Fisher v. University of Texas at Austin. It is a case about one institution’s limited use of race in its rather unique admissions process, but what may be hanging in the balance is the ability of colleges and universities across America to ensure a racially diverse student body and, just as critically, build a diverse faculty.
Many people were surprised to see the Supreme Court take up Fisher once more, after ruling in 2013 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. Whatever the reason for revisiting the case now, the justices will be hearing it against the backdrop of racial tensions in our society and recent protests, demands and discussions at the University of Missouri and other colleges and universities nationwide. This timing underscores higher education institutions’ need for engaged, thoughtful and diverse perspectives that will shape the learning of our students, who, in turn, will shape our nation’s future.
What ought not to be open for debate is the societal value of allowing colleges and universities to construct diverse, inclusive campus environments. As the American Council on Education’s amicus brief recalls, the court has repeatedly recognized the educational value of a diverse student body. While the benefits are paramount in structured settings like college and university campuses, long-term gains for our society and workforce are just as powerful. In today’s diverse world, and in the world that lies ahead of us, the ability to understand and engage with people from a wide variety of backgrounds and perspectives is a necessary skill and a national imperative.
The range of amicus briefs filed in the Supreme Court in Fisher I and II and in the court’s prior consideration of race in admissions reflects this reality. As briefs filed from Fortune 500 businesses, state and federal elected officials, and military leaders argue, higher education’s commitment to ensuring diverse perspectives and engagement across differences is supported by those who work together in corporate boardrooms, scientific laboratories, doctor’s offices and on the battlefield.
Further, and importantly, the outcome of Fisher II won’t just impact student diversity on our nation’s campuses. It could also crimp the pipeline from undergraduate to advanced study for students of color who aspire to the professoriate -- just the opposite of what is needed at a moment when faculty diversity is among the many concerns intensely expressed by students in recent weeks.
Today’s students are tomorrow’s professors, and diversity across America’s professoriate is crucial. After all, who instructs and inspires entering freshmen and transfer students after they arrive on our nation’s campuses? Who advises, coaches, mentors, encourages, challenges, cajoles, counsels and comforts them? A diverse faculty enriches experiences, fosters empathy, cultivates and shares talents and perspectives, and offers unscripted opportunities to open minds and inform thinking.
Some people argue that the consideration of race in admissions is a policy ready for retirement. In fact, in 2003, Justice Sandra Day O’Connor noted that “race-conscious admissions policies must be limited in time,” and the court expected that in 2028 “the use of racial preferences will no longer be necessary” to further an institution’s interests in having an educational environment that benefits from a diverse student body. If the court upholds the consideration of race in 2016, Justice O’Connor’s optimistic time horizon may not be so far off: many of 2028’s college freshmen are kindergartners today. They will emerge from a pool of potential college students that will be the most racially diverse in our history.
Yet to truly ready their campuses for the class of 2028 and the educational benefits that a diverse student and faculty body provides, colleges and universities must have the necessary tools at their disposal today. The consideration of race remains such a vital tool and -- as the research of ACE and others has shown -- this consideration is at its best when used in conjunction with the consideration of other student characteristics, such as family income, academic preparation and life experience.
The bottom line is that colleges and universities require the freedom not only to say but also to act on the tenet that racial diversity matters -- to their students, their faculty and the future of this country.
Peter McDonough is vice president and general counsel of the American Council on Education. Lorelle L. Espinosa is assistant vice president of ACE’s Center for Policy Research and Strategy. ACE represents more than 1,600 college and university presidents and related associations.
Submitted by Josh Logue on December 9, 2015 - 3:00am
Terra State Community College in Ohio settled out of court Tuesday a suit alleging the college violated the Americans With Disabilities Act by dismissing a nursing student with a hearing disability.
Shirley Parrott-Copus, a licensed nurse practicing for 15 years, has “profound sensorineural hearing loss,” per the suit. She attended Terra State for three semesters before being admitted in 2014 to Terra State’s Registered Nurse Degree Program, which offers training for a more advanced nursing qualification. Three weeks in, however, the suit alleges Terra State “rescinded her admission on the basis of disability, failed to provide the auxiliary aids and services necessary for effective communication, failed to make reasonable modifications, and retaliated against her for requesting such auxiliary aids and services.”
Terra State said it did rescind her admission but denied all the other allegations in a court filing. One week later, however, the college made an offer of judgment, which is similar to an out-of-court settlement. The college offered Parrott-Copus $75,000 ($50,000 in damages and $25,000 for her legal fees), which she accepted.
Terra State did not respond to a request for comment.
On Wednesday, the U.S. Supreme Court will hear legal arguments concerning Fisher v. University of Texas at Austin for the second time. This week also marks the end of a challenging semester with student demonstrations about the racial climate happening on campuses across the country. These two developments remind us of the importance of diversity and inclusion on campus -- and the need for colleges and universities to recommit to the hard but essential work of getting it right.
Diversity and inclusion conversations often start with admissions for two reasons. The first is simple: the question of who gets admitted to various colleges and universities is always in the public eye, thanks to the annual crop of anxious, eager applicants and their families. (More than 40 years of Supreme Court cases doesn’t hurt, either.) The second is a bit more subtle: institutions cannot achieve the educational benefits of a diverse student body without an appropriate population of students, and institutions cannot enroll that population of students without a well-designed admissions process.
But colleges and universities have not always been able to explain their admissions processes in a clear, compelling way, particularly for the broader public. Most people outside the admissions fold do not fully understand why certain students are admitted while others are not and how different factors can affect that process at various institutions. Fisher IIpresents one opportunity to shed new light on the practices that colleges and universities use to select their classes.
Explaining various aspects of the admissions process is challenging because there is no precise calculus for arranging a class of students that meets a host of distinct institutional interests, contains only those students who are able to succeed academically and has the strong potential to introduce all students to others from a host of backgrounds and perspectives. As a result, most selective colleges and universities rely on the professional judgment and expertise of their enrollment and admissions professionals to assemble a class using "holistic review" -- a process that emphasizes the student as a whole person.
As competition has grown in selective admissions, this kind of human judgment has become essential so that institutions don’t miss out on students who could be overlooked through mechanical processes that rely only on one or two academic factors. Holistic review helps an institution assess applicants as individuals and create an overall class of students through which it can achieve its mission.
But, like much in higher education admissions, the concept is often misunderstood among the public and policy makers. Part of the problem may be because holistic review is a bit like Thanksgiving dinner: everyone has the same basic purpose and ingredients in mind, but no one puts it together in exactly the same way. In fact, most holistic review models are home grown by the institution's own admissions office and adjusted over time as institutional goals and priorities evolve. Dozens of academic and personal factors play an important role, and some institutions emphasize some characteristics more than others, particularly in the assembly of the class. For example, a public land-grant institution seeks students from across its state; the Massachusetts Institute of Technology looks for special talent in math and science; the University of Notre Dame aims for a significant number of its students to be Catholic.
The holistic review process is structured in a variety of ways, too. Some institutions use committee review, others pair admissions officers to review each application, others use internal and external application reviewers, and many use some combination of these approaches. Institutions also use a variety of software applications and evaluation methods to assess and record admissions decisions.
This variability among institutions, however, also feeds the public perception that selective admissions is a "black box." Students, parents, guidance counselors and others only see the inputs of the process and the end results. And because those end results do not always align with their conception of fairness or merit -- particularly on the small scale of who from a particular high school was and was not admitted -- many believe that holistic review is merely a cover for colleges and universities to judge certain students differently than others. The role that race and ethnicity play in the decision-making process is of special concern.
Institutions may never be able to win a debate with a disgruntled parent about whether a particular applicant should or should not have gotten in, but they can be more transparent about how the admission process works and why they value a variety student backgrounds, experiences and interests -- including but not limited to race and ethnicity.
My own work with many institutions has shown me that the opacity of the admissions process does not mean that they are actively skirting legal requirements. In fact, I've seen several examples of institutions being more cautious about the use of race in admissions decision than the Supreme Court needs them to be. I have found that colleges and universities share a few common principles regarding holistic review. For example, institutions using holistic review assess applicants individually to understand the distinctive abilities, experiences and perspectives that each can bring to campus. To enhance applications and get to know each student better, admissions offices actively encourage students to tell their personal stories. It is impossible to predict exactly what makes any single applicant unique, so institutions must allow themselves to take all facets of a student's background, perspectives and interests into account.
Among the constellation of potential factors, race or ethnicity may enhance how an applicant represents himself or how she explains her perspective on the world. Moreover, race -- like income, geography or parents' education levels -- may also help admissions officers understand the context in which a student has grown up. As a result, for many institutions, holistic review without the option to consider race is not really holistic review.
“Here, OCR found that during the university’s admissions process, an applicant’s race and national origin -- if he or she offered that information -- may or may not be considered, depending upon whether that information provides further context about an individual applicant. For example, an admissions officer might consider how race may have figured in the context of where a person was born, where a person grew up and where he or she had gone to school. Race and national origin may also be considered if an applicant brings up those subjects in his or her essay. However, OCR found no evidence of the university giving an automatic 'plus' for identifying as a particular race or national origin; nor did OCR find evidence of applicants given an automatic 'minus' for belonging to a particular race or national origin. OCR also found no evidence of the university using a fixed formula to weigh an applicant’s race or national origin.”
OCR also noted with approval that Princeton's enrollment leaders and legal counsel annually train the admissions staff on the appropriate use of race in the decision-making process and annually review whether the use of race continues to be necessary to meet Princeton's educational goals. And they have been vocal about the importance that a diverse student body plays in the success of the overall institution and the students it serves. Other institutions should emulate such practices.
In its landmark decision on gay marriage in June, the Supreme Court recognized that “liberties extend to certain personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs.” It is not too much of a stretch to connect this idea with what happens in the admissions process. After all, human identity is made up of constellation of factors; considering all of them enables an admissions decision that is both educationally sound and consistent with federal law. An application process that does not allow for consideration of the full constellation would reduce its respect for the dignity of at least some students who apply.
As the court considers Fisher again, understanding the details of the admissions process and its role in helping institutions achieve their missions will be essential. Of course, the specifics of the admissions process at the University of Texas matter, but it will also be important to show the value of holistic review and how it varies considerably among institutions. More than a hundred colleges, universities and national organizations participated in amicus briefs (available here) to the Supreme Court in this round of Fisherto explain this process in detail, both as a general concept and in its specific application in different institutional contexts.
More broadly, colleges must do a better job of explaining to their key constituencies and the public what holistic review is and how it works, how diversity relates to their mission, and many other fundamental concepts. As part of that, institutional leaders should consider the following questions:
Does the institution define "diversity" clearly and broadly? Does that definition include all student backgrounds, perspectives and interests that it values?
Is the definition clearly reflected in a mission statement, diversity policy statement or other high-level document? Has it been approved by the institution's leadership and faculty?
Does the institution's holistic review process clearly reflect and support that broad definition?
Is that link between the review process and the institution’s diversity policy present in admissions manuals, training materials and communications efforts, both internal and external?
Does the institution work to open the "black box" of holistic review for students, parents and others to the extent feasible?
Do institutional and enrollment leaders speak about admissions successes in terms of meeting diversity goals -- not only average test scores and GPAs?
Do students, faculty, parents, alumni, donors and other constituents understand that their institution's excellence relies in part on the rich diversity that students bring to campus?
Does the institution actively evaluate its success on diversity goals in admissions and on the campus?
How do these efforts inform institutional resource allocation and decision making?
How is the admissions office's deep knowledge of admitted students shared with student and academic affairs offices to help them better serve enrolled students?
Answering these questions will require leaders to look beyond the admissions process. After all, admitting and enrolling a strong, diverse class is only the first step toward the actual achievement of an institution's diversity and inclusion goals. Learning from difference does not happen magically, and it’s not enough for students simply to see difference represented among their peers. Students must have meaningful opportunities to interact and learn from each other in the classroom and beyond.
Such learning experiences can be difficult, and the benefits of a changed perspective and opened mind may take years to be realized. But those benefits -- as Justice Sandra Day O’Connor observed when the court considered the matter of race in admissions in 2003's Grutter v. Bollinger -- are “substantial” and “real.” In October, a national Purdue-Gallup study found that students who had interacted regularly with diverse peers in college were 2.2 times more likely to believe that their degree was worth the cost after graduation.
Indeed, from the beginning, UT has claimed achieving the educational benefits of diversity as its "compelling interest" that justifies its limited use of race in admissions -- just as the University of Michigan Law School argued successfully in Grutter. To assess whether those goals were being met, UT looked at various indicators, including not only enrollment trends but also evidence of racial isolation and campus climate (including faculty and student feedback), and other data including how the educational benefits of diversity were experienced in the classroom.
Three red flags emerged: 1) a lack of socioeconomic diversity within racial minority groups, 2) an absence of racial minority students in smaller, discussion-oriented classrooms and 3) a drop in minority enrollment (especially among African-American students), which led to increased racial isolation for those groups. These suggested that UT had not yet reached its diversity goals and that its limited use of race in admissions continued to be justified.
In the second round ofthe Fisher case, the Supreme Court will again be asked to consider those indicators, given a change in Abigail Fisher's litigation strategy, particularly in her characterization of UT’s process and underlying goals. In the coming round of litigation, Fisher herself argues that the three indicators were UT's overarching goals, not simply indicators by which UT considered whether its broader goal of achieving the educational benefits of diversity for all students was being met.
In other words, she argues that UT was not seeking the educational benefits of diversity through its race-conscious admissions policy but rather the more narrow interests of "diversity within diversity," classroom diversity and reducing racial isolation. And, to the plaintiff, none of these interests rises to the level of necessity that the court demands. This line of argument did not appear in Abigail Fisher's arguments in Fisher I back in 2012-13, and it will be interesting to see how the court untangles the facts and legal arguments that the two sides are presenting.
We won't have a resolution of Fisheruntil the decision comes down sometime in the first half of 2016. In the meantime, however, colleges and universities should not simply sit on their hands and wait for the court’s instructions. Institutions should carefully consider their admissions processes and how they communicate them. Addressing the questions previously raised in pursuit of a more dynamic, diverse and inclusive campus environment can be a positive step forward for all institutions, regardless of how the court decides Fisher.
And colleges and universities must also take other steps beyond just admitting a diverse class. As the events on multiple campuses over the past several weeks have demonstrated, students are demanding that administrators take concrete actions to improve campus life for all students, particularly those who are underrepresented. They are asking institutions not only to consider the positive benefits of diversity, but also the harms that can come from a lack of diversity and inclusion -- including “tokenism,” racial isolation and fewer opportunities to combat stereotypes. Changing the institutional culture and environment is admittedly very hard work for institutions and students alike, but that work is worth doing for the benefits that can result for students while they are on the campus and after they graduate.
Such efforts will show the seriousness of purpose behind an institution’s diversity goals -- and that the achievement of these goals depends not only on the consideration of race in the admissions process but also much more. Even more important, they will show students, faculty, leaders and the broader community that all students matter and are valued -- and that excellence in higher education depends on the challenges and lessons that flow from diversity and learning to appreciate our differences.
Terri Taylor is a policy and legal advisor with EducationCounsel LLC. She co-authored the amicus brief submitted by the College Board, American Association of Collegiate Registrars and Admissions Officers, Law School Admissions Council and National Association for College Admissions Counseling to the Supreme Court in Fisher II and helps lead the College Board's Access and Diversity Collaborative.
A former admissions director at a Chinese university admitted accepting millions of dollars in bribes, the Associated Press reported. Prosecutors said Cai Rongsheng, the former head of admissions at Renmin University in Beijing, received $3.6 million between 2005 and 2013 in exchange for helping 44 students gain admission or change majors.
The case is part of a broader crackdown on corruption involving Chinese university administrators.
Many educators have expressed concern about the findings in a new analysis from the American Council on Education, which note a significant drop since 2008 in the proportion of low-income recent high school graduates who enroll in college. But some analysts are raising questions about the analysis because it is based on data from the Current Population Survey of the U.S. Census Bureau.
The above tweet links to this article from March -- by Matthew M. Chingos of the Brookings Institution and Susan Dynarski of the University of Michigan -- that questions the reliability of income data from the survey, and cautions against drawing conclusions from it on questions of student access to higher education.
The College Board has notified some students who took the SAT outside the United States this month that their scores are being delayed due to an investigation into a possible security breach. The review could take up to five weeks.