A national outcry regarding the cost of education and the poor performance of institutions in graduating their students has raised questions about the extent to which accreditors are fulfilling their mission of quality assurance. Politicians have expressed outrage, for instance, at the fact that accreditors are not shutting down institutions with graduation rates in the single digits.
At the same time, accreditors and others have noted that the graduation data available from the National Center for Education Statistics’ Integrated Postsecondary Education Data System, familiarly known as IPEDS, include only first-time, full-time student cohorts and, as such, are too limited to be the measure by which institutional success is measured -- or by which accreditation is judged. But simply noting this problem does nothing to solve it. The imperative and challenge of getting reliable data on student success must be more broadly acknowledged and acted upon. The WASC Senior College and University Commission (WSCUC) has taken important steps to do just that.
As is well known, IPEDS graduation rates include only those students who enrolled as first-time, full-time students at an institution. Of the approximately 900,000 undergraduate students enrolled at institutions accredited by WSCUC, about 40 percent, or 360,000, fit this category. That means approximately 540,000 students in this region, including all transfer and part-time students, are unaccounted for by IPEDS graduation rate data.
The National Student Clearinghouse provides more helpful data regarding student success: while including full-time student cohorts, part-time students are also considered, as well as students who combine the two modes, and data include information on students who are still enrolled, have transferred and are continuing their studies elsewhere or have graduated elsewhere. Six-year student outcomes, however, are still the norm.
Since 2013, WSCUC has worked with a tool developed by one of us -- John Etchemendy, provost at Stanford University and a WSCUC commissioner -- that allows an institution and our commission to get a fuller and more inclusive picture of student completion. That tool, the graduation rate dashboard, takes into account all students who receive an undergraduate degree from an institution, regardless of how they matriculate (first time or transfer) or enroll (full time or part time). It is a rich source of information, enabling institutions to identify enrollment, retention and graduation patterns of all undergraduate students and to see how those patterns are interrelated -- potentially leading to identifying and resolving issues that may be impeding student success.
Here’s how it works.
WSCUC collects six data points from institutions via our annual report, the baseline data tracked for all accredited, candidate and eligible institutions and referenced by WSCUC staff, peer evaluators and the commission during every accreditation review. On the basis of those data points, we calculate two completion measures: the unit redemption rate and the absolute graduation rate. The unit redemption rate is the proportion of units granted by an institution that are eventually “redeemed” for a degree from that institution. The absolute graduation rate is the proportion of students entering an institution who eventually -- a key word -- graduate from that institution.
The idea of the unit redemption rate is easy to understand. Ideally, every unit granted by an institution ultimately results in a degree (or certificate). Of course, no institution actually achieves this ideal, since students who drop out never “redeem” the units they take while enrolled, resulting in a URR below 100 percent. So the URR is an alternative way to measure completion, somewhat different from the graduation rate, since it counts units rather than students. But most important, it counts units that all students -- full time and part time, first time and transfer -- take and redeem.
Interestingly, using one additional data point (the average number of units taken by students who drop out), we can convert the URR into a graduation measure, the absolute graduation rate, which estimates the proportion of students entering a college or university (whether first time or transfer) who eventually graduate. Given the relationship between annual enrollment, numbers of units taken in a given year and the length of time it takes students to complete their degrees -- all of which vary -- the absolute graduation rate is presented as an average over eight years. While not an exact measure, it can be a useful one, especially when used alongside IPEDS data to get a more nuanced and complete picture of student success at an institution.
What is the advantage to using this tool? For an institution like Stanford -- where enrollments are relatively steady and the overwhelming majority of students enter as first-time, full-time students and then graduate in four years -- there is little advantage. In fact, IPEDS data and dashboard data look very similar for that type of institution: students enter, take roughly 180 quarter credits for an undergraduate degree and redeem all or nearly all of them for a degree in four years. For an institution serving a large transfer and/or part-time population, however, the dashboard can provide a fuller picture than ever before of student success. One of our region’s large public universities has a 2015 IPEDS six-year graduation rate of 30 percent, for example, while its absolute graduation rate for the year was 61 percent.
What accounts for such large discrepancies? For many WSCUC institutions, the IPEDS graduation rate takes into account fewer than 20 percent of the students who actually graduate. The California State University system, for example, enrolls large numbers of students who transfer from community colleges and other institutions. Those students are counted in the absolute graduation rate, but not in the IPEDS six-year rate.
As the dashboard includes IPEDS graduation rate data as well as the percentage of students included in the first-time, full-time cohort, it makes it possible to get a better picture of an institution’s student population as well as the extent to which IPEDS data are more or less reliable as indicators of student success at that institution.
Here’s an example: over the years between 2006 and 2013, at California State University Dominguez Hills, the IPEDS six-year graduation rate ranged between 24 percent and 35 percent. Those numbers, however, reflect only a small percentage of the university’s student population. The low of 24 percent in 2011 reflected only 7 percent of its students; the high of 35 percent in 2009 reflected just 14 percent. The eight-year IPEDS total over those years, reflecting 10 percent of the student population, was 30 percent.
In contrast, looking at undergraduate student completion using the dashboard, we see an absolute graduation rate of 61 percent -- double the IPEDS calculation. Clearly, the dashboard gives us a significantly different picture of student completion at that institution.
And there’s more. To complement our work with the dashboard, WSCUC staff members have begun work on triangulating dashboard data with data from the National Student Clearinghouse and IPEDS to look at student success from various angles. We recognize that all three of these tools have limitations and drawbacks as well as advantages: we’ve already noted the limitations of the IPEDS and National Student Clearinghouse data, as well as the benefit of the inclusion in the latter’s data of transfer students and students still enrolled after the six-year period. In addition, the data from both IPEDS and the clearinghouse can be disaggregated by student subpopulations of gender and ethnicity, as well as by institution type, which can be very beneficial in evaluating institutional effectiveness in supporting student success.
Pilot work has been done to plot an institution’s IPEDS and dashboard data in relation to the clearinghouse data, displayed as a box-and-whisker graph that provides the distribution of graduation rates regionally by quartile in order to give an indication of an institution’s success in graduating its students relative to peer institutions within the region. While care must be taken to understand and interpret the information provided through these data, we do believe that bringing them together in this way can be a powerful source of self-analysis, which can lead to institutional initiatives to improve student completion.
As noted, WSCUC has been working with the dashboard since 2013. While we are excited and encouraged regarding the benefits of the tool in providing a more complete and nuanced picture of student success, we also recognize that we have a great deal of work ahead of us to make the tool as useful as we believe it can be. After two pilot projects including a limited number of WSCUC-accredited institutions, the required collection of data by all WSCUC colleges and universities in 2015 revealed a number of challenges to institutions in submitting the correct data. The dashboard can be somewhat difficult to understand, especially for institutions with large shifts in enrollment patterns. And unlike National Student Clearinghouse data, dashboard data, at least at this point, cannot be disaggregated to reveal patterns of completion for various student subpopulations.
Such issues notwithstanding, we are encouraged by the value of the dashboard that we have seen to date and are committed to continuing to refine this tool. WSCUC staff members have given presentations both regionally and nationally on the dashboard, including one to IPEDS trainers to show them the possibilities of this tool to extend the data available nationally regarding student completion.
We are hopeful that other accreditors and possibly the NCES will find the dashboard a useful tool and, if so, adopt it as an additional completion measure for institutions across the country. In any case, we will continue to do this work regionally so as to not just complain about the available data but to also contribute to their improvement and usefulness.
Mary Ellen Petrisko is president of the WASC Senior College and University Commission. John Etchemendy is provost of Stanford University.
The story is told of how, during an interview at a film festival in the 1960s, someone asked the avant-garde director Jean-Luc Godard, “But you must at least admit that a film has to have a beginning, a middle and an end?” To which Godard replied, “Yes, but not necessarily in that order.”
Touché! Creative tampering with established patterns of storytelling (or with audience expectations, which is roughly the same thing) is among the basic prerogatives of artistic expression -- one to be exercised at whatever risk of ticket buyers demanding their money back. Most of the examples of such tampering that Robert L. Belknap considers in Plots (Columbia University Press) are drawn from literary works now at least a century old. That we still read them suggests their narrative innovations worked -- so well, in fact, that they may go unnoticed now, taken as given. And the measure of Belknap’s excellence as a critic is how rewarding his close attention to them proves.
The late author, a professor of Slavic languages at Columbia University, delivered the three lectures making up Plots in 2011. Belknap’s preface to the book indicates that he considered the manuscript ready for publication at the time of his death in 2014. Plots has an adamantine quality, as if decades of thought and teaching were being crystallized and enormously compressed. Yet it is difficult to read the final paragraphs as anything but the author’s promise to say a great deal more.
Whether the lectures were offered as the overture to Belknap’s magnum opus or in lieu of one, Plots shuttles between narrative theory (from Aristotle to the Russian formalists) and narrative practice (Shakespeare and Dostoevsky, primarily) at terrific speed and with a necessary minimum of jargon. Because the jargon contains an irreducible core of the argument, we might as well start (even though Belknap does not) with the Russian formalists’ contrast between fabula and siuzhet.
Each can be translated as “plot.” The more or less standard sense of fabula, at least as I learned it in ancient times, is the series of events or actions as they might be laid out on a timeline. The author tweaks this a little by defining fabula as “the relationship among the incidents in the world the characters inhabit,” especially cause-and-effect relationships. By contrast, siuzhet is how events unfold within the literary narrative or, as Belknap puts it, “the relationship among the same incidents in the world of the text.”
To frame the contrast another way, siuzhet is how the story is told, while fabula is what “really” happened. The scare quotes are necessary because the distinction applies to fiction and drama as well as, say, memoir and documentary film. “In small forms, like fairy tales,” Belknap notes, fabula and siuzhet “tend to track one another rather closely, but in larger forms, like epics or novels, they often diverge.” (Side note: A good deal of short fiction is also marked by that divergence. An example that comes to mind is “The Tell-Tale Heart” by Edgar Allan Poe, where the siuzhet of the narrator’s account of what happened and why is decidedly different from the fabula to be worked out by the police appearing at the end of the story.)
Belknap returns to Aristotle for the original effort to understand the emotional impact of a certain kind of siuzhet: the ancient tragedies. An effective drama, by the philosopher’s lights, depicted the events of a single day, in a single place, through a sequence of actions so well integrated that no element could be omitted without the whole narrative coming apart. “This discipline in handling the causal relationship between incidents,” says Belknap, “produces the sense of inevitability that characterizes the strongest tragedies.” The taut siuzhet chronicling a straightforward fabula reconciled audiences to the workings of destiny.
Turning Aristotle’s analysis into a rule book, as happened in later centuries, was like forcing playwrights to wear too-small shoes. The fashion could not last. In the second lecture, Belknap turns to Shakespeare, who found another way to work:
“He sacrificed the causal tightness that had served classic drama so well in order to build thematic tightness around parallel plots. Usually the parallel plots involve different social levels -- masters and servants, kings and courtiers, supernatural beings and humans -- and usually the plots are not too parallel to intersect occasionally and interact causally at some level, though never enough to satisfy Aristotle’s criterion that if any incident be removed, the whole plot of the play should cease to make sense …. Similarity in plots can be represented as the overlap between two areas, and those areas may be broken down into individual points of similarity, dissimilarity, contrast, etc. Without knowing it, a Shakespearean audience is making such analyses all the time it watches a play, and the points of overlap and contrast enter their awareness.”
It’s not clear whether Belknap means to include the modern Shakespearean audience -- possibly not, since contemporary productions tend to trim down the secondary plots, if not eliminate them. But the Bard had other devices in hand for complicating fabula-siuzhetarrangements -- including what Belknap identifies as “a little-discussed peculiarity of Shakespearean plotting, the use of lies.” In both classical and Shakespearean drama, there are crucial scenes in which a character’s identity or situation is revealed to others whose confusion or deception has been important for the plot. But whereas mistakes and lies “are about equally prevalent” in the ancient plays, Shakespeare has a clear preference: “virtually every recognition scene is generated primarily out of a lie, not an error.”
In a striking elaboration of that point, Belknap treats the lie as a kind of theatrical performance -- “a little drama, with at least the rudiments of a plot” -- that often “express[es] facts about the liar, the person lied to or the person lied about.” The lie is a manipulative play within a play in miniature. And in Hamlet, at least, the (literal) play within a play is the prince’s means of trying to force his uncle to tell the truth.
Now, such intricate developments at the level of form also involve changes in how the writer and the audience understand the world (and, presumably, themselves). The Shakespearean cosmos gets messier than that of classical drama, but loosening the chains of cause and effect does not create absolute chaos. The motives and consequences of the characters’ actions make manifest their otherwise hidden inner lives. To put it another way, mutations in siuzhet (how the story is told) reflect changes in fabula (what really happens in the world) and vice versa. Belknap suggests -- tongue perhaps not entirely in cheek -- that Shakespeare was on the verge of inventing the modern psychological novel and might have, had he lived a few more years.
By the final lecture, on Dostoyevsky’s Crime and Punishment, Belknap has come home to his area of deepest professional interest. (He wrote two well-regarded monographs on The Brothers Karamazov.) Moving beyond his analysis of parallel plots in Shakespeare, he goes deep into the webs of allusion and cross-referencing among Russian authors of the 19th century to make the case that Crime and Punishment contains a much more deliberate narrative architecture than it is credited with having. (Henry James’s characterization of Russian novels as “fluid puddings” undoubtedly applies.)
He even makes a bid for the novel epilogue as being aesthetically and thematically integral to the book as a whole. Other readers may find that argument plausible. I’ll just say that Plots reveals that with Belknap’s death, we lost a critic and literary historian of great power and considerable ingenuity.
In U.S. Supreme Court Justice Anthony M. Kennedy’s 4 to 3 majority opinion in Fisher v. University of Texas, in which he upheld racial preferences in college admissions, he recalls that the court has said that enrolling a diverse student body “promotes cross-racial understanding, helps to break down racial stereotypes and enables students to better understand persons of different races.” Equally important, according to the court’s previous decisions, “student body diversity promotes learning outcomes and better prepares students for an increasingly diverse workforce and society.”
Unfortunately, Justice Kennedy’s decision significantly undermines the very goals the court hopes to achieve. Also unfortunate is that his memory is conveniently selective: he seems to have forgotten much of what he himself wrote in 2013’s Fisher I decision.
That’s a shame, because the country seemed ready to finally put an end to government discrimination on the basis of race and to have it start judging all people on the content of their character rather than the color of their skin, as Martin Luther King Jr. admonished. The court has long suggested racial preferences in admissions were temporary, and in Fisher I, Justice Kennedy set the stage to finally end them. In that opinion, he wrote: “Judicial review must begin from the position that ‘any official action that treats a person differently on account of his race or ethnic origin is inherently suspect.’”
Justice Kennedy also wrote, “Courts must apply strict scrutiny to racial preferences, which must be narrowly tailored and used only if the same goals can't be met with race-neutral means.” In Fisher I, Justice Kennedy explicitly rejected the court of appeals approach of giving deference to the University of Texas and remanded the case, instructing the court of appeals to properly apply strict scrutiny -- which, according to Justice Kennedy at that time, meant that it was to be applied without deference to UT’s claims and unsupported conclusions. That is, UT had the burden to prove that race-conscious admissions were the least restrictive means possible for achieving its diversity goals. Moreover, Justice Kennedy had previously written, in a different case: “Classifying and assigning students” according to race “requires more than … an amorphous end to justify it.”
As Justice Samuel A. Alito noted in his dissent in Fisher II, something strange has happened since Fisher I. Something strange indeed. Under Justice Kennedy’s mercurial race jurisprudence, he has decided in Fisher II that UT is entitled to considerable deference with respect to intangibles like diversity. UT did not prove that race-conscious admissions are the only way that it could achieve diversity, and it also did not clearly articulate the goals that its admissions process is designed to achieve. Nevertheless, Justice Kennedy decided that UT’s use of racial preferences in admissions is constitutional.
I am afraid that this decision will continue the pernicious questioning that hangs over legally favored minority students (nonfavored minority students, such as Asian students, get no preference): Were they admitted to a prestigious university because of their ability or because of their skin color?
Also, similar questions will continue to be asked by every nonfavored minority student and majority student who is not accepted: Were they rejected because of their ability or because of their skin color? Today, given the politically correct atmosphere, especially on campuses, these questions are often unspoken. Nevertheless, people are not only asking them but, in many cases, answering them for themselves in the affirmative -- thereby perhaps diminishing someone’s achievements without reason. The fact that these judgments are unspoken makes them no less devastating to the very goals the court hopes diversity will achieve. As a result of Justice Kennedy’s opinion, these questions continue to be legitimate and relevant, even though they should not be.
In the Fisher cases, Abigail Fisher contends that UT rejected her because she is white. The university uses a holistic approach to admissions in which race is one of the considered factors.
In Fisher I, the court ruled 7 to 1 that race-conscious admissions are subject to strict scrutiny and sent the case back to the court of appeals for the proper application of that standard. As noted, the court demanded that UT prove that its race-conscious admissions process is the least restrictive means available to achieve diversity. But UT has had great success in increasing diversity with a race-neutral top 10 percent program, which automatically admits students in the top 10 percent of their high school class. Because of that, it seemed unlikely that a race-conscious plan would be held to be constitutional.
However, after rehearing the case, the court of appeals upheld UT’s race-conscious admissions standards, finding that UT had a legitimate interest in not only interracial diversity but also in intraracial diversity. Speaking plainly, the university claimed it needed to take race into account in order to admit minority students from affluent families because such students would be more likely to succeed in college and help to dispel stereotyping than those admitted under the percent program (who often come from racially segregated high schools).
In other words, UT assumed that students in the top 10 percent of predominantly black high schools would not have as strong a likelihood of succeeding in college as those from other high schools. This type of race-based discrimination and stereotyping is, of course, exactly what the Equal Protection Clause is meant to prevent.
Nevertheless, Justice Kennedy’s opinion does not address either the percent plan or the new intraracial justification for considering race in admissions that was argued in the court of appeals. Rather, he has now determined that the data on the percent plan was inadequate in 2008, when Abigail Fisher was rejected, to determine its success in achieving diversity.
That means that UT’s admissions policy that is applicable today may or may not be constitutional. The technical constitutional issue is whether the plan passes the strict scrutiny standard of constitutional review. Typically, this standard is strict in theory, but fatal in fact. Specifically, because UT did not produce the data necessary to establish that the percent plan was not adequate, and that a race-conscious plan was necessary to achieve diversity, the race-conscious plan should have failed the strict scrutiny standard. That is why most experts expected the court to find that the Texas plan was unconstitutional. However, Justice Kennedy concluded that the Texas plan, the holistic review where race is a “factor of a factor of a factor,” is in fact narrowly tailored enough, based solely on the newfound deference that he now says is due to UT, to pass strict scrutiny analysis.
The strict scrutiny test has two parts. The first requires that the interest to be served by the challenged practice (in this case, race-conscious admissions standards that give a boost to certain candidates because of their race) involve a compelling state interest. The second requirement is that the means to achieve that compelling state interest (in this case, race-conscious admissions standards) must be the least restrictive means possible.
There’s no question that a diverse student body is a compelling state interest. The issue in Fisher I and II was whether the race-conscious plan was necessary to achieve a diverse student body. If diversity could be achieved with a race-neutral plan (the top 10 percent plan or some other race-neutral approach) then any race-conscious plan would not be necessary to achieve the compelling state interest and therefore would have been unconstitutional. Yet the court simply offered no guidance on this issue.
Justice Kennedy states that UT must regularly evaluate its student body data and the experiences of its students and tailor its admissions approach in light of changing circumstances in order to ensure that race plays no greater role than is necessary to meet its compelling interest in a diverse student body. However, under the new deference standard, this requirement is essentially meaningless. UT basically told the court, as it did in Fisher I, that the court should essentially “trust us,” despite the fact “we cannot prove it or explain how, we nevertheless know when racial preferences are necessary and we will know when they are no longer necessary.” This time, the changeable Justice Kennedy has decided to trust them.
The inherent problem with affirmative action is that it claims that race is a legitimate basis upon which to judge someone, while the Constitution says that it is not. Ultimately, the court will recognize that race can never be used by public institutions in making admissions decisions. But Justice Kennedy’s newfound reluctance to recognize this fact in Fisher II has unnecessarily postponed that day.
George A. Nation III is a professor of law and business at Lehigh University.
The U.S. Supreme Court ruling of 4 to 3 in Fisher v. University of Texas at Austin was a close call. For months, supporters of affirmative action in higher education were worried that a majority of the justices would find the University of Texas’ race-conscious affirmative action plan unconstitutional. Opponents were worried about just the opposite. The court upheld affirmative action, as it has done in all the major college affirmative action cases since 1978. So why was it such a closely watched case?
Fisher comes at a moment in history defined by our first black president, as well as by discussions of whether race still matters in public life. It also arrives during a long shift in the debates over how best to address issues of equality of educational opportunity -- whether through the equity-focused policies of the civil rights era or the test- and achievement-focused policies of today.
In her majority opinion in the 2003 Grutter v. Bollinger case, former Supreme Court Justice Sandra Day O’Connor suggested that increasing access to higher education through affirmative action is justified by a commitment to a diverse democracy. But opposing camps in the affirmative action debate may have divergent interpretations about what a “diverse” democracy means. To improve the democratic dialogue about affirmative action, stakeholders in the policy process must understand the moral and political beliefs underpinning the terms of the debate.
Although I am a strong supporter of affirmative action, I believe the measured compromises coming out of major college affirmative action rulings over the past 40 years exemplify the strength of our democracy. The debate over affirmative action is an example of an enduring moral disagreement, one that is characterized by different interpretations and emphases of key democratic ideals and values such as equality, liberty and diversity.
After all, the court had previously decided that narrowly tailored affirmative action plans are acceptable ways for universities to create diversity, and in this case, the court agreed with the university that race is “a factor of a factor of a factor.” And the preponderance of research evidence points toward affirmative action as fostering educational opportunities worth wanting as well as more racially and ethnically diverse educational institutions. But the disagreement about affirmative action has never been related to straightforward questions of evidence or what the law allows. If that were the case, then the 1978 Regents of the University of California v. Bakke decision affirming the constitutionality of using race-conscious affirmative action admissions decisions ought to have put out the fires of controversy.
We in America often overlook an important part of these debates: moral and political disagreements are essential parts of democracy. Ideally they stimulate meaningful dialogue across difference so that those with opposing views can -- at the very least -- understand and respect other reasonable perspectives, or even more productively, move toward what Martin Benjamin calls integrity-preserving compromises over contentious policy issues. That is something that the candidates for president would do well to remember.
In fact, all of us, whatever side we come down on in the affirmative action debate, should remember that disagreements are inevitable in a democracy. The key to a thriving democracy is citizens’ ability to discuss those disagreements, to work to understand the values and beliefs that shape our differences. Democratic dialogue allows us to stand in others’ shoes and see one another’s humanity despite disagreement. Such dialogue is the heart of both education and democracy. Without it, the promise of democratic education and politics will remain unfulfilled.
The U.S. Supreme Court finally drove a stake through the heart of the discredited claim by Abigail Fisher, a white student, that she was illegally discriminated against in her unsuccessful application in 2008 to the University of Texas at Austin.
Yesterday’s decision in Fisher v. University of Texas at Austin let stand the trial court and Fifth Circuit opinions that had held she was treated fairly in her application. She was not admissible to the university through the top 10 percent plan that accords automatic admission to Texas high school students who graduate near the top of their classes. Nor was she admissible through special admissions full-file reviews. And it should be noted that, although whites constitute less than one-third of all K-12 enrollments in Texas, they make up more than half the students admitted to the university through either of these pathways.
Both the percent plan and the full-file review are nonracial approaches to admissions, and the court’s 2003 ruling in Grutter v. Bollinger held that an educational institution could consider an applicant’s race if it did so through such means. Why would UT be the only institution in the country ineligible to follow Grutter?
Fisher’s claim, which did not challenge the percent plan directly, still tried to have it both ways. Even if I cannot be admitted through a nonracial percent plan program, she was basically saying, and even if I am not qualified to be admitted through the discretionary option, I must have been denied my rightful place by less qualified students of color. This entitlement argument is the dictionary-perfect example of a claim of white privilege.
In yesterday’s ruling, the court held: “Considerable deference is owed to a university in defining those intangible characteristics, like student body diversity, that are central to its identity and educational mission.” At the same time, it called on UT to regularly evaluate data and consider student experience in order to “tailor its approach in light of changing circumstances, ensuring that race plays no greater role than is necessary to meet its compelling interest. The university’s examination of the data it has acquired in the years since petitioner’s application, for these reasons, must proceed with full respect for the constraints imposed by the Equal Protection Clause. The type of data collected, and the manner in which it is considered, will have a significant bearing on how the university must shape its admissions policy to satisfy strict scrutiny in the years to come.”
No admissions policy since 1978’s Regents of the University of California v. Bakke decision has prompted as much study and data analysis as has this series of cases and Fisher’s claim. And as with any comprehensive admissions policy, it will certainly continue to be evaluated.
This case has threatened to become like Dickens’s Jarndyce v. Jarndyce, dragging on for generations, but it is now time to move on. That is what I do when I lose cases, as in today’s disappointing Texas v. U.S. that allows a Brownsville federal judge’s improvident injunction of President Obama’s Deferred Action for Childhood Arrivals and Deferred Action for Parents of Americans and Lawful Permanent Residents programs. I will live to fight another day on this case, and Abigail Fisher and her lawyers should also give it a rest.
This decision restores constitutional order to college admissions, and the court should stop accepting such false claims. The last time a minority applicant of color successfully challenged admissions practices was, ironically, Sweatt v. Painter, more than 65 years ago, when the court examined and struck down the racial exclusion then practiced by the same institution.
Finally, through too many twists and turns, this applicant and her supporters have in essence laid a claim to minority status, even as their numbers belie any disadvantage. Fortunately, the court saw through to the truth of the matter. Affirmative action lives on, for now.
Michael A. Olivas is the Bates Distinguished Chair in Law at the University of Houston Law Center, where he teaches immigration law and higher education law, and interim president of the University of Houston Downtown. He was a consultant to the late Texas State Representative Irma Rangel, whose leadership led to the original percentage plan at the University of Texas.
The U.S. Supreme Court today upheld the University of Texas’s use of racial preferences in student admissions. The vote was 4 to 3, with Justice Anthony M. Kennedy writing the majority opinion, joined by Justices Stephen G. Breyer, Ruth Bader Ginsburg and Sonia Sotomayor (Justice Elena Kagan was recused). Justice Samuel A. Alito wrote a powerful 51-page dissent, which he read from the bench.
The decision came on the unlucky 13th anniversary, to the day, of Gratz v. Bollinger and Grutter v. Bollinger. And Fisher I, by the way, came down on a June 24, with Regents of the University of California v. Bakke coming down on a June 28. Something about these higher ed racial preference cases always causes the court to struggle with them to the bitter end of the term.
Needless to say, for those of us opposed to racial discrimination in university admissions, the decision is disappointing, for all the reasons that Justice Alito explains. The discrimination that is upheld is untenable in our increasingly multiracial, multiethnic society -- indeed, a society where individual Americans are more and more likely to be multiracial and multiethnic (starting with our president), and where the victims of this politically correct discrimination are more and more likely to be members of racial and ethnic minority groups.
But the silver lining is that today’s decision is a narrow one, both in its scope and in the extent to which it allows the use of racial preferences.
As the court says, UT’s program “is sui generis” and the way the case was litigated “may limit its value for prospective guidance.” A big reason for this, of course, is the university’s use of a “top 10 percent plan,” which was not challenged. Rather surprisingly, by the way, Justice Kennedy seems to suggest that perhaps it should have been. He’s right: if a facially neutral plan is adopted for racial reasons, as quite arguably the percent plan was -- by automatically granting admission to any student graduating in the top 10 percent of their high-school class, the plan was sold to the state Legislature as guaranteeing a fair proportion of black and Latino admittees -- then it is unconstitutional. Put the shoe on the other foot: What if Ole Miss had, back in the day, put its demographers to work and then refused to admit anyone living in a (heavily black) zip code?
Justice Kennedy also warns the university repeatedly in his opinion that it has an ongoing duty to minimize its use of race. And race is, the court says, only a “factor of a factor of a factor” at UT, was considered contextually, does not automatically help members of any group and could in theory help the members of any group, including whites and Asian-Americans. “The fact that race consciousness played a role in only a small portion of admissions decisions should be a hallmark of narrow tailoring ….”
Now, much of this may be quite false as a matter of what really happens at the University of Texas, but other colleges and universities are now obliged to jump through the hoops that the court says UT jumped through. They must, for example and in addition to what’s already been described, do a careful study at the outset to document why using racial preferences is essential to providing the purported educational benefits of diversity and “articulate concrete and precise goals.” Note that, at UT, the ultimate decision makers supposedly did not even know the race of the individual applicants.
More broadly, any college or university’s use of racial preferences must pass “strict scrutiny,” and any institution using preferences must bear the burden of proving that a nonracial approach would not promote its interest in the “educational benefits of diversity” about as well.
Look at it this way: barring a decision by the court that overruled Grutter v. Bollinger and said that colleges and universities may never use racial preferences because the “educational benefits of diversity” are not compelling, lots of institutions would continue to use such preferences, even if the court had left the door open only a tiny crack. If the court had said, “You can use racial preferences only if you can prove that the moon is made of green cheese,” then a number of true-believer presidents would swear on a stack of Bibles that, what do you know, our institutions have found by careful study that the moon is made of green cheese.
That’s why I had hoped that the court would, indeed, overturn Grutter. But since that has not happened, and now likely will not happen for the foreseeable future, then there is no choice but to proceed institution by institution. That’s what the law was before today’s decision, and it remains what the law is after today’s decision. And, realistically, we could not have expected it to be otherwise as we awaited Fisher II.
Sure, it would have been better if the court had given the opponents of racial preferences more ammunition than it did today, but we still have plenty of ammunition on “narrow tailoring” requirements -- for which, by the way, colleges and universities receive “no deference” -- from Bakke and Grutter and Gratz and Fisher I and now from Fisher II.
The bottom line is that the court’s decision leaves plenty of room for future challenges to racial preference policies at other institutions -- and at UT itself for that matter. It’s interesting that, in the run-up to the decision, there was much discussion among liberals that maybe indeed there are better approaches to student admissions than UT’s. Here’s hoping that those discussions continue, prodded along by lawsuits and FOIA requests to ensure that all of Justice Kennedy’s (and Justice O’Connor’s and Justice Powell’s) hoops have been jumped through.
And here’s hoping, as well, that the research continues to document the high costs of the use of racial preferences versus the paltry benefits. The latter are the “educational benefits” for white and Asian students of random observations by black and Latino students. (Yes, that’s what the justification for this discrimination boils down to, as I discuss here.)
And the costs? Just these: it is personally unfair, passes over better qualified students and sets a disturbing legal, political and moral precedent in allowing racial discrimination. It creates resentment. It stigmatizes the so-called beneficiaries in the eyes of their classmates, teachers and themselves, as well as future employers, clients and patients. It mismatches African-American and Latino students with institutions, setting them up for failure. It fosters a victim mind-set, removes the incentive for academic excellence and encourages separatism.
And more: it compromises the academic mission of the university and lowers the overall academic quality of the student body. It creates pressure to discriminate in grading and graduation. It breeds hypocrisy within the college or university and encourages a scofflaw attitude among its officials. It papers over the real social problem of why so many African-American and Latino students are academically uncompetitive. And it gets states and higher education institutions involved in unsavory activities like deciding which racial and ethnic minorities will be favored and which ones not, and how much blood is needed to establish group membership --an untenable legal regime, as I said before, as America becomes an increasingly multiracial, multiethnic society.
So the challenges to racial preferences will continue. Cases already filed against Harvard University and the University of North Carolina at Chapel Hill that had been on hold will now proceed. The struggle goes on.
Roger Clegg is president and general counsel of the Center for Equal Opportunity, which has joined numerous amicus briefs on behalf of the plaintiff over the course of the Fisher litigation.
The higher education community breathed a sigh of relief today as the U.S. Supreme Court ruled that the University of Texas at Austin's race-conscious holistic-review admissions policy is lawful under federal constitutional principles. The decision ended nearly a decade of litigation for UT and clearly preserved existing precedent that allows institutions with an interest in the educational benefits of diversity to include the limited consideration of race in enrollment decisions.
So we're done with this stuff, right?
Not exactly. We should celebrate the decision today but be prepared to roll up our sleeves and get back to work tomorrow. Here are a few reasons why:
The decision does preserve existing precedent, but it gives much more specific insight into what it looks like to align with the court's framework and expectations. It's a bit like the court has for decades instructed institutions to wear clothes -- but now they've made clear that those clothes should be a three-piece suit. Specifically, the court noted that UT was able to show a clear set of diversity-related goals and objectives, a deliberate decision-making process that involved university’s highest leadership and stakeholders across the campus, and an impressive arsenal of qualitative and quantitative evidence about the negative impact of its years of solely race-neutral admissions. Though lockstep adaptation of UT's effort is not likely to be an expectation by future courts, all institutions that consider race in enrollment decisions should prepare themselves to make their own case for carrying the "heavy burden" of passing court scrutiny of these practices, informed by the kind of case UT presented.
The court was very clear that institutions have an "ongoing obligation to engage in constant deliberation and continued reflection regarding its admissions policies" (emphasis added). For UT specifically, the court instructed, "The university must continue to use [its] data to scrutinize the fairness of its admissions program; to assess whether changing demographics have undermined the need for a race-conscious policy; and to identify the effects, both positive and negative, of the affirmative-action measures it deems necessary." Notably, Justice Anthony M. Kennedy did not repeat Justice Sandra Day O'Connor's 2003 prediction in Grutter v. Bollinger that race-conscious programs will not be needed in the next 25 years. But he did make clear that any institution that intends to use race-conscious admissions policies should plan to commit to a continuing process of reflection and evolution over time.
Not everyone agrees with the court's conclusion. Justice Samuel A. Alito, joined by Chief Justice John G. Roberts and Justice Clarence Thomas, wrote a lengthy dissent -- and took the somewhat rare step of reading it from the bench today. In it, he expressed concerns about: 1) the "black box" of admissions and other institutional decision-making processes, 2) whether UT provided a sufficient evidence base to support its policies (especially the link between what happens in the admissions process and what happens after students arrive on campus), 3) how race really fits into admissions decisions, and 4) what kind of diversity is really valued in holistic review. In the weeks ahead, we in higher education should spend more time understanding the views of the dissenting justices and think through ways in which they may inform institutional judgments moving forward. That may be especially important given the other cases pending in federal courts and new complaints filed with federal agencies that ask many of the same questions of a new batch of institutions.
As student demonstrations and demands clearly illustrated over the course of the past months, many campus stakeholders do not believe that colleges and universities have yet fully authentically achieved the diversity goals they assert they have. That is, in part, because of the need to consider not only the diversity of the student body but also whether different members feel included and able to participate fully in campus life. After all, the compelling interest at stake isn't about student body diversity as an end in itself. It is a means toward improved teaching and learning, personal and intellectual development, better civic outcomes, and a lively campus environment where all individuals, ideas and perspectives are welcomed.
And, indeed, the court today noted with approval that, along with statistical information that minority enrollment was decreasing under the solely race-neutral regime, UT included minority students’ experiences of feeling lonely and isolated on the campus. Moving forward, colleges and universities should aim to look for evidence not only of the negative effects of the absence of diversity but also, perhaps even more importantly, of the positive effects of a broadly diverse student body on all members of the institutional community -- with attention to ways in which they can advance fully inclusive learning environments for the benefit of all students.
The decision in Fisher II gives colleges and universities greater confidence that they can continue to use race-conscious enrollment policies to pursue important educational benefits associated with diversity. But it also makes clear that doing so requires "constant" effort and the contributions of almost every member of an institutional community. As the decision concludes, "Considerable deference is owed to a university in defining those intangible characteristics, like student body diversity, that are central to its identity and educational mission. But still, it remains an enduring challenge to our nation’s education system to reconcile the pursuit of diversity with the constitutional promise of equal treatment and dignity."
I am confident that institutions across the country -- working with their partners in research, law, business and their communities -- will be able to meet the challenge. But the ball is in institutions' court. We must get to work.
Terri Taylor is a senior policy and legal adviser with EducationCounsel LLC. She co-authored the amicus brief submitted by the College Board, the American Association of Collegiate Registrars and Admissions Officers, the Law School Admissions Council and the National Association for College Admissions Counseling to the Supreme Court in Fisher II and helps lead the College Board's Access and Diversity Collaborative.
Matthew Daniel Eddy’s fascinating paper “The Interactive Notebook: How Students Learned to Keep Notes During the Scottish Enlightenment” is bound to elicit a certain amount of nostalgia in some readers. (The author is a professor of philosophy at Durham University; the paper, forthcoming in the journal Book History, is available for download from his Academia page.)
Interest in the everyday, taken-for-granted aspects of scholarship (the nuts and bolts of the life of the mind) has grown among cultural historians over the past couple of decades. At the same time, and perhaps not so coincidentally, many of those routines have been in flux, with card catalogs and bound serials disappearing from university libraries and scholarship itself seeming to drift ever closer to a condition of paperlessness. The past few years have seen a good deal of work on the history of the notebook, in all its many forms. I think Eddy’s contribution to this subspecialty may prove a breakthrough work, as Anthony Grafton’s The Footnote: A Curious History (1997) and H. J. Jackson’s Marginialia: Readers Writing in Books (2001) were in the early days of metaerudition.
“Lecture notes,” Eddy writes, “as well as other forms of writing such as letters, commonplace books and diaries, were part of a larger early modern manuscript world which treated inscription as an active force that shaped the mind.” It’s the focus on note taking itself -- understood as an activity bound up with various cultural imperatives -- that distinguishes notebook studies (pardon the expression) from the research of biographers and intellectual historians who use notebooks as documents.
Edinburgh in the late 18th century was buzzing with considerable philosophical and scientific activity, but the sound in the lecture notes Eddy describes came mainly from student noses being held to the grindstone. For notebook keeping was central to the pedagogical experience -- a labor-intensive and somewhat costly activity, deeply embedded in the whole social system of academe. Presumably the less impressive specimens became kindling, but the lecture notebooks Eddy describes were the concrete embodiment of intellectual discipline and craftsmanship -- multivolume works worthy of shelf space in the university library or handed down to heirs. Or, often enough, sold, whether to less diligent students or to the very professors who had given the lectures.
The process of notebook keeping, as Eddy reconstructs it, ran something like this: before a course began, the student would purchase a syllabus and a supply of writing materials -- including “quares” of loose papers or “paper books” (which look pocket-size in a photo) and a somewhat pricier “note book” proper, bound in leather.
The syllabus included a listing of topics covered in each lecture. Eddy writes that “most professors worked very hard to provide lecture headings that were designed to help students take notes in an organized fashion” as they tried to keep up with “the rush of the learning process as it occurred in the classroom.” Pen or pencil in hand, the student filled up his quares or paper book with as much of the lecture material as he could grasp and condense, however roughly. The pace made it difficult to do more than sketch the occasional diagram, and Eddy notes that “many students struggled to even write basic epitomisations of what they had heard.”
The shared challenge fostered the student practice of literally comparing notes -- and in any case, even the most nimble student was far from through when the lecture was done. Then it was necessary to “fill out” the rough notes, drawing on memory of what the professor said, the headings in the syllabus and the course readings -- a time-consuming effort that could run late into the night. “Extending my notes taken at the Chemical and Anatomical lectures,” one student wrote in his diary, “employs my whole time and prevents my doing any thing else. Tired, uneasy & low-spirited.”
As his freshman year ended, another wrote, “My late hours revising my notes taken at the lectures wore on my constitution, and I longed for the approach of May and the end of the lectures.”
Nor was revision and elaboration the end of it. From the drafts, written on cheap paper, students copied a more legible and carefully edited text into their leather notebooks, title pages in imitation of those found in printed books. The truly devoted student would prepare an index. “While many of them complained about the time this activity required,” Eddy writes, “I have found no one who questioned the cognitive efficacy that their teachers attached to the act of copying.”
Making a lecture notebook was the opposite of multitasking. It meant doing the same task repeatedly, with deeper attention and commitment at each stage. Eddy surmises that medical students who prepared especially well-crafted lecture notebooks probably attended the same course a number of times, adding to and improving the record, over a course of years.
At the same time, this single-minded effort exercised a number of capacities. Students developed “various reading, writing and drawing skills that were woven together into note-taking routines … that were in turn infused with a sense of purpose, a sense that the acts of note taking and notebook making were just as important as the material notebook that they produced.”
You can fill an immaterial notebook with a greater variety of content (yay, Evernote!), but I’m not sure that counts as either an advantage or an improvement.