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.
Following my presentation last year at “The Case for Change in College Admissions” conference at the University of Southern California, a dean from one of America’s most prestigious universities said, "We know the SAT and ACT are not good predictors of college grades, but our faculty resist going test-optional. They are worried about standards."
While the debate over standardized tests and college admissions began 20 years ago, the proverbial 800-pound gorilla in the room is faculty complacency and ignorance. Nearly all of the 870 colleges that are test-optional today have gone that way due to leadership from administrators or admissions deans. It’s a harsh reality, but as winners at the testing game many faculty are oblivious to the damage done by a test that is statistically redundant and socially discriminatory. It's time to set the record straight.
Faculty members need to know that college admissions remain more art than science, As documented in my new book, SAT Wars: The Case for Test-Optional College Admissions, our best statistical models predicting first-year college grades explain only about 30 percent of what’s going on, leaving 70 percent of what matters unknown. In those models, the academic variable carrying the most weight is always high school grades, while the unique statistical contribution of test scores is marginal: for example, at Johns Hopkins it adds two percentage points; at the University of Georgia one percent; and at DePaul one percent.
In my book, the president emeritus of the University of California Richard Atkinson and Berkeley statistician Saul Geiser stress, "[i]rrespective of the quality or type of school attended, cumulative grade point average (GPA) in academic subjects in high school has proved to be the best overall predictor of student performance in college. This finding has been confirmed in the great majority of ‘predictive-validity’ studies conducted over the years, including studies conducted by the testing agencies themselves."
When not being "truth-optional" in their public relations spin, even the tests’ sponsors concede that the single variable that most highly correlates with college grades is high school grades earned over four years, not test scores derived from four hours of stress on a Saturday morning.
Rather than leveling the playing field, standardized tests such as the SAT and the ACT perpetuate social discrimination in the name of academic selectivity. Whereas high school GPA and class rank do not correlate with family income, the SAT and ACT can’t say that. Defenders of the tests say they are fair and the social disparities expressed in scores sadly reflect the unfairness of life, but the reality is that family income, gender, and race predict test scores more powerfully than test scores predict college grades.
As a result, the tests create a costly, anxiety-ridden and time-consuming distraction from real learning. They undermine the high school curriculum, sending the wrong signal to youth that test prep – which typically costs hundreds, if not thousands of dollars – will get you further than hard work in class. Would standardized testing have such a powerful and distorting impact on the whole of the K-12 experience if the SAT or ACT were not required by colleges for admissions?
Faculty need to know that rather than lowering standards, test-optional admissions raise them, and there’s new data to prove it. Wake Forest University went test-optional three years ago, and since then we’ve seen first-year students from the top 10 percent of their high school class jump from 65 percent in 2008 to 83 percent this year. Pell Grant recipients have doubled. Our student body is more racially and socioeconomically diverse than ever before. Library usage is up, and classroom discussions are reportedly livelier than before.
It's just as Princeton sociologist Thomas Espenshade predicts in SAT Wars: going test-optional increases the social diversity and academic strength of students at private colleges, and being “don’t ask, don’t tell” at public universities does the same. We expect to see universities that drop the requirement, including most recently Clark University and DePaul University, rewarded with stronger and more diverse applicant pools in the near future. Test-optional enriches the campus experience. So what would it take to end this farce?
Charles Murray, a contributor to SAT Wars, believes that action by top colleges such as Harvard or Stanford would push us past the tipping point. "If just those two schools took such a step, many other schools would follow suit immediately, and the rest within a few years." He adds, "Admissions officers at elite schools are already familiar with the statistical story … They know that dropping the SAT would not hinder their selection decisions."
The aforementioned dean asked me to send a copy of SAT Wars for an overdue discussion amongst faculty at that prominent institution. With data from Wake Forest and other schools that have removed the requirement on the table, it’s time for professors at America’s most prestigious colleges to set the myths aside and take their position of academic leadership seriously. It’s time to do your own research, hold a discussion, contribute to the national debate, and vote. Don’t be part of the problem when you hold the solution in your hands.
Is there a college president out there who truly believes current ranking schemes are properly serving the educational needs of students and the espoused values of institutions? Are there presidents who think their institutions have benefited from using deep discounting to achieve status and rank? Is the mission of colleges to maximize net revenue, rank, status and prestige, or to provide quality educational opportunities to those who can benefit from the experience? Do our admission practices reflect and encourage the kinds of values and traits that educators are entrusted to foster in students?
Questions such as these have emerged from the research of dedicated educators and scholars and in reaction to recent reports of colleges falsifying data in order to improve rank. But while the consideration of such questions may encourage moral reasoning among college presidents, it does not necessarily lead them to act accordingly.
My own limited experiment in trying to foster movement beyond the pernicious influence of commercial rankings suggests that college presidents may act more responsibly if there is perceived opportunity in doing so, and that such courageous actions can make a difference.
Where one stands on this issue, however, is often influenced by where one sits – particularly with respect to the rankings. When news spread that a group of colleges had signed a letter pledging to boycott U.S. News & World Report college rankings, I received calls from two presidents at highly selective colleges saying they wanted to sign the letter but feared their trustees would not go along. Two Ivy League college officials also reported that while their presidents were reluctant to sign ultimatums, they agreed with the letter’s sentiments and would abide by its prescriptions by not cooperating with U.S. News.
Recent circumstances indicate that the U.S. News rankings enterprise is struggling, and it is increasingly relying on colleges to prop it up. The precipitous drop in reputational survey response among colleges has contributed to increasing skepticism about the rankings; the proliferation of other ranking schemes seems to be diluting the importance of any one; decreasing interest in rankings among parents and students affect magazine sales and website traffic. But there is money to be made from colleges using the U.S. News brand to advertise their rank! Troublingly, more than 70 percent of college admission representatives recently surveyed reported that their colleges use their U.S. News rank for marketing purposes despite an 80 percent agreement that rankings are misleading! Colleges that have instead decided to say no to U.S. News report that taking the educational high road is improving their educational stature: their stance on the rankings matters more than their standing in the rankings.
So, there is a different and encouraging narrative -- one supported by foundations, colleges and organizations. This path provides alternatives to the alarming reports of questionable behavior and poor educational returns associated with driving under the influence of the rankings. Here is a significant opportunity for college presidents to demonstrate the kind of leadership many colleges purport to instill in their students.
Below is a list of things college presidents can do to help steer our country to a better understanding and demonstration of educational quality than that represented by rankings.
Join other college leaders by pledging to sign the letter that first circulated a few years ago.
Agree to follow the actions prescribed in the letter: Do not complete reputation surveys, and do not use rank to promote your institution.
Help your trustees consider the educational impact of commercial rankings and the leadership opportunities for your institution to move beyond the influence of rankings.
Participate in evolving collaborative efforts to identify and deliver meaningful college information and helpful college selection guidance.
Someone once said, 'If we can’t trust our college and university leaders to do the right thing, then who can we trust?" A good friend once said, “Education is the crucible of hope.” The high level of public cynicism about higher education can and should be addressed by college presidents acting together to move beyond the influence of commercial rankings. Here is an opportunity for college presidents to demonstrate the kind of leadership many colleges purport to instill in their students.