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.
Any day now the U.S. Supreme Court will rule on Fisher v. University of Texas. The case concerns a lawsuit filed by Abigail Fisher, a white applicant who was denied admission to UT. Fisher argues that her race played a role in the admissions decision, and this, she claims, constituted a violation of her rights.
The higher education community is waiting apprehensively for the Supreme Court’s verdict. Many worry that the decision could drastically limit the ability of colleges and universities to be racially diverse.
Yet one feature of modern college admissions practices in the United States that can often be overlooked in this discussion is that white applicants receive a significant boost relative to Asian-Americans. This is among the findings of a major study by Princeton sociologists Thomas J. Epenshade and Alexandria Walton Radford, who also observe that Hispanic and African-American applicants receive a boost relative to whites.
According to the authors’ models, an Asian-American applicant must score 140 points more on the SAT out of 1600 than her white counterpart, all other things equal, to stand a comparable chance of admission at an elite institution.
The finding here is not just that the average admitted Asian student has a higher SAT score than her white counterpart. If that were all the data showed, then it wouldn’t support the inference that whites receive a boost relative to Asians, for the data would then be consistent with the hypothesis that despite having lower SAT scores, the average white applicant has better credentials in other areas.
On the contrary, what the data shows is this. Consider two applicants, Claudia and Alice, who have very similar applications for the most part. They both come from equally good high schools, have the same GPA, neither of them is a legacy or an athlete, and so on. However, Claudia is white and Alice is Asian-American. In light of this, Alice will have to score 140 points more than Claudia if she is to stand an equal chance of getting into an institution like Harvard or Yale Universities. And if their SAT scores are equal, then Alice’s application better be much more impressive than Claudia’s in some other respect(s).
Many see these statistics as a consequence of elite institutions using implicit quotas to limit the number of Asian students on campus. This charge forms the basis of an ongoing lawsuit filed against Harvard by Students for Fair Admissions, an anti-affirmative action group. The Education Department’s Office of Civil Rights recently cleared Princeton University of a similar charge. Notably, some Asian-American civil rights groups -- including Asian Americans Advancing Justice, Chinese for Affirmative Action and others -- have opposed these challenges, writing in an open letter, “Our universities should reflect our diverse democracy and expand opportunities for those students who have overcome significant barriers.”
Regardless of whether elite universities make use of an implicit quota system, it is still important to consider whether the boost given to white applicants relative to Asians is justified. Is the admissions process fair to applicants like Alice in the example above?
One prominent defense of preferential admissions appeals to historic injustice. If a group has historically faced unjust barriers to higher education, or other forms of systematic discrimination, then perhaps society has a reparations-based duty to correct for this. One way of doing so might involve taking reasonable steps to reduce underrepresentation of the said group in higher education.
It’s difficult to see, however, why this would apply to white Americans when contrasted with Asians. If anything, considerations of historical injustice militate in the opposite direction. America has a long history of explicitly discriminating against Asians. For example, the 1882 Chinese Exclusion Act, which arose as a result of anti-Chinese agitation, incorporated strict regulations to reduce immigration from China, and made it near impossible for resident Chinese laborers to obtain American citizenship. This policy continued in one form or the other until around World War II. Japanese-Americans have also had to suffer from policies directed against them, the most blatant of which was the directive to place large portions of the population into internment camps during WWII. Reparations-based justifications for white applicants are thus extremely hard to sustain in light of these and other historical facts.
A second justification for preferential admissions policies appeals to ongoing discrimination or implicit biases. If a particular group suffers from demonstrated implicit biases, then society presumably has a duty to correct for these biases -- a key part of which might involve preferential admissions to elite institutions. However, while studies report, for example, that African-Americans continue to face significant implicit biases in various contexts, it’s again hard to believe that American whites suffer from harmful biases relative to Asian-Americans.
Indeed, a major recent study suggests the exact opposite. Researchers sent emails to more than 65,000 professors at 250 highly ranked colleges and universities pretending to be students interested in their work. The results show that emails with Indian or Chinese names were much less likely to get responses. Moreover, the biases were found to be stronger in more lucrative fields, particularly in business academe.
The third, and possibly the most elusive, justification for preferential admission in this context appeals to the ideal of promoting diversity. If white applications were not given a boost in admissions decisions, one might argue, the campus would look too Asian. This outcome would be bad, and thus elite institutions should take steps to avoid it.
This argument raises an important question: How should we define “diversity” for the purposes of college admissions? There are many, many ways of dividing up a student body. Hence, we can think of a population as being diverse along many dimensions, including socioeconomic diversity, ideological diversity, religious diversity and so on. Why prioritize racial diversity?
Indeed, we don’t seem to care about a number of dimensions of diversity, and rightly so. Thus, suppose it turns out that men with beards, or Republicans, or heavy metal enthusiasts, are underrepresented in the Ivy League. That shouldn’t bother us. Why? Because plausibly, there is no duty based on considerations of social justice to “correct” for this underrepresentation.
In contrast, social institutions might have good reasons to prioritize racial diversity as such, if this is a necessary means of correcting past injustices or ongoing biases. If a racial group has suffered from discrimination in the past or continues to suffer from harmful biases, it is reasonable to argue that seeking to rectify underrepresentation of that group is a matter of social justice.
Often, the rationale behind seeking to correct for under- or overrepresentation of particular groups has to do with promoting equality of opportunity. However, as brought up earlier, the claim that whites in America are systematically disadvantaged relative to Asians is not very plausible.
Moreover, Epenshade and Radford find that if admissions policies were designed to give a boost to applicants coming from backgrounds of low socioeconomic status, without consideration of race, the number of admitted Asian students would rise substantially. This further undermines the notion that employing more demanding admissions criteria when it comes to Asian applicants promotes the goal of ensuring equal opportunity.
Regardless of the outcome in the case between Fisher and UT, the issue of whether preferential admissions policies based on race are justified in their current form merits further examination. While adequate justification may well be available in other cases, it is hard to see how giving a boost to white applicants relative to Asians is defensible in light of America’s historical and cultural context. And if no justification is forthcoming, social justice demands that these policies be significantly reformed.
Hrishikesh Joshi is a Ph.D. candidate at Princeton University, focusing on ethics and political philosophy. Follow on Twitter @RoundSqrCupola.
Justice's death may not change outcome on affirmative action, which he opposed. His record includes key votes and dissents on issues of black colleges, hate speech, single-sex public higher education and church-state line.
In a closed-door meeting on Nov. 5, Yale University President Peter Salovey admitted to students of color, “We failed you … I think we have to be a better university. I think we have to do a better job.”
Protests over racism at Yale prompted this meeting and all but eclipsed a major announcement that week: administrators there had approved unprecedented funds -- $50 million -- to diversify their faculty.
Few universities can match Yale’s investment, but almost all need the change that Yale seeks. Even at flagship universities of ethnically diverse states like Texas and Florida, people of color make up less than 25 percent of the teaching force. It’s in part a supply problem. Only 26 percent of doctorate recipients are black, Latino/a, Native American, or Asian-American, and their share is even lower in the highly ranked Ph.D. programs from which colleges and universities like to recruit faculty.
To increase racial diversity in the professoriate, we need to build the pool of Ph.D.s of color, and that means confronting barriers in the graduate admissions process. As admissions season ramps up and the U.S. Supreme Court debates Fisher v. University of Texas, the timing to do so is ideal.
First, the obvious question: Is bias a barrier? A recent field experiment found the answer may well be yes. Faculty members were less likely to hit reply when email inquiries from prospective advisees had names that suggested they were Indian, Chinese, Latino, African-American and/or female. And when professors did reply, it took them longer. If racism can creep into these early interactions, then those responsible for admissions and recruitment should take steps to avert the risk.
The public policy that governs admissions presents barriers, too. State affirmative-action bans have reduced graduate and professional-level enrollments in several fields of study, including medicine. These findings are especially important as the Supreme Court again weighs evidence in Fisher. The equivalent of a nationwide ban on race-conscious admission hangs in the balance, and if implemented, it would likely decimate the already small professoriate of color.
Finally, the admissions process creates its own barriers. I witnessed that firsthand through a major study of doctoral admissions that I recently completed. It involved two years of fieldwork with 10 highly ranked doctoral programs in three well-known research universities. I had the privilege of observing admissions committees deliberate in a variety of disciplines, and I interviewed 68 thoughtful professors who were charged with reviewing applications.
Overrelying on Scores and Pedigrees
Despite their good intentions to increase diversity, broadly defined, admissions work was laced with conventions -- often rooted in inherited or outdated assumptions -- that made it especially hard for students from underrepresented backgrounds to gain access.
From philosophy to physics, nine out of 10 committees made the first cut of their large, highly qualified applicant pools through race-neutral or “colorblind” methods. Some did so by requirement; for others, it was voluntary. The common standard at this point consisted of very high GRE scores and very high grades, ideally from tough classes and a name-brand college or university.
A sociologist summed up the process: “First you have to be above a bar. Then we can ask the diversity question.” In using this sequence, many believed they were achieving a standard of “pure merit,” as one economist called it.
In principle, race neutrality means excluding race from the criteria on which students are judged. But in practice, it can be much more powerful than that. I saw how colorblind admissions could effectively shut down any discussion of race or ethnicity -- even that which is well within the law, such as GRE scores’ uneven distributions by race.
Ironically, colorblind review made professors myopic. When they failed to see race, they also failed to see that the bar they set to reduce the pool had much to do with diversity, even if they did not actively ask “the diversity question.”
The priorities I observed are consistent with national trends. In the most comprehensive study available, two of the three strongest predictors of graduate school admission were high composite GRE scores and degrees from selective institutions. However, black and Latino students’ odds of enrolling in the most selective undergraduate institutions are declining over time, relative to white and Asian students. And a recent analysis in Nature concluded that the median quantitative GRE score in American physics programs (700, or 166 on the new scale) eliminated almost all black, Latino, and Native American test takers and about 75 percent of female test takers. However, it retained 82 percent of white and Asian-American test takers.
Heavy reliance on high GRE scores and college pedigree thus systematically excludes some of the very groups that an institution’s diversity commitment implies they wish to attract -- people who might rise to the top in later rounds of review. This apparently neutral, even desirable, criterion carries disparate impact.
U.S. courts have not yet considered whether using admissions criteria with disparate impact constitutes unlawful discrimination (as it does in South Africa), but they have taken up similar questions in employment law. The Fifth Circuit Court ruled the consideration of age in determining pay to be constitutional only when implemented for the purpose of "business necessity."
Is selecting students with very high GRE scores a matter of business necessity for graduate programs? It’s hard to make the case with current research. In a recent ETS study, only 43 percent of graduate students in biology departments with combined GRE scores in the top quartile also earned first-year grades in the top quartile. Correlations between GRE scores and first-year grades meet levels that testing proponents hold up as statistically significant and skeptics dismiss as practically insignificant. And the test poorly predicts longer-term outcomes, such as graduation and time to degree.
A Standard of Pure Merit?
It’s time for professors to acknowledge the GRE’s limits and put scores in their proper place. Setting high cut scores and reading scores devoid of context not only undermines diversity. It runs contrary to ETS directives and promotes a false sense of security in admissions investments.
Make no mistake: when the admissions committees that I studied reviewed their short lists, merit meant something very different than it did when they made the initial cut. Only in one case -- a student dubbed “freaking genius” for his perfect Harvard grades and perfect GRE scores -- was conventional achievement sufficient to secure an admissions offer. More often, admitted students had “interesting,” “unique” or “cool” profiles rooted in personal or professional experience. One committee excitedly moved to admit a retired CIA operative, a contributor to a hip magazine and the department’s first-ever applicant from Malaysia. They mockingly compared a solid Midwestern student to a Ford: “He’s everything you look for and nothing you weren’t expecting.” They rejected many accomplished students from China.
Indeed, judgment of students from Asian countries, especially China, reflected a common exception to the norm of colorblind review. A linguist stated it bluntly: “If a kid from China does not have essentially perfect GRE scores … they’re regarded as probably brain-dead.” Professors attributed high scores of students from China to a test preparation industry that is a “well-developed machine” and “second to none in the world.” They mused openly about suspicions of rampant cheating. Memories loomed large of students who arrived on campus with terrible English skills.
President Salovey wasn’t talking about graduate admissions when he acknowledged Yale had “failed” students of color. But he might as well have been -- and many other top university leaders could say the same -- so wide is the gap between diversity rhetoric and usual means of identifying academic talent.
To “do a better job” educating college students means not only taking a strong stand against overt forms of racism on campuses. We also need to see the subtle ways that racial inequalities are institutionalized in standard operating procedures and the ideals of “pure merit” through which college students become graduate students and graduate students become professors.
The range of ills associated with racism in our society is wide. Our nation can address some of these ills only through major changes in income and wealth distribution and by repairing the dysfunctions in our political system. Racial inequality on the campuses of our colleges and universities also plays out in a variety of ways that must be dealt with on many different fronts. This is not usually recognized in the list of demands that students involved in the recent campus protests have put forward.
A lack of diversity in the student body is best addressed by programs that help underserved students to flourish at institutions of higher education. Such programs confront the major barriers to a student’s progress from high school to college and from two-year to four-year institutions -- barriers that notably include the kind of remedial courses that turn out to be dead ends. Best of all are programs that give high school students some direct experience of what to expect at a liberal arts college through exposure to special courses taught by faculty members and involving undergraduates as mentors.
The student protesters have called for an increase in the proportion of faculty members of color on their campuses. It is difficult to imagine how to achieve that in a substantial way, short of enhancing the attractiveness of a career in academe -- in other words, reversing recent trends that have had the opposite effect. That is clearly a long-term project. In the short run, pressure to increase the number of faculty members of color is likely to lead to predatory raiding by relatively advantaged institutions that are in a position to make the kind of offer a faculty member would be hard put to refuse. An alternate and more desirable strategy for the immediate future might be to make sufficiently generous visiting positions available.
While these and many other major problems will take time to fix, we in higher education should consider why we have not done a better job of addressing the social afflictions of race in everyday life on our college and university campuses. After all, that is something we ought to be able to tackle immediately.
We can begin by admitting that no one who grows up in these United States is in a position to take the “I am not a racist” approach. It is, in fact, not possible to grow up here and not assimilate, whether one wants to or not, some race-based attitudes. Better to say “I do not want to be a racist.” And let us bear in mind that the persisting level of segregation in our neighborhoods, schools and general social lives can leave far too many white folks relatively clueless as to what is inappropriate and insulting to black fellow citizens.
We all must engage in a continuing level of consciousness-raising. Let me share one relatively modest experience that has always remained in my memory.
A number of years ago two friends and I were at an ATM, each of us making withdrawals. As we were taking our turns, a large, elegant black car pulled up. A large, elegant black man got out of the car, clearly intending to use the ATM himself.
Now, there is an etiquette involving ATM behavior: one should stand far enough away to avoid expressing an untoward degree of impatience, much less giving the impression that one is trying to see the current user’s PIN. But this man was keeping a far greater distance than usual. He remained standing near his car. And the thought that came to me was that he wanted to spare himself (and perhaps even us) the experience of a black man frightening three white ladies. I have no idea if my interpretation was correct. But it receives ample confirmation both from things I read and conversations with friends.
A common administrative response to how we can achieve a greater level of racial sensitivity is to establish or strengthen an institutional office for diversity. But an overreliance on such offices can be a part of the problem rather than the solution. It can result in outsourcing to a special unit something that should be the responsibility of all.
Special diversity training sessions can also backfire if they come across as time-bound re-education camps. Changing how we behave with one another is steady work. And, insofar as it is ongoing work for us all, we should not leave the responsibility to the relatively small number of administrators and faculty members of color who bear an undue burden in addressing the general campus climate around diversity.
Students of color might, for their part, develop an ability to react to insults with displays of strength rather than weakness. Perhaps black students could respond to white students asking about their hair by turning the question around: Why do you want to wear your hair so straight? Aren’t you afraid that blond hair makes your pale complexion look washed out? Such an approach would be all the more effective if the questions were asked with a straight face and a tone of serious concern.
We have seen that faculty members have an important role to play in creating the social atmosphere that we want to cultivate at our institutions, one in which the ratio of light to heat remains high. It means, for example, that members of the history department can contribute significantly to discussions about the complex legacy of historical figures like Thomas Jefferson and Woodrow Wilson. It means faculty members showing that they themselves are always in learning mode, at the same time applying critical intelligence to what they are hearing. It means setting a tone for discussion -- one that can be strong and spirited as long as it remains fair and clear-eyed. It means that faculty members should take care with how they themselves behave online, and not justify troll-like behavior by appeals to free speech and academic freedom.
Some of the student demands have constituted a gift to those who lie in wait for an opportunity to ridicule the world of higher education. For example, we have recently seen a student demand that an institution change the name of a building commemorating a former president whose name just happened to be Lynch -- a name that has apparently not stood in the way of our current attorney general’s career. It is episodes like this that enable a pundit like George Will to conclude a Washington Post op-ed on higher education with the rhetorical question “What, exactly, is it higher than?”
We also might consider how much of the current polarization we are seeing is connected to the intensity of the cultural focus in this country on the individual. There is nothing wrong with a desire to be recognized as an individual -- indeed, none of us wants to be simply reduced to some group identity. The problem is that, as Americans, we are especially likely to suffer from a deficit of what C. Wright Mills called the sociological imagination. That is, we fail to understand how history shapes our identities and our experiences. It is thus easy for an emphasis on group experience to be dismissed as identity politics -- or, for that matter, to degenerate into it.
There are aspects of our political and economic life that we must do our best to change in our role as citizens, voters, petition writers, demonstrators. There are aspects of our system of higher education that we must seek to transform through programs that enable a wider range of students to succeed at our colleges and that provide appealing career opportunities for a wider range of potential faculty members. And then, there is what each of us must do in everyday social life in order to turn our institutions into true communities in which we can all become less parochial and more intelligent by seeing the world through different eyes.
Judith Shapiro is president of the Teagle Foundation and a former president of Barnard College.
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.
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.
New report by American Council on Education argues many college efforts to attract minority students employ race-neutral strategies that aren't as controversial as those that receive considerable attention.