As ‘Fisher’ Churned, Conversations About Campus Diversity Evolved
Eric Hoover JUNE 24, 2016
Lawsuits move slowly, but the world spins fast. Since Abigail N. Fisher sued the University of Texas at Austin, 3,000 days have elapsed, bringing many changes to college campuses. Although the age-old debate over race-conscious admissions surely will endure, the conversation about campus diversity has broadened in scope. Who gets in still matters. But who a college recruits, and who, once there, gets a chance to thrive, is just as important.
Let’s rewind. The nation met Ms. Fisher in the spring of 2008, a young white woman who had been denied admission to the Texas flagship and wanted to overturn its race-conscious policy. That was before the economy collapsed, yanking higher education into an uncertain era. State funding sagged, family incomes fell, and jobs vanished. Colleges went on recruiting students across a widening socioeconomic gap.
‘Fisher’ in Context: Making Sense of the Decision
How might the Supreme Court’s latest ruling change the college-admissions landscape? Get up to speed with a collection of past Chroniclecoverage.
As the recession rolled on, public and private campuses alike had to confront another challenge: maintaining enrollment and revenue amid demographic shifts. Admissions offices peered into a future where high-school cohorts were becoming more diverse and less affluent. Who were tomorrow’s students? And would colleges be ready to serve them? Anxious administrators grappled with those questions.
Meanwhile, minority students far and wide raised their voices, expressing deep frustrations with their campus life. In 2013 black students at the University of California at Los Angeles made a viral video decrying the scarcity of young men there who looked like them. Nonwhite students at the University of Michigan, Harvard University, and elsewhere used social media to describe their alienation and anger. Last fall black students at the University of Missouri at Columbia, responding to incidents of bigotry, led dramatic protests that set off dozens of others on campuses nationally.
Demographic change and the surge of activism have forced colleges to reckon with what comes before and after admissions. The Fisher case focused on that process, but it’s hardly all that matters. The path to a highly selective campus is much more difficult for poor students and underrepresented minorities than for white, affluent applicants. And merely accepting someone doesn’t guarantee that person a rewarding experience.
As courts weighed the particulars of UT-Austin’s admissions policy, institutions have grappled with deeper issues, such as increasing the academic preparedness of underserved students, and trying to get more of them to apply to college. Groups have pushed to reduce “undermatching,” the pattern of needy students’ attending less-selective colleges than their grades and test scores suggest they could. A slew of big-name colleges have created a new application platform meant to widen access.
“Campuses are recognizing it’s not just about how we admit students. It’s about how we get them to submit an application in the first place,” says Dana Strait, a senior consultant at the consulting firm EAB, formerly the Education Advisory Board. “How do we invest in their preparedness and familiarity with college?”
Since the Fisher case began, many colleges have reached a more nuanced understanding of campus diversity, says Arthur L. Coleman. “For too long, the question began and ended with: What are the numbers? Do we have a diverse student body?”
Those numbers, of course, are important. Yet so, too, are pedagogical and cultural questions, like whether all students are reaping the benefits of the diversity colleges strive to deliver.
Campus leaders are doing more now to fulfill their obligation to support the many kinds of students who matriculate, says Mr. Coleman, a managing partner and co-founder of the consulting firm EducationCounsel LLC. “There are real psychological and educational consequences of admitting classes with lots of differences,” he says. “That means active engagement with students.”
Failing to engage with them leads to problems. Unhappy, isolated students aren’t likely to succeed, colleges have realized. “You can’t do recruitment without retention,” says Fred A. Bonner II, a professor of educational leadership and counseling at Prairie View A&M University, in Texas. “You’ve got to put things in place not just to keep underrepresented students there, but to give them a fulfilling collegiate experience.”
Mr. Bonner, whose research focuses on black men, heard an emphatic refrain in the recent campus protests. “These students are saying to colleges, You hit your targets. So now what? You did all this to get me here, but what kind of experience are we getting on the back end?”
‘Two Different Fights’
Race and class are different threads, but they often entwine. Since Fisher arose, scholars and students alike have helped college leaders see how socioeconomic disparities, and not just race, shape students’ experiences.
When Jarius Sowells enrolled at UT-Austin, in 2009, he felt intimidated. He would walk into classrooms and see no other black faces. He often didn’t feel at home on the predominantly white campus. Yet Mr. Sowells, who grew up in a rough part of Dallas, felt disconnected for other reasons, too. He couldn’t afford to eat where many other students ate, or to live where they lived. “Austin is a very privileged area, with many students from privileged backgrounds,” he says.
Mr. Sowells failed all of his classes that first semester and left the campus. But he returned, studied hard, and joined campus groups, earning a bachelor’s degree in African and African-diaspora studies last year. He has followed the Fisher case closely. “There are these two different fights,” he says. “One’s on the legal side, and the other’s when we come back and look at the underrepresentation of black students, at students who don’t come from privileged backgrounds.”
Although more people are talking about social inequality now than they were eight years ago, colleges aren’t doing nearly enough to confront it, some observers insist. “The rising economic inequality in the society at large contributes to the increased rhetoric around socioeconomic diversity on campuses,” says Richard D. Kahlenberg, a senior fellow at the Century Foundation and proponent of so-called class-based affirmative action. “But there’s a lack of actual action. Selective colleges have not kept up. There’s an enormous underrepresentation of socioeconomically diverse students.”
He understands why. Compared with overcoming a lack of racial diversity, he says, “it’s a less-visible and more-expensive problem to address.”
Still, a recognition of economic disparities has driven changes on numerous campuses. In 2008 the University of South Carolina introduced the Gamecock Guarantee, a program for low-income and first-generation students. It provides substantial aid — and a campus support network, with intensive advising. “You can woo all you want,” says Scott Verzyl, associate vice president for enrollment management there, “but it’s no good if you can’t help them pay for college and succeed.”
Colleges can’t do either for students they don’t really consider. And the standards for admission at the nation’s choosiest colleges remain a barrier for students who have had fewer opportunities — who tend to have lower standardized-test scores. “Fairness requires changing the admissions system to eliminate current biases baked into … evaluating who ‘fits,” says Nancy Leopold, executive director of CollegeTracks, a nonprofit group in Maryland that helps low-income and first-generation students get to college. “These are clubs, admission to which we use to determine our worthiness. So many of those already in the club maintain their sense of self-worth by making sure new members are ‘the best’ and preferably look like them.”
The Fisher case was about fairness, what kind of consideration different applicants deserved. Although Thursday’s ruling upheld UT-Austin’s race-conscious policy, the Supreme Court said the university was obligated “to engage in constant deliberation and continued reflection.” The majority opinion also affirmed that “diversity takes many forms.” Those words echo the continuing challenge of considering the many dimensions of a given applicant’s story, which might include parents of different races, or other subtleties not captured by superficial classifications.
For all that might have changed since Abigail N. Fisher filed her lawsuit, some things have not. Many Americans remain fixated on who gets acceptances — and why — from a handful of the nation’s most-ballyhooed colleges. By and large, those campuses have a fixed numbers of slots, which means plenty of promising applicants get turned down, which means plenty of promising applicants have reason to think the game’s unfair. And by most any measure, it is.
Has the Fisher era brought us any closer to an agreement about what’s just in admissions, what’s good for colleges, what’s right for society?
Mr. Coleman, a former deputy assistant secretary in the U.S. Department of Education’s Office for Civil Rights, has thought about such questions for many years. And he wishes he could offer a different answer: “I’m not convinced that we’re closer yet.”
Eric Hoover writes about admissions trends, enrollment-management challenges, and the meaning of Animal House, among other issues. He’s on Twitter @erichoov, and his email address is [email protected].
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JUNE 23, 2016
‘Fisher’ in Context: Making Sense of the Decision
The Supreme Court’s latest ruling in Fisher v. University of Texas at Austin put an end to one of the most closely watched legal fights in higher education. The court upheld the Austin campus’s race-conscious admissions policy, but said that the university has an “ongoing obligation to engage in constant deliberation and continued reflection regarding its admissions policies.”
So there’s still much to say about the future of race in admissions. Here, from The Chronicle‘s archives, is a collection of articles that puts Fisher in a broader campus context.
As ‘Fisher’ Churned, Conversations About Campus Diversity Evolved
By Eric Hoover
Shifts in economics and student demographics, along with resurgent activism, have altered the tenor of the discussion about affirmative action over the past eight years.
Race-Conscious Admissions Policies Just Got Easier to Defend
By Peter Schmidt
The U.S. Supreme Court’s ruling in favor of the University of Texas both fleshes out how colleges can stay out of legal trouble and blunts some of the weapons used to attack affirmative action.
3 Key Takeaways From the Supreme Court’s Decision on Race-Conscious Admissions
The University of Texas at Austin is not off the hook, even though its holistic process is legal, the majority ruled. But this was not a sweeping affirmation of affirmative action.
Supreme Court Upholds Use of Race-Conscious Admissions at U. of Texas
The justices’ ruling puts an apparent end to one of the most closely watched cases in higher education, though the fight over colleges’ consideration of race is likely to continue.
Colleges Contemplate a Race-Neutral Future
By Eric Hoover
More admissions deans plan for a day when they must don blindfolds and admit a class without considering race.
College Admissions, Frozen in Time
By Eric Hoover
In an era of innovation, higher education clings to an age-old system fueled by debatable metrics.
The Supreme Court Could Fuel Campus Unrest in Ruling on Race in Admissions
By Peter Schmidt
A case involving affirmative action at the University of Texas gives the justices a chance to further limit colleges’ efforts to meet rising student demands for more diversity.
What the Supreme Court Will Be Asking as It Revisits Affirmative Action
By Peter Schmidt
In hearing a challenge to race-conscious admissions at the University of Texas at Austin, the justices are likely to focus on applying established limits on such policies, not scrapping them.
On U. of Texas’ Flagship Campus, Soul-Searching Over Diversity
By Libby Sander
The case is echoing across the University of Texas’s flagship, and for some students, it’s personal.
7 Myths About Campus Diversity
By Eric Hoover
One expert offers suggestions for admissions officials who wonder how the U.S. Supreme Court will rule in a key affirmative-action case.
For Admissions Offices, Supreme Court’s Ruling Prolongs ‘Fuzziness’
By Eric Hoover
Even in states with bans on affirmative action, admissions offices at public colleges anxiously awaited a ruling on race-conscious admissions.
Fisher v. Texas: Where the Justices Stood
The Supreme Court’s 7-to-1 decision in an affirmative-action case involving the University of Texas at Austin featured four separate opinions.
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Supreme Court Upholds Consideration of Race
Surprise ruling comes in much-litigated dispute over policies at University of Texas at Austin. Higher ed leaders see formula they can embrace for continuing their current policies.
By
WASHINGTON — The U.S. Supreme Court on Thursday upheld the University of Texas at Austin’s consideration of race and ethnicity in college admissions. Some parts of the decision in the case, Fisher v. University of Texas at Austin, related to features unique to that university.
But other parts of the case will likely apply to admissions and financial aid policies in most of American higher education.
The court ruled that the primary reason that the plaintiff in the case was denied admission to the university was not its consideration of race in admissions, but its “10 percent plan,” in which the top 10 percent of high school graduates are admitted to the public college or university of their choice.
The university does have “a continuing obligation” to meet the legal test of “strict scrutiny” by “periodically reassessing the admission program’s constitutionality, and efficacy, in light of the school’s experience and the data it has gathered since adopting its admissions plan, and by tailoring its approach to ensure that race plays no greater role than is necessary to meet its compelling interests,” the decision says.
At the time that the plaintiff was rejected for admission, however, the decision said, the university had met that burden.
“The record here reveals that the university articulated concrete and precise goals — e.g., ending stereotypes, promoting ‘cross-racial understanding,’ preparing students for ‘an increasingly diverse workforce and society,’ and cultivating leaders with ‘legitimacy in the eyes of the citizenry’ — that mirror the compelling interest this court has approved in prior cases,” said the decision.
The decision was written by Justice Anthony M. Kennedy, generally considered a swing vote on many issues, but who has consistently in the past been skeptical of education policies based on race. He was joined by Justices Ruth Bader Ginsburg, Stephen G. Breyer and Sonia Sotomayor.
In a dissent, Justice Samuel Alito Jr. — joined by Chief Justice John Roberts and Justice Clarence Thomas — strongly criticized the decision and the University of Texas policies. The dissent calls the university’s arguments “shifting, unpersuasive and, at times, less than candid.”
Justice Elena Kagan, who worked on the case as solicitor general before she joined the Supreme Court, recused herself from the case. When Justice Antonin Scalia died in February, the stage was set for a ruling by only seven justices. Scalia consistently opposed the consideration of race in admissions, so his death may have cleared the way for today’s decision. A four-four tie on the case would still have left the University of Texas policies intact, but would have not have the same power as a precedent on the issue.
A defeat for affirmative action had been widely expected because, with Kagan not voting, only three justices on the court are considered reliable backers of affirmative action.
Michael A. Olivas, the William B. Bates Distinguished Chair in Law at the University of Houston and interim president of the university’s downtown campus, is one of the few legal observers who has consistently predicted that affirmative action would survive the legal challenge brought by Abigail Fisher, a white woman rejected for admission by the University of Texas. Via email on Monday, he said, “It is about time that Fisher accepts that she was inadmissible, and that she lost, once again. No applicant of color would ever get so many bites at the apple, and whites still make up a disproportionate percent of percentage plan admits and discretionary admits at UT.”
Fisher, through her lawyers, released this statement: “I am disappointed that the Supreme Court has ruled that students applying to the University of Texas can be treated differently because of their race or ethnicity. I hope that the nation will one day move beyond affirmative action.”
Leaders of many higher education groups praised the ruling. President Obama spoke about the decision at a White House briefing, saying, “I’m pleased that the Supreme Court upheld the basic notion that diversity is an important value in our society, and that this country should provide a high-quality education to all our young people, regardless of their background. We are not a country that guarantees equal outcomes, but we do strive to provide an equal shot to everybody. And that’s what was upheld today.”
Hillary Clinton, the presumptive Democratic nominee for president, tweeted her approval.
Donald Trump, the presumptive Republican nominee, has not weighed in since the decision was announced.
Today’s ruling is the second time the Supreme Court has considered the Fisher case.
The Supreme Court on Affirmative Action in Higher Education
Ruling 7 to 1, the court in 2013 found that the U.S. Court of Appeals for the Fifth Circuit had erred in not applying “strict scrutiny” to the policies of UT Austin, which were challenged by Fisher. She said that her rights were violated by UT Austin’s consideration of race and ethnicity in admissions decisions. Fisher’s lawyers argued that the University of Texas need not consider race because it has found another way to assure diversity in the student body, the 10 percent plan.
Fisher was a high school senior when she first sued UT Austin in 2008. She enrolled at and graduated from Louisiana State University after she was rejected by UT but has continued the legal case over her rejection.
The 2013 ruling essentially raised the bar for colleges in terms of how they had to justify the consideration of race and ethnicity in admissions, but did not bar its use.
In July 2014, a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit upheld, 2 to 1, the UT admissions plan. And it is an appeal of that ruling on which the U.S. Supreme Court ruled today.
The majority decision from the appeals court said that just because Texas could get some diversity based on the percentage plan alone does not mean it can’t do more than that. “An emphasis on numbers in a mechanical admissions process is the most pernicious of discriminatory acts because it looks to race alone, treating minority students as fungible commodities that represent a single minority viewpoint,” the judges wrote. “Critical mass, the tipping point of diversity, has no fixed upper bound of universal application, nor is it the minimum threshold at which minority students do not feel isolated or like spokespersons for their race.”
Further, the appeals court said that the University of Texas is correct not to rely solely on the percentage plan, which in turn works because of segregation. The plaintiff’s “claim can proceed only if Texas must accept this weakness of the top 10 percent plan and live with its inability to look beyond class rank and focus upon individuals,” the decision says. “Perversely, to do so would put in place a quota system pretextually race neutral. While the top 10 percent plan boosts minority enrollment by skimming from the tops of Texas high schools, it does so against this backdrop of increasing resegregation in Texas public schools, where over half of Hispanic students and 40 percent of black students attend a school with 90 [to] 100 percent minority enrollment.”
Justice Alito’s dissent argued that the majority decision did not comply with the Supreme Court’s 2013 decision. “At best, the university’s attempted articulations of ‘critical mass’ before this court are subjective, circular or tautological,” the dissent says. “The university explains only that its ‘concept of critical mass is defined by reference to the educational benefits that diversity is designed to produce.’ And, in attempting to address when it is likely to achieve critical mass, the university explains only that it will ‘cease its consideration of race when it determines … that the educational benefits of diversity can be achieved at UT through a race-neutral policy ….’
“These articulations are insufficient. Under the rigors of strict scrutiny, the judiciary must ‘verify that it is necessary for a university to use race to achieve the educational benefits of diversity.’ It is not possible to perform this function when the university’s objective is unknown, unmeasurable or unclear.”
Anxious Presidents
College and university presidents, most of whom backed the University of Texas, have been waiting anxiously for today’s ruling.
Michael V. Drake, president of Ohio State University, was formerly chancellor of the University of California, Irvine, which is banned by the California Constitution from considering race or ethnicity in admissions. He said that the California limits “make the job of creating inclusive higher education that much more difficult.”
He said that Ohio State, like Texas, does consider race and ethnicity, but as one factor among many. “We are looking for the very best, looking at a variety of factors,” he said. “This decision affirms the real value of inclusion in a society like ours — particularly in bringing people from traditionally marginalized groups into our system.”
Thomas Sullivan, a lawyer and legal scholar who is president of the University of Vermont, said he saw the decision as a strong victory for higher education. The court could have ruled strictly on technical grounds that Fisher didn’t have standing, or ordered more hearings. Instead, he said, the court affirmed prior rulings on the value of diversity and also of the appropriate role for colleges in determining (within some limits) their admissions policies.
“This is a big win in terms of saying colleges should have some discretion,” he said. At the same time, he noted that the decision continues to outline requirements (as past decisions have done) for colleges to meet before they use race or ethnicity as a factor in admissions.
Deference to Higher Education
A key part of the first Supreme Court ruling in Fisher was that colleges and universities were, as Sullivan noted, owed some deference on these issues. The earlier ruling limited that deference, and Justice Kennedy cited that limit. “No deference is owed when determining whether the use of race is narrowly tailored to achieve the university’s permissible goals,” he noted.
But while that provision attracted considerable attention last time around, Kennedy stressed areas where colleges should in his opinion receive deference. He quoted from the earlier decision: “The decision to pursue ‘the educational benefits that flow from student body diversity’ … is, in substantial measure, an academic judgment to which some, but not complete, judicial deference is proper.”
In this case, Kennedy also said that it was relevant that the University of Texas was acting under the percentage plan — even if Fisher didn’t challenge that — and that the Texas Legislature imposed the percentage plan as a race-neutral way to promote some level of diversity. Justice Kennedy noted that without Fisher having challenged the plan, there wasn’t a legal record on the plan itself.
“That legislative response, in turn, circumscribed the university’s discretion in crafting its admissions policy,” Kennedy wrote. “These circumstances refute any criticism that the university did not make good-faith efforts to comply with the law.”
While Kennedy strongly defended the constitutionality of the Texas admissions policies, he also stressed the obligations of the university (and presumably other colleges) to constantly evaluate whether they need to consider race and ethnicity to achieve diversity. Colleges, he said, must gather data on various strategies to promote diversity.
“As the university examines this data, it should remain mindful that diversity takes many forms. Formalistic racial classifications may sometimes fail to capture diversity in all of its dimensions and, when used in a divisive manner, could undermine the educational benefits the university values,” the decision says. “Through regular evaluation of data and consideration of student experience, the university must tailor its approach in light of changing circumstances, ensuring that race plays no greater role than is necessary to meet its compelling interest.”
The Influence of Race
In his dissent, Justice Alito argued that in fact the university is doing what Kennedy would bar: making race the key factor in admissions.
“Although UT claims that race is but a ‘factor of a factor of a factor of a factor,’ UT acknowledges that ‘race is the only one of [its] holistic factors that appears on the cover of every application,'” Alito wrote, quoting from depositions. “Consideration of race therefore pervades every aspect of UT’s admissions process.”
Further, Alito questions why Latino applicants receive more of an edge in admissions than do Asian-American applicants, who also add to diversity. And he adds that the university’s argument that it needs a “critical mass” of minority students is too vague to be a justification.
Alito argues that the majority is ignoring the earlier Fisher decision in not sufficiently questioning the university’s arguments.
“The majority’s uncritical deference to UT’s self-serving claims blatantly contradicts our decision in the prior iteration of this very case, in which we faulted the Fifth Circuit for improperly ‘deferring to the university’s good faith in its use of racial classifications,'” Alito writes. “As we emphasized just three years ago, our precedent ‘ma[kes] clear that it is for the courts, not for university administrators, to ensure that’ an admissions process is narrowly tailored.”
It is possible that there will be further challenges to colleges’ consideration of race. Parts of the decision do rest on unique factors at the University of Texas. But many critics and supporters of affirmative action expected this to be the case that might change things dramatically. For now, a legal battle that started in 2008 appears to be over.