Texas Tower at the U. of Texas at Austin. In a decision last year in a lawsuit pitting the university against a white student it had rejected, the U.S. Supreme Court laid out what evidence a college can use to show its consideration of race in admissions is appropriate. The court ruled for Texas, in part, because it was able to present an “impressive record,” says one expert.iStock
A report published on Tuesday night in The New York Times that the U.S. Department of Justice is planning “investigations and possible litigation related to intentional race-based discrimination in college and university admissions” made waves this week in higher-education circles.
The story has continued to evolve. On Wednesday morning a department official told The Chronicle in a written statement that the document on which the Times’s report was based was a “personnel posting” that did “not reflect a new policy or program or any changes to longstanding DOJ policy.”
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Texas Tower at the U. of Texas at Austin. In a decision last year in a lawsuit pitting the university against a white student it had rejected, the U.S. Supreme Court laid out what evidence a college can use to show its consideration of race in admissions is appropriate. The court ruled for Texas, in part, because it was able to present an “impressive record,” says one expert.iStock
A report published on Tuesday night in The New York Times that the U.S. Department of Justice is planning “investigations and possible litigation related to intentional race-based discrimination in college and university admissions” made waves this week in higher-education circles.
The story has continued to evolve. On Wednesday morning a department official told The Chronicle in a written statement that the document on which the Times’s report was based was a “personnel posting” that did “not reflect a new policy or program or any changes to longstanding DOJ policy.”
Later in the day the department said it was “seeking volunteers” for a particular investigation, which The Wall Street Journal reported involves a complaint by Asian-American groups that accused Harvard University of racial bias in admissions. The “personnel posting” did not signal a broader shift in direction or a new policy, the department said.
Barely a year after the U.S. Supreme Court appeared to issue its final word on this form of affirmative action, the issue is back, following a Justice Department memo that seemed to promise Trump-administration investigations of colleges. Here’s all of The Chronicle’s coverage.
By then, some college leaders and higher-education associations had already released statements expressing concerns about possible moves by the department. Confusion persisted Wednesday night about the Justice Department’s actions.
If the department does in fact take a closer look at race-conscious admissions, what should colleges — or at least the selective colleges that use that form of affirmative action — do?
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“What institutions should be doing today,” said Arthur L. Coleman, managing partner of EducationCounsel LLC, which advises colleges on student-diversity strategies, “is the very same thing institutions should have been doing the last year, five years ago, and 10 years ago.”
That’s because the U.S. Supreme Court has drawn colleges a map of when, why, and how they might consider race in admissions over the past decade.
David A. Hawkins, executive director for educational content and policy at the National Association for College Admission Counseling, agrees. The group’s guidance to colleges “remains unchanged,” he said in an email. “The Supreme Court’s decision, issued just 13 months ago, remains the law of the land,” he wrote, referring to the case of Fisher v. University of Texas at Austin, and Nacac’s work “to help inform colleges in their compliance with the court’s decision will proceed unabated.”
Even though the law hasn’t changed, the Justice Department news has probably reopened an old question on campuses: How can colleges best prepare for scrutiny of their policies? Here are some key points to keep in mind:
Know how diversity connects to the mission.
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The court has made clear that colleges must demonstrate a compelling interest in the educational purpose of diversity, said Mr. Coleman, who is also a former deputy assistant secretary in the U.S. Department of Education’s Office for Civil Rights. That reason for seeking a diverse student body must connect to a college’s particular mission, Mr. Coleman said, and might relate to teaching and learning, for instance, or work-force preparation.
Student diversity is about more than race and ethnicity, said Chris Lucier, vice president for enrollment management at the University of Delaware, and colleges should be prepared to demonstrate that.
Colleges should ask, “What students don’t we have?,” and then seek to enroll them, said Mr. Lucier, who worked in admissions at the University of Michigan at Ann Arbor when Supreme Court decisions on a pair of challenges to its policies were handed down. And if a college says that it cares about geographic diversity, or enrolling military veterans, its programming and admissions profile should demonstrate that commitment, he said.
Keep playing by the rules.
In addition to articulating why colleges can use race in admissions, the court has spelled out how they can go about it, Mr. Coleman said. Any consideration of race must be “limited and nuanced,” he said, and the college must have some evidence that it’s working. That can be a tough needle to thread.
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At the same time, he said, colleges must give serious consideration to whether their diversity objectives could be met with only race-neutral strategies.
And it’s not as if a college can review its policies once, determine that they’re in compliance, and call it a day. The court has said that colleges must keep examining their diversity efforts and their impact over time.
Have evidence at the ready.
For Mr. Coleman, the big takeaway from the Supreme Court’s most-recent decision on race-conscious admissions — its second ruling in Fisher — is what evidence a college can use to show its consideration of race is appropriate. The University of Texas presented not only data points, but also anecdotes from faculty members and students. The reflections of alumni, Mr. Coleman said, can provide a particularly good sense of how a diverse campus experience prepares students for postcollege life.
Institutions often find themselves, as they focus on these questions, better positioned than they thought.
Texas was able to present an “impressive record,” Mr. Coleman said. But when he works with a college, he starts by looking at what information it already collects. “Institutions often find themselves, as they focus on these questions, better positioned than they thought,” he said.
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Compiling and analyzing such evidence extend beyond the admissions office. At Delaware, conversations about diversity include the president, the provost, deans, the vice president for student life, the general counsel, and the Faculty Senate. Part of an enrollment leader’s job, Mr. Lucier said, is helping constituents across a campus understand they have a role to play in admissions.
Good communication on those issues is crucial, said Jonathan R. Alger, president of James Madison University. And that takes real effort: Large universities are big operations, and they may have multiple admissions programs for their undergraduate, graduate, and professional programs.
Engage the whole campus.
Working to enroll a more diverse student body goes well beyond deciding which applicants get in. After all, public colleges in eight states are banned from considering race in admissions, and they continue to pursue diversity with race-neutral means (though there’s evidence from California’s long history under such a ban that the enrollment of minority students at top colleges may drop despite such efforts).
Besides, all colleges are subject to the Supreme Court’s directive that the use of race in admissions must be limited.
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With that in mind, colleges should seek to enhance diversity of all kinds using race-neutral programs, said Mr. Alger, who is also a former assistant general counsel at Michigan. That means bringing down barriers, he said.
Among those efforts at James Madison: Starting with applicants for admission in the fall of 2018, the university will no longer require standardized-test scores (they were not a good predictor of success among its students, Mr. Alger said), and it started an outreach program for academically promising middle schoolers who would be first-generation college students.
Colleges can learn something from one another’s efforts, he added. That outreach program? It’s modeled on one at Rutgers University, where he was the senior vice president and general counsel.
At James Madison, improving access, diversity, and inclusion is one prong of the strategic plan, Mr. Alger said. So it’s an issue leaders from across the campus are considering all the time.
“It’s not about lawsuits, it’s not about litigation,” he said. “It’s about the educational mission.”
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Beckie Supiano writes about college affordability, the job market for new graduates, and professional schools, among other things. Follow her on Twitter @becksup, or drop her a line at beckie.supiano@chronicle.com.
Beckie Supiano is a senior writer for The Chronicle of Higher Education, where she covers teaching, learning, and the human interactions that shape them. She is also a co-author of The Chronicle’s free, weekly Teaching newsletter that focuses on what works in and around the classroom. Email her at beckie.supiano@chronicle.com.
