Affirmative Action Under Review? A Reminder of a College’s Ongoing Responsibilities

Last week, The New York Times published a report suggesting that the U.S. Department of Justice would start investigating intentional race-based discrimination in university admissions. As the story evolved, it became known that the report was actually an internal job posting that did “not reflect a new policy or program or any changes to longstanding DOJ policy,” according to a DOJ spokesperson. Later in the week, The Wall Street Journal reported that the posting sought volunteers for a complaint by an Asian-American group that has accused Harvard University of race bias in admissions.

Whether the report does indeed signal a shift in policy or simply requests volunteers for a specific investigation, the story offers an opportunity for colleges to reconsider when, why, and how they use race in their admissions.  To that end, it is important to provide a sober review of the requirements that colleges must observe for their race-conscious admissions policies.

  • Drawing the Link: Connect Diversity to the College’s Mission with “Concrete and Precise” Goals

In 2016, the Supreme Court in Fisher v. University of Texas at Austin lauded UT for the expression of its goals in developing its race-conscious admissions process.  Justice Kennedy wrote that a college needs to identify the educational values that it seeks to realize through its policy.  These values at UT included: the destruction of racial stereotypes, the promotion of cross-racial understanding, the preparation of the student body for an increasingly diverse workforce and society, and the cultivation of a set of leaders with legitimacy in the eyes of the citizenry.  In addition, the Court noted UT’s striving for an academic environment that offers a robust exchange of ideas, exposure to different cultures, preparation for a diverse workforce, and the acquisition of competencies required of future leaders.  Colleges that want to consider race in their admissions process need to express similarly thoughtful explanations for their programs.

  • Data! Data! Data! Evidence is Key If Your Admissions Policy is Challenged

In Fisher, the Majority was impressed with UT’s data collection.  In the real world, not every college has the resources or personnel to match UT’s ability to assess their program.  However, colleges need to have data on hand if their policies are ever questioned.  The Court does give some insight into the types of data that are required.  First, hard numbers are good, but numbers do not tell the whole story.  Relying solely on the number of minority students on campus, pre- and post-policy, is not sufficient.  However, nuanced quantitative data, such as measuring the number of minority students across freshman survey courses in specific disciplines, would satisfy this requirement.  Second, the Court gave weight to UT’s use of anecdotal evidence, lauding the university’s interviews, retreats, and student, faculty, and staff surveys.  Third, the Court required that the reassessment of data should be “done with care,” followed by a “reasonable determination” as to whether the stated policy goals are being met.  Colleges should be mindful to compile data, quantitative and qualitative, that they can use to assess the effectiveness of their admissions policy.

  • Diversity is a Journey, Not a Destination: The Ongoing Responsibility Requirement

It is very important to note that if a college finds a workable way to include race into its admissions process, the college’s responsibilities are not fulfilled under the law.  The Fisher court requires ongoing assessments of whether or not the admissions program satisfies the college’s measureable goals.  Justice Kennedy writes that good faith efforts to comply with the law did “not diminish, however, the University’s continuing obligation to satisfy the burden” on colleges.  He adds that the university should engage in “periodic reassessment” of the effectiveness of their admissions program, considering the school’s unique experiences.  It is critical that colleges realize that even if they craft a perfect plan, periodic assessment of that plan is a required element to escape negative judicial scrutiny.  And, importantly, when the policy doesn’t meet their stated objectives, the plan should be reassessed and adjusted.

 

In sum, a university should 1) identity why diversity is a compelling interest at their campus; 2) use data to scrutinize the fairness of its admissions program; and 3) reassess whether the policy is achieving its stated goals and refine their policy as the data demands.

While affirmative action programs might be under more scrutiny in the Trump Administration, colleges and universities can continue to pursue their goal of a diverse student body by following the judicial requirements set forth for these race-conscious admissions policies.