Editor’s Note: This column was first published by Education Counsel.
The New York Times recently reported that the US Department of Justice [DoJ] released an internal document indicating action with respect to “a new project on ‘investigations and possible litigation related to intentional race-based discrimination in college and university admissions.’”
The DoJ responded with indications that its effort was aimed at one case on behalf of Asian-American students — a position, according to the Times, that was greeted with some skepticism by others. While there is much more to learn about the Department’s planned action, we should take this opportunity to reflect on the fact that time-tested, common sense principles derived from settled federal law continue to inform the work of higher education institutions today, just as they did last week…and last year.
1. The US Supreme Court in 2003, 2013, and again in 2016 has embraced as “compelling” the substantial body of research affirming that the educational benefits associated with student diversity (enhanced teaching and learning, preparation for a 21st century global economy and workforce, among other things) are “substantial” and “real.” And, in 2003 and in 2016, it specifically upheld challenged practices involving the consideration of race in college admission. Moreover, dozens of briefs filed by Fortune 500 companies, military officials, higher education institutions, and others, have helped shape the court’s judgments, particularly with respect to the positive effects of diversity and the imperative of achieving sufficient student diversity so that all students benefit —on campus and beyond.
2. The US Supreme Court’s near 40-year history on the consideration of race and ethnicity in higher education admission decisions (going all the way back to the landmark Bakke case in 1978) has shaped action by the US Department of Justice and US Department of Education for decades — including in federal regulations, policy guidance, and enforcement resolutions (from the Department of Education’s Office for Civil Rights). Taken together, this body of guidance affirms the core principles associated with the benefits of diversity aims and sanctions consideration of all aspects of an student’s application — including race — in appropriate circumstances. Notably, these actions have reflected important bi-partisan baselines, including notable policy guidance on race-conscious scholarships (in 1994) that was initially drafted during the George W. Bush administration and then finalized during the Clinton administration.
3. The steadfast commitment by higher education leaders to achieving their mission imperatives associated with student diversity should not in any way be in question. In public statements, institutional investments, advocacy, and more, the conviction of higher education leaders (of all political stripes, in states red and blue) about the need to provide meaningful opportunities to all students, regardless of background or circumstance, is clear. And, as research and experience tell us, we are all better off, as a consequence.
As it moves forward with whatever action it is taking, the Trump administration would be well served by reflecting on the actual experience and practice of higher education institutions — which, as succinctly captured by Justice Kennedy in his recent Fisher v. University of Texas opinion for the court — reflects the importance and value of truly holistic, individualized review of applicants for selective institutions that seek to attain the benefits of diversity. His emphasis on the respect for the dignity of each applicant as an individual, indeed, calls for an inclusive evaluation of applicants in such settings, with consideration of all of background qualities and characteristics that define each applicant — and not the arbitrary exclusion of some.
There is simply no apparent basis of study or research to suggest that wide-spread problems in higher education admission merit any kind of shift in federal enforcement positions. To the contrary, our best evidence suggests just the opposite.
Art Coleman leads the legal and policy work of the Access and Diversity Collaborative, a national initiative of which NACAC is a member. The collaborative, spearheaded by the College Board, provides resources on diversity-related issues in higher education, including guidance on legal battles pertaining to diversity in college admission.