Pursuing a Diverse Campus in a Post-Fisher World

October 8, 2013

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By Ada Meloy, former general counsel at ACE

Higher education institutions concerned with campus diversity will once again be watching the U.S. Supreme Court on Oct. 15, when justices hear oral arguments in a Michigan case involving a state ban on the consideration of race and ethnicity in admissions decisions.

The Michigan case of Schuette v. Coalition to Defend Affirmative Action poses very different legal issues than Fisher v. University of Texas at Austin (UT), which was decided just a few months ago. But I’m hopeful that when the court rules on Schuette, likely next year, the justices will reaffirm that diversity on college campuses offers unique educational benefits to students and is a compelling government interest, as they did in Fisher.

In the meantime, there’s no need in the wake of the Fisher ruling for colleges and universities to put the brakes on the use of race and ethnicity in admissions decisions, as long as their senior leaders, admissions officers and legal counsels keep certain principles in mind and implement carefully crafted policies.

The departments of Education and Justice have issued guidance explaining that colleges and universities can employ race-conscious admissions policies, as long as race is just one of several factors and race-neutral alternatives would not be sufficient to achieve an institution’s diversity goals.

There are some specific questions an institution’s legal counsel might want to ask in determining whether an admissions policy meets the standards set out by Fisher and the guidance, including:

  • Is diversity as a goal included explicitly in your institution’s formal mission?
  • Are there policies in place that support the diversity element of the mission?
  • Has your institution considered or implemented race-neutral alternatives and determined they do not suffice to meet its diversity goals?
  • Does your institution use a holistic admissions review process that demonstrates race is just one of a number of factors that makes up each admissions decision?
  • Is the use of race and ethnicity in this holistic admissions process narrowly tailored to meet the compelling interest of diversity?
  • Is your institution collecting and preserving evidence to satisfy a “strict scrutiny” standard, the most stringent type of legal review, of its admissions policies?

These questions, of course, do not apply to institutions in Michigan or the several other states where a state-imposed ban on the consideration of race-conscious admissions policies is in place—which is where the Supreme Court will weigh in this fall in the Schuette case.

Schuette revolves around the issue of whether a state violates the equal protection clause of the U.S. constitution by amending its state constitution to prohibit race or sex-based discrimination or preferential treatment in public university admissions. ACE and 48 other higher education associations submitted an amicus brief Aug. 30 in Schuette. Our brief argues that courts and states should resist substituting their own notions of sound educational policy for those of colleges and universities and refers the justices to the numerous amicus briefs filed by higher education institutions and organizations in the Fisher case.

In the Fisher ruling, the Supreme Court ordered lower courts to reexamine the challenge to UT’s use of race and ethnicity in its admissions process, using “strict scrutiny.” There seems little doubt that groups opposed to race-conscious admissions policies will continue to try to drive their agenda forward through litigation and voter initiatives at the state level.

Careful adherence to these policies will be important for institutions that consider race and ethnicity as part of a multi-faceted strategy to construct a diverse campus. It may even help to discourage the next lawsuit.

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