tag:theconversation.com,2011:/fr/topics/abigail-fisher-case-18376/articlesAbigail Fisher case – The Conversation2017-08-07T02:24:39Ztag:theconversation.com,2011:article/821312017-08-07T02:24:39Z2017-08-07T02:24:39ZThe missing elements in the debate about affirmative action and Asian-American students<figure><img src="https://images.theconversation.com/files/181076/original/file-20170804-23934-u3juga.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Protest against racial quotas during a rally outside the Supreme Court in Washington in 2015.</span> <span class="attribution"><span class="source">AP Photo/Jacquelyn Martin</span></span></figcaption></figure><p>Media reports have stated that the Justice Department under President Donald Trump is planning to investigate <a href="https://www.theguardian.com/education/2015/may/16/asian-american-groups-file-racial-quotas-complaint-against-harvard-university">a complaint of discrimination</a> against Harvard University brought by a coalition of Asian-American groups. </p>
<p>From our perspective as scholars who study affirmative action, race and diversity in higher education, the complaint reflects a <a href="http://www.chronicle.com/article/What-You-Need-to-Know-About/240820">flawed understanding</a> of race-conscious education policies like affirmative action.</p>
<p>How do affirmative action policies work, and whom do they affect? </p>
<h2>Fisher case</h2>
<p>Let’s first look at the legal wrangling that has been going on for some time on this issue. Since the 1978 <a href="https://www.oyez.org/cases/1979/76-811">Regents of the University of California v. Bakke</a> case, the Supreme Court consistently has affirmed that under certain conditions (e.g., no numerical set-asides or quotas, diversity is a compelling interest) it is constitutional for institutions of higher education to consider a student’s race in admissions processes. </p>
<p>Most recently, in a landmark judgment on June 23, 2016, the U.S. Supreme Court <a href="https://theconversation.com/after-supreme-courts-fisher-decision-what-we-need-to-know-about-considering-race-in-admissions-59784">upheld the constitutionality of race-conscious affirmative action</a> in university admissions in the <a href="https://theconversation.com/explainer-crucial-texas-case-on-race-considerations-in-college-admissions-44117">Abigail Fisher</a> case.</p>
<p>Fisher, a white woman, had sued the University of Texas at Austin (UT Austin) for its race-conscious admissions policy after she was denied admission. She had argued that the university violated the equal protection clause of the 14th Amendment.</p>
<p>Supporters of race-conscious admissions programs were understandably gratified. But as the <a href="https://www.nytimes.com/2017/08/02/us/affirmative-action-battle-has-a-new-focus-asian-americans.html?emc=edit_tnt_20170803&nlid=78846674&tntemail0=y">recent discussion about affirmative action demonstrates,</a> the case did not resolve the larger moral and political disagreements over affirmative action.</p>
<p>Indeed, over the last 40 years, affirmative action opponents have repeatedly strategized anew after important Supreme Court decisions in favor of affirmative action.</p>
<h2>Harvard lawsuit</h2>
<p>It is perhaps no coincidence that Edward Blum, Abigail Fisher’s adviser and the executive director of the <a href="https://www.projectonfairrepresentation.org/">Project on Fair Representation</a>, is the one leading the most recent court challenge to affirmative action, the lawsuit challenging Harvard University’s race-conscious admissions policy. What is different about the <a href="http://studentsforfairadmissions.org/wp-content/uploads/2014/11/SFFA-v.-Harvard-Complaint.pdf">Harvard lawsuit</a> is that the lead plaintiff in the case is not a white student but Asian-American. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/130611/original/image-20160714-23365-137rvqu.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/130611/original/image-20160714-23365-137rvqu.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=399&fit=crop&dpr=1 600w, https://images.theconversation.com/files/130611/original/image-20160714-23365-137rvqu.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=399&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/130611/original/image-20160714-23365-137rvqu.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=399&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/130611/original/image-20160714-23365-137rvqu.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=502&fit=crop&dpr=1 754w, https://images.theconversation.com/files/130611/original/image-20160714-23365-137rvqu.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=502&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/130611/original/image-20160714-23365-137rvqu.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=502&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Asian-Americans participate in an Advancing Justice conference.</span>
<span class="attribution"><a class="source" href="https://www.flickr.com/photos/justiceconf/15364290448/in/photolist-ppG1gs-ppEvQx-ppKxNw-pE4tMS-fjpnxG-oKkpH2-oKioP3-ppHAfX-ppDjC4-pG9Svz-pG8YoZ-ppG1qf-pE4uUm-pE3uKL-oKmiSx-pG8XtT-ppGYWb-fjaaza-oKioG9-pFU68K-ppKtHh-ppJvdo-pFVaor-pGefe3-ppJxjY-fjoUu7-pE4oZA-ppHDCP-oKiruy-ppJowh-ppHBEa-ppEuFD-ppGTMy-pE3vFd-fjpa2y-pE4uiw-oKmmzg-pE4usQ-oKik3f-ppKtKG-oKisgd-pE3pYb-pE4qTf-pGeeEs-pFVbe4-pE4px9-ppKvjd-pGefJ1-pGedjw-ppGUdU">Advancing Justice Conference</a>, <a class="license" href="http://creativecommons.org/licenses/by-nc-sa/4.0/">CC BY-NC-SA</a></span>
</figcaption>
</figure>
<p>“<a href="https://studentsforfairadmissions.org/">Students for Fair Admissions</a>,” an arm of the Project on Fair Representation, filed a suit against Harvard College on Nov. 17, 2014, on behalf of a Chinese-American applicant who had been rejected from Harvard. The lawsuit charges that the university’s admissions policy violates <a href="http://www.hhs.gov/civil-rights/for-individuals/race/index.html">Title VI of the Civil Rights Act of 1964</a>, which bars federally funded entities from discriminating based on race or ethnicity.</p>
<h2>How it started</h2>
<p>This controversy over how Asian-Americans are being treated in selective college admission was jump-started in 2005, when sociologists <a href="https://www.princeton.edu/%7Etje/">Thomas Espenshade</a> and <a href="http://scholar.princeton.edu/sites/default/files/cchung/files/chang_y_chung.pdf">Chang Chung</a> published <a href="https://www.princeton.edu/%7Etje/files/webOpportunity%20Cost%20of%20Admission%20Preferences%20Espenshade%20Chung%20June%202005.pdf">findings</a> from their study on the effects of affirmative action bans on the racial and ethnic composition of student bodies at selective colleges and universities. </p>
<p>Espenshade and Chung found that if affirmative action were to be eliminated, the acceptance rates for black and <a href="https://www.insidehighered.com/news/2015/12/08/students-adopt-gender-nonspecific-term-latinx-be-more-inclusive">Latino</a> applicants would likely decrease substantially, while the acceptance rate for white applicants would increase slightly. </p>
<p>But more than that, what they noted was that the acceptance rate for Asian-American applicants would increase the most by far. </p>
<p>As the researchers explained, Asian-American students “would occupy four out of every five seats created by accepting fewer African-American and Hispanic students.” </p>
<p>Such research has been cited to support claims of admissions discrimination against Asian-Americans. </p>
<p>In the complaint against Harvard, Espenshade’s research was cited as evidence of discrimination against Asian-Americans. Specifically, the lawsuit cited research from 2009 in which Espenshade, this time with co-author <a href="https://www.rti.org/expert/alexandria-walton-radford">Alexandria Radford,</a> <a href="http://press.princeton.edu/titles/9072.html">found</a> that Asian-American applicants accepted at selective colleges had higher standardized test scores, on average, than other accepted students. </p>
<p>These findings, especially that Asian-American applicants seem to need a higher SAT score than white applicants or other applicants of color in order to be admitted to a selective college, are being used as proof that elite institutions like Harvard are discriminating against Asian-Americans in their admissions processes. </p>
<h2>The picture is more complicated</h2>
<p>Selective admissions processes are much more complicated than SAT score data can show. There are many factors that are taken into consideration for college admission. </p>
<p>For example, in the “holistic” admissions processes endorsed by the Supreme Court in Grutter v. Bollinger, standardized text scores are not the only, or even the main, criterion for admission. <a href="https://www.aamc.org/initiatives/holisticreview/about/">“Holistic” review</a> takes many relevant factors into account, including academic achievement, of course, but also factors such as a commitment to public service, overcoming difficult life circumstances, achievements in the arts or athletics, or leadership qualities.</p>
<p>So, why would the plaintiff in the Harvard case conclude that the disparities in SAT scores shown by Espenshade and Radford necessarily indicate that Asian-American applicants are being harmed by race-conscious affirmative action? </p>
<p>In fact, legal scholar <a href="http://apahenational.org/?page_id=402">William Kidder</a> <a href="http://media.asian-nation.org/Kidder-Negative-Action.pdf">has argued</a> that the way Espenshade and Radford’s findings have been interpreted by affirmative action opponents is not accurate. </p>
<p>Based on his analysis, Kidder concluded, </p>
<blockquote>
<p>“Exaggerated claims about the benefits for APAs [Asian Pacific Americans] of ending affirmative action foster a divisive public discourse in which APAs are falsely portrayed as natural adversaries of affirmative action and the interests of African American and Latinos in particular.” </p>
</blockquote>
<p>In our opinion as well, focusing on simplistic ideas about standardized tests as the primary evidence for who “deserves” to be admitted to elite institutions like Harvard may serve to stir up resentment among accomplished applicants who get rejected.</p>
<h2>Asian-Americans are not a monolithic group</h2>
<p>As the “Harvard Not Fair” website and accompanying lawsuit demonstrate, Espenshade’s findings have been used to fuel a <a href="http://www.jaconlinejournal.com/archives/vol26.1-2/banning-politics.pdf">politics of resentment</a> among rejected Asian-American applicants.</p>
<p>When speaking with reporters, Espenshade himself has acknowledged that <a href="http://www.thecrimson.com/article/2015/5/16/complaint-federal-harvard-admissions/">his data are incomplete</a> – given that colleges take myriad factors into account in admissions decisions – and that his findings have been overinterpreted and actually <a href="https://www.insidehighered.com/news/2009/11/03/elite">do not prove</a> that colleges discriminate against Asian-American applicants. </p>
<figure class="align-right ">
<img alt="" src="https://images.theconversation.com/files/130456/original/image-20160713-12389-1m8kj97.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/130456/original/image-20160713-12389-1m8kj97.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=399&fit=crop&dpr=1 600w, https://images.theconversation.com/files/130456/original/image-20160713-12389-1m8kj97.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=399&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/130456/original/image-20160713-12389-1m8kj97.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=399&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/130456/original/image-20160713-12389-1m8kj97.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=502&fit=crop&dpr=1 754w, https://images.theconversation.com/files/130456/original/image-20160713-12389-1m8kj97.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=502&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/130456/original/image-20160713-12389-1m8kj97.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=502&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Are Asian-American students a monolithic group?</span>
<span class="attribution"><a class="source" href="https://www.flickr.com/photos/brainchildvn/3005463222/in/photolist-5zzMvq-4E3x4k-gZVoyq-6fVSsc-hyi8DC-8x8MvT-dkX8eD-4E3x56-dkY496-dkX8gg-4Tenr6-gZWMk2-5zziDu-4TAeVw-5zzTqq-5zzX5C-gZWopW-5zzZ8G-5zviMz-4VFbik-bDyRg3-5zzbuG-5zzRBs-dkX8ec-r4DrgY-4WEYRg-5zzUpu-5zzhcm-5zvyzF-5zvdua-9wAUG5-5zvhUB-dkY4de-5zvpVg-5zuXBV-5zvQtz-5zv7a2-5zvoRZ-5zAbwj-5zvAs2-aEfpT3-reqP2q-foRaAe-5zvYLt-5zzY33-5zA4fL-5zv12i-5zvxrk-5zvagc-5zuUp2">Charlie Nguyen</a>, <a class="license" href="http://creativecommons.org/licenses/by/4.0/">CC BY</a></span>
</figcaption>
</figure>
<p>In addition, in using <a href="http://harvardnotfair.org/">images of Asian-American students</a> to recruit complainants against Harvard and other highly selective institutions of higher education, the Project on Fair Representation <a href="https://www.upress.umn.edu/book-division/books/chains-of-babylon">relies on the idea</a> that Asian-Americans comprise a monolithic group. In fact, the term “Asian-American” refers to a <a href="https://theconversation.com/is-there-an-asian-disadvantage-in-higher-ed-44070">diversity of Asian ethnicities</a> in the United States, whose educational opportunities and achievements vary widely. </p>
<p>The 2010 census question on race included check boxes for six Asian groups – Asian Indian, Chinese, Filipino, Japanese, Korean and Vietnamese – along with a box for “Other Asian,” with a prompt for detailed responses such as “Hmong, Laotian, Thai, Pakistani, Cambodian, and so on.” </p>
<p>Furthermore, by casting plaintiffs as meritorious and deserving of a spot at an elite university, it also conveys the <a href="http://press.princeton.edu/titles/10134.html">stereotypical received wisdom about Asian-American “model” students</a> who are wronged by race-conscious affirmative action programs. </p>
<p>In actuality, many <a href="https://secure-media.collegeboard.org/digitalServices/pdf/professionals/asian-americans-and-pacific-islanders-facts-not-fiction.pdf">Asian-Americans benefit from affirmative action policies</a>.</p>
<p><em>This is an updated version of an article originally published on July 14, 2016.</em></p><img src="https://counter.theconversation.com/content/82131/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Christina Paguyo receives funding from the National Science Foundation and in the past has received funding from the American Educational Research Association. She is a owner and consultant for Data Luminaries, LLC. She is affiliated with the Democratic Party and is a member of the American Educational Research Association, American Evaluation Association, American Society for Engineering Education, and the Association for the Study of Higher Education. </span></em></p><p class="fine-print"><em><span>Daryl Maeda and Michele S. Moses do not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Scholars argue that the complaint of bias against Harvard reflects a flawed understanding of affirmative action policies.Michele S. Moses, Professor of Educational Foundations, Policy, and Practice, University of Colorado BoulderChristina Paguyo, Post Doctoral Fellow, Colorado State UniversityDaryl Maeda, Associate Professor of Ethnic Studies, University of Colorado BoulderLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/618992016-07-14T22:28:05Z2016-07-14T22:28:05ZAfter Fisher: affirmative action and Asian-American students<p>After eight years, the <a href="https://theconversation.com/explainer-crucial-texas-case-on-race-considerations-in-college-admissions-44117">Abigail Fisher</a> case finally <a href="https://theconversation.com/after-supreme-courts-fisher-decision-what-we-need-to-know-about-considering-race-in-admissions-59784">has been put to rest</a>. In a landmark judgment on June 23, the U.S. Supreme Court upheld the constitutionality of race-conscious affirmative action in university admissions. </p>
<p>Abigail Fisher, a white woman, had sued the University of Texas at Austin (UT Austin) for its race-conscious admissions policy after she was denied admission. She had argued that the university violated the equal protection clause of the Fourteenth Amendment.</p>
<p>Supporters of race-conscious admissions programs are understandably gratified. But has the case resolved the larger moral and political disagreements over affirmative action?</p>
<p>Roger Clegg, president of the <a href="http://www.ceousa.org/">Center for Equal Opportunity</a>, which supports colorblind policies, has already called the decision just “<a href="http://www.nytimes.com/2016/06/24/us/politics/supreme-court-affirmative-action-university-of-texas.html?_r=0">a temporary setback</a>.”</p>
<p>Indeed, over the last 40 years, affirmative action opponents have repeatedly strategized anew after important Supreme Court decisions in favor of affirmative action. They did so after the 1978 decision in <a href="http://www.casebriefs.com/blog/law/constitutional-law/constitutional-law-keyed-to-chemerinsky/equal-protection/regents-of-the-university-of-california-v-bakke/">Regents of the University of California v. Bakke</a>, when the Supreme Court, while allowing race to be one of the factors in choosing <a href="http://nepc.colorado.edu/files/Moses_TheDiversityRationale.TheIntellectualRootsofandIdeal.pdf">a diverse student body</a>, held the use of quotas to be “impermissible.” </p>
<p>And they did so after the 2003 decision in <a href="https://supreme.justia.com/cases/federal/us/539/306/case.html">Grutter v. Bollinger</a>, when the high court again ruled that race-conscious affirmative action was constitutional.</p>
<p>We are scholars who study affirmative action, race, and diversity in higher education. We believe that the disagreement about affirmative action will not
end anytime soon. And it may well center on lawsuits on behalf of Asian-American college applicants. </p>
<h2>Here is what is coming next</h2>
<p>Through his organization, the <a href="https://www.projectonfairrepresentation.org/">Project on Fair Representation</a>, Abigail Fisher’s advisor, Edward Blum, is currently engaged in a <a href="https://studentsforfairadmissions.org/">lawsuit challenging</a> Harvard University’s race-conscious admissions policy. </p>
<p>What is different about the <a href="http://studentsforfairadmissions.org/wp-content/uploads/2014/11/SFFA-v.-Harvard-Complaint.pdf">Harvard lawsuit</a> is that the lead plaintiff in the case is not a white student. The plaintiff is an Asian-American student. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/130611/original/image-20160714-23365-137rvqu.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/130611/original/image-20160714-23365-137rvqu.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=399&fit=crop&dpr=1 600w, https://images.theconversation.com/files/130611/original/image-20160714-23365-137rvqu.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=399&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/130611/original/image-20160714-23365-137rvqu.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=399&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/130611/original/image-20160714-23365-137rvqu.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=502&fit=crop&dpr=1 754w, https://images.theconversation.com/files/130611/original/image-20160714-23365-137rvqu.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=502&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/130611/original/image-20160714-23365-137rvqu.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=502&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Asian-Americans participate in an Advancing Justice conference.</span>
<span class="attribution"><a class="source" href="https://www.flickr.com/photos/justiceconf/15364290448/in/photolist-ppG1gs-ppEvQx-ppKxNw-pE4tMS-fjpnxG-oKkpH2-oKioP3-ppHAfX-ppDjC4-pG9Svz-pG8YoZ-ppG1qf-pE4uUm-pE3uKL-oKmiSx-pG8XtT-ppGYWb-fjaaza-oKioG9-pFU68K-ppKtHh-ppJvdo-pFVaor-pGefe3-ppJxjY-fjoUu7-pE4oZA-ppHDCP-oKiruy-ppJowh-ppHBEa-ppEuFD-ppGTMy-pE3vFd-fjpa2y-pE4uiw-oKmmzg-pE4usQ-oKik3f-ppKtKG-oKisgd-pE3pYb-pE4qTf-pGeeEs-pFVbe4-pE4px9-ppKvjd-pGefJ1-pGedjw-ppGUdU">Advancing Justice Conference</a>, <a class="license" href="http://creativecommons.org/licenses/by-nc-sa/4.0/">CC BY-NC-SA</a></span>
</figcaption>
</figure>
<p>“Students for Fair Admissions,” an arm of the Project on Fair Representation, filed a suit against Harvard College on November 17, 2014, on behalf of a Chinese-American applicant who had been rejected from Harvard. The lawsuit charges that Harvard’s admissions policy violates <a href="http://www.hhs.gov/civil-rights/for-individuals/race/index.html">Title VI of the Civil Rights Act of 1964</a>, which bars federally funded entities from discriminating based on race or ethnicity.</p>
<p>The “<a href="http://harvardnotfair.org/">Harvard University Not Fair</a>” website greets readers with a photo of an Asian-American student accompanied by the following text: </p>
<blockquote>
<p>“Were you denied admission to Harvard? It may be because you’re the wrong race.”</p>
</blockquote>
<h2>How it started</h2>
<p>This controversy over how Asian-Americans are being treated in selective college admission was jump-started in 2005, when sociologists <a href="https://www.princeton.edu/%7Etje/">Thomas Espenshade</a> and <a href="http://scholar.princeton.edu/sites/default/files/cchung/files/chang_y_chung.pdf">Chang Chung</a> published <a href="https://www.princeton.edu/%7Etje/files/webOpportunity%20Cost%20of%20Admission%20Preferences%20Espenshade%20Chung%20June%202005.pdf">findings</a> from their study on the effects of affirmative action bans on the racial and ethnic composition of student bodies at selective colleges and universities. </p>
<p>Espenshade and Chung found that if affirmative action were to be eliminated, the acceptance rates for black and <a href="https://www.insidehighered.com/news/2015/12/08/students-adopt-gender-nonspecific-term-latinx-be-more-inclusive">Latino</a> applicants would likely decrease substantially, while the acceptance rate for white applicants would increase slightly. But more than that, what they noted was that the acceptance rate for Asian-American applicants would increase the most by far. </p>
<p>As the researchers explained, Asian-American students “would occupy four out of every five seats created by accepting fewer African-American and Hispanic students.” </p>
<p>Such research has been cited to support claims of admissions discrimination against Asian-Americans. </p>
<p>In the complaint against Harvard, Espenshade’s research was cited as evidence of discrimination against Asian-Americans. Specifically, the lawsuit cited research from 2009 in which Espenshade, this time with coauthor <a href="https://www.rti.org/expert/alexandria-walton-radford">Alexandria Radford,</a> <a href="http://press.princeton.edu/titles/9072.html">found</a> that Asian-American applicants accepted at selective colleges had higher standardized test scores, on average, than other accepted students. </p>
<p>These findings, especially that Asian-American applicants seem to need a higher SAT score than white applicants or other applicants of color in order to be admitted to a selective college are being used as proof that elite institutions like Harvard are discriminating against Asian-Americans in their admissions processes. </p>
<h2>The picture is more complicated</h2>
<p>As we know, selective admissions processes are much more complicated than SAT score data can show. There are many factors that are taken into consideration for college admission. </p>
<p>For example, in the “holistic” admissions processes endorsed by the Supreme Court in Grutter v. Bollinger, standardized text scores are not the only, or even the main, criterion for admission. <a href="https://www.aamc.org/initiatives/holisticreview/about/">“Holistic” review</a> takes many relevant factors into account, including academic achievement, of course, but also factors such as a commitment to public service, overcoming difficult life circumstances, achievements in the arts or athletics, or leadership qualities.</p>
<p>So, why would the plaintiff in the Harvard case conclude that the disparities in SAT scores shown by Espenshade and Radford necessarily indicate that Asian-American applicants are being harmed by race-conscious affirmative action? </p>
<p>Legal scholar <a href="http://apahenational.org/?page_id=402">William Kidder</a> <a href="http://media.asian-nation.org/Kidder-Negative-Action.pdf">has shown</a> that the way Espenshade and Radford’s findings have been interpreted by affirmative action opponents is not accurate. The interpretation of this research itself rests on the faulty assumption that affirmative action is to blame if an academically accomplished Asian-American applicant gets rejected from an elite institution. </p>
<p>Based on his analysis, Kidder concluded, </p>
<blockquote>
<p>“Exaggerated claims about the benefits for APAs [Asian Pacific Americans] of ending affirmative action foster a divisive public discourse in which APAs are falsely portrayed as natural adversaries of affirmative action and the interests of African American and Latinos in particular.” </p>
</blockquote>
<p>In our opinion as well, focusing on simplistic ideas about standardized tests as the primary evidence for who “deserves” to be admitted to elite institutions like Harvard may serve to stir up resentment among accomplished applicants who get rejected.</p>
<p>As the “Harvard Not Fair” website and accompanying lawsuit demonstrate, these findings have been used to fuel a <a href="http://www.jaconlinejournal.com/archives/vol26.1-2/banning-politics.pdf">politics of resentment</a> among rejected Asian-American applicants.</p>
<p>When speaking with reporters, Espenshade himself has acknowledged that <a href="http://www.thecrimson.com/article/2015/5/16/complaint-federal-harvard-admissions/">his data are incomplete</a> – given that colleges take myriad factors into account in admissions decisions – and his findings have been overinterpreted and actually <a href="https://www.insidehighered.com/news/2009/11/03/elite">do not prove</a> that colleges discriminate against Asian-American applicants. </p>
<figure class="align-right ">
<img alt="" src="https://images.theconversation.com/files/130456/original/image-20160713-12389-1m8kj97.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/130456/original/image-20160713-12389-1m8kj97.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=399&fit=crop&dpr=1 600w, https://images.theconversation.com/files/130456/original/image-20160713-12389-1m8kj97.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=399&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/130456/original/image-20160713-12389-1m8kj97.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=399&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/130456/original/image-20160713-12389-1m8kj97.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=502&fit=crop&dpr=1 754w, https://images.theconversation.com/files/130456/original/image-20160713-12389-1m8kj97.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=502&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/130456/original/image-20160713-12389-1m8kj97.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=502&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Are Asian-American students a monolithic group?</span>
<span class="attribution"><a class="source" href="https://www.flickr.com/photos/brainchildvn/3005463222/in/photolist-5zzMvq-4E3x4k-gZVoyq-6fVSsc-hyi8DC-8x8MvT-dkX8eD-4E3x56-dkY496-dkX8gg-4Tenr6-gZWMk2-5zziDu-4TAeVw-5zzTqq-5zzX5C-gZWopW-5zzZ8G-5zviMz-4VFbik-bDyRg3-5zzbuG-5zzRBs-dkX8ec-r4DrgY-4WEYRg-5zzUpu-5zzhcm-5zvyzF-5zvdua-9wAUG5-5zvhUB-dkY4de-5zvpVg-5zuXBV-5zvQtz-5zv7a2-5zvoRZ-5zAbwj-5zvAs2-aEfpT3-reqP2q-foRaAe-5zvYLt-5zzY33-5zA4fL-5zv12i-5zvxrk-5zvagc-5zuUp2">Charlie Nguyen</a>, <a class="license" href="http://creativecommons.org/licenses/by/4.0/">CC BY</a></span>
</figcaption>
</figure>
<p>Moreover, in using <a href="http://harvardnotfair.org/">images of Asian-American students</a> to recruit complainants against Harvard and other highly selective institutions of higher education, the Project on Fair Representation <a href="https://www.upress.umn.edu/book-division/books/chains-of-babylon">relies on the idea</a> that Asian-Americans comprise a monolithic group. In fact, the term “Asian-American” refers to a <a href="https://theconversation.com/is-there-an-asian-disadvantage-in-higher-ed-44070">diversity of Asian ethnicities</a> in the United States, whose educational opportunities and achievements vary widely. </p>
<p>The 2010 census question on race included check boxes for six Asian groups – Asian Indian, Chinese, Filipino, Japanese, Korean, and Vietnamese – along with a box for “Other Asian,” with a prompt for detailed responses such as “Hmong, Laotian, Thai, Pakistani, Cambodian, and so on.” </p>
<p>In addition, by casting plaintiffs as meritorious and deserving of a spot at an elite university, it also conveys the <a href="http://press.princeton.edu/titles/10134.html">stereotypical received wisdom about Asian-American “model” students</a> who are wronged by race-conscious affirmative action programs. </p>
<h2>The Harvard lawsuit comes next</h2>
<p>At this time, Students for Fair Admissions v. President and Fellows of Harvard College, filed in the United States District Court for the District of Massachusetts, is pending. </p>
<p>Now that Fisher has been decided, this case is the next front in the divisive politics surrounding race-conscious affirmative action in higher education admissions.</p>
<p>Relevant to the Harvard case is that a civil rights complaint alleging that Princeton University discriminates against Asian-American applicants was dismissed in 2015 after a long federal <a href="http://www.princeton.edu/main/news/archive/S44/30/14M00/index.xml?section=topstories">Office of Civil Rights investigation</a>.</p>
<p>Although public disagreement about the policy continues, affirmative action is an imperfect, but as yet necessary tool that universities can leverage to cultivate robust and diverse spaces where students learn. June 23’s <em>Fisher</em> ruling underscores that important idea. </p>
<p>Related to the coming public discussions about the Harvard lawsuit, we are of the opinion that race-conscious policies like affirmative action need to be supported. The fact is that “Asian-Americans” have diverse social and educational experiences. And many <a href="https://secure-media.collegeboard.org/digitalServices/pdf/professionals/asian-americans-and-pacific-islanders-facts-not-fiction.pdf">Asian-Americans benefit from affirmative action policies</a>.</p><img src="https://counter.theconversation.com/content/61899/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Christina Paguyo receives funding from the National Science Foundation and in the past has received funding from the American Educational Research Association. She is a owner and consultant for Data Luminaries, LLC. She is affiliated with the Democratic Party and is a member of the American Educational Research Association, American Evaluation Association, American Society for Engineering Education, and the Association for the Study of Higher Education. </span></em></p><p class="fine-print"><em><span>Daryl Maeda and Michele S. Moses do not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Here’s why disagreement about affirmative action will not end any time soon. Coming up next is a lawsuit brought by Asian-Americans challenging Harvard’s race-conscious policy.Michele S. Moses, Professor of Educational Foundations, Policy, and Practice, University of Colorado BoulderChristina Paguyo, Post Doctoral Fellow, Colorado State UniversityDaryl Maeda, Associate Professor of Ethnic Studies, University of Colorado BoulderLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/615592016-06-24T10:13:56Z2016-06-24T10:13:56ZEliminating inequalities needs affirmative action<p><em>The Supreme Court has upheld the affirmative action admission policy of University of Texas. Abigail Fisher, a white woman, applied to the University of Texas at Austin (UT Austin) in 2008. She sued the university after she was denied admission on the grounds that the university’s race-conscious admissions policy, violated the equal protection clause of the Fourteenth Amendment.</em> </p>
<p><em>On Thursday, June 23, the Supreme Court ruled that the race-conscious admissions program was constitutional – a decision that the three scholars on our panel welcome. They tell us why existing educational inequalities need considerations of race and ethnicity in admissions.</em></p>
<h2>How else do you eliminate inequality?</h2>
<p><em>Richard J. Reddick is an associate professor in educational administration at University of Texas at Austin.</em></p>
<p>UT Austin’s history on legal decisions about race in higher education goes back to Sweatt v. Painter (1950), a case that successfully challenged the “separate but equal” doctrine articulated in Plessy v. Ferguson (1898). The landmark case helped pave the way for Brown v. Board of Education (1954), which <a href="https://www.nps.gov/nhl/learn/themes/CivilRights_DesegPublicEd.pdf">outlawed racial segregation</a> in education. </p>
<p>The next test, in the Hopwood v. Texas (1996) case, came <a href="https://theconversation.com/how-much-diversity-can-the-us-constitution-stand-51971">from the other direction</a>. Cheryl Hopwood was a white applicant who was denied admission. She challenged UT Austin’s use of race in its admissions decisions as unconstitutional. The Fifth Federal Circuit Court of Appeals eliminated the consideration of affirmative action in universities and colleges in Texas. This decision was overruled in 2003.</p>
<p>Fisher, then, was another challenge to the university’s renewed efforts to provide educational opportunity and access to underrepresented students at predominantly white institutions.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/127963/original/image-20160623-30272-4pava3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/127963/original/image-20160623-30272-4pava3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=450&fit=crop&dpr=1 600w, https://images.theconversation.com/files/127963/original/image-20160623-30272-4pava3.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=450&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/127963/original/image-20160623-30272-4pava3.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=450&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/127963/original/image-20160623-30272-4pava3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=566&fit=crop&dpr=1 754w, https://images.theconversation.com/files/127963/original/image-20160623-30272-4pava3.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=566&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/127963/original/image-20160623-30272-4pava3.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=566&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">UT Austin’s history on legal decisions about race in higher education goes back to Sweatt v. Painter.</span>
<span class="attribution"><a class="source" href="https://www.flickr.com/photos/qmechanic/1355030048/in/photolist-34JTe3-p9bF94-6NjUzW-qB8UW2-dfE8LW-6NjVgW-88LNp-8ShHSk-5bukJd-7UDPHm-34EkyK-m3VrJF-55mnPE-sj213-aaSa9h-nASSWi-beapu-33L9GB-oPr4Cp-qYDCk-LEpq-qYDJv-8GQSAP-njFaY1-6tVNvY-bKyEjH-86n57A-njFhte-5nXGVV-9N2GjV-86j72V-cmwckh-7hY2of-7uabSk-ezX7pS-dAofyK-34EkvR-dpUQEN-dfE93W-djr52j-3c95g-4oBUCQ-dfE5ge-5HoYcg-qR7QQJ-qCa7Zy-9hGcom-dfEHWz-5G1JgB-dfE5e2">qmechanic</a>, <a class="license" href="http://creativecommons.org/licenses/by-nc-sa/4.0/">CC BY-NC-SA</a></span>
</figcaption>
</figure>
<p>Opponents of affirmative action often argue that metrics, such as test scores and class rank, that appear to be neutral, should be the method by which to admit students. </p>
<p>These arguments fail to <a href="https://www.apa.org/ed/resources/racial-disparities.pdf">consider the real impact</a> that racial and socioeconomic discrimination has on educational opportunity. School resources and teacher quality <a href="https://civilrightsproject.ucla.edu/research/k-12-education/integration-and-diversity/why-segregation-matters-poverty-and-educational-inequality/orfield-why-segregation-matters-2005.pdf">differ significantly</a>, and intangibles such as leadership opportunities often depend on subjective criteria such as teacher recommendations. </p>
<p>Furthermore, many students from underrepresented communities <a href="http://www.tandfonline.com/doi/abs/10.1111/0362-6784.00140">confront challenges in navigating school systems</a>. We additionally know that standardized testing <a href="http://hepgjournals.org/doi/abs/10.17763/haer.79.3.43n8521j3rk54221">can show bias</a> <a href="http://www.hepgjournals.org/doi/abs/10.17763/haer.73.1.8465k88616hn4757">in certain populations</a>.</p>
<p>In other words, these “neutral” measures actually reinforce social inequities. </p>
<p>The most selective institutions of higher education in the nation <a href="http://asr.sagepub.com/content/72/4/487.abstract">no longer rely solely</a> on these metrics. They seek out students with a variety of experiences – factors that may not always correspond to test scores and class ranking.</p>
<p>Today’s ruling is a reassurance, as fleeting as it might be, that the massive task of eliminating educational inequality – which correlates to many other forms of inequality – can be supplemented by approaches in college admissions that consider race and ethnicity. </p>
<p>It does not minimize the importance of eradicating racial discrimination in all walks of life: in the words of UT Austin president Greg Fenves, “race continues to matter in American life.” </p>
<p>However, emphasizing the significance of careful, narrowly tailored approaches to enhancing diversity at predominantly white institutions is a victory for the scholars, researchers, administrators and families who have demonstrated how diversity provides <a href="http://eric.ed.gov/?id=ED430514">significant educational benefits</a> for all students and American society.</p>
<h2>What are the implications for other colleges?</h2>
<p><em>Stacy Hawkins is an associate professor at Rutgers University, where she teaches courses in Employment Law and Diversity in the Law.</em></p>
<p>The Supreme Court’s <a href="http://www.supremecourt.gov/opinions/15pdf/14-981_4g15.pdf">decision</a> is cause for both celebration and circumspection. </p>
<p>Justice Anthony Kennedy, the court’s moderate swing justice, whose opinion was rightly <a href="http://www.slate.com/articles/news_and_politics/jurisprudence/2015/12/scalia_s_rant_and_alito_s_reasoning_in_the_fisher_supreme_court_oral_arguments.html">predicted</a> to be the key to the decision, undoubtedly shocked many by voting for the first time to uphold a race-conscious admissions policy. </p>
<p>However, the decision is more consistent with Justice Kennedy’s prior decisions, notwithstanding the difference in outcome, than might appear at first blush.</p>
<p>On the one hand, Justice Kennedy reaffirmed his commitment to diversity as a compelling educational interest in 21st-century America (a view he expressed in prior cases on diversity in <a href="https://supreme.justia.com/cases/federal/us/539/306/">higher education</a>, as well as in <a href="https://supreme.justia.com/cases/federal/us/551/701/">primary and secondary schools</a>). </p>
<p>On the other hand, however, Justice Kennedy also reaffirmed his long-standing belief that, notwithstanding this interest, race may play no more a role than is absolutely necessary to achieve the educational benefits of diversity.</p>
<p>In striking this delicate balance, Justice Kennedy sanctioned the University of Texas’ race-conscious admissions policy today, but gave fair warning that the future of this policy is by no means secure. </p>
<p>More important perhaps than the implications of this decision for the University of Texas is what, if any, implications this decision may have for other colleges and universities?</p>
<p>As Justice Kennedy acknowledged, the University of Texas is unique in its use of race to narrowly supplement a plan that admits the overwhelming majority of students (at least 75 percent) on the sole basis of high school class rank without regard to race, a feature that was critical to Justice Kennedy’s approval of the policy. </p>
<p>Thus, the vast majority of colleges and universities may still be left to wonder about the constitutionality of their own race-conscious admissions policies that operate more widely than Texas’ does. </p>
<p>With a similar <a href="http://www.reuters.com/investigates/special-report/usa-harvard-discrimination/">case</a> against Harvard University currently winding its way through the federal courts, the answer may not be far off.</p>
<h2>Affirmative action bans exist in many states</h2>
<p><em>Stella M. Flores is an associate professor of higher education at the Steinhardt School of Culture, Education, and Human Development at New York University.</em></p>
<p>Demography, economy and diversity are key issues facing the nation’s colleges and universities and should also be a part of their policy design.</p>
<p>In Fisher v. Texas today, Justice Kennedy’s opinion clearly states two outcomes. The first is that the university’s deliberation that race-neutral programs had not achieved their goals was supported by significant statistical and anecdotal evidence.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/127967/original/image-20160623-30242-rp5dav.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/127967/original/image-20160623-30242-rp5dav.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/127967/original/image-20160623-30242-rp5dav.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/127967/original/image-20160623-30242-rp5dav.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/127967/original/image-20160623-30242-rp5dav.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/127967/original/image-20160623-30242-rp5dav.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/127967/original/image-20160623-30242-rp5dav.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">Admissions policies at universities play a key role in diversifying key areas.</span>
<span class="attribution"><a class="source" href="http://www.shutterstock.com/cat.mhtml?lang=en&language=en&ref_site=photo&search_source=search_form&version=llv1&anyorall=all&safesearch=1&use_local_boost=1&autocomplete_id=&searchterm=supreme%20court&show_color_wheel=1&orient=&commercial_ok=&media_type=images&search_cat=&searchtermx=&photographer_name=&people_gender=&people_age=&people_ethnicity=&people_number=&color=&page=1&inline=376433869">Supreme Court image via www.shutterstock.com</a></span>
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<p>The second is that universities have the obligation to periodically reassess their admissions programming using data to ensure that a plan is narrowly tailored so that race plays no greater role than is necessary to meet its compelling interests. This is in essence an <a href="https://www.ets.org/s/achievement_gap/diversity/index.html">accountability mechanism</a> for universities to follow using data and research.</p>
<p>Admissions policies at universities play an important role in the ability to diversify key fields relevant to the nation’s economy, including law, medicine, STEM, education and public policy, so that they can appropriately reflect and serve the unprecedented demographic expansion facing our country.</p>
<p>The decision ensures that pathways to the nation’s most critical educational and employment fields <a href="http://aer.sagepub.com/content/early/2013/01/14/0002831212470483">will stay open</a>.</p>
<p>But there are other considerations and realities that include the following. First, some of the nation’s most racially diverse states will still operate under affirmative bans due to state legislation and referenda. These include California, Florida, Michigan, Arizona and Oklahoma.</p>
<p>Second, there is still a clear need for additional effective policies and efforts beyond a consideration of race in college admissions to address the disconnect between the demographics of the nation and its public K-12 schools and who is represented at selective colleges and universities.</p>
<p>Retracting the use of race nationally would have been a step toward increasing racial and ethnic inequality in schools and society. But we’re in a time where race really matters in this country and in how we learn together as a diverse society in our classrooms. This decision reflects this reality.</p><img src="https://counter.theconversation.com/content/61559/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Richard J. Reddick receives funding from WT Grant Foundation. </span></em></p><p class="fine-print"><em><span>Stella M Flores receives funding from the Ford Foundation as a evaluation consultant to a project examining the changes in affirmative action law. She also received funding from the Educational Testing Service on a project examining race-neutral alternatives. </span></em></p><p class="fine-print"><em><span>Stacy Hawkins does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Three scholars reflect on the Supreme Court decision in the Fisher case and why institutions need to consider race.Richard J. Reddick, Associate Professor in Educational Administration, The University of Texas at AustinStacy Hawkins, Associate Professor, Rutgers UniversityStella M Flores, Associate Professor of Higher Education, New York UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/597842016-06-23T17:06:39Z2016-06-23T17:06:39ZAfter Supreme Court’s Fisher decision: what we need to know about considering race in admissions<p>On Thursday, June 23, <a href="http://www.supremecourt.gov/opinions/15pdf/14-981_4g15.pdf">the U.S. Supreme Court upheld</a> the constitutionality of a race-conscious post-secondary admissions policy at the University of Texas at Austin. </p>
<p>Justice Anthony Kennedy, considered to be the swing vote, joined Justices Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor, in a 4-3 decision that affirmed the constitutionality of the race-conscious policy and the university’s compelling interest in the educational benefits of a diverse student body. </p>
<p>At the same time, the decision addressed the need for institutions to continue to assess whether so-called race-neutral alternatives are available and workable, and suffice for achieving the university’s goals. </p>
<p>A large body of evidence shows so-called race-neutral admissions policies are not as effective for attaining racial diversity on campus. They could even exacerbate existing racial inequities. </p>
<h2>The Fisher case</h2>
<p>In 2008, Abigail Fisher, a white woman, applied to the University of Texas at Austin (UT Austin) and was denied admission. She then sued the university on the grounds that the university’s admissions policy, which considered race as one of many other factors, violated the equal protection clause of the Fourteenth Amendment. A lower court ruled in favor of UT Austin. </p>
<p>In 2012, the case came up before the Supreme Court. In 2013, the Supreme Court <a href="http://qz.com/444199/factoring-race-into-college-admissions-is-crucial-to-campus-diversity/">sent the case back</a> to the lower court to conduct a more rigorous assessment of whether UT Austin needed to consider race at all in admissions in order to have more diversity. </p>
<p>The Supreme Court was concerned that the lower court had relied primarily on the university’s judgment, without conducting an independent review of whether the institution had sufficiently considered race-neutral approaches. </p>
<p>After having been decided again in UT Austin’s favor by the lower court, and appealed again by Fisher, the court affirmed the lower court’s ruling that UT Austin justified its consideration of race and its policy was constitutional. </p>
<h2>What are race-neutral approaches?</h2>
<p>Universities and colleges have turned to <a href="https://www.acenet.edu/news-room/Pages/Race-Class-and-College-Access-Achieving-Diversity-in-a-Shifting-Legal-Landscape.aspx">a number of approaches</a> that, under the legal definition, can be considered race-neutral. </p>
<p>In law, these efforts are called race-neutral because they do not explicitly consider race in admissions.</p>
<p>Such strategies are meant to encourage more underrepresented students of color to enroll in college. These include outreach and recruitment efforts, such as visits to high schools that enroll high percentages of students of color and those with low socioeconomic backgrounds.</p>
<p>They can also include placing greater weight on a student’s socioeconomic status, instead of their race, in the admissions process. Or, as was the case in Texas, “percent plans” that guarantee admissions to students who graduate within a specified percentage of their high school class.</p>
<p>And what’s the evidence on such race-neutral efforts?</p>
<h2>Racial diversity declines with race-neutral admissions</h2>
<p>One of my prior <a href="http://aer.sagepub.com/content/early/2013/01/14/0002831212470483">studies</a> found that bans on race-conscious admissions led to substantial declines in racial diversity across a number of important graduate fields of study, such as engineering, the natural sciences and the social sciences, and <a href="http://theconversation.com/ban-on-affirmative-action-in-medicine-will-hurt-all-39904">schools of medicine.</a> </p>
<p>In the field of engineering alone, student of color enrollment declined by 26 percent. This happened at public institutions across California, Florida, Texas and Washington. At public medical schools in six states that banned race-conscious admissions, it dropped by 17 percent. It was so even when post-secondary institutions in states with bans pursued race-neutral alternatives. </p>
<p>Others have documented similar results in undergraduate enrollment following bans in race-conscious admissions.</p>
<p>Research has documented declines in African-American and Latino enrollment at the most <a href="http://www.mitpressjournals.org/doi/abs/10.1162/REST_a_00170#.VmbvJ9-rR">selective undergraduate schools</a>, in the fields of <a href="http://www.nyulawreview.org/issues/volume-72-number-1/threat-diversity-legal-education-empirical-analysis-consequences">law</a>, and <a href="http://www.ets.org/Media/Research/pdf/kidder_paper.pdf">business</a> following such bans.</p>
<p>In a <a href="http://www.mitpressjournals.org/doi/abs/10.1162/REST_a_00170#.VmbvJ9-rR">study</a> of the impact in California, Florida, Texas and Washington state, bans at the most selective institutions (top 50 universities listed in the 1995 US News & World Report college rankings) led to a 1.74 percentage point decline in African-American enrollment, roughly a 2.03 percentage point decline in Latino enrollment, and a decrease in Native American enrollment of roughly .47 percentage points. </p>
<p>Because of the small percentage of students at these institutions who are African-American (5.79 percent), Latino (7.38 percent) and Native American (.51 percent), these changes in enrollment are very large in relative terms. </p>
<h2>What do we know about race-neutral policies?</h2>
<p>In a <a href="http://store.tcpress.com/0807757551.shtml">study</a> that I conducted with a colleague at the University of Michigan, where race-conscious admissions is banned, we asked administrators about the viability of expanded outreach to high schools as a strategy to encourage more students of color to apply.</p>
<p>We found that administrators were concerned about the effectiveness of these alternatives. They noted that even if more students of color apply, it did not mean they would be admitted or able to enroll without targeted financial aid. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/127949/original/image-20160623-30242-f765wt.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/127949/original/image-20160623-30242-f765wt.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/127949/original/image-20160623-30242-f765wt.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/127949/original/image-20160623-30242-f765wt.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/127949/original/image-20160623-30242-f765wt.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/127949/original/image-20160623-30242-f765wt.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/127949/original/image-20160623-30242-f765wt.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">University of Michigan has banned race-conscious admission policies.</span>
<span class="attribution"><a class="source" href="https://www.flickr.com/photos/brostad/2902469588/in/photolist-5qtV67-4Eiwbe-4EnLTY-4GbSPQ-p2DZxK-jPHUJn-eckQez-nhQ1mN-4EivCk-b2szW-LjYKi-bxSa6T-4Ecfg5-z6oEpy-pLbEvz-8NpRS9-9ArUW8-cY3aoJ-JUhBE-doA2xR-LDz54-5BTbLL-5Mqc2-9NEYMC-aPnyWk-ej89r2-4EnLNu-6NPykM-j8qckK-guva-59rLW1-qRpPDs-dACFTy-gmv6Af-qyVSiA-ei4Yxc-pBfW5C-9AuP1L-5F3oAr-4EivEM-4EivYp-59rLJG-eb6xWy-em2Y6E-nDFqu-6euix-LDBWM-4G7GC6-6Upiu4-3j2NKD">Bernt Rostad</a>, <a class="license" href="http://creativecommons.org/licenses/by/4.0/">CC BY</a></span>
</figcaption>
</figure>
<p>Other studies show that race-neutral policies to achieve racial diversity have not worked. In Fisher II, for which I served as a counsel of record, <a href="http://www.scotusblog.com/wp-content/uploads/2015/11/14-981_amicus_resp_823Social-Scientists.authcheckdam.pdf">over 800 social scientists</a> gathered evidence for a friend of the court brief. </p>
<p>For example, evidence from Texas, California and Florida shows that percent plans have not <a href="http://www.ets.org/Media/Research/pdf/flores_white_paper.pdf">proven to be reliable alternatives</a>.</p>
<p>And class-based approaches, such as replacing the consideration of race with socioeconomic background in admissions, are not an effective path toward racial diversity. </p>
<p>In fact, the <a href="http://www.ets.org/Media/Research/pdf/reardon_white_paper.pdf">most rigorous studies</a> show that it is the combination of both class and race in admissions that generates the most robust student body diversity. For these reasons, <a href="http://www.nytimes.com/roomfordebate/2014/04/27/should-affirmative-action-be-based-on-income/class-based-affirmative-action-works">arguments that seek to replace the consideration of race with socioeconomic class</a> merely fabricate a false choice.</p>
<p>Over the last two decades <a href="http://www.ets.org/Media/Research/pdf/kidder_paper.pdf">California has tried</a> to bring racial diversity through race-neutral approaches. These include extensive outreach and support programs with very high investment of financial resources. </p>
<p>However, at UC Berkeley and UCLA, the proportion of California resident African-American students offered admission in 2011 was still 46 percent lower than 1995, the year before Proposition 209, the ban on race-conscious admissions in that state, was in place.</p>
<h2>How race-neutral approaches can hurt diversity efforts</h2>
<p>Race-neutral approaches can also have consequences for supporting inclusive campus environments for all students. The negative consequences can extend beyond the decline in the number of students of color who are admitted and undermine other efforts that are needed to improve racial climate on college campuses.</p>
<p>In a <a href="http://aer.sagepub.com/content/52/5/828">study</a> that I conducted with a colleague, we found that laws like Proposal 2 – which banned race-conscious admissions in Michigan in 2006 – limited the actions administrators could take to address existing racism. </p>
<p>Administrators discussed how after the law, they felt they had to make their efforts around racial diversity less visible and felt less empowered to advocate for racial diversity. They were concerned that the law contributed to negative perceptions about the university’s commitment to racial diversity, which could discourage students of color to apply.</p>
<p>In contrast, other <a href="https://www.aacu.org/sites/default/files/files/mei/milem_et_al.pdf">research</a> has shown that diversity efforts needed to be visible. It also found that higher education professionals needed to feel empowered to do the work that is necessary to support students of color. </p>
<h2>How not discussing race worsens inequities</h2>
<p>Efforts to enact so called race-neutral approaches can also lead to what scholars have termed color-mute language or actions undertaken in a colorblind framework. Such an approach also has negative implications for racial equity on campus.</p>
<p>Scholar <a href="http://press.princeton.edu/titles/7773.html">Mika Pollock has studied this phenomenon extensively in the K-12 context</a>. She shows that actively deleting race from conversations can increase the role race plays in creating inequities. Color-mute language keeps us from discussing ways in which opportunities are not racially equal. They allow racial biases to go unchecked.</p>
<p>Another <a href="https://www.insidehighered.com/views/2016/01/18/how-so-called-colorblind-admissions-reviews-create-barriers-people-color-essay">recent major study</a> documents similar risks of a race-neutral approach in higher education. Over 60 interviews of professors at 10 highly ranked doctoral programs revealed that when faculty and decision-makers undertake ostensible race-neutral approaches in admissions – despite good intentions to increase diversity – it silences discussions around actions that can systematically exclude underrepresented students of color, such as assessment tests.</p>
<p>This evidence shows that diversity efforts under the mantle of race-neutral strategies can actively perpetuate the very racial inequities that educators want to address and dismantle.</p>
<h2>The need to maintain an ongoing focus on race</h2>
<p>All of this means that as institutions chart their next steps and responses to Fisher II, it will be important to maintain an active focus on race, such as understanding how admissions decisions can account for the ongoing racial inequities in K-12 schooling.</p>
<p>It will be important for administrators to develop a more complex understanding of how race and class intersect so both factors can be meaningfully considered in admissions. Faculty and administrators should also be supported to help counter racial biases that can play out in programmatic decisions for the university.</p>
<p>In following the court’s ruling in Fisher II, post-secondary institutions will need to become more active and nuanced in how they address race and racial inequality in their policies and practices, and they will be able to turn to a large body of evidence to guide their efforts.</p><img src="https://counter.theconversation.com/content/59784/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Liliana M Garces receives funding from the William T. Grant Foundation for work on another research project. </span></em></p>In the Fisher case judgment, the Supreme Court has reminded institutions to assess race-neutral policies. But evidence shows race-neutral policies could worsen racial inequalities.Liliana M. Garces, Associate Professor of Education, Penn StateLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/436922015-12-11T09:25:29Z2015-12-11T09:25:29ZWhy scholars emphasize the need for affirmative action<p>Supreme Court Justice Antonin Scalia, <a href="http://www.motherjones.com/politics/2015/12/justice-scalia-suggests-blacks-belong-slower-colleges-fisher-university-texas">during oral arguments</a> in the affirmative action case, Fisher v University of Texas, on Wednesday, December 9, suggested, </p>
<blockquote>
<p>There are those who contend that it does not benefit African-Americans to get them into the University of Texas, where they do not do well — as opposed to having them go to a less advanced school, a slower-track school where they do well.</p>
</blockquote>
<p>Justice Scalia is no stranger to controversy. In an earlier Supreme Court ruling upholding Obamacare tax credits for people on the federal exchange in June 2015, Justice Scalia was scathing in his dissent from the majority opinion. </p>
<p>Writing for The Conversation, Robert Schapiro, dean and professor of Law , Emory University, <a href="https://theconversation.com/obamacare-victory-shows-failure-of-scalias-conservative-revolution-43890">said:</a></p>
<blockquote>
<p>When Justice Scalia gets mad, he does not hold back. He has often adopted fairly sharp language in his dissents but even by that standard, his dissent in King v Burwell is extraordinary in tone…. His vituperation reaches a crescendo in the conclusion where he snipes, “We should start calling this law SCOTUScare.”</p>
</blockquote>
<p>Scholars and journalists alike have emphasized the seminal nature of the Fisher v University of Texas case. Indeed, a number of our contributors have argued that the case could exacerbate the racial tensions that have been evident through protests on campuses around the country.</p>
<p>Clearly, following this week’s oral arguments, the world of social media was on fire. Students and others tweeted at <a href="https://twitter.com/search?q=Scalia&src=tyah">hashtag #scalia</a>. Some even denounced Scalia’s comments with a hashtag of <a href="https://twitter.com/search?q=%23impeachscalia&src=tyah">“#impeachscalia.”</a></p>
<h2>Why the case is pivotal</h2>
<p>Scholars argue that the judgment in the case will influence not only the admissions policies at UT, but in colleges and universities across the nation. And that could have consequences not just for diversity in education, but also for the educational success of students of color.</p>
<p>Liliana M Garces, an assistant professor at Pennsylvania State University, who served as counsel of record in a friend-of-the-court brief filed in support of the University of Texas at Austin when the case was before the court in 2012, said:</p>
<blockquote>
<p>We might not think that admissions policies can have an influence on the work of administrators charged with supporting students of color once they are on campus, but findings from a more recent study suggest that the influence of these laws extend beyond the composition of the student body. Bans on affirmative action can have a detrimental influence on work that is critical to the success of students of color on campus.</p>
</blockquote>
<p>Garces’ <a href="https://theconversation.com/ban-on-affirmative-action-in-medicine-will-hurt-all-39904">research</a> also shows that after eight states banned affirmative action, via ballot initiatives and other measures, there was a drop in the number of students of color. </p>
<blockquote>
<p>Before bans on affirmative action, for every 100 students matriculated in medical schools in states with bans, there were 18 students of color, whereas after the ban, for every 100 students matriculated, about 15 were students of color.</p>
</blockquote>
<p>The case came before the Supreme Court after Abigail Fisher, a white female, applied to the University of Texas at Austin and was denied admission. She sued the university stating the university’s race-conscious admissions policy violated the equal protection clause of the Fourteenth Amendment. A lower court decided in UT’s favor.</p>
<p>In 2013, however, the Supreme Court sent the case back to the lower court to conduct a more rigorous assessment of whether UT Austin needed to consider race in admissions.</p>
<p>Garces with her coauthor, Gary Orfield, a professor of education, law, political science and urban planning at University of California, Los Angeles, <a href="https://theconversation.com/explainer-crucial-texas-case-on-race-considerations-in-college-admissions-44117">makes a strong argument</a> that the decision in the case could affect affirmative action policy in higher education in general. </p>
<blockquote>
<p>While the case raises questions specific to UT-Austin’s program, it is also possible that the Supreme Court may further limit the use of race in higher education admissions policies for institutions across the nation.</p>
</blockquote>
<p>Other scholars underline the importance of looking at the historical context of the origins of affirmative action.</p>
<p><a href="https://theconversation.com/how-much-diversity-can-the-us-constitution-stand-51971">Tanya Washington, professor of law</a> at Georgia State University, says:</p>
<blockquote>
<p>Franklin D Roosevelt was the first president to issue an executive order prohibiting racial discrimination in hiring defense contractors in 1943. But it was President John F Kennedy who, in an executive order in 1961, coined the term “affirmative action” to stop racial discrimination by government contractors. Subsequently, state and local governments, including universities, were inspired to introduce similar programs to promote equal opportunity.</p>
</blockquote>
<p>In her article, <a href="https://theconversation.com/how-much-diversity-can-the-us-constitution-stand-51971">Washington refers to</a> the recent protests on campuses across the country. Black students continue to experience hostility because of their skin color. </p>
<p>Colleges and universities, she says, urgently need policies to address these challenges.</p>
<blockquote>
<p>One such existing policy includes the limited consideration of race in admission decisions. This policy allows institutions to build a racially and ethnically diverse student body.</p>
</blockquote>
<h2>What is happening globally?</h2>
<p>Policymakers in the US are not the only ones to have pushed for affirmative action. </p>
<p>Michele S Moses, professor of Educational Foundations and Policy, University of Colorado and Laura Dudley Jenkins, associate professor of Political Science, University of Cincinnati, <a href="https://theconversation.com/affirmative-action-should-be-viewed-in-global-context-33618">argue</a> that about one-quarter of the world’s other countries have some form of affirmative action for higher education. And many of these programs have emerged over the last 25 years.</p>
<blockquote>
<p>A wide variety of institutions and governments on six continents have programs to expand admissions of non-dominant groups of students on the basis of race, gender, ethnicity, class, geography, or type of high school. Several use a combination of these categories.</p>
</blockquote>
<p>In fact, as they point out, “the United States’ affirmative action policies in higher education are not the oldest: India’s policies for lower caste students take that prize.”</p>
<p>And this should give policy makers in the US pause, “given that US policies are older than most, much of the cutting edge thinking on the topic is now coming from other parts of the world.”</p><img src="https://counter.theconversation.com/content/43692/count.gif" alt="The Conversation" width="1" height="1" />
Scholars argue that the affirmative action case could have consequences for the educational success of students of color.Kalpana Jain, Senior Religion + Ethics Editor/ Director of the Global Religion Journalism InitiativeLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/519712015-12-09T11:09:23Z2015-12-09T11:09:23ZHow much diversity can the US Constitution stand?<p>The Supreme Court’s ruling in Fisher v University of Texas, an affirmative action case the Court is currently deciding, will dictate whether public colleges’ and universities’ use of race to create diverse learning environments is constitutional. </p>
<p>Sixty years ago, the University of Texas (UT) was at the center of another Supreme Court decision, <a href="https://www.law.cornell.edu/supremecourt/text/339/629">Sweatt v Painter</a>, a lawsuit involving UT Law School’s refusal to admit Heman Marion Sweatt, a black applicant. </p>
<p>In Fisher v University of Texas, UT’s admissions policy is being challenged again, but this time for its use of race to diversify its student body. Some expect this case to decide the fate of affirmative action. </p>
<p>My scholarship focuses on educational equity and the educational value of racial diversity at the college level. I believe that at the heart of the debate around diversity is the question: how much diversity is enough? </p>
<h2>What are the origins of affirmative action?</h2>
<p>Affirmative action was a response to pervasive racial discrimination. </p>
<p>Franklin D Roosevelt was the first president to issue an <a href="http://theweek.com/articles/462937/origins-affirmative-action">executive order</a> prohibiting racial discrimination in hiring defense contractors in 1943. But it was President John F Kennedy who, in an <a href="http://theweek.com/articles/462937/origins-affirmative-action">executive order</a> in 1961, coined the term “affirmative action” to stop racial discrimination by government contractors. </p>
<p>Subsequently, state and local governments, including universities, were inspired to introduce similar programs to <a href="http://theweek.com/articles/462937/origins-affirmative-action">promote equal opportunity</a>. </p>
<p>However, it was not until the Supreme Court decision in <a href="https://www.law.cornell.edu/supremecourt/text/438/265">Regents of the University of California v Bakke</a> in 1978 that race was formally recognized as an aspect of educational diversity. </p>
<p>At the time, the University of California had set aside 16 out of 100 seats in its medical school for disadvantaged minority students. The policy was challenged by Allan Bakke, a white applicant, who was twice denied admission. </p>
<p>This was the first time educational diversity was considered as a constitutional justification for the use of race in admissions. A majority of the Justices held that the <a href="https://www.law.cornell.edu/constitution/amendmentxiv">Equal Protection Clause</a> of the Fourteenth Amendment (which protects against racial discrimination by the government) required any use of race, whether to remedy discrimination or to achieve educational diversity, to be subject to strict constitutional review. </p>
<p>Justice Lewis Powell, in a part of the opinion joined by no other justice, recognized educational diversity to be a “compelling state interest” and he emphasized that race was but one aspect of educational diversity. He wrote:</p>
<blockquote>
<p>The atmosphere of ‘speculation, experiment and creation’ – so essential to the quality of higher education – is widely believed to be promoted by a diverse student body.</p>
</blockquote>
<p>Consideration of race to achieve the educational benefits of racial diversity in the admissions processes of the university was determined to be constitutional. However, setting aside a specific number of seats for students of color was ruled an unconstitutional quota. </p>
<h2>The Hopwood years</h2>
<p>After the Bakke decision, universities, including UT Law School, invoked educational diversity as a constitutionally permissible goal.</p>
<p>To that end, they implemented admissions practices that considered race, among a broad array of factors, in their admissions calculus. </p>
<p>UT Law School created an admissions formula that relied on an “academic index” based primarily on standardized test scores and grades. Race was considered as a separate “plus factor” to further diversify the student body.</p>
<p>Then, in 1992, Cheryl Hopwood, one of several white applicants denied admission, <a href="http://caselaw.findlaw.com/us-5th-circuit/1120774.html">challenged the school’s use</a> of race in its admissions decisions as unconstitutional. </p>
<p>She argued that she had better test scores and a higher grade point average than admitted minority applicants. Hopwood claimed that the school’s admissions policy discriminated against her because she was white, in violation of her equal protection rights. </p>
<p>The <a href="http://caselaw.findlaw.com/us-5th-circuit/1120774.html">Fifth Federal Circuit Court of Appeals</a> ruled in Hopwood v Texas that Justice Powell’s determination about educational diversity was not binding. The court prohibited the consideration of race in admissions processes at UT and other public universities and colleges in Texas. </p>
<p>Consequently, for seven years following the Hopwood decision, UT omitted race from its admissions calculus.</p>
<p>It continued to employ the “academic index” and added the “personal achievement index,” a metric which considers a variety of factors relevant to a student’s background and capacity to contribute to educational diversity, without explicitly considering race. </p>
<p>In addition, <a href="http://www.legis.state.tx.us/billlookup/text.aspx?LegSess=75R&Bill=HB588">in 1997 the Texas Legislature</a> adopted the Top Ten Percent Law, which grants automatic admission to any public state institution to all students who graduate in the top 10% of their high school class. </p>
<p>Then <a href="https://www.law.cornell.edu/supct/html/02-241.ZO.html">in 2003</a> the Fifth Circuit’s prohibition on the use of race in admissions was overruled by the Supreme Court’s decision in Grutter v Bollinger. </p>
<p>Barbara Grutter, a white applicant, was denied admission to the University of Michigan Law School. She challenged the school’s use of race in its admissions process as racially discriminatory and as violating her equal protection rights. </p>
<p>A majority of the Court rejected her claim and endorsed Justice Powell’s acknowledgment of educational diversity as a compelling state interest. Justice Sandra Day O’Connor made clear in the decision that “narrow tailoring does not require exhaustion of every conceivable race-neutral alternative” and ruled that Michigan’s consideration of race, as one of many factors relevant to educational diversity, was constitutional. </p>
<h2>Fisher v Texas – take one</h2>
<p>The decision in Grutter freed UT to resume explicit use of race as a “plus factor” in its admissions processes. Race was included as part of “personal achievement index.” </p>
<p>Then in 2008, Abigail Fisher, a white applicant denied admission to UT, challenged the school’s admissions policy as racially discriminatory. In 2009, a federal trial court ruled in favor of UT and dismissed the case.</p>
<p>The Fifth Circuit affirmed that decision, and Fisher appealed to the Supreme Court. The Court sent the case back to the Fifth Circuit for a more rigorous assessment of whether UT Austin needed to consider race in admissions to diversify its student body.</p>
<p>The Fifth Circuit, following the Supreme Court’s instructions, <a href="http://www.ca5.uscourts.gov/opinions%5Cpub%5C09/09-50822-CV2.pdf">examined carefully</a> UT’s race-neutral admissions efforts to achieve racial diversity. It found that those efforts were not sufficient to achieve a critical mass of diverse students. </p>
<p>The court held that UT’s explicit use of race in deciding whom to admit, given the absence of workable race-neutral alternatives, was constitutional. </p>
<h2>Fisher v Texas: the remix</h2>
<p>So, as the court takes up the Fisher v University of Texas case for the second time, at the heart of the debate around diversity is the query – how much diversity is enough? </p>
<p>Fisher, who has since graduated from Louisiana State University, argues that post-Hopwood and pre-Grutter, when the use of race was prohibited, enrollment of students of color eventually reached pre-Hopwood heights.</p>
<p>Consequently, she asserts, there was no reason to return to a race-conscious admission process. </p>
<p>She further contends that after race was reintroduced into the admissions formula, it netted only a negligible increase in the number of enrolled black and Latino students. Therefore, she concludes, it was neither necessary nor constitutional. </p>
<p>UT contends that schools have the institutional discretion and expertise to determine how much diversity is enough to yield educational benefits. UT also argues that the number of enrolled black and Latino students produced by race-neutral means, even if comparable to pre-Hopwood rates, is not sufficient to constitute a critical mass of diverse students. </p>
<p>Accordingly, UT maintains, its use of race is constitutional. </p>
<p>The use of race may survive the battle if the Supreme Court deems UT’s admissions program constitutional. However, even if UT prevails, the Court’s requirement that a school exhaust <em>all</em> available race-neutral means of achieving racial diversity <em>prior</em> to considering race could create an insurmountable obstacle for many other colleges and universities. </p>
<p>In that case, affirmative action would ultimately <a href="http://works.bepress.com/tanya_washington/25/">lose the war</a>.</p><img src="https://counter.theconversation.com/content/51971/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Tanya Washington does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>As the affirmative action case comes up before the US Supreme Court again, the question being asked is how much diversity is enough?Tanya Washington, Professor of Law, Georgia State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/519452015-12-08T16:10:02Z2015-12-08T16:10:02ZWhy Supreme Court case on race in admissions matters more than ever<figure><img src="https://images.theconversation.com/files/104718/original/image-20151207-3151-14vmbg7.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Could the decision in the Abigail Fisher case exacerbate racial tensions on campuses?</span> <span class="attribution"><a class="source" href="https://www.flickr.com/photos/serenaleeblog/4966628941/in/photolist-8Acc7V-8AbYSr-8CNLau-8CKzCc-8Af8g3-aYLHjV-8CNX6y-AdfSaM-8D25PV-9G5Ks2-dEut35-GTmgV-kLwGPd-rs4cyW-AnrWLL-p1Mdmo-pPz9FK-p9pC87-pPAPp3-pFcx7r-pFbeL7-qerhrP-8k2STh-8k2SNC-9G5KwR-9G5MFz-xei9nF-8AY9Xy-8xpuyW-7YiKLg-9G5K9K-9G5KfB-9G5Km6-8MbKcs-8yTgGn-8yWmPG-8yTgKt-8yTgCB-8yTgEc-8yTgEZ-8yWmRN-8yWmMw-8yWmUE-8yWmNW-eg1axF-8yTgJx-auXs3b-8yWmL1-Bn56mC-mwaS5M">Serena Lee</a>, <a class="license" href="http://creativecommons.org/licenses/by-nc/4.0/">CC BY-NC</a></span></figcaption></figure><p>In a number of recent <a href="http://www.nytimes.com/2015/11/10/us/university-of-missouri-system-president-resigns.html">incidents</a> across the country, black students have expressed how they continue to experience hostility because of their skin color. These students have spoken of their feelings of isolation and disempowerment.</p>
<p>Colleges and universities urgently need policies to address these challenges. One such existing policy includes the limited consideration of race in admission decisions. This policy allows institutions to build a racially and ethnically diverse student body. </p>
<p>This Wednesday, December 9, the US Supreme Court will consider the <a href="http://theconversation.com/explainer-crucial-texas-case-on-race-considerations-in-college-admissions-44117">Fisher v University of Texas</a> case. This will be the second time the court rules on the constitutionality of a race-sensitive post-secondary admissions policy at the University of Texas.</p>
<p>A decision that further restricts the consideration of race could potentially exacerbate the racial tensions that we are seeing around the nation.</p>
<h2>Background to the case</h2>
<p>In 2008, <a href="http://www.npr.org/templates/story/story.php?storyId=192703172">Abigail Fisher</a>, a white female, applied to the University of Texas at Austin and was denied admission. She then sued the university on the grounds that the university’s race-conscious admissions policy violated the equal protection clause of the Fourteenth Amendment. </p>
<p>The case is now back before the Supreme Court. </p>
<p>In its 2013 decision, the Supreme Court had sent the case back to the lower court to conduct a more rigorous assessment of whether UT Austin needed to consider race in admissions to advance its interest in the educational benefits of diversity. </p>
<p>The Supreme Court was concerned that the lower court’s decision had relied primarily on the university’s judgment, without conducting an independent review. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/104719/original/image-20151207-3122-r8139h.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/104719/original/image-20151207-3122-r8139h.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=391&fit=crop&dpr=1 600w, https://images.theconversation.com/files/104719/original/image-20151207-3122-r8139h.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=391&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/104719/original/image-20151207-3122-r8139h.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=391&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/104719/original/image-20151207-3122-r8139h.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=492&fit=crop&dpr=1 754w, https://images.theconversation.com/files/104719/original/image-20151207-3122-r8139h.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=492&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/104719/original/image-20151207-3122-r8139h.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=492&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">The Abigail Fisher case on affirmative action is due to come up on December 9.</span>
<span class="attribution"><a class="source" href="https://www.flickr.com/photos/kubina/307639437/in/photolist-tbJue-pLFihs-9sMTg8-pVDtsm-xj8dC-fUJT36-3P99ph-5Y3htE-pLGztn-eXMwpm-conrr3-APqHp-oXceR9-peG69R-9sMQEz-oXcUFm-cjK2zL-7YWhrB-my1QAP-djzBuH-6x6kmn-etjK2-mFPdVW-rbUh3s-6K2mxv-6x6kaD-6YsKD3-aofJU-byuha4-pP6ZFb-5Vnu54-5TPQZi-eWs9A5-eVXHqp-8s1Vsi-4Q42k7-aFfq3j-9s8LrU-H587R-aC9aKG-fp7JBQ-4YmVeo-7tLNFt-ch288s-9mNV9x-4TN9ZF-dLk4J-5SB1T1-eVXHYK-27D3n">Jeff Kubina</a>, <a class="license" href="http://creativecommons.org/licenses/by-sa/4.0/">CC BY-SA</a></span>
</figcaption>
</figure>
<p>After reconsidering the case, the Fifth Circuit ruled that the university’s policy was necessary. Court rules, however, allow the parties to appeal the decision back to the Supreme Court, which Fisher did. In June 2015 the court agreed to hear the case again. </p>
<h2>Impact on student diversity</h2>
<p>My research shows that limiting the use of race in higher education admissions policies can have harmful consequences for the diversity of the student body. </p>
<p>In an earlier research paper, my <a href="http://theconversation.com/ban-on-affirmative-action-in-medicine-will-hurt-all-39904">coauthor and I found</a> that bans on race-sensitive admissions led to declines in racial and ethnic student body diversity in the field of medicine. </p>
<p>We examined the impact of bans in six states: California, Washington, Michigan, Nebraska, Florida and Texas and analyzed data from 19 years – 1993-2011. We found that following these bans, underrepresented students of color at public medical schools dropped from 18.5% to about 15.3%.</p>
<p>In other words, before bans on affirmative action, for every 100 students matriculated in medical schools in states with bans, there were 18 students of color, whereas after the ban, for every 100 students matriculated, about 15 were students of color.</p>
<p>One of my prior <a href="http://aer.sagepub.com/content/early/2013/01/14/0002831212470483">studies</a> also found declines across a number of important graduate fields of study, including engineering, the natural sciences and the social sciences. Other research too has documented declines in African-American and Latino enrollment at the most <a href="http://www.mitpressjournals.org/doi/abs/10.1162/REST_a_00170#.VmbvJ9-rR">selective undergraduate schools</a> in the fields of <a href="http://www.nyulawreview.org/issues/volume-72-number-1/threat-diversity-legal-education-empirical-analysis-consequences">law</a> and <a href="http://www.ets.org/Media/Research/pdf/kidder_paper.pdf">business</a>. </p>
<h2>How prohibitions on race-conscious policies can harm students</h2>
<p>These declines in racial student body diversity can isolate and stigmatize students of color who are admitted and make it more difficult for institutions to create a welcoming campus environment for students of color. </p>
<p>In addition to leading to less diversity in the student body, barring the consideration of race in admissions can prevent institutions from addressing the ways in which race shapes the educational experiences of all students.</p>
<p>We might not think that admissions policies can have an influence on the work of administrators charged with supporting students of color once they are on campus, but findings from a more recent <a href="http://aer.sagepub.com/content/52/5/828">study</a> suggest that the influence of these laws extend beyond the composition of the student body. Bans on affirmative action can have a detrimental influence on work that is critical to the success of students of color on campus.</p>
<p>For <a href="http://aer.sagepub.com/content/52/5/828">this study</a>, my coauthor and I interviewed 14 campus-level administrators charged with implementing diversity policy at the University of Michigan, a flagship public institution representative of elite public schools in other states that have been affected by these laws. </p>
<p>We sought to understand how these administrators understood the influence of <a href="http://www.nytimes.com/2014/04/23/us/supreme-court-michigan-affirmative-action-ban.html?_r=0">Proposal 2</a>, a ballot initiative that banned race-sensitive admissions policies at public post-secondary institutions in Michigan in 2006.</p>
<p>Our interviews took place during 2011 and 2012, by which time Proposal 2 had been in implementation for five years. Consequently, the university had had time to respond to the law and to clarify any initial uncertainties regarding its legal requirements.</p>
<p>Specifically, we found the following: the law 1) limited the conversations campus-level administrators felt they could have around race and racism; 2) made individuals’ efforts to support racial diversity less visible; 3) made individuals feel less empowered to advocate for racial diversity and 4) contributed to concerns about negative perceptions regarding the university’s commitment to racial diversity.</p>
<p>These findings suggest that barring race-sensitive admissions policy at the outset can undermine the support students of color need to succeed. This is because efforts to support diversity on campus require visible, sustained support at various institutional levels. And individuals need to feel empowered to do the work that is necessary to support students of color.</p>
<h2>How considerations of race can lead to social cohesion</h2>
<p>By contrast, other <a href="http://muse.jhu.edu/journals/rhe/summary/v035/35.4.griffin.html">research</a> has found that race-sensitive admissions policies can signal to students of color that their diverse backgrounds are valued on campus. </p>
<p>Moreover, a <a href="http://civilrightsproject.ucla.edu/legal-developments/legal-briefs/amicus-brief-of-social-scientists-in-fisher-case">friend-of-the-court brief</a> in the Fisher case filed by 823 social scientists across the country, for which I served as counsel of record, summarized findings from other research demonstrating that classifications on the basis of race (such as what is involved in race-sensitive admissions) may be necessary to improve race relations. It also argued that race-sensitive admissions policies can help address issues about how race influences students’ educational experiences. </p>
<p>This is because race operates not only at the structural level – shaping a child’s life chances, including his or her opportunity for a quality education – but also at the individual level. </p>
<p><a href="http://books.wwnorton.com/books/Whistling-Vivaldi/">Race influences</a> thoughts and behavior of individuals of all races in subconscious ways – through implicit biases, such as attitudes toward particular social groups – and other psychological phenomena such as stereotype threat, classically manifested in high-stakes test performance, involving the threatening experience of conforming to negative race-based stereotypes present in the larger society.</p>
<p>Because race often shapes attitudes and behaviors subconsciously, not paying attention to race in admissions can further harm race relations. At the same time, <a href="http://onlinelibrary.wiley.com/doi/10.1111/j.1530-2415.2007.00149.x/abstract">permitting its consideration</a>
can lead to social cohesion. Justice Anthony Kennedy, a decisive vote in the Fisher case, has <a href="http://edr.sagepub.com/content/44/8/442.abstract?rss=1">acknowledged in past decisions</a> how much race continues to matter. </p>
<p>This understanding, however, needs to reflect the ways in which race matters and also take into account the impact of the court’s decisions in a post-Ferguson, post-University of Missouri society. </p>
<p>Colleges and universities need all tools they can have at their disposal to improve race relations on their campuses.</p><img src="https://counter.theconversation.com/content/51945/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Liliana M. Garces does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Limiting the use of race in higher education admissions policies for institutions can have harmful consequences for the diversity of the student body.Liliana M. Garces, Assistant Professor of Education , Penn StateLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/441172015-07-02T10:20:18Z2015-07-02T10:20:18ZExplainer: crucial Texas case on race considerations in college admissions<figure><img src="https://images.theconversation.com/files/87038/original/image-20150701-27131-8gq0hg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">An important affirmative action case comes back to Supreme Court. </span> <span class="attribution"><a class="source" href="https://www.flickr.com/photos/supermac/6931213037/in/photolist-byuha4-6YsKD3-5FEU7p-bonpHU-5nGB65-pwoRPY-fQN9BB-oXceR9-fQZbCN-peG69R-oXcPWR-5Y3htE-7cQZJH-oXchvs-oXcUFm-ro6AW6-f26B56-f1qyZB-fQGbng-85LYwH-fQTu7u-f2A64E-fb65rE-f1rkcZ-faQMUv-qVGH36-qVGGUk-f1Gccf-f1rTqi-f1rC2R-f1R9fq-f2k8X8-f1QPKf-f2m1a6-f26BDe-aaGB53-aaGBgQ-6eZ9Zf-5NvR7Z-fQZbEU-f2k8Zk-qVyoAt-aaGAPh-f1P46h-fQZbCy-pYWt9p-fQTv7w-f1yLNv-xj8dC-eWJfQv">Supermac1961</a>, <a class="license" href="http://creativecommons.org/licenses/by/4.0/">CC BY</a></span></figcaption></figure><p>Twelve years ago, after an <a href="http://www2.bloomberglaw.com/public/desktop/document/Grutter_v_Bollinger_539_US_306_156_L_Ed_2d_304_2003_Court_Opinion">epic legal battle</a> over the University of Michigan’s affirmative action admissions policy in its law school and undergraduate school, the Supreme Court upheld the importance of student body diversity for the institution’s educational mission and the need to consider race as a factor in admissions. </p>
<p>The case, <a href="http://www2.bloomberglaw.com/public/desktop/document/Grutter_v_Bollinger_539_US_306_156_L_Ed_2d_304_2003_Court_Opinion">Grutter v Bollinger (2003)</a>, which also relied on a prior case that dated back to 1978, <a href="http://www.oyez.org/cases/1970-1979/1977/1977_76_811">University of California v Bakke</a>, cited extensive evidence about the importance of a racially and ethnically diverse student body.</p>
<p>However, in 2012 the Supreme Court reopened the issue, with the <a href="http://www.oyez.org/cases/2010-2019/2012/2012_11_345">Fisher v University of Texas</a> case. </p>
<p><a href="http://www.washingtonpost.com/blogs/answer-sheet/wp/2012/10/10/who-is-abigail-noel-fisher/">Abigail Fisher</a> is a white female applicant who applied to the university in 2008 and was denied admission. She then sued the University of Texas at Austin on the grounds that the university’s race-conscious admissions policy violated the equal protection clause of the Fourteenth Amendment. </p>
<p>Now the case is, once again, back before the Supreme Court (after having been decided, again, in UT-Austin’s favor by a lower court and appealed, again, by Fisher) and will be heard in the 2015-2016 term. </p>
<p>While the case raises questions specific to UT-Austin’s program, it is also possible that the Supreme Court may further limit the use of race in higher education admissions policies for institutions across the nation. </p>
<p>This could be a historic decision, following a term in which the court decided to severely curtail <a href="http://www2.bloomberglaw.com/public/desktop/document/Shelby_Cnty_v_Holder_No_1296_2013_BL_167707_US_June_25_2013_Court">the Voting Rights Act</a> and <a href="http://www.supremecourt.gov/opinions/13pdf/12-682_8759.pdf">uphold the constitutionality of a ban on affirmative action</a> in Michigan.</p>
<h2>Fisher: Round 1</h2>
<p>The Fisher case was expected to be a fundamental decision on affirmative action in universities. </p>
<p>When the court first agreed to hear the case in 2012, the social science community came together, along with the <a href="http://www.civilrightsproject.ucla.edu/">Civil Rights Project at UCLA</a>, to support the race-conscious admissions policy at UT-Austin. </p>
<p><a href="http://www.aera.net/EducationResearch/LinkingResearchtoPublicInterest/AmicusBriefs/FishervUniversityofTexasatAustin/tabid/13333/Default.aspx">The American Educational Research Association</a>, along with numerous other scholarly organizations, filed a brief summarizing the extensive research demonstrating the educational benefits of a racially diverse student body. </p>
<p>Some 444 social scientists from 172 institutions across the nation submitted a <a href="http://civilrightsproject.ucla.edu/legal-developments/legal-briefs/amicus-curiae-brief-in-fisher-v.-university-of-texas-at-austin">brief</a> for which the lead author of this article served as counsel of record, outlining the evidence demonstrating the limits of so-called race-neutral policies in achieving racial diversity. </p>
<p>In its <a href="http://www.oyez.org/cases/2010-2019/2012/2012_11_345">decision</a> in 2013, the court reaffirmed the important value of educational diversity.</p>
<p>However, a contentious issue was left unresolved: the court did not reach a judgment on the key question of whether there was a nonracial way to achieve the diversity that would make consideration of race unnecessary and therefore illegal under the court’s standards. </p>
<h2>Can diversity be achieved by ignoring race?</h2>
<p>The decision was subsequently described as a <a href="https://books.google.com/books?id=LUiKBAAAQBAJ&pg=PA209&lpg=PA209&dq=breaking+in+rise+of+sotomayor+compromise+in+fisher&source=bl&ots=zWmAXjPzfI&sig=94e_oBga8wtFlgRi-pWSyXd_S-I&hl=en&sa=X&ei=JUWUVdTEAYb5-AHxv5KQAQ&ved=0CC4Q6AEwAg#v=onepage&q=breaking%20in%20rise%20of%20sotomayor%20compromise%20in%20fisher&f=false">“compromise”</a> in which seven of the eight justices who heard the case agreed to send it back to the lower court for review. </p>
<p>Only Justice Ruth Bader Ginsburg dissented, on the grounds that she would have found the policy constitutional without further review by the lower court. </p>
<p>The decision clarified that the means institutions use to further their interest in diversity required judicial overview, meaning that a judge may not rely on the judgment of the university alone, or defer to its determination, but will require evidence that supports the institution’s decisions.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/87053/original/image-20150701-27118-vcu7ls.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/87053/original/image-20150701-27118-vcu7ls.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=450&fit=crop&dpr=1 600w, https://images.theconversation.com/files/87053/original/image-20150701-27118-vcu7ls.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=450&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/87053/original/image-20150701-27118-vcu7ls.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=450&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/87053/original/image-20150701-27118-vcu7ls.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=566&fit=crop&dpr=1 754w, https://images.theconversation.com/files/87053/original/image-20150701-27118-vcu7ls.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=566&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/87053/original/image-20150701-27118-vcu7ls.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=566&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">The Supreme Court will be hearing the briefs of many organizations on the issue.</span>
<span class="attribution"><a class="source" href="https://www.flickr.com/photos/merrimack/6848471333/in/photolist-brbcVX-brbebZ-brbdNv-brbdrt-brbcMe-brbdzV-brbd6V-brbdVR-brbdgr-88yCms-boA4g9-5b53en-5MHFrN-8Hghu3-8Hda7v-7Cydgj-e3S6z6-6eySrL-Chreb-52m7Pp-9F99M5-2fqC2-nQVHrq-Rk2Uy-fTRP7-k1FHV-egy1by-gX7xEV-ffJ4NA-9chSab-oosYGC-5ThPMi-5pUZiz-dSEfhG-6iRhnx-LAeDb-47pZp7-2yoDBX-6bSpKN-9JbC4L-yU8mv-6g8ZyQ-dSedC5-bbWCYH-bbWFot-bbWHwK-bc8EZn-egxZdW-egsfBp-egseeD">Merrimack College</a>, <a class="license" href="http://creativecommons.org/licenses/by-nc-nd/4.0/">CC BY-NC-ND</a></span>
</figcaption>
</figure>
<p>In doing so, the decision also clarified the importance of considering workable race-neutral alternatives. </p>
<p>If a nonracial approach could promote diversity “about as well and at tolerable administrative expense,” then the university could not consider race directly. This placed a high, but not insurmountable, bar to justify ongoing consideration of race in admissions policies.</p>
<p>The justices asked the lower court, which had appeared to defer to the university’s judgment on the necessity of considering race, to reach its own decision on this issue. </p>
<p>The case went to the Fifth Circuit, which reheard the case and decided, for the second time, that UT-Austin’s admissions policy met the requirements of the court’s clarified standard in Fisher and that of past cases.</p>
<p>Fisher, however, appealed arguing that the Fifth Circuit still had not applied the test correctly. </p>
<h2>Fisher: Round 2</h2>
<p>In the first round, the lawyers for Abigail Fisher said they were not asking the court to reverse prior cases. What they argued, instead, was that UT Austin’s race-conscious policy was not necessary because other laws in the state, such as the <a href="http://www.texastribune.org/tribpedia/top-ten-percent-rule/about/">Top Ten Percent Plan</a>, allowed the university to achieve what the Fisher lawyers saw as sufficient racial diversity. </p>
<p>This seems to be the same argument they are presenting in this second round (though that could change as the briefing develops).</p>
<p>Under the plan, students who graduate at the top 10% of their class can be automatically admitted to any campus of the university they wish to attend. The university was able to achieve some level of racial diversity with the plan. </p>
<p>But UT-Austin found that as an alternative to the direct consideration of race in admissions, it was insufficient. The university thus sought to complement the 10% plan with a race-conscious review process.</p>
<p>After the remand in 2013, the Fifth Circuit agreed, but one judge strongly dissented, arguing that the university had failed to provide evidence showing that the 10% plan had not produced sufficient diversity. </p>
<p>This judge also argued that the court had not been sufficiently demanding in examining the university’s justifications: the university’s goals, he said, were vague and the “critical mass” of diversity the university needed not well-defined.</p>
<h2>Need to consider race</h2>
<p>The concept of critical mass has been at the center of affirmative action litigation efforts since Grutter, and will be central again in this second round in Fisher.</p>
<p>Universities seek to attain it because token representation of a minority group produces problems of extreme isolation and gives little opportunity for other students to interact with minority students.</p>
<p>Opponents challenge it as a goal that is ill-defined and ask for a definition that specifies a number (even though such a number could be considered an illegal quota under the court’s decision in Bakke). </p>
<p>My own <a href="http://edr.sagepub.com/content/43/3/115.full.pdf+html?ijkey=92cWalR5daVIg&keytype=ref&siteid=spedr">analysis</a> shows that the notion of critical mass cannot be reduced to a number, as it depends on a number of contextual factors necessary to obtain the benefits of diversity.</p>
<p>Other research also shows that when race is not considered in a holistic admissions process, as has been the case at institutions in the <a href="http://www.ncsl.org/research/education/affirmative-action-state-action.aspx">eight states</a> that ban affirmative action policies, racial and ethnic diversity in the student body declines significantly, especially in highly selective campuses. </p>
<p>These declines have taken place at <a href="http://www.mitpressjournals.org/doi/abs/10.1162/REST_a_00170#.VZHtk-1VhHx">colleges and universities</a>, in <a href="http://cue.usc.edu/racial%20diversity.pdf">graduate</a> education and across different <a href="http://aer.sagepub.com/content/50/2/251.full.pdf+html?ijkey=Bzu6u6tV6z2xc&keytype=ref&siteid=spaer">fields of study</a>, including engineering, natural sciences, social sciences and humanities, and in the important <a href="https://theconversation.com/ban-on-affirmative-action-in-medicine-will-hurt-all-39904">field of medicine</a>.</p>
<h2>Need for diversity</h2>
<p>In recent years, even with affirmative action in the great majority of states, students of color and low-income students are earning college degrees at <a href="https://www.americanprogress.org/issues/higher-education/report/2014/09/09/96689/how-public-universities-can-promote-access-and-success-for-all-students/">lower rates</a> than their peers, deepening the concern of civil rights groups about the Court’s new move.</p>
<p>The court’s decision to hear the case again was also immediately criticized by <a href="http://www.civilrights.org/press/2015/fisher-SCOTUS.html">the Leadership Conference on Civil Rights</a>, representing more than 200 civil rights groups.</p>
<p>As with the first round, one of the justices who had recused herself earlier – Justice Kagan – will not participate, given her prior role as solicitor general when the case was being litigated earlier. With one fewer vote than usual, there is a possibility for a tie, which could leave the lower court decision supporting the University of Texas in place.</p>
<p>The court is likely to hear from many research and higher education organizations who can present evidence via friend-of-the-court briefs. </p>
<p>In the weeks before briefs are to be submitted to the court, researchers working in this field will be discussing the issues, updating research syntheses, and, once again, seeking to offer critical data to aid the court’s deliberations and to inform the broader public not yet aware of the potential consequences of the coming decision.</p>
<p>Our nation’s colleges play a critical role in preparing students for a multiracial society. It is our hope that the court will be guided by the weight of the social science research documenting the myriad educational benefits of diversity and the need to consider race, in a limited fashion, to meet their educational mission.</p><img src="https://counter.theconversation.com/content/44117/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Liliana M Garces served as counsel of record in a friend-of-the-court brief filed in support of the University of Texas at Austin when the case was before the Court in 2012.</span></em></p><p class="fine-print"><em><span>Gary Orfield does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Could the Abigail Fisher case, which is back before the Supreme Court, further limit the use of race in higher education admissions policies for institutions across the nation?Liliana M. Garces, Assistant Professor of Education , Penn StateGary Orfield, Professor of Education, Law, Political Science and Urban Planning, University of California, Los AngelesLicensed as Creative Commons – attribution, no derivatives.