Dear colleagues: How to achieve student diversity, legally [affirmative action after SCOTUS]

Of note:

On 14 August the Biden administration provided colleges and universities with scenarios that would allow them to maintain the racial diversity of their student bodies following the Supreme Court of the United States’ (SCOTUS) decision last June that ended affirmative action.

Secretary of Education Miguel Cardona cast the maintenance of racial diversity in the nation’s colleges and universities as both an economic necessity and the fulfilment of America’s promise to itself. “For higher education to be the engine of economic opportunity, upward mobility and global competitiveness, we need campus communities that reflect the beautiful diversity of our country,” he said.

The Washington DC-based American Council on Education (ACE) welcomed the guidance provided by the Biden administration.

“This guidance from the Department of Education is a welcomed effort to delineate the limits of the ruling and help colleges better understand this new environment as they seek to meet their diversity and inclusion goals within the new limitations imposed by the court’s ruling,” said Audrey Hamilton, associate director of ACE’s public affairs.

Pushback against court findings

In the United States, SCOTUS is the final arbiter of constitutional questions. Its decisions are binding on both the federal and state governments.

While the Biden administration was well within rhetorical norms when it expressed regret about the decision, official government statements such as the “Dear Colleague letter” addressed to colleges and universities and signed by Kristen Clarke, assistant attorney general for civil rights at the Department of Justice (DoJ), and Catherine E Lhamon, assistant secretary for civil rights at the Department of Education (DoE), are not generally considered the place to re-litigate constitutional issues in public.

Still, the administration pushed back against the SCOTUS’ rejection of the notion that student diversity adds to the educational experience of college and university students, stated most clearly in Justice Clarence Thomas’ concurring opinion in the case of Students for Fair Admissions (SFFA) v President and Fellows of Harvard College (SFFA).

“I have sought to understand exactly how racial diversity yields educational benefits,” said Thomas. “With nearly 50 years [since the establishment of affirmative action programmes] to develop their arguments, neither Harvard nor UNC – two of the foremost research universities in the world – nor any of their amici [friend of the court briefs] can explain that critical link.”

The University of North Carolina at Chapel Hill (UNC), and Harvard University were sued by SFFA which claimed that the universities’ affirmative action programmes discriminated against Asian and white applicants.

The Dear Colleague letter underscored that both the DoJ and DoE believe: “Learning is enriched when student bodies reflect the rich diversity of our communities. Research has shown that such diversity leads to, among other things, livelier and more informative classroom discussions, breaking down prejudices and increased cross-racial understanding, and heightened cognitive development and problem-solving skills.”

The letter further states: “The benefits of diversity in educational institutions extend beyond the classroom as individuals who attend diverse schools are better prepared for our increasingly racial and ethnically diverse society and global economy.”

Holistic application-review processes

The DoJ’s guidance, that accompanied the letter from Clarke and Lhamon, is grounded in the SCOTUS’ decision in SFFA and, specifically, in the statement, just before the end of the majority decision written by Chief Justice John Roberts, that “nothing in this opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration or otherwise”.

As interpreted by the DoJ, Roberts allowed universities and colleges to continue to use holistic application-review processes that provided opportunities, through essay prompts, to assess how an applicants’ background and individual attributes – including race, experience of racial discrimination or the racial composition of his/her schools or neighbourhood – position the applicant to contribute to the college or university in a unique manner.

Among the concrete examples the guidance provides are:

• “A university could consider an applicant’s explanation about what it means to him to be the first Black violinist in his city’s youth orchestra”; and

• “[A]n institution could consider an applicant’s discussion of how learning to cook traditional Hmong dishes from her grandmother sparked a passion for food and nurtured her sense of self by connecting her to past generations of her family (the Hmong are an indigenous group from East and Southeast Asia)”.

When Dr Alí Bustamante, deputy director of the New York-based Roosevelt Institute’s Worker Power and Economic Security Program, was asked if the DoJ’s examples were pitched only to those students who excelled in high school, and thus made them good candidates for Harvard at the expense of those students who managed to do well in the many poorly equipped and underfunded high schools in America’s slums, he said: “Yes.”

“A more apt example of how race directly impacts lived experiences is a narrative about a Black student that graduates from an underfunded school, lived through years of systemic exclusion, and/or residing in an over-policed community. These examples better show how race commonly impacts lived experiences and overcoming these experiences should be valued,” he wrote in an email to University World News.

Further, the decision does not, the DoJ told universities and colleges, prevent them from considering that data if it comes from a third party.

“An institution could . . . consider a guidance counsellor or other recommender’s description of how an applicant conquered her feelings of isolation as a Latina student at an overwhelmingly white high school to join the debate team,” says the Dear Colleague letter.

Measures beyond race

The SCOTUS decision dealt with a narrow question: did affirmative action programmes violate the Equal Protection Clause of the 14th Amendment to the US Constitution ratified in 1868, one of the three post-Civil War amendments that banned slavery?

The clause reads in part: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States . . . nor deny any person within its jurisdiction the equal protection of the laws.” SCOTUS decisions interpreted the phrase “No state” to include the federal government and, thus, included the laws under which affirmative action was implemented.

The decision does not prohibit colleges and universities from using means other than specifically identifying a student’s race to foster diversity. Both outreach and recruitment programs can, the DoJ says, “consider race and other factors that include, but are not limited to, geographic residency, financial means and socioeconomic status, family background, and parental education”. (Postal codes are strong predictors of race and these other sociological factors.)

Colleges and universities that seek diverse student bodies can direct their outreach/recruitment towards schools and school districts that serve predominantly students of colour and students of limited financial means.

They may also “target school districts or high schools that are underrepresented in the institution’s applicant pool by focusing on geographic location (for example, schools in the Midwest, or urban or rural communities) or other characteristics”.

Among these characteristics are low-performing schools or those with high dropout rates, those in which large percentages of students received free lunches or have historically low numbers of graduates being admitted to the college or university in question.

Neither these outreach/recruitment efforts nor establishing pathway programmes in which, for example, an institution partners with a high school to offer mentoring and summer enrichment boot camps run afoul of the SCOTUS decision.

Moreover, the DoJ says, neither would admissions policies such as the automatic admittance of community college (two-year college) graduates, as is the case in several states presently. For, each of these regimens is designed to increase the applicant pool and not to identify the race of any individual student by ticking off a box.

In his opinion, which argued for race blindness, Justice Thomas derided this bureaucratic shorthand: “What it [the admissions process] cannot do is use the applicant’s skin colour as a heuristic, assuming that because the applicant checks the box for ‘black’ he therefore conforms to the university’s monolithic and reductionist view of an abstract, average black person.”

Such arguments ignore the fundamental role racism has played in American history and how it is baked into many of the nation’s institutions.

“Affirmative action practices have been contested since they were first implemented [in the middle 1960s] because some Americans, including policymakers, do not agree with the use of policy to address, and attempt to repair, the injuries that marginalised communities have endured as a result of past discriminatory policies,” said Bustamante.

“Some Americans believe in the myth that government policy should be race neutral despite the stark reality that American policymaking has a legacy of disproportionately benefiting whites and men and excluding people of colour, women, and those with atypical abilities and gender identities.”

A university takes proactive steps

A month before the Biden administration released its guidance to colleges and universities, Sarah Lawrence College stole a march on the DoJ and DoE. The liberal arts college just north of New York City changed the essay prompt that students applying for admissions in the 2024-25 school year must follow.

The prompt begins by referencing and then citing the SCOTUS decision in SFFA.

“In a 2023 majority decision of the Supreme Court of the United States, Chief Justice John Roberts wrote: ‘Nothing prohibits universities from considering an applicant’s discussion of how race affected the applicant’s life, so long as that discussion is concretely tied to a quality of character or unique ability that the applicant can contribute to the university’.”

Prospective students are then asked to write an essay: “Drawing upon examples from your life, a quality of your character, and/or a unique ability you possess, describe how you believe your goals for a college education might be impacted, influenced or affected by the Court’s decision.”

According to Bustamante, Sarah Lawrence’s essay prompt aligns with the Biden administration’s view and not with the SCOTUS.

“The court majority has repeatedly affirmed that racial discrimination and marginalisation is not a given – a generalised experience of all people of colour. The Sarah Lawrence and Biden administration perspective is that the court’s ruling means that racial discrimination and marginalisation must be explicitly factored into admissions, and no longer be assumed based on the identification of race alone.”

Source: Dear colleagues: How to achieve student diversity, legally