In The
Supreme Court of the United States
_________
Abigail Noel
Fisher, Petitioner, v. University of Texas at Austin, et al.,
On
Writ of Certiorari to the United States Court of Appeals
for the Fifth Circuit
_________
Brief
for amici curiae
The college board and the National School Boards Association et al.
IN SUPPORT OF RESPONDENTS
_________
The college board and the National School Boards Association et al.
IN SUPPORT OF RESPONDENTS
_________
C. Mitchell Brown* Arthur
L. Coleman
Nelson Mullins Riley & Richard
W. Riley
Scarborough, LLP Katherine
E. Lipper
1320 Main Street Scott
R. Palmer
Columbia, SC 29201 Saba P. Bireda
(803) 255-9595 EducationCounsel,
LLC
101
Constitution Ave., NW
Suite 900
Washington DC
20001
(202) 545-2912
Francisco M. Negrón, Jr. Neil
Lawrence Lane
Naomi E. Gittins Latifa
V. Stephens
National Sch. Boards Ass’n The
College Board
1680 Duke Street 45
Columbus Avenue
Alexandria, VA 22314 New
York, NY 10023
(703) 838-6722 (202)
713-8283
* Counsel of Record
|
I. THIS
COURT SHOULD AFFIRM THAT 21ST CENTURY EDUCATION GOALS ALIGNED WITH
EFFORTS TO ADVANCE ECONOMIC SUCCESS AND PROMOTE THE CONTINUED VITALITY OF OUR
DEMOCRACY ARE FURTHERED BY DIVERSITY.
II. EDUCATIONAL
JUDGMENTS IN THE ADMISSIONS PROCESS THAT INVOLVE MANY STUDENT QUALITIES AND
CHARACTERISTICS (INCLUDING RACE AND ETHNICITY) SHOULD BE RECOGNIZED AS
ESSENTIAL FOUNDATIONS FOR ATTAINING MISSION-DRIVEN EDUCATIONAL EXCELLENCE.
A. This Court Should Reaffirm That
The Admissions Process Is An Institution-Specific, Mission-Oriented Process
Grounded In Academic Judgments Regarding How to Best Achieve Institutional
Goals.
B. This Court Should Reaffirm That
Decisions Regarding Student Merit In The Admissions Process Are Grounded In
Educational Judgments Associated With A Wide Range Of Factors That May Include
Consideration Of A Student's Race or Ethnicity.
1. A Determination Of Merit Is Aligned With
Mission.
2.
A Determination Of Merit Is Based On A Wide Range Of Factors Considered In An
Institutional Context.
3.
A Determination Of Merit May Include The Consideration Of An Applicant's
Racial/Ethnic Diversity As Part Of Individualized, Holistic Review.
III. THE
BALANCED AND WORKABLE GRUTTER FRAMEWORK
SHOULD BE PRESERVED AS IT HAS BEEN EFFECTIVELY IMPLEMENTED BY EDUCATION
INSTITUTIONS TO GUIDE THEIR POLICY DEVELOPMENT AND ENSURE THE ATTAINMENT OF
COMPELLING EDUCATIONAL GOALS ASSOCIATED WITH DIVERSITY.
In The
Supreme Court of the United States
_________
No.
10-63
_________
Abigail Noel
Fisher,
Petitioner,
v.
University of Texas at Austin, et al.,
Respondents.
_________
On
Writ of Certiorari to the
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
for the Fifth Circuit
_________
Brief
for amici curiae
The college board and the National School Boards Association et al.
IN SUPPORT OF RESPONDENTS
_________
The college board and the National School Boards Association et al.
IN SUPPORT OF RESPONDENTS
_________
INTerest of amici curiae[1]
Amici represent elementary, secondary and
postsecondary education organizations committed to the success of all students,
upon which their futures in the workplace and as citizens will be shaped. With a recognition of the vital role of
diversity in the lives of students, these organizations address the goals to
which they and their members aspire, and their reliance on long-standing
principles of this Court that have informed their diversity-related efforts to
foster success for the benefit of all students.
Founded in 1900, the College
Board is a mission-driven not-for-profit organization that connects
students to college success and opportunity. Today, its membership includes
more than 6,000 of the world’s leading educational institutions dedicated to
promoting excellence and equity in education. Each year, the College Board
helps more than seven million students prepare for a successful transition to
college through programs and services in college readiness and college success
— including the SAT® and the Advanced Placement Program®. The organization also
serves the education community through research and advocacy on behalf of
students, educators and schools.
The National
School Boards Association ("NSBA") is a nonprofit organization
representing state associations of school boards, as well as the Board of
Education of the U.S. Virgin Islands.
Through its member state associations, NSBA represents over 95,000
school board members who govern approximately 13,800 local school districts
serving nearly 50 million public school students. NSBA regularly represents its members’
interests before Congress and federal and state courts and has participated as amicus curiae in many cases involving
public school diversity policies.
The College Board and NSBA are joined in
this brief by eleven organizations whose members include educational leaders,
schools, colleges, universities, and other institutions dedicated to improving
education in America: the American Association
of College Registrars and Admissions Officers, the American Association of
Colleges for Teacher Education, the
American Association of School Administrators, the Association of Teacher
Educators, the Council of the Great City Schools, the Horace Mann League, the
National Association for College Admission Counseling, the National Association
of Independent Schools, the National Association of Secondary School
Principals, the Public Education Network, and the Texas Association of School Boards Legal Assistance Fund.
SUMMARY OF THE ARGUMENT
The ability of America's educators to help students achieve excellence by providing the kinds of opportunities and experiences students will need as they prepare for careers and citizenship in the 21st Century is dependent upon many factors, including the diversity among peers with whom they interact. From the elementary to the postsecondary context, where the establishment of a sufficiently diverse learning environment is often essential to educational success, race and ethnicity still matter.
The
American workplace is diverse and global, and becomes more so each year. Success is dependent upon an individual’s
ability to engage with diversity of all kinds, be it diversity of ideas or
cultures or diversity of race and ethnicity.
Indeed, the nation's future depends on ensuring that pathways exist that
exhibit such diversity, with education settings being among the most
critical. Accounting for the reality of the current and evolving American
workforce necessarily includes providing the learning experiences that will
facilitate student success in a diverse world, which in turn necessitates
considerations of achieving diversity within educational institutions –
including, but not limited to, racial and ethnic diversity.
Decisions
regarding who to admit to postsecondary institutions have historically been
judged to be among the cornerstones of academic freedom, meriting deference in
the establishment of mission-oriented goals and objectives that are both grounded
in evidence and central to institutional success. It is therefore
essential that this Court preserve the ability of higher education admissions
officers to render mission-informed holistic judgments based upon the
background qualities, characteristics and experiences of applicants—consistent
with the current, rigorous federal nondiscrimination standards and framework
that have guided such efforts for decades.
Academic
judgments inherent in higher education admissions involve considerations of
numerous factors regarding student applicants, which, in combination, are
essential in the formation of classes in which students will expand their
horizons, have their world views sharpened and challenged by exposure to other
viewpoints and experiences, and prepare for productive and engaging
lives. Race and ethnicity often constitute a small, but vital part of
that overall mix of factors. To
eliminate or materially alter the current legal framework that preserves the
foundation for holistic judgments informed by these factors (that may or may
not include race and ethnicity) would undermine the investment that thousands
of institutions have made in defining themselves and aligning policies and
practices to concrete inquiries derived from this Court’s teachings.
Under current law, educators continue to adhere to a workable legal framework
that has guided their diversity efforts for decades—as a foundation for
achieving success for their students, as well as for the institutions they
attend and the society in which they will enter as productive workers and
engaged citizens.
ARGUMENT
I.
THIS COURT SHOULD AFFIRM THAT 21ST
CENTURY EDUCATION GOALS ALIGNED WITH EFFORTS TO ADVANCE ECONOMIC SUCCESS AND
PROMOTE THE CONTINUED VITALITY OF OUR DEMOCRACY ARE FURTHERED BY DIVERSITY.
This
Court has consistently recognized that in educational settings, the benefits of
diversity are compelling. Throughout the
education spectrum, this Court has recognized the relationship of diversity
(including racial and ethnic diversity) to enhanced teaching and learning, as
well as its role in preparing students for productive lives in the workforce
and in society.[2] In
the postsecondary context, in particular, the benefits associated with
diversity include improved teaching and learning through which critical and
complex thinking and problem solving abilities are enhanced;[3] in addition, such diversity advances the
development of skills associated with communication, collaboration and
teamwork–which, in turn, promote creativity and innovation.[4] In
the elementary and secondary setting, as well,
diversity not only contributes to the achievement of students, it also
contributes positively to the development of citizenship traits, transmission
of cultural norms, and growth of interpersonal and social skills that students
will need to be productive and thriving citizens of a democratic nation. In
this setting, diversity plays "an important role in transmitting society’s
culture and values to its young, as well as giving them the appropriate knowledge
and skills for leading productive and fulfilling adult lives.”[5]
These
educational interests today are, if anything, more clearly compelling than in
decades past.[6] Long
identified as essential to the missions of many postsecondary institutions and
school districts in the United States, diversity has emerged as central to our
nation's overarching goals associated with educational excellence and the
preparation of individuals to contribute meaningfully to our rapidly changing
global workforce and to the communities in which they will live.
Indeed,
a growing consensus regarding
"'[m]ust [h]ave' skills,"
Elena Silva, Educ. Sector, Measuring Skills for the 21st
Century 2 (2008), reflects that students must know and be able to "master core
academic content; think critically and
solve complex problems; work
collaboratively; communicate
effectively; and be self-directed and able to incorporate feedback," Alliance for Excellent
Educ., A Time
for Deeper Learning: Preparing Students for a Changing World 2 (2011)
(emphasis added). These
expectations, along with the emerging consensus state standards that are
defining what students should know and be able to do as they graduate from high
school, are fully aligned with the aims of postsecondary education.[7]
Indeed,
the vital interest in equipping tomorrow's workforce and citizens with the
experiences and skills they will need to succeed is manifested in higher
education's obligation to the students it educates and to the society that it serves.
See William G. Bowen
& Derek Bok, The
Shape of the River: Long-Term Consequences of Considering Race in College and
University Admissions 280-86 (1998). Thus, to meet the challenges of
the day, educators throughout the secondary and postsecondary spectrum have
embraced a commitment to ensuring that America's students are globally
competitive, just as they remain focused on the corresponding core interests
that have defined education's mission for generations.
To
fulfill these aims effectively, the continuing importance of considerations of
race and ethnicity—including diversity within the institutions that are charged
with preparing students for life as productive workers and contributing
citizens—remains central. See Grutter, 539 U.S. at 330-31 (finding
that benefits associated with higher education's diversity goals are
"substantial," "important," "laudable,"
"real," and "pivotal").[8] These
national interests are widely reflected within a varied array of
postsecondary institutions in their articulation of institution-specific core
principles, many of which have been developed in the context of this Court's
longstanding guidance. In a 2003 survey,
almost three-quarters of colleges and universities indicated that they included
a commitment to diversity in their institutional mission statements, with over
two-thirds of responding institutions reporting an express commitment to racial
and ethnic diversity as part of that commitment. See Nat'l Assoc. for Coll. Admission Counseling,
Diversity and College Admission in 2003: A Survey Report x
(2003.)[9]
Diversity
as an institutional priority and point of focus comes as no surprise, given
that many of our nation's fastest-growing economic sectors require that workers
have higher levels of reasoning, problem-solving, and interpersonal skills[10]—skills enhanced by experiences among diverse peers.[11] To
the degree, then, that our nation's education system is able to serve students
in diverse learning environments, we will better prepare our citizenry for a
global economy that demands professionals who can work together effectively and
productively, where differences of backgrounds and experience are foundations
for—not obstacles to—success.
Consistent
with the views expressed by Members of this Court, educators throughout our
nation recognize that there is still work to be done: "Our highest aspirations are yet
unfulfilled." PICS,
551 U.S. at 782 (Kennedy, J., concurring in part and concurring in the
judgment). And, in fact, while we
aspire to a society in which race should not matter, "all too often it
does." Id. at 787; see
also Annie E. Casey Found., Race
Matters: Unequal Opportunities in Education (2006); Anne Habash Rowan et al.,
Educ. Trust, Gauging the Gaps: A Deeper Look at Student Achievement (2010). Thus, educators must continue to be able to
make fundamental judgments regarding higher education admissions that will
serve the many interests of their institutions, the students they enroll, and
the nation.[12] To maintain the vital, visible pathways
toward that success, educators must also retain the discretion to consider all factors associated with student
qualifications, characteristics and experiences, consistent with this Court's
established precedent.
II.
EDUCATIONAL JUDGMENTS IN THE
ADMISSIONS PROCESS THAT INVOLVE MANY STUDENT QUALITIES AND CHARACTERISTICS
(INCLUDING RACE AND ETHNICITY) SHOULD BE
RECOGNIZED AS ESSENTIAL FOUNDATIONS FOR ATTAINING MISSION-DRIVEN EDUCATIONAL
EXCELLENCE.
A.
This Court Should Reaffirm That the
Admissions Process Is an Institution-Specific, Mission-Oriented Process
Grounded in Academic Judgments Regarding How to Best Achieve Institutional
Goals.
The
work of personnel in the admissions field—from high school counselors who help
guide and prepare students for their futures in postsecondary education, to
admissions officers who make the judgments regarding the optimal composition of
their incoming classes—centers on dual aims.
One aim is helping students identify the institution(s) where they are
most likely to thrive. The other
complimentary aim is helping students identify the institution(s) where they
can materially contribute to the educational experience of their peers. The ultimate goal associated with these aims
is preparation for fulfilling and productive lives in which they, and the society
in which they live, will benefit.[13]
In
fact, within postsecondary institutions, themselves, the admissions process is
not about merely admitting freshmen to a class.
To the contrary, the admissions process is one of fully evaluating and
making decisions about prospective graduates, who will in the course of their
higher education experience explore and expand their potential and horizons,
just as they challenge their peers to do the same for the benefit of all students who attend their
institution. In sum, the admissions
process reflects a blend of both art and science— grounded in standards, data,
and evidence; and involving the careful application of human judgment and
intuition. It is a humanistic endeavor,
involving many factors shaped by the qualifications, backgrounds, and
experiences of prospective students in
light of the character and mission of the institution to which they
apply. E.g., Michele Sandlin, The
"Insight Resume:" Oregon State University's Approach to Holistic
Assessment, in The College Admissions
Officer's Guide 99 (Barbara
Lauren ed., 2008); see generally Rigol, Admissions Models, supra note 9, at 7; Gretchen W. Rigol,
Coll. Bd., Selection Through Individualized Review: A Report on Phase IV of the Admissions Model
Project 3-7 (2004).[14]
B.
This Court Should Reaffirm that
Decisions Regarding Student Merit In The Admissions Process Are Grounded In
Educational Judgments Associated With A Wide Range Of Factors That May Include
Consideration Of A Student's Race or Ethnicity.
Higher
education institutions in the United States differ widely—from public to
private; from large to small; from community college to major research
institution; and more. There is
remarkable diversity both among the types of institutions, as well as within each of these sectors—where
service areas, academic strengths and pursuits, and other core mission elements
vary greatly. See Nat'l Research Council,
Myths and Tradeoffs: The Role of Tests in Undergraduate Admissions 10 (1999) ("U.S. colleges and
universities could hardly be less uniform."). Institution-specific
admissions determinations are correspondingly varied:
Despite
what the popular press and various guidebooks would suggest, gaining admissions
to college is not equivalent to finding your place on the food chain. If one must use a biological metaphor, a more
appropriate analogy would be finding your niche in an ecosystem. Different institutions aspire to serve
different educational needs, and different students will have their educational
needs served by different kinds and types of colleges. A particular institution's decision of whom
and how to admit…must be related to the societal role that it elects to play.
Gretchen W. Rigol, Coll. Bd., Toward a Taxonomy
of the Admissions Decision-Making Process 5 (1999); see also Rigol,
Admissions Models, supra note 9, at 1 ("The
primary conclusion this report reaches is that there are almost as many
different approaches to selection as there are institutions."); Arthur L. Coleman et al., Coll. Bd., A
Diversity Action Blueprint: Policy
Parameters and Model Practices for Higher Education Institutions iii
(2010) ("As with the diversity interests themselves, which are
inherently institution-specific, institutional policies should reflect the
particular values, aims and histories of the institutions with which they are
associated.").
This
variety of institutional type has significant implications regarding how race
and ethnicity may be and should be considered to advance particular
institutional goals. Specifically, the
differences that define higher education institutions correspond to the variety
of ways in which institutions reach conclusions about the merit of student
applicants in light of admission aims.
This includes whether—and if so, how—they integrate considerations of
race and ethnicity in the admissions decision to achieve their diversity goals.[15]
Regardless of type, however, those judgments rest upon three universal
principles associated with the admissions process: A determination of merit (1) is aligned with
mission; (2) embodies judgments regarding multiple factors that reflect who, in
the first instance, is qualified; and
who, then, should be admitted; and (3) can depend on limited but important
considerations of race and ethnicity, among many other diversity-related
factors. See generally Rigol,
Admissions Models, supra note 9; Rigol, Toward a Taxonomy, supra; Coleman,
Diversity Action Blueprint, supra.
1. A Determination Of Merit Is Aligned
With Mission.
Admissions
decisions are not made in a vacuum; they are, instead, driven by the missions
of the institutions at which they are made.
They are reflective of admission officials' well-developed understanding of institutional missions and
goals, and they are shaped by many factors, including the perspectives of
faculty and leaders within the institution and feedback from employers who seek
to hire from the pool of students admitted.
See Rigol, Admissions Models,
supra note 9, at 9, 19-36 (describing the complexity of the
admissions process and the factors that affect those judgments). In this context, institution-specific
academic standards, expectations, and aims established for graduates are
important guideposts for the admissions judgments that are made, to which
appropriate legal deference should be afforded. [16]
There is, as a consequence, no single definition of merit—and, more to
the point, there cannot be a single
definition of merit that would effectively satisfy all institutional goals,
nationwide. See id. at 13-18, 39-46,
app. D (describing numerous
admissions models and processes pursued among various institutional types and
listing over one hundred academic and non-academic factors possibly relevant to
admission decisions).
2. A Determination Of Merit Is Based On A
Wide Range Of Factors Considered In An Institutional Context.
The
determination of merit in any individual instance—a judgment that is
inextricably "defined in light of what educational institutions are trying
to accomplish," Bowen & Bok,
supra, at 278, is not a self-defining
concept. To the contrary, it reflects an
institutional judgment, in the first instance, about who is qualified and,
therefore, likely to succeed; and in the second (within that pool of students
deemed qualified), who should be admitted based upon their likely contributions
to the university community. Said differently, admissions officers examine
students' potential to succeed and,
equally importantly, they assess the characteristics of a prospective class
of qualified students in light of what students collectively can bring to each
other and to their institution.
"For many institutions, finding the best balance of students with
different academic interests, different talents and skills, and different
background characteristics is the ultimate aim of the admissions process."
Rigol, Admissions Models, supra note 9 at 7. In sum, the
admissions process aptly illustrates the value of assembling a class where the
whole is greater than the sum of its parts.
The
mix of criteria considered by admission officials reflective of their mission
focus is vast, and multiple factors inform judgments about the academic
qualifications of students and their potential to succeed at a given
institution. These include grades, test
scores, Advanced Placement performance, and rank in class. Those data points are but a baseline,
however. More qualitative academic
criteria tend to round out the picture of a student's readiness—including
strength of the curriculum to which the student has
been exposed, particular accomplishments, and evidence of drive and initiative.[17] Even in the limited context regarding these
kinds of academic qualifications, therefore, it is abundantly clear that the
amici who would press for a simplistic judgment regarding a student's
qualification based merely on SAT or similar scores miss the mark—by a mile. There is, to the contrary, universal
recognition among educators that while admissions tests in higher education can
provide important information upon which admissions judgments are appropriately
grounded, they should never serve as a single basis for making admissions
decisions—or, in other words, be the sole embodiment of "merit."[18]
This
conclusion is not only consistent with the decades of experience reflected
among higher education admissions experts, it also squarely aligns with core,
long-standing principles regarding appropriate and psychometrically sound test
use practices. Those time-tested
principles are reflected, in fact, in the parameters established regarding the
use of SAT scores. The predictive value
of the SAT for admissions purposes does not lead to the conclusion that SAT
scores should be the sole (or even the principal) factor in judging a student's
ability to succeed at a particular institution.
SAT scores are, in the first instance, "contemporary and approximate
indicators"—not "fixed and exact measures of a student's preparation
for college-level work." Coll. Bd., Guidelines on the Uses of College
Board Test Scores and Related Data 9 (2011) (emphasizing that
responsible officials should "[u]se
SAT scores in conjunction with other indicators, such as the secondary school
record[s] (grades and courses), interviews, personal statements, writing
samples, portfolios, recommendations, etc., in evaluating [an] applicant’s
admissibility at a particular institution"); see also Am. Educ. Research
Ass'n, Am. Psychological Ass'n & Nat'l Counsel on Measurement in Educ.,
Standards for Educational and Psychological Testing 146-47 (1999)
("In educational settings, a decision or characterization that will have a
major impact on a student should not be made on the basis of a single test
score. Other relevant information should
be taken into account if it will enhance the overall validity of the
decision."); id. at 141.[19]
Beyond
the question of who is qualified (and, therefore, likely to succeed), the focus
on who should be admitted implicates a significantly expanded examination of
background qualities, characteristics, and experiences that can and do inform
judgments about what a student may be able to bring to an institution to enrich
the learning and growth of peers. Among
them are: life experiences including overcoming adversity or hardships,
military experience, community service-related experiences, and the like;
family backgrounds including first-generation college-going experience, family
economic circumstances, and unique
family profiles; particular skills and interests including artistic talents,
interests in science, etc.; and characteristics emblematic of other diversity
factors, including race, ethnicity, geographic origin, socio-economic status,
and life experiences in different cultural settings or in diverse learning
environments.[20]
Importantly,
as well, these factors are judged through multiple avenues embedded in the
holistic review process (where, for instance, race is not merely a designation
on an application, but is reflected in discussions of backgrounds, life
experiences and the like). For instance,
essays designed to elicit how the student sees himself or herself in light of
contributions that can be expected from an applicant often trigger discussion
of racial and ethnic background, among other factors that may not otherwise
surface in the admissions process.[21]
In
the end, the admissions reality today is as it has been for decades: with "much emphasis on academic
performance…[as well as] consider[ation of] other personal qualities" that
include a focus on students who will "make a contribution to the
institution, bring unique skills and interests, add cultural diversity and
different points of view, help maintain important institutional ties and continuity,
and also fit reasonably well the particular types of programs that the college
offers."[22]
3. A Determination Of Merit May Include
The Consideration Of An Applicant's Racial/Ethnic Diversity As Part Of
Individualized, Holistic Review.
Among
the array of factors considered by admission officers to meet institutional
goals, the consideration of race and/or ethnicity is often essential, given the
long-established compelling educational benefits associated with racial and
ethnic diversity, among other kinds of diversity. As described in Section I, above, the
realities associated with workforce preparation and 21st Century
citizenship make this even more of a vital focus for many institutions today.
The
practical reality is that in a number of institutional contexts, race-neutral
means are simply insufficient, standing alone, to generate the kind of
racial/ethnic diversity institutions seek in order to achieve their
mission–related goals. While
institutions pursue many race-neutral means to achieve their diversity goals,
these measures often are not sufficient to yield the kind of significant
presence on campus that is essential to ensure sufficient compositional
diversity or critical mass, which is a critical foundation for improved
teaching and learning and other benefits of diversity. Cf. PICS, 551 U.S. at 788 (Kennedy,
J., concurring in part and concurring in the judgment) ("In the real
world,...[color-blindness] cannot be a universal constitutional
principle.").[23] Indeed, race-conscious measures that do not
treat individual students "in different fashion solely on the basis of a
systematic, individual typing by race," id. at 789, but rather that embody a holistic process of
individualized review inclusive of the kinds of factors described above are the
constitutionally permissible norm, see
Grutter, 539 U.S. at 337 (finding
constitutional an admissions policy based on "a highly individualized,
holistic review of each applicant's file" and aimed at achieving the
educational benefits of diversity).
The
breadth and depth of factors affecting judgments by admissions officials in
selective institutions—some going directly to academic preparation, some to
qualities and characteristics that an individual may bring that will enhance
the learning experience of all—also demonstrate in compelling terms why
percentage plans are not the silver bullet that some may assert. [24] Rather, admissions processes
that are aligned with institutional mission and goals, grounded in educational
judgment, and include a practiced deliberation of a wide range of applicant
factors (including, where appropriate, race and ethnicity) accord with more
than half a century of this Court's jurisprudence and elucidate, in part, the
international preeminence of our nation's schools of higher education.
III.
THE BALANCED AND WORKABLE GRUTTER FRAMEWORK SHOULD BE PRESERVED AS
IT HAS BEEN EFFECTIVELY IMPLEMENTED BY EDUCATION INSTITUTIONS TO GUIDE THEIR
POLICY DEVELOPMENT AND ENSURE THE ATTAINMENT OF COMPELLING EDUCATIONAL GOALS
ASSOCIATED WITH DIVERSITY.
Education
leaders, including admissions officials, have endeavored to fulfill their
institutional goals associated with student diversity over the course of
decades by adherence to the principles first articulated by Justice Powell in Bakke, which then were amplified and
settled by this Court in Grutter and Gratz.[25] The strict scrutiny framework articulated by this Court that are associated
with admissions has become an industry standard—to which educators nationwide
consistently have turned in the development, articulation, and execution of
such policies. Abundant evidence
documents the reliance on and institutional investment based upon the Court's
guidance, and illustrates the ways in which strict scrutiny principles have
been (and are being) practically and faithfully applied.[26] Given the evidence of reliance, investment,
and practical application, there is no reason for this Court to depart from the
parameters and principles on which admission officials have in good faith
relied and on which they continue to rely.
See Planned Parenthood of
Southeastern Pennsylvania v. Casey, 505
U.S. 833, 854-55 (1992) (ruling that a "series of prudential and pragmatic
considerations designed to [among other things] . . . gauge the respective
costs of reaffirming and overruling a prior case" should be evaluated when
questions about the legitimacy of prior authority have been raised—including
whether precedent "def[ies] practical workability," "is subject
to a kind of reliance that would lend a special hardship to the consequences of
overruling and add inequity to the cost of repudiation" and whether it is
still timely and viable).
Indeed,
Grutter reflected agreement of at
least six justices on the lawfulness of diversity as a compelling interest
among higher education institutions, as well as the legitimacy of a limited and
nuanced consideration of race to achieve those goals. See
Grutter, 539 U.S. at 325-26, 334, 337; id.
at 387-88 (Kennedy, J., dissenting) (Agreeing with the Majority that
"[o]ur precedents provide a basis for the Court’s acceptance of a
university’s considered judgment that racial diversity among students can
further its educational task, when supported by empirical evidence;" but
disagreeing as to the way in which that standard was applied by the Majority on
the Grutter facts).
Moreover,
a mere four years later, all nine Justices agreed that Grutter had established the operative
legal framework that permitted postsecondary institutions to pursue
diversity-related goals that could justify race-conscious admissions
practices. See PICS,
551 U.S. at 722; id.
at 837
(Breyer, J., dissenting),
Absent
clear and compelling evidence that the principles articulated in Bakke, as affirmed and expanded upon in Grutter
and Gratz, have been routinely ignored
or misapplied, or have had unintended and unconstitutional systemic
consequences in their implementation—and such evidence does not exist— any
dilution of this Court's precedent is simply not justified. In fact, such
action likely would have significant adverse consequences—affecting education
institutions, the students they serve, and the goals they seek to achieve for
the benefit of all in society.
The
time, effort, and fiscal cost to higher education institutions of all kinds to
understand the Court's guidance and then faithfully to apply it in multiple
settings, reflected in efforts described in note 26, is simply
incalculable. Given the significant
investment in the development of policies and practices that conform to the Grutter and Gratz framework and principles, the disruption and cost to higher
education institutions resulting from a material change in that framework would
be immense. Indeed, such a change in
legal standards affecting colleges and universities would have an impact well
beyond the words on discrete policies affecting enrollment practices. The impact would be felt in an overhaul of
staff development and training materials; materials developed for the education
of students, parents, and the public to describe those policies and practices
(including, as necessary, governing board deliberations and approval of key
changes); a reorientation of other related policies and practices connected to,
but distinct from, admissions policies and practices; and more. In short, among institutions where diversity
goals are mission-central and where discrete race-conscious practices support
those goals, the very fabric of institutional action on many campuses likely
will be undone if a core thread affecting institutional priorities is removed
or significantly cut.
This
kind of impact also likely would occur beyond the walls of postsecondary
institutions. See PICS,
551 U.S. at 791 (Kennedy, J., concurring in part and concurring in the
judgment) (explaining that the compelling interest in diversity in higher
education "help[ed] inform the…inquiry" regarding elementary and
secondary diversity goals). Among
elementary and secondary educators, the principles of Bakke, Grutter, and Gratz have established important foundations
for action, amplified by this Court's 2007 decision in PICS. See sources cited supra notes 25 and 26.
Second,
and importantly, such action likely would chill the environment in which so
many institutions are working to explore and innovate within the current
parameters of federal law. In the
postsecondary context, colleges and universities are different. Missions and policies are different. Personnel responsible for executing and
implementing policies are different.
Thus, even within a common framework and set of standards, the ability
to find the best ways to adapt policies to practice to achieve success is
varied; and the need to preserve institutional and individual creativity and
innovation within a rigorous but context-sensitive framework is essential if
higher education institutions are to achieve their potential—and more
importantly, help the students they serve realize theirs.
Correspondingly
in the elementary and secondary setting, a re-reading of Grutter that eliminates its fundamental support for the rule that
race may be utilized within certain strictures to achieve a school’s interest
in diversity, could adversely affect the implementation of voluntary diversity
programs in public school districts.
Without Grutter to buttress
the current understanding of PICS
that “[d]iversity, depending on its meaning and definition, is a compelling
educational goal a school district may pursue,” PICS, 551 U.S. at 783
(Kennedy, J., concurring in part and concurring in the judgment), public schools could be compelled to abandon
their good faith efforts to afford the educational benefits of diversity to
their students. In other words, without
the protective umbrella that Grutter
provides to color the understanding of an elementary or secondary school's
compelling interest in the wake of PICS,
schools may be unwilling to voluntarily explore avenues for diversity in their
classrooms that could both diminish the harms of racial isolation and enhance
the benefits of diversity for all students. Id.
at 788. To limit Grutter would be to ignore this reality and needlessly restrict the
prospects for schools to address the educational needs of their students.
This
Court has for decades recognized and valued the special role that education in
America serves, including its connection to helping future generations find
their paths, achieve their potential, and succeed in their contributions to the
communities in which they live. Grutter, 539 U.S. at 331; Brown v. Bd. of Educ. 347 US 483, 493 (1954);. As
this Court recognized in 2003, "Effective
participation by members of all racial and ethnic groups in the civic life of
our Nation is essential if the dream of one Nation, indivisible, is to be
realized." Grutter, 539 U.S. at 332. This is but one part of a broader quest
by educators throughout our nation—all of whom should have at their disposal
every legitimate strategy and tool to achieve their goals. The limited consideration of race and
ethnicity in admissions—consistent with the principles of Bakke, Grutter, and Gratz—are among those strategies and tools, and
should be preserved in line with this Court's well-established, long-standing
precedents.
CONCLUSION
For the foregoing reasons,
and those in respondents’ brief, the judgment below should be affirmed.
Respectfully submitted,
Counsel for Amici Curiae
C. Mitchell Brown* Arthur L. Coleman
Nelson Mullins Riley & Richard W. Riley
Scarborough, LLP Katherine E. Lipper
1320 Main Street Scott R. Palmer
Columbia, SC 29201 Saba P. Bireda
(803) 255-9595 EducationCounsel, LLC
101 Constitution Ave., NW
Suite
900
Washington
DC 20001
(202)
545-2912
Francisco M. Negrón, Jr. Neil Lawrence Lane
Naomi E. Gittins Latifa V. Stephens
National Sch. Boards Ass’n The College Board
1680 Duke Street 45 Columbus Avenue
Alexandria, VA 22314 New York, NY 10023
(703) 838-6722 (202) 713-8283
* Counsel of Record
|
APPENDIX A
AMICI
CURIAE
American Association of College
Registrars and Admissions Officers—a
professional association of more than 11,000 higher education admissions and
registrations professionals who represent more than 2,600 institutions and
agencies in over 40 countries.
American Association
of Colleges for Teacher Education—membership of 800 public and private
colleges and universities in every state, the District of Columbia, the Virgin
Islands, Puerto Rico, and Guam.
American Association of School
Administrators—membership of more than 13,000 educational leaders,
including chief executive officers, superintendents, and senior level school
administrators, in the United States and throughout the world.
Association of Teacher Educators—individual membership organization devoted
solely to the improvement of teacher education both for school-based and
postsecondary teacher educators, with members representing over 700 colleges
and universities, over 500 major school systems, and the majority of state
departments of education.
Council of the Great
City Schools—founded in 1956 and
incorporated in 1961, the Council of the Great City Schools (“Council”), is a
national coalition of 67 of the nation’s largest urban public school systems
representing almost 14% of the nation’s total public school enrollment.
Approximately 6.9 million students are enrolled in the Council’s member
schools. Over two-thirds of its students are eligible for free lunch
subsidy and more than three-quarters of i students are from minority
backgrounds. The Council works to promote urban education through
legislation, research, technical assistance in instruction, management,
technology and special projects, and is committed to integration of their
student bodies and providing equal educational opportunities, including access
to postsecondary private institutions and state flagship universities.
Horace Mann
League—perpetuates the ideals of Horace Mann, the founder of American
public schools systems, to strengthen the public school system of the United
States.
National
Association for College Admission Counseling— a non-profit
education association of more than 12,000 secondary school counselors, independent
counselors, college admission and financial aid officers, enrollment managers,
and organizations that work with students as they make the transition from high
school to postsecondary education.
National Association of Independent Schools—represents over
1,400 independent elementary and secondary schools in the United States.
National Association
of Secondary School Principals—represents more than 25,000 members,
including principals, assistant principals, and aspiring school leaders from
across the United States and more than 45 countries around the world.
Public Education
Network—represents local education funds and individuals to advance public
school reform in low-income communities
Texas Association of
School Boards Legal Assistance Fund—advocates the interest of nearly 800
public school districts in Texas in litigation with potential statewide impact.
APPENDIX B
MISSION STATEMENTS
Austin College[27]
Austin College is a private, residential, co-educational
college dedicated to educating undergraduate students in the liberal arts and
sciences while also offering select pre-professional programs and a graduate
teacher education program. Founded by the Presbyterian Church in 1849, Austin
College continues its relationship with the church and its commitment to a
heritage that values personal growth, justice, community, and service. An
Austin College education emphasizes academic excellence, intellectual and
personal integrity, and participation in community life. Thus Austin College
affirms the importance of:
- A
community that through its size, diversity, and programs fosters lively
intellectual and social interaction among persons of different origins,
experiences, beliefs, accomplishments, and goals.
- A
program that does not discriminate with regard to religion or creed,
gender, gender identity, sexual orientation, national or ethnic origin,
physical disability, age, or economic status.
- A
faculty that acknowledges teaching, sustained by active commitment to
professional growth and development, as its primary responsibility.
- A
student body of committed learners, actively involved in the programs of
the college and in service to the greater community.
- A
climate of civility and respect that encourages free inquiry and the open
expression of ideas.
- A
non-sectarian education that fosters the exploration and development of
values through an awareness of the world’s religious, philosophical, and
cultural traditions.
The mission of Austin College is to educate students in the
liberal arts and sciences in order to prepare them for rewarding careers and
for full, engaged, and meaningful lives.
Dartmouth
University[28]
OUR CORE VALUES
Dartmouth expects academic excellence and encourages
independence of thought within a culture of collaboration.
Dartmouth faculty are passionate about teaching our students
and are at the forefront of their scholarly or creative work.
Dartmouth embraces diversity with the knowledge that it
significantly enhances the quality of a Dartmouth education.
Dartmouth recruits and admits outstanding students from all
backgrounds, regardless of their financial means.
Dartmouth fosters lasting bonds among faculty, staff, and
students, which encourage a culture of integrity, self-reliance, and
collegiality and instill a sense of responsibility for each other and for the
broader world.
Dartmouth supports the vigorous and open debate of ideas
within a community marked by mutual respect.
Texas Tech
University[29]
As a public research university, Texas Tech advances
knowledge through innovative and creative teaching, research, and scholarship.
The university is dedicated to student success by preparing learners to be
ethical leaders for a diverse and globally competitive workforce. The
university is committed to enhancing the cultural and economic development of
the state, nation, and world.
The University of
Maryland[30]
Vision
Statement
During
the next decade, the University of Maryland will enhance its standing as a
world-class, preeminent institution of higher education. The University will achieve this goal through
an unwavering commitment to excellence in all that it undertakes. The University will attract a diverse student
body that possesses the ability and passion for learning. Innovative and relevant programs, whether
within or built upon traditional disciplines in the arts and sciences, will
prepare students to be engaged and self-realized citizens and leaders in a
complex, democratic society. The
University will foster research, scholarship, and arts programs noted for their
quality, creativity, and impact, and provide affordable access. As befits its proximity to the nation’s
capital, the University will expand its international influence and address
great and challenging problems of our time.
Taking maximum advantage of its special location, the University will be
a world center for creation and refinement of knowledge; advancement in science
and technology, humanities, and social sciences; global leadership; and
innovative production in the creative and performing arts.
The University of
North Carolina at Chapel Hill[31]
The University of North Carolina at Chapel Hill, the
nation’s first public university, serves North Carolina, the United States, and
the world through teaching, research, and public service. We embrace an
unwavering commitment to excellence as one of the world’s great research
universities.
Our mission is to serve as a center for research,
scholarship, and creativity and to teach a diverse community of undergraduate,
graduate, and professional students to become the next generation of leaders.
Through the efforts of our exceptional faculty and staff, and with generous
support from North Carolina’s citizens, we invest our knowledge and resources
to enhance access to learning and to foster the success and prosperity of each
rising generation. We also extend knowledge-based services and other resources
of the University to the citizens of North Carolina and their institutions to
enhance the quality of life for all people in the State.
With lux, libertas—light and liberty—as its founding
principles, the University has charted a bold course of leading change to
improve society and to help solve the world’s greatest problems.
[1]
No counsel for a party authored this brief in whole or in part, and no counsel
or party made a monetary contribution intended to fund the preparation or
submission of this brief. No person
other than the amici curiae or their counsel made a monetary contribution to
its preparation of submission. The
parties have consented to the filing of this brief.
[2]
See Grutter v. Bollinger, 539 U.S.
306, 330-31 (2003) (recognizing the compelling interest associated with the
educational benefits of diversity, including those of improved teaching and
learning, preparation for the workforce in a global economy, and more—with
emphasis on developing skills that enhance communication and that mitigate
stereotypes); Gratz v. Bollinger, 539
U.S. 244, 268 (2003); Parents Involved in
Cmty. Sch. v. Jefferson Co. Bd. of Educ., 551 U.S. 701, 797-98 (2007)
[hereinafter PICS] (Kennedy, J.,
concurring in part and concurring in the judgment) ("A compelling interest
exists in avoiding racial isolation, an interest that a school district, in its
discretion and expertise, may choose to pursue.
Likewise, a district may consider it a compelling interest to achieve a
diverse student population."); id.
at 865 (Breyer, J., dissenting) (agreeing, on behalf of four Members of the
Court, that "'avoiding racial isolation' and 'achiev[ing] a diverse
student population' [are] compelling interests").
[3]
See generally Anthony Lising Antonio et al., Effects of Racial Diversity on complex thinking in College Students
(2003), available at www.stanford.edu/~aantonio/psychsci.pdf; T.K. Bikson & S. A. Law, Rand
Report on Global Preparedness and Human Resources: College and Corporate
Perspectives 15-19 (1994); see also Patricia Gurin et al., Diversity
and Higher Education: Theory and Impact on Educational Outcomes, 72 Harvard Educ. Rev. 330, 330-36 (2002).
[4]
See Neal Lane, Increasing Diversity in Engineering Workforce, 29 The Bridge, No. 2, Summer 1999, 15-19;
Charlan J. Nemeth, Differential
Contributions of Majority and Minority Influence, 93 Psych. Rev. 23, 23-32 (1986).
[5]
Jomills Henry Braddock II, Looking Back:
The Effects of Court-Ordered Desegregation, in From the Courtroom to the
Classroom: The Shifting Landscape of School Desegregation 3, 7 (Claire
E. Smrekar & Ellen B. Goldring eds., 2009).
Studies have shown that “children exposed to racially diverse peers in
the classroom exhibit reduced adherence to racial stereotypes and reduced
racial prejudice, and they are more willing to engage in voluntary interactions
with peers of a different race.” Id at 11.
[6]
See Regents of Univ. of Cal. v. Bakke,
438 U.S. 265, 313 (1978) (opinion of Powell, J.) (citations omitted)
(maintaining that "it is not too much to say that the 'nation's future
depends upon leaders trained through wide exposure' to the ideas and mores of
students as diverse as this Nation of many peoples" and that "our
tradition and experience lend support to the view that the contribution of
diversity is substantial"); Keyishian
v. Bd. of Regents, 385 U.S. 589, 603 (1967) (similar); Sweezy v. New Hampshire, 354 U.S. 234, 263 (1957) (Frankfurter, J.,
concurring in result).
[7]
Support for more demanding and relevant educational standards has led 45 states
and the District of Columbia to adopt the "Common Core State
Standards," which establish evidence-based English/language arts and
mathematics standards aligned to college and work expectations. See About
the Standards, Common Core
State Standards Initiative (July 30, 2012, 9:41 AM),
http://www.corestandards.org/about-the-standards. Adoption of the Common
Core signifies recognition among the vast majority of states that "the competition for jobs is now an international one
[and]… that we needed a new body of standards that truly prepared kids for the
21st century and to compete in an international environment, " David Coleman, YouTube (Oct. 26, 2011), http://www.youtube.com/watch?v=EBjIC-g5Psk;
and that the goals of "teaching students to think critically, giving them the skills they
will need in college and careers, and preparing them to succeed in a global
economy" is essential. Gene Wilhoit, States Raise the Bar with
Standards Implementation, Educ. Wk.
(July 29, 2012 6:30 PM),
http://www.edweek.org/ew/articles/2012/06/22/36wilhoit.h31.html; see also Linda
Darling-Hammond & Frank Adamson, Stanford
Ctr. for Opportunity in Policy Educ., Beyond
Basic Skills: The Role of Performance Assessment in Achieving 21st Century
Standards of Learning 1 (2010) ("Genuine readiness for college and
21st century careers, as well as participation in today's democratic
society, requires…much more than 'bubbling in' on a test. Students need to be able to find, evaluate,
synthesize, and use knowledge in new contexts, frame and solve non-routine
problems, and produce research findings and solutions. It also requires students to acquire
well-developed thinking, program solving, design, and communication skills.");
P'ship for 21st Century Skills, 21st
Century Skills, Education, and Competitiveness 6 (2008).
[8] Indeed, this Court has recognized that goals
of diversity and academic excellence are complementary, not competing
goals. See Grutter, 539 U.S. at 331 (concluding that "our
country's…most selective institutions must remain both diverse and selective"); id. at 339 (stating that narrow
tailoring does not "require a university to choose between maintaining a
reputation for excellence or fulfilling a commitment to provide educational
opportunities to members of all racial groups").
[9] See
also Gretchen W. Rigol, Coll. Bd., Admissions Decision-Making Models: How U.S.
Institutions of Higher Education Select Undergraduate Students app. A
(2003) [hereinafter Rigol, Admissions
Models] (listing illustrative institutional policy statements regarding
admissions policies and enrollment goals reflecting institutional commitments
to, e.g., enrolling a "diverse student body, full of talented and
interesting individuals"; achieving a "rich learning environment
…with students whose life experiences and world views differ significantly from
their own"; and enrolling students "who bring a diversity of talents,
skills, viewpoints, and experiences to the University"). A decade later, that landscape has not
changed. Illustrative mission-based
statements included in Appendix B to this brief reflect a common focus on
student diversity as integral to institutional missions and success. See
also Section III, infra.
As these forward-looking, mission-oriented statements
reflect, diversity-related education goals and the race-conscious strategies
that may be associated with them are not coextensive with policies associated
with remedial aims. See Grutter, 539 U.S. at
328 (holding that race-conscious policies associated with diversity goals are
legally distinguishable from "affirmative action" policies designed
to remedy past discrimination); PICS, 551 U.S. at 791 (Kennedy, J., concurring in
part and concurring in the judgment).
[10]
See Anthony
P. Carnevale & Donna M. Desrochers, U.S. dep't of educ., Office of
Vocational and Adult Educ., The Missing Middle: Aligning Education and the
Knowledge Economy 15-19 (2002).
[11]
See ass'n
of am. coll. and univ. and Hart Research Associates, Raising the Bar: Employers’ Views on College Learning in the Wake
of the Economic Downturn 1-2 (2010) (explaining that more than 70
percent of employers "believe that colleges should place greater emphasis
on a variety of learning outcomes . . .which include. . . [t]eamwork skills and
the ability to collaborate with others in diverse group settings"); Conference Bd. et al, Are They Really Ready to
Work? Employers' Perspectives on the
Basic Knowledge and Applied Skills of New Entrants to the 21st
Century U.S. Workforce 49 (2006) (placing the ability to handle
diversity and to participate in teamwork and collaboration as two of the top
five work-related skills expected to increase in importance over the next five
years).
[12]
"Perhaps, in the end, this is the point:
[college and university] presidents and admissions officers share
obligations that involve futures—students' futures, their institutions'
futures, and society's future . . . .
Both have opportunities to enable or empower people, especially students
. . . [with] the goal of free[ing] women and men of the costs of ignorance and
exclusion." John Casteen, Perspectives on Admissions, in Handbook for the College Admissions Profession 7, 10 (Claire C. Swann & Stanley E. Henderson eds., 1998).
[13] The importance of student expectations regarding
their post-secondary pursuits—and the way in which they can "see"
pathways to success—is an integral factor in promoting opportunity and
expanding access for all students. See, e.g., Patricia M. McDonough, Counseling and College Counseling in
America's High Schools 7 (2005) (documenting several research studies
demonstrating that college counseling has a significant impact on the
postsecondary aspirations of students of color); Patricia
M. McDonough, Am. Council on Educ., The School-to-College Transition:
Challenges and Prospects 9 (2004) ("Creating an environment in
which students are expected to achieve academically, and are encouraged and
supported to do so, is an essential precondition for college
attendance."); see also Monica Martinez & Shayna Klopott, Pathways
to Coll. Network, Improving College Access for Minority, Low-Income, and
First-Generation Students 6 (2003) (synthesizing research on the
elements necessary to increase college access for minority, low-income, and first-generation
students and recognizing that the creation of "high expectations and clear
pathways to postsecondary education" is essential to encouraging college
attendance).
[14]
Educational judgments associated with the establishment of institutional missions,
including to the judgments that "diversity is essential" to those
missions and the admissions processes that help fulfill those missions, merit
deference in accordance with long-standing academic freedom principles. See Grutter,
539 U.S. at 329; Bakke, 438 U.S. at 312-13; see also Regents of Univ. of
Mich. v. Ewing, 474 U.S. 214, 226 (1985) (opinion of Powell, J.).
[15]
At the same time, differences within institutions—between
undergraduate and graduate/professional programs; and among schools within undergraduate
institutions—also reflect mission orientations that are distinct, and that can
generate differing admissions criteria.
These
institution-by-institution and within-institution differences also correspond
to the highly contextualized inquiry associated with strict scrutiny legal
principles regarding race-conscious admissions.
See Grutter, 539 U.S. at 327
(recognizing that "[c]ontext matters" regarding race-conscious
action under federal law, and noting, as a consequence, that
"generalizations, based on and qualified by the concrete situations that
gave rise to them, must not be applied out of context in disregard of variant
controlling facts"). Such
differences defy simplistic, cookie-cutter policy solutions: What works for one institution (or school
within an institution) in light of its mission and processes will not
necessarily work for another.
[16]
See supra note 14. Deference
toward and respect for institutional autonomy, in fact, is an "important
reason why American higher education has become pre-eminent in the
world." Bowen & Bok, supra,
at 287; see generally Ross Williams et al., universitas 21, U21
Ranking of National Higher Education Systems 2012 (2012).
[17]
See Warren W. Willingham & Hunter M. Breland,
Personal Qualities and College Admissions 12-17 (1982) [hereinafter Willingham & Breland, Personal Qualities];
see also Angela L. Duckworth et al., Grit: Perseverance and Passion for Long-Term
Goals, 92 J. Personality and Soc.
Psychol. 1087, 1087 (2007) (finding grit, as a qualitative personal
quality, "demonstrated incremental predictive validity of success measures
over and beyond" traditional factors such as "IQ and
conscientiousness"); Paul Tough, The
Character Test, N.Y. Times Sunday
Magazine, Sept. 14, 2011, at MM38 (discussing "performance
character" as a success predictor by measuring seven characteristics:
"zest, grit, self-control, social intelligence, gratitude, optimism and
curiosity").
[18]
See, e.g., Myths and Tradeoffs, supra, at 25 (asserting that to
conclude "admissions tests measure …a compelling distillation of academic
merit that should have dominant influence on admissions decisions" is a
"myth"); id. at 22
("Both the SAT and ACT cover relatively broad domains… relevant to the
ability to do college work. Neither, however,
measures the full range of abilities that are needed to succeed in college;
important attributes not measured include, for example, persistence [and]
intellectual curiosity….").
Correspondingly, the admissions process is not, as
some contend, a mechanical calculation of numbers. Were that the case, the judgment of admission
officers would be unnecessary. Pursuant
to that view of reality, there would be no need for personnel to conduct the
outreach to high school counselors and teachers working with students who are
trying to determine the institutions that will be a "fit" for them,
just as there would be no need for personnel to labor for months over the
details of admissions applications as they work to understand their schools'
applicants' profiles and potential for success within, and contributions to,
their institutions.
[19] Differences in test performance may be manifested due
to differences in preparation, illustrated by different opportunities
associated with family income and school quality, which to this day still
correspond along race/ethnicity lines. See generally Brent Bridgeman & Cathy Wendler, educ. testing
serv., Characteristics of Minority Students Who Excel on the SAT and in the
Classroom (2004) (analyzing the background and behaviors
of high-scoring minority students and concluding rigorous high school
coursework better prepares students for the SAT); Wayne J. Camara & Amy Elizabeth Schmidt, Group Differences in
Standardized Testing and Social
Stratification (1999) (analyzing racial gaps on high-stakes admissions
tests, standardized assessments, and other indictors of educational
attainment and finding that consistency
of achievement gaps indicates inequitable
access to high quality education).
[20]
See Rigol,
Admissions Models, supra note 9,
at app. D (listing "Factors That May Be Used in Making Admissions
Decisions Based on Internal Evaluation Guidelines," including those
illustrative of: Academic Achievement, Quality and Potential; and Nonacademic Characteristics and
Attributes (Geographic, Personal Background, Extracurricular Activities,
Service and Leadership, Personal Attributes, Extenuating Circumstances, and
Other); id. at app. E (listing over 100 academic and
non-academic factors reflected in "What Colleges Tell Students About What
They Are Looking For"); Sandlin, The
"Insight Resume," supra.
[21] Questions posed by higher education institutions
elicit such information about a student's background and experience in various
ways. Illustrative application questions
include:
From Harvey Mudd College: “Scientific research is a human endeavor. The choices of topics
that we research are based on our biases, our beliefs, and what we bring: our
cultures and our families. The kinds of problems that people put their
talents to solving depends on their values.” – Dr. Clifton Poodry
How
has your own background influenced the types of problems you want to solve? available at
http://www.hmc.edu/admission1/applyingforadmission.html (link to application).
From Rice University: The quality of Rice’s academic life and the
Residential College System are heavily influenced by the unique life
experiences and cultural traditions each student brings. What perspective do
you feel that you will contribute to life at Rice? available
at http://futureowls.rice.edu/uploadedFiles/Future_Owls/FreshmanSupplement.pdf (link to
application).
From The University of
Maryland: "The whole
is greater than the sum of its parts."- Aristotle
The intellectual,
social and cultural differences embraced by the University of Maryland are
integral to the fabric of our community. The strength of the University
is realized through the contributions of every member of our campus. We
understand each individual is a result of his/her personal background and
experiences. Describe the parts that add up to the sum of you. available at
https://app.applyyourself.com/?id=umd (link to application).
[23]
Inextricably linked to the benefits of diversity, critical mass can serve as a
contextual foundation for decisions about ways to enhance learning experiences
for all students. Judgments about
critical mass are highly contextualized— dependent upon the relevant
institution, the field of study within an institution, or the size of the
setting of relevance. It is, in fact, "reasonable to conclude that a
decision as to what size would entail a critical mass in relation to an admission
policy can only be determined case by case by those who have access to the
profile of the student body admitted and the structure of the system of
interaction in which these students are to relate to one another." Adeno Addis, The Concept of Critical Mass in Legal Discourse, 29 Cardozo L. Rev. 97, 133-34 (2007). See
also Arthur L. Coleman & Scott
Palmer, Coll. Bd., Admissions and Diversity After Michigan: The Next Generation of Legal and Policy
Issues 33-41 (2006) [hereinafter Coleman & Palmer, Admissions After Michigan]
(describing the institution-/context-specific nature of the inquiry in light of
social science principles and the Court's Grutter
decision).
[24]
Although appropriately designed plans in limited contexts and for certain
institutions may have some benefits, see
e.g., Mark C. Long & Marta Tienda, Changes
in Texas Universities' Applicant Pools after the Hopwood Decision, 39 Soc. Sci. Res. 48, 53 (2010), they do
not provide a viable, comprehensive alternative to holistic, individualized
review. In fact, mechanical and
formulaic processes that do not fully incorporate human judgment as part of the
selective admissions process are destined to undermine the very principles that
for decades have guided individualized, holistic review by higher education
admissions officers. Thus, even in instances in which percentage plans might be
considered authentically neutral so as not to trigger strict scrutiny review,
they would pose a significant threat to the integrity of academic judgments
that have been and are the foundations for institutional selectivity and
excellence, consistent with this Court's decisions in Bakke, Grutter, and Gratz.
[25]
For decades, higher education institutions relied on the principles articulated
by Justice Powell in his 1978 Bakke opinion as a foundation for their
diversity-related policy development. Grutter, 539 U.S. at 323 (observing that
Justice Powell’s opinion served as the “touchstone for constitutional
analysis" during this period, on which institutions of higher education
“modeled their own admissions programs”).
In 1996, that reliance was called into question with a panel opinion in Hopwood v. Texas, 78 F. 3d 932 (5th Cir.
1996). Although other federal circuits
refused to adopt the 5th Circuit's Hopwood conclusion that diversity was not a compelling interest,
confusion ensued. This Court's
subsequent resolution in Grutter and Gratz reaffirmed key principles
regarding diversity as a compelling interest and narrow tailoring upon which
educators had relied—and would continue to rely.
Notably, this reliance by
education policymakers has been informed and guided by U.S. Department of
Education [Department] regulations and policies, which have consistently cited
to this Court's authorities in establishing rules regarding enforcement of
Title VI of the Civil Rights Act of 1964, which prohibits discrimination on the
basis of race and national origin in a manner coextensive with the 14th
Amendment to the U.S. Constitution. See, e.g., U.S. Dep't of Education, Policy Interpretation
on Use of Race in Postsecondary Admissions, Analyzing the Bakke Decision, 44 Fed. Reg. 58,509 (Oct. 10, 1979);
Nondiscrimination in Federally Assisted Programs; Title VI of the Civil Rights
Act of 1964, 59 Fed. Reg. 8756 (Feb. 23, 1994) (citing to Bakke as a foundation for permissible institutional policy development); Magnet Schools
Assistance Program, Notice Inviting Applications for New Awards for
Fiscal 2001, 65 Fed. Reg. 46,698 et seq. (citing to Bakke); Russlynn Ali &
Thomas E. Perez, U.S. Dep't of Educ., Dear
Colleague Letter (December 2,
2011), http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201111.html
(addressing voluntary policies to achieve diversity or avoid racial isolation
pursuant to Title VI of the Civil Rights Act of 1964 and the Equal Protection
Clause of the Fourteenth Amendment to the U.S. Constitution, in light of Grutter and Gratz.
http://www2.ed.gov/about/offices/list/ocr/docs/guidance-ese-201111.html and for
postsecondary officials,
http://www2.ed.gov/about/offices/list/ocr/docs/guidance-pse-201111.html).
[26]
In the immediate wake of this Court's Grutter
and Gratz decisions, for example,
the College Board established the Access and Diversity Collaborative ("the
Collaborative"), http://advocacy.collegeboard.org/admission-completion/access-diversity-collaborative,
to provide assistance to college admissions officers and others regarding
application of Bakke, Grutter and Gratz decisions. That
national effort resulted in ten publications (manuals, policy papers, and toolkits);
well over a dozen national seminars where over a thousand attendees focused on
legal parameters; blueprints for action; institutional team trainings; and
other outreach, see Coll. Bd., The Access and Diversity
Collaborative: A Six-Year Retrospective (October 27, 2010) http://diversitycollaborative.collegeboard.org/sites/default/files/document-library/adc-2004-2010-overview.pdf. More recently, an on-line professional
development video series building on this effort, has been produced. See
Access and Diversity and the
Law: Understanding the Legal and Policy Fundamentals, Coll. Bd.,
http://diversitycollaborative.collegeboard.org/video-library (last visited July
19, 2012); From Law to Policy
Development: Setting the Stage for Action, Coll.
Bd., http://diversitycollaborative.collegeboard.org/video-library (last
visited July 19, 2012).
Illustrative of the
postsecondary effort is the publication of institutional policy models
identified by the Collaborative, reflective of efforts to conform policy development
with the teachings of this Court regarding mission-driven diversity goals and
means. See Coleman, Diversity Action
Blueprint, supra, at 8-10, 35-38 (citing to and analyzing
institutional policies identified to reflect efforts to align institutional
goals and practices with federal legal principles).
Correspondingly, in the wake of this Court's decision
in PICS, the National School Boards Association, working with the
Collaborative and more broadly, provided legal and policy guidance to the
elementary and secondary field regarding key principles that had surfaced in
the Court's decision. These efforts were directed at many different groups
within the K-12 community, including school board members, state school boards
association leaders and attorneys. Guidance was delivered through various
means, including presentations, technical legal articles, community engagement
guides, sharing of effective diversity policies and practices, ongoing
reporting of litigation outcomes and video messaging. See, e.g., John Borkowski & Maree Sneed, Student
Assignment After the Supreme Court’s Decision in the Seattle And Louisville
Cases (2007); Arthur Coleman et
al., Nat'l Sch. Boards Ass'n, Coll. Bd., & EducationCounsel, LLC, Achieving
Educational Excellence for All: A Guide to Diversity-Related Policy Strategies
for School Districts (2011); Arthur
L. Coleman et al., Nat'l Sch. Boards Ass'n & Coll. Bd., Not Black and
White: Making Sense of the United States Supreme Court Decisions Regarding
Race-Conscious Student Assignment Plans (2007), available at
http://www.nsba.org/Services/CUBE/Publications/CUBEResearchReports/NotBlackandWhite/NotBlackandWhite.pdf;
Arthur L. Coleman et al., Race-Conscious
Student Assignment Practices in Elementary and Secondary Education: Key Issues
for Boards to Consider in the 2006-07 Supreme Court Term (2007), available
at
http://www.nsba.org/Services/CUBE/ConferencesMeetings/CUBEMeetingsHeldin2007/CUBEIssuesForumCongressionalLuncheon/RaceConsciousStudentAssignmentPracticesinElementaryandSecondaryEducation.pdf; Jollee Patterson & Michael Porter, Closing
the Achievement Gap with a Race-Neutral Framework, in School Law in Review 2012 (2012); Celia
Ruiz, The Use of Race in Public Primary and Secondary School Assignment
Programs: Where Do We Draw the Line?, in School Law in Review 2007 (2007); Francisco Negrón & Jay
Worona, Presentation at NSBA Council of Urban Boards of Education Annual
Conference: Diversity: Dead or Different? Guidance on Implementing
Diversity in Student Assignment after PICS v. Seattle (Sept. 30, 2010).
Similar efforts have been
undertaken by other organizations, as well.
The Council of the Great City Schools (“Council”) launched a two-year
initiative to assist districts in implementing student assignment plans in alignment
with the Court’s decisions in Grutter and PICS. That effort
included national urban technical assistance and the provision of critical
information to the Council’s 67 city members at the 2009 and 2010 Annual
Council of the Great City Schools Conferences, as well as at regional
convenings and through avenues of district-specific support.
[27]Mission, Austin College,
http://www.austincollege.edu/about/mission (last visited Jul. 27, 2012).
[28]
Mission Statement, Dartmouth University,
http://www.dartmouth.edu/~jameswright/archive/mission/index.html (last visited
Jul. 27, 2012).
[29]
Mission Statement, Texas Tech University,
http://www.ttu.edu/about/mission.php (last visited Jul. 27, 2012).
[30]
Vision Statement, The University of Maryland,
http://www.provost.umd.edu/vision_statement.cfm (last visited Jul. 27, 2012).
[31]
Mission Statement of the University, The University of North Carolina at Chapel Hill,
http://oira.unc.edu/facts-and-figures/general-information-about-the-university/mission-statement-of-the-university.html
(last visited Jul. 27, 2012).
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