In college, I took an intro-level microeconomics course with a professor who had taught for a long time at the university. Every few years (even though it seemed like an annual ritual), he would put out a “new edition” of his microeconomics textbook, slap a new cover photo on it, and jack up the price – all while requiring students to buy the newest edition.
So, was this “new edition” really all that new?
Of course not. None of my classmates nor I ever found any major (or even minor) differences between the editions. It was still an overpriced textbook, and requiring the newest edition really only helped boost the professor’s textbook royalties.
Naturally, when the College Board announced “major changes” to the SAT, I thought back to my intro to econ course. How “major” are these changes to the SAT really? Is reverting back to the 1600 scale truly all that new?
The answer to these questions depends on your frame of reference:
If you’re a high school student, you’re probably thrilled and relieved that there’s no longer a mandatory timed essay portion of the SAT.
If you’re a high school counselor, you might be happy that the College Board is offering four college application fee waivers for low-income students — or perhaps you already knew that this practice has been in existence for years.
Now, we know what most of the media thinks about these latest developments with the SAT:
The New York Times called them “major changes” (Note: An updated headline has now removed the phrase “major changes” from the title, but the URL still reflects the original title)
The Wall Street Journal said that the College Board “shakes up” the SAT
You get the picture.
In large part due to this deluge of news coverage calling the changes such “big news,” I went on a bit of a Twitter rant to point out that the new developments were not, in fact, all that major. Here are a few highlights:
Alright, I got something to say about this #newSAT.
The truth is: the SAT is a charade. For all the College Board’s talk about “delivering opportunities” and making college more accessible for students, the SAT represents an unnecessary — and useless — barrier on the road to college.
Just last month, the National Association for College Admission Counseling (NACAC) released a report that found virtually no difference in college completion rates for students, regardless of whether they submitted SAT scores or not. The study affirmed what previous research had already found: including or not including the SAT (or ACT, for that matter) in college admissions considerations really doesn’t make much of a difference.
So then, why do the SAT and ACT remain such a major part of the college admissions web? There are a couple of factors, but at the root of these is one common denominator — money.
Consider that the test prep industry generates over $1 billion each year (this doesn’t even include the profits from actual testing), and consider that the SAT is better at predicting a student’s socioeconomic background than his or her college success.
So, while the news of this week has focused on the College Board and what it has done to retool the SAT, the deeper issues that impede college access still remain. The true culprits in this equation are the colleges and universities that still feed into the testing frenzy, allowing concerns over institutional prestige and rankings to cloud their ability to enact truly impactful policies for expanding access.
When colleges and universities require the SAT or ACT, families with the means to put their children through test prep courses are at an even greater advantage over low-income and even many middle-income families who simply cannot afford such extraneous luxuries. Frankly, what does it say about the test itself when an entire industry is built around prepping students for it? And, truthfully, a nice PR move like partnering with the Khan Academy is nothing but a band-aid solution to a much deeper issue (and what does it say about the Khan Academy, too?).
It’s time to throw out an anachronistic component of college admissions that is doing nothing but driving an academic arms race among higher education institutions. Instead, let’s focus our efforts on real, substantive issues such as trimming the costs of administrative bloat, addressing the mountainous student debt bubble, and boosting declining state investment in higher education. The bigger news focus this week should have been on efforts such as the new Higher Ed, Not Debt initiative launched by a number of education champions, including Sen. Elizabeth Warren and American Federation of Teachers President Randi Weingarten.
But, instead, we’ve been hearing all about this “new SAT.” As a higher education access and affordability advocate, I could certainly break down the ways in which the changes to the SAT might impact how we work with students as they prepare for and apply to college. But that’s for another day, since — as a higher education access and affordability advocate — I also feel the need to point out when the discussion is heading in the wrong directions.
And that’s the point — because, in the grand scheme of things, until we really shake our college admissions processes free of these measurement tools of privilege and focus on true systemic ways to increase access for low-income, underrepresented, and first-generation students, changes to the SAT really aren’t that major after all.
I don’t make a habit of reading David Brooks anymore, so I suppose it’s no surprise that I didn’t run across yesterday’s piece until just now. It begins, “Tragedy has twice visited the Woodiwiss family,” a sentence that immediately piqued my curiosity. Years ago, I had a professor with the same peculiar last name. The next sentence, about the death of a woman named Anna after she’d been thrown from a horse, confirmed that Brooks was writing about the same family whose father had once taught my Political Philosophy class.
His name was Ashley. It was the fall of my sophomore year, and I was a typically heady student impassioned by the notion of political contrarianism generally and reactionary liberalism specifically. The school was Wheaton College, a devoutly evangelical institution perpetually toeing the border between extreme-right social ideology and academic mainstream respectability. (It succeeded brilliantly in the former arena and marginally less so in the latter.)
I was conflicted, born into a conservative family cursed (blessed, really) to settle in the Boston suburbs. Despite my considerable social isolation as a child, enough of that famed Northeastern elitist progressivism rubbed off on me to be viscerally repulsed by the ménage à trois of religion, academia, and Republican politics that permeated Wheaton’s classrooms and chapel halls.
Ashley Woodiwiss was a godsend, an embodiment of absurd contradictions. He had seven children, but was nevertheless a high-church Episcopalian in the decidedly low-church bastion of American Midwestern Christendom. He always opened his class with a reading from his pocket-sized Episcopalian prayer book, repeatedly joking that he had no idea how to pray without it. Even this self-deprecation transformed itself, to my impressionable ears, into a subtle mockery of his evangelical peers: their casual descriptions of alleged interactions with God as the laughable contrast to his distinctly Victorian bedside manner with the Almighty.
I loved him for other reasons as well. On the first day of the semester, he inquired as to whether any freshmen were present. Upon hearing nothing, he continued, “Good. Now I can cuss and tell anti-Bush jokes.”
That fall, the Democrats finally retook the House from the GOP, ending their twelve-year reign atop the chamber. This utterly delighted Woodiwiss. Beforehand, while jokingly previewing his upcoming behavior at the polling station, he told us he planned to ask an election official where exactly the “no-electioneering” line ended, step as close to it as possible, yell “Throw the bums out!” and then stride purposefully inside to cast a vote to do just that to the Republicans.
During another class session, he mused, “Jimmy Carter had Habitat for Humanity after he left office, Bill Clinton is a huge policy wonk now, so what’s Bush going to do? Speak to large churches?”
He assigned Shakespeare readings. Once, while attempting to show the class a production of one of the Bard’s plays on VHS (these were the old days, after all), he inadvertently switched the TV to a Manchester United game, whereupon he declared himself “morally torn” and proceeded to watch for several more minutes.
I remember, finally, a game he used to play on Mondays. “I want to hear three stories from this weekend where you remembered you go to Wheaton,” he’d say. A student would call out, “I went to a twenty-first birthday party and no one was drunk.” Someone else might add, “The highlight of my weekend was finding hash browns in the cafeteria on Sunday morning.” “Fantastic!” he’d respond, practically giggling.
It was, indeed, moments like these that endeared him to me most. Reading back through emails I wrote to my family at the time, I’m a little taken aback to find my barely-exaggerated descriptions of him as, alternatively, “St. Ashley Woodiwiss” and a “demigod.” Hovering beneath the surface of my academic man-crush was my giddiness at feeling like an insider: I felt at the time as if I were the only student who truly understood his acerbic wit and, more importantly, was intellectually sophisticated enough to endorse his progressive politics and share his sarcastic dismissal of evangelicalism.
This was probably not perfectly accurate, of course. But reality felt sufficiently similar such that my enjoyment of his class owed at least as much to my fellow students’ imagined bewilderment at his antics as it was to the substance of the jokes themselves.
Years later, I ran into another former student of his, now knee-deep into the (smoldering ruins of the) conservative intellectual sphere. He kindly forwarded me some favorite Woodiwiss quotes he’d once compiled and sent to the professor. Reading them now, I’m almost shocked at their mundaneness:
“I was sitting there swilling beer and watching football games all day long New Year’s Day.”
“I don’t see how you can be a Republican and be a Christian.”
On Exxon: “Hell no, they are terrorists, they are destroyers, they are raping the environment.”
“Every Protestant church starts off with a split.”
It’s difficult to fully appreciate, over seven years later, what it was about this brand of humor that so captured me as a rapt 19-year-old. There is, moreover, an inescapable irony in the fact that I received this exhaustive list of Woodiwiss’ anecdotes from a very conservative classmate, an implicit rebuke of my longtime “insider” illusion. Indeed, given the benefit of hindsight, the quote that stands out most to me now is this one: “This is the Wheaton version of a liberal,” he said once. “At Chapel Hill I’m a fascist.”
He isn’t wrong. There was little truly radical about Ashley Woodiwiss. Stripped of any context, his ironic musings were red meat to malleable students craving brain food. But despite their appearance in his Political Philosophy class, these quotes were neither political nor philosophical in essence.
In David Brooks’ piece, which discusses the death of one of Ashley’s daughters and a serious injury to another, Woodiwiss speaks of lessons learned. “Ashley also warned against those who would overinterpret, and try to make sense of the inexplicable. Even devout Christians, as the Woodiwisses are, should worry about taking theology beyond its limits. Theology is a grounding in ultimate hope, not a formula book to explain away each individual event.”
It’s not a direct quote, but I’ll take it. It sounds like something my old Political Philosophy professor might have said. Right before trying to convince everyone that George W. Bush was the worst American president of all time.
Every spring, the title question is inevitably posed by wide-eyed, sleep-deprived high school seniors to their peers. The rat race otherwise known as the college admissions process in the United States is nearing its end (too slowly, for some).
In a guest post on Valerie Strauss’s The Answer Sheet blog in the Washington Post, Liz Willen from The Hechinger Report (shout out to Teachers College, Columbia University!) brilliantly captured the ritualistic process to which rankings-obsessed teens and parents around the country subject themselves year after year:
Listen closely, and the list of rejected valedictorians, team captains and accomplished test-takers will go on and on. You may even hear navel-gazing parents and students who received too many thin envelopes ask themselves, “Where did we go wrong?”
Willen’s point, however, is that this whole hubbub we (yes, I’m guilty of it, too) have built up throughout the academic year is completely wrong-headed, in terms of how it portrays higher education and in relation to what higher education actually means.
English: Teacher’s College, 2004. Christopher Matta, free to use for any purpose. (Photo credit: Wikipedia)
On my regular bus to Teachers College the other day, the quiet space I occupied alone in the back was suddenly overrun by high school seniors speaking much too loudly for a public space. Initially annoyed at having my peace and quiet disturbed, I became intrigued at the banter thrown around from one corner of the bus to another.
Student A: You applied to Harvard?? You know only like 6% get admitted, right?!
Student B: I know…
Student A: That means, if you filled up this bus with 100 people, only 6 people would get in!
Conversations like these are precisely the target of Ms. Willen’s post:
We go wrong by engaging in this wrong-headed, waste-of-time conversation at all, and by comparing our kids’ test scores and GPAs, their merits and drawbacks. Sure, it’s seductive to be drawn into side-by-side comparisons and speculate about the “secret formula” for getting into top schools like Brown University, where 28,919 applicants vied for acceptances that totaled just 2,649.
Even the new movie starring Tina Fey and Paul Rudd, Admission, has contributed to this cycle of hair-pulling and eye-gouging.
In the new comedy Admission, the Princeton admissions officer played by Tina Fey is repeatedly asked to divulge that formula.
“Just be yourself,” Fey falsely answers. The film illustrates how largely unsuccessful such advice is by showing a parade of accomplished applicants falling through the floor of Princeton’s committee room and into oblivion.
Unfortunately, the movie perpetuates Ivy League angst, promoting the wrong conversation in a country where community colleges enroll more than half of the students in higher education—and where the percentage of Americans between the ages of 25 and 64 with a two- or four-year college degree is just 38.7 percent.
How often have we heard this statement of “just be yourself?” Few colleges I know of actually say that, though. (For more on the waste-of-time conversation that Ms. Willen points out, these three words recently got lots of play after a satirical WSJ op-ed by a high school senior and a subsequently swift response via Gawker.)
College access and affordability issues have long been the focus of my research, and as such, it’s what I’ve written about. But, the real conversation about college admissions that Ms. Willen notes is absolutely a critical dialogue: it’s not about where you go to college; it’s about what you do in college.
While the general perception is that having a degree from an Ivy League school, Stanford, or MIT automatically trumps a degree from most other institutions, the truth is our focus should be on the substance of the degrees and not the degrees themselves.
And until all the guidance, mentorship, and training that we can offer high school students truly helps them and their families embrace substance over style as a key outcome of higher education, we’ll be having this same conversation next spring.
While college basketball fans scramble to finish their office pool brackets and aim for wads of money via [insert any major sports website here], one site has taken a decidedly different approach to filling out their 2013 NCAA bracket.
Which School On The NCAA Bracket Has The Highest Tuition? – theawl.com/?p=160642
While tuition is certainly an important determinant in choosing a college, looking at the average net price (what you pay after grants and scholarships are subtracted from the college or university’s cost of attendance) might be a more interesting way of looking at the field. Plus, net price only accounts for financial aid you do NOT have to pay back, so student loans are not part of this equation.
Based on estimated Annual Net Price, Saint Louis ran away with the championship, costing its students a mind-boggling $32,430 AFTER grants and scholarships have been subtracted from the annual cost of attendance. (If you’re wondering, Bucknell didn’t even make it out of the first round! That’s a bit misleading though, since Bucknell still has the third-highest Annual Net Price in the East behind Butler and Marquette, who rank above Bucknell by only about $300.)
In terms of actual basketball, Saint Louis may actually have a more realistic shot as a No. 4 seed than the 11th-seeded Bucknell to win the actual NCAA championship, if history proves correct. No No. 11 seed has ever won the championship or even made it to the championship game. On the other hand, only one No. 4 seed has ever won the championship (Arizona in 1997).
In all seriousness, though, skyrocketing college costs are no laughing matter. Given that these numbers show how much students must pay (read: borrow) AFTER they’ve exhausted scholarships and grants, there’s already a great need to boost student financial aid and implement more student-friendly policies. If perhaps more schools followed New Mexico State’s lead (estimated annual net price: $2,344), we might actually be able to curb the growing student debt bubble a bit.
If Congress doesn’t get its act together and pass legislation to avoid the 5% across-the-board cuts to the federal budget (aka the “sequester”), the higher education world will suffer through even more painful rounds of budget cuts. The Chronicle of Higher Education has this story covered:
“Thousands of researchers will lose their jobs, thousands of students will lose their financial aid, and thousands of unemployed workers will be turned away from college work-force programs.”
“Though Pell Grants would be exempt from the sequester this year, Federal Work Study and Supplemental Educational Opportunity Grants would not. Arne Duncan, the secretary of education, has told lawmakers his department will make 33,000 fewer work-study awards and 71,000 fewer supplemental grants next year if the cuts take effect.”
There might be some late nights here coming up… [Photo via U.S. House of Representatives]Besides this whole fiasco with the sequester though, Congress has some other higher ed-related legislative business to take care of in 2013: The Higher Education Act of 1965 is up for reauthorization. Judging by the sluggish pace at which the last reauthorization was passed (the 2003 reauthorization finally got passed…in 2008), we might be seeing the 2013 HEA reauthorization get pushed back for a while.
Let’s imagine, though, that the 113th Congress will actually do its job and reauthorize the HEA on time (ok, sorry, I didn’t mean to make you laugh there). But before it does, there are a few ideas Congress needs to hear first about overhauling the federal student financial aid system.
“Wow, that went really well for the University of Texas!” – No one
Last Wednesday, the Supreme Court held a one-hour oralargument in Fisher v. University of Texas, in which our eight justices (Justice Elena Kagan recused herself) engaged in lively debate over the future of racial affirmative action in state universities. (For more on the case, see my post from last week.) Five highlights from that argument:
Predictably, the Justices on the left–Ginsburg, Sotomayor and Breyer–came flying out of the gate with questions for Bert Rein, Abigail Fisher’s attorney. Ginsburg and Sotomayor immediately questioned whether Fisher has suffered the requisite injury she needs to be able to sue, if (as UT claims) she would have been rejected even under a completely race-neutral plan. As is the case with SCOTUS oral arguments in general, a Justice from the other end (Scalia) jumped in not to ask Rein a follow-up question but to provide the answer on his behalf, countering that Fisher’s injury was not the loss of admission but the loss of an opportunity to be considered fairly by UT. Ginsburg, Sotomayor and Breyer seem convinced that the UT admissions scheme satisfies the Grutter test, and Rein certainly received quite a bit of help from Justice Scalia as the liberal justices continued to press him. On the other hand, Justices Alito, Roberts and Scalia hammered Gregory Garre, the attorney for UT, with Sotomayor occasionally stepping in to offer a helping hand.
Both lawyers were repeatedly asked what a “critical mass” of underrepresented minority students at UT might be, at which UT would have adequate student body diversity. When asked by Sotomayor when enough was enough, Rein punted and stated that the definition of “critical mass” (a phrase that comes from Grutter) is something that UT and not Fisher needs to prove, declining to say out loud that the critical mass is whatever number of minorities that the top-10% plan captures in any given year. On the other hand, the conservative justices pressed UT hard on its own fuzzy definition of “critical mass,” appearing at points to try and bait the school into admitting that it has a certain number or percentage of minority admits in mind. This, of course, would be an unconstitutional quota forbidden under Grutter, which is exactly what the conservative wing thinks UT is actually using. UT, for the record, thinks of critical mass as the point where minority students do not feel like the spokespeople for their race, which is a nebulous answer most unsatisfactory for Scalia, Alito and Roberts.
Justice Roberts asked UT’s lawyer, Gregory Garre, about self-identification of race on UT applications and whether the school had any way of knowing when applicants were lying about their minority status. Roberts also wanted to know whether someone who is 1/4 or 1/8 Latino (or 1/32 Latino, as Scalia added on later) could self-identify as being Latino, or whether that would be violating some kind of honor code. Undoubtedly, Roberts’ point was to question the effectiveness and sincerity of UT’s plan to increase classroom diversity, if it has no way of even figuring out which applicants actually are underrepresented minorities. But the flip side of this question seems to undercut Fisher’s argument: if Roberts is right and applicants are fraudulently self-identifying as minorities, that means UT’s student body has an even lower number of minority students than it currently thinks it does.
Justice Alito questioned twice whether it’s fair that affirmative action is being used to help the wrong group of people. Specifically, he wants to know why wealthy African American and Latino students are getting a preference instead of students from underprivileged or even just plain middle-class families. Alito also wants to know how all Asian Americans can be grouped into one category when some ethnic subgroups are more underprivileged and underrepresented than others. UT’s answer is that applicants can state their countries of origin as well, which the school will take into account–but again, Alito doesn’t seem convinced.
The big question in all this is what Justice Kennedy thinks, since he is likely to be the deciding vote. Donald Verrilli, arguing for the United States in support of UT, appealed to the swing justice by bringing up his 2007 concurrence in Parents Involved in Community Schools v. Seattle School District No. 1, in which Kennedy spoke of the country’s strength as arising from the fraternizing of different creeds, races and cultures. However, Kennedy seems skeptical of the UT plan, characterizing it at one point as prioritizing “race above all.” At another point, Kennedy calls race a “tie-breaker “ in UT’s admissions scheme, the same term that was used in Parents Involved to describe Seattle’s usage of race in its ultimately-doomed affirmative action plan.
The bottom line is that the justices are likely to rule 5-3 in favor of Fisher and strike down UT’s admissions scheme, which is going to put universities across the country back at square one. (A 4-4 tie would leave the status quo in place, thus allowing UT’s admissions process to continue as is.) The question is how far the Court will go not just in striking down the specifics of the UT plan but in limiting racial affirmative action across the board. Despite the fact that he invited the Court to do so in his brief, Rein maintains that he’s not asking the justices to overrule Grutter. But as Justice Sotomayor stated toward the end of oral argument, “You don’t want to overrule it, but you just want to gut it.” It looks like a gutting of Grutter is exactly what we’re headed toward. Of course, this is far too early for Justices Breyer, Ginsburg and Sotomayor (whose dismay at Fisher’s arguments was palpable)–but for the rest of the Roberts Court, this moment couldn’t come any sooner and is certainly nine years too late.
Victoria Kwan holds a J.D. from Columbia Law School in New York and has just completed a clerkship with a judge in Anchorage, Alaska. She tweets as @nerdmeetsboy and will continue to post periodically here on legal issues. Rumor has it she and Jay Pinho are dating.
If you haven’t been living under a rock for the past few months, you’ve probably heard that affirmative action is back on the docket of the Supreme Court this term. Even if you have been living under a rock, you’ve probably still heard about it. You may be sick of hearing about it already. (If so, stop reading.) While there is a whole hell of a lot that can (and will) be said about race-based affirmative action in the context of higher education–whether it’s about its consequences for certain minority groups, its main beneficiaries, its effectiveness or its future direction–I’m going to limit myself to an overview of SCOTUS’ recent affirmative action cases and try to point out some of the inconsistencies that the Court must resolve with Fisher v. University of Texas (to be argued this Wednesday), and then close out with a couple of thoughts on affirmative action in general.
Fisher arises directly from a pair of 2003 cases involving the University of Michigan, Gratz v. Bollinger and Grutter v. Bollinger. Jennifer Gratz, a white applicant to the undergraduate school, argued that UM’s practice of granting underrepresented racial minorities automatic “points” in an admissions equation violated the Fourteenth Amendment’s Equal Protection Clause. Barbara Grutter, a white applicant to the law school, argued that UM Law’s practice of taking race into account in its admissions decisions, period, was also unconstitutional.
Now for a little bit of constitutional law: in Equal Protection challenges, a government policy that affords differential treatment between the races is examined under a standard known as “strict scrutiny.” Strict scrutiny means that the policy can only be upheld if the government can show two things: (1) a “compelling state interest,” and (2) “narrowly tailored” means to achieve this goal. Applying this standard, the Supreme Court ruled for Gratz–striking down the undergraduate school’s “bonus” points for underrepresented minorities–but against Grutter. It distinguished the two admissions schemes based on the fact that the law school merely considered race as one of many potential “pluses” and not as an automatic “booster”. Significantly, the Court accepted UM Law’s rationale that student body diversity itself is a compelling state interest “essential” to UM’s educational mission, because we learn to reject racial stereotypes and see members of different groups as individuals (rather than spokespeople for their entire race) when we encounter them frequently in our classrooms.* It then found that the law school had narrowly tailored its use of race in the admissions process. While quotas and automatic points unfairly insulated candidates from comparison with other applicants, taking race into account as part of a holistic process did not. Thus, UM Law’s policy was constitutional. The majority opinion, authored by Sandra Day O’Connor, represented a compromise between the reality of the obstacles still encountered by underrepresented minority students and the American ideal of a pure, colorblind meritocracy. But Justice O’Connor also wrote that she expected race-conscious admissions policies to be “limited in time” and Grutter to be obsolete in twenty-five years.
Who doesn’t want to be a part of this?
The Court is sixteen years ahead of schedule, but it looks ready to limit or even overturn Grutter now. In Fisher v. University of Texas, Abigail Noel Fisher argues that her rejection from UT violates the Equal Protection Clause. Under existing Texas law, the top 10% of students in every high school in the state receives automatic admission to state-funded universities. Race is not taken into account for this group of students, which is how UT gets 70-80% of its incoming class. For the rest of the applicants who do not make the 10% cutoff (now competing to be part of the remaining 20-30% of UT’s incoming class), race is taken into account as one factor among many, per the Grutter rule. Fisher, who is white, didn’t make the top 10% of her high school, and didn’t make the cut when her application was passed down to the pool where race was taken into consideration. She contends that the UT plan is unconstitutional because Texas doesn’t need to give underrepresented minorities a boost in the non-top-10% pile. UT’s race-neutral top-10% plan already results in a significant number of Latino and African American enrollees and makes UT’s classrooms plenty diverse enough without having to disadvantage Asian American and white applicants, Fisher claims. Any further consideration of race is just a smokescreen used by UT to admit a target number of Latinos and African Americans per year–in other words, a racial quota, which is expressly banned by SCOTUS. Texas, on the other hand, doesn’t see a problem with making its classes more racially diverse than the top 10% plan would allow and thus considers race as merely one part (“a factor of a factor of a factor of a factor”) of its holistic look at the non-top-10% applicants.
Fisher never directly argues that Grutter was wrong to accept diversity in higher education as a compelling interest, only that UT has already achieved adequate diversity through race-blind means and should stop there. (In other words, there is a “tipping point” of racial diversity after which you become less diverse by admitting too many students of color, despite the irony that white students are currently admitted at a higher rate under Texas’ non-top-10% holistic consideration than under the top-10% rule, thus… increasing racial diversity at UT.) But Fisher also wants the Court to consider clarifying or overturning Grutter altogether because courts have been too deferential to schools’ admission schemes–not truly questioning whether there is both a compelling state interest and narrowly tailored means–thus turning Grutter into a meaningless and unworkable standard.
On this argument, Fisher may very well find a majority of sympathetic Justices. It’s helpful to her that the perspective of the Court has changed dramatically in the past nine years, now that Sandra Day O’Connor has retired and Samuel Alito and John Roberts have moved in. Justices Alito and Roberts have made no secret of their disapproval of race-based affirmative action. Importantly, Roberts ruled in 2007’s Parents Involved in Community Schools v. Seattle School District No. 1 that Seattle could not use race as a “tiebreaker” when assigning elementary students to schools. Justice Roberts refused to acknowledge that diversity was a compelling state interest at the grade school level, dismissing Seattle’s goals of reducing racial isolation and racially-entrenched housing patterns. Unlike Justice O’Connor, Roberts believes that society is already colorblind enough, and that all this talk about racism is what’s really perpetuating racism: “[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”
No diversity for you!
Where things get sticky is when we try to make sense of Grutter and Parents Involved together. Parents Involved did not overturn Grutter; both are good law. Justice Roberts made sure to dispose of Grutter early on in his opinion, noting that it was limited to the realm of higher education and therefore did not apply to Parents Involved, which took place in the context of grade schooling. But this seemingly pat division raises inconsistencies when you look at what the Court is saying about diversity in each case: how can student diversity suddenly become compelling at the age of 18 and above when it hasn’t been for the last 12 years? Does it actually make any sense to say that elementary and high school students don’t need to be exposed to peers of different cultures and backgrounds, but then say that this exposure becomes of paramount importance when you leave for college, where you can then learn to reject racial stereotypes? Wouldn’t it be too late by then, and wouldn’t it make more sense to start teaching these lessons at an early age? Roberts wriggled his way out of this in Parents Involved by appealing to nebulous “considerations unique to institutions of higher education,” though he doesn’t bother to elaborate on how exactly this is different for grade school education. But either you believe that the state has a right to cobble together diverse classrooms in order to teach its young people acceptance and respect, or you don’t. It looks as though the Court’s conservative wing–Scalia, Thomas, Roberts and Alito–is eager to take the latter approach.
I am confused but powerful.
As ever, it may come down to Justice Anthony Kennedy, the current swing vote who will surely play as crucial of a role now as Justice O’Connor did in 2003. (Justice Elena Kagan has recused herself, so a 4-4 tie would mean that the Fifth Circuit’s decision upholding the UT plan stands, but if Kennedy votes with the four conservatives, UT loses 5-3.) And on the topic of affirmative action, Justice Kennedy seems to be a bit confused. Kennedy dissented in Grutter. He agreed with Justice O’Connor that diversity was in fact a compelling state interest, but found UM Law’s admissions scheme unconstitutional because he did not think it was narrowly tailored. In Parents Involved, Justice Kennedy again found that the challenged plan met the compelling interest test but not the narrowly tailored requirement. His concurrence broke with Justice Roberts on the question of whether diversity is a compelling educational goal at the grade school level (Kennedy believes it is), but then slammed the Seattle plan for categorizing students as “white” and “non-white” and not being narrowly tailored. Ultimately, his vote alongside the Court’s conservatives decided the case in favor of Parents Involved and the Seattle plan was struck down. What’s unclear, however, is exactly what kind of a plan Justice Kennedy would find narrowly tailored enough, and whether the University of Texas scheme will meet this unknown Kennedy standard. While diversity may survive as a compelling state interest as long as Kennedy hasn’t changed his mind, the UT plan might not–and if it doesn’t, schools across the country will be sent scrambling once again to devise a plan that does pass muster.** Diversity is nice, the Court seems to be saying, but we still haven’t figured out what the best way to achieve that is, or where we cross over the line into too much diversity.
As a final note, it’s worth remembering that colleges and grad schools use affirmative action in their admissions decisions in a multitude of ways that extend well beyond race. Justice O’Connor noted in Grutter that the University of Michigan’s admissions policy included “many possible bases for diversity admissions,” including languages spoken, community service performed and hardships overcome. Studies consistently show that female students get better grades in school and outperform men in universities, but colleges use gender affirmative action to try to admit a male-female student ratio as close to 50-50 as possible (since a student body that skews too much toward one gender will hurt campus social life and be “unappealing”). Schools use geographic affirmative action–if there’s 50 applicants from California and 50 applicants from New York with perfect GPA’s and perfect SAT scores and one applicant from North Dakota with an almost-perfect GPA and almost-perfect SAT scores, there’s a good chance that the North Dakotan is going to be admitted ahead of at least some of the perfect California and NY applicants despite the lower numbers. Athletes get preferences. Legacies get preferences (sometimes getting a boost in admissions chances by as much as a whopping 45%). And the list goes on and on. If a school has 50 applications from clarinet players and one from a piccolo player and it just so happens that the university orchestra’s one piccolo has just graduated, the piccoloist might get a bit of a boost. Amidst a pile of 50 applications from students who speak French as a second language and one from a student who is fluent in Croatian, the Croatian speaker might get some special consideration.
Despite all this, very few people ever kick up a big fuss about the injustices in the admissions process that discriminate against non-athletes, non-legacies, non-piccolo players, non-Croatian speakers and women, choosing instead to cry foul about race-based preferences. After all, Abigail Fisher isn’t mad about the male students or the children of UT alumni who might have cost her a shot at being a Longhorn. She’s mad about the African American and Latino students who got in before her, because it’s somehow easier to swallow the idea that students of color are the ones “stealing” spots they don’t deserve, and that they bring less to the college or grad school experience than other “preferred” students do. Of course, the existing system of affirmative action is not perfect, and there are a lot of ideas out there about what we can do to improve it.*** But the Supreme Court would do well to consider the realities of the holistic admissions process–which already have built-in considerations that benefit white/upper-class/male applicants and that have largely been left unchallenged in the courts–before it tries to convince us that we’ve reached our colorblind ideal, sixteen years ahead of schedule.
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*The idea that racial diversity in the context of education can be a compelling state interest is not a new one; SCOTUS had accepted this argument earlier in the 1978 case Regents of the University of California v. Bakke.
**Or they could switch to a completely race-blind admissions process in which top-scoring students constitute all of the incoming class. In the absolute worst-case scenario for supporters of affirmative action, Kennedy may agree with Fisher’s argument that it’s time to stop considering race in higher education, period, and overturn Grutter.
***Richard Kahlenberg, who I’ve linked to multiple times in this post, has done extensive research into both race-based and legacy affirmative action and advocates a switch to income-based affirmative action, an approach which, he argues, would benefit many underrepresented minority students as well as students from lower-income white and Asian American families.
Victoria Kwan holds a J.D. from Columbia Law School in New York and has just completed a clerkship with a judge in Anchorage, Alaska. She tweets as @nerdmeetsboy and will continue to post periodically here on legal issues. Rumor has it she and Jay Pinho are dating.
