prepared for: reaping what we sow: how to ......1 *©2019 educationcounsel llc; a perpetual,...

1 *©2019 EducationCounsel LLC; a perpetual, irrevocable, world-wide, royalty-free, non-exclusive right and license to copy, display, use, modify, prepare derivative works from, and distribute this article is granted to the National Association of College and University Attorneys for noncommercial use, with attribution to EducationCounsel LLC and Jamie Lewis Keith as the original author.

Prepared For: REAPING WHAT WE SOW:

HOW TO REALIZE THE EDUCATIONAL BENEFITS OF A DIVERSE AND INCLUSIVE STUDENT BODY

Pursuit of Student Body Diversity is Doable, But Do It Right!*

Jamie Lewis Keith, EducationCounsel, LLC

I. Introduction and Current Legal Context

Forty years of higher education admissions-focused U.S. Supreme Court precedent permits limited

consideration of race and ethnicity in higher education admissions decision-making, with adequate

evidence of necessity. That precedent applies “strict scrutiny” standards to the design and

implementation of admissions policy.1 Those standards require articulation of specific authentic and

educationally compelling ends associated with student body diversity, as well as legally justified,

narrowly tailored (not overbroad) means to achieve them—whenever admission decision-making

involves consideration of race or ethnicity of individuals. The Court recognizes that an institution of

higher education (IHE) may have a compelling interest in the educational benefits to all students of

broad student body diversity—compelling enough to permit limited, flexible, individualized

consideration of race and ethnicity in holistic admissions review2 to achieve the racial/ethnic aspects of

such broad diversity. However, narrow tailoring requires evidence (not mere opinion of the IHE) that

consideration of race and ethnicity (at all or to the extent they are being considered) is necessary, and

all students must be able to compete under the same criteria and process, to avoid undue burden on

students who are not members of the targeted race or ethnicity.3

1 Regents of the Univ. of CA. v. Bakke, 438 U.S. 265 (1978); Grutter v. Bollinger, 539 U.S. 306 (2003); Gratz v. Bollinger, 539 U.S. 244 (2003); Parents Involved in Community Schools v. Seattle School District No. 1, 551 US. 701 (2007); Fisher v. University of Texas, 570 U.S. 297 (2013) (Fisher I); Fisher v. University of Texas, 579 U.S.__, 136 S.Ct. 2198 (2016) (Fisher II). The same Equal Protection principles should apply when race or ethnicity of individuals is considered in decision-making to confer or withhold benefits in other enrollment programs. See, Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227 (1995)(strict scrutiny applies whenever “racial classifications” are used). However, the ultimate analysis required under applicable strict scrutiny standards (including weight of evidence required to justify consideration of race and gender) may arguably differ when the effect of program participation or other benefit conferring decisions does not equate to the “in or out” nature of admissions decisions. That is the position taken by the U.S. Department of Education (USED) in its 1994 policy on race-conscious financial aid. However, the current legal landscape, with changes in the composition of the U.S. Supreme Court and the positions being taken by USED and the Department of Justice (DOJ), may portend equally strict treatment of consideration of race and ethnicity in all programs conferring benefits on individuals and should be considered in program design. 2 See, Arthur L. Coleman & Jamie Lewis Keith, Understanding Holistic Review in Higher Education Admissions: Guiding Principles and Model Illustrations (College Board, 2018), at 3, n.3, available at https://professionals.collegeboard.org/pdf/understanding-holistic-review-he-admissions.pdf , respecting well-designed, rigorous holistic admissions review. 3 Fisher I, 570 U.S. at 307-12; Grutter, 539 U.S. at 324; Bakke, 438 U.S. at 315-16, 317-18 (opinion of Powell, J.). The Supreme Court also applies at least “heightened scrutiny” to consideration of sex in deciding whether to confer educational benefits on individuals, requiring an “exceedingly persuasive justification”--an important objective and a means substantially related to achieving it. See e.g., United States v. Virginia, 518 U.S. 515, 532-34 (1996)

https://professionals.collegeboard.org/pdf/understanding-holistic-review-he-admissions.pdf


In the context of changes in the composition of the Supreme Court in 2018 and current U.S. Department

of Education (USED) and Department of Justice (DOJ) interpretations of law, the most recent federal

court lawsuits in the higher education diversity realm reflect a broadening of focus, from race to race

and sex (broadly defined to include sex, gender identity and sexual orientation), and from admissions to

admissions, co-curricular programs (student-run and faculty advised law journals), and potentially to

faculty hiring and any program that considers race or sex.4 Other pending lawsuits focus on race in

(striking down a male-only admissions policy at a state military institute, finding it perpetuated sex-stereotyping and lacked “an exceedingly persuasive justification”). Unlike statutory provisions prohibiting racial discrimination, there are limited exceptions to sex-based decision-making for bona fide qualification requirements that do not perpetuate sex-based stereotypes under Title IX (prohibiting sex discrimination in education by institutions that receive federal funding) and Title VII (the federal non-discrimination in employment statute). Some single-sex education satisfying specified criteria is also permitted under Title IX. Where differential treatment of individuals involving sex stereotyping is concerned, the difference between strict and heightened scrutiny has not been clearly delineated. While reserving the ability to assert there is a difference, it is prudent to treat race and sex similarly in enrollment program design. The cases in the federal trial and appeals courts on gender identity and expression in public schools concern student use of facilities under Title IX and the Equal Protection Clause of the U.S. Constitution, indicate similar treatment of sex and gender discrimination under federal law, at least where stereotyping is involved. See, Whitaker et. al. v. Kenosha Unified School District No. 1, 858 F.3d 1034, 47-52 (7th Cir. 2017)(while declining to conclude that “transgender status is per se entitled to heightened scrutiny,” the court upheld a preliminary injunction preventing a school district from enforcing a policy restricting a transgender boy from using school facilities aligned with his gender because the district failed to demonstrate a “genuine, but also ‘exceedingly persuasive’” justification for punishing transgender students for “fail[ing] to conform to the sex-based stereotypes associated with their assigned sex at birth); Grimm v. Gloucester Co. School Board, 302 F.Supp.3d 730 (E.D. VA 2018)(applying “intermediate scrutiny” where the school board’s policy relied on “sex stereotypes); Joel Doe, et al. v. Boyertown Area School District, 897 F.3d 518 (3rd Cir. 2018); C.f., Joel Doe, et al. v. Boyertown Area School District, 897 F.3d 518 (3rd Cir. 2018) (petition for certiorari docketed in Supreme Court at https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/18-658.html) (denying a preliminary injunction that sought on constitutionally protected bodily privacy grounds to enjoin the School District from applying its policy to allow students to use bathrooms aligned with their gender identities, noting that—if strict scrutiny applies—the district’s protection of transgender students against established severe psychological and other harm when they are denied use of facilities aligned with their identities is a compelling interest; the district’s policy is narrowly tailored; a constitutionally protected privacy interest for other students is absent where single user bathrooms are available for all students’ use for privacy reasons, without stigma; Title IX allows but does not require the provision of separate bathroom facilities; plaintiffs have not established sufficient facts of harm to find a hostile environment on the basis of sexual harassment under the facts; and citing with favor Whitaker’s sex stereotyping rationale in support of permitting use of bathrooms aligned with a student’s gender identity); Compare, R.M.A. by Appleberry v. Blue Springs R-IV Sch. Dist., No. WD 80005, 2017 WL 3026757 (Mo. Ct. App. July 18, 2017), reh'g and/or transfer denied (Sept. 5, 2017), transferred to Mo. S.Ct., No. SC 96683, 2019 WL 925511 (Mo. Feb. 26, 2019) (upholding the dismissal of a case alleging sex discrimination against a transgender female to male student who was denied access to the boys’ locker room and bathroom “based on my sex and gender identity,” for failure to state a claim under Missouri law because the student did not allege sex stereotyping (i.e., that he was discriminated against for failure to conform to the traits of his sex), and Missouri law does not protect against discrimination on the basis of “gender-related traits” (female genitalia) and, in dicta, no Missouri court has extended the Missouri human rights statutes to sex stereotyping). 4Faculty, Alumni, and Students Opposed to Racial Preferences et. al. v. Harvard Law Review Association et. al., 1:18-cv-12105-LTS (D. Mass.); and Faculty, Alumni, and Students Opposed to Racial Preferences v. New York University

https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/18-658.html


admissions, with allegations relating to strict scrutiny conditions on the consideration of race and

discrimination against Asian students.5 These cases are still at the federal trial court level, but are

expected to be appealed, regardless of their outcome. Complaints being investigated by the USED

Office of Civil Rights (OCR) focus on similar admission program matters, as well as allegations of

discrimination against males in community-building, mentoring, and scholarship programs for women.

The existence of lawsuits and OCR investigations does not mean that violations of law will be found, or

that the fundamental principles embodied in existing Supreme Court precedent will be overturned. The

currently pending lawsuits and OCR complaints are being vigorously defended; and the Supreme Court

has discretion whether or not to take a case, should one reach it. Also, without predicting future

decisions of the Supreme Court which is a futile undertaking, the fundamental equal protection

principles embodied and upheld in 40 years of precedent, most recently in 20166 and broadly relied

upon across the nation, should be given considerable weight. While the current legal landscape creates

some uncertainty, one course of action does seem clear in order to sustain these fundamental

principles. This is a time for IHEs to be attentive to existing legal requirements in pursuit of their

diversity-associated educational goals in admission and likely other enrollment programs, and to focus

on authenticity of purpose and effectiveness of strategy.

Federal Student Diversity Law in a Nutshell

Alexandra Schimmer, The Ohio State University To outline the U.S. Supreme Court’s legal framework for race-conscious admissions policies and practices, we chart the evolution of the key decisions since Bakke, and then set out more in-depth guidance on the primary takeaways from Fisher I and Fisher II. While maintaining the core framework set out in Grutter, the Court in Fisher I and II amplified certain elements from prior cases – namely, institutional obligations to support policies and practices with evidentiary rigor, to meaningfully review and, where “workable,” employ, race-neutral alternatives, and to engage in periodic review over time. The evolution of Supreme Court jurisprudence on race-conscious practices

A. Public and private institutions whose programs or activities receive federal financial assistance are subject to the legal framework for diversity in admissions and enrollment.7

B. Under the U.S. Constitution’s Fourteenth Amendment, and Title VI of the Civil Rights Act of 1964, classifications based on race or ethnicity are considered suspect and therefore

Law Review et. al., 1:18-cv-09184-JGK (S.D. NY). These cases were in their early stages in February 2019, with all defendants having submitted 12(b)(1) and 12(b)(6) motions to dismiss. Even if the cases are disposed early, they evidence the expanded focus of opponents of higher education diversity efforts. 5Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, 14-14176-ADB (D. Mass.); and Students for Fair Admissions, Inc. v. The University of North Carolina et al., 1:14-CV-954 (N.C.M.D.). 6 Fisher II, 136 S.Ct. at 2208 (affirming Fisher I’s three controlling principles in assessing the constitutionality of affirmative action programs). 7 Public institutions’ programs are subject to the Equal Protection Clause of the 14th Amendment to the U.S Constitution, and public and private institutions that receive federal funding are subject to similar principles of Title VI of the Civil Rights Act of 1964, a federal statute prohibiting discrimination in educational programs on the basis of race and ethnicity.


subject to “strict scrutiny.” Under the strict scrutiny standard, an institution may only use race/ethnicity as a factor in conferring benefits or opportunities on individual students if the institution can demonstrate that these race/ethnicity-conscious practices (1) serve a “compelling interest” and (2) are “narrowly tailored” to achieve that interest.

C. Justice Powell’s 1978 compromise opinion in Regents of the University of California v. Bakke8, first articulated the view that the educational benefits of diversity could constitute a compelling interest justifying race-conscious policies in appropriate cases. In Bakke, a white student claimed discrimination after being denied admission to medical school. He challenged the university’s practice of setting aside seats for students of color, who had long been underrepresented at the school. The Court deemed the set-aside practice unconstitutional because it operated as a racial quota. However, Justice Powell’s compromise opinion stated that schools could consider race as one “plus factor” in a multi-factored admissions process. (It is also important to note that, while recognizing the educational benefits of diversity as a compelling interest, the Bakke court rejected the argument that remedying the past effects of societal discrimination could be a compelling interest justifying affirmative action, and the Supreme Court has never retreated from that view).

D. Twenty-five years later came Grutter v. Bollinger and Gratz v. Bollinger, involving, respectively, the University of Michigan’s law school and undergraduate admissions policies.9 The undergraduate process in Gratz, which used a point system, was ruled unconstitutional, while the Court upheld the law school’s admissions policies in Grutter, finding (again) that the educational benefits of diversity were a “compelling interest” and that the law school’s policies involved a constitutionally-sound, individualized review of all applications that considered race and ethnicity more flexibly.

E. Grutter established what remains today the core framework for race/ethnicity-conscious policies and practices (with certain important refinements layered on by Fisher I and II, as discussed further below). The core components of this admissions framework can be summarized as follows:

1. Provides individualized review of each applicant

2. Is not a quota or tantamount to one; race is not rigidly or mechanically considered

3. Race as part of a holistic review of many factors, not the “defining feature of an application”

4. Does not unduly disadvantage members of any racial/ethnic group

5. Gives serious, good-faith consideration to workable race-neutral alternatives

6. Is reviewed periodically and refined over time

F. Foreshadowing Fisher, Justice Kennedy’s dissent in Grutter accepted that diversity in higher education remained a compelling interest (reflecting agreement of six justices to that point in the Court’s decision) and that strict scrutiny is the appropriate test. However, Justice Kennedy claimed that Justice O’Connor’s majority opinion had diluted the “real and accepted meaning” of strict scrutiny.10 He would have preferred an

8 Regents of the University of California v. Bakke, 438 U.S. 265 (1978). 9 Grutter v. Bollinger, 539 U.S. 306 (2003); Gratz v. Bollinger, 539 U.S. 244 (2003). 10Grutter, 539 U.S. at 387.


analysis, he said, that would have compelled universities to more seriously consider race-neutral alternatives.

G. Ten years later, in 2013, the Fisher v. University of Texas case (Fisher I) reached the Supreme Court for the first time.11 Bypassing the merits of the university’s undergraduate admissions policy, the Court (in a 7-1 decision) ruled that the Fifth Circuit failed to properly apply the strict scrutiny test, provided additional guidance on the test, and remanded the case for further review. While not the blockbuster opinion many had anticipated (the Court ultimately preserved the core Grutter framework), Fisher I was still highly consequential in amplifying and expounding on several key principles from prior cases – namely, the requirement that schools meaningfully show the need for race-conscious policies and practices in light of race-neutral alternatives and the requirement that schools evaluate the actual effects of their policies and practices. Fisher I also set a new tone for the legal framework, underscoring the evidentiary rigor that should apply to a school’s justification for race-conscious practices.

H. In 2016, the Fisher case returned to the Supreme Court (Fisher II12). In a 4-3 decision, the Supreme Court found that UT’s race-conscious admissions practices were lawful, and the Court reiterated a number of key principles from (Fisher I), discussed more fully in the “deeper dives” below.

The “compelling interest” in a diverse student body

A. While the Grutter Court, like Justice Powell’s opinion in Bakke, reaffirmed the educational benefits of diversity as a compelling interest, Grutter clarified that this is not an automatic presumption. It remains a key takeaway from Grutter – amplified by Fisher I and II – that each institution must make the case regarding its own particular compelling interest in a diverse student body.

11 Fisher v. Univ. of Texas at Austin, 570 U.S. 297 (2013) (“Fisher I”). 12 Fisher v. University of Texas at Austin, 136 S.Ct. 2198 (2016) (“Fisher II”).


B. Mission-driven educational goals – and articulating how diversity intersects with these goals – are the center and starting point for the work of evaluating (and ultimately, justifying) admissions/enrollment practices.

C. The core question is: What are the educational benefits that a diverse student body is meant to generate and how do those benefits support the institution’s mission?

D. Clear articulation of these goals and interests enables institutions to properly calibrate policies and practices. Per Fisher II: “A university’s goals cannot be elusory or amorphous – they must be sufficiently measureable to permit judicial scrutiny of the policies adopted to reach them.”13

E. What type of deference is given to institutional judgments about the importance of diversity? Note the shift from Grutter to Fisher:

i. In Grutter, the majority stated that “[t]he Law School’s educational judgment that such diversity is essential to its educational mission is one to which we defer” because the Law School and its amici had provided evidence that diversity would yield educational benefits; the Court would offer similar deference to other “complex educational judgments in an area that lies primarily within the expertise of the university”; and the Court had a “tradition of giving a degree of deference to a university’s academic decisions, within constitutionally prescribed limits.”14

ii. In Fisher I, however, Justice Kennedy’s opinion for the Court stated that courts owe “some, but not complete, deference” to an institution’s “reasoned, principled” academic judgment based on its “experience and expertise” that “a diverse student body would serve its educational goals.”15

Narrow tailoring of means to ends

F. The narrow tailoring requirement means that the design and operation of race/ethnicity-conscious practices are as limited as possible while achieving the compelling interests identified by the institution.

G. Several components of narrow tailoring have emerged from the Supreme Court’s jurisprudence on race-conscious admissions and were amplified in the Court’s Fisher decisions:

1. Necessity: An institution must be able to show that any consideration of race or ethnicity is necessary to achieve the educational benefits of a diverse student body. This includes showing, among other matters, what race-neutral strategies are already deployed, and their efficacy (or not), and the actual impact of race-conscious policies on the attainment of institutional educational goals.16

2. Flexibility, impact on non-beneficiaries, and holistic review: The Court has recognized holistic review as a flexible, individualized review system that can help ensure the narrow use of race/ethnicity, by situating it as one factor of many in a multi-faceted evaluation. Holistic review allows for the individualized consideration of different

13 Fisher II, 136 S.Ct. at 2203. 14 Grutter, 539 U.S. at 328. 15 Fisher I , 570 U.S. at 310-11. 16 Fisher I, 570 U.S. at 312; Fisher II, 136 S.Ct. at 2208.


applicants’ unique abilities, strengths, and experiences, and thereby helps address the Court’s concern with the “enduring challenge to our Nation’s education system to reconcile the pursuit of diversity with the constitutional promise of equal treatment and dignity” for each individual.17 This is in contrast, for instance, to the admissions policies reviewed in Gratz, which involved a point system that gave each underrepresented minority applicant 20 points out of a possible 150 solely because of his/her minority status. In finding the points scheme not appropriately limited, the Court in Gratz stated that it “had the effect of making the factor of race . . . decisive for virtually every minimally qualified underrepresented minority applicant.”18

3. Periodic review: Subjecting race/ethnicity-conscious policies to periodic review and refinement was explicitly called for by the Court in Fisher II and is a key component of narrow tailoring. “The Court’s affirmance of the University’s admissions policy today does not necessarily mean the University may rely on that same policy without refinement. It is the University’s ongoing obligation to engage in constant deliberation and continued reflection regarding its admissions policies.”19

H. Whereas institutions will receive some deference towards their educational judgments about the importance of a diverse student body, institutions receive no deference on means. The institution bears the evidentiary burden of showing the necessity of race/ethnicity-conscious policies and that race-neutral alternatives “would not promote its interest in the educational benefits of diversity ‘about as well and at tolerable administrative expense.’”20

II. An Even Deeper Dive: Imperative of Due Attention to Building an Evidence Base

Among the most important work that an IHE must do to satisfy existing court precedent (an imperative

to preserving it), is to focus on regularly amassing, evaluating and documenting an evidence base for

ongoing satisfaction of the legal conditions to the design and pursuit of race- and ethnicity- conscious

enrollment strategies. Ideally, while not legally required, it is helpful to engage a multi-disciplinary team

of experts (across the enrollment management continuum—from outreach and recruitment to

admissions and aid, to mentoring and community building, to curricular and co-curricular programs),

and to work with advice of knowledgeable legal counsel and, if available, institutional research

professionals. Such a team enables access to already existing evidence at the IHE and the coordination

needed to avoid design, implementation or evaluation of any part of the enrollment continuum or any

single program in isolation, which is critical.21

In particular, the following actions are important in the design, implementation and evaluation of

diversity-associated enrollment programs—from both “ends” and “means” perspectives:

17 Fisher II, 136 S.Ct. at 2214. 18 Gratz, 539 U.S. at 272. 19 Fisher II, 136 S.Ct. at 2215. 20 Fisher II, 136 S.Ct. at 2208 (quoting Fisher I). 21 The Fisher II Court did not consider the admission program in isolation when determining whether the university needed to consider race in admissions. “The University has created three new scholarship programs, opened new regional admissions centers, increased its recruitment budget by half-a-million dollars, and organized over 1,000 recruitment events.” Fisher II, 136 S.Ct. at 2213.


A. ENDS. Respecting the “ends” aspect of strict scrutiny, once an IHE articulates and documents its

diversity-associated mission and related educational goals and specific objectives—providing “reasoned,

principled explanation”22 of why broad student diversity is critical to achieving the goals and objectives,

courts are to defer to that educational judgment.23

Each IHE is well advised to define its diversity-related mission and educational goals and objectives

clearly and as broadly as it can, while being true to its unique character, purpose and reach. An IHE may

seek to contribute to innovation and research, scholarship and knowledge dissemination, economic

strength, national security, a strong democracy, elimination of systemic societal inequities, and

addressing other great societal needs. It may be broad-scope in disciplines or focused heavily on

particular fields, have a local or world-wide reach, serve a breadth of student populations or more

narrow community. Within its overall mission, as well as within the mission of its key disciplinary

components, an IHE should determine and document the specific educational benefits it attributes to a

diverse student body. Some benefits associated with diversity may include:

improved teaching and learning—including the promotion of emotional intelligence, empathy, bias recognition, more competent and robust attention to all aspects of the background of those served in a field, and receptivity to differing viewpoints and perspectives24 —all of which can lead to higher quality work, better service, more innovative and impactful inventions, and other positive outcomes;

support for workforce needs, broadly framed or in relevant fields, to serve an increasingly diverse society and eliminate pervasive societal disparities (e.g., in employment, pay, housing, education, health, criminal justice, access to resources, etc.)—including better preparing students to be inclusive and culturally competent, and to lead change to meet the needs of an increasingly diverse population;

eliminating racial and other stereotyping that pose barriers to inclusion of all talent in relevant fields, as well as to effectively serve and produce work in those fields;

strengthening and assuring the legitimacy of civic engagement and leadership in particular fields and in a diverse society;

serving national security and economic interests; and

broadening and enhancing the nation’s innovation-focused research agenda to address the needs of everyone in a diverse society.25

The Supreme Court has been consistent in rejecting, as unconstitutional and contrary to Title VI, two

particular goals when used to justify consideration of an individual’s race and ethnicity in decision-making

22 Fisher I, 570 U.S. at 310; and Fisher II, 136 S.Ct. at 2208. 23 The Supreme Court recognizes that an IHE “is in large part defined by those intangible ‘qualities which are incapable of objective measurement but which make for greatness’ [and] considerable deference is owed to a university in defining those intangible characteristics, like student body diversity, that are central to its identity and educational mission.” Fisher II, 136 S.Ct. at 2214; See also, Fisher I, 570 U.S. at 310 (quoting Grutter)(“The decision to pursue “the educational benefits that flow from student body diversity’ that the University deems integral to its mission is, in substantial measure, an academic judgment to which some, but not complete, judicial deference is proper,” provided a “reasoned, principled explanation for the academic decision”). 24 Brief of the Association of American Medical Colleges et al. as Amici Curiae, pp. 15-23, Fisher II, 136 S.Ct. 2198 (2016). 25 Coleman, et al., Roadmap to Diversity and Educational Excellence: Key Legal and Educational Policy Foundations for Medical Schools (AAMC, 2d ed., 2014) at 20-21.


about who will (and will not) receive benefits. They are (1) racial balancing—seeking to mirror in a student

body the representation of racial groups in society or setting caps per race, and (2) social justice—seeking

to remedy general or past societal discrimination and inequity.26 What this means requires an

appreciation of a subtle, Court-constructed, distinction between (1) a legally impermissible aim—i.e.,

racial balancing or righting societal wrongs—as a justification for race-conscious decision-making and (2)

being aware of population demographics and issues of race-based inequities in society or a particular field,

as a context for legally permissible educational goals—i.e., to educate students about societal issues and

inequities related to race, and to prepare students to serve, live, work, fulfill their civic duties and lead in

an increasingly diverse society.

Awareness of demographics and matters of race in society is important as a focal point for educational

goals of many IHEs, requiring diverse educational experiences and the broad perspectives they bring for

all students. For example, IHEs may determine there is an imperative to develop courses and other

programs that raise understanding of race in society and demographic trends as a context for exploring

how to build a more equitable and stronger democracy and a healthy, growing economy, while engaging

a range of political views and underlying research on these issues. An institution is perfectly free to

encourage and prepare students to thrive in a diverse society—and, beyond that, to contribute to

advancing a more racially and otherwise just and inclusive society that provides opportunities to, and well-

serves, all people—as important parts of its mission and a focal point of its curriculum. The legal

limitations arise when the means to achieve these goals include consideration of individuals’ races or

ethnicities.

There is no exhaustive list of evidence of, and no single required approach to documenting, the

connection of diversity to desirable educational outcomes. A particularly clear and well-emphasized

articulation of the connection may be expressed in an IHE’s—and each of its major unit’s—mission

statements at a high level, with more detail provided in a combination of supporting policies. However,

any number and combination of policies may serve this purpose such as: diversity statements,

enrollment policies and training resources, governing board and faculty senate statements or policies,

diversity committee charters and plans, “state-of-the university” speeches, other leader statements, etc.

26 See, e.g., Bakke, 438 U.S. at 305-309 (also recognizing the possibility of a remedial justification if there were judicial, legislative or administrative agency findings of constitutional or statutory violations with current effects and continuing oversight, to ensure that the remedy benefiting some races over others “will work the least harm possible to innocent persons competing for the benefit,” not found to be present); Grutter, 539 U.S. at 330; Fisher I, 570 U.S. at 311. Remedying the present effects of an institution’s own discrimination, which is a distinct (remedial) aim from achieving the educational benefits of diversity, is a permissible justification for considering race and has been used in DOJ desegregation consent agreements with state university systems. However, this “own institution remedial aim” has not been raised to justify race conscious admission policies in cases that have reached the Supreme Court. When University of Maryland attempted to use this remedial rationale to justify a program providing a limited number of race-exclusive scholarships for African American students, the U.S. Court of Appeals for the 4th Circuit found evidence of the university’s discriminatory practices lacking and struck down the program. Podberesky v. Kirwan, 38 F.3d 147 (4th Cir. 1994), cert. denied, 115 S.Ct. 2001 (1995).


Evidence of and Ways to Document Authenticity of Diversity-Associated Educational Goals.

Regardless of the vehicles that carry the message, it is important for impact and authenticity to reflect

alignment of diversity-associated unit-specific goals and objectives with those of the overall institution.

The impact and authenticity of these statements, along with their credibility in a legal challenge, is

strengthened when they are developed with input from a broad group of stakeholders, including, e.g.,

faculty, students, and leaders at every level of the institution. Even alumni can be an invaluable source

of testimonials about the importance of educational diversity to prepare students for the workforce and

citizenry, as well as for positions of leadership and military and other service to society. Documenting

the process used to develop diversity-associated goals and objectives is good evidence to have.

In the current legal environment, it is also prudent for an IHE to demonstrate and document the

authenticity of its diversity-associated educational goals by creating strategies that proactively engage

student body diversity to enhance the educational experience for all students. The Court speaks only to

an IHE “demonstrating with clarity” its legally permissible purpose for considering race (i.e., the

educational benefits of diversity) and its associated “concrete and precise goals” that are “sufficiently

measurable to permit judicial scrutiny;” it does not amplify what that requires beyond an articulation of

the connection between diversity and specific educational benefits sought for all students.27 However,

proactively engaging diversity to enhance educational outcomes—and documenting that this is being

done, with strategies evaluated for effectiveness and modified as warranted—is a strong demonstration

that an IHE’s educational aim is authentic and not mere words or artifice. While not an exhaustive list,

and not intended to suggest the need for any particular number or type of proactive programs, some

examples of possible strategies include:

Training teaching assistants and offering professional development support to faculty on

effective pedagogical approaches to teaching a diverse student body and engaging students in

diverse experiences;

Conducting a formal process for admissions staff to share their knowledge of individuals and the

broad diversity of students in an incoming class with leaders of curricular and co-curricular

programs, who in turn take that knowledge into account to create diverse study and project

groups, seminar and lab sections, internship opportunities, or residential and student life

programs, etc., where students can meaningfully engage with peers different than themselves in

learning, social activities, and living communities;

Engaging faculty to develop curricula—potentially even a signature freshman course or series of

“diversity flag” courses—that address issues of race, gender, socio-economics, equity and other

diversity-associated topics to raise understanding of diversity-associated issues, and enhance

appreciation of related accomplishments and contributions, societal challenges faced, and

cultures;

Creating peer-to-peer mentoring across races, gender, differential ability, socio-economic

background, etc. to build respect and appreciation of all talent.

27 Fisher II, 136 S.Ct. at 2208 (quoting Fisher I), 2211.


Importance of Ongoing Review and Adjustment.

Narrow tailoring of design requires continuous and periodic deeper review of diversity-related mission,

goals and objectives achieved through race- and ethnicity- conscious means, to ensure that the goals

continue to be the right ones, and to make adjustments as internal or external changes related to

institutional mission and diversity may warrant.28 The process and substance of the evaluation, regularly

conducted, and the conclusions and any follow up action taken, should be documented. Include any

proactive efforts to engage diversity and enhance student outcomes, with an assessment of the

effectiveness of those efforts and adjustments made as needed. IHEs should establish metrics for

determining the importance of diversity-associated educational goals and defining success in achieving

them.29

B. MEANS. Narrow tailoring imposes a heavy,30 but not insurmountable, burden on an IHE to

demonstrate and document that it is necessary to consider race and ethnicity to achieve its compelling

educational goals and objectives.31 The evidence should include anecdotal, qualitative information on the

student experience. It may also include quantitative evidence of the effects of race and ethnicity on that

experience and educational outcomes. Quantitative evidence of compositional diversity is also

important—not as a forward-looking numerical goal, but aimed at determining, in light of corresponding

evaluations of student experience, whether increased compositional diversity is needed to create a setting

in which meaningful diverse student engagement can occur.

Narrow tailoring of design requires evidence, not just an IHE’s opinion, respecting three aspects of “need”

to consider race and ethnicity, which must be gathered and evaluated continually, with periodic deeper

evaluation.32 The three aspects of need are:

1. Evidence that existing racial or ethnic diversity at the IHE overall, or in particular disciplines or clusters of curriculum-related disciplines, is insufficient to achieve associated educational aims, particularly regarding student experiences and learning outcomes. If existing diversity is sufficient, there is no legally recognized need to use race- or ethnicity- conscious strategies to

28 Fisher II, 136 S.Ct. at 2214-15 (“The Court’s affirmance of the University’s admissions policy today does not necessarily mean the University may rely on that same policy without refinement,” it has an “ongoing obligation to engage in constant deliberation and continued reflection regarding its admissions policies,” using “data to scrutinize the fairness of its [policies]; to assess whether changing demographics have undermined the need for a race-conscious policy; and to identify the effects, both positive and negative, of the affirmative-action measures it deems necessary”). 29 Fisher II, 136 S.Ct. at 2211 (“A university’s goals cannot be elusory or amorphous—they must be sufficiently measurable to permit judicial scrutiny of the policies adopted to reach them”). 30 Fisher I, 570 US at 314 (“Strict scrutiny must not be ‘strict in theory, but fatal in fact,’” citing Adarand, 515 U.S. at 237, “[b]ut the opposite is also true. Strict scrutiny must not be strict in theory but feeble in fact”). 31 Id. at 311-12 (“The University must prove that the means chosen . . . to attain diversity are narrowly tailored to that goal” and “receives no deference” from the court; and, quoting Bakke, the university must demonstrate that it is “’necessary’…to use race to achieve the educational benefits of diversity”); Fisher II, 136 S.Ct. at 2208, 2210-12 (“Strict scrutiny requires the university to demonstrate with clarity that…its use of race is necessary,” quoting Fisher I, and that existing diversity isn’t sufficient to realize the diversity-associated educational benefits and neutral alternatives would not suffice). 32Fisher II, 136 S.Ct. at 2214-15.


increase diversity—unless a different rationale, as-yet to be endorsed by a court, justifies the consideration.33

2. Evidence that the IHE seriously evaluates potential “workable” neutral strategies, and uses

those strategies that are workable. Neutral strategies alone must be used if they are sufficient to achieve diversity-associated educational aims. If insufficient alone, neutral strategies may be used in combination with limited consideration of race or ethnicity. “Workable” neutral strategies are those that do not require a change in the character or quality/competitiveness of an IHE, and would achieve its educational goal “about as well and at tolerable administrative expense.”34 Tolerable expense has not been defined by the Supreme Court. However, individual equal protection interests are accorded great weight. For an expense to be intolerable enough to trump those interests, the expense is likely to have to be highly consequential financially or operationally.

Note that the Supreme Court in its Fisher I decision cited to the fact that University of Texas (UT) had refrained from consideration of race for seven years, after the U.S. Court of Appeals for the Fifth Circuit determined that such consideration was unlawful in its 1996 Hopwood decision.35 The Supreme Court noted with favor that UT conducted a year-long study, produced a 39-page report, and documented the adverse effects on student experience and compositional diversity of its abstention from consideration of race and ethnicity; the race-neutral investments and efforts it made across the enrollment continuum (e.g., in outreach and aid programs); the insufficiency of those efforts alone and its need for more diversity to achieve its educational goals. Only then did UT resume consideration of race and ethnicity, after the Supreme Court decided Grutter in 2003.

33 Fisher I, 570 U.S. at 311-15; Fisher II, 136 S.Ct. at 2211-15; Grutter, 539 U.S. at 327, 333, 339-40. The Supreme Court has recognized the important equal protection interest of “equal treatment and dignity” of individuals. See, Fisher II, 136 S.Ct. at 2214 (“…it remains an enduring challenge to our Nation’s education system to reconcile the pursuit of diversity with the constitutional promise of equal treatment and dignity”). Race and ethnicity affect individual life experience for many students. While not addressed precisely in this way, race and ethnicity are inextricable parts of individual self-identity, as identity is uniquely defined by each person (not by the IHE). Self-identity cannot be denied without dishonoring the “dignity” of each individual; and such dignity is a concept referenced in Fisher II, which was important to recently retired Justice Kennedy. See, e.g., https://www.stanfordlawreview.org/online/civility-dignity-respect-and-virtue/ https://www.npr.org/sections/thetwo-way/2013/06/27/196280855/explaining-justice-kennedy-the-dignity-factor https://www.washingtonpost.com/opinions/there-was-one-unifying-theme-of-anthony-kennedys-jurisprudence/2018/06/28/650aa740-7adf-11e8-80be-6d32e182a3bc_story.html?noredirect=on&utm_term=.319b4f98c648 (last visited March 3, 2019) Race and ethnicity considered only as a matter of self-identity—not as a stereotype or societally-imposed per se identity—or considered only as an individual may identify race to be part of unique life experiences—should not be regarded as consideration of per se racial or ethnic status, but rather as an inextricable aspect of each individual and his or her life journey. Self-identity may be best reflected in essays and other individual information, and are not to be presumed by mere racial or ethnic status data. This may, in fact, be the core considerations of holistic admission review in higher education; but this manner of consideration of race has not been squarely presented to the Supreme Court. 34 Fisher I, 133 S. Ct. at 2420. 35 Fisher I, 133 S. Ct. at 2213 (“[S]ignificantly, in the wake of Hopwood, the University spent seven years attempting to achieve its compelling interest using race-neutral holistic review” and “[n]one of these efforts succeeded. . . .”); Hopwood v. Texas, 78 F.3d 932, 934-35 (5th Cir. 1996).

https://www.stanfordlawreview.org/online/civility-dignity-respect-and-virtue/

https://www.npr.org/sections/thetwo-way/2013/06/27/196280855/explaining-justice-kennedy-the-dignity-factor

https://www.washingtonpost.com/opinions/there-was-one-unifying-theme-of-anthony-kennedys-jurisprudence/2018/06/28/650aa740-7adf-11e8-80be-6d32e182a3bc_story.html?noredirect=on&utm_term=.319b4f98c648




The Fisher I decision does not impose a required hiatus from consideration of race to prove that neutral strategies are insufficient. However, it does require serious consideration and use of neutral strategies; Fisher II considers these efforts across the enrollment spectrum; and these cases require some demonstration that such strategies are inadequate alone. There is an open question about what evidence an IHE might need to amass to demonstrate the insufficiency of neutral strategies alone.

3. Evidence that any race- and ethnicity- conscious strategies being used—in combination with

neutral ones—are effective to create positive diversity-associated student experiences and learning outcomes, and to increase the compositional diversity necessary as a setting for those experiences to occur, is critical. A strategy cannot be necessary if it is ineffective. The numbers need not be large, but should be meaningful on a percentage basis to demonstrate effectiveness.36

How to Evidence Need to Consider Race and Ethnicity.

Again, there is no single right way to evidence the three aspects of need to consider race and ethnicity in enrollment decision-making. Among other approaches, qualitative evidence of the adequacy of existing diversity in relation to the current student experience may be found in course evaluations, formal and informal climate and other surveys (including those created and administered by the institution, and those of third parties such as the HERI and SERU surveys), focus groups, and town hall meetings. These may reveal, e.g., whether all students feel welcome or some students feel isolated on the basis of race and ethnicity and unable to fully participate as individuals, and whether students generally are or are not meaningfully engaging in diverse experiences. Quantitative evidence of the student experience may include, for example only, multivariable regression analyses determining the statistical effect of race and ethnicity (as well as other diversity factors, such as sex and disability) on student success—all other factors (e.g., parental educational attainment, socio-economic background, high school GPA and standardized test scores, quality of residential and school district, etc.) being equal. These analyses may consider whether effects of race or other diversity factors differ with the level of compositional diversity in the major or cluster of curriculum-related courses of study. Quantitative evidence relating to compositional diversity—as a setting where diverse engagement may occur—may include trends in demographics of the applicant pool, first year class, and entire student body, using backward looking data, and correlating compositional diversity with student experience data to determine adequacy for desired student experience. The Supreme Court looks favorably on meaningful percentage increases in diversity—as a measure of effectiveness of strategies—because large increases in absolute numbers may indicate too much weight given to particular races and too much burden on students of other races. Building an inventory of all race-conscious policies used across the entire enrollment spectrum, and documenting all neutral policies evaluated, those used, and those rejected as unworkable, with the reasons why, is a good practice to demonstrate robust consideration and use of workable neutral strategies. IHEs typically have demographic data on applicant pools, yield, and matriculation, which—

36 Fisher II, 136 S.Ct. at 2212 (Rejecting the assertion that “minimal impact” of a race-conscious enrollment strategy on compositional diversity constitutes a lack of necessity, especially where percentage increases “show that consideration of race has had a meaningful, if still limited, effect,” the Court stated it is “not a failure of narrow tailoring for the impact to be minor” in absolute numbers, as that “should be a hallmark of narrow tailoring, not evidence of unconstitutionality”).


together with an inventory of neutral strategies employed across the enrollment spectrum—may be used to create institution-specific models to project what would likely happen if an IHE ceased consideration of race and ethnicity in admissions. These evaluations may demonstrate whether there is a need to consider race, in addition to pursuing neutral strategies. Once widely available, IHEs may find real benefits in using technology-enabled tools to help determine whether there is a need to consider race and ethnicity in enrollment programs. For example, Applications Quest37 software’s modeling function provides IHEs with the ability to efficiently model whether there would be a significant difference in compositional diversity outcomes if particular neutral criteria were used, with and without consideration of race and ethnicity. A tool such as this one could help determine whether neutral efforts are adequate alone. That said, bare compositional diversity is not the measure of adequacy of diversity; the student experience is. And merely counting the number of students of each race that results when race is and is not included with many other criteria in evaluating students, does not address the unique bundle of talents, attributes, experiences and backgrounds that each individual would bring to a student body. That is what IHEs assess in holistic enrollment processes to create a rich learning environment for all students.38 How to Demonstrate There Is Not Undue Burden on Other Students. It is also critical to demonstrate that consideration of race and ethnicity does not unduly burden other

students. That an enrollment strategy results in small numerical increases in numbers of students of

particular races, while still being meaningful on a percentage basis, may be viewed positively by the

Supreme Court as evidence of lack of undue burden on students of other races.39 If a need for more

diversity is evidenced, based on student experience in the context of existing compositional diversity,

then an absence of undue burden may be demonstrated by (a) as limited as possible consideration of

race and ethnicity, (b) not making race and ethnicity the sole or a dominant or mechanically/uniformly

weighed factor in decision-making, and (c) ensuring that all students may compete in the same process

under the same criteria.40 Beginning with Bakke, the Supreme Court has made clear that racial and

ethnic quotas and other such exclusive approaches are prohibited in admission decision-making.41 They

are difficult to justify in other enrollment programs under the principles established by the Supreme

Court’s admissions decisions.

37 See, Applications Quest, available at http://www.applicationsquest.org/ (last visited Mar. 1, 2019). 38 Applications Quest is a helpful modeling tool; and that is the only purpose for which I am citing it in this context.

However, it was designed to allow admission professionals to make some up-front assessments (e.g., score essays

and other judgmental factors, consider adequacy of grades and test scores) and then submit a group of students

who are capable of succeeding (or meet baseline requirements as an IHE may otherwise defined them), to a

computer-aided comparison. The software considers a large bundle of characteristics (determined by the IHE, and

which may or may not include race and ethnicity) that together uniquely define each student, and determines

which students (in cohorts defined by the IHE—e.g., by intended major, geographical area, or grade and test score

percentile) are most different from all others in the broadest sense of diversity. 39 See, Fisher II, 136 S.Ct. at 2212. 40 Bakke, 438 U.S. at 315-18; Grutter, 539 U.S. at 334. 41 Bakke, 438 U.S. at 315-19.

http://www.applicationsquest.org/


Importance of Ongoing Review and Adjustment.

A regularly conducted process, periodically with greater depth, should be undertaken and documented

to collect and evaluate evidence of the serious consideration of potentially workable neutral strategies

and whether there is a need to consider race and ethnicity. The process and documentation should

include assessment of the effectiveness of any race- and ethnicity- conscious strategies used in

combination with neutral strategies; the conclusions reached; and follow-up adjustments made to

reflect changes in educational goals and internal and external circumstances that affect the need (or lack

of, or lesser, need) to consider race and ethnicity.

III. The Meaning and Examples of Neutral Strategies

This section further explores the meaning of race- and ethnicity- neutral strategies, and provides

examples that IHEs may consider. Not all of these strategies will be workable for all institutions or all

programs. Also, there may be additional strategies that are not included in these examples.

Meaning of Race- and Ethnicity- Neutral Strategies

Neutral strategies are those that do not on their face consider race or ethnicity of any individual in making decisions on who will (and will not) receive a benefit. Facial neutrality is not necessarily determinative, however. A neutral strategy also must have an authentic, mission-tied aim apart from increasing the racial or ethnic composition of the student body or conferring benefits on individuals on the basis of race or ethnicity. In addition, certain race- or ethnicity- conscious strategies are still considered neutral, if they do not allocate significant benefits to individuals based on such status and have an inclusive effect overall. If a strategy meets these criteria, it should retain its neutral character, even if, as an ancillary matter, it also increases racial and ethnic diversity, and that ancillary benefit is known and welcome. Questions remain about strategies that do not take race of any individual into account in decision-making, but are pursued with the significant aim of increasing racial diversity, which we (not the courts) call “macro-race consciousness,” as addressed below.

Examples of Neutral and Macro-race Conscious Strategies42 1. Neutral Outreach — This strategy is defined by conveying the same consequential information to all students through robust general outreach to all potentially qualified applicants, with some targeted outreach to applicants of color, if there is a gap in this aspect of broad diversity at the IHE or in the education program, or if needed to ensure effective communication to all relevant audiences. Neutrality is destroyed and strict scrutiny applies, if race is considered in an outreach strategy that confers a real benefit, such as a paid campus visit, or if consequential information is provided to some students and not others based on race.43

42 The race-neutral strategies outlined here are informed by relevant legal precedents and are derived from the following sources: Keith, A Step-by-Step Guide to Law-Attentive Design of Campus Diversity and Access Strategies (AAAS, 2011 & 2015); Coleman et al., The Playbook: A Guide to Assist Institutions of Higher Education in Evaluating Race- and Ethnicity-Neutral Policies in Support of Mission-Related Diversity Goals (October, 2014); Coleman et al., Race-Neutral Policies in Higher Education: From Theory to Action (College Board and EducationCounsel, June 2008). 43 The Supreme Court has not ruled on outreach in college enrollment. Federal appeals and trial courts have made distinctions between inclusive and exclusive outreach. See, e.g., Weser v. Glen, 190 F. Supp. 2d 384, 399 (E.D. N.Y. 2002)(upholding targeted outreach to build a diverse applicant pool for law school, citing Honadle for the


2. Inclusion Criterion — This strategy is defined by not considering an individual’s race or ethnicity, but considering his or her demonstrated commitment to, knowledge of, or record of breaking down barriers based on race and ethnicity— e.g., in learning, working, research, co- and extra- curricular activities, and social activities — as a plus factor in admissions, aid or other programs. Such commitment, knowledge or record may be demonstrated in, e.g., essays, interviews, or information on activities and experiences. 3. Experience Criterion — Similar to the Inclusion Criterion, this criterion is a plus factor for receipt of the benefits of admission, aid and other programs. It is defined by favoring individuals, regardless of their own race or ethnicity, who have meaningful experiences involving societal issues of race and ethnicity, who learned from those experiences, and whose experiences are expected to contribute to elevating understanding of such issues and enhancing the quality of learning and associated living and work outcomes for all students. 4. Socio-economic Background Criterion — This strategy is defined by its authentic aim to enhance socio-economic background access and diversity, and considers the experience of a lower socio-economic background, defined by income and wealth, as a plus factor in admission, aid or other programs. Depending on the demographics and particulars of an applicant pool, this criterion may also have an ancillary benefit of yielding some racial diversity. 5. Scaling Barriers Criterion – Closely related to the socio-economic criterion is the scaling barriers

criterion as a plus factor, including, e.g., first generation status, but not racial or ethnic status (as an

intentional aspect of design for an authentic sole focus on neutral barriers). The College Board has

created a web-accessed tool, the Environmental Context Dashboard that provides a “disadvantage level”

for each applicant, enabling that context to be considered in assessing their accomplishments and

promise.44 Due to societal barriers associated with race, this criterion also may yield more racial

diversity.

6. Macro Race- and Ethnicity- Consciousness — This strategy is identified by using macro-level (not individual) race- and ethnicity-consciousness as a plus factor in determining recipients of a benefit, e.g., applying percentage plans in racially segregated states, and criteria or collaborations based on racial-majority zip codes or schools, or attendance at HBCU’s or MSI’s. The Supreme Court has indicated in

proposition that race and sex targeted outreach to “’broaden a pool of qualified applicants and to encourage equal opportunity,’ but [that] do not confer a benefit or impose a burden do not implicate the Equal Protection Clause” and are “inclusive,” a distinction recognized by Adarand); c.f., Honadle v. University of Vermont and State Agricultural College, 56 F. Supp. 2d 419, 427-28 (D.Vt. 1999) (upholding targeted outreach in employment); Shuford v. Alabama State Board of Education, 897 F. Supp. 1535 (M.D. Ala. 1995) (upholding “inclusionary” targeted outreach to African Americans and women to expand the pool of qualified applicants for employment as part of an affirmative action plan; stating that “traditional” equal protection analysis should not apply, where race and sex are not considered in hiring decisions and the outreach does not have the effect of excluding qualified candidates from the pool on the basis of race or sex; but demonstrating strict scrutiny would be satisfied if it were to apply); Compare, e.g., MD/DCI/DE Broadcasters Ass’n v. Federal Communications Commission, 236 F.3d 13 (D.C. Cir. 2001) (applying strict scrutiny to an FCC rule requiring race-targeted outreach and tracking in licensee employment programs, which had the effect of requiring limited recruitment resources to be targeted to recruiting minorities, depriving others of information to compete for positions). 44 Camille Boxhill, More than Numbers, Context Matters: A Peek at College Board’s Environmental Context Dashboard Pilot, College Board (October 23, 2018), available at https://www.collegeboard.org/membership/all-access/counseling-admissions-financial-aid-academic/more-numbers-context-matters-peek .

https://www.collegeboard.org/membership/all-access/counseling-admissions-financial-aid-academic/more-numbers-context-matters-peek

https://www.collegeboard.org/membership/all-access/counseling-admissions-financial-aid-academic/more-numbers-context-matters-peek


dicta that such a percentage plan is not neutral, but has not addressed whether strict scrutiny would apply.45 7. Racial, Ethnicity or Sex Subject Matter Program Focus — This strategy is defined by focusing a program on race-related subject matter, but inviting anyone who is interested to attend.

8. Race- and Ethnicity- Blind Decision-making, with Race-Conscious or Exclusive But Fungible Resources Applied After — This strategy is defined by pooling fungible resources (e.g., aid dollars), most of which have no restrictions based on race, but some of which do; and making decisions regarding all details (e.g., type and amount of benefit, etc.) on the provision of those resources to individuals, without any consideration of their race or ethnicity. Only after that race-blind decision-making is final are the fungible resources matched to selected individuals. At that point, the restricted resources are allocated to the already selected students who also satisfy the restrictions and other resources are allocated to other already selected students—in effect, expanding the unrestricted resources available to others. 9. Aggregating Programs — This strategy is defined by putting aside any race-based participation criterion and inventorying and aggregating programs that offer similar benefits into a single, neutral program (e.g., mentoring, community building). Then, within the larger program, one or more focus groups related to issues of race or ethnicity are created, based on authentic, documented concerns of the institution. The focus groups are available to all but are designed to address issues of particular interest to students of color.

10. Educational Collaboration — This longer term strategy is defined by building pathways through educational collaboration agreements among like and complementary institutions, at various educational levels, without considering race or ethnicity of individuals. Unless there is a non-race based purpose, doing these collaborations with HBCUs or other schools with a majority of students of color, may be regarded as “macro race conscious.” See strategy 6. 11. Multivariable Regression Analyses – This strategy is useful for pathways, mentoring and community-building programs. The IHE performs multivariable regression analyses to demonstrate that, all other factors of success being equal (parental educational attainment level, high school GPA, standardized test scores, socio-economic income level, etc.), just being a member of a certain racial or ethnic group makes an individual statistically more likely to encounter difficulties in attaining a degree within four years, or in a particular field, and more likely to face academic challenges. These data may justify equalizing (neutral-in-effect) program support.

45Fisher II, 136 S. Ct. at 2213 (The “plan, though facially neutral, cannot be understood apart from its basic purpose, which is to boost minority enrollment. Percentage plans are ‘adopted with racially segregated neighborhoods and schools front and center stage” and “it is race consciousness, not blindness to race, that drives such plans.”)(citing Fisher I, 570 U.S. at 335 (GINSBERG, J., dissenting); See also, Parents Involved in Community Schools v. Seattle School Dist. No. 1, 551 U.S. 701, 789 (S.Ct. 2007)(KENNEDY, J., concurring)(“general recognition of the demographics of neighborhoods” when zoning for attendance, are unlikely to demand strict scrutiny because they do not define students by race and treat them differently at the individual level).


IV. Conclusion

This is a time for higher education to maintain its commitment to a broadly diverse student body for the

benefit of all students’ education, as well as for students’ and institutions’ contributions to society at

large. However, in order to avoid undermining existing Supreme Court precedent for the future, it is

important to pursue that commitment in a manner that satisfies existing precedent—with its most

recent requirements of evidentiary rigor concerning the availability and use of neutral strategies,

whether there is a need to consider race, and the manner and the extent to which race is considered.

Teams of program professionals from across an institution, working collaboratively with knowledgeable

legal counsel and institutional research professionals, are best equipped to be successful in this

endeavor. They can access already existing evidence and adapt existing processes (such as regularly

conducted student surveys and course evaluations) to provide additional evidence needed. Also,

intentionally connecting the admission program with the curricular and co-curricular programs to

proactively engage student diversity and enhance educational outcomes broadly demonstrates the

authenticity of an IHE’s diversity-associated educational goals and is a good practice to strengthen the

institution’s policy and legal position.

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