Strategies in Advancing Higher Education Diversity Goals: Legal - PowerPoint PPT Presentation

The Role of Race-Neutral Strategies in Advancing Higher Education Diversity Goals: Legal Imperatives and Policy Choices An Access and Diversity Collaborative Presentation In collaboration with EducationCounsel, LLC May 28, 2020

Introductions • Wendell Hall, Moderator whall@collegeboard.org • Senior Director, Higher Education, The College Board • Art Coleman art.coleman@educationcounsel.com • Managing Partner, EducationCounsel, LLC. • Former U.S. Department of Education Deputy Assistant Secretary for Civil Rights • Jamie Lewis Keith jamie.keith@educationcounsel.com • Partner, EducationCounsel, LLC • Former Primary Counsel, MIT; Vice-President, General Counsel and Secretary, University of Florida 2

Session Overview I. Legal Baselines: Rules of the Road II. Litigation Landscape: Takeaways from UNC and Harvard Cases III. The Playbook: A Resource to Guide Action IV. ADC Services & Resources 3

Reflections on • Educational, career opportunities Impact COVID-19 • The impact of income/wealth • Housing and environmental conditions on Implications • Healthcare • Mental health Inequities • Family/community support The pandemic shines a light… • Criminal justice A • Elevate understanding • Emphasize mission-necessity and relationship of Teachable diversity initiatives • Emphasize moral imperative Key Resources: Moment • Inspire commitment to ameliorate inequity https://professionals.collegeboard. org/higher-ed/covid-19-updates. 4

HARVARD UNC Snapshot of Cases Appeal to 1 st Circuit November 9, 2020 Court of Appeals Trial Common points of focus emerge… District Court Denial District Court Ruling of Summary in Favor of Harvard on Judgment to All All Counts Parties BOTH: Significant focus on the necessity of considering race and viable race-neutral alternatives 5

I. Legal Baselines: Rules of the Road

Disclaimers Lawyers…just sayin’ Conduct It depends. It’s a question of Setting evidence. Actors Facts matter. Institutional (Nothing in this discussion constitutes institution-specific legal advice .) Action 7

Relevant Federal Law Equal Protection Clause/ Title VI • Discrimination on the basis of race and ethnicity Many other factors are central to diversity interests, but federal law requires strict scrutiny when race and ethnicity of individuals are considerations in decisions that confer benefits or opportunities. Strict in Theory ≠ Fatal in Fact 8

Strict Scrutiny: The Elements Strict Scrutiny Policy Tailored Design to Advance Compelling Interests Interests Precisely Necessity Neutral Strategies Educational benefits of diversity Impact Flexibility Minimal adverse impact on non- beneficiaries Periodic review 9

Is the Consideration of Race 3. Could a workable alternative (or Necessary? Key Questions alternatives) achieve the same results as race- conscious policies about 4. If neutral strategies as well and at tolerable alone are inadequate, 2. How has the administrative expense? could the institution use institution seriously a combination of neutral considered race-neutral strategies and a lesser alternatives? consideration of race in other policies? Necessity 5. Are the race- 1. Is existing diversity conscious strategies in for race- adequate to produce the use effective to increase desired educational diversity as needed to conscious experience/outcomes create beneficial for all students? educational experiences policies for all students? 10

Relevant State Laws Voter Initiatives/ Executive Orders • Resource: Beyond Federal Law: Trends and Principles Associated with State Laws Banning the Consideration of Race, Ethnicity, and Sex Among Public Education Institutions (AAAS and EducationCounsel, 2012) Source: Kahlenberg, R.D. 2014. The Future of Affirmative Action . (n.p.): Lumina Foundation and The Century Foundation, Inc. Available at: https://tcf.org/content/report/future-of-affirmative-action/ 11

Race-Conscious v. Race-Neutral: Threshold Questions • Is the policy sufficiently motivated by race? Intent (Related: Does it have other substantial, authentic aims?) Effect • Does the policy confer material benefits or opportunities based on the beneficiary’s race? 12

II. The Litigation Landscape The UNC and Harvard Cases & Takeaways

SFFA v. . UNC Summary judgment denied on all counts to all parties. On to trial… SFFA: Failure to articulate SFFA: Any consideration of SFFA: Failure to pursue viable with sufficient clarity and race in admissions is unlawful race-neutral alternatives precision diversity objectives • Questions • If consideration of • Sufficient diversity authenticity of the race allowed, could be achieved compelling interest failure to use race without race as a plus factor in admissions 14

What We Know • UNC’s establishment of working group and formal committee to examine neutral alternatives UNC Process • UNC’s documented consideration of various alternatives, including underlying analyses and research of national scope UNC Record • 8 viable alternatives, not pursued SFFA Claims 15

SFFA v. . Harvard rd Judgment in favor of Harvard on all counts. Decision has been appealed; briefs have been filed. No intentional Appropriate consideration No failure to pursue viable discrimination against Asian of race in admissions race-neutral alternatives American applicants • No goals associated • Absence of evidence • Ample investment in with racial balancing of racial animus, no outreach, recruitment, pattern of aid and consideration • Race not considered stereotyping, etc. of neutral admission as a mechanical factor criteria in the admissions • Statistical models process inconclusive; bias • Harvard is justified to could surface from reject SFFA’s proposed • Tracking race in other sources-- alternatives process is not fatal indeterminate 16

Concerns about Sufficient neutral Alternatives’ alternatives’ as investments negative impact “proxies” for race Logistical Reached or …on diversity : challenges and nearly reached eliminating early proxy questions re “maximum action and tips for “neighborhood ALDC returns” cluster” and zip • Significant code strategy outreach “seemingly • “Exceptionally …on mission/ designed to achieve generous” academic standards : racial diversity eliminating financial aid based on SES” standardized testing The Core of the Court’s Rationales Rejecting SFFA’s … on feasibility : Neutral Alternatives Admitting top-ranked HS students or by zip code (over- 17 enrollment)

SFFA HARVARD Key Takeaways • Focuses on one • Provides 4-point alternative — rebuttal on Simulation D alternative challenged • Challenges process re • Establishes Points on Appeal consideration of record of re Race-Neutral neutral consideration/ Alternatives alternatives actual pursuit of neutral strategies 18

Key Takeaways The Focus of SFFA’s Appellate Argument 19

The Issue Important Considerations ▪ Committees established, with Process Key Takeaways academic/faculty input Design & ▪ Timing as an indicator of Timing authenticity ▪ Documentation of inventory Record of ▪ Evaluation of inventory & research Decision- regarding other alternatives making Process & ▪ Action — including modeling effects Substance Mission Evidence that decisions are shaped by mission-based goals and based on Alignment evidence Record of Maintenance of underlying research and studies informing judgments 20 Evidence

III. “The Playbook”— A Resource to Guide Action

Key Foundations for Making *Your* Mission Merit Case Enrollment Evaluation Over Strategy Time Multidisciplinary Process 22

Strategies to • Analysis of actual or hypothetical pools to evaluate diversity if only Modeling Consider neutral criteria considered • See Applications Quest http://www.applicationsquest.org • Clustering of programs, with elimination of any consideration of Aggregation race in selection; then establishment of race focus • Fungible resources with same basic purpose pooled for race-blind Pooling determination; then matching to already-selected students 23

Socioeconomic The Plays Status Percent Plans *Landscape: Race-Attentive and Additional Inclusive Outreach and Geographic Diversity contextual Recruitment information about Educational applicants’ high Collaboration schools and Agreements Experience or Service Flexible Admission and neighborhoods Commitment Aid Criteria and Test Associated with Race Use Cohort Programs First-Generation Students and Other Special Circumstances 24

The Cross-Walk: Core Design Elements Plays UT Harvard UNC Recruitment/ Significant Significant TBD Outreach investment/ investment/ Relevant Relevant Admission Criteria No requirement to SFFA raised; TBD — SFFA raised Including Test Use alter standards No requirement to [∆ SAT cut and alter standards use] 25

The Cross-Walk: Criteria Plays UT Harvard UNC SES Relevant Relevant TBD Geography See % Plan ↓ Relevant TBD Additional “place based quota” not required Experience/ Present generally Present generally Not apparent Service 1 st Generation + Not apparent Present generally Not apparent 26