Jon Fansmith: Hello and welcome to
dotEDU. In this episode of our monthly interactive recording, I'm
joined by Pace University President, Marvin Krislov and ACE's General
Counsel Pete McDonough to talk about the approaching oral arguments
before the Supreme Court on the use of race in admissions. As always, we
appreciate your questions and suggestions for show ideas. You can share
those with us at podcast@acenet.edu. That's podcast@A-C-E-N-E-T.E-D-U.
Now, enjoy the conversation.
***
Jon Fansmith:
Hello and welcome to today's public policy pop-up. Thank you for
joining us. I'm Jon Fansmith in Government Relations here at ACE and
today I'm joined by two very special guests, ACE's General Counsel Peter
McDonough and Marvin Krislov, the President of Pace University and
formerly the Vice President and General Counsel at the University of
Michigan during the landmark 2003 admissions case, Grutter v. Bollinger.
As
you likely know, if you're participating in this pop-up, we are less
than a week away from the United States Supreme Court hearing oral
arguments in cases concerning the consideration of race in college
admissions. Today, we're going to take a deeper dive into these cases
and what to pay attention to as the Supreme Court takes them up. As a
reminder, if you are listening live, please send any questions in
through the chat function, and we'll do our best to address as many as
we can. This is obviously a very topical issue, one that there's been a
lot of interest and attention to, so we appreciate your questions.
Please send them in, and we will do our best with them. But to get us
started, Pete, I thought I would turn to you first and just say for the
audience, can you give us a quick thumbnail sketch of the cases the
Supreme Court will be considering?
Pete McDonough:
Sure. Thank you, Jon. So in two landmark cases that are before the
Supreme Court, that will actually have a total of nearly three hours of
oral argument on Halloween, a group called Students for Fair Admissions
alleges that Harvard and the University of North Carolina Chapel Hill
practice unlawful discrimination in their undergraduate admissions
processes. They say that both schools have put too much weight on race
to the benefit of Black and Latino applicants, and in the particular way
that these cases were constructed, also to the detriment of those who
are Asian American or White.
The universities not only denied
those charges, but at trials in the lower courts, they aggressively
defended their policies and practices, and in the lower courts, the
universities were successful after trial. Nearly three years ago,
Allison Burroughs, up in the District Court in Massachusetts, the
Federal District Court, ruled that Harvard's admissions program has been
designed and implemented in a manner that allows every application to
be reviewed in a holistic manner. Consistent, and this is important,
consistent with the guidance set forth by the Supreme Court. And then
nearly a year ago down in Federal District Court in North Carolina,
Judge Loretta Biggs similarly ruled saying UNC has met its burden of
demonstrating with clarity that its undergraduate admissions program
withstands strict scrutiny and is therefore constitutionally
permissible. Her honor said that UNC Chapel Hill has a compelling and
substantial interest in pursuing and attaining the educational benefits
of diversity. And she also said that the university has conducted and
continues to conduct good faith, serious consideration of race-neutral
strategies.
So again, looking at the rules of the road the Supreme
Court has set over the years, her Honor said, like up in Massachusetts,
that the institution has stayed within those rules. Interestingly, in
Massachusetts a Federal Appeals Court also ruled in favor of Harvard,
and though unusual, not unprecedented, the North Carolina decision went
fast tracking through directly to the Supreme Court without having an
intermediate appellate court rule. So here we have it, on Halloween, the
Supreme Court will finally take up these two cases that have been
through trials to see whether the Supreme Court will affirm what the
Federal District Courts have said or will they do something different.
Jon Fansmith:
Thanks, Pete. And Marvin, first of all, thank you for joining us,
really appreciate you being here today. Pete has given us a little bit
of the background the cases the Supreme Court's considering but maybe
stepping back a little bit further, the Supreme Court first looked at
race and admissions policies in the 1970s with University of California v. Bakke, but maybe it makes senses to pick up the story a little bit in 2003 when the Court reconsidered the Bakke decision in Michigan v. Gratz and Grutter cases. If you could give us a little bit of the timeline here and how that has worked out.
Marvin Krislov:
Great, well it's great to be here. Thank you very much. To be here on
this important topic is really an honor. As you all know, in 1978 the
Supreme Court did look at UC Davis' admissions, but used the Harvard
College model, what we now refer to as the holistic model, as their
template for how to go forward. And so higher education has been relying
on the Harvard model for many, many years obviously. In 2003 the
question was whether the Bakke decision, which had been a plurality of
the court, was still good law and remember that the Fifth Circuit in
Hopwood had struck down the University of Texas's admissions process. So
there was what we call a circuit conflict in this case between the
Sixth Circuit, which ruled in favor of the Michigan Law School process,
and the Fifth Circuit which had ruled against the University of Texas
process.
So what happened in 2003, there were two decisions. There
was the Grutter decision involving the Michigan Law School process, the
Gratz decision involving the undergrad process, and the court came down
and said, in very clear terms that diversity could be a compelling
state interest and that there were ways to narrowly tailor, and a
majority of the court found that the process we used at the Michigan Law
School was in fact lawful, and a majority of the court ruled that an
undergrad admissions process that we used in the Gratz case was not
lawful. So higher education got together, we had many, many discussions
across the sector, and people that needed to modify their processes did
so, modeling it on the process approved in Grutter. And I would say that
another result, if you will, or a follow on of that process was there
was continued action on the political front, and there were some state
referendum including one in Michigan that banned the use of race and
gender in some instances in state decisions, and so that affected public
universities in the states that had those referendum.
Jon Fansmith:
And that actually sets up my next question really nicely, Marvin,
because both you and Pete were General Counsels on campuses at the time
of that 2003 decision. Marvin, maybe sticking with you for a second, can
you talk a little bit about how college admissions have and haven't
changed since 2003? And really draw out what was the impact of the
Supreme Court's decision in that process for campuses.
Marvin Krislov:
Well, of course each college and university, and sometimes even each
part of a university, can have its own admission criteria, so a lot
depends really on the admission and the applicant pool. And my colleague
Jonathan Alger and I used to -- and I'm sure Jonathan, if you're not on
there, hi, we salute you -- would talk about the importance of thinking
about the mission and how the admissions process serves the mission.
But for many institutions, and it's represented by the wide range of
Amici that have been assembled here from the higher education community,
the pipeline of highly qualified students of color, particularly Black
and Latino and Native American students, continues to be a challenge,
and so there are some institutions that are well represented in Amici
that say that we need to consider race and ethnicity as one factor.
One
thing I draw everyone's attention to, I found two of the most
compelling Amici Briefs here were from the University of California and
the University of Michigan that talked about despite their efforts,
enormous efforts, to create pipeline projects, to do other things, to
create race neutral alternatives, if you will, because both California
and Michigan had barred the use of race, that they still were finding it
impossible to create the diverse student body that they wanted, and I
think those are really, really telling because if you want evidence in
front of the court of what this might look like, the California and
Michigan examples are really very concrete, and to my mind anyway, very
persuasive.
Jon Fansmith: And Pete, I might flip a
different aspect of that question to you as well, just heard about how
the admissions policies on campuses changed. How has the court itself?
How has it changed? It's been 19 years since that decision, obviously
recently a lot of changes to the personnel on the court. Can you talk a
little bit about the outlook of the court and what we can read from
that?
Pete McDonough: Sure. And let me just make
brief mention of what's happened between the Grutter decision that
Marvin was so instrumental in enabling to where we are today. Marvin had
mentioned the University of Texas, well, ultimately of course the
University of Texas at Austin became the focal point for the Supreme
Court's revisiting of these issues, first in 2013 and then in 2016. We
generally referred to it as Fisher I and Fisher II. And what the court
was really looking at, that's different perhaps than what the court will
look at next week, is whether the University of Texas had stayed within
the boundaries that had been articulated in Grutter. And in 2013 the
court, what's called Fisher I, started focusing on what rigor the courts
should have in looking at what the schools do. It used to be that's
folks presume that courts would give schools a pass if you will. If the
schools said they were doing the following things, the courts would say,
well, believe them, unless you prove otherwise. Fisher I was about, no,
courts, take a harder look than you might have in the past. And also
take a harder look at the race-neutral strategies that schools are
using. This was all about whether indeed taking race into account or
ethnicity into account in the admissions process was absolutely
necessary. So it went back down to Texas to prove, if you will, to the
lower courts that they were doing these things, and it came back up to
the Supreme Court, and in a five-four ruling, with Justice Kennedy
writing the majority opinion, Justice Kennedy and his colleagues on the
court said, yes, University of Texas is playing within the rules that
the court had set in this University of Michigan case.
And
importantly, Justice Kennedy also said that diversity is not a
one-size-fits-all concept, that different individual institutions may
have different conceptualizations of diversity for the institution.
Maybe even for a program within an institution, I would add. And Justice
Kennedy also spoke in his opinion about colleges and universities being
laboratories of experimentation, something that ACE and our association
colleagues emphasized in our brief, that we don't want in our judgment
to limit the ability of institutions to figure out how to best enable a
diverse student body. We want Kenyon to perhaps try to do something
that's different than Ohio State rather than trying to do it the exact
same way and see what works.
So now we have, Jon, to your point, a
Supreme Court that no longer has a Justice Kennedy, of course. It has
only four Justices that sat on that court in 2016 considering Fisher II.
Justices Sotomayor, Alito, Thomas, and Roberts. Justice Kagan had been a
part of the court at that time, but Justice Kagan did not participate
because she had had a role in her government service leading up to that
case. And so she, what we call, recused herself. So we had four
Justices, I think folks reliably view Justice Alito and Thomas as
forming a block of Justices that would rule against, if you will,
Harvard and UNC. Folks probably pretty reliably view Justice Sotomayor
as a Justice who would rule for them. Justice Roberts, good question.
Then
we have four new Justices, Jackson, Gorsuch, Kavanaugh and Barrett. And
interestingly, whatever one may think about Justices Gorsuch, Kavanaugh
and Barrett on this, I don't believe they have ruled in any types of
cases like this as appellate Justices. Not only in the education context
but in the broader context. So what do we need so to speak, if you're
counting, in order to overturn either the Harvard decision or the UNC
decision or both, five Justices have to vote to overturn it. So if we
can count to five and we presume Alito and Thomas are one and two. Who
would be three, four, and five among Roberts, Gorsuch, Kavanaugh, and
Barrett?
Jon Fansmith: Marvin, turning back to
you very briefly, and you I think touched on this a little bit in your
previous comments, but you referenced the mission, what is the mission
of these policies, the central goal? How do you fulfill the individual
mandate of diversifying a student body on a campus? Can you tell us a
little bit more now, looking at the current moment, the case, the
circumstances under which these cases are being brought, how these
policies function on campuses in 2022? And I think you teased this in
talking about the Amici that were followed, but are they still needed?
Marvin Krislov:
So I think each institution really needs to think about their
population, their pipeline, and their processes. I can tell you that
everybody that considers race and ethnicity is under very clear guidance
from the Supreme Court that has been reaffirmed as Peter and I have
talked about, really since 1978. And so there are a lot of discussions
about exactly how to consider race and ethnicity as one element to
consider it based on the individual not to have, it's long been clear
not to have quotas or set asides and to have everyone in one pool and to
be very holistic in the approach and looking at each individual person.
I think it's also clear we are at a moment in this country and where
the discussion of race, if anything, has become even more salient in the
past few years. Obviously we've had a racial reckoning and serious
discussions. And the pandemic has also revealed real significant racial
disparities in this country.
And so were I to talk to the Supreme
Court, I would hope that there would be a recognition of the moment we
are in and the important work that universities do in trying to ensure a
diverse education and diverse leadership in this country, which is
something that Justice O'Connor really relied on in her opinion in
Grutter.
Jon Fansmith: Great, thank you. And I
just referenced the Amici that had been filed, Pete. ACE on behalf of 39
other organizations filed an Amicus Brief in this case. One of the
things about that brief, it actually got quite a bit of attention,
including a write-up in The Washington Post, was because the
Brief raised some issues that hadn't previously gotten the same level of
attention before in this area. Could you talk a little bit about what
those points were and why ACE on behalf of the higher education
community chose to raise them?
Pete McDonough:
Sure. And just a little bit of context, a case like this before the
Supreme Court attracts lots of what are referred to as Amicus Briefs.
Friends of the court briefs. In this particular case, the way this
played out was, SFFA, the plaintiff in both these cases submitted their
brief in May, there were 34 Amicus Briefs that were submitted supporting
SFFA's position. Harvard and UNC submitted their briefs in July, there
were 58 Amicus Briefs submitted. And one of those briefs was by ACE and
as Jon, you said, dozens of other higher ed associations. It's something
that we've been doing for over 50 years now, picking cases that we
think have important national import and then trying to write a brief
that will be first picked up because if a Justice or a clerk doesn't
pick the brief up, it's never going to get read. And then perhaps
raising something in the brief that might move the needle.
Our
view has been that, that's part of our obligation and that's part of our
public service. And one of the things that we thought about this time
around was that it may not simply be that the issues are, did Harvard
and UNC as judges below ruled follow the rules of the road, but rather
whether the rules should be changed. And one of the things that we said
in our brief is that a reason why the rules should not and cannot
reasonably be changed is because there's something that borders on a
first amendment right of institutions that Justices have talked about in
the past in the context of what is more broadly referred to as academic
freedom, but it's about how to make decisions about, who to teach, what
to teach, how it should be taught. And we know that these issues are in
the really up the challenge these days across the country in different
contexts, but the who to teach part isn't irrelevant.
A diverse
student body is viewed by schools, by faculty, as a significant
component of the who to teach. And so there is a first amendment element
to those decisions. But perhaps even more important, and we really
emphasize this in our brief, is if the court were to rule that race or
ethnicity cannot be taken into account in an admissions process that's
holistic, that's really looking at the whole applicant, it would chill
the ability of the applicant to express his or her sense of self and it
would have an outsized impact on certain communities of people who --
and statistics show this, and we noted this in our brief -- have a
greater impact in their view of their race or ethnicity on their lived
experiences and on what they think they would bring in terms of
leadership skills and other contributions to campuses. So we think that
saying that you can't even identify yourself in the context of, for
example, your essay as having been impacted by your race or ethnicity in
the context of your lived experience, actually has a First Amendment
chilling effect as well.
So we talked about that. Then I'll close
with this and maybe it might be helpful to hear from Marvin about this,
but we also emphasize that while all of these cases to date have been in
the context of elite higher education, the rules are rules that apply
to all institutions in terms of making decisions about their applicants
for not only their undergraduate admissions and professional schools,
but perhaps for even individual programs within schools. And we cited
some of those examples as well.
Jon Fansmith:
Thanks Pete. And as we are looking forward to the oral arguments on
Halloween, interesting date for all this to be occurring too, I think
that's been remarked on a number of times. So Marvin, I'll flip it back
to you and say what are the top two or three things we should be looking
for? Justices show up in costumes for instance. Is that a possibility?
Marvin Krislov:
I have no comment on that, but what I would say is there are probably
three things that I would focus on. One is, as we've talked about
already, there are at least two issues here. One is, is student body
diversity still a compelling state interest? And then the second
question, which would be different in the two cases is, if so, are the
policies being narrowly tailored? And so the Justices could rule on the
basis of either of those prongs or both. And I think what's going to be
very interesting is because some Justices have not spoken on this issue,
to hear what the tenor of the argument is and is it focusing on the
compelling interest issue or narrow tailoring? A little bit of both and
from whom? Second, what's interesting to me also about this, are the
Amici and in particular there's one very powerful force that has
switched sides, if you will, since 2003, and that is the United States
Government. The Solicitor General in 2003, urged reversal of the Sixth
Circuit decision. And he was actually pressed very hard by some of the
Justices. And I just reread the argument for the position of the United
States on the military because we had introduced what I think or our
friends of the court had introduced a very compelling blockbuster
argument about the military and its importance that it attached to
having a diverse officer corps and the fact that in fact the service
academies had the same processes that we were talking about that were at
stake at Michigan. And there was a real analogy, the Amici argued
because it was also looking at a national student body and it was very
selective. And so the percentage plan, for instance, was not really
applicable. So what's going to happen here is the Solicitor General is
going to be asked to talk about the application to the military.
And
here this administration has chosen to take a position different than
that in 2003 and actually to say what our Amicus Brief had said, which
was that it's necessary for national security and that these processes
are very important. It's going to be interesting to see if that argument
gets attention from the court. We know there are different approaches
to that, but I'm going to be listening to that as well as discussion of
some of the other Amici of the business and community. But I think given
that it's state action and the Solicitor General has said these things
in their brief that it's going to be very important to see how that
plays out in an argument. And then the last thing I'd say is, does it
appear that the two arguments are going in different direction? Of
course, we know one Justice will be participating in UNC that won't be
participating in the Harvard case.
We know from our example, the
Justices are more than capable of making distinctions between different
systems. And so it'll be interesting to see if that is the direction
that seems to be going from the arguments. So those would be the three
things that are most on my mind.
Jon Fansmith:
Thanks Marvin. And Pete, I'll throw the same question to you, top two or
three things. And obviously Marvin had the advantage of going first,
but I imagine there's a few more you could think of too.
Pete McDonough:
Well with the caveat that I am very far from a Supreme Court scholar
and did not sit in the catbird seat that Marvin sat in to prepare and
work your way through one of these cases in such a successful way, I
think I'll raise it up a level. I'm going to be listening generally to
see whether that the time that's taken by the questions from the Supreme
Court Justices are more focused on trying to figure out whether both of
these schools did in fact play within the rules of the road, which
might signal that there could be more guidance provided on how to
continue to apply the rules and continue to consider race and ethnicity
in a holistic admissions process. Or will there be more questions and
discussion about what I'll call the fundamental questions. And
interestingly here, again with my caveat about my lack of Supreme Court
expertise, is my general understanding that Justices Kavanaugh and
Barrett joined Justice Thomas in being what some call originalists. Now
what does that mean? It's a theory of interpretation of legal text,
which would include the constitution that says, let's look at what the
words meant when written and interpret them based upon what they meant
then. So it's not an accident that the parties in this case are saying,
for example, and I'm just going to read a sentence from one of the
briefs, the framers of the 14th Amendment understood that race may be
considered to advance overriding governmental objectives. Will there be a
lot of conversation about the 1860s at oral argument? Will there be an
effort to, if you will, have these newer Justices who have not ruled in
this area, look at the cases through those lenses? And then the other
thing I'm going to look for, the second thing, is what I'd call, if not
this, then what? The other day, The Washington Post wrote what I thought was a terrific article about the broader issues and these cases that are being set up for oral argument.
And
one of the folks that was quoted, a 33-year-old former student with an
advanced degree said that he hesitated to endorse a prohibition on the
consideration of race saying, I don't want to completely ban something
and not have a solution. It has to be a better solution than what the
current process is. So I'll be listening to whether the Justices
actually agree with what's been, if you will, presumptive for decades,
which is diversity matters, diversity of diverse student bodies are
indeed significant and important. And as the court uses the term,
compelling. And if there really truly aren't race-neutral strategies
that can enable that in 2022, whether the court's willing to say, well,
we've got nothing better, but you still can't do this.
Jon Fansmith:
Yeah, and that's such a really interesting point Pete and Marvin, I
might actually throw that back to you in a way, we don't know for sure
how the court will rule here. I think as Pete's hinted, the expectations
is the court may look more critically at these policies on campuses,
but regardless of how they rule, student diversity is going to be a
compelling interest at Harvard and at UNC and at Pace and all of our
institutions. What in terms of planning going forward, contingency
planning, would college leaders be looking at if, again, as Pete
summarized this point, if we can't do X, how do we do Y? And just some
thoughts that you might have on that.
Marvin Krislov:
Well, I think that different schools and different universities are
going to have different considerations. Obviously admissions is only the
start of a process and I think we all are working through how to make
sure diverse students succeed. And particularly since the pandemic, I
think those questions are very difficult. I would say that in addition
to talking to the General Counsel, which is always a good thing to do, I
think that colleges and universities should think about what they're
doing that might fall into the bucket of race-neutral alternatives. And I
think Michigan and California's briefs give examples, but of course
they're going to be different in different places. I also think that at
the end of the day, one of the most important things for colleges and
universities to do is to engage deeply with public education K-12.
Because I think when we talk about pipeline and we talk about
opportunity, that is really where the beginning is.
And that I
know that we at Pace, for instance, have deep relationships in the
public school system, but I think that it's going to take a concerted
effort, regardless of how the court rules, to really try to restore and
not to just restore, but to really create the diversity that we want.
And I think that the discussion, again, regardless of how these court
cases turn out, probably needs to be on a state and a national level
because I, like all of you are seeing the literature about the reading
and math scores and a lot of the things that are very troubling at K-12.
And I think particularly if we look at who the last few years have been
affected, we know that Black and Brown students have been deeply
affected. So I think that there are a lot of things one can do on the
campus, but I actually think that part of the looking should be outside
of the campuses, to our society and universities can be leaders in
helping us become a better America as well.
Jon Fansmith:
That's a really great answer, and I'm going to come back to you in a
second, Marvin, but one of the questions we had come in while we've been
talking has been from Alex Castle who asked, if the court does strike
down the ability of institutions to consider race in admissions, he's
wondering how this outcome might impact broadly accessible institutions
such as community colleges or regional four-year publics, or do you
think this ruling, clearly the institutions that the suture brought
against were very selective institutions. Is this really just for those
institutions or what's the impact more broadly? Thoughts on that? And
Marvin or Pete, either one of you wants to chime in here.
Marvin Krislov:
I'll just say that I think as admissions goes, it may not affect those
institutions. For instance, the institution Pace University that I'm at,
does not consider race and ethnicity in admissions right now. However, I
do think that there are so many ways in which we need to work, not only
as institutions but as society, to think about race and ethnicity and
actually to try to design programs to address it. And so I think there
may be ramifications for programs outside of admissions. I think that it
would be not the right moment to talk about how this might play out,
but I could certainly imagine them. And I'm guessing Pete in his
leadership role would have the opportunity to talk about that as well.
Pete McDonough:
Well, I'll just offer a few examples that are in our briefs, so they're
public record. We noted the recruiting needs, for example, of a
university fine arts program that works with a historically Black dance
company, not knowing actually how they do their admissions, but that a
ruling that says you can't take race and ethnicity into account would
cascade down to the individual program level that would legally inhibit
the ability to take an applicant's race into account. If as an example,
it came down to one out of four applicants to admit to this historically
Black dance company. And it could be that you want to admit somebody
who's not Black to diversify that dance company, but you wouldn't be
permitted to do so with an adverse ruling. We also noted as school
devoted to contemporary Native American and Alaskan Native art and a
historically Black divinity school.
And I've said to some
colleagues, I was driving through a rural part of a state and passed a
state college that had a school of education and had me wondering
whether a problematic ruling, problematic from our vantage point, could
inhibit the ability of a school of education to put a thumb on the scale
for admittance of a Black male in an area of a state where there is a
dearth of Black male K-8 teachers. It might not be a school that takes
race into account at the broader admissions level, but might it take it
into account at the program level, at the graduate-program level.
Jon Fansmith:
Yeah. Thank you Pete. And we have been talking understandably about
admissions and the makeup of the student body, that's what the cases are
fundamentally about. But we've had some questions come in that have
talked about other possible aspects on institutions. And one I thought
was particularly interesting was to ask, if Grutter is overturned, what
impact might that have longer term on the diversity of the school's
faculty? And I would say probably not just faculty, the faculty and
staff, other things that go into the makeup of what a campus is beyond
just the student body?
Marvin Krislov: Pete, do
you want me to jump in? I will say that I think faculties in general
express a desire to be with diverse student bodies. I think students
generally express, at least that I'm familiar with, expressed a
preference to be with diverse student bodies. And so I could imagine
that if colleges and universities are not able to offer either a diverse
faculty or a diverse student body, people may well choose not to go
there or may have some challenges that they wouldn't otherwise. Whether
or not admissions decisions can affect hiring or not, there's a lot of
different laws that pertain to hiring that is admissions and I would
imagine that there will be a lot of discussions about whether a decision
does speak to hiring, but the laws are really pretty different for
those. For one thing, the law in hiring is generally governed by Title
VII, not constitutional law, although it could be governed by
constitutional law. So I won't go too far afield and say that I think
that having a diverse faculty in every way, in every way is core to most
of the higher education institutions that I'm familiar with.
Pete McDonough:
And then I'll just add a quick reference to what we sometimes call the
pipeline issue. At the end of that pipeline it's a very small percentage
of individuals that start out their college education that choose or
wish to be a faculty member. And if you will, squeeze the percentage or
number of racial and ethnic minorities at the beginning of the pipeline,
logic and I suspect data would show that looking down the line we're
going to squeeze and ultimately have less of an outcome at the end of
the pipeline. So we're going to do nothing to enable what is pretty much
perceived as still a challenge, which is creating a diverse faculty.
And we're probably going to do something to hurt that effort.
Jon Fansmith:
Thanks. And also, we've had a few questions on this same topic. It's
keeping in the theme of other possible impacts and apologies as always
if I mispronounce your name, but Javier Lesotho and Kristin Tobin both
asked questions related to the idea of, do you believe the issues to be
addressed by the Court in these cases will directly impact the financial
aid picture for students, beyond admissions of who gets in. But can you
award scholarships? Are there aided awards? Or choices institutions
make in terms of how they allocate funding that might be impacted
similarly by a decision here by the court? Either one of you, feel free.
Pete McDonough:
I'll say the most general statement and then turn to Marvin if I may,
Marvin, which is, while the Court's going to rule in the context of
admissions, the legal decision making and articulation will refer what
will apply to programs and activities of institutions. Deciding who to
admit is one of the activities of an institution. But the rules will be
the rules.
Marvin Krislov: Yeah, I would say that
it is quite possible. I know that many institutions have some
scholarship programs that consider underrepresented students to be given
a crack at certain scholarships. It may be one factor among many and if
the Court ruled in a particular way that might well affect them. And
that would be, or it might be an open question more likely. And so
that's more work for the general counsel's offices.
Pete McDonough:
And I think that underscores the importance of listening to what the
Justices are saying at oral argument and then reading really carefully
what they ultimately say in their decisions. Most of us will never read
the decisions. We will read reporting of the decisions. And I've been
thinking a little bit about two things that most of us have probably
seen on TV over the years. One is American Idol and the other is more
recently The Voice. And for those that recall The Voice, the judges
start with their backs to the contestants and then they press a button
once they've heard the voice and they turn around. American Idol, the
contestants walked out, you got to see who they were, what they looked
like, and then you made a decision about whether you wanted to advance
them to next round. Are the Justices going to say, geez, schools have to
be like The Voice. You have to somehow magically not pay any attention
to race or ethnicity, and you have to construct processes to not pay
attention to it.
Or are they going to say, we're not going to talk
about your processes, but we're just going to tell you that you can't
take it into account? Or are they going to continue to say what they've
said for decades, which is, you may take it into account, but we want to
reemphasize those rules of the road.
Jon Fansmith:
I will say, Pete, when we started this conversation, if you had asked
me to bet on the probability of The Voice and American Idol being
raised, I would've bet very long odds against that. So nice, that is a
very nice analogy. I like the way you worked that in bringing some pop
culture into the discussion. But staying again with this same theme,
there's been a number of questions about what could institutions
consider. And Bill Andresen brings up the idea about other categories
like geography, family income, other categories like that. And then
Catherine Hazelrig, again, apologies if mispronouncing, raise the idea
of, would the Court possibly rule in the use of proxies for race that
are considered in admission. So realize these are very speculative,
we're keeping with the theme of speculative questions for both of you,
Marvin, I might raise this first and say you don't necessarily need to
speak specifically to each of those, but the idea of how expansive the
Court ruling might be and what might they leave on the table for
institutions to look at?
Marvin Krislov: Well,
I'll just say that the rule should be that the Court is going to rely on
precedent and will only rule on the cases that are before it with a
well-developed record. Now, one of the cases comes with both a District
Court and a public decision. One just comes with a District Court
decision. I don't think that the Court is likely to rule on the smaller
issues or hypothetical issues. I don't know that, but that's not the
normal practice. I would think that one of the things that we've seen,
and Peter talked about it, is that after our cases in the Fisher case,
there was a fair level of scrutiny given to colleges, universities, and
there was some talk about deference. However, there was still the notion
that universities have the right to define their mission and to pursue
important goals such as compelling interest. And so I don't know, and of
course cases can be filed every day, but I don't think that we're going
to see that level of detail in whatever opinions the Court issues in
these cases.
Jon Fansmith: Anything you want to add to that answer?
Pete McDonough: No, I think that captures it very well.
Jon Fansmith:
Great. Well, we have a couple minutes left, so before we go, and
apologies, questions continue to come in, we can't get to all of them.
But before we go, I wanted to ask what I think is a probably very
important question of both of you. Obviously we don't know what the
outcome will be, but curious if you have any specific advice for
colleagues on campuses as to what to be thinking about, what to be
planning for, what should be top of mind as you go back to your day and
consider what the Court may be doing in this area?
Marvin Krislov:
Well, I'll just say that I think these cases have the potential to be
very emotional for a number of people on campus and perhaps people with
different points of view. And I think although many of us may not be in
session when the decision comes down likely in June, but it could come
in earlier, I think we need to be aware of how to bring our communities
together in whatever way is appropriate to talk about how we are going
to live and work together and how we can achieve our goals. And I think
that it's an important moment for campus leaders no matter what happens.
But I think virtually every institution in America knows that we are
becoming more and more racially and ethnically diverse. And that is
absolutely critical to our success in providing a great education to
people. So I think to keep that as our North Star, to try to figure out
how to get there, no matter what happens here.
Jon Fansmith: That's really well said. Pete.
Pete McDonough:
And I'd just add to that, if an institution's interest in its own
articulation of student body diversity is truly compelling, well it's
going to be pursued just as vigorously the day after the Supreme Court
rules, no matter how it rules. So the issue will be how. And so between
now and when the Court rules, it feels to me like every campus probably
should be and probably is asking itself, what does diversity really mean
to us? What kind of diversity advances our institutional mission, our
individual programmatic missions? Because the day after the decision,
either it's affirming or it's if you will, challenging the ability to
still pursue institutional diversity, but it's not going to change the
decision by institutions to pursue diversity. Just how. So there's a lot
to talk about that is focused on what has been presumptive, which is
the educational value of diversity. And to revisit, and if you will,
reconfirm between now and when the Court rules.
Jon Fansmith:
And we are at time, we're actually a little bit over time, I want to
thank you both. This has been an amazing discussion, very informative.
You probably are not watching the comments the way I do, but they are
pouring in terms of appreciation for both the scope and the clarity and
the ability to relate relatively difficult legal concepts into ways that
are understandable for people. So I know people are very appreciative,
much as I am for your time and attention and your participation here
today. So Marvin, Pete, thank you both so much and thanks everyone for
joining us for some really thoughtful and excellent questions. We will
be doing this again next month as we always do information on the
subject and the data that will be coming out. So keep an eye out for our
communications from ACE on that point. Enjoy the rest of your day.
Thanks again for joining us. Take care.
Pete McDonough: Thank you.
Sarah Spreitzer:
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