Wednesday, February 4, 2015
Mary C. Nicoletta's student note, Proposed Legal Constraints on Private Student Lenders, 68 Vand. L. Rev. 225 (Jan. 2015), is now available on westlaw. She offers this summary:
This Note considers regulatory methods for curbing the high and variable interest rates offered by private student lenders. Part II examines the mechanics of private student loans, describes existing regulations that govern private student lenders, and identifies recent disputes about government-lender relationships. Part III considers a number of methods for addressing high-cost student lending and draws upon the authority of the Consumer Financial Protection Bureau and its regulations governing other types of lending. Part IV proposes, in the short term, instituting enhanced disclosure for high-cost loans and incentivizing lender-school partnerships to help students find low-cost options before they commit to borrowing. In the long term, Part IV argues that lenders should be required to consider a student's projected ability to repay an educational loan before lending. Using ability-to-repay as a prerequisite could decrease overborrowing and default rates and allow students to enter the job market with debt loads that they realistically can repay. As described in Part III, this framework, along with a qualified-loan safe harbor for consumer-friendly mortgages, was implemented for mortgage lenders following the recent financial crisis. Part IV thus proposes that regulators formulate and test an ability-to-repay calculation and a qualified-loan structure that would provide students similar protections as mortgagors currently receive.
Tuesday, January 20, 2015
Monday, December 29, 2014
Title IX compliance will be a critical topic at Stetson University’s National Conference on Law and Higher Education Feb. 12-16, 2015, in Orlando, Florida. From the announcement:
Stetson’s definitive annual conference, now in its 36th year, will bring national leading experts in higher education to Orlando to discuss critical developments in higher education law and policy, particulary in Title IX compliance in the wake of campus rape and sexual assault scandals. Conference participants will participate in rigorous boot camps, workshops, intensive sessions and collaboration with peers and experts. “Every educator in America should be concerned with making college and university campuses safer learning environments, and protecting the campus community from sexual predators. Anyone who works in higher education can benefit from this year’s conference, focused on developing the tools to respond,” said conference chair and Professor of Law Peter F. Lake. Professor Lake is the Charles A. Dana Chair and director of Stetson’s Center for Excellence in Higher Education Law and Policy. For more information, call 727-562-7793 or email email@example.com.
Monday, November 24, 2014
This from the Economic Policy Institute:
On Friday, December 5, at 10:00 a.m. ET, the Economic Policy Institute will host a debate between noted scholars on affirmative action in American higher education, featuring Georgetown University Law Professor Sheryll Cashin and Richard Rothstein, a research associate at EPI. They will be joined by American University Law Professor Lia Epperson, and Catharine Bond Hill, president of Vassar College.
Monday, October 27, 2014
Last year, the district court in Maryland found the state's higher education system in violation of longstanding desegregation precedent. The state had duplicated several programs in the state that had led to the further racial stratification and segregation in the system. See here for me earlier post on the case.
The National Bar Association is sponsoring a panel on the continuing developments and issues in the case this Friday. Participants include Jay Augustine, Adjunct Professor, Southern University Law Center; John Brittain, Professor of Law, David A. Clarke School of Law, University of the District of Columbia; Dr. Ronald Mason, President, Southern University System, and Danielle R. Holley-Walker, Dean & Professor of Law, Howard University School of Law. Southern University Law Center is hosting the discussion. Contact Professor Tracie Woods, firstname.lastname@example.org (225) 771-4680, for more information.
Thursday, October 2, 2014
In a survey of 982 females at the University of Oregon, ten percent indicate having been raped during their time at the school. Very few, however, reported the incident to a university official. I can't say anything more than that those numbers are mind boggling, and the fact the University of Oregon was not on the Department of Education's list of 55 universities and colleges to investigate suggests that there was a flaw in the Department's identification method or Oregon's numbers are not as egregious as other schools. I tend toward the latter explanation, which is even more disturbing. More here.
Thursday, September 4, 2014
Twinette Johnson's new article, Going Back to the Drawing Board: Re-Entrenching the Higher Education Act to Restore Its Historical Policy of Access, 45 Tol. L. Rev. 545 (2014), is now in print and available electronically. She offers this summary in her abstract:
This article explores both the historical entrenchment of the Higher Education Act (“HEA” or “the Act”) and ongoing attempts to retrench it. In it, I argue that Congress should return the HEA to its historical roots and enact reauthorizing legislation that will set the course for re-entrenching the Act and its historical policy. This re-entrenching will properly set the focus of the Act on providing widespread higher education access by creating and implementing new pathways (funding and otherwise) to that access.
Tuesday, July 29, 2014
The Department of Education recently exempted three colleges from Title IX's provision prohibiting discrimination against transgender and gender-nonconforming students. George Fox University (Oregon), Simpson University (California), and Spring Arbor University (Michigan), The exemptions come just three months after the Department of Education's Office for Civil Rights issued a guidance letter to colleges on sexual violence that included transgender students as a protected group under Title IX. The colleges were controlled by a religious organization, a ED spokesperson told the Huffington Post yesterday, and Title IX exempts such organizations from compliance if admitting a student or allowing a student to remain at their institutions would be inconsistent with their religious tenets. While all three colleges requested exemptions from admissions and accomodations for transgender students, one of the schools, Spring Arbor, was also granted permission to discipline students for same-sex "activity," extramarital sex, single parent pregnancies, and having abortions. Professor Kristine E. Newhall (UMass Amherst) told the Huffington Post that the concern is not the statutory exemption, but Education Department's lack of clear criteria "about what a school must meet to show [that it is] controlled by a religious organization." Read more here.
Monday, July 28, 2014
AALS Section on Education Law Call for Papers, January 2015 Annual Meeting, Washington, DC
The Section on Education Law of the Association of American Law Schools issues this call for papers in connection with its program at the AALS annual meeting Jan. 2nd-5th, 2015 in Washington, DC. The program topic is “The Higher Education Act at 50.”
When President Lyndon Johnson signed the Higher Education Act in San Marcos, TX on November 8, 1965, he said to the assembled crowd, “And when you look into the faces of your students and your children and your grandchildren, tell them that you were there when it began. Tell them that a promise has been made to them. Tell them that the leadership of your country believes it is the obligation of your Nation to provide and permit and assist every child born in these borders to receive all the education that he can take.” This Program will take stock of that promise on the fiftieth anniversary of its making. A distinguished panel of higher education law professors and policy makers, to include Professor Michael Olivas of the University of Houston Law Center, Professor Philip Schrag of Georgetown University Law Center, and Catherine Lhamon, the Assistant Secretary of Education for the Office for Civil Rights, will consider and discuss the financial, educational, and civil rights aspects of the HEA and its subsequent amendments as we move into the second half-century of its existence.
Thursday, July 24, 2014
Professor Dan Subotnik (Touro Law) sent us An Anti-Rape Measure Too Far? analyzing a bill in the California legislature, which, if it becomes law, is likely to become as noteworthy as Antioch College’s Sexual Offense Prevention Policy. California SB 967 would require college students to secure “affirmative consent” from their partners before having sex. "Affirmative consent” is defined in the bill as “affirmative, conscious, and voluntary agreement to engage in sexual activity.” The bill’s author, California state senator Kevin de Leon, told the Washington Times that SB 967 “will change the equation so the system is not stacked against survivors by establishing an affirmative consent policy to make it clear that only ‘yes’ means ‘yes.’” The bill’s supporters describe SB 967 as providing “clearer guidance” on rape prevention and providing justice and adequate services to victims. Opponents criticize the bill as “unnecessary, misdirected and vague” and likely to “result in the unfair treatment of men,” as noted in its synopsis here. If the bill becomes law, colleges must use the legislature’s definition of consent in their sexual assault policies or risk losing state funding for student financial aid. Readers may recall the deep controversies that campus rape laws and sexual assault policies can engender, including concerns about privacy, due process, and the rights of victims and the accused.
In his piece, Prof. Subotnik concludes that the reality and psychology of sexual encounters confound attempts to regulate sex through campus affirmative consent laws. Read An Anti-Rape Measure Too Far after the jump.
Tuesday, July 22, 2014
Much of the federal government's interest in creating accountability standards for higher education focuses on the cost and student loan debt. The media has recently highlighted the rising amount of student debt. However, a recent report gives a different perspective to the student loan debate: that the rising interest in protecting students against substantial loan debt is a factor of more upper and middle class students needing to take out loans. A recent post at Brookings Institution states "findings [that] suggest that the recent surge in attention paid to student loans may
stem in part from increasing debt among high-income households." The author, Matthew M. Chingos, explains:
An era in which students from low-income families used loans to supplement grants has given way to a system dominated by the wealthiest Americans, many of whom were born to affluent parents. This trend supports the theory that the intensification of the public debate over student loans may be due in part to the increased prevalence of debt among more affluent households. Given the unlikely reversal of this trend, political pressure on policymakers to offer broad-based “relief” to borrowers, such as a reduction in interest rates, may continue to intensify. Absent credible evidence that such a policy would have a large “trickle-down” effect on the broader economy, policymakers should instead focus on the core mission of the federal loan program: promoting access to higher education on terms that are fair to both students and taxpayers.
Read Why Student Loan Rhetoric Doesn’t Match the Facts here.
Tuesday, May 20, 2014
Suzanne Mettler has written a new book, Degress of Inequality: How Higher Education Politics Sabotaged the American Dream. She argues that our higher education system, rather than creating a opportunity for the disadvantaged or leveling the field somewhat, skews it further. Her promotion materials summarize the book as follows:
America’s higher education system is failing its students. In the space of a generation, we have gone from being the best-educated society in the world to one surpassed by eleven other nations in college graduation rates. Higher education is evolving into a caste system with separate and unequal tiers that take in students from different socio-economic backgrounds and leave them more unequal than when they first enrolled.
Until the 1970s, the United States had a proud history of promoting higher education for its citizens. The Morrill Act, the G.I. Bill and Pell Grants enabled Americans from across the income spectrum to attend college and the nation led the world in the percentage of young adults with baccalaureate degrees. Yet since 1980, progress has stalled. Young adults from low to middle income families are not much more likely to graduate from college than four decades ago. When less advantaged students do attend, they are largely sequestered into inferior and often profit-driven institutions, from which many emerge without degrees—and shouldering crushing levels of debt.
In Degrees of Inequality, acclaimed political scientist Suzanne Mettler explains why the system has gone so horribly wrong and why the American Dream is increasingly out of reach for so many. In her eye-opening account, she illuminates how political partisanship has overshadowed America’s commitment to equal access to higher education. As politicians capitulate to corporate interests, owners of for-profit colleges benefit, but for far too many students, higher education leaves them with little besides crippling student loan debt. Meanwhile, the nation’s public universities have shifted the burden of rising costs onto students. In an era when a college degree is more linked than ever before to individual—and societal—well-being, these pressures conspire to make it increasingly difficult for students to stay in school long enough to graduate.
By abandoning their commitment to students, politicians are imperiling our highest ideals as a nation. Degrees of Inequality offers an impassioned call to reform a higher education system that has come to exacerbate, rather than mitigate, socioeconomic inequality in America.
For those of us teaching in higher education, the book will likely ring painfully true. The most obvious problem in law school, for instance, is the almost complete disappearance of need based aid. Those students least in need of aid more frequently go to law school for free, or near free, and tend to land higher paying jobs upon graduation. For these students, law school is an extremely great deal. Those students more in need get almost nothing and often secure lower paying jobs. None of this is to say that students receiving scholarships have not earned them, nor that law school fails to deliver substantial benefits to high need students. My only point is that students who "need" help rarely get it in law school today.
For an interview with Mettler, see here.
Monday, April 28, 2014
The Supreme Court’s recent decision in Schuette v. Coalition to Defend Affirmative Action affirmed the ability of states to ban the use of racial preferences in state institutions of higher education. Although those committed to diversity in higher education view this decision as further evidence of the erosion and eventual demise of affirmative action, this decision also should serve as a wake-up call that the nation must undertake a renewed effort to close the opportunity gap in elementary and secondary education.
The Supreme Court has been tolling the death knell for affirmative action for many years. The Schuette decision is merely further evidence that the end is not far off. In the 2003 decision in Grutter v. Bollinger, the court approved the consideration of race as one factor among many in creating a diverse class at the University of Michigan Law School. However, Justice Sandra Day O’Connor’s majority opinion noted that given the growing number of minority applicants who had earned high test scores and grades, “[w]e expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”
In the 2013 decision in Fisher v. University of Texas, the Supreme Court permitted colleges and universities to prove their continued need to sometimes consider the race of students to admit a diverse student body. Yet, the court’s constitutional analysis can trap many institutions between the Scylla of insufficient evidence on the racial composition needed to reap the benefits of diversity, and the Charybdis of specific evidence regarding how much diversity they seek, which the court is likely to label a quota.
Undoubtedly, Schuette’s approval of state bans on racial preferences will advance the eventual demise of affirmative action by removing all constitutional barriers to such bans. Schuette also will embolden supporters of those bans to seek similar bans in other states.
The erosion and impending demise of affirmative action must serve as a reminder that the continued need to use affirmative action is caused in substantial part by the nation’s failure to remedy the opportunity gap that continues to plague our nation’s elementary and secondary schools. Far too many minority students and poor students of all races continue to attend schools with the least effective teachers, inadequate resources and poorly maintained facilities when compared to their more affluent peers, as President Obama’s Equity and Excellence Commission report confirmed last year.
The need to end this deeply entrenched opportunity gap is a moral imperative for the foundation of a just and equitable society. Justice Anthony Kennedy acknowledged this when he stated that “[t]his Nation has a moral and ethical obligation to fulfill its historic commitment to creating an integrated society that ensures equal opportunity for all of its children” in his 2007 opinion in Parents Involved in Community Schools v. Seattle School District.
Moreover, both those who support affirmative action and those who seek to abolish it bear the heavy costs of the educational opportunity gap. Research establishes that the current failure to provide an adequate education to all schoolchildren costs the nation billions in lost taxes, public assistance, criminal justice support and health care costs. For instance, the nation forfeits $156 billion in income and tax revenues during the life span of each cohort of students who do not graduate from high school. (“The Price We Pay: Economic And Social Consequences Of Inadequate Education,” Clive R. Belfield & Henry M. Levin, eds. 2007). Furthermore, the cost of the opportunity gap will increasingly weaken our economy as the changing economy demands more workers with higher-level skills and the number of Hispanic and African-American children becomes an increasingly larger share of the school-age population.
Affirmative action is in part a bandage that seeks to reduce the hemorrhaging from our broken elementary and secondary school system. It is important to keep this bandage in place as long as possible or the hemorrhaging will increase. Therefore, those committed to diverse institutions of higher education and a diverse workforce must continue to push for race-sensitive approaches as well as race-neutral means to achieve diversity in higher education.
In addition to these critical efforts, the United States must wake up to the need for comprehensive reforms that close the educational opportunity gap. Scholars, activists, business leaders and ultimately the public must call on leaders in Congress and the White House, as well as in state legislatures and local school boards, to take action to close this gap. Ultimately, if the nation fails to take on this challenge now, it does so at its own peril.
Kimberly Jenkins Robinson is a professor at the University of Richmond School of Law and a senior fellow at the Charles Hamilton Houston Institute for Race and Justice at Harvard Law School. Contact her at email@example.com.
Tuesday, March 18, 2014
The Department of Education announced new regulations Friday for-profit career institutions to show that they are preparing students for gainful employment. This is the Obama administration's second round of "gainful employment" rulemaking after a federal district court struck down the ED's first set of regulations, Program Integrity, in 2012. In Ass'n of Private Colleges & Univ. v. Duncan, 870 F.Supp.2d 133 (D.D.C. 2012), the U.S. District Court for the District of Columbia vacated the regulations as arbitrary because the ED had not given a “reasoned explanation” for its student debt repayment rate test that required that at least 35% of an institution's graduates had to be repaying their student loans for a for-profit to qualify for Title IV student aid. The Department said the 35% rate identified the lowest-performing quarter of for-profit institutions. The ED has set new metrics in its latest proposed regulations. From the ED's statement on Friday, the new regulations require that "the estimated annual loan payment of typical [career college] graduates does not exceed 20 percent of their discretionary earnings or 8 percent of their total earnings and the default rate for former students does not exceed 30 percent" and that "institutions must publicly disclose information about the program costs, debt, and performance of their gainful employment programs so that students can make informed decisions." The administration is targeting student outcomes in some of the nation's for-profit colleges, which represent about 13 percent of the total higher education population, but about 31 percent of all student loans and nearly half of all loan defaults. The administration says that 72% of for-profit gainful employment programs produced graduates that earned less than high school dropouts. Read the proposed regulations here.
Tuesday, March 11, 2014
I have long argued that once federal student loan debtors began to have their loan balances forgiven through the various income-based repayment options the whole narrative about student loans would change. All of a sudden, student loan debtors would go from being hapless victims of an exploitive system to being crafty beneficiaries of an exploitable system. It has been my prediction that this shift in narrative would result in political backlash against the forgiveness provisions that would result in a tightening of eligibility requirements—or the doing away with the provisions altogether.
We have seen this type of overreaction before. Up until the 1970s, student loan debt was dischargeable in bankruptcy to the same extent as other forms of unsecured debt. But sensationalized stories about doctors and lawyers receiving discharges just before embarking on lucrative careers prompted Congress to impose increasingly onerous restrictions on the discharge of student loan debt. And while the perceived impossibility of student loan discharge is overblown, there are undoubtedly debtors facing genuine hardships who are not afforded the benefit of a fresh start through bankruptcy, all because a few debtors abused the system.
Unfortunately, the Obama Administration’s newly-released budget proposal appears intent on forestalling any media backlash about the forgiveness provisions. One specific proposal calls for capping the eligibility for Public Service Loan Forgiveness (PSLF) at the maximum aggregate loan limit for independent undergraduate students—currently $57,500. The effect of such a cap would be to essentially render graduate and professional school loans ineligible for forgiveness through the PSLF program.
As it currently works, PSLF allows debtors who qualify for hardship, or income-based, payments to seek forgiveness of their student loan debts after making 120 monthly payments while employed in an eligible public or non-profit sector job. The program was signed into law during the waning days of the George W. Bush presidency, as part of the College Cost Reduction Act. The twin purposes of PSLF were 1) to provide relief for debtors struggling to make student loan payments and 2) to incentivize employment in the public and non-profit sectors, especially among those who may have more lucrative options in the private sector.
There are no caps on the amount of debt that is eligible for forgiveness, a logical omission given the high cost of higher education. But if the proposed changes are adopted, any amount above $57,500 would be subject to a 25-year window (300 monthly payments, with any forgiven amounts counted as income for the tax year in which they are forgiven). This cap would render the program ineffective at serving either of its original purposes—especially for individuals with graduate and professional school debt.
But once again, there is a theme here. In 2011, the President signed a bill ending student loan interest subsidies for needy graduate and professional school students. The ostensible reason was to shore up the need-based Pell Grant program, which was under fire by Republicans. Unfortunately, this political compromise is costing the typical needy graduate or professional school student thousands of dollars in additional accrued interest—an absurd proposition when you consider that the federal government generated $66 billion in profit from student loan debtors between 2007 and 2012.
The stated justification for capping PSLF is to keep schools from increasing tuition. In other words, the Administration wants to punish students for the “sins” of their schools. It seems that Georgetown Law School’s manipulation of its tuition rate to take full advantage of the PSLF program means that every student who pursues an educational path that ends up costing more than $57,500 will have to suffer. This is a wrongheaded and patently unfair approach.
There are perverse political forces lurking beneath the surface as well. There has always been suspicion of the federal student aid program. So "reforms" typically work against students. Additionally, this Administration seems to believe that graduate and professional school students are undeserving of support and hardship relief. The reality, however, is very different.
Not every graduate and professional school student is a trust fund baby or destined for a lucrative career, especially not early on. Many of these students struggle with the same types of hardships facing the neediest undergraduate students—and when it comes to student debt, these students are carrying the heaviest burdens. In higher education, the vast majority of students must pay to play. Unfortunately, the game is expensive—often much more than $57,500. Moreover, when you consider that student loans are often the only means of financing education for individuals from poor backgrounds, the effect of this proposal would be most severe on those who already have the least.
It is irresponsible to try to control college costs on the backs of students, not to mention baffling that this Administration would open budget negotiations with such a willingness to sacrifice needy students. The budget proposal has been characterized as “dead on arrival” (largely because of its attempts to expand the social safety net in other areas); we should all hope that provisions such as the PSLF cap are not selectively resurrected.
Thursday, December 5, 2013
Aaron Taylor's two recent posts with us call into question the sincerity of some elite universities that profess a commitment to merit based admissions. His posts suggest a commitment to money. Unfortunately, one of the nation's very finest public universities is heading toward that camp. The University of Virginia is one of the least socioeconomically diverse colleges in the country. According to the study in LaJuana's post this morning, only the University of Delaware has a smaller percentage of students attending on Pell Grants. To UVA's credit, it, like the Stanfords of the world, previously adopted an extremely generous financial aid package for low-income students, whereby it would cover the full financial need of students whose families fell below 200% of the poverty line. Announcements of these sorts almost always gain universities praise on NPR. In fact, I recall a slew of these stories in recent years ago, as the elites sought to outdo one another.
As critics often point out, however, these programs often have little effect on these universities because students from that income bracket rarely gain admission to these top universities. In other words, it is not a diversity in admissions program, but rather financial aid premised on making it through the admissions process.
The problem for UVA is that its program worked too well. Low-income students have gained admission and taken the university up on its offer. "The proportion of students eligible for need-based aid under the program has grown from 24 percent to 33 percent. And the share of the student body that is low income has risen from 6.5 percent to 8.9 percent." UVA's response: end its no-loan policy for low-income students next year. The most flattering version of this story is that UVA is a victim of its own success and now cannot afford the program. Given the wealth of UVA and its overall budget, Ed Central doubts this. The least flattering version is that UVA was more interested in the public relations benefits of the program than diversity.
Tuesday, December 3, 2013
Forbes recently published an editorial entitled, The Farce of Meritocracy: Why Legacy Admission Might Actually Be a Good Thing. The thesis of the piece is that legacy admissions preferences are so absurd that they may actually be useful in exposing the farcical nature of our meritocratic notions. While I agree that legacy preferences are antithetical to conceptions of merit, I strongly disagree that they are in any way “a good thing.”
As the author points out, legacy preferences tilt the admissions game in ways that allow social, financial, and political capital to masquerade as merit, thereby further disadvantaging already disadvantaged applicants. Put simply, legacy preferences preserve privilege. I understand what the author was attempting to do—use irony to highlight an absurdity. But I guess I have less faith in the ability of some to grasp the shrewdness of the piece.
I have written in other spaces about the effects of un-meritocratic privilege in selective admissions. So there is no need to revisit those points here; but the author made one point is that I think is deserving of further emphasis. He writes the following about Stanford’s admission process:
Applicants are not just given preference because they are children of alumni, but because they are children of alumni who donate money…If alumni have donated money, the admissions office will know about it. In any other circumstance, this would be considered bribery. But when rich alumni do it, it’s allowed. In fact, it’s tax-subsidized.
This point cannot be emphasized enough. The tax code subsidizes the de facto (if not actual) bribery of selective colleges and universities all over the country. Privileged individuals are allowed to use un-meritocratic means (in this case, money) to tilt the admissions process in their favor (legacy applicants at Stanford are three times more likely to be offered admission), and in the process, they receive a tax deduction. And if that is not bad enough, the institution is allowed to collect the payoff free of taxes as well. In this context, less affluent individuals are contributing, in the literal sense, to their continued disadvantage.
We spend seemingly endless amounts of time arguing about the appropriateness of so-called “welfare” programs for the poor, but rarely give the same attention to welfare for the rich. Similarly, we express passionate indignation (righteous and otherwise) about racial preferences, while accepting socioeconomic preferences as simple facts of life.
But let us be clear: not all preferences are created equal. And racial preferences premised on broadening access to opportunities are far nobler than those, like legacy admissions, that merely preserve the unequal and unjust status quo.
Monday, November 18, 2013
How Diversity Stole the Show at Oral Argument in Schuette v. Coalition to Defend Affirmative Action, by Scott Greytak
I was still in the early stages of using my neighbor – an apathetic marble pillar – as an armrest when Schuette’s oral argument turned into a debate over diversity in higher education. This was mostly a surprise, considering how the appeal before the Court concerned Proposal 2, a 2006 Michigan ballot-initiative-turned-constitutional-amendment that hinged on the applicability of something called the “political restructuring doctrine.”
A little background: After the U.S. Supreme Court affirmed the constitutionality of race-conscious admissions some ten years ago in the now-famous case Grutter v. Bollinger, Jennifer Gratz, the plaintiff from its companion case, started rolling the snowball for what would become Michigan’s Prop 2. The referendum, which banned racial preferences in higher education, public employment, and government contracting, was approved by Michiganders 58%-42% in 2006, only to be struck down six years later at the Sixth Circuit Court of Appeals by an 8-7 vote. The Sixth Circuit, applying the political restructuring doctrine, determined that the amendment made it unacceptably difficult for minorities to access and influence Michigan’s political process. Jennifer Gratz & Co. appealed the decision, and the final review of Schuette (pronounced “Shoe-tee”) went into motion.
Because an aggressive Schuette Court ultimately could, some argue, choose to outlaw affirmative action across the board, conversations on diversity at oral arguments were certainly possible, but were far from necessary. Nothing about Schuette speaks directly to the Supreme Court’s diversity-in-higher-education jurisprudence. A conversation about the political restructuring doctrine – interrupted every now and then by an heroic tumbleweed or two – seemed written in the stars.
Forget that plan. Though the intricacies of the doctrine would receive plenty of airtime later, the eight justices (Justice Elena Kagan was absent due to her former involvement while U.S. Solicitor General) wanted to talk diversity first. And not two minutes would go by between Chief Justice Roberts announcing Schuette and the unearthing of freshly-buried ideological hatchets. Even though, according to the first oralist – Michigan Solicitor General John Bursch – the “point [of Schuette] isn’t to get into a debate about whether preferences are a good or bad thing, because that's not what this case is about,” right from the jump, Bursch and Justice Sonia Sotomayor picked up where the Court had left off in last term’s Fisher v. University of Texas at Austin, arguing diversity and – most attention-grabbing – the viability of race-neutral alternatives to traditional, “check the box” affirmative action policies in higher education. Suddenly the courtroom was alive with old, familiarly controversial spirits that roamed the courtroom in search of warm-bodied jurists.
Fisher, which I consider the Court’s most misunderstood decision of its 2012-2013 term, dealt directly with the novel legal conundrum of race-neutral admissions plans, namely Texas’s Top Ten Percent Plan. The decision, released this past June, has since rekindled – in that slow-burning, “Purple Rain”-type of way- the smoldering controversy of affirmative action in colleges and universities.
Because Schuette offers the conservative bloc of the Court another swing at the use of race in admissions – albeit with a much smaller strike zone than in Fisher – all three oralists managed to inconvenience their primary points of law in order to speak to the larger ideological picture: “[T]here are other things that the University of Michigan could be doing to achieve diversity in race-neutral ways,” Bursch – the eager beaver of the three oralists – offered after only slight provocation.
“I thought that in Grutter,” Justice Sotomayor shot back, “all of the social scientists had pointed out [that] all of those efforts had failed.” In response, Bursch highlighted how the University of Michigan could in fact increase its diversity levels if it eliminated its preferences for the children of alumni, and if it attached greater value to applicants’ socioeconomic statuses. (The latter idea has caught fire recently because of its near-airtight legality – it does not explicitly consider race, making it impervious to 14th Amendment-based challenges – its political digestibility, and, perhaps, its capacity to produce more diversity than traditional affirmative action.)
And so the gusto over diversity, Grutter, and Fisher rowed on for a bit, eventually beat back by the jurisprudential boundaries of Schuette and the political restructuring doctrine. Just a skirmish, it turns out. But one that reminded us all of the deeper issues yet to be resolved.
Scott Greytak is an associate at Campinha Bacote LLC in Washington, D.C., where he provides legal analysis, policy recommendations, and commentary on the intersection of civil rights and education policy.
Tuesday, November 12, 2013
A group of UCLA African American males, led by Sy Stokes, an African American Studies student, created a video to call attention to the dwindling diversity at UCLA. The basic facts as they see them are that only 660, or 3.3%, of the 19,838 males enrolled at UCLA are African American. And 65% of those 660 are athletes. The numbers were even worse for the entering class in Fall 2012. Only 48 were African American, or just over 1 percent of the entering class. They also point out that the graduation rate for African American males at UCLA is only 74%, so only 35 African American males from that entering class will be expected to graduate. They then point out that the school has 109 athletic national championships, more than twice the number of African American males in the entering class. Based on this, they levy the charge that the school only sees African American males as important to increasing the school's athletic winning percentage.
Tuesday, November 5, 2013
DOJ Supports Texas Affirmative Action Plan on Remand and Argues Texas Still Entitled to Deference Regarding the Existence of Critical Mass
The Department of Justice filed its amicus brief in the remand in Fisher v. Texas last week. The key question on remand is whether the University of Texas's consideration of race in admissions is necessary. Bound up in that question the first time around was the level of deference that a court should afford a University in reviewing its admissions policies. The Department of Justice argues in its brief that, while the Supreme Court indicated that the lower court must independently review whether the admissions policy is narrowly tailored, the University is still entitled to "due regard" of its educational goals and how the consideration of race furthers them. In particular, the University is still entitled to a level of deference in terms of what constitutes a "critical mass" of minority students necessary to achieve the benefits of diversity. The pertinent part of DOJ's brief states:
In this supplemental brief, the United States will address the Court’s question whether “the University [is] due any deference in its decision that ‘critical mass’ has not been achieved.” Grutter used the term “critical mass” as shorthand for the point at which a university has attained sufficient diversity to achieve the educational benefits of diversity. 539 U.S. at 330. The question for this Court is therefore how it should review the University’s conclusion that it lacked sufficient diversity in 2004 and 2008 to provide the educational benefits of diversity to its students. That question entails a qualitative assessment of the educational experience the University is providing, rather than, as appellant suggests (Appellant Supp. Br. 23-24), a rote calculation of the number of minority students enrolled in the University, a number that might seem “substantial” in the abstract.
This Court should independently review the University’s determination that it lacks sufficient diversity to fully provide the educational benefits of diversity, while giving due regard to the University’s exercise of its educational judgment and expertise in reaching its conclusion. The determination that the University lacks sufficient diversity is a necessary predicate for its ultimate conclusion that it is “‘necessary’ * * * to use race to achieve the educational benefits of diversity.” Fisher, 133 S. Ct. at 2420. Because the University bears the “ultimate burden” on that question, ibid., the Court must be able to meaningfully review the University’s conclusion that it currently lacks sufficient diversity to fully provide the educational benefits of diversity. The Court should therefore verify that the University has amply supported its conclusion with concrete evidence and a reasoned explanation of why that evidence indicates that the University is not providing the educational benefits of diversity. At the same time, because the University’s assessment of such evidence rests on the application of educational expertise and judgments about the University’s institutional mission, this Court should evaluate the University’s conclusions with due regard for the multi-faceted educational assessments underlying those conclusions.
DOJ's full brief is here.