Tuesday, September 29, 2015

OCR Finds Princeton Does Not Discriminate Against Asian Americans and Offers a Preview of Race Neutral Analysis for Fisher II

The Office for Civil Rights at the Department of Education  (OCR) completed its compliance review of Princeton's admission practice last week.  Princeton, like Harvard and the University of North Carolina, has been accused of discriminating against Asian Americans in admissions.  OCR applied strict scrutiny to the University's admissions practices and policies and concluded that "there was insufficient evidence to substantiate that the University violated Title VI or its implementing regulation with regard to the issue investigated."  

Princeton easily met the compelling interest analysis by demonstrating its interest in achieving the educational benefits of diversity.  As to narrow tailoring, OCR asked 

whether the University considered workable race-neutral alternatives; whether the admissions
program provided for flexible and individualized review of applicants; whether it unduly
burdened students of any racial group; and whether the consideration of race was limited in time and subject to periodic review.

On the question of flexible individualized review, it rejected the notion that quotas were at play, finding there was

no evidence that the University tried to cap or otherwise limit the number of applicants who would be admitted from any race or national origin group. OCR also did not find that the University engaged in “patently unconstitutional” racial balancing, which the Supreme Court has defined as an effort “to assure within its student body some specified percentage of a particular group merely because of its race or ethnic origin.” Instead, to the contrary, OCR found mostly steady increases in the percentages of Asian students who have been admitted in the past several years, rising from 14.2% of the University’s Class of 2007 to 21.9% of the University’s Class of 2012 and 25.4% (more than one-fourth) of the University’s Class of 2014. Such fluctuations are inconsistent with the existence of a quota, as the Supreme Court noted in Grutter. 

It also found that race played a relatively small and flexible role in the process:

Here, OCR found that during the University’s admissions process, an applicant’s race and national origin – if he or she offered that information — may or may not be considered, depending upon whether that information provides further context about an individual applicant. For example, an admissions officer might consider how race may have figured in the context of where a person was born, where a person grew up, and where he or she had gone to school. Race and national origin may also be considered if an applicant brings up those subjects in his or her essay. However, OCR found no evidence of the University giving an automatic “plus” for identifying as a particular race or national origin; nor did OCR find evidence of applicants given an automatic “minus” for belonging to a particular race or national origin. OCR also found no evidence of the University using a fixed formula to weigh an applicant’s race or national origin.

Post-Fisher v. Texas, the potentially more difficult analysis for universities is the race neutral alternative analysis.  If interpreted strictly, Fisher's statement that a university should demonstrate that its consideration of race is "necessary" could be fatal to many admissions plans.  If interpreted consistent with Grutter, the term means something more flexible than absolute necessity.  

OCR's letter did a nice job of averting the significance of this definition problem, which scholars have been wrangling over.  OCR did so by referencing the Court's "necessary" quote in a footnote, but refusing to allow the meaning of the phrase to become the analysis itself.  Instead, it rephrased the question as being one of "sufficiency."  It asked  "whether race-neutral alternatives were sufficient to achieve its diversity goals, of which race was a single though important element." It then alternatively phrased the question as whether race neutral alternatives were "not sufficient to achieve the educational benefits of diversity."  Sufficiency captures the notion of flexibility far more clearly than necessity would, and that flexibility, of course, was clearly forwarded in Grutter. Drawing on Grutter's approach to race neutral alternatives, OCR concluded that "there were no race-neutral alternatives that would have worked about as well."  

In reaching that conclusion, OCR interestingly focused on the race neutral alternatives that the University currently uses.  Often, the focus elsewhere is on those hypothetical processes the university could or should use instead of race.  Here, OCR makes a compelling argument that the University is already using these alternatives  and race is just a tipping factor on top of those alternatives in certain circumstances, although without those tipping it would not achieve its goal. In other words, the fact that the University is using race-neutral alternatives substantiates the fact that it has considered alternatives and exhausted their efficacy.  One would expect these ideas to show up in the government's briefs in Fisher II, where the analysis of the facially race neutral top ten percent plan will be key.

Get OCR's full letter here.

https://lawprofessors.typepad.com/education_law/2015/09/ocr-finds-princeton-does-not-discriminate-against-asian-americans-and-offers-a-preview-of-race-nuetr-1.html

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