The Diversity Research-To-Practice Gap: Backlash to Fisher Case

A new paper titled “Bridging the Research to Practice Gap: Achieving Mission-Driven Diversity and Inclusion Goals” by Teresa Taylor, Jeffrey Milem, and Arthur Coleman, seeks to link research findings on diversity with policy implications for colleges and universities. While a valuable effort, the paper appears confusing in terms of the policy implications resulting from the Supreme Court’s decision on affirmative action in admissions in the Fisher v. University of Texas (2013) case. In 2013, a conservative US Supreme Court ruled on the claim of “reverse discrimination” by Abigail Fisher, a white undergraduate who had applied to UT and not been accepted. Edward Blum, a wealthy conservative entrepreneur, actively recruited Fisher through his one-person organization, the Project on Fair Representation, an organization that has also challenged the Voting Rights Act.

The new research paper does acknowledge the issues arising from Fisher in terms of the need for evidence-based justification for the use of race-sensitive factors in the admissions process. It identifies two issues deriving from the Fisher case as

(1) the relationship between the ‘necessity’ of race-conscious practices and the availability and effectiveness of race-neutral alternatives, and (2) the relationship between race-conscious practices and their impact on the achievement of diversity-based educational goal (p.3).

Yet while the paper identifies the dilemmas debated in Fisher, it does not clearly identify the narrow limits within which the Supreme Court has determined that race-conscious practices can be used. The paper states that

research has confirmed that the use of race and ethnicity in the admission process can be an important tool for institutions to use to achieve their diversity goals because it lays a foundation for interactional interactions and campus climate” (p. 19).

Despite the positive impact of diversity on campus climate and cross-racial interactions as demonstrated in research findings, the Fisher case casts a long shadow over the future use of explicitly race-sensitive means to attain student body diversity.

As highlighted in Alvin Evans’ and my recent book: Affirmative Action at a Crossroads: Fisher and Forward, three of the most critical developments resulting from Fisher with implications for college and university admissions policies are:

1) the Supreme Court has moved from consideration of the value of diversity itself to the means colleges and universities use to attain it; 2) the reviewing court, not the university, “must ultimately be satisfied that no workable race-neutral alternatives would produce” the educational benefits of diversity (Fisher v. University of Texas); and 3) universities must first exhaust race-neutral measures before race-sensitive factors are considered. The necessity of race-conscious practices was not acknowledged by the Court and even if such practices might be considered, they require substantial proof that workable, race-neutral strategies have been exhausted. As a result, race-conscious strategies cannot be used easily and without substantial proof/justification.

One of the important factors in the UT Austin admissions policy that is not adequately clarified in the new research paper, is that 90 percent of the available seats at public institutions of higher education in Texas fall under the top ten percent plan (TTP). This plan that automatically admits high school students in the top ten percent of their class to public institutions of higher education in Texas was viewed by the Court and conservative think tanks as a “race-neutral plan.” Instead, the Court narrowly focused on the very modest 10 percent of the seats that are based on a holistic admissions review process which after 2004 allowed the consideration of race as a “special circumstance.” In 2013, the Supreme Court remanded the case to the Fifth Circuit for reconsideration of the use of race in the Personal Achievement Index employed for 10 percent of the entering class, and the Court of Appeals upheld UT Austin’s use of race. An appeal of the Fifth Circuit’s decision to the Supreme Court, once again sponsored by Blum, will result in a ruling likely to be issued in June.

Given this uncertainty, some caution needs to be applied to the findings of this new research paper confirming

that the use of race and ethnicity in the admission process can be an important tool for institutions to use to achieve their diversity goals because it lays a foundation for interracial interactions and campus climate (p. 19).

As noted in the paper, however, the institutional mission and the context for diversity are essential aspects of establishing the groundwork for diversity and inclusion policies. Viable means of achieving student body diversity also noted in the paper include recruitment and outreach to underrepresented groups, need-based financial aid, and scholarships based on first-generation or socio-economic status.

The future of race-conscious strategies in admissions processes hangs in the balance with lawsuits filed by the conservative Project on Fair Representation against Harvard University and the University of North Carolina at Chapel Hill. Given the death of Antonin Scalia and since Justice Elena Kagan has recused herself on the Fisher appeal, per Adam Liptak of the New York Times and others the ruling of the remaining seven justices on the Fisher case could be narrowly confined to the “idiosyncratic Texas plan” or broadly affect admissions policies nationwide.

One can only hope that greater leverage will be granted to colleges and universities in admissions policies that foster the attainment of more compositionally diverse campuses.

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