The latest happenings in federal education policy and national news
The Access and Diversity Collaborative's Quarterly Update
News and Developments of Note
December 2018
The College Board's Access and Diversity Collaborative (ADC) quarterly newsletter informs members on the happenings in federal education policy and national news, with emphasis on matters of access, enrollment, diversity and inclusion. Each quarter, we will highlight strong practices among members and update members on ADC publications and events, and periodically include insight from an ADC sponsor on a topic of interest.
Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, U.S. District Court for the District of Massachusetts.
Students for Fair Admissions (SFFA) alleges and Harvard denies that Harvard failed to satisfy the race neutral alternatives and other evidence of need requirements to justify consideration of race in admissions under the Supreme Court's standards for compliance with federal law (Title VI), and that Harvard discriminated against Asian students by stereotyping them. (See the July 2018 and October 2018 newsletters for a fuller summary.) After lengthy fact discovery, the Harvard case went to trial in federal trial court on October 15, 2018.
The trial ended on November 2, 2018, and the trial judge has asked the parties to propose findings of fact and law that she can consider. Each party has until December 19, 2018 to file and January 23, 2019 to respond to the another's filings. She is also giving anyone who wants to weigh in until January 9, 2019 to file additional amicus briefs. The earliest that the judge could decide the case is likely late January or February 2019; however, it would not be surprising if she took longer to reach a decision.
Students for Fair Admissions, Inc. v. University of North Carolina-Chapel Hill, U.S. District Court for the North Carolina Middle District.
Limited remaining pre-trial fact discovery must be completed by December 19, 2018. Any motions of the parties for 'summary judgement,' requesting the Court to decide the case under applicable law without a trial based on facts established in discovery, are due January 18, 2019. A trial date has not yet been set. It is anticipated that the trial date will likely be set in the first half of 2019.
Sanders v. the Regents of the University of California (complaint filed in the Superior Court of the State of California).
On November 15, 2018, Richard Sanders filed a complaint claiming that the Regents of the University of California are violating the California Public Records Act by denying requests, for 'de-identified, individual-level' applicant and enrollee data, including SAT scores, raw and adjusted high school GPAs, AP scores, class rank, ethnicity/race, socioeconomic data, etc., and seek a peremptory writ of mandate ordering disclosure of the requested data set.
Faculty, Alumni, and Students Opposed to Racial Preferences v. Harvard Law Review et al. (US District Court for Massachusetts) and Faculty, Alumni, and Students Opposed to Racial Preferences v. New York University Law Review et al. (US District Court for the Southern District of New York).
In October 2018, Faculty, Alumni, and Students Opposed to Racial Preferences (FASORP) filed lawsuits against both Harvard University's and New York University's Law Schools, Law Reviews, and the universities themselves with nearly identical complaints. In the complaints for both cases, FASORP asserts that both law reviews violate Title VI and Title IX by discriminating against Whites and males and illegally giving preference to women and students/authors of color in the member/editor selection and the article selection processes. FASORP seeks, amongst other demands for relief, 1) permanent injunctions against considering, or soliciting information about, member applicants' or authors' race, sex, sexual orientation, or gender identity; 2) termination of all federal funding to the universities and their law reviews; and 3) if revealed in discovery, similar relief for any race or sex preferences in faculty hiring or student admissions.
Relevant Articles
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On November 24, 2018, The Boston Globe published 'What's next for Harvard's affirmative action case? It's complicated,' which discusses several of the potential paths forward in the ongoing Harvard case. The full article is available here.
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On November 15, 2018, The Chronicle of Higher Education published 'Who Else Will Get Sued over Their Admissions Policies?,' which discusses the recent lawsuit filed by Richard Sanders and the Asian American Community Services Center against the University of California System in an effort to gain access to admissions and enrollment data. The full article is here. Additional articles on this lawsuit were also published on November 15, 2018 in The New York Times (available here) and The Wall Street Journal (available here).
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On October 26, 2018, The Atlantic published 'What Happens When a College's Affirmative-Action Policy is Found Illegal,' which discusses the lasting impact of the Grutter v. Bollinger and Gratz v. Bollinger decisions on the University of Michigan admissions policies and undergraduate student body. The full article is here.
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On October 23, 2018, The Atlantic published 'College Sports Are Affirmative Action for Rich White Students' which discusses the ways in which admissions officers consider the applications from student athletes and the ways in which this process most significantly benefits wealthy white applicants. The full article is here.
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On October 15, 2018, The New Yorker published 'The Rise and Fall of Affirmative Action,' which discusses the 'alliance' that has formed between Asian college applicants and white Conservatives in the Students for Fair Admissions v. President and Fellows of Harvard College case. The full article is here.
On November 20, 2018, the U.S. Department of Education (USED) Office for Civil Rights (OCR) announced it would be revising its Case Processing Manual regarding to how it will investigate and resolve complaints made to OCR. The Case Processing Manual provides guidance to field investigators when examining cases of potential discrimination. Key revisions of the manual include a requirement to comply with the First Amendment when investigating complaints; the restoration of an appeals process for complainants, allowing them to appeal findings of insufficient evidence, as well the opportunity to respond to appeals; and the elimination of automatic dismissals for 'mass filers.' Mass filers are those who report the same complaint against many schools, and the Department had previously considered them a 'burden on OCR resources.' The revised Case Processing Manual is here. A press release from the Department is here.
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On November 16, 2018, USED released a proposed regulation under Title IX, the federal civil rights law that prohibits discrimination on the basis of sex in education programs or activities that receive federal funding, related to schools' responses to sexual harassment and assault. Comments are due by January 28, 2019. Among other things, the proposed rule would require:
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Schools to respond to sexual harassment only when actual notice is received by a Title IX coordinator or an official who has the authority to institute corrective measures;
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Schools response to be measured by a deliberate indifference standard;
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Require schools to apply basic due process protections for students, including a presumption of innocence throughout the grievance process;
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Written notice of allegations and an equal opportunity to review all evidence collected; and the right to cross-examination, subject to 'rape shield' protections.
Proposed regulation can be found here. USED's summary of the proposed rule can be found here. USED press release can be found here.
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On November 8, 2018, USED requested a judge for the District Court of Massachusetts dismiss a lawsuit against the Department relating to USED Secretary DeVos's issuance of temporary rules on Title IX enforcement. The Department claims the groups who filed suit do not have standing for the case and cites a federal judge who dismissed a similar case in California. The Massachusetts lawsuit is here.
Relevant Articles
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On November 19, 2018, The Chronicle of Higher Education published 'New Title IX Proposal Would Restore Fairness in Sexual-Misconduct Cases,' which discusses the author's views on the ways in which Secretary DeVos' proposed Title IX rules will have positive implications for campus sexual-misconduct policies. The full article is here.
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On November 17, 2018, The Atlantic published 'Betsy DeVos's Sexual-Assault Rules Would Let the Accused Cross-Examine Accusers,' which discusses the new USED Title IX guidelines and ways in which they may make issues related to campus sexual misconduct worse. The full article is available here.
On October 16, 2018, The New York Times published an article by Dr. Samuel J. Abrams, a professor at Sarah Lawrence College, titled 'Think Professors Are Liberal? Try School Administrators.' This article discusses a research survey conducted by Dr. Abrams which found that 'student facing' college administrators are overwhelmingly liberal, which has subsequent impacts of this imbalance on campus climate and culture. The full article is here. On November 10, 2018 , Dr. Abrams published a follow-up piece for the American Enterprise Institute discussing the response from students and his institution to his op-ed, as well as national findings focused on both students' and faculty members' sense of comfort with sharing their opinion on their campus. The full post can be found here.
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On October 8, 2018, New Orleans Public Radio published 'Tulane Makes Learning About Race An Undergraduate Requirement,' which discusses Tulane University's new requirement for all students to take a course on race as part of their required core classes. The full article is here.
On November 20, 2018, Senator Elizabeth Warren (D-MA) published a 2017 USED report regarding the use of loan forbearance by Navient, a student loan servicer. The report, according to Warren, supports pending claims against Navient including one being led by the Consumer Financial Protection Bureau (CFPB) that argue the company illegally cheated student loan borrowers by moving them into forbearance instead of helping them enroll in income-based repayment plans. In a statement to POLITICO, USED asserts the document is not an audit of the company, as suggested by Warren, and the review did not find that Navient had violated the terms of a contract with the Department. The report is here.
On November 5, 2018, Navient filed suit against USED in the U.S. Court of Federal Claims in regards to its request for proposals for redesigning the Department's loan servicing platform. The student loan company argues that the process has been unfair and has violated federal procurement rules, as the Department "radically chang[ed]" the scope of the project during the bidding process. Two other major loan servicing companies—FedLoan Servicing and the Missouri Higher Education Loan Authority—have also filed complaints with the Government Accountability Office (GAO) regarding the same issue. The POLITICO article is here.
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On November 13, 2018, USED Secretary DeVos and Senate Health, Education, Labor, and Pensions (HELP) Committee Chairman Lamar Alexander (R-TN) held a joint event in Tennessee to highlight the Department's recently launched mobile application for students to complete the Free Application for Federal Student Aid (FAFSA). A press release from the Department is here. A press release from Chairman Alexander is here.
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On October 17, 2018, House Education and the Workforce Committee Ranking Member Bobby Scott (D-VA) and Senate HELP Committee Ranking Member Patty Murray (D-WA), along with 150 Democratic members of Congress, sent a letter to USED Secretary Betsy DeVos urging her to release information on how the Department has implemented the Public Service Loan Forgiveness (PSLF) program. The Members reference a Government Accountability Office (GAO) report which indicated over 99% of borrowers applying for PSLF have been denied. The letter is here. A press release is here. The GAO report is here.
On November 21, 2018, USED Secretary Betsy DeVos signed a final order that extends federal approval of the Accrediting Council for Independent Colleges and Schools (ACICS) for another year. Per the order, ACICS must submit a report within the year regarding how it meets two standards it had previously failed in meeting compliance—the "competency of representatives" and "conflict of interest" standards. The final order is here. A press release from ACICS is here.
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On October 29, 2018, House Education and the Workforce Committee Ranking Member Bobby Scott (D-VA) sent a letter to USED Secretary DeVos regarding the recent changes to the College Scorecard. Ranking Member Scott urged the Secretary to restore the eliminated comparison tool for students to evaluate colleges based on academic and financial outcomes for graduates of the colleges. The comparison tool was removed from the Scorecard on September 28, 2018. "The elimination of the only national comparison point used on the College Scorecard renders the tool significantly less effective in guiding students' enrollment decisions and requires consumers to spend more time doing their own research," the letter reads in part. The full letter is here. A press release is here.
On November 29, 2018, the American Council on Education sponsored a session to discuss their new report “Speaking Truth and Acting with Integrity: Confronting Challenges of Campus Racial Climate,” which focuses on the way institutional leaders respond to and rebuild their campus community following a racial incident. The report focuses on a case study of the University of Missouri-Columbia and the University of Missouri System. The full report is available here. A brief summary of the session is available here.
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In November 2018, the National Association of Student Financial Aid Administrators published their annual impact report nasfaanow. The report's featured article focuses on recognizing and challenging implicit bias and builds on a NASFAA conference session led by Lena Tenney, coordinator of public engagement, Kirwan Institute for the Study of Race and Ethnicity at The Ohio State University. The article discusses the ways implicit bias may manifest itself at institutions of higher education and within financial aid offices and offers suggestions for how institutions and offices can challenge such biases and create more inclusive environments for students. The full report is available here.
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On November 8, 2018, several ADC sponsor institutions and colleges and universities across the country participated in the second annual First-Generation College Celebration Day. This event, led by the Council for Opportunity in Education and the Center for First-Generation Student Success of NASPA-Student Affairs Administrators in Higher Education, is held to celebrate the successes of first-generation college students. Institutions participated in a variety of ways including by holding rallies, panel discussions, listening sessions, and celebrations highlighting the accomplishments of first generation college students, faculty, and staff. More information on the annual event is available here.
If you would like your institution/organization to be considered for future Sponsor Spotlights, please send a brief description of your initiative or practice to Emily Webb ([email protected]).
On December 14, 2018, the ADC will host a webinar titled "The 2018 Legal Landscape: Litigation and Agency Actions Regarding Federal Non-Discrimination Law in Higher Education." 2018 has proved to be a significant year regarding cases and federal agency actions involving claims of race, ethnicity, and gender discrimination in higher education. This webinar will survey the year's developments with an overview and synthesis of:
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Recent developments in federal court litigation involving Harvard University;
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Other cases percolating through the courts;
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Claims in recently-filed U.S. Department of Education Office for Civil Rights complaints; and
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Recent federal developments in the U.S. Departments of Justice and Education.
Presenters will reflect on these developments and provide insight regarding important actions postsecondary institutions may take to continuously build the necessary evidence base to sustain their diversity efforts. Based on these developments, presenters will offer insights into important higher education strategies that can advance mission-based institutional interests in ways that also mitigate legal risk.
On January 16, 2019, the ADC will sponsor a webinar on the principles and standards of federal non-discrimination law that apply to scholarship and financial aid decisions rendered by institutions of higher education. This webinar will preview the guidance on this topic that will be published in early 2019 (see below).
For more information or to register for the webinars, please contact Tiffany Wilson ([email protected]).
On January 12–14, 2019, the College Board will host its annual Higher Ed Colloquium in Delray Beach, Florida. More information is available here.
Upcoming Publications:
On December 12, 2018, the ADC published Understanding Holistic Review in Higher Education Admissions: Guiding Principles and Model Illustrations, which provides insights into the values, logic and rigor behind effective holistic review. Incorporating key legal principles associated with federal cases that have addressed challenges to considerations of race and ethnicity in admissions, the guide discusses key features and elements of well-designed holistic evaluation—with a focus on substantive policy design and process management. The guide also calls on the higher education community to think differently about transparency and communications associated with holistic review in admissions. The publication is available on the Access & Diversity Collaborative's website.
In early 2019, the ADC will publish guidance on the consideration of race, ethnicity, and other factors in decisions associated with scholarships and financial aid. This guidance will highlight the ways in which federal non-discrimination law applies to aid decisions, as well as policy design strategies and practical steps for postsecondary institutions to consider when advancing their mission-driven goals.
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