The latest happenings in federal education policy and national news
The Access and Diversity Collaborative's Quarterly Update
News and Developments of Note
June 2019
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 highlight best practices among members and provide updates on ADC publications and events, and periodically include insight from an ADC sponsor on a topic of interest.
Federal Court Litigation Involving Enrollment Issues of Race, Ethnicity, and Gender
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 discriminated against Asian students by stereotyping them; that it engaged in racial balancing (caps) in admissions; and that it failed to establish evidence of need (including adequate pursuit of race-neutral alternatives) that would justify consideration of race in admissions under the Supreme Court's standards for compliance with federal law (Title VI). (See the July 2018, October 2018, December 2018, and March 2019 newsletters for a fuller summary.) After a final hearing in the case on February 13, 2019, respecting the parties' proposed findings of fact and law—at which the Court also allowed time for student and organization amici—the case is in Judge Burroughs' hands for decision. The judge may take as long as she needs to make a decision. The ADC will provide a same-day summary and perspective on the decision—followed soon after by a deeper analysis—once a decision is issued. The trial court's decision will not likely end the case, as the disappointed party is expected to appeal to the first-level federal appeals court.
Relevant Articles
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On June 10, Inside Higher Ed published an opinion piece by Lorelle Espinosa and Peter McDonough titled "No Retreat," which emphasizes the importance of the four decades of Supreme Court precedent regarding the consideration of race and expresses the strong belief that "American higher education can and will continue to pursue the educational benefits of diversity."
Students for Fair Admissions, Inc. v. University of North Carolina-Chapel Hill, U.S. District Court for the North Carolina Middle District.
On January 18, 2019, the University of North Carolina (UNC) and Students for Fair Admissions (SFFA) each filed motions for summary judgment asking the court to rule in their favor based on law and their written filings, rather than going to trial. In these filings, SFFA argues that UNC mechanically considers race as a dominant factor in admissions; acts in a manner that indicates a lack of sincere interest in the educational benefits of diversity; and fails to use race neutral alternatives that UNC admitted in its Fisher amicus brief are workable, rendering UNC's consideration of race unnecessary. UNC denies SFFA's claims and argues that it actively engages diversity to gain educational benefits grounded in research; has a rigorous, high-quality admission program in which readers are unaware of the racial composition of the class; and over a 10-year period, two committees and the Admissions Office considered many neutral alternatives and has been unable to find any neutral alternative that would provide the same diversity and academic quality as the current model. See the January 2019 newsletter for more detail. As in the Harvard case, SFFA and UNC have dueling data experts. SFFA and UNC each filed an opposition to the other's motions for summary judgment on March 4th, and final filings on April 4th. The trial date has not been set, but it is anticipated to begin in 2019, unless the court rules in favor of one of the parties and decides the case without a trial.
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 in federal trial courts 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. See the December 2018 newsletter for further detail. Motions to dismiss FASORP's lawsuits on technical procedural grounds are pending in both cases; and FASORP has opposed dismissal. The federal trial court in the Harvard case has scheduled a hearing on June 20, 2019 before deciding whether the lawsuit meets technical requirements and may proceed. The federal trial court in the NYU case has set a June 24, 2019 deadline for the parties to complete their technical motion-related filings before any hearing or decision on that lawsuit's sustainability occurs.
Joel Doe, et al. v. Boyertown Area School District (U.S. Supreme Court declined review).
In May, the U.S. Supreme Court declined to hear a case, which challenged a first-level federal appeals court's decision not to stop a public school district from implementing a policy allowing students to use the bathrooms that align with their gender identities. Joel Doe, et al. v. Boyertown Area School District, 897 F.3d 518 (3rd Cir. 2018), cert. denied. In the U.S., there are 11 judicial districts and the District of Columbia, each covering a distinct geographical area of the country. For the time being, the U.S. Supreme Court is leaving to each of the federal appeals courts the discretion to decide transgender student rights in its geographical area according to its interpretation of the federal statute (Title IX) and U.S. Constitutional provision (Equal Protection Clause) that apply.
State Court Litigation Involving Enrollment Issues of Race, Ethnicity, and Gender
Relevant Articles
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On May 16, The Chronicle of Higher Education published an article titled "U. of Texas Is Sued Over Affirmative Action in Admissions. Yes, Again.," which provides an overview of the most recent lawsuit to be filed against The University of Texas at Austin (UT) by Students for Fair Admissions (SFFA). This is the same group that brought both Fisher lawsuits against the school at the federal level. This most recent lawsuit is very similar to a case SFFA brought against UT in 2017 (which was dismissed on technical grounds), and alleges that UT's consideration of race in its admissions practices violates the Texas State Constitution.
The Environmental Context Dashboard (ECD) is a new admissions tool that allows colleges to incorporate a student's school and environmental context into their admissions process in a data-driven, consistent way. The Dashboard includes contextual data on the student's neighborhood and high school. We want to make sure students, families, educators, and admissions officers have information about what data is included in the Environmental Context Dashboard and where the data comes from. For more details, click here.
Some media reports have referred to an "adversity score."" That term is inaccurate, because that's not what the Dashboard does. To clarify:
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The Environmental Context Dashboard doesn't alter a student's SAT score.
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It does show how a student's' SAT score compares to those of other students in their school.
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It doesn't take into account any personal characteristics of a student beyond the test score.
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It does provide admissions officers with better context about an applicant's neighborhood and high school.
Relevant Articles
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On May 17, The Atlantic published an article titled, "The Reasoning Behind the SAT's New 'Disadvantage' Score," which discusses College Board's new Environmental Context Dashboard (ECD), a tool that helps institutions of higher education view a student's application in the context of a series of factors related to the educational disadvantage of his/her high school and home environment. Many other news sources published pieces on the ECD as well including The Chronicle of Higher Education, Time,The Wall Street Journal, and the New York Times. Additionally, College Board CEO, David Coleman, spoke about the ECD on CBS This Morning.
On April 24, NORC at the University of Chicago released results from a survey focused on public perception of college admissions practices. Key takeaways from the survey results include that most Americans believe high school grades and standardized test scores "are and should be the most important factors" in the college admissions process; many Americans believe family finances should be "less of a factor" when reviewing applications; few Americans believe that legacy status should be given "much consideration;" and about a third of Americans think athletic talent should be an important factor when considering applicants.
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On April 10, Texas Tech University's medical school announced it will no longer consider race as a factor in student admissions decisions, as part of an agreement resolving an investigation of the medical school by the U.S. Department of Education's Office of Civil Rights. The agreement states that the school may consider race in admissions only if it provides a "reasoned, principled explanation for its decision and identifies concrete and precise goals" consistent with legal standards, and first provides OCR with a plan 60 days in advance. This agreement marks the first time the Department, under the Trump Administration, has reached such a resolution in its investigations of colleges and universities using race in admissions. An Inside Higher Ed article on this topic is available here. Additionally, an op-ed published by AAMC and writte by Art Coleman and Jamie Lewis Keith provides their perspective regarding the significance of this development.
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On March 28, Rep. Donna Shalala (D-FL) hosted a briefing as a member of the House Education and Labor Committee to examine the college admissions process. The panel discussion focused on the admissions process at different types of institutions, as well as the current state of college access, particularly for low-income students and students of color. According to the National Association for College Admission Counseling (NACAC) which participated on the panel, Rep. Shalala stressed that she did not necessarily see a role for federal legislation in this matter but did see a need for "broader discussion." NACAC press release is here.
On May 6, 2019, Inside Higher Ed published an article titled, "Washington State Plans to Restore Affirmative Action," which reports that the Washington State legislature enacted legislation to reverse a ban on the consideration of race and ethnicity as one factor in college admissions put into place by a voter initiative 20 years ago. This legislation is expected to be enacted in the next year, making Washington the first state to overturn a voter ban on "affirmative action."
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On May 4, the New Hampshire Union Leader published an article titled "UNH eliminating SAT/ACT requirement for applicants," which discusses the recent decision by the University of New Hampshire to eliminate the standardized test requirement for applicants in the hopes of increasing both "the size and diversity of the school's applicant pool."
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On April 16, The Atlantic published an article titled "When Medical Schools Become Less Diverse," which discusses the impacts of Texas Tech's decision to stop considering race as part of the admissions process. The article notes that this decision will not only likely decrease the racial diversity of Texas Tech medical school's student body, but may contribute to a decrease in diversity of the medical profession, which would have negative health implications for people of color in the United States.
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On April 10, The Atlantic published an article titled, "College-Admissions Hysteria Is Not the Norm," which discusses the many ways that the recent "hysteria" around the admissions process at highly selective institutions is not representative of the college admissions process for the majority of college applicants who apply to less highly selective institutions.
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On April 1, Inside Higher Ed published an article titled, "New Push for Test Optional," which discusses arecent increase in the number of institutions of higher education that are choosing to switch to test optional policies as part of their admissions process.
On May 29, the National College Access Network (NCAN) published a report titled, "Shrinking Options, Growing Affordability Gaps for Low-Income Students Nationwide." Key findings of the report include identifying that only 48 percent of community colleges were affordable for the average Pell Grant recipient in 2016; that 36 states had five or fewer affordable four-year public institutions in 2016; and that only 27 percent of all four-year public institutions were affordable for the average Pell Grant recipient in 2016.
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On April 15, the Federal Student Aid (FSA) Office released a set of recommendations for what colleges and universities should and should not do when issuing financial aid offers. FSA issued eight recommendations, which include the suggestion to avoid calling all financial aid an "award" (which may be misleading); avoid issuing financial aid offers that do not include cost of attendance; breakdown cost of attendance into clear components, including food and housing and other costs; avoid bundling all financial aid (e.g., grants, scholarships, loans, work-study) together; include the source of all student loans; avoid including Parent PLUS loans with student loans; include critical next steps in the financial aid offer; and include the estimated net cost in the financial aid offer.
Campus Demographic and Performance Data for Student Decision-Making
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On May 22, the Pew Research Center published a report titled, "A Rising Share of Undergraduates Are From Poor Families, Especially at Less Selective Colleges," which summarizes a study of college matriculation rates across the country and analyzes the data based on race and socioeconomic status. Key findings of the report include identifying that colleges and universities are enrolling more students from low-income families; that students are less likely to enroll in a 2-year institution compared to 1996; and that more students from low-income families are likely to enroll in less selective colleges and universities, compared to more affluent peers.
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On May 22, the Pell Institute published a report titled, "Indicators of Higher Education Equity in the United States." The report summarizes a study postsecondary enrollment and analyzes such data based on various student identities and indicators. Key findings of the report include identifying that students in the top two income quartiles receive 76 percent of all undergraduate degrees; that only 11 percent of degrees received were by students from the lowest income quartile; and that this gap in degree attainment by socioeconomic status has stayed consistent since 1970.
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On May 21, USED announced the release of an updated College Scorecard, which is intended to help students gather information and make informed decisions about enrollment options for college, university, or professional programs. Updates to the Scorecard include more comprehensive graduation rate information, student demographic information, the addition of 2,100 non-degree granting institutions, loan debt information regarding individual programs of study, and updated tuition and cost of attendance information.
On May 23, USED published in the Federal Register its Unified Agenda for Spring 2019. The publication included multiple proposed regulation changes, including a notice of a final rule titled, "Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance." The final Title IX rule is expected to be released in September 2019. Additional details on the proposed Title IX rule are available in the March 2019 Newsletter.
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On May 17, the House passed H.R. 5, the "Equality Act." The 236-173 vote was largely partisan, with eight Republicans voting in favor of the bill. The bill would amend the Civil Rights Act of 1964 by including "sexual orientation and gender identity" in the law's protections from discrimination based on sex and would prohibit discrimination based on sexual orientation and gender identity in employment, housing, education, jury service, and federal financing. The bill will be sent to the Senate, where it is unlikely to be considered. A press release from Speaker of the House Nancy Pelosi (D-CA) is here.
In May 2019, the Center for First-generation Student Success named nine ADC Institutional Sponsors as First Forward Institutions, in recognition of their commitment to enhancing the experiences and advancing the outcomes of first-generation college students." The ADC Institutional Sponsors recognized include Florida International University, Florida State University, Northeastern University, University of Arizona, University of Georgia, University of Michigan, The University of Texas at Austin, University of Virginia, and University of Washington.
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In March 2019, The Journal of Higher Education published "A Study of the Use of Non Academic Factors in Holistic Undergraduate Admissions Review," authored by Don Hossler, Emily Chung, Jihye Kwon, Jerry Lucido, Nicholas Bowman, and Michael Bastedo. The study examines the ways in which nonacademic factors are used in college admissions at different types of institutions of higher education.
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 at [email protected].
Upcoming Publications
Financial Aid and Scholarships: A Federal Nondiscrimination Law Primer
College Board, NASFAA and EducationCounsel will publish a financial aid primer this month, which will:
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Surface key issues that should be considered in the review, evaluation, and evolution of financial aid and scholarship policies and practices to maximize their effectiveness and sustainability;
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Synthesize key points of law and policy in a format designed to facilitate meaningful on-the-ground dialogue and action; and
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Offer ideas regarding strategies and design models that merit consideration among policy leaders as they seek to achieve institutional goals in legally sustainable ways.
Upcoming Events
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NASFAA National Conference—June 24–27, 2019 in Orlando, Fla.
On the morning of June 25, the ADC will host a session titled "It's More Than Admissions: Applying Federal Nondiscrimination Laws to Financial Aid Associated with Diversity Goals." During this session, Megan Coval (NASFAA) will moderate a panel featuring Art Coleman (EducationCounsel), Yvonne Romero da Silva (Rice University), and Kathy Blaisdell (Mount Holyoke College) addressing major federal nondiscrimination laws that govern the awarding of financial aid and scholarships when factors like race, ethnicity, and gender are considered; and will offer practical strategies, action steps, and examples that align with current federal laws. More information available here.
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NACAC National Conference—September 26–28, 2019 in Louisville, Ky.
Of particular note for ADC sponsors during this conference is the Chief Enrollment Officers' Forum, which begins the day ahead of the larger conference (September 25). This Forum is a 1.5 day workshop designed for the most senior enrollment and admission leaders at institutions of higher education that will focus on diversity, access and inclusion in enrollment management, financial aid, and strategic planning. As part of this Forum, on September 26, Art Coleman and David Dixon will join other Access and Diversity Collaborative leaders to present in a session titled "Achieving the Educational Benefits of Diversity—What CEMOs Need to Understand." This session will include an update on the higher education legal landscape, as well as advice for CEMOs at institutions with students who rely on Federal financial aid on ways to apply the law to their enrollment efforts.
Additionally, on the afternoon of September 26 (likely from 3:15–4:45 p.m.), Access and Diversity Collaborative leaders will provide an update on federal policy and legal developments associated with higher education diversity issues, with a focus on current legal and Trump Administration policy developments that affect the consideration of race, ethnicity, and sex in admissions and other enrollment decisions. In addition to providing a comprehensive overview of the relevant policy and legal landscape, presenters will offer perspectives on the key takeaways from pending federal court litigation involving Harvard, UNC, and more, as well as OCR investigations.
College Board Forum—November 6–8, 2019 in Washington D.C.
As part of the Forum, the ADC will be hosting a session titled "Race Neutral Strategies Under Federal Nondiscrimination Law: A New Lens" on the morning of November 8, which will provide attendees an interactive experience grounded in legal baselines, policy guidance, and the articulation of probing questions that should drive institutional action where considerations of race and ethnicity may be present in enrollment policy and practice. More details about Forum available here. The ADC Sponsor Breakfast is tentatively scheduled for November 6 from 8–9:30 a.m..
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