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Inside Higher Ed | News

  • WASHINGTON -- The U.S. Supreme Court agreed Monday to review the constitutionality of the consideration of race and ethnicity in college admissions cases. And many legal experts believe the justices are likely to be skeptical of such consideration.

    The case involves the admissions practices at the University of Texas at Austin. It is possible that the Supreme Court could rule in a narrow way about UT. But the case also gives the justices, several of whom are dubious of the legality of the consideration of race by schools and colleges, a chance to limit or ban the consideration of race in college admissions. The case will now be heard in the fall, with a decision likely in early 2016. The issues in this case are also likely to be debated in the 2016 presidential race.

    As is the norm in cases it agrees to hear, the Supreme Court did not issue any explanation about its decision. But the notification that the justices would take the case confirmed, as expected, that Associate Justice Elena Kagan would recuse herself from consideration of the case. Kagan was solicitor general in the Obama administration before being appointed to the court, and presumably worked on the case in that capacity. With Kagan not voting, only three justices on the court are considered reliable backers of affirmative action.

    The Supreme Court on Affirmative Action in Higher Education

    • 1978: In Regents of the University of California v. Bakke, the court ruled that the medical school at the University of California at Davis could not reserve some slots with separate admissions standards for minority applicants. But the court also ruled that colleges could consider race and ethnicity in admissions decisions in ways that did not create quotas.
    • 2005: In Gratz v. Bollinger, the court ruled that the University of Michigan at Ann Arbor had unconstitutionally used an undergraduate admissions system in which underrepresented minority applicants received points on the basis of their ethnic or racial background.
    • 2005: In Grutter v. Bollinger, the court ruled that the University of Michigan's law school was within its constitutional rights in considering applicants' race and ethnicity because it did so through a “holistic” review and not by simply awarding points based on race and ethnicity.
    • 2013: In Fisher v. University of Texas at Austin, the court ruled that lower courts needed to apply “strict scrutiny” and not give colleges deference in reviews of challenges to the consideration of race and ethnicity in admissions decisions.

    The Supreme Court's 2013 ruling is in the same case that has now returned to the justices.

    Ruling 7 to 1, the court in 2013 found that the U.S. Court of Appeals for the Fifth Circuit had erred in not applying “strict scrutiny” to the policies of UT Austin. The case is Fisher v. University of Texas at Austin, in which Abigail Fisher, a white woman rejected for admission by the university, said that her rights were violated by UT Austin's consideration of race and ethnicity in admissions decisions. Fisher's lawyers argued that the University of Texas need not consider race because it has found another way to assure diversity in the student body. That is the “10 percent plan,” under which those in the top 10 percent of students at Texas high schools are assured admission to the public college or university of their choice.

    The 2013 ruling essentially raised the bar for colleges in terms of how they had to justify the consideration of race and ethnicity in admissions, but did not bar its use.

    In July 2014, a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit upheld, 2 to 1, the UT admissions plan. And it is an appeal of that ruling that the U.S. Supreme Court has again agreed to consider.

    The majority decision from the appeals court said that just because Texas could get some diversity based on the percent plan alone does not mean it can't do more than that. “An emphasis on numbers in a mechanical admissions process is the most pernicious of discriminatory acts because it looks to race alone, treating minority students as fungible commodities that represent a single minority viewpoint,” the judges wrote. “Critical mass, the tipping point of diversity, has no fixed upper bound of universal application, nor is it the minimum threshold at which minority students do not feel isolated or like spokespersons for their race.”

    Further, the appeals court said that the University of Texas is correct not to rely solely on the percent plan, which in turn works because of segregation. The plaintiff's “claim can proceed only if Texas must accept this weakness of the top 10 percent plan and live with its inability to look beyond class rank and focus upon individuals,” the decision says. “Perversely, to do so would put in place a quota system pretextually race neutral. While the top 10 percent plan boosts minority enrollment by skimming from the tops of Texas high schools, it does so against this backdrop of increasing resegregation in Texas public schools, where over half of Hispanic students and 40 percent of black students attend a school with 90 [to] 100 percent minority enrollment.”

    The dissent argued that the majority decision did not comply with the Supreme Court's 2013 decision. “At best, the university’s attempted articulations of ‘critical mass’ before this court are subjective, circular or tautological,” the dissent says. “The university explains only that its ‘concept of critical mass is defined by reference to the educational benefits that diversity is designed to produce.’ And, in attempting to address when it is likely to achieve critical mass, the university explains only that it will ‘cease its consideration of race when it determines … that the educational benefits of diversity can be achieved at UT through a race-neutral policy ….’

    “These articulations are insufficient. Under the rigors of strict scrutiny, the judiciary must ‘verify that it is necessary for a university to use race to achieve the educational benefits of diversity.’ It is not possible to perform this function when the university’s objective is unknown, unmeasurable or unclear.”

    What the Supreme Court says about these issues could be crucial to colleges nationwide. Many of them cite the idea of a “critical mass” as part of their explanation for a range of policies that consider race and ethnicity.

    Another key issue for many colleges other than UT is the question of how much deference to give to colleges generally on matters related to their desire for diverse student bodies. The 2013 Supreme Court ruling said that no deference should be given to colleges just for being colleges as opposed to other kinds of organizations. And that significantly increased the burden for colleges because many courts have said, historically, that they are hesitant to question decisions on such policies as admissions.

    The appeal filed by Fisher's lawyers, urging the Supreme Court to take the case, said that the appeals court had not in fact applied the required “strict scrutiny” to the university's actions.

    “At every turn, the majority was ‘persuaded’ by UT’s circular legal arguments, post hoc rationalizations for its decision to reintroduce racial preferences and unsupported factual assertions,” the brief says, adding that the Supreme Court “has a special interest in ensuring that courts on remand follow the letter and spirit of [its] mandates …. That institutional interest is triggered here as the Fifth Circuit applied strict scrutiny in name only.”

    In its reply brief, the University of Texas said the appeals court had indeed applied the Supreme Court's standards for reviewing the consideration of race in admissions. The Texas brief said Fisher's lawyers are in reality just trying to eliminate the right of colleges to consider race in any circumstance. “As is evident from their desire to eliminate racial preferences in education altogether, the real problem for petitioner and her amici is this court’s decisions … [that] establish that universities may consider race -- when narrowly tailored to their compelling interest in student body diversity.”

    Fisher was a high school senior when she first sued UT Austin in 2008. She enrolled at and graduated from Louisiana State University after she was rejected by UT, but has continued the legal case over her rejection.

    Why Supporters of Affirmative Action Are Worried

    Generally, Monday's announcement was praised by those who want to limit the way colleges consider race. Fisher issued a statement that said: “I am very grateful that the Supreme Court will once again hear my case. I hope the justices will rule that UT is not allowed to treat undergraduate applicants differently because of their race or ethnicity.”

    For its part, the University of Texas projected confidence. Gregory L. Fenves, president of UT Austin, released his own statement: “Our admissions policy is narrowly tailored, constitutional and has been upheld by the courts multiple times. We look forward to making our arguments before the Supreme Court later this year.”

    Molly C. Broad, president of the American Council on Education, similarly expressed confidence in a statement: “As they rehear the ‘Fisher’ case, we remain confident that the justices will continue to recognize the importance of diversity and show appropriate deference to the judgments made by the University of Texas, which inform its admissions policies and practices.”

    But many legal observers -- including plenty who favor the consideration of race in admissions -- are worried. The Supreme Court historically doesn't take up cases just a few years after a similar case, unless there is a specific desire to change things, or a split has developed among appeals courts. In this case, the case is the same one from just two years ago, and there are no conflicting appeals court rulings.

    Another reason for concern of affirmative action supporters is in simply counting justices with various voting records on government policies that involve race. Generally, the conservative wing of the court (Chief Justice John Roberts Jr. and Justices Samuel Alito Jr., Antonin Scalia and Clarence Thomas) has provided a solid four votes against government consideration of race, consistently arguing that such policies aren't needed today. The liberal wing of the court (which, excluding Kagan, includes Justices Ruth Bader Ginsburg, Stephen G. Breyer and Sonia Sotomayor) has generally been sympathetic to affirmative action.

    But while Justice Anthony M. Kennedy is talked about as a swing vote, and has voted with the liberal wing on issues such as same-sex marriage, that is not the case when it comes to race. In 2003, he dissented from then Justice Sandra Day O'Connor's decision upholding the consideration of race by the University of Michigan Law School. In his dissent, Justice Kennedy specifically questioned the idea of seeking a critical mass of minority students. He wrote that, at Michigan's law school, “the concept of critical mass is a delusion used by the law school to mask its attempt to make race an automatic factor in most instances and to achieve numerical goals indistinguishable from quotas.”

    Further, a book on Justice Sotomayor's arrival on the court has provided details about the 2013 deliberations on the University of Texas case that year, and suggests that Kennedy was prepared then to write a strong rejection of the university's admissions policies and watered down his opinion to attract more justices in what was reportedly a deeply divided court. Many experts suggest that this suggests Kennedy's vote will be a hard one for the University of Texas and supporters of affirmative action to win.

    Tom Sullivan, a lawyer who is also president of the University of Vermont, said he still believes Justice O'Connor got it right, and that “diversity in higher education is a public good.”

    But he added that the task for the University of Texas will be difficult. “Given the multiple reviews of this case by the court, the university's plan might well receive less deference than previous rulings," he said.

    Rod Smolla, who starts this week as the dean of Widener University Delaware Law School and is author of The Constitution Goes to College, said via email that he would be surprised if Justice Kennedy backed the University of Texas. “The question, in my judgment, is not whether the current principles governing race-conscious admissions will be altered, but rather how much they will be altered. Justice Kennedy is likely to tighten the current principles in a manner less hospitable to affirmative action. This could range anywhere from a complete abolition of race-conscious admissions, to requiring some form of stronger showing that no race-neutral alternatives to achieving more diverse student bodies will suffice. It is unlikely that Justice Kennedy would endorse the current regime of strong deference to the judgment of university officials on these issues.”

    Michael A. Olivas, director of the Institute for Higher Education Law and Governance at the University of Houston and author of The Law and Higher Education, is a strong supporter of affirmative action. He said that there was no real reason for the Supreme Court to take the case, and that leaves him concerned. He said that the University of Texas admissions process is “the most scrutinized admissions process in higher education” in the last 20 years. And he said it is largely the same as it was in 2013.

    He said that the Supreme Court should not have allowed Fisher, “who has graduated from college and who therefore has no more standing, [to] continue to get a bite at the apple.” That the Supreme Court would take the case is “disconcerting,” he said. “Once the Supreme Court acts, it ought to leave it alone.” Having agreed to another review, Olivas said, Fisher's suit becomes “the case that will not die.”

     

    Affirmative Action
  • Campus hearings, even when they’re regarding an activity as serious as sexual assault, are not courtrooms.

    It's a distinction that the U.S. Department of Education has embraced, requiring colleges to conduct their own investigations into claims of sexual assault, and to adjudicate those cases under Title IX of the Education Amendments of 1972. Colleges use “preponderance of evidence” instead of “beyond reasonable doubt” as the standard of proof. If a student is found in violation of campus rules, he or she is “responsible” for the misconduct, not “guilty” of a crime. The potential punishments are writing assignments, suspension or expulsion -- not prison.

    In the past, there were no lawyers or judges, just panels of faculty, students and administrators. But that's beginning to change at some colleges, where outside judges -- typically retired state judges -- are being hired to oversee hearings. The hearings are still held under college rules, not state rules for courts.

    Critics worried that campus sexual assault hearings are nothing but a kangaroo court that ignores the accused’s due process rights are praising the change. Some victims’ advocates, however, worry that turning a campus hearing into a courtroom could replicate the same perceived pitfalls of the legal system that have led many victims of sexual assault to turn to Title IX in the first place.

    “There is a distinct subset of people in schools that are of the opinion that external adjudicators are the way to go,” Peter Lake, a law professor and director of the Center for Excellence in Higher Education Law and Policy at Stetson University, said. “I think people are experimenting with a variety of different models, and there are some who think that working with highly professionalized external adjudicators is the right pathway, especially in complex or high-profile cases. It's uncharted territory. We're essentially creating a college court system.”

    Colleges that opt to use outside adjudicators, Lake said, don’t often advertise that fact, so it’s difficult to get a read on how common the practice currently is.

    Brett Sokolow, president and CEO of the National Center for Higher Education Risk Management, said he couldn't comment on which colleges use outside adjudicators, but noted that a few of NCHERM's clients do use judges now. It’s not a system he recommends, though.

    “I am hearing about it more,” Sokolow said. “Generally I don’t think judges are a good idea, as it makes the process more legalistic and held to higher standards in terms of later legal challenges.”

    In 2013, Swarthmore College hired former Pennsylvania Supreme Court Justice Jane Greenspan to adjudicate cases of sexual assault there. Like most colleges, cases of sexual assault at Swarthmore were previously brought before a panel of students and faculty members. Under the previous system, Swarthmore faced lawsuits from both victims and accused students over how it handled sexual assault allegations.

    In December, Florida State University hired retired Florida Supreme Court Justice Major Harding to adjudicate the hearing of Jameis Winston, the university’s star quarterback. FSU faced intense scrutiny over its handling of allegations that Winston raped a female student. The university was aware of the allegations for two years before scheduling the hearing.

    By hiring Harding -- a seemingly impartial party with no stake in the performance of the university’s football team -- FSU hoped to avoid any further accusations that it was shielding Winston from being punished. John Banzhaf, a law professor at George Washington University, has long argued that colleges should use outside adjudicators to remain impartial. Banzhaf has also suggested creating regional consortiums independent of any one college that could be brought in to decide cases of sexual assault.

    “Retired judges and others trained to evaluate evidence could better and more fairly, free from any possible biases, determine the truth, much better than professors of computer science or geology who today often make up the disciplinary panels on many campuses,” Banzhaf said.

    Having experience as a criminal judge doesn’t always equate to having experience with campus administrative procedures, however, and the differences between the two can muddy the process. A transcript of Winston’s hearing in December revealed that Harding, the former Florida Supreme Court justice, and some of the lawyers acting as advisers to the students in the case were sometimes unaware of how the hearing was supposed to proceed, including whether lawyers were permitted to listen in on the hearing and who was meant to speak and when.

    The university attempted to bring Harding and the advisers up to speed with a briefing about the process, according to the transcript, but the session wasn’t completed before the hearing began. Harding ruled that both students' versions of the events were equally probable, thus the evidence was “insufficient to satisfy the burden of proof.”

    “There is a challenge in getting somebody who is extremely talented as a jurist or an investigator, but isn’t perhaps specialized in Title IX training or campus culture,” Lake said. “That’s a little harder to pick up unless those folks are especially trained in it. There’s no question that we’re moving from a more amateur system to a more professionalized one, and if that’s happening we’re going to need to build a culture of professional individuals who are highly trained in both internal and external processes.”

    Another way the campus model is becoming professionalized, Lake said, is the increasingly involved role of lawyers. In the past, accusers and the accused have been allowed to consult with lawyers, but only in an advisory role. That’s changing, too.

    Inspired by fears that the federal government’s pressure on colleges to better investigate and adjudicate cases of campus sexual assault is leading administrators to trample on the due process rights of accused students, North Dakota and South Carolina are both considering legislation that would allow attorneys to more fully participate in campus proceedings on behalf of accused students.

    North Carolina already passed a similar bill last year, and students in Arkansas now have the right to an attorney when appealing “nonacademic” suspensions or expulsions.

    The Foundation for Individual Rights in Education called the North Dakota legislation “sorely needed,” saying that the bill would provide students with “a powerful new tool to ensure that their rights won’t be trampled on.” In a letter sent to state legislators in February, NASPA: Student Affairs Administrators in Higher Education disagreed, saying that the “approach ignores the balance set by the U.S. Supreme Court regarding the scope of accused students’ due process rights” under the Constitution.

    Laura Dunn, executive director of SurvJustice, a victims' advocacy group, said that that the involvement of legal professionals in Title IX hearings is a good thing, but that lawyers should not participate in the actual hearing. They should remain in an advisory role, said Dunn, who is herself a lawyer who attends campus hearings on behalf of victims.

    Rather than shoehorning lawyers and judges into the campus model, she said, colleges should instead focus on making sure their employees are appropriately trained in legal and campus procedures.

    “We’re not in a court, we’re in a hearing about a school’s code, and I think there is a value to not making it like a courtroom,” Dunn said. “This is not a criminal court or a civil court, it’s an administrative hearing. In some ways it makes sense to have outside investigators and to make sure Title IX coordinators are actual lawyers and make sure they’re complying with law, but those people don’t inherently need to be an actual judge.”

    Students and Violence
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  • The University of Texas System employs more than 15,000 faculty members. Why are they so difficult to find online?

    The university system believes it has solved that problem with Influuent, a searchable database of facilities and researchers. The website, which launched last month, centralizes what used to be 15 separate sites listing the faculty experts working at the nine universities and six medical centers in the system.

    Influuent (the university says the name is a combination of “influence” and “influunt,” the Latin word for “flow”) is being developed as more than just a faculty directory. For the private sector, administrators say, the database could serve as a starting point for commercial partnerships; for faculty members, a “matchmaking” site for research projects; and for journalists, a catalog of experts available to comment.

    The Texas system is the most recent to reconsider how it can use websites such as Influuent to communicate the work taking place on its campuses to the world outside academe. Faculty members in the system have produced nearly 110,000 publications in the last five years alone, and with a new platform in place, system leaders see an opportunity to publicize that research and demonstrate the value of higher education.

    During Rick Perry's time as governor, the system was forced to defend itself against what some critics called a “faculty productivity gap” -- that some “star” faculty members were bringing in research dollars while others were simply “coasting” along. To combat that assumption, the system will maintain a social media presence for Influuent, promoting new research on platforms such as LinkedIn and Twitter.

    “As a system office, we don’t have the day-to-day issues of running a university,” said Stephanie A. Bond Huie, vice chancellor for the Office of Strategic Initiatives. “We have an opportunity to showcase the amazing work that our faculty do.”

    But Influuent is as much -- if not more -- about bringing resources into the university as it is about sending information out. With Congress likely to keep flat or slash funding for grant-making agencies, many universities are looking elsewhere to bolster their research budgets.

    Federal funding makes up nearly half -- 49.7 percent -- of the roughly $2.5 billion the Texas system spends on research and development a year, Huie said. Private sector investments total less than a quarter, or about 21 percent, but the system hopes to increase that share by making it easier for faculty members and industry to connect.

    “Universities are having to change the way we do business,” Huie said. “The University of Texas System said, ‘We need to put ourselves out there. We’re not going to wait for companies to come to us anymore. We’re open for business.’”

    Before Influuent, individual universities and medical centers in the system were in charge of their own faculty expert websites. That decentralized approach led to fragmentation, Huie said. For example, a pharmaceutical company interested in finding researchers and a lab to test a new drug might have searched the MD Anderson Cancer Center’s website for potential partners, but in the process overlooked researchers at the Simmons Cancer Center and the UTMB Cancer Center.

    A search for “cancer” on the Influuent website, by comparison, brings up researchers across the system. Clicking on a name pulls up a profile of research interests, publications and co-authors, and users can quickly pin multiple researchers at different institutions and send them an email through a single contact form.

    Influuent keeps the website up-to-date by pulling data every week from Scopus, the citation database owned by Elsevier. That means faculty members don’t have to worry about updating their profiles, Huie said.

    “There’s no work on the faculty’s part,” Huie said. “Faculty members don’t necessarily have time to go out, meet with companies, do deals and say, ‘This is what I do.’”

    Copies of the emails sent to researchers through Influuent go to the system office, which plans to follow up with researchers to track if the emails lead to partnerships and funding. In the future, the system hopes to expand Influuent with grants, patents and badges for faculty to indicate which stage of the research process they are in.

    The Texas system consulted university leaders in Michigan and North Carolina as they were developing Influuent, Huie said. In Michigan, six public universities in 2011 banded together to form the Michigan Corporate Relations Network, or MCRN, in response to a challenge from the former University of Michigan President Mary Sue Coleman to “partner or perish” (a play on the academic adage “publish or perish”).

    The six universities received about $35,000 to help set up business engagement offices at their campuses. The initiative has also spawned a series of programs to help small- and medium-sized businesses and keep college graduates from leaving the state in the aftermath of the financial crisis.

    Stella Wixom, executive director of the office at the University of Michigan, said the first grant to the MCRN created 116 new jobs through co-funding research projects and internships, and more than $500,000 in financial benefits for the companies that participated. The network is in its second grant cycle and will seek a third, she said.

    Influuent strongly resembles the MCRN’s Expertise and Resource Portal, which also pulls data from Elsevier. By compiling faculty experts across institutions in one database, Wixom said, business engagement offices can now more easily refer inquiring companies to researchers at other universities, should there be a better match there.

    “Typically we’re very competitive with each other,” Wixom said about Michigan and the other universities in the state. “What we realized is that’s OK on the football field… but as a state, we needed to work together.”

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    University of Texas System

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CRLA 48th Annual CRLA Conference - Portland

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