Brigid Harrington: As high court decision looms, colleges search for alternatives to affirmative action

At Harvard’s campus, in Cambridge, Mass., the university’s seal.

From The New England Journal of Higher Education, a service of The New England Board of Higher Education (nebhe.org)

The U.S. Supreme Court may ban race-based affirmative action for college admissions this year. But that does not mean that schools will abandon their diversity goals.

As administrators wait for the high court to issue its final decision in two key affirmative-action cases, they are figuring out how they can continue to create the heterogenous campuses they want.

It is not an easy task. In an effort to increase racial diversity on campus, many colleges already have experimented with changing early action and legacy rules to no avail. “There is no replacement for being able to consider race,” Olufemi Ogundele, the University of California at Berkeley’s dean of admissions, recently told The Washington Post. “It just does not exist.”

Still, schools are searching for viable alternatives. The justices signaled during oral arguments last fall that they were ready to overturn their 19-year-old ruling that allowed race to be a factor in admissions decisions. Even back in 2003, the court maintained that race was not the ideal way to achieve diversity, saying racial preferences would no longer be necessary within 25 years.

In the two cases currently before the court, Students for Fair Admissions sued Harvard University as well as the University of North Carolina (UNC), arguing that it was unconstitutional to use race as part of the holistic admissions process. The court is expected to issue its ruling in June.

Judicial scholars expect that the court will make no distinction between public and private universities, banning affirmative action for nearly every school. Groups that filed amicus briefs in the current cases argued for two exceptions: for certain faith-basedschools, which say their mission is to help the historically disadvantaged, and for military academies, which contend that diversity in the officer corps is critical for military cohesion. It remains to be seen how, or if, the court will consider such exceptions.

The vast majority of colleges include diversity as part of their mission statements. But they will now need to engage in some deep soul-searching to decide what diversity really means to them. Do they want only students of different races on campus or do they really seek diversity of student viewpoints and life experiences?

To be sure, race – especially in America – influences a person’s life experience, and most colleges would agree that having students interact with classmates from other races in itself is valuable. But there are many other types of diversity, too, and schools may want to balance them all, including cultural, religious, geographic and socio-economic diversity.

Colleges that do not engage in race-based affirmative actions have tried a variety of approaches to achieve diversity based on socioeconomic and other factors. Texas launched an innovative model more than 20 years ago, later adopted by Florida and California schools, that guarantees students admission to its flagship public universities if they graduated in the top 10 percent of their high school classes. This “top 10 percent plan” quickly became controversial and has had mixed results. It boosted Hispanic enrollment at leading public universities, but not Black enrollment, according to an analysis by The Texas Tribune. The law had minimal effects on application rates from low-income high schools, other analyses found.

Another potential approach: ending early admission. These programs are used mostly by affluent students with access to savvy college counseling, who know it’s far easier to get into top-rated schools by applying early. But ending the practice may not make much difference unless a lot of schools agreed to simultaneously make such a change. Harvard University ended early admissions in 2007 for five years, urging other Ivy League schools to join them. But when no other colleges halted their programs, Harvard’s ability to attract historically disadvantaged students plummeted. Top minority students simply chose other Ivy League colleges. After five years, Harvard restarted its early-action program.

In their search for alternatives to race-based affirmative action, some colleges may consider eliminating legacy preference programs. Since the vast majority of legacies are Caucasian, some education experts view this practice as unfair and arcane. Top British universities, such as Oxford and Cambridge, ended legacy admissions long ago in the name of equity, but American university administrators have argued that the number of legacies is so small that it wouldn’t affect diversity much.

Colleges that have ended legacy admissions report vastly different experiences. The University of California schools did not improve their diversity by banning legacy admissions. But Johns Hopkins University, which stopped legacy preferences in 2014, has seen a substantial increase in minority enrollment in recent years. The number of undergraduate minorities jumped by more than 10 percentage points between 2009 and 2020, and now more than one-fourth of the university’s undergraduates are minorities.

There’s one key difference between Hopkins and the University of California schools: affirmative action. Unlike the University of California, Hopkins still considers race as a factor in admissions. If the Supreme Court rules that all colleges – including Hopkins – must be race-blind, it’s not clear whether banning legacy admissions would make much difference.

Some colleges are thinking about focusing on socio-economic diversity rather than race, which could wind up increasing the number of historically-disadvantaged minorities since many such students are low-income. But that could prove tricky, too. Outside of the rarefied world of Harvard and UNC, there are limits to how many students from low-income backgrounds some colleges can admit because of financial constraints. Many simply do not have enough scholarship money to offer to these applicants.

In a race-blind admissions world, colleges may need to resort to asking its applicants for help. If they require a new essay, asking students how they could contribute to diversity on campus, they may discover all kinds of new ways to create the educational melting pot they really want. It may be schools’ best hope.

Brigid Harrington is a lawyer at Bowditch & Dewey LLP a Massachusetts firm. Her practice focuses on issues facing institutions of higher education. Email: bharrington@bowditch.com.

The tricky challenge of managing public speech on campuses

BOSTON

Via the New England Journal of Higher Education. See nebhe.org)

Free speech is fast becoming a hot-button issue at colleges in New England across America, with campus protests often mirroring those of the public-at-large on issues such as racism or tackling institution-specific matters such as college governance. On the surface, the issue of campus free speech may seem like a purely legal concern, yet in reality, colleges should also treat it as a public relations problem.

What the public does not generally understand is that the First Amendment right to free speech is not absolute. It is much more nuanced. People cannot just say what they want whenever they want, and certainly not on college campuses. There is no right to free speech at private educational institutions, and speech can be restricted to a certain degree at public institutions. To be clear, even a public higher-education institution has the right to impose certain restrictions on protest activities.

Yet just because a college can limit speech does not mean that it should. Colleges are loathe to take any action perceived as encroaching on free speech, thus undermining their image as centers of learning, creative thinking and open discourse. College campuses should be seen as places that encourage independent thought and social awareness even to the point of protest. But, at the same time, higher ed institutions must always keep safety and the educational mission at the forefront of their daily operations.

So how can colleges avoid damaging their educational franchise while still maintaining a safe and orderly campus? The answer is planning, communication and positive messaging.

From an institutional perspective, protests today bear little resemblance to those that stole the headlines in the 1960s and 1970s. Back then, there were no computers, cell phones, Internet or e-mail, and schools were often blindsided by student activism. Today, schools know protest plans well in advance, since most are coordinated through social media. That means the administration has the opportunity to work with protestors, actually helping to shape the protest and establish expectations.

Viewed this way, campus protest is much like an organized chess match, in which both the school and the students have the opportunity to anticipate and plan for the opposition’s next moves. Doing that effectively requires advance planning.

Delegating protest oversight and control to a small and nimble decision-making team is one approach that has proven effective. Members of the team might include the provost, the VP for student affairs, the director of public safety and the VP of communication. A few student affairs professionals can then be designated to work closely and proactively with protest leaders.

Having school officials on the ground level of a protest ensures that the school has all the inside information it needs to formulate its game plan. Such plans can then be customized to each individual demonstration, whether the protest be over racial discrimination, college governance or endowment investment.

Creating and disseminating protest restrictions well in advance (preferably in student handbooks at student orientations) establishes the rules of engagement. Schools should make clear that these guidelines comply with federal, state and local laws, and they should articulate institutional policies and procedures. Schools can then rely on these rules to work with protestors to set limits on the time, place and manner of the demonstration. For example, a school may choose to prohibit protests during final exams. Or it may allow protests on the college green, but not within the administration building. Managing expectations well in advance of a protest diminishes the potential for the type of confusion or emotion that causes unmanageable disruptions.

Communications before, during and after a protest are critical. A college should use social media to its advantage, engaging directly with students, setting expectations and boundaries, and controlling its public image. With a media plan in place, press releases and social media posts can be drafted well in advance of the day of the protest. This way, a school can tailor its message and ensure that anyone speaking on its behalf stays on message when dealing with the media. The goal is to avoid those cringe-worthy public comments made when unprepared school officials speak off the cuff. It does not help the school’s public image if it appears that the administration and the students are at odds.

By working with protesters, colleges and universities can present demonstrations and campus dissent as an opportunity for discourse. That, in turn, can turn a potential public relations problem into a positive and sanctioned part of the educational experience.

AiVi Nguyen is a partner and Anthony Dragga an associate at the Boston law firm of Bowditch & Dewey, LLP. Both focus their practices on business and employment litigation.