The latest happenings in federal education policy and national news
CollegeBoard
 
The Access and Diversity Collaborative's Quarterly Update
News and Developments of Note
March 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
Admissions Practices and Campus Policies
Title IX
Campus Climate and Equity
Cost of Higher Education and Federal Student Aid
Pathways to Post-Secondary Education
ADC in Action
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, and December 2018 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. At the hearing, Judge Burroughs raised challenges to both sides, including that SFFA’s lack of student testimony was a “problem.” Court reactions during that hearing do not necessarily reflect how the judge will ultimately rule, and the judge may take as long as she needs to make a decision.
Relevant Articles
On February 14, the Boston Globe published an article titled "In Harvard affirmative action case, judge appears skeptical," which discusses the details of the final oral arguments hearing held on February 13.
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, applying materially lower standardized test score thresholds to African Americans, Hispanics and Native Americans and admitting them at significantly higher rates as compared to Whites and Asians; aims to better reflect state demographics; does not aim to achieve critical mass tied to educational benefits (asserting that critical mass must be the goal, defined and measurable, but is not, and that “UNC has shown no interest in creating an academic environment where URMs will thrive academically,” citing to academic struggles of African American males and the “’paper classes’ scandal”); and “considers race even when the application gives no indication that race affected the student’s life in any way.” SFFA also asserts that UNC’s use of race is unnecessary due to the availability of workable race-neutral alternatives, citing to, among others, socio-economic diversity and UNC’s amicus brief filed in Fisher v. University of Texas at Austin which addressed its Admission Office’s 2012 study on the positive effects on diversity of implementing a top 10 percent plan.

UNC denies SFFA’s claims and argues that it actively engages diversity in specific curricular and co-curricular programs to gain educational benefits grounded in research offered by UNC’s expert and affirmed in 50 declarations of administrators, faculty, staff, students and alumni. Citing challenges enrolling black males, Latinos, and Native Americans as an impediment to providing all students the educational benefits of diversity, UNC asserts it considers race as a “plus” but not as a “dominant” factor in the overall admission program, and does not use racial quotas or set-asides. UNC describes the rigor and quality control embedded in its holistic review process; and asserts that readers are unaware of the racial composition of the class and UNC never revisits decisions to increase admits of any race. Additionally, UNC asserts that, 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.

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 replies are due by 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 on summary judgment.
Relevant Articles
On January 18, The Chronicle of Higher Education published an article titled “That Other Affirmative Action Case: The Battle Over UNC’s Admissions Policies Heats Up,” which provides insights into the motions for summary judgement that both UNC and SFFA filed on January 18.
On January 18, the New York Times published an article titled “U.N.C. Admissions Lawsuit Brings Another Attack on Affirmative Action,” which discusses the similarities and differences between the Harvard and University of North Carolina lawsuits, and provides a brief update on the status of both cases.
Admissions Practices and Campus Policies
Relevant Articles
On March 4, Inside Higher Ed published an article titled “Survey finds that most Americans say colleges shouldn’t consider race in admissions,” which shares the findings from a January and February 2019 survey conducted by Pew Research Center in which nearly three-quarters of Americans responded that race/ethnicity should not be considered in college admissions. This opinion held steady across respondents of different races.
On February 18, The Chronicle of Higher Education published an article titled “For a Dissatisfied Public, Colleges’ Internal Affairs Become Fair Game,” which discusses the ways in which changing public opinion is influencing legal, policy, and funding for higher education.
On January 26, The Wall Street Journal published an article titled “Colleges Mine Data on Their Applicants” which discusses the ways in which some institutions of higher education are tracking applicants’ digital interaction with the school and using this as an indication of “demonstrated interest” in the review of their application.
On January 15, The Atlantic published an article titled “Community-College Students Succeed at Elite Schools—When They’re Admitted,” which discusses a new report from the Jack Kent Cooke Foundation. Among other findings, this report found that community-college students who transfer to highly selective institutions graduate at higher rates than first-time freshmen. The article also notes that few highly selective institutions accept many transfer students.
Title IX
On January 30, Senate Health, Education, Labor, and Pensions (HELP) Committee Ranking Member Patty Murray (D-WA) and 35 other Senate Democrats sent a letter regarding U.S. Department of Education (USED) Secretary Betsy DeVos's proposed rule on Title IX regarding sexual harassment in educational institutions receiving federal funds. The letter expresses the Senators' concern with how the proposed rule would "actively undermine the work of students, schools, and experts across the country to develop strong disciplinary proceedings and school processes to address the scourge of sexual harassment and assault on America’s school campuses.” A press release is here. For more information on the proposed Title IX rule, see the December 2018 Newsletter.
On January 30, House Education and Labor Committee Ranking Member Virginia Foxx (R-NC) submitted a letter in support of the USED proposed rule on Title IX as it relates to sexual harassment in educational institutions receiving federal funds. A press release is here.
Relevant Articles
On February 12, the New York Times published an article titled “Rule Could Limit College Response to Off-Campus Sex Assaults,” which discusses the implications the U.S. Department of Education’s proposed Title IX rule would have for an institution’s responsibility to investigate off-campus assaults.
On January 31, MLive reported that the Office for Civil Rights at the U.S. Department of Education “will investigate whether [the University of Michigan] excludes individuals or denies benefits of programs or activities on the basis of sex.” This investigation is in response to a claim filed by a University of Michigan at Flint professor. The full article is here. The letter from OCR to the University of Michigan is here.
Campus Climate and Equity
On January 28, the American Institutes of Research (AIR) published a report titled, "National Survey of Postsecondary Competency-Based Education" that compiles data gathered from the national survey of postsecondary institutions regarding the use and perception of competency-based education programs. Key findings of the report include identifying that most institutions see competency-based education as a way to serve nontraditional students and improve workforce readiness; that most institutions currently serve a small number of students; and that most institutions are optimistic about the future of competency-based education.
Relevant Articles
On February 18, The Chronicle of Higher Education published an article titled “The End of the Remedial Course,” which discusses the California State University system’s decision to offer corequisite remediation instead of freestanding remedial courses.
On February 9, 2019, The Atlantic published an article titled “Yearbooks Aren’t the Only Place to Find Blackface on Campus” that discusses recent incidents of blackface on campus and campus responses, as institutions move to examine historical occurrences of racism.
Cost of Higher Education and Federal Student Aid
On February 21, USED announced it had finalized a contract with Accenture Federal Services to build a digital platform for student loan borrowers to manage their loan payments. The contract, awarded for $577 million, will last for five years and tasks Accenture with developing a single portal for student loan borrowers. Currently, borrowers have their payments and repayment plans managed by nine servicers hired by the Department. POLITICO has more information here.
On February 4, Senate Health, Education, Labor, and Pensions (HELP) Committee Chairman Lamar Alexander (R-TN) delivered remarks at an American Enterprise Institute event titled, "An agenda for higher education reform.” During the event, the Chairman outlined his priorities when pursuing reauthorization of the Higher Education Act (HEA). Chairman Alexander expressed that he would like to report a bill out of the HELP Committee by this spring and have the Senate pass a bill by the end of the summer. Included within the bill, the Chairman would like to see simplification of the Free Application for Federal Student Aid (FAFSA), the creation of a new income-based repayment plan, and the creation of a new accountability system for colleges based on borrower repayment of loans. A press release from the Chairman is here. The full video of his remarks is here.
On January 28, Third Way published a report titled, "Ripple Effect: The Cost of the College Dropout Rate" that examines average completion rates for four- and two-year colleges and universities in the United States and determines an economic impact of the dropout rate. Key findings of the report include identifying that if there was a graduation rate of 84%, employment would increase by 107,400 jobs; that wages would increase by $4,849 for two-year degree holders; and that the number of those facing poverty would decrease by 48,000.
On January 9, the Government Accountability Office (GAO) released a report titled, "Better Information Could Help Eligible College Students Access Federal Food Assistance Benefits.” The study examined college student use of the Supplemental Nutrition Assistance Program (SNAP) compared to student eligibility. The report found that less than half of the 3.3 million students who are eligible for SNAP benefits used the program.
On December 18, the National Center for Education Statistics (NCES) published a report titled, "Why Didn't Students Complete a Free Application for Federal Student Aid (FAFSA)? - A Detailed Look.” Key findings of the report include identifying that 65% of students or their parents completed the FAFSA; 33% of students who did not complete the FAFSA thought their family could afford school or college without financial aid; 32% of those not applying thought they or their family may be ineligible or not qualify for financial aid; and 28% did not want to take on debt.
Pathways to Post-Secondary Education
On February 20, the Alliance for Excellent Education published a report titled, “Building a Fast Track to College.” The report examines data to determine the opportunity for dual enrollment programs between high schools and colleges. Key findings of the report highlight that, by the end of 11th grade, 25% of high school students are academically prepared to start college-level course work; that over 850,000 students in 12th grade are enrolled in courses that fall below their academic abilities; and that 43% of all college credits are lost when a student transfers between high school and college.
ADC In Action
Recent Events
On January 16, 2019, the ADC hosted a webinar titled “Federal Non-Discrimination Law: Implications for Higher Education Financial Aid and Scholarship Policies and Programs.” This webinar, conducted by Art Coleman and Jamie Lewis Keith of EducationCounsel, focuses on issues of federal non-discrimination law, including Title VI, relevant to scholarships and financial aid. Incorporating federal court admission decisions associated with student diversity, as well as USED non-discrimination policies and OCR case resolutions involving claims of discrimination in aid, the webinar provides insight into and ideas about strategies and action steps that can help achieve institutional goals associated with diversity, while also mitigating legal risk.
Sponsor Spotlight
On February 15, the American Council on Education published a report titled, “Race and Ethnicity in Higher Education: A Status Report.” The report examines multiple indicators as they relate to higher education—both access and attainment—such as race, ethnicity, age, and location. Key findings of the report include identifying that in 2017 approximately 40 percent of U.S. adults ages 25 and older had attained an associate’s degree or higher; that Asian Americans had the highest percentage of attaining a bachelor’s degree (30.7%), while Hispanic Americans had the lowest percentage (12.2%); and for all Americans, there was an increase of five percentage points for attaining a bachelor’s degree since 1997.
On January 30, Smith College announced a series of new inclusion, diversity, and equity initiatives with the intention of reducing the number of bias related incidents on campus. These initiatives focus on three areas: “1) policing policies and training; 2) employee training; and 3) cross-campus education focused on culture change.” These initiatives are part of the institution’s response to an incident of racial bias in an interaction between a student of color and a campus employee during the summer of 2018.
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 emily.webb@educationcounsel.com.
Upcoming Publications:
Financial Aid and Scholarships: A Federal Non-discrimination Law Primer

College Board and EducationCounsel will publish a financial aid primer this spring, which will:
1.
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;
2.
Synthesize key points of law and policy in a format designed to facilitate meaningful on-the-ground dialogue and action; and
3.
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
College Board Forum—November 6–8, 2019 in Washington D.C. More details available here.