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The Access and Diversity Collaborative's Quarterly Update:
News and Developments of Note

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April 2020

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. We also highlight relevant sponsor news and updates on ADC publications and events.

COVID-19 and Institutions of Higher Education
In just a few short weeks, COVID-19 has completely upended all aspects of our lives and our society. College admissions and campus life are no exception. Institutional leaders have made and continue to make many consequential decisions in support of the safety and health of students, faculty, and staff; and to establish virtual learning opportunities for courses and other programs.  We remain in a period of adapting to a “new normal” in light of these changes, and more.
 
As students, faculty, and staff have their personal and professional lives significantly altered by COVID-19, this crisis notably highlights and exacerbates existing inequities central to the work of the ADC. Thus, as decisions are and continue to be made, it is crucial that institutions approach these decisions with a laser focus on issues of access and diversity relevant to present and prospective students.
 
For the foreseeable future, the Access and Diversity Collaborative will supplement our work with information that may support our organizational and institutional sponsors.  Please feel free to share relevant information and ideas in coming weeks with us.
 
Relevant Sponsor Resources
  • The American Association of Collegiate Registrars and Admissions Officers (AACRAO) developed sets of guidance by topic areas including Admissions, FERPA, Financial Aid, Grades, and Transcripts for institutions to consider as they consider policy changes during COVID-19.
  • The National Association of Student Financial Aid Administrators (NASFAA) is compiling resources on COVID-19 and financial aid, which is being continuously updated as new information arises.  
  • Through its Engage platform, the American Council on Education (ACE) is compiling resources, supporting discussions among institution leaders, and hosting webinars on topics related to COVID-19 and higher education.
  • The National Association for College Admission Counseling (NACAC) is compiling resources on COVID-19 and college admissions, which is being continuously updated as new information arises. 
  • The Association of Public and Land-grant Universities (APLU) is compiling communication resources being used by public universities across the country regarding COVID-19.


Federal Court and Agency Enforcement Watch
Students for Fair Admissions, Inc. v. University of North Carolina-Chapel Hill, U.S. District Court for the North Carolina Middle District.  On September 30, 2019, the federal district court issued an order denying summary judgment to both Students for Fair Admissions and the University of North Carolina—Chapel Hill. The trial of the case has been delayed for reasons associated with the coronavirus pandemic and is now scheduled to begin on November 9, 2020.  In its denial of summary judgment order, the court addressed three issues expected to be central at trial:
  1. the sufficiency of UNC’s articulation of its diversity goals and objectives (including its definition of critical mass)
  2. whether race was a permissible “plus” or unlawful “dominant” factor in admissions; and
  3. whether UNC had pursued all workable race-neutral alternatives as a foundation for its consideration of race in admissions.
For a more detailed summary of the summary judgment denial, see ADC’s December 2019 newsletter
 
Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, First Circuit Court of Appeals. On September 30, 2019, the U.S. District Court for Massachusetts rendered a decision in Students for Fair Admissions v. Harvard. In the decision, the district court addressed and rejected four claims of discrimination by the plaintiff that Harvard unlawfully pursued racial balancing; considered the race of applicants in a mechanical way; failed to pursue viable race-neutral alternatives in lieu of its consideration of race; and engaged in intentional discrimination against Asian Americans.
 
In October 2019, the ADC hosted a webinar on the federal trial court decision, a recording of which is available here. Additionally, in January 2020, the College Board and EducationCounsel published a brief that provides a summary of the decision along with an overview of  the relevant legal precedent that informed the district court's ruling. In addition, it includes:
  1. A segment that distills and analyzes the approximate 40 pages of analysis regarding the competing statistical models and conclusions pressed by the parties.
  2. Major takeaways from the district court's decision, along with implications for institutional  action.  
On February 18, Students for Fair Admissions (SFFA) filed its opening brief for its appeal of the September 30, 2019 ruling of the U.S. District Court for Massachusetts in favor of Harvard University.  SFFA asserts the lower court’s decision should be reversed on the following grounds:
  1. Evidence shows that Harvard “imposes a racial penalty on Asian-American applicants” and that the district court’s decision to decide in favor of Harvard despite a “mountain of evidence” of this discrimination is reversible error. Notable elements of its argument  include—
    • Under strict scrutiny, the uncertainty and “doubts” regarding penalties faced by Asian-American applicants should have led to a decision for SFFA.  Harvard is not entitled “to the benefit of the doubt” under the exacting standards of strict scrutiny.
    • “Overwhelming” statistical evidences establishes discrimination against Asian American applicants, as depicted by an examination of the impact of personal and overall applicant ratings, with “nearly identical” distributions by race and ethnicity.
    • Non-statistical evidence affirms the statistics picture, with consideration of “highly subjective” selection criteria subject to misuse; a record of ignoring warnings about potential discrimination (with no action);  and post-litigation changes in policy and process.
  2. Harvard uses racial balancing, which “violates settled law.”  Notable elements of its argument  include—
    • A focus on outcomes, which reflect admitted subgroup percentages that “always fell within a narrow range;”
    • A focus on process, by which the racial composition of the class was tracked during the process of making admissions decisions to assure satisfaction of “racial targets;”
  3. The district court “misread precedent in allowing race to be used in [a] heavy-handed, limitless way” at Harvard, rather than “as a mere plus” to achieve the benefits of diversity. Notable elements of its argument include—
    • Harvard’s failure to examine all important facets of diversity (e.g., not considering an applicant’s self-reported religion; considering an applicant’s stated race, regardless of whether they “indicate that it is an important component of who they are).
    • That in “absolute terms,” race is “determinative” for at least 45% of all admitted African American and Hispanic applicants (approximately 1000 students over four years), in stark contrast to more limited effects in past Supreme Court cases;
    • That in “relative terms,” race “predominates” such that, in effect, racial groups “are operating on separate admissions tracks;”
    • Harvard’s consideration of race “has no end point” given the absence of any “sufficiently measurable yardstick” (including critical mass) tied toward the prospective end of such consideration.
  4. Harvard’s admissions process violates Title VI because it did not sufficiently pursue race-neutral alternatives “in good faith,” and failed to consider them at all prior to being sued by SFFA. Notable elements of its argument include—
    • A focus on one of its many proffered alternatives, and arguments that increasing the “tip” for low-income students while eliminating the “tip” for children of alumni, donors, faculty, and staff would “slightly increase the number of underrepresented minorities on campus, increase the number of Asian Americans, and drastically increase socioeconomic diversity” without “significant consequences to the strength of its admitted class;”
    • That Harvard effectively “thumbed its nose at the Supreme Court” for fifteen years” by “never” considering race-neutral alternatives “until this litigation.”
Additoinally, on February 25, the U.S. Department of Justice filed a brief in support of SFFA.  Harvard has until May 14, 2020 to file its response to SFFA’s brief.

Congressional and Federal Agency Advocacy and Action
  • On January 30, the Bipartisan Policy Center (BPC) published a report titled, "A New Course for Higher Education: Strengthening Access, Affordability, and Accountability." Key findings of the report include:
    •  recommending the renewal of the federal-state partnership in higher education;
    • reforming and expanding federal Pell grants; and
    • improving the performance of the federal student loan programs.
  • On January 21, USED announced the creation of a new center within the Office of Civil Rights (OCR). The "Outreach, Prevention, Education and Non-discrimination (OPEN)" Center is intended to focus on "proactive compliance" with federal civil rights laws. According to the Department, the Center will "provide assistance and support to schools, educators, families, and students to ensure better awareness of the requirements and protections of federal non-discrimination laws." 


Enrollment Policies
and Practices
  • On April 7, Educational Evaluation and Policy Analysis, a journal of the American Educational Research Association (AERA), published a study titled, “Long-Run Changes in Underrepresentation After Affirmative Action Bans in Public Universities.” The study evaluates the long-term impact of state “affirmative action” bans on “underrepresented minorities” at state public universities. The report finds that eliminating "affirmative action" resulted in “persistent declines in the share of underrepresented minorities among students admitted to and enrolling in public flagship universities in these states,” despite the institutions’ efforts to adopt alternative policies to support campus diversity.
  • On March 2, Third Way published a report titled, “Follow the Money: Recruiting and the Enrollment Priorities of Public Research Universities." The report argues that budget cuts to public research institutions created perverse incentives for these schools to recruit more “mediocre out-of-state students” who pay more in tuition. These institutions’ out-of-state recruiting trips occur more frequently than in-state trips and are more likely to visit whiter and wealthier high schools, which has implications for the socioeconomic and racial diversity of their incoming class. This change in tactics in an effort to draw in more “mediocre out-of-state students” has resulted in the institutions neglecting “high achieving, low-income in-state students,” who in turn often end up “undermatching” at community colleges. This is despite the fact that the mission of public research universities often includes an intentional in-state focus.  The report concludes by raising policy suggestions to address the perverse incentives created by decreased state funding for public research institutions.  
  • On January 28, the American Educational Research Association (AERA) published a report titled, "High School GPAs and ACT Scores as Predictors of College Completion: Examining Assumptions about Consistency across High Schools." The report summarizes a study of how high school grade points averages (GPAs) correlate to a student's likelihood of completing college. Key findings of the report include identifying that across schools, students with the same GPA graduate at different rates based on which high school they attended; that GPAs are more predictive of college completion compared to a student's ACT score; and that relationships between GPA, ACT scores, and college completion are significantly compounded by the high school a student attends.
  • On January 15, the Education Trust published a report titled, "Hard Truths: Why Only Race-Conscious Policies Can Fix Racism in Higher Education." The report provides recommendations for how institutions of higher education can respond to the “historically racist policies” that were used to exclude students of color. Key recommendations of the report include suggesting that institutions adopt a renewed commitment to affirmative action in higher education and should use holistic admissions; that institutions should provide more data that is disaggregated by race and ethnicity; and that federal funding should include state requirements that they work toward closing racial equity gaps.
  • On January 9, the Education Trust published a report titled, "Inequities in Advanced Coursework." The report summarizes an analysis of access to Advanced Placement® (AP®), International Baccalaureate® (IB®), and dual enrollment programs. Key findings of the report include identifying that Black and Latino students are successful in advanced courses, when they have access to participate; that Black and Latino students are not fairly represented in advanced courses; and that inequities are largely due to the under-enrollment of students in majority Black and Latino schools.
Relevant Articles

Financial Aid and
Cost of College
Relevant Articles
  • On February 13, The Chronicle of Higher Education published an article titled “They’re Leaving Low-Income Students in the Lurch’: Public Colleges Have Doubled Down on Merit Aid, Report Says.” This article discusses the key findings in a new report published by New America on the changes in ways public institutions spent their financial aid dollars between 2001 and 2017. Among other key findings, the report notes that the growth of merit aid for students without a demonstrated need has outpaced growth in need-based aid spending since 2014. These spending changes create new barriers for students from low-income backgrounds to attend public universities.

Student Experience
and Outcomes
Relevant Articles

ADC in Action

Sponsor Spotlight
  • Welcome New Sponsors: We are pleased to announce two new institutional sponsors have joined the ADC: University of Denver and Drexel University. The ADC now benefits from direct engagement of 64 institutional and 16 organizational sponsors.
  • In late December 2019, the American Association of Collegiate Registrars and Admissions Officers published a report titled, “Criminal and Disciplinary History in College Admissions,” which includes a set of recommendations for the use of disciplinary notations and criminal histories in admission. This guidance builds on AACRAO’s 2017 guide on transcript and disciplinary notations.
  • In 2019, the National Association for College Admission Counseling launched a new podcast titled “College Admissions Decoded,” which aims to demystify the admissions process. Recent episodes include “How Families Can Talk About Paying for College” and “ Demystifying the College Transfer Process: What Students and Families Need to Know.”
  • On February 20, the University of Southern California announced that starting in Fall 2020, students from families making less than $80,000 per year would be eligible for free undergraduate tuition. Additionally, USC also no longer plans to include the value of an owned home in its calculation to determine a student’s financial need.  In a statement accompanying the University’s announcement, USC Provost Charles Zukowski noted, “USC is committed to educating the strongest minds, independent of background or ability to pay…With this new initiative, we will be even better positioned to recruit students from all backgrounds and strengthen the USC experience for everyone.” Additoinally, President Carol Folt stated, “Investing in the talent and diversity of our student body is essential to our educational mission.” 
Upcoming Webinar

2020 promises to be a year of major legal developments associated with race-conscious admissions and student diversity.  Among the many policy and legal questions being raised in this context are those that center on race-neutral alternatives—what are they; how should they be evaluated? and what do courts say about them?  
 
To address these questions and more, the College Board Access & Diversity Collaborative will host a webinar on the Role of Race-Neutral Strategies in Advancing Higher Education Diversity Goals on May 28 (3-4:30 EST). This webinar will highlight claims and defenses relevant to these issues as they have been presented in the SFFA v. Harvard (appeal pending) and SFFA v. UNC (trial pending) federal court cases with cross-references to the ADC’s recently published The Playbook (2d. Edition).  Key topics will include:
  • The features of policies that are considered “race-neutral” under federal law and that may be effective with respect to race- and ethnicity-related diversity aims.
  • Important considerations when implementing race-neutral strategies such as conditions likely for success, potential roadblocks, and questions to consider.
  • The federal legal imperative of assuring the identification and evaluation of neutral alternatives as part of an ongoing periodic review of enrollment policies that involve the consideration of race.
An email with a registration link will be circulated ahead of the webinar.

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 (emily.webb@educationcounsel.com).
Website
The College Board is a mission-driven not-for-profit organization that connects students to college success and opportunity. Founded in 1900, the College Board was created to expand access to higher education. Today, the membership association is made up of over 6,000 of the world’s leading educational institutions and is dedicated to promoting excellence and equity in education. Each year, the College Board helps more than seven million students prepare for a successful transition to college through programs and services in college readiness and college success — including the SAT® and the Advanced Placement Program®. The organization also serves the education community through research and advocacy on behalf of students, educators, and schools. For further information, visit www.collegeboard.org.
 
EducationCounsel LLC is a recognized leader on issues of education policy, strategy and law as it works to close achievement gaps and improve education outcomes for all.  Education Counsel addresses an array of higher education issues, including those associated with student access; institutional quality; and student/faculty diversity, inclusion, and free expression.  An affiliate of Nelson Mullins Riley and Scarborough LLP,  EducationCounsel helps lead the work of the College Board’s Access and Diversity Collaborative and is responsible for the development of this newsletter.  For more information, please contact Art Coleman, Jamie Lewis Keith, or Emily Webb.


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