What to Watch For in the Oct. 31 Supreme Court Hearing on Race in College Admissions


​​​​​​​​​​​​​​​Aired October 27, 2022

The U.S. Supreme Court will hear oral arguments on Oct. 31 in Students for Fair Admissions v. University of North Carolina and Students for Fair Admissions v. Harvard, the latest cases to look at the legality of the limited use of race and ethnicity in college admissions. Pace University President Marvin Krislov and ACE General Counsel Peter McDonough join host Jon Fansmith for a preview of the hearing and what to watch for. Krislov was vice president and general counsel at the University of Michigan during the landmark 2003 admissions case Grutter v. Bollinger.

Here are some of the links and references from this week’s show:

Students for Fair Admissions, Inc., Petitioner v. President and Fellows of Harvard College

Students for Fair Admissions, Inc., Petitioner v. University of North Carolina, et al.

ACE Leads Nearly 40 Associations Urging the Supreme Court to Reaffirm the Legality and Value of Race-Conscious Admissions

Using Race in College Admissions Protected by First Amendment, Groups Say
The Washington Post (sub. req.) | Aug. 1, 2022

Over 6 in 10 Americans Favor Leaving Race Out of College Admissions, Post-Schar School Poll Finds
The Washington Post (sub. req.) | Oct. 22, 2022

Regents of the University of California v. Bakke (1978)

Grutter v. Bollinger (2003)

Supreme Court Upholds Michigan's Ban on Affirmative Action
NPR | April 22, 2014

Fisher v. University of Texas (I and II)


 Read this episode's transcript

​Jon Fansmith: Hello and welcome to dotEDU. In this episode of our monthly interactive recording, I'm joined by Pace University President, Marvin Krislov and ACE's General Counsel Pete McDonough to talk about the approaching oral arguments before the Supreme Court on the use of race in admissions. As always, we appreciate your questions and suggestions for show ideas. You can share those with us at podcast@acenet.edu. That's podcast@A-C-E-N-E-T.E-D-U. Now, enjoy the conversation.


Jon Fansmith: Hello and welcome to today's public policy pop-up. Thank you for joining us. I'm Jon Fansmith in Government Relations here at ACE and today I'm joined by two very special guests, ACE's General Counsel Peter McDonough and Marvin Krislov, the President of Pace University and formerly the Vice President and General Counsel at the University of Michigan during the landmark 2003 admissions case, Grutter v. Bollinger.

As you likely know, if you're participating in this pop-up, we are less than a week away from the United States Supreme Court hearing oral arguments in cases concerning the consideration of race in college admissions. Today, we're going to take a deeper dive into these cases and what to pay attention to as the Supreme Court takes them up. As a reminder, if you are listening live, please send any questions in through the chat function, and we'll do our best to address as many as we can. This is obviously a very topical issue, one that there's been a lot of interest and attention to, so we appreciate your questions. Please send them in, and we will do our best with them. But to get us started, Pete, I thought I would turn to you first and just say for the audience, can you give us a quick thumbnail sketch of the cases the Supreme Court will be considering?

Pete McDonough: Sure. Thank you, Jon. So in two landmark cases that are before the Supreme Court, that will actually have a total of nearly three hours of oral argument on Halloween, a group called Students for Fair Admissions alleges that Harvard and the University of North Carolina Chapel Hill practice unlawful discrimination in their undergraduate admissions processes. They say that both schools have put too much weight on race to the benefit of Black and Latino applicants, and in the particular way that these cases were constructed, also to the detriment of those who are Asian American or White.

The universities not only denied those charges, but at trials in the lower courts, they aggressively defended their policies and practices, and in the lower courts, the universities were successful after trial. Nearly three years ago, Allison Burroughs, up in the District Court in Massachusetts, the Federal District Court, ruled that Harvard's admissions program has been designed and implemented in a manner that allows every application to be reviewed in a holistic manner. Consistent, and this is important, consistent with the guidance set forth by the Supreme Court. And then nearly a year ago down in Federal District Court in North Carolina, Judge Loretta Biggs similarly ruled saying UNC has met its burden of demonstrating with clarity that its undergraduate admissions program withstands strict scrutiny and is therefore constitutionally permissible. Her honor said that UNC Chapel Hill has a compelling and substantial interest in pursuing and attaining the educational benefits of diversity. And she also said that the university has conducted and continues to conduct good faith, serious consideration of race-neutral strategies.

So again, looking at the rules of the road the Supreme Court has set over the years, her Honor said, like up in Massachusetts, that the institution has stayed within those rules. Interestingly, in Massachusetts a Federal Appeals Court also ruled in favor of Harvard, and though unusual, not unprecedented, the North Carolina decision went fast tracking through directly to the Supreme Court without having an intermediate appellate court rule. So here we have it, on Halloween, the Supreme Court will finally take up these two cases that have been through trials to see whether the Supreme Court will affirm what the Federal District Courts have said or will they do something different.

Jon Fansmith: Thanks, Pete. And Marvin, first of all, thank you for joining us, really appreciate you being here today. Pete has given us a little bit of the background the cases the Supreme Court's considering but maybe stepping back a little bit further, the Supreme Court first looked at race and admissions policies in the 1970s with University of California v. Bakke, but maybe it makes senses to pick up the story a little bit in 2003 when the Court reconsidered the Bakke decision in Michigan v. Gratz and Grutter cases. If you could give us a little bit of the timeline here and how that has worked out.

Marvin Krislov: Great, well it's great to be here. Thank you very much. To be here on this important topic is really an honor. As you all know, in 1978 the Supreme Court did look at UC Davis' admissions, but used the Harvard College model, what we now refer to as the holistic model, as their template for how to go forward. And so higher education has been relying on the Harvard model for many, many years obviously. In 2003 the question was whether the Bakke decision, which had been a plurality of the court, was still good law and remember that the Fifth Circuit in Hopwood had struck down the University of Texas's admissions process. So there was what we call a circuit conflict in this case between the Sixth Circuit, which ruled in favor of the Michigan Law School process, and the Fifth Circuit which had ruled against the University of Texas process.

So what happened in 2003, there were two decisions. There was the Grutter decision involving the Michigan Law School process, the Gratz decision involving the undergrad process, and the court came down and said, in very clear terms that diversity could be a compelling state interest and that there were ways to narrowly tailor, and a majority of the court found that the process we used at the Michigan Law School was in fact lawful, and a majority of the court ruled that an undergrad admissions process that we used in the Gratz case was not lawful. So higher education got together, we had many, many discussions across the sector, and people that needed to modify their processes did so, modeling it on the process approved in Grutter. And I would say that another result, if you will, or a follow on of that process was there was continued action on the political front, and there were some state referendum including one in Michigan that banned the use of race and gender in some instances in state decisions, and so that affected public universities in the states that had those referendum.

Jon Fansmith: And that actually sets up my next question really nicely, Marvin, because both you and Pete were General Counsels on campuses at the time of that 2003 decision. Marvin, maybe sticking with you for a second, can you talk a little bit about how college admissions have and haven't changed since 2003? And really draw out what was the impact of the Supreme Court's decision in that process for campuses.

Marvin Krislov: Well, of course each college and university, and sometimes even each part of a university, can have its own admission criteria, so a lot depends really on the admission and the applicant pool. And my colleague Jonathan Alger and I used to -- and I'm sure Jonathan, if you're not on there, hi, we salute you -- would talk about the importance of thinking about the mission and how the admissions process serves the mission. But for many institutions, and it's represented by the wide range of Amici that have been assembled here from the higher education community, the pipeline of highly qualified students of color, particularly Black and Latino and Native American students, continues to be a challenge, and so there are some institutions that are well represented in Amici that say that we need to consider race and ethnicity as one factor.

One thing I draw everyone's attention to, I found two of the most compelling Amici Briefs here were from the University of California and the University of Michigan that talked about despite their efforts, enormous efforts, to create pipeline projects, to do other things, to create race neutral alternatives, if you will, because both California and Michigan had barred the use of race, that they still were finding it impossible to create the diverse student body that they wanted, and I think those are really, really telling because if you want evidence in front of the court of what this might look like, the California and Michigan examples are really very concrete, and to my mind anyway, very persuasive.

Jon Fansmith: And Pete, I might flip a different aspect of that question to you as well, just heard about how the admissions policies on campuses changed. How has the court itself? How has it changed? It's been 19 years since that decision, obviously recently a lot of changes to the personnel on the court. Can you talk a little bit about the outlook of the court and what we can read from that?

Pete McDonough: Sure. And let me just make brief mention of what's happened between the Grutter decision that Marvin was so instrumental in enabling to where we are today. Marvin had mentioned the University of Texas, well, ultimately of course the University of Texas at Austin became the focal point for the Supreme Court's revisiting of these issues, first in 2013 and then in 2016. We generally referred to it as Fisher I and Fisher II. And what the court was really looking at, that's different perhaps than what the court will look at next week, is whether the University of Texas had stayed within the boundaries that had been articulated in Grutter. And in 2013 the court, what's called Fisher I, started focusing on what rigor the courts should have in looking at what the schools do. It used to be that's folks presume that courts would give schools a pass if you will. If the schools said they were doing the following things, the courts would say, well, believe them, unless you prove otherwise. Fisher I was about, no, courts, take a harder look than you might have in the past. And also take a harder look at the race-neutral strategies that schools are using. This was all about whether indeed taking race into account or ethnicity into account in the admissions process was absolutely necessary. So it went back down to Texas to prove, if you will, to the lower courts that they were doing these things, and it came back up to the Supreme Court, and in a five-four ruling, with Justice Kennedy writing the majority opinion, Justice Kennedy and his colleagues on the court said, yes, University of Texas is playing within the rules that the court had set in this University of Michigan case.

And importantly, Justice Kennedy also said that diversity is not a one-size-fits-all concept, that different individual institutions may have different conceptualizations of diversity for the institution. Maybe even for a program within an institution, I would add. And Justice Kennedy also spoke in his opinion about colleges and universities being laboratories of experimentation, something that ACE and our association colleagues emphasized in our brief, that we don't want in our judgment to limit the ability of institutions to figure out how to best enable a diverse student body. We want Kenyon to perhaps try to do something that's different than Ohio State rather than trying to do it the exact same way and see what works.

So now we have, Jon, to your point, a Supreme Court that no longer has a Justice Kennedy, of course. It has only four Justices that sat on that court in 2016 considering Fisher II. Justices Sotomayor, Alito, Thomas, and Roberts. Justice Kagan had been a part of the court at that time, but Justice Kagan did not participate because she had had a role in her government service leading up to that case. And so she, what we call, recused herself. So we had four Justices, I think folks reliably view Justice Alito and Thomas as forming a block of Justices that would rule against, if you will, Harvard and UNC. Folks probably pretty reliably view Justice Sotomayor as a Justice who would rule for them. Justice Roberts, good question.

Then we have four new Justices, Jackson, Gorsuch, Kavanaugh and Barrett. And interestingly, whatever one may think about Justices Gorsuch, Kavanaugh and Barrett on this, I don't believe they have ruled in any types of cases like this as appellate Justices. Not only in the education context but in the broader context. So what do we need so to speak, if you're counting, in order to overturn either the Harvard decision or the UNC decision or both, five Justices have to vote to overturn it. So if we can count to five and we presume Alito and Thomas are one and two. Who would be three, four, and five among Roberts, Gorsuch, Kavanaugh, and Barrett?

Jon Fansmith: Marvin, turning back to you very briefly, and you I think touched on this a little bit in your previous comments, but you referenced the mission, what is the mission of these policies, the central goal? How do you fulfill the individual mandate of diversifying a student body on a campus? Can you tell us a little bit more now, looking at the current moment, the case, the circumstances under which these cases are being brought, how these policies function on campuses in 2022? And I think you teased this in talking about the Amici that were followed, but are they still needed?

Marvin Krislov: So I think each institution really needs to think about their population, their pipeline, and their processes. I can tell you that everybody that considers race and ethnicity is under very clear guidance from the Supreme Court that has been reaffirmed as Peter and I have talked about, really since 1978. And so there are a lot of discussions about exactly how to consider race and ethnicity as one element to consider it based on the individual not to have, it's long been clear not to have quotas or set asides and to have everyone in one pool and to be very holistic in the approach and looking at each individual person. I think it's also clear we are at a moment in this country and where the discussion of race, if anything, has become even more salient in the past few years. Obviously we've had a racial reckoning and serious discussions. And the pandemic has also revealed real significant racial disparities in this country.

And so were I to talk to the Supreme Court, I would hope that there would be a recognition of the moment we are in and the important work that universities do in trying to ensure a diverse education and diverse leadership in this country, which is something that Justice O'Connor really relied on in her opinion in Grutter.

Jon Fansmith: Great, thank you. And I just referenced the Amici that had been filed, Pete. ACE on behalf of 39 other organizations filed an Amicus Brief in this case. One of the things about that brief, it actually got quite a bit of attention, including a write-up in The Washington Post, was because the Brief raised some issues that hadn't previously gotten the same level of attention before in this area. Could you talk a little bit about what those points were and why ACE on behalf of the higher education community chose to raise them?

Pete McDonough: Sure. And just a little bit of context, a case like this before the Supreme Court attracts lots of what are referred to as Amicus Briefs. Friends of the court briefs. In this particular case, the way this played out was, SFFA, the plaintiff in both these cases submitted their brief in May, there were 34 Amicus Briefs that were submitted supporting SFFA's position. Harvard and UNC submitted their briefs in July, there were 58 Amicus Briefs submitted. And one of those briefs was by ACE and as Jon, you said, dozens of other higher ed associations. It's something that we've been doing for over 50 years now, picking cases that we think have important national import and then trying to write a brief that will be first picked up because if a Justice or a clerk doesn't pick the brief up, it's never going to get read. And then perhaps raising something in the brief that might move the needle.

Our view has been that, that's part of our obligation and that's part of our public service. And one of the things that we thought about this time around was that it may not simply be that the issues are, did Harvard and UNC as judges below ruled follow the rules of the road, but rather whether the rules should be changed. And one of the things that we said in our brief is that a reason why the rules should not and cannot reasonably be changed is because there's something that borders on a first amendment right of institutions that Justices have talked about in the past in the context of what is more broadly referred to as academic freedom, but it's about how to make decisions about, who to teach, what to teach, how it should be taught. And we know that these issues are in the really up the challenge these days across the country in different contexts, but the who to teach part isn't irrelevant.

A diverse student body is viewed by schools, by faculty, as a significant component of the who to teach. And so there is a first amendment element to those decisions. But perhaps even more important, and we really emphasize this in our brief, is if the court were to rule that race or ethnicity cannot be taken into account in an admissions process that's holistic, that's really looking at the whole applicant, it would chill the ability of the applicant to express his or her sense of self and it would have an outsized impact on certain communities of people who -- and statistics show this, and we noted this in our brief -- have a greater impact in their view of their race or ethnicity on their lived experiences and on what they think they would bring in terms of leadership skills and other contributions to campuses. So we think that saying that you can't even identify yourself in the context of, for example, your essay as having been impacted by your race or ethnicity in the context of your lived experience, actually has a First Amendment chilling effect as well.

So we talked about that. Then I'll close with this and maybe it might be helpful to hear from Marvin about this, but we also emphasize that while all of these cases to date have been in the context of elite higher education, the rules are rules that apply to all institutions in terms of making decisions about their applicants for not only their undergraduate admissions and professional schools, but perhaps for even individual programs within schools. And we cited some of those examples as well.

Jon Fansmith: Thanks Pete. And as we are looking forward to the oral arguments on Halloween, interesting date for all this to be occurring too, I think that's been remarked on a number of times. So Marvin, I'll flip it back to you and say what are the top two or three things we should be looking for? Justices show up in costumes for instance. Is that a possibility?

Marvin Krislov: I have no comment on that, but what I would say is there are probably three things that I would focus on. One is, as we've talked about already, there are at least two issues here. One is, is student body diversity still a compelling state interest? And then the second question, which would be different in the two cases is, if so, are the policies being narrowly tailored? And so the Justices could rule on the basis of either of those prongs or both. And I think what's going to be very interesting is because some Justices have not spoken on this issue, to hear what the tenor of the argument is and is it focusing on the compelling interest issue or narrow tailoring? A little bit of both and from whom? Second, what's interesting to me also about this, are the Amici and in particular there's one very powerful force that has switched sides, if you will, since 2003, and that is the United States Government. The Solicitor General in 2003, urged reversal of the Sixth Circuit decision. And he was actually pressed very hard by some of the Justices. And I just reread the argument for the position of the United States on the military because we had introduced what I think or our friends of the court had introduced a very compelling blockbuster argument about the military and its importance that it attached to having a diverse officer corps and the fact that in fact the service academies had the same processes that we were talking about that were at stake at Michigan. And there was a real analogy, the Amici argued because it was also looking at a national student body and it was very selective. And so the percentage plan, for instance, was not really applicable. So what's going to happen here is the Solicitor General is going to be asked to talk about the application to the military.

And here this administration has chosen to take a position different than that in 2003 and actually to say what our Amicus Brief had said, which was that it's necessary for national security and that these processes are very important. It's going to be interesting to see if that argument gets attention from the court. We know there are different approaches to that, but I'm going to be listening to that as well as discussion of some of the other Amici of the business and community. But I think given that it's state action and the Solicitor General has said these things in their brief that it's going to be very important to see how that plays out in an argument. And then the last thing I'd say is, does it appear that the two arguments are going in different direction? Of course, we know one Justice will be participating in UNC that won't be participating in the Harvard case.

We know from our example, the Justices are more than capable of making distinctions between different systems. And so it'll be interesting to see if that is the direction that seems to be going from the arguments. So those would be the three things that are most on my mind.

Jon Fansmith: Thanks Marvin. And Pete, I'll throw the same question to you, top two or three things. And obviously Marvin had the advantage of going first, but I imagine there's a few more you could think of too.

Pete McDonough: Well with the caveat that I am very far from a Supreme Court scholar and did not sit in the catbird seat that Marvin sat in to prepare and work your way through one of these cases in such a successful way, I think I'll raise it up a level. I'm going to be listening generally to see whether that the time that's taken by the questions from the Supreme Court Justices are more focused on trying to figure out whether both of these schools did in fact play within the rules of the road, which might signal that there could be more guidance provided on how to continue to apply the rules and continue to consider race and ethnicity in a holistic admissions process. Or will there be more questions and discussion about what I'll call the fundamental questions. And interestingly here, again with my caveat about my lack of Supreme Court expertise, is my general understanding that Justices Kavanaugh and Barrett joined Justice Thomas in being what some call originalists. Now what does that mean? It's a theory of interpretation of legal text, which would include the constitution that says, let's look at what the words meant when written and interpret them based upon what they meant then. So it's not an accident that the parties in this case are saying, for example, and I'm just going to read a sentence from one of the briefs, the framers of the 14th Amendment understood that race may be considered to advance overriding governmental objectives. Will there be a lot of conversation about the 1860s at oral argument? Will there be an effort to, if you will, have these newer Justices who have not ruled in this area, look at the cases through those lenses? And then the other thing I'm going to look for, the second thing, is what I'd call, if not this, then what? The other day, The Washington Post wrote what I thought was a terrific article about the broader issues and these cases that are being set up for oral argument.

And one of the folks that was quoted, a 33-year-old former student with an advanced degree said that he hesitated to endorse a prohibition on the consideration of race saying, I don't want to completely ban something and not have a solution. It has to be a better solution than what the current process is. So I'll be listening to whether the Justices actually agree with what's been, if you will, presumptive for decades, which is diversity matters, diversity of diverse student bodies are indeed significant and important. And as the court uses the term, compelling. And if there really truly aren't race-neutral strategies that can enable that in 2022, whether the court's willing to say, well, we've got nothing better, but you still can't do this.

Jon Fansmith: Yeah, and that's such a really interesting point Pete and Marvin, I might actually throw that back to you in a way, we don't know for sure how the court will rule here. I think as Pete's hinted, the expectations is the court may look more critically at these policies on campuses, but regardless of how they rule, student diversity is going to be a compelling interest at Harvard and at UNC and at Pace and all of our institutions. What in terms of planning going forward, contingency planning, would college leaders be looking at if, again, as Pete summarized this point, if we can't do X, how do we do Y? And just some thoughts that you might have on that.

Marvin Krislov: Well, I think that different schools and different universities are going to have different considerations. Obviously admissions is only the start of a process and I think we all are working through how to make sure diverse students succeed. And particularly since the pandemic, I think those questions are very difficult. I would say that in addition to talking to the General Counsel, which is always a good thing to do, I think that colleges and universities should think about what they're doing that might fall into the bucket of race-neutral alternatives. And I think Michigan and California's briefs give examples, but of course they're going to be different in different places. I also think that at the end of the day, one of the most important things for colleges and universities to do is to engage deeply with public education K-12. Because I think when we talk about pipeline and we talk about opportunity, that is really where the beginning is.

And that I know that we at Pace, for instance, have deep relationships in the public school system, but I think that it's going to take a concerted effort, regardless of how the court rules, to really try to restore and not to just restore, but to really create the diversity that we want. And I think that the discussion, again, regardless of how these court cases turn out, probably needs to be on a state and a national level because I, like all of you are seeing the literature about the reading and math scores and a lot of the things that are very troubling at K-12. And I think particularly if we look at who the last few years have been affected, we know that Black and Brown students have been deeply affected. So I think that there are a lot of things one can do on the campus, but I actually think that part of the looking should be outside of the campuses, to our society and universities can be leaders in helping us become a better America as well.

Jon Fansmith: That's a really great answer, and I'm going to come back to you in a second, Marvin, but one of the questions we had come in while we've been talking has been from Alex Castle who asked, if the court does strike down the ability of institutions to consider race in admissions, he's wondering how this outcome might impact broadly accessible institutions such as community colleges or regional four-year publics, or do you think this ruling, clearly the institutions that the suture brought against were very selective institutions. Is this really just for those institutions or what's the impact more broadly? Thoughts on that? And Marvin or Pete, either one of you wants to chime in here.

Marvin Krislov: I'll just say that I think as admissions goes, it may not affect those institutions. For instance, the institution Pace University that I'm at, does not consider race and ethnicity in admissions right now. However, I do think that there are so many ways in which we need to work, not only as institutions but as society, to think about race and ethnicity and actually to try to design programs to address it. And so I think there may be ramifications for programs outside of admissions. I think that it would be not the right moment to talk about how this might play out, but I could certainly imagine them. And I'm guessing Pete in his leadership role would have the opportunity to talk about that as well.

Pete McDonough: Well, I'll just offer a few examples that are in our briefs, so they're public record. We noted the recruiting needs, for example, of a university fine arts program that works with a historically Black dance company, not knowing actually how they do their admissions, but that a ruling that says you can't take race and ethnicity into account would cascade down to the individual program level that would legally inhibit the ability to take an applicant's race into account. If as an example, it came down to one out of four applicants to admit to this historically Black dance company. And it could be that you want to admit somebody who's not Black to diversify that dance company, but you wouldn't be permitted to do so with an adverse ruling. We also noted as school devoted to contemporary Native American and Alaskan Native art and a historically Black divinity school.

And I've said to some colleagues, I was driving through a rural part of a state and passed a state college that had a school of education and had me wondering whether a problematic ruling, problematic from our vantage point, could inhibit the ability of a school of education to put a thumb on the scale for admittance of a Black male in an area of a state where there is a dearth of Black male K-8 teachers. It might not be a school that takes race into account at the broader admissions level, but might it take it into account at the program level, at the graduate-program level.

Jon Fansmith: Yeah. Thank you Pete. And we have been talking understandably about admissions and the makeup of the student body, that's what the cases are fundamentally about. But we've had some questions come in that have talked about other possible aspects on institutions. And one I thought was particularly interesting was to ask, if Grutter is overturned, what impact might that have longer term on the diversity of the school's faculty? And I would say probably not just faculty, the faculty and staff, other things that go into the makeup of what a campus is beyond just the student body?

Marvin Krislov: Pete, do you want me to jump in? I will say that I think faculties in general express a desire to be with diverse student bodies. I think students generally express, at least that I'm familiar with, expressed a preference to be with diverse student bodies. And so I could imagine that if colleges and universities are not able to offer either a diverse faculty or a diverse student body, people may well choose not to go there or may have some challenges that they wouldn't otherwise. Whether or not admissions decisions can affect hiring or not, there's a lot of different laws that pertain to hiring that is admissions and I would imagine that there will be a lot of discussions about whether a decision does speak to hiring, but the laws are really pretty different for those. For one thing, the law in hiring is generally governed by Title VII, not constitutional law, although it could be governed by constitutional law. So I won't go too far afield and say that I think that having a diverse faculty in every way, in every way is core to most of the higher education institutions that I'm familiar with.

Pete McDonough: And then I'll just add a quick reference to what we sometimes call the pipeline issue. At the end of that pipeline it's a very small percentage of individuals that start out their college education that choose or wish to be a faculty member. And if you will, squeeze the percentage or number of racial and ethnic minorities at the beginning of the pipeline, logic and I suspect data would show that looking down the line we're going to squeeze and ultimately have less of an outcome at the end of the pipeline. So we're going to do nothing to enable what is pretty much perceived as still a challenge, which is creating a diverse faculty. And we're probably going to do something to hurt that effort.

Jon Fansmith: Thanks. And also, we've had a few questions on this same topic. It's keeping in the theme of other possible impacts and apologies as always if I mispronounce your name, but Javier Lesotho and Kristin Tobin both asked questions related to the idea of, do you believe the issues to be addressed by the Court in these cases will directly impact the financial aid picture for students, beyond admissions of who gets in. But can you award scholarships? Are there aided awards? Or choices institutions make in terms of how they allocate funding that might be impacted similarly by a decision here by the court? Either one of you, feel free.

Pete McDonough: I'll say the most general statement and then turn to Marvin if I may, Marvin, which is, while the Court's going to rule in the context of admissions, the legal decision making and articulation will refer what will apply to programs and activities of institutions. Deciding who to admit is one of the activities of an institution. But the rules will be the rules.

Marvin Krislov: Yeah, I would say that it is quite possible. I know that many institutions have some scholarship programs that consider underrepresented students to be given a crack at certain scholarships. It may be one factor among many and if the Court ruled in a particular way that might well affect them. And that would be, or it might be an open question more likely. And so that's more work for the general counsel's offices.

Pete McDonough: And I think that underscores the importance of listening to what the Justices are saying at oral argument and then reading really carefully what they ultimately say in their decisions. Most of us will never read the decisions. We will read reporting of the decisions. And I've been thinking a little bit about two things that most of us have probably seen on TV over the years. One is American Idol and the other is more recently The Voice. And for those that recall The Voice, the judges start with their backs to the contestants and then they press a button once they've heard the voice and they turn around. American Idol, the contestants walked out, you got to see who they were, what they looked like, and then you made a decision about whether you wanted to advance them to next round. Are the Justices going to say, geez, schools have to be like The Voice. You have to somehow magically not pay any attention to race or ethnicity, and you have to construct processes to not pay attention to it.

Or are they going to say, we're not going to talk about your processes, but we're just going to tell you that you can't take it into account? Or are they going to continue to say what they've said for decades, which is, you may take it into account, but we want to reemphasize those rules of the road.

Jon Fansmith: I will say, Pete, when we started this conversation, if you had asked me to bet on the probability of The Voice and American Idol being raised, I would've bet very long odds against that. So nice, that is a very nice analogy. I like the way you worked that in bringing some pop culture into the discussion. But staying again with this same theme, there's been a number of questions about what could institutions consider. And Bill Andresen brings up the idea about other categories like geography, family income, other categories like that. And then Catherine Hazelrig, again, apologies if mispronouncing, raise the idea of, would the Court possibly rule in the use of proxies for race that are considered in admission. So realize these are very speculative, we're keeping with the theme of speculative questions for both of you, Marvin, I might raise this first and say you don't necessarily need to speak specifically to each of those, but the idea of how expansive the Court ruling might be and what might they leave on the table for institutions to look at?

Marvin Krislov: Well, I'll just say that the rule should be that the Court is going to rely on precedent and will only rule on the cases that are before it with a well-developed record. Now, one of the cases comes with both a District Court and a public decision. One just comes with a District Court decision. I don't think that the Court is likely to rule on the smaller issues or hypothetical issues. I don't know that, but that's not the normal practice. I would think that one of the things that we've seen, and Peter talked about it, is that after our cases in the Fisher case, there was a fair level of scrutiny given to colleges, universities, and there was some talk about deference. However, there was still the notion that universities have the right to define their mission and to pursue important goals such as compelling interest. And so I don't know, and of course cases can be filed every day, but I don't think that we're going to see that level of detail in whatever opinions the Court issues in these cases.

Jon Fansmith: Anything you want to add to that answer?

Pete McDonough: No, I think that captures it very well.

Jon Fansmith: Great. Well, we have a couple minutes left, so before we go, and apologies, questions continue to come in, we can't get to all of them. But before we go, I wanted to ask what I think is a probably very important question of both of you. Obviously we don't know what the outcome will be, but curious if you have any specific advice for colleagues on campuses as to what to be thinking about, what to be planning for, what should be top of mind as you go back to your day and consider what the Court may be doing in this area?

Marvin Krislov: Well, I'll just say that I think these cases have the potential to be very emotional for a number of people on campus and perhaps people with different points of view. And I think although many of us may not be in session when the decision comes down likely in June, but it could come in earlier, I think we need to be aware of how to bring our communities together in whatever way is appropriate to talk about how we are going to live and work together and how we can achieve our goals. And I think that it's an important moment for campus leaders no matter what happens. But I think virtually every institution in America knows that we are becoming more and more racially and ethnically diverse. And that is absolutely critical to our success in providing a great education to people. So I think to keep that as our North Star, to try to figure out how to get there, no matter what happens here.

Jon Fansmith: That's really well said. Pete.

Pete McDonough: And I'd just add to that, if an institution's interest in its own articulation of student body diversity is truly compelling, well it's going to be pursued just as vigorously the day after the Supreme Court rules, no matter how it rules. So the issue will be how. And so between now and when the Court rules, it feels to me like every campus probably should be and probably is asking itself, what does diversity really mean to us? What kind of diversity advances our institutional mission, our individual programmatic missions? Because the day after the decision, either it's affirming or it's if you will, challenging the ability to still pursue institutional diversity, but it's not going to change the decision by institutions to pursue diversity. Just how. So there's a lot to talk about that is focused on what has been presumptive, which is the educational value of diversity. And to revisit, and if you will, reconfirm between now and when the Court rules.

Jon Fansmith: And we are at time, we're actually a little bit over time, I want to thank you both. This has been an amazing discussion, very informative. You probably are not watching the comments the way I do, but they are pouring in terms of appreciation for both the scope and the clarity and the ability to relate relatively difficult legal concepts into ways that are understandable for people. So I know people are very appreciative, much as I am for your time and attention and your participation here today. So Marvin, Pete, thank you both so much and thanks everyone for joining us for some really thoughtful and excellent questions. We will be doing this again next month as we always do information on the subject and the data that will be coming out. So keep an eye out for our communications from ACE on that point. Enjoy the rest of your day. Thanks again for joining us. Take care.

Pete McDonough: Thank you.

Sarah Spreitzer: As always, you can check out earlier episodes and subscribe to dotEDU on Apple, Google Podcasts, Spotify, Stitcher, or wherever you listen to your podcast. For show notes and links to the resources mentioned in the episode, you can go to our website at acenet.edu/podcast. While there, please take a short survey to let us know how we're doing. You can also email us at podcast@acenet.edu to give us suggestions on upcoming shows and guests. And finally, a very big thank you to the producers who help pull this podcast together. Laurie Arnston, Audrey Hamilton, Malcolm Moore, Anthony Trueheart, Rebecca Morris, Jack Nicholson and Fatma Ngom. They do an incredible job making this happen and making Jon, Mushtaq and I sound as good as possible. Finally, thank you so much to all of you for listening.​

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​Each episode of dotEDU presents a deep dive into a major public policy issue impacting college campuses and students across the country. Hosts from ACE are joined by guest experts to lead you through thought-provoking conversations on topics such as campus free speech, diversity in admissions, college costs and affordability, and more. Find all episodes of the podcast at the dotEDU page.

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