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Legal Watch: How Do You Strengthen Diversity Without Running Afoul of the Supreme Court? Creatively.



By Ada Meloy

The higher education community’s commitment to achieving diversity on campus should be nurtured, especially in the wake of recent judicial decisions, state legislative initiatives, and recent events. Determining the best ways to develop effective and legally sustainable programs to accomplish diversity goals is crucial, but challenging. We have known since the 1978 Bakke case that quotas are unlawful, and the 2003 University of Michigan cases fleshed out appropriate ways to achieve the “compelling interest” in the educational benefits of a diverse student body. More recent decisions compel a reexamination of the methods by which colleges and universities can work to achieve diversity.

In July, the Fifth Circuit Court of Appeals upheld the narrowly tailored consideration of race in admissions at The University of Texas at Austin in its latest ruling in Fisher v. University of Texas. This ruling did not change the fact that race-neutral alternatives should be given priority over policies that consider race and ethnicity, and that courts will carefully scrutinize the manner in which a college or university considers race or ethnicity in admissions. Some states—including Arizona, California, Florida, Michigan, Nebraska, New Hampshire, Oklahoma, and Washington—have taken action to ban the use of race-based programs in admissions, frustrating institutions’ efforts to diversify. In April of this year, the Supreme Court upheld the Michigan ban, enacted through voter referendum, in Schuette v. Coalition to Defend Affirmative Action. In light of all these developments, how can colleges and universities cultivate a diverse student body in a post-Fisher world, while moving toward policies that are race-neutral?

The joint guidance of the U.S. Departments of Education and Justice issued in 2011 on the voluntary use of race in admissions is still in effect today. The guidance states that colleges and universities should first articulate in their own policies the reason for a plan for achieving diversity. It is helpful to demonstrate why diversity is important with institution-specific data. Measures by which a college or university will determine that its goal has been achieved should also be articulated in policy. In any program to achieve diversity, race should only ever be considered after a “good-faith review of workable race-neutral alternatives.” Then, if race is ultimately taken into consideration, it should only be as a “plus factor” in a flexible and individualized review of the candidate. Further, if race-neutral alternatives have been rejected, what these alternatives are and the reason they were rejected should be recorded. Programs should also be periodically reviewed to determine whether race should still be considered in the effort to achieve institutionally specific diversity goals.

Colleges and universities are creative and, as the joint guidance suggested, they should consider many different student qualities in admissions decisions—including hardships overcome and whether a student will be the first in the family to attend a postsecondary institution. Some institutions include a number of factors together in an overall consideration of socioeconomic status and disadvantages that may include parent marital status, native language, the number of dependents in the family, and how many classmates at the student’s high school received free or reduced-price lunch.

One specific issue of concern that negatively impacts efforts to diversify is “under-matching,” in which talented students enroll at colleges or universities that are less selective than the tier of institution the student’s academic record suggests she or he could attend. This phenomenon is problematic for several reasons, including the fact that graduation rates at selective colleges are higher than those at less selective colleges. Under-matching is often found among students of color, particularly Hispanic and African American students. Effective outreach or recruitment programs should involve a component aimed at de-mystifying the financial aid process, which can be cumbersome and frustrating. Some colleges have utilized the connection with high school “dual-enrollment” programs to advise and support students during the college application process. Many of these colleges also provide support to these students, once enrolled, to ensure persistence.

A focus on applicants’ high school grade point average rather than SAT or ACT test scores may also help increase the likelihood of a more diverse student body. Some public institutions are utilizing a “percentage plan,” a guarantee of admission to a top percentage of high school students without regard for standardized test scores, in an effort to diversify the incoming class. Other initiatives include earmarking a percentage of admissions slots for students to be considered on alternative criteria, such as socioeconomic status. Some campuses have abandoned the use of legacy preferences; legacy applicants are statistically less likely to be from low-income backgrounds or to be ethnic or racial minorities.

The consideration of race in the awarding of financial aid is also subject to strict scrutiny. Therefore, financial aid policies at institutions receiving federal funding should mirror admissions policies: Consideration of race should be narrowly tailored to cultivate diversity, and this goal should be articulated in policy. Individuals or organizations not receiving Title VI funds may award financial assistance based upon race or ethnicity, as in the case of a private foundation-funded scholarship. In order to further cultivate socioeconomic diversity, some states have implemented financial aid programs benefiting their poorest students. In Nebraska, for example, all Nebraska residents receiving Pell Grants who maintain a full-time class load and a minimum GPA of 2.5 can receive free tuition. Other programs, such as the Florida Opportunity Scholar Fund, provide full scholarships to first-generation students.

As the higher education community endeavors to increase access to postsecondary education and to cultivate more ethnically and racially diverse student bodies, institutions are encouraged to continually self-reflect, examine practices, and consider new initiatives. Race-neutral alternatives need to be considered and documented in the effort to increase diversity. Institutions have the opportunity to demonstrate their capacity as educators and administrators. Has Fisher signaled the end of race-conscious admissions and financial aid programs? Not definitively, but colleges and universities are well-advised to review admissions policies and to develop creative ways to achieve the diversity that their missions demand.


Alger, Jonathan, and Donna Snyder. 2004. Donated Funds and Race-Conscious Scholarship Programs After the University of Michigan Decisions. Washington, DC: National Association of College and University Attorneys.

Carnevale, Anthony P., and Stephen J. Rose. 2003. “Socioeconomic Status, Race/Ethnicity, and Selective College Admissions.” In America’s Untapped Resource: Low-Income Students in Higher Education, edited by Richard D. Kahlenberg, 101–156. New York: The Century Foundation Press.

Kahlenberg, Richard D., ed. 2014. The Future of Affirmative Action: New Paths to Higher Education Diversity after Fisher v. University of Texas. New York: The Century Foundation Press.

Potter, Halley. 2014. “Transitioning to Race-Neutral Admissions, An Overview of Experiences in States Where Affirmative Action Has Been Banned.” In The Future of Affirmative Action: New Paths to Higher Education Diversity after Fisher v. University of Texas, edited by Richard D. Kahlenberg, 75-90. New York: The Century Foundation Press.


U.S. Department of Education. 1994. “Nondiscrimination in Federally Assisted Programs; Title VI of the Civil Rights Act of 1964.” Federal Register, 59 (36). Washington, DC: Government Printing Office.

U.S. Department of Justice and U.S. Department of Education. 2011. “Guidance on the Voluntary Use of Race To Achieve Diversity In Postsecondary Education.”


Ada Meloy is the general counsel of the American Council on Education. The assistance of Leigh Parker, a student at Stetson University College of Law (FL), in preparation of this article is gratefully acknowledged.

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