Preparing to Lead in the Post-Fisher Era

Dr. Richard Valachovic
In this month’s letter, ADEA President and CEO Dr. Rick Valachovic alerts readers to the implications of a recent Supreme Court decision and outlines ways that ADEA plans to assist our members in the decision’s aftermath.

Preparing to Lead in the Post-Fisher Era

On June 24, 2013, the U.S. Supreme Court issued a near unanimous ruling in a case being closely watched by many in higher education. The question before the court was whether the admissions policies of the University of Texas at Austin (UT Austin) were inconsistent with the court’s 2003 ruling that race could play only a limited role in the admissions policies of public universities.

The plaintiff in the case, Fisher v. the University of Texas at Austin (Fisher), is a former UT Austin applicant who filed suit against the university after she was denied admission as an undergraduate. Ms. Fisher lost her case in the U.S. District Court in 2009 and again when she appealed to the U.S. Court of Appeals for the 5th Circuit.

When the case arrived at the Supreme Court in 2011, supporters of the university’s position feared that the court might reject its own precedents and rule in Ms. Fisher’s favor, placing new limitations on what institutions could do to enhance diversity on their campuses. Instead, the Supreme Court sent the case back to the U.S. Court of Appeals for the 5th Circuit, arguing that the lower court had failed to apply “strict scrutiny” because it accepted the university’s rationale for its admissions policies without closely examining how the policies work “in practice.”

The response from the higher education community has been, by and large, a collective sigh of relief. The decision was widely viewed as an affirmation of the Supreme Court’s earlier recognition of the educational benefits of diversity, and most saw it as a green light to continue with the admissions policies their institutions had in place. That said, not everyone finds the Fisher decision reassuring because it shifts the basis on which race-conscious admissions policies will be judged by future courts.

Writing for the majority, Justice Anthony M. Kennedy stated that affirmative action programs must “verify that it is necessary for a university to use race to achieve the educational benefits of diversity,” noting that this verification requires “a careful judicial inquiry into whether a university could achieve sufficient diversity without using racial classifications.” In other words, the Fisher decision puts the onus on schools to show that their race-conscious policies are actually making a difference that cannot be achieved through race-neutral alternatives.

How the ruling will affect ADEA Member Institutions is not entirely clear, but we have been busy here in Washington, D.C., monitoring the case, assessing its potential impacts, and considering ways we can help our members adapt to the changing legal landscape. In July, ADEA staff attended a two-day meeting held by the College Board’s Access & Diversity Collaborative (ADC). ADEA is an organizational sponsor of this collaborative, which was formed, as its website states, “to help higher education institutions develop and implement educationally sound and legally viable access and diversity enrollment-management policies in light of relevant social science research, institutional experience and promising practices, and relevant federal and state laws.”

If you are not familiar with the collaborative, the ADC’s website hosts a wealth of information and guidance for developing policies related to access and diversity. The latest addition to its document library is Understanding Fisher v. the University of Texas: Policy Implications of What the U.S. Supreme Court Did (and Didn’t) Say About Diversity and the Use of Race and Ethnicity in College Admissions, which provides background on the case, analyzes the decision, and discusses its policy implications for institutions of higher education. We will also be posting a legal analysis of the case later this month.

If perusing these documents doesn’t sound like summer reading, let me assure you, these introductions to the case are highly readable. But some of you may be asking a different question: Why should I care about Fisher?

To answer, let me quote Justice Lewis F. Powell, Jr., who wrote the landmark decision in Regents of the University of California v. Bakke, the case that first focused the entire nation’s attention on affirmative action in higher education. If you imagine that the words “physicians” and “medicine” represent all health providers, I think you will find that Justice Powell’s words get to the heart of why Fisher matters to our community.

Physicians serve a heterogeneous population. An otherwise qualified medical student with a particular background—whether it be ethnic, geographic, culturally advantaged or disadvantaged—may bring to a professional school of medicine experiences, outlooks, and ideas that enrich the training of its student body and better equip its graduates to render with understanding their vital service to humanity.

ADEA has long acknowledged that diversifying our ranks is an essential step in addressing persistent disparities in health care delivery. That is why ADEA joined the amicus brief filed by the Association of American Medical Colleges (AAMC) supporting UT in the Fisher case. As I hope you know, joining on the brief was only the most recent in a series of ADEA efforts aimed at promoting access and diversity within the health professions. I won’t enumerate them all here, but I do want to tell you about several projects we have in the works to help our members delve more deeply into the issues raised by the Fisher decision.

First up, Fisher-related presentations at two events have already been fixed on our collective calendar. At the 2013 ADEA Fall Meetings, Dr. Richard Reddick, an Assistant Professor in the Department of Educational Administration at UT Austin, will explore with ADEA AFASA members Fisher’s potential to change the affirmative action landscape (ADEA AFASA comprises members of ADEA’s Sections on Dental School Admissions Officers and Student Affairs and Financial Aid). A second presentation, scheduled for the 2014 ADEA Annual Session & Exhibition, will feature Dr. Michael Olivas, the William B. Bates Distinguished Chair in Law and Director of the Institute for Higher Education Law and Governance at the University of Houston Law Center. Dr. Olivas will discuss how institutions of higher education can advocate for the educational benefits of diversity in a post-Fisher environment.

One of the thorniest aspects of the Fisher decision is its insistence that academic institutions first exhaust available race-neutral admissions practices before turning to race-conscious approaches to achieving diversity. Developing effective race-neutral practices will be especially challenging for professional schools and programs like ours. The Texas policy of granting university admission to all students graduating in the top 10% of their high school classes, for example, would be unlikely to produce greater diversity in a dental school context.

To help our members address this problem, ADEA will be working to help schools and programs identify and implement race-neutral admissions policies that promote diversity while remaining in compliance with the law. We will also be modifying some of the questions on the ADEA AADSAS and ADEA DHCAS applications to get a better picture of the socioeconomic status of applicants. This dimension of diversity has been difficult to achieve at most places but is another key to expanding access to care.

By now, I suspect many, if not most, of you are familiar with the concept of the “holistic” or “whole file” review approach to increasing diversity that the Fisher suit challenged. These types of reviews mean that schools consider a range of factors—in addition to test scores and grades—in seeking to identify candidates for admission whose attributes mesh with each school’s culture and priorities. Within this context, the Supreme Court has ruled that race and ethnicity may be one of many factors that schools consider, and many of our institutions employ holistic review as a means of increasing diversity.

With the generous support of the Robert Wood Johnson Foundation, we developed an ADEA Admissions Committee Training Workshop in 2004 to disseminate holistic review and other admissions practices that foster diversity. We plan to offer these onsite workshops again—beginning in 2014—with updated content that addresses the post-Fisher admissions environment. Meanwhile, a summary of the pre-Fisher wisdom on this topic is readily available to all ADEA members in a 2011 online guide, ADEA’s Transforming Admissions: A Practical Guide to Fostering Student Diversity in Dental Schools.

So the good news coming out of the Fisher decision is that we are not in imminent danger of having to abandon the admissions policies and practices that we have worked so hard to develop in recent years. Nevertheless, as Arthur Coleman, one of the authors of Understanding Fisher, said at the recent ADC meeting, to simply continue doing what we’ve been doing may be a strategic mistake. Art has a cautionary message for institutions of higher education. “It is better to lead when it comes to access and diversity,” he warns, “than to wait for the courts to impose a path forward.”

We need to move beyond the tried and true, and challenge ourselves to find new and effective means of bringing individuals from every background into predoctoral, allied and advanced dental education. We need to engage the research community to inform best practices and demonstrate the value of diversity. And we need to remember that the court of public opinion also has a role to play in promoting diversity within higher education. We cannot be complacent on the advocacy front.

ADEA will remain active in the Access & Diversity Collaborative and monitor how our colleagues throughout the higher education community are responding to Fisher. As these encounters yield additional insights, you can count on receiving further guidance from ADEA, but as always, each school must set its own priorities and choose a means of admitting students in keeping with its particular mission. Now is a good time to re-examine those policies and consider how they might be altered in the wake of Fisher.

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