Legal Expert Art Coleman Examines the Affirmative Action Ruling

Podcast

Legal Expert Art Coleman Examines the Affirmative Action Ruling

Episode 171. October 31, 2023.

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Art Coleman, one of the nation’s foremost legal experts on affirmative action in higher education, joins EAB’s Tom Cakuls to unpack the recent Supreme Court ruling. Art also examines the recent guidance offered by the US Departments of Education and Justice and stresses that it is still permissible to consider facets of students’ experience, background, interest, and other qualities expressly associated with their race.

Finally, Art shares his thoughts on what university leaders might do within the limits of the law to minimize some of the adverse impacts of the Court’s opinion.

Transcript

Hi everyone, and thanks for joining us today. My name is Tom Cakuls, and I oversee research publications for EAB's Enrollment Services division. Today I have the great privilege of bringing you a conversation with Art Coleman, one of the nation's foremost legal experts on affirmative action in higher education.

While I think most of you already know Art, I did want to share a few details from his bio, which will give you a feel for just how deep and lasting his commitment to diversity in higher education has been.

Art is managing partner and co-founder of Education Council LLC, and in that capacity he provides policy, strategic, and legal counseling services to national non-profit organizations, school districts, state agencies, and post-secondary institutions throughout the country. Particular areas of focus for Art include: student access, diversity, inclusion, expression, and success; faculty diversity, inclusion, and expression; and institutional accountability and accreditation.  

Art previously served as Deputy Assistant Secretary of the US Department of Education's Office for Civil Rights, where, in the 1990s, he led the department's development of its Title VI policy on race-conscious financial aid. Art has authored amicus briefs for landmark affirmative action cases including Grutter versus Bollinger, Gratz versus Bollinger, Fisher versus UT Austin, and the SFFA versus Harvard UNC case. Art was also instrumental in the establishment of the College Board's Access and Diversity Collaborative in 2004, which he has helped to lead ever since. Art's advocacy work additionally includes the development of a federal amicus strategy and numerous briefs on behalf of transgender students in federal court litigation throughout the United States.  

Art, thanks for joining us today.

Thanks for having me, Tom.

Liam Knox of Inside Higher Ed recently characterized the SCOTUS ruling as, "A vague and at times self-contradictory piece of jurisprudence that continues to frustrate colleges keen to maintain diversity without falling out of compliance." And I think that's about as apt a description as any I've seen. How do you account for the profound ambiguity in the Court's ruling?

I actually look at the ruling as one of fundamental incoherence. That’s how I would characterize it. With respect to Liam’s point about it being self-contradictory, there are a number of aspects of the ruling that make that patently evident. Chief Justice Roberts in one paragraph talks about the ostensible race blindness of the Constitution and three paragraphs later talks about the fact that students experience discrimination on the basis of race.

Interestingly, Students for Fair Admission also requested that the Court overrule 45 years of precedent that found the educational benefits of diversity to be compelling. The Court actually refused to do that. The Court also claimed that their decision follows precedent, which is not accurate. They actually eviscerated that precedent, particularly with respect to the compelling-interest point. Over 45 years we've developed a body of evidence around institutional experience with the nature and benefits of diversity, which the Court had affirmed in 2003 and again in 2016. Those very interests put forward by Harvard and UNC were rejected by the Court in the SFFA decision.

So there’s a pretense on the Court’s part of just continuing the status quo when, in fact, the decision is doing anything but that. I’ve often joked with my colleagues that if I had given anyone in the class I teach on enrollment management and the law nine months to write an opinion, as the Chief Justice had from the time of the oral argument, they might have gotten a D minus. There’s a fundamental incoherence and inconsistency there on some very established principles and a failure to recognize findings of fact by the lower courts in both cases where the institutions prevailed. So the Court has left us with a patchwork of discrete points that we're now left to make sense of in terms of the implementation moving forward.

A lot of people were, I think, depending on subsequent guidance from the Department of Education and Department of Justice--there was a hope that that promised follow-up would resolve some of the more serious ambiguities. What is your own take on the guidance that the DOE and DOJ ultimately issued?

So, the Department of Justice and Department of Education issued guidance on August 14th of 2023. And then the Department of Education issued further guidance in September of 2023 regarding the sort of directionality suggested by the court's opinion.

I think that the initial guidance in particular did a good job of synthesizing the key takeaway from the Court's opinion. Notwithstanding all of the critiques I would make of the decision in legal and constitutional analysis, I would also say that much of the social media and press has overblown the practical significance of the Court's opinion. Because even as it said--and this is the takeaway that the Department distilled in its guidance--that the consideration of an applicant's racial status per se in an application is prohibited, it also said that it is permissible to consider facets of students’ experience, background, interest, and other qualities expressly associated with their race.

That's an exceptionally fine line. But for our enrollment colleagues who are working fast and furious to figure out how to incorporate this decision into this year's cycle of policy and practice, it really does boil down to making sure that you're not valuing a student for the fact of their racial or ethnic identity. In other words, the fact of a student being a student of color, can't, in and of itself, enter the equation. But that student may have individual life experiences and perspectives and passions that are highly relevant to the kind of interest you have as an institution, and you can absolutely recognize and value those. Which is, as I’ve said, an exceptionally fine line. But I think that generally speaking the Department did a good job of elucidating for the admissions field questions the Court did not address on things like recruitment outreach and pathways programs that institutions might provide. On that sort of broad landscape, I agree with the basic framework that the Department outlined.

But there are also things that the Department’s guidance did not do. In this area of non-discrimination law you can’t simply judge a policy or practice just on the face of the policy. There are underlying legal issues around intent and impact that require a deeper and more analytical evaluation if you’re going to insulate a policy from legal challenges over time. I was personally disappointed, for example, to see that the Department did not address what I think is one of the big questions of the field—financial aid and scholarships. Because the Court’s opinion focused narrowly on the offer of admission, to the exclusion of other valuable benefits that might be conferred on students, not least of all financial aid, we’re already seeing a lot of confusion on this point among practitioners.

Given the outsized media attention that the SCOTUS ruling has gotten, it's easy to forget how few schools nationally are selective enough for race-conscious admissions practices to be a practical necessity. The last time I checked, it was maybe 2% of colleges and universities that admitted fewer than 25% of applicants. Could you talk a bit about what, if any, implications the Supreme Court ruling has for the other 98% of institutions?

Yes. I think it's important to be clear on what the Court opinion is limited to in its technical construction and to recognize that those limits don't mean that it has no implication in any other context. The Court didn't address financial aid and scholarships. It didn't address recruitment, outreach, or pathways programs. It didn't address employment issues. It was limited to admission decisions. And I've seen some argue that, therefore, the only implications of the Court opinion are for the admit decision. And I don’t think that's a fair, balanced, or constructive read of what we know about federal law.

Consider, for example, Title VI, which is one of the laws that was at issue in this case and which applies to all recipients of federal funds, public or private. Virtually every institution in the country is subject to the prohibitions of Title VI, which establishes a basic framework of non-discrimination for all programs, policies, and practices. While this Court's opinion addressed only admission, there are certain elements here that will bear on other examples. Take the question I raised a minute ago, of financial aid and scholarships. Did the Court say anything about that? No. But the Court basically eliminated that 45-year history around the kind of compelling interest that could justify the consideration of race in admissions under a longstanding Title VI standard. With that in mind, if I'm advancing financial aid practices in the future that are conscious of race status, I've got to have that compelling interest. And the question would be, what's the compelling interest an institution is going to assert right now? Can you do it?

You could try. But the problem is you don't have any clear legal precedent to attach to that design. And so it becomes a very risky strategy. Certainly for the short term. I think there are ideas afoot about how you could build a research base here and then begin to develop what could be new compelling interests that a court could sustain moving forward. But for the short term, we don’t have anything we could point to as a clearly court-recognized compelling interest, so we’re in uncharted territory. You can't just say that the Court’s ruling has nothing to do with financial aid and scholarships. It has everything to do with any kind of policy and practice that would have a race-status consideration for which you would need some compelling interest.

I'm glad you took the discussion in that direction, because one question I've been hearing a lot has been what the implications of the SCOTUS ruling are beyond the narrow specifics of it. And according to some of the more thoughtful commentary I've seen on the ruling, the biggest threat it poses has less to do with its specific prohibitions and more to do with colleges' legal fears leading them to oversteer. What advice would you give to enrollment leaders hoping to avoid that outcome?

This is obviously complex terrain. We're operating in a zone where we have some very clear guidance on dos and don’ts coming from the Court. But a lot of this terrain is unsettled, where the courts haven't addressed these issues in the wake of this decision.

That's not foreign territory for lawyers, by the way. We operate in that zone every day. The key point to recognize as you think about institutional legal risk is, first and foremost, that it is not a one-dimensional exercise. I've never engaged with any institutional or organizational client on questions of policy design and legal risk where it hasn't been posed in the context of the potential positive impact of the policy I'm evaluating. You're always looking at the question of risk in light of that potential benefit. And if I've got a potential policy design that maybe exposes me to some moderate or mid-level legal risk, and the whole of my benefit is that I'll enroll only two more students of color, that might be a clear “no,” because the benefit does not match the risk.

But if there is a design that is actually central to my achieving my core mission goals, I might well decide that, as an institution, I'm willing to sustain some moderate, rational, and known legal risk because the impact of the policy, if I were to lose it, is too significant for me to not move forward.

These deliberations are, unfortunately, never simple and there are no easy answers. We tend to look for that quick shot, that easy frame that says, “of course I can do this and not do that.” But it is, in my experience, very much a fact-driven exercise when it comes to policies of this sort. What is the mission-driven aim? What will the proposed policy achieve? And if there are no design alternatives that might mitigate that legal risk while still advancing those essential goals, do I do it or not? What do I lose if I don't do it? It's a much more complex analysis than many imagine.

In terms of those design alternatives you mention, your own published work has amply demonstrated that there's a wide range of legally acceptable alternatives to affirmative action. And I think we can consider that good news. But I also hear people talk about the range of options being overwhelming and about struggling to choose between them or not knowing where to begin. How would you recommend that enrollment leaders choose between the options? Is there a subset of approaches that are clearly more impactful and broadly applicable and that should therefore be a first order of business for most schools?

I would come at this from a couple of different directions.

As I’ve already suggested, although we're always looking for the silver bullet or the easy answer, there are none. Because everything here is so driven by context. A policy or practice that may work exceptionally well for one institution could flame out at another school given differences in their geographic location, their service area, or their precise mission, all of which might really affect the impact of a policy design.

So, I would say a couple of things… and this will not be news to enrollment leaders, for whom this is part and parcel of their annual cycle. They enter the summer months evaluating what the data from the past year tells them about what they need to do differently in the next year--where you hit your mark, where you didn't, what the implications are, and the like. The SCOTUS opinion puts an additional layer of analysis on top of that. We’ll need to be thinking with some additional urgency, precision, and focus about investments we’ll make in policy design and practices to advance our DEI goals. The starting point there is really understanding your institutional context and trajectory, based on the data points you’ve gathered over time. That begins to tell you a story.

I also believe this is a time not for retrenchment on DEI goals but for leadership. And that includes some going back to first principles-- stepping back from the policy-design specifics and asking “what kind of institution am I and what kind of institution do I want to be” and to tie that back very specifically to your mission. So taking a step back from detailed fixes to admissions processes and looking more broadly at the range of practices you’re using in recruiting students, from the first point of outreach to the final dollar of financial aid, and thinking through whether you’re investing and designing in a way to maximize the sort of broad-based impact you’re looking for.

I think this moment, as challenging as it is, is an opportunity to think through the broad landscape of investment and policy design and to frankly recalibrate in response to material shifts in the landscape. We are in a very different world after the SCOTUS decision than we were before. Some of the policies, practices, and investments that we may have considered previously might need to be revisited now, because the landscape has changed. The calibration that you reached five months ago or five years ago might no longer apply. I know this might sound exhausting, given how much work it has already been to navigate the finer points of the Court’s opinion. But we can’t get so lost in the weeds that it prevents us from taking a step back and reflecting on the strategic big picture. This is going to be a marathon, not a sprint. And while there absolutely are specific things we need to do in the first leg of the race, in the immediate wake of the Court opinion, there is a lot we should be thinking about strategically and seeding for the coming months and years.

As we're talking about strategy and the big picture, what you would like presidents, provosts and other members of college and university cabinets to know about the SCOTUS ruling?

The important point for me is setting the stage for future action. While we lawyers can tend to get caught up in what you can't do, I'm saying we need to stay focused on what you can do. That is true, for example, with respect to aspects of Title VI and equal protection that the SFFA decision left untouched. There are forms of recruitment and outreach pathways and related programs that have real intentionality with respect to race and which the courts have for years said are not problematic because there is nothing about their design that creates benefits for some students and not others. These are still available for schools to use and you want to make sure you’re thinking broadly and strategically in that regard.

It’s also important to recognize that we don’t just relegate these decisions to lawyers. We should be getting broad-based leadership around the table to reflect on the implications of the ruling in the context of institutional mission, aims, and strategy. And doing so, we should act with an eye to those practices that the law still deems appropriate, including the consideration of student experience and perspective tied to race, which the Chief Justice himself singled out as being OK. We would be making a big mistake if we didn't take him at his word on that.

I'm wondering if you’re seeing any misplaced doubt among senior college and university leaders about the legal legitimacy of campus diversity as a goal for them to pursue. Am I right in understanding that it's still totally fine to have that as an objective and that the Court's ruling has not put that in question?

Yes, I'm really glad you asked that, because this is not only a question we’re seeing in higher education. It’s also playing out in this larger political landscape, in the court of public opinion, and you've got a lot of very intentional anti-DEI movements afoot, some of which are trying to take an adverse Court opinion and stretch it beyond its breaking point. The Court did not say that Harvard and UNC’s diversity aims were not good, laudable, or important goals. They just said they were insufficiently compelling, in their words, or insufficiently concrete or measurable (in lay terms) to justify decision-making that is conscious of race status. That’s very different than saying you can’t advance those goals. In fact, there’s a line in the Court’s opinion that explicitly invites schools to pursue that mission. This very conservative Court said that the goals advanced by Harvard and UNC were, in fact, commendable.

So it's important to recognize that, as consequential as the Court’s opinion is, it is not wiping out the DEI agenda. It is not eliminating the ability of institutions to advance those goals through thoughtful policy design and investment, including some of the areas that the Chief Justice expressly addressed. And, I would argue, those include a number of avenues that federal case law for years has either left untouched by concerns of non-discrimination or on which it has given us some other practical guidance on policy design.

Thanks, Art. That's very clarifying.

In the couple of minutes we have remaining, I was wondering if there are maybe three key takeaways you'd like to leave our audience with, or if there are things that we didn't touch on that you think would be especially important for people to know. Anything like that come to mind?

I would urge us never to lose sight of the power of institutional mission as the driving force. When I enter conversations around the law or legal risk, people often say, well, that's your anchor. No--my anchor is mission. The law is a design parameter that I am considering as I am evaluating the question of how I need to advance my mission. And so I don't want us to lose sight of that. It's easy to get caught up in the headlines or the details of a legal opinion. Those details are critically important when it comes to the specifics of policy design, but they are not the be all and end all of why you do what you do.

I would also urge us, relatedly, to maintain that robust research and evaluation baseline that I alluded to earlier, including the analysis of racially disaggregated data. There's nothing in the Court's opinion that says you can't continue to collect and use that data. That becomes a really important foundation, not only for informing strategic policy design, but also as we begin to think about longer-term strategies where maybe more advocacy is involved, where we’re talking about developing new compelling interests or limiting some of the adverse impacts of the Court’s opinion. That’s mid- to long-term work, not short-term, to be sure. It's going to be important to have that research base to inform what we're doing.

I think that's a really important point in terms of this work in this area being grounded in mission, which will hopefully spur more discussion between the enrollment leaders who are the primary audience for today's discussion and their more senior counterparts in the organization. So thanks very much for that closing note. And I will close by thanking you again, Art, for being so generous with your time and with your insights today, and with the hope we'll have a chance to do this again sometime.

Thanks so much.

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