Two years ago this week, the Department of Homeland Security began approving requests from those wishing to be considered for Deferred Action for Childhood Arrivals (DACA). Because recipients must reapply for DACA every two years, this is a good opportunity to review some basic information about DACA and highlight resources for students and counselors.
What is DACA?
DACA stands for Deferred Action for Childhood Arrivals. It allows the Department of Homeland Security to exercise prosecutorial authority to not pursue the deportation of certain undocumented immigrants, who have been deemed low-priority and low-risk. Individuals who meet the criteria for DACA must apply to DHS, and must renew their request every two years. DACA does not grant a lawful status -- only lawful presence -- nor does it offer a path to citizenship. In this way, DACA is very different from proposed DREAM Act measures, which would create a path to citizenship.
Who qualifies for DACA?
To qualify for DACA, an individual must meet the following criteria (source: USCIS)
- Was under age 31 on June 15, 2012
- Entered the U.S. before turning sixteen years old
- Since June 15, 2007, has lived continuously in the U.S.
- Was present in the U.S. on June 15, 2012, and when making a DACA request
- Had no lawful status on June 15, 2012
- Is currently enrolled in school or has graduated/obtained a certificate or GED; or has been honorably discharged from the USCG or military
- Has not been convicted of a felony, a significant misdemeanor, or three or more misdemeanors, and is not deemed a threat to national security or public safety
Haga clic aquí para información sobre DACA en español.
The United States Citizenship and Immigration Services released a DACA Toolkit: Resources for Community Partners booklet, which explains in detail the requirements for DACA and addresses frequently asked questions. In addition, the guide explains the differences in how to apply for initial DACA approval and how to apply for renewal of DACA status. All of the necessary forms, and much other valuable information, is available on the USCIS website. NACAC also has resources and articles about DACA and college admission for undocumented students. If you are working on advocacy and policymaking surrounding DACA, you may be interested in this April 2014 report from the Pew Charitable Trusts, "Immigration and Legalization: Roles and Responsibilities of States and Localities." Pew hosted a panel discussion on August 12, 2014, to explore this topic in depth. Guest speakers and their research can be found here.
Newly-announced proposed changes
to PLUS loan eligibility have entered the fray of ongoing debates about the intersection of accessibility and accountability in higher education. PLUS loans, which are usually made to parents and to graduate students, are unlike other student loans in the federal financial aid arsenal. PLUS loans have high interest rates (for loans dispersed July 1, 2014 through June 30, 2015, the rate is 7.21%) and they do not have annual or total limits, allowing borrowers to borrow up to the total cost of attendance at an institution. Also unlike other student loans, PLUS loans are subject to credit approval.
In 2011, the Department of Education tightened PLUS loan eligibility requirements. As a result, many PLUS loan applicants were denied. At the undergraduate level, the new restrictions measurably impacted low-income and minority students, as well as minority-serving institutions. Several HBCUs suffered from declining enrollments when students, who relied on PLUS loans to bridge the gap between what their family could afford out of pocket and cost of attendance, could not longer afford tuition and fees.
Announced today, the Department of Education has proposed rules that would ameliorate this situation. Should the rules be approved, the look-back window for reviewing most adverse credit history would be shortened to two years from the current five, and would allow up to $2,085 of delinquent debt to not count against an applicant. If an applicant still fails to qualify, she may appeal the decision with an explanation of any extenuating circumstances. If the Department approves a PLUS loan for an applicant with adverse credit history, the loan will then be given with mandatory counseling. In sum, the Department expects 371,000 more applicants will qualify for PLUS loans under the revised requirements.
While this is good news for institutions that serve high percentages of PLUS loan holders, consumer protection advocates warn that it might not be such a good deal for the borrowers themselves. Because the new rules would allow borrowers with already fragile finances to take out large sums of money, at high interest rates, consumer protection advocates have seen the proposed rules as setting the stage for higher default rates and economic difficulties. For parents borrowing on behalf of the their children, the risk could even further outweigh the reward, since the borrowers are not the ones directly benefiting from the education the loan is financing.
A miracle. A marathon. A momentum. The July 28 "College Opportunity Agenda: Strengthening School Counseling and College Advising" event, co-sponsored by the Office of the First Lady and the Graduate School of Education at Harvard University, was all about those three "M"s. Trish Hatch of San Diego State University described the event as a "miracle in the making." More than 100 professionals attended in person, more than 500 participated via the live stream online, and nearly 20 experts shared their knowledge. The event united individuals from all types of educational fields, industry, government, and settings.
The event started with a video greeting from First Lady Michelle Obama who emphasized her passion for this effort. Following that inspirational message about the important work of school counseling and college advising, Mandy Savitz-Romer of Harvard described this work as "crossing borders" and uniting pioneers. She used the framework of describing three gaps in this arena: the pre-service gap, the on-going professional development gap, and the content gap. She reminded us that these gaps become our opportunities that will require new investments.
Three themed panels framed the day:
Panel 1- PROFESSIONAL DEVELOPMENT AND TRAINING
Panelist Brandy Johnson of Michigan talked about the positive results of a new training program for school counselors in Michigan. Melissa Miller Kincart from the state of Utah showcased two types of training approaches: a curricular-infused model and a hybrid model of training, noting that a "coalition of the willing" will help you get there. Rachelle Perusse of the University of Connecticut-Storrs discussed the use of data and equity-based counseling. The bottomline: training is paramount for improving our college-going and college-completion rates.
Panel 2- INNOVATIVE PROGRAMMING AND RESEARCH
In this set of panelists, education consultant Pat Martin kicked off the conversation by emphasizing that "today was a window of opportunity," that we needed to scale this work up, and that there was a seat at the table for everyone. She also used the metaphor of this being a marathon (not a sprint) and that we needed to consider the long-term effects of this important work. Joyce Brown, formerly of the Chicago Public Schools focused on how to deliver college and career readiness to all students. Judy Petersen from Utah explained how she established a “College and Career Readiness Department” in her school district. Laura Owen from San Diego State University discussed the role of FAFSA simplification and some emerging research about “summer melt.” Martin concluded this session reminding us that “the ground is fertile for research.”
Panel 3- COLLEGE COUNSELING TOOLS
Framed by Cheryl Holcomb McCoy of Johns Hopkins University, this final section of the program featured current and emerging tools in the field of college counseling. Alice Anne Bailey of the Southern Regional Education Board discussed how the College and Career Counseling Training Initiative (CCCTI) is working in 13 states. Keith Frome from the College Summit shared that the three roadblocks in this arena are a lack of planning, a lack of information, and a lack of support. He also referred to an emerging area he called the “digital field of college apps” – discussing smartphone apps that can help students through the steps of preparing for college. Drew Scherberle from Austin shared the perspective from a chamber of commerce and the path to college. Sylvia Lopez from Dallas discussed the importance of a tri-level approach: student level, school level, and district level for improving our college going cultures.
During the lunch hour, Eric Waldo from the Office of the First Lady shared the journey of this emerging effort, emphasizing the importance of it to President and Mrs. Obama. Waldo referred to Michelle Obama as our nation’s “chief school counselor” because of her commitment to this agenda. Representatives from 8 national organizations shared progress on their previous commitments to this effort. It was rewarding to learn about what had been accomplished in the last 6 months.
Throughout the day, three breakout sessions enabled attendees to respond to the expert panelists, share new ideas, and begin developing action items for improving our work in this area. It was frequently referred to as a “historical event.”
The momentum is here – it’s time to join the marathon and make this miracle a reality. What happens from here will redefine school counseling and college advising in America. #collegeaccess14
Dr. Christopher Tremblay is the Associate Provost for Enrollment Management at Western Michigan University.
Since 1990, eight graduate certificate programs in college counseling have existed in the United States. A recent study by Dr. Christopher Tremblay from Western Michigan University identified programs at four schools in California, one school in Michigan, one school in Minnesota, and one school in Massachusetts. This research revealed seven major themes among these certificate programs in college counseling:
- Conceptually and operationally, two different types of college counseling certificate programs have emerged in the United States: post bachelor’s and post master’s. A post bachelor’s program offers a certificate earned after having received a bachelor’s degree; whereas a post master’s program certificate is obtained after having received (or in process of simultaneously earning) a master’s degree. Of the eight programs, six* can be classified as post bachelor’s programs and two can be classified as post master’s programs.
- All certificate programs are operating independently with neither national affiliation, nor connection to a specifically-correlating accrediting body, and are only loosely tied to professional associations.
- Practicums in the certificate programs are prevalent, but differ greatly in format and expectations. Of the eight certificate programs studied, six include a practicum as a course and certificate completion requirement.
- A majority of the certificate programs are preparing individuals to start their own college counseling practice as a business. Of the seven currently-operating programs, five of them are preparing individuals to start their own business in college counseling.
- The readings used among the courses in the certificate programs are varied except for a reliance on one single textbook. Among the 17 certificate courses in which textbook information was available, 20 different texts are being used. These textbooks were categorized into four types: “how to” guides, narratives, homegrown texts, and hybrid texts. The Fundamentals of College Admission Counseling textbook authored and published by NACAC is the most common reading among all certificate programs and has received mixed reviews. Currently, it is the only designated textbook developed for these certificate programs.
- The certificate program courses vary in number and subjects. The number of courses required to earn the certificate ranges from three to seven. The topic of college admissions is instructed in 100% of the programs. This is followed by a career planning course in all but one of the programs, a counseling course in five of the eight programs, and a financial aid course in half of the programs.
- Individuals who are or have been practitioners in the areas related to college counseling, rather than full-time college faculty, are primarily serving as the instructors of the courses in the certificate program. The purpose of this study was to fill a gap in the literature on graduate coursework in college counseling. In the 25 years that graduate coursework in college counseling has existed, little was known about it. Training in college counseling has primarily existed informally, but is slowly being recognized in a formal, academic context. This study documented current practices in graduate coursework in college counseling at eight different sites in the United States. While there has been much reference to graduate coursework in the field of college admissions, in previous surveys and in opinion-print pieces, this research was the first known, major, comprehensive, national study on the training pathway of graduate certificate programs in college counseling. This research responded to Savitz-Romer’s 2012 call for a review of these offerings.
A recent emergence is the non-credit bearing “Fundamentals of College Counseling Online Program” at Rice University’s Center for College Readiness. Launched in Fall 2013, Rice’s offering covers four topics in four-week modules.
*Of the seven currently-operating graduate certificate programs, the program at Suffolk University will be closing as of 2016, when the last student graduates. However, Dr. Timothy Poynton has aspirations of creating a graduate certificate program in college counseling at the University of Massachusetts-Boston.
Savitz-Romer, M. (2012). Professional college knowledge: Re-envisioning how we prepare our college readiness workforce. [2012 National Association for College Admission Counseling (NACAC) Discussion Paper]. Arlington, VA: NACAC. Retrieved from http://www.nacacnet.org/research/research-data/Documents/ProfCollegeKnowledge.pdf
On July 29, I co-presented a session with assistant director for professional development Crystal Newby about transfer coaching "champions" at NACAC's Guiding the Way to Inclusion conference. The session was a reminder that there are a few...too few...people out there working on behalf of transfer studetns, and that they (and the students they serve) need more help and support. Academic research, focus group results, and national survey data all point to the need for well-informed professionals to assist transfer students as they navigate their higher education pathways. To assist, NACAC recently released a new Transfer Knowledge Hub, designed to give professionals research- and policy-to-practice information on how to best advise students who may transfer at some point in postsecondary education. Check it out here.
Last Thursday, the House of Representatives passed HR 3393, the Student and Family Tax Simplification Act. The vote was 227-187, largely split along party lines. If enacted, the bill would make substantial changes to how higher education tax credits and deductions function. The key provisions are:
- Eliminates Hope Scholarship and Lifetime Learning Credits and expand the American Opportunity Tax Credit (AOTC)
- Expands access to the AOTC to individuals who have been convicted of a felony drug offense (currently these individuals are ineligible)
- Requires taxpayer to list on her tax return the employer identification number of the college to which tuition/qualified educational expenses were paid
- Excludes Pell Grants from taxable gross income
The Hope Credit, which had been in effect for taxable years beginning before 2009 and is due to be available again for taxable years beginning after 2017, grants a non-refundable credit up to a maximum of $1,950 per eligible student for the first two years of postsecondary education. For taxable years beginning 2010-2017, the American Opportunity Tax Credit has been in place. The AOTC is a modification of the Hope Credit, and its provisions are similar, though more extensive. Under current AOTC regulations, the maximum allowable credit is $2,500 per eligible student, and the credit may be claimed for the first four years of postsecondary education. The AOTC is partially refundable by up to 40% of the credit. The Lifetime Learning Credit is distinct from the Hope and AOTC credits in that it may be claimed for an unlimited number of taxable years, at any stage in a taxpayer's postsecondary education. The LLC is non-refundable and equals 20% of qualified tuition and related expenses of up to $10,000 (i.e., maximum credit eligible to be received is $2,000).
Under HR 3393, an overhauled AOTC would replace both Hope and Lifetime Learning Credits. The new AOTC would be permanent, and the credits would function as follows:
- 100% credit for qualified tuition and expenses of up to $2,000 and 25% credit for qualified tuition and expenses exceeding $2,000 but not exceeding $4,000, for a maximum total credit of $2,500
- Up to $1,500 of this credit will be refundable
- Increases income level for phase-out of credit
- Allows inflation adjustments to the income level for phase-out in taxable years beginning after 2018
Tax benefits for postsecondary education expenses have been garnering much recent attention. In June, NACAC and PCACAC member Jayne Fonash testified at a Senate hearing
on how tax benefits might reduce student loan debt. The same day, the Consortium for Higher Education Tax Reform hosted a panel discussion and white paper release
at New America Foundation.
Activity on higher education tax benefit reform is also happening elsewhere in Congress. In February, House Ways & Means Committee Chairman David Camp (MI-R) released a discussion draft
of comprehensive tax reforms, which include several measures affecting postsecondary education (click here
for a section-by-section summary of the draft). Inside Higher Ed summarized
the most significant proposals, which include, among others, consolidation of credits into a modified and permanent AOTC; eliminate deductions for interest accrued on student loans while still enrolled in school; eliminate exemptions for most student loan forgiveness programs; and limit student earnings exempt from Social Security taxation to $1,200. In April 2013, Charles Schumer (NY-D) introduced a Senate bill
to consolidate education benefits into a modified, permanent AOTC.
A common thread among the many proposals is the desire to make permanent and expand the popular, partially-refundable AOTC, while eliminating the two other primary tax credit programs - the Hope and Lifetime Learning Credits. This has drawn criticism from advocates who say the modifications will harm graduate students, who are most apt to take advantage of the Lifetime Learning Credit. For his part, President Obama issued a statement
after the House passed HR 3933, saying that although he supports making the AOTC permanent, "the Administration opposes H.R 3393 because it is part of a broader effort to pass permanent, unpaid-for extensions of traditional tax extenders that, taken together, would add approximately $800 billion to the deficit." Because of the limited time left on the Congressional calendar and the President's opposition to the bill, we do not expect to see the House measure move forward. Nonetheless, with these considerations of tax reform happening contemporaneously with major undertakings to reauthorize and update the Higher Education Act as well as ongoing discussions about student debt, it is doubtful that the topic will avoid more prominent reconsideration.
When Social Class Meets Ethnicity: College Going Experiences of Chinese and Korean Immigrant Families
The Review of Higher Education, Volume 37, Number 3, Spring 2014
Eunyoung Kim, of Seton Hall University, has published a mixed methods analysis of the impact that social class and ethnicity has on the college going experiences of Chinese and Korean students. Her research is important for understanding the factors that contribute to the success of East Asian immigrants and how college going experiences of Koreans and Chinese students differ. She focuses her qualitative analysis on the role of parental involvement and expectations for Chinese and Korean undergraduates. Her research provides a more nuanced understanding of cultural and structural elements that contribute to East Asian student success.
Kim’s research focuses on a group she describes as “1.5” generation immigrants who came to the United States as young children. This group is interesting to Kim because they are likely to face challenges navigating cultural traditions at home and the education system of their new country. Korean and Chinese student experiences often vary by economic standing and ethnic differences. Kim found that both groups understood the importance of attending college for obtaining professional and financial security. Both groups reported that attending college and excelling academically were important for fulfilling parental expectations. However, educational goals varied by ethnicity. Many Korean students approached education with an eye towards their own personal fulfillment. This was partially attributed to the reasons for their immigrant status. A number of Korean students had voluntarily immigrated to avoid the hyper-competitive Korean educational culture. Chinese students, who often hailed from working-class families, saw their educational achievement as key to their family’s well-being.
Korean students were more likely to benefit from well-established ethnic networks which were essential for distributing information about college admission among families. Many Korean students were raised in suburban areas and mentioned the role that Korean churches and after-school academies played in facilitating a college going culture. Chinese students were more likely to have been raised in urban areas and depended on school provided resources such as teachers and counselors for guidance. Chinese students often reported that both of their parents worked and did not speak English well so they weren’t able to become as involved with the college planning process.
Both groups of students reported conflicts arising from expectations about enrolling in a utilitarian major. Korean and Chinese students said that parents often stressed the importance of lucrative majors related to science or technology. Chinese students, in particular, were likely to report that they felt obligated to study a utilitarian major due to their parent’s considerable sacrifice.
Kim’s subjects reported a tension between attending a prestigious university and the affordability of college. Both Korean and Chinese students reported that attending a selective college was important to their parents. However, the Chinese students in Kim’s study were more likely to be in-state and interested in staying close to home to assist with their parents’ businesses on the weekends. Overall, Chinese students were much more sensitive to tuition prices and proximity.
Kim notes that both groups report that parental involvement was an important factor in their decision to go to college. Overall, Chinese students felt a greater obligation to help improve their parents social standing. Both groups reported an interest in attending more selective or out of state institutions but felt that the Midwestern state university they attended was the best mixture of affordability, relative prestige, and academic strength.
The full report can be found here.
Understanding the Writing Habits of Tomorrow's Students: Technology and College Readiness.
The Journal of College Higher Education, Volume 84, Number 4, July/August 2013
College level writing has changed nearly as much as colleges themselves in recent years. While the standard research paper is still dominant, students must now write successfully across a variety of formats in order to succeed in college. Stefani R. Relles and William G. Tierney have explored the relative digital deficits that low-income students bring to college in a recent paper. It has been shown that less than a fifth of students assigned to remedial English ever complete a bachelor’s degree but less is known about the extent that deficits in digital writing affect students.
In order to explore the digital dimension of low income student under-preparedness, Relles and Tierney examined the digital writing of 91 low income students enrolled in a remedial education class. They examined the writing on social-media posts that were created specifically for the class. The posts were examined for their proficiency in visualization, appropriation, and performance. Visualization was defined as the ability to construct and argument with an appropriately chosen image. Appropriation referred to the student’s ability to use the works of others to construct arguments. Finally, performance was the degree to which students could write dexterously with different voices depending on the message and medium. Proficiency in these skills could support college level writing that requires students to develop arguments, cite literature, and use the appropriate tone.
Three quarters of students demonstrated poor proficiency with visualization and appropriation. The students fared slightly better with performance but the voice of their posts was often disjointed and lacked an identity message consistent with their profile. Overall, only a minority of students who performed well did so across all three categories. In general the students presented a low level of proficiency with navigating new media and lacked proficiency in “basic internet survival skills.” These results are unfortunate because they demonstrate a poor disposal to developing thetical arguments, citing evidence appropriately, and developing an academic voice appropriate for college level assignments. Relles and Tierney stress that the wake of digitization will create new forms of inequality for students and that digital deficiencies pose a “latent threat” for low-income students in college.
The full report can be found here.
Tuesday afternoon, in a 2-1 ruling, the Fifth
Circuit Court of Appeals held that the race-conscious admission policy
used by The University of Texas-Austin is constitutional.
Deja vu? Here is a
recap of the case, Fisher v. UT-Austin, and how it ended up back at the appellate
court after reaching the Supreme Court in 2012-13. Below is a discussion of the majority opion, the dissent, and a look ahead at what could come next.
Abigail Fisher, and why did she sue UT-Austin?
Fisher, a 2008 Texas high school graduate, applied for admission to
UT-Austin's class of 2012. She was denied admission, and sued the University,
claiming that its admission policies violated her 14th Amendment rights under
the Equal Protection Clause.
does UT-Austin admit its freshman class?
The bulk of UT-Austin's
freshman class (approximately 80% annually) is automatically admitted under what is known as
Texas' Top Ten Percent law. This law guarantees admission to the public
university of one's choice for students in the top ten percent of their high
school class. Although it is known as the Top Ten Percent policy, the actual
percentage cutoff has, since the Fall 2011 admission cycle, been stricter;
applicants who were granted automatic admission for Fall 2015 enrollment were in
the top 7% of their high school class. This fluctuation is due to a stipulation
that the University, in order to achieve a diverse class, may admit up to 25%
of its class through holistic review, rather than the Top ten Percent policy.
Thus, since admitting the top 10% of all high school students would result in
enrolling far beyond 75% of the class, the University is permitted to modify
the rank cutoff.
The remainder of the
freshman class (those not admitted through the Top Ten Percent plan) is
admitted through what UT-Austin calls a holistic review process. This process
involves calculating two measures for each applicant. The first
measure is the Academic Index (AI), which takes into account factors such
as class rank, test scores, and high school coursework. The second measure
is the Personal Achievement Index, which looks at the strength of an
applicant's essays, leadership qualities, co-curricular involvement, and
demographic features such as socioeconomic background, primary language spoken
at home, family educational background, and race. An applicant's AI and
PAI are placed on a matrix for each academic program, and then admission
officers use a "stair-step" method to select students to admit to a
Why does UT-Austin use holistic
review to supplement the Top Ten Percent plan, and why is race a factor used in
The Top Ten Percent rule
guarantees that the highest-ranked students in Texas are admitted to UT-Austin,
regardless of how their academic credentials compare with one another.
This assures some level of diversity is achieved in the freshman
class. Unfortunately, Texas public schools are largely segregated, and
school resources vary dramatically. The result is that the top ten percent of
students at School A will have had an education and lived experiences nigh
unrecognizable from the education and experiences of their top ten percent
peers at School B. What the Top Ten Percent plan does not capture are those
students who do not rank in the top decile, but who bring with them
perspectives, achievements, and qualities that would enrich the UT-Austin
community. Because of how racially segregated Texas public schools are,
minority students in majority-white schools are not always captured through the
Top Ten Percent plan, just as white students in a majority-minority school may
be passed over. Race is not used as a stand-alone factor in review, and
neither is a specific weight assigned to race as opposed to another factor that
contributes to a composite PAI measure. By having the latitude to evaluate
students using far more information than just one data point (e.g., decile
rank), the University admission officers are able to help shape a class that is
diverse in many regards.
How is race currently
allowed to be used in public college admission decisions?
There have been two*
landmark Supreme Court cases involving the use of race in college admission.
of the University of California v. Bakke (1978):
upholds the use of race as a factor in admission decisions, but forbids the use
of a quota system (i.e., reserving a specific number of seats in a class for
v. Bollinger (2003): upholds the use of race as a factor in admission, so long as it
is not the dominant factor; that is, race may serve as a “plus” for
underrepresented students, but it must be one of several factors considered.
precedents were established in Bakke and Grutter that impact how Fisher was decided:
as a compelling government interest: Historically,
consideration of race in admission had been used as a means of helping right
the damage done by segregation, a goal that was a compelling public interest.
Grutter established the precedent that a diverse student body brings with it
educational benefits that are a compelling state interest unto themselves:
classroom discussions will be more informed, multidimensional, and reflect a
wider array of perspectives, and students will learn to interact with others
who come from different backgrounds, which will serve them well when they enter
a professional world ever more global and diverse.
mass of underrepresented students: While a quota system of
racial consideration was expressly outlawed in Bakke, Grutter confirmed
that universities have a compelling interest in achieving a “critical mass” of
underrepresented students in order to ensure that the students do not feel
isolated or perceive themselves to be spokesmen for their demographic, to be
certain enough opportunities exist for students of different backgrounds to
meaningfully interact and reap the educational benefits of diversity.
tailored use of race: The use of race in college admission must be narrowly tailored
to achieving the goal of attaining the benefits of diversity and reaching a
critical mass. That is, race may not be used indiscriminately without
exhausting other means of achieving the desired diversity, and its use must in
line with the “plus” factor consideration permitted in Bakke.
*Note: At the time Fisher was heard by the Supreme Court, Schuette v. BAMN had not yet been heard (and, ultimately, its ruling is not one that addresses the consitutionality of race-conscious admission practices), and the Court has yet to rule on Fisher.
How has the case
progressed through the court system?
Fisher v. UT-Austin stepped
into the popular spotlight in 2012, when the U.S. Supreme Court granted a writ
of certiorari, agreeing to hear the case. Prior to arriving at the Supreme
Court, lower courts had all ruled in favor of UT-Austin. When the case reached
the Supreme Court, the Justices ruled 7-1 (Justice Ginsburg in dissent, and
Justice Kagan having recused herself) that the lower court had failed to
apply "strict scrutiny" and had granted too much deference to the
University. The case was remanded to the lower court for reconsideration using
increased scrutiny. In the several opinions (1 majority, 2 concurring, 1
dissent) that accompanied the ruling, several Justices hinted at -- or
stated explicitly -- their thoughts on the proper role race should, or should
not, play in college admission. Nonetheless, the Court effectively avoided
issuing an opinion on race-conscious admission per se, identifying instead a
procedural error in how the lower court had handled the case. This is how the
case found its way back to the appellate court for this most recent ruling.
Which brings us back to Tuesday’s ruling.
In its reconsideration
of Fisher, the court
paid close attention to whether or not the use of race at UT-Austin is, indeed, narrowly-tailored. To arrive at its conclusion, the court looked specifically at two factors:
1) Previous attempts to achieve diversity at UT-Austin using other admission procedures and techniques
2) The actual effect of the holistic review process on UT-Austin's freshman class demographics.
On the first point, the court concluded that UT-Austin had previously attempted race-blind (or facially race-blind, given the Top Ten Percent plan and the segregation of Texas' public school system) admission, which had failed to secure sufficient diversity. The institution had also pursued outreach measures and admission recruitment practices designed to target underrepresented populations. Work-arounds to avoid explicit consideration of race simply fell short of success. Given this demonstrated record of multifaceted approaches to diversity recruitment and enrollment, the court found that UT-Austin's consideration of race as one of many factors for a small percentage of admitted students (~80% of freshman class admitted via Top Ten Percent plan) met requirement of narrow tailoring.
In discussing the second point, the actual impact of race-conscious admission, the court noted the intense competition for seats in the ~20% of the class remaining for holistic review applications. Academic standards for admission under holistic review are set high, Minority students admitted under holistic review are actually underrepresented as compared to their share of the UT-Austin population. For the class entering in Fall 2008, the year Fisher had applied for admission, only 3.3% of the freshman class were black and Hispanic students admitted through holistic review, while 12% of the students admitted through holistic review were white. The total share of students admitted that year through holistic review was 19%. Minorities were underrepresented within this group, with 12% of Hispanic students and 16% of black students admitted through holistic review. Meanwhile, 24% of all white students were admitted holistic review. The court found the data reveal just how subtly race functions as a "plus" factor in UT-Austin's holistic review process, serving as minimally as necessary to help the University attain its Grutter-sanctioned goal of a critical mass of underrepresented students. In no uncertain terms, Judge Higginbotham, writing for the majority, said this of UT-Austin's holistic review process: "Given the test score gaps between minority and non-minority applicants, if holistic review was not designed to evaluate each individual's contributions to UT Austin's diversity, including those that stem from race, holistic admissions would approach an all-white enterprise."
The majority also noted a problem in Fisher's contention that the Top Ten Percent plan ought to be to ensure diversity, especially given the holistic review process' relatively minute contribution to the numbers of enrolled underrepresented students. Bakke established that a quota system in race-conscious admission is impermissible. Because of the stark segregation of Texas public schools, a de facto quota system would result if 100% of the class were admitted under the Top Ten Percent plan. To allow students to benefit from the diversity of experience and perspective of students in the bottom 90% of classes in majority-white and majority-minority schools, the Top Ten Percent policy must be augmented by a holistic review.
Judges King and Higginbotham comprised the majority.
Judge Garza dissented from the majority opion. Garza did not believe the majority held UT-Austin to the exacting standards of "strict scrutiny" required by the Supreme Court remand. Faulting the University for failing to define "critical mass," Garza contended that the court had no means of applying strict scrutiny; how can it examine the means to an end, when the end itself is undefined? He further challenged the UT-Austin's claim that race is a necessary factor to take into account during holistic. Because no specific points or value are assigned to race as its own category (race can factor in to an applicant's PAI measure, but it is a cumulativetive assessment of several items, only one of which is race), then the University, according to Garza, cannot prove that race truly is a necessary factor--its benefit is not quantifiable. As for qualifiable value, Garza argues that asserting the students admitted under the Top Ten Percent plan may not be diverse enough in their perspectives and backgrounds is effectively stereotyping, thus supporting the behavior the educational benefits of a diverse campus are meant to ameliorate. In his assessment of the case, Garza did not find UT-Austin had demonstrated sufficiently that its use of race is narrowly tailored to the degree that it meets established standards.
Fisher has indicated that she will be appealing the court's decision. There are two possible options for an appeal. Fisher could ask for a rehearing en banc by the Fifth Circuit Court of Appeals. At this rehearing, her case would be heard by the full roster of judges, as opposed to the three-judge panel. Alternatively, Fisher could decide to bypass an en banc hearing and appeal directly to the Supreme Court. Neither the Appellate Court nor the Supreme Court is required to grant her appeal. Should she appeal for an en banc hearing and be denied, Fisher will be able to appeal to the Supreme Court, which may or may not grant her request. Additionally, should Fisher be granted an en banc hearing and should the court again rule against her, she could once more appeal to the Supreme Court, which would have the option of accepting or declining her appeal (or, alternatively, should the en banc court rule in Fisher's favor, UT-Austin would have this recourse). If the Supreme Court at any point declines to hear the case, the most recent lower court ruling will stand.
Unlike its K-12 companion, state higher education funding is not an entitlement. Thus, state appropriations for higher education are discretionary expenditures, able to be increased or decreased at legislative will. A new article, published in the July/August 2014 edition of The Journal of Higher Education, examines the ways partisanship and polarization in state legislatures impacts higher education funding.
The authors, Luciana Dar (Assistant Professor of Higher Education, UC Riverside) and Dong-Wook Lee (doctoral candidate in Politics and Policy, Claremont Graduate University), examined 44 states (excluded: AK, DE, ND, NE, VT, and WY) from 1977 through 2004. Chief among the study's findings was that when state legislatures featured a high proportion of seats held by Democratic representatives, state support for higher education funding increased. This effect, however, was subdued when polarization within the statehouses was more intense.
Taking a traditional cause-of-effect approach and turning it on its head, Dar and Lee approached their research from what they term an "effect-of-cause" lens. That is, if higher education is seen as a humanitarian endeavor to enrich people's lives intellectually, socially, and economically - ideals traditionally aligned with the Democratic party - (cause), one could expect that Democratic legislators would be more apt to favor higher education funding than their Republican counterparts (effect). Dar and Lee propose inverting this relationship between cause and effect: Democrats may seek to fund higher education less (effect) because they are also wanting to fund other programs that have similar goals (cause). In times of intense polarization, even legislatures with strong Democratic representation see a lower increase in funding for higher education. Dar and Lee contend that one of the reasons for this is that Democrats might be able to satisfy their agenda (cause) through supporting other, less contentious programs (effect).
Economic conditions also influence the effect strong Democratic representation has on higher education appropriations. Dar and Lee note that middle- and upper-middle-class students are disproportionally represented in higher education, and thus funds allocated to public college and university systems will have less direct impact on lower- and lower-middle-class individuals, a demographic for which Democrats tend to wish funding be increased. During economic downturns, Dar and Lee argue that Democrats may feel it is all the more important to target funds directly at these constituencies, as opposed to higher education systems that generally serve higher-income populations. The authors argue that understanding the complex interplay between partisanship, polarization, and economic conditions will help advocates as they lobby state legislatures for higher education support.
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