Diversity and College Admissions Practices

579 U.S. ____ (2016)

Let’s recap, shall we?

As it existed at the time it rejected her application, the UT admission plan is composed of two parts: automatic admission for anyone graduating from a Texas high school in the top ten percent of the class and admission for those with qualifying scores under the UT’s holistic assessment. The holistic assessment is composed of an academic and a personal achievement index. The UT considers race under the latter index.  Having not graduated in the top ten percent of her class and achieving an insufficient score under the school’s holistic assessment, the UT denied Fisher admission. Fisher asserted that had she been a racially underrepresented student, the UT would have admitted her under the holistic admission plan and that in its consideration of her race, the school’s denial of her application violated the 14th Amendment’s Equal Protection Clause.

In her petition to the Court Fisher acknowledged its ruling in a former case in which it found student body diversity a sufficiently compelling interest to justify racial considerations in university admission decisions.  However, she argued that in its failure to state the number of underrepresented students required to create a diverse population, the UT had not articulated that interest with sufficient clarity, failing to meet the strict scrutiny test required when assessing constitutional permissibility. In a 4-3 decision, the Court disagreed with Fisher on this point and on all others made in her petition.

The Court found that the record demonstrated that the UT had sufficiently articulated a compelling interest in its stated need for an academic environment that offers a “robust exchange of ideas, exposure to differing cultures, preparation for challenges of an increasingly diverse work force and acquisition of competencies required of future leaders.” It is these benefits of the environment rather than a specific number that amounts to the student body diversity the UT seeks.  Moreover, since quotas are unlawful, the UT cannot be penalized for failing to state the number of students that constitute the “critical mass” that will create such an environment.

Alongside the argument that the UT had not sufficiently articulated a compelling interest in diversity, Fisher posited that in 2003, under its then top ten percent only plan, the school had already reached its critical mass of ethnically underrepresented students, obviating the need for its consideration of race in its admissions policies. Fisher further argued that the slight increases under the holistic plan had only minimal impact on creating the kind of diverse environment that the school sought to create, failing to justify the use of racial considerations in admission decisions.  Finally, said Fisher, the UT could employ numerous other race-neutral means to achieve its interest in creating a diverse student population.  The Court deferred to the UT’s assessment of its outcomes in reaching different conclusions on all of these points. 

The Court found that the UT had assessed the effectiveness of its plan in achieving its diversity goals.  The UT’s research concluded that under a plan where it did not make racial considerations, only 21 percent of undergraduate classes with five or more students in them had more than one African American student enrolled; and 12 percent of those classes had no Hispanic students.  The statistical information was bolstered by the anecdotal data, which reported students experienced feelings of loneliness and isolation in being among the few of their background on campus.  The Court found that while a university must continually reassess its need to make racial considerations, the UT made a “reasonable determination” that it “had not yet attained its goals.”   In its response to Fisher’s assertion that minimal impact does not justify the use of race, the Court indicated that such an impact should stand for the proposition racial considerations were made only to the extent necessary to achieve the institution’s interest--exactly as the strict scrutiny test demands. “The fact that race consciousness played a role in only a small portion of admissions decisions should be a hallmark of narrow tailoring, not evidence of unconstitutionality.”

Finally, countering Fisher’s argument that the UT could employ alternative, race-neutral means to achieve its diversity goals, the court again deferred to the institution’s findings.  UT’s data demonstrated that all of Fisher’s proposed race-neutral alternatives were either already in effect or previously proved ineffective.

Notwithstanding the Court’s ruling, the Court issued a charge to institutions using race-conscious admission policies.  In indicating that the UT could not rely on its current policy without “refinement”  the Court called for “ongoing” and “constant deliberation and continued reflection regarding its admissions policies.”  In this process, stated the Court, the UT and others should scrutinize the data discovered, which means assessing whether changing demographics have undermined the need for race-conscious policy and identifying both the positive and negative effects of the race-conscious policy it deems necessary to achieve its objectives.
135 S. Ct. 2888 (2015)

The University of Texas has two routes to admission: 1) guaranteed admission to any student in the top 10% of her class; or 2) admission under a review of a variety of factors, applicants’ race among them. Abigail Fisher, ineligible under the top 10% route, alleged that the University of Texas denied her admission based on her race in violation of the 14th Amendment. Fisher filed suit and lost, appealing her way to the United States Supreme Court. The issue? Whether the University of Texas admission program was a sufficiently narrowed means of achieving the established compelling interest of diversity in educational programming. The Supreme Court remanded the case to the lower court, directing it to assess whether or not the University had met this strict scrutiny standard. The lower court responded that it had. Fisher once again, petitioned the Supreme Court to re-hear the case, asserting that in its new ruling the lower court had not applied the strict scrutiny standard the Supreme Court directed it to apply in its assessment of the University of Texas admission program. The Supreme granted her petition and heard oral arguments on December 9, 2015.

The Takeaway: Stay tuned. Educational institutions across the nation are standing by to hear the news.

Questions? Comments? Complaints (really)? Email or call: tcooper@westmont.edu; ext. 6832.

Rodriguez v. Maricopa Community College District et al

(Harassment, Free Speech and the College Campus: A feast of the offenses)

Maricopa Community College Professor Walter Kehowski likes his Columbus Day and he thinks that every other citizen of the United States should like it too. He paired his thoughts on the subject with a penchant for European cultural superiority; and a vintage disdain for another celebration, Dia De la Raza and he served it all cold over email and the college-hosted faculty blog. Good eats? Not so much.

Colleagues and students alike said that Kehowski’s comments amounted to harassment. An Arizona district court agreed. Following some legal procedural gymnastics the US appellate court for the 9th Circuit disagreed. The appellate court reversed the district court’s ruling and stated that, “without the right to stand against society's most strongly-held convictions, the marketplace of ideas would decline into a boutique of the banal, as the urge to censor is greatest where debate is most disquieting and orthodoxy most entrenched. … The right to provoke, to offend and to shock lies at the core of the First Amendment.”

“But wait a minute? I thought we were supposed to refrain from offensive conduct. Are you telling me I have a right to be offensive?” Well, yes. I shudder to say so but yes, yes you do. However, before you read that as a recipe to harass and annoy, please read on, dear friend.

Heated Debate vs. Hostile Environment
Speech must be more than offensive before it qualifies as unlawful; it must also be based on a protected category; and so severe and pervasive in its nature that it creates an abusive environment. In this case, the Court found that Kehowski’s comments, while related to race and expressing an opinion that many found offensive, was pure speech; objected to not because of its abusive impact on the environment but solely because of its meaning.

As a result of Kehowski’s communications students protested in just about every form possible. Faculty wrote editorials. The college’s administrative leaders publicly condemned Kehowski’s communications. In fact the president himself rejected to Kewhowski’s statements and made clear that the view in no way reflected the college’s position on the matter of the educational and social value of a diverse learning environment. Nonetheless, he and other administrators supported Kehowski’s right to express his opinion.

The case bears no indication that students were impeded in their ability to participate in educational activities or that faculty and staff members prevented from performing their work. That’s the impact of severe and pervasive racially offensive behavior. Individuals, (many of them), disagreed with Kehowski’s comments. However, free speech protects the communication. The right to be protected from workplace harassment does not provide for the restriction of speech because we find it objectionable, even when that speech is related to matters of race. It is when the speech’s impact becomes a barrier to in employment and education that the law intervenes.

Speech at a Private College
You might wonder why we even care about free speech at Maricopa Community College, a public institution. Individuals working in private institutions have free speech rights. Here are a couple of reasons why.

The Leonard Law
California’s Leonard Law provides that no private college shall “make or enforce a rule subjecting a student to disciplinary sanctions solely on the basis of conduct that is speech or other communication that, when engaged in outside the campus or facility of a private postsecondary institution, is protected from governmental restriction by the First Amendment to the United States Constitution or Section 2 of Article I of the California Constitution.”

State Labor Code
While employers enjoy broad discretion regarding employee expression, state labor laws prohibit undue restrictions on employee speech. There also remains some question over the extent to which the state constitutional provisions on free speech extend to even the private employer as it relates to workplace regulations in this subject area.

The Moral of the Story
Objectionable comments do not a hostile environment make. Most cases of unlawful harassment involve behaviors that build on themselves over a period of time until the environment reaches the point of being intolerable. While a few stray offensive and racially charged comments will most likely not rise to that level, healthy workplaces take preventative educational measures aimed not only at preventing patently unlawful behavior, but at fostering an environment in which reasonable people feel respected more often than they feel offended for any reason let alone their status as a member of protected class.

Questions? Comments? Complaints (really)? Email or call: tcooper@westmont.edu; ext. 6832.

Christian Legal Society v. Martinez

(Come one; come all and they mean everyone.)

If your student Christian Legal Society (CLS) won't accept atheists as members, you won't receive official recognition; not if you attend Hastings College of Law at the University of California. In a 5-4 opinion, the US Supreme Court determined that granting CLS official status would violate Hastings' all-comers policy, which requires official student clubs to accept all members regardless of religion. CLS limits membership to individuals who sign its statement of faith. Hastings argued that granting official recognition to CLS would amount to the college (a public institution) engaging in religious discrimination. Though it ruled against CLS, the Court sent the case back to the appellate court to make a determination on whether Hastings selectively enforces the all-comers policy against only religious student groups. This would mean that Hastings uses the policy as a pretext to hide the fact that it engages in the very religious discrimination it claimed it avoided when it rejected CLS's application for recognition. Unfortunately, the lower court found that Hastings failed to make that argument in its original filing leaving the court unable to rule on the issue.

Religious Exemptions
Some wonder whether the case is simply one in a line of similar cases attempting to chip away at the exemptions in anti-discrimination laws from which institutions like Westmont benefit. Both state and federal law prohibit discrimination on the basis of a host of categories; among them is religion. These laws apply not only to public institutions like Hastings, but to private institutions. However both federal and state law also include an exemption for religious institutions granting them the right to hire for mission and therefore require adherence to a statement of faith.

The Takeaway
Well, first, if you're filing a brief in the Supreme Court, consider a kitchen sink approach to the arguments and make all of the viable ones you can fathom. Make them clearly and conspicuously so that the judges do not feel as though in order to find your arguments they must behave as "pigs hunting for truffles." (Not my words, the judges'). Second, this opinion, though not in CLS's favor, does not eliminate the exemption in the law religious institutions enjoy allowing them to hire for mission.

Questions? Comments? Complaints (really)? Email or call: tcooper@westmont.edu; ext. 6832.

Sexual Orientation Discrimination & Title IX

Case No. CV 15-00298 DDP (JCx)

Pepperdine University Basketball players Layana White and Haley Videckis claimed the university violated Title IX’s prohibition on discrimination on the basis of sex when coaches, trainers and support staff questioned them about their sexual orientation, their sexual behavior and their dating lives. The plaintiffs claimed that the different treatment they received based on their perceived sexual orientation resulted in their removal from the basketball team, loss of their athletic scholarships and ultimate withdrawal from the university. Pepperdine moved to dismiss the players’ Title IX claims, asserting that the statute does not apply to sexual orientation discrimination and that the claims the plaintiffs made did not support a claim based on gender stereotype discrimination. In denying Pepperdine’s motion, the court cited a line of recent case law under both Title IX and Title VII, all of which stands for the proposition that “the line between sex discrimination and sexual orientation discrimination is ‘hard to draw’ because that line does not exist, save as lingering faulty judicial construct.” The court further stated that, “claims of discrimination based on sexual orientation are covered by Title VII and Title IX but not as a category of independent claims separate from sex and gender stereotype.” Rather, said the court, “claims of sexual orientation discrimination are gender stereotype or sex discrimination claims.”

The Takeaway: While the courts have yet to summarily and finally create the possibility of a separate category of claims for sexual orientation discrimination, case law continues to break down the distinction between claims of discrimination based on sexual orientation and claims of discrimination on the basis of sex.

Transgender Status & Title IX

Deferring Deference

In 2015 the Department of Education (DOE) issued an opinion letter interpreting a provision in the Title IX regulations that permitted institutions to provide separate, single-sex bathrooms for students without running afoul of the law’s prohibition of discrimination on the basis of sex.  In that letter, the DOE indicated that schools must treat transgender students consistent with the gender with which they identify in its rules regarding the use of those bathrooms and that to restrict use of facilities on the basis of biological sex violated Title IX.  A 2016 Dear Colleague Letter (DCL) provided broader instructions to educational institutions regarding the administration of their programming, consistent with this interpretation of Title IX’s requirements as they relate to transgendered individuals.

Under the 2016 DCL, institutions were to treat individuals in a manner consistent with the gender with which they identified in all educational programming, notwithstanding that identification’s congruence with the gender assigned to them at birth.  The DCL outlined the manner in which institutions should administer their programming, including: the assignment of residence halls, the provision of access to restroom and locker room facilities, as well as the maintenance of student records with respect to identification of gender.  This and the 2015 DOE guidance made its way into the highest court of the land courtesy of a Gloucester County, Virginia transgendered student. 

Citing the DOE’s (as well as similar Department of Justice) guidance, the student in Gloucester County asserted that his school violated Title IX when it barred him from using the restroom consistent with the gender with which he identified.  The lower district court dismissed his case and declined to enjoin the school from barring the student from using facilities of his preference.  Indicating that the district court did not give proper deference to the relevant agency guidance, the appellate court reversed the lower court’s ruling and sent the case back to that court, ordering it to afford the DOE’s interpretation the deference owed to it and make a decision in the student’s case accordingly.  Faced with its loss in this case, the Gloucester County school board petitioned the US Supreme Court, the Court accepted the petition and scheduled arguments on the matter for March 28, 2017.

Meanwhile, similar cases cropped up across the nation, citing the detailed 2016 DCL, which educational institutions argued amounted to improperly vetted, new legal obligations.  In a Texas case, the court granted an injunction resulting in a nationwide prohibition on enforcement of the 2016 DCL.  In the midst of it all, the country was on its way to electing a new President and gaining a new head of the DOE.  Put a pin in that.

 At first blush, you might be led to believe that the juicy bits of this case lie in continued debates about gender, sex and identity but they don’t.  The real legal juice is in the arguments about deference and rulemaking and regulations (and all of the politics that go with them).  Let me explain.

Proponents of the DOE’s guidance argued that we owe administrative agencies deference to their interpretations of the laws they enforce. After all, the very purpose of the DOE’s existence is to establish education policy and implement relevant laws enacted by Congress.  Fair enough, opponents of the guidance opined.  We may owe deference to agency interpretations of the laws but what we don’t owe is obedience to new rules that have not endured the rulemaking process required under the Administrative Procedures Act; nor are we beholden to administrative guidance, in the same way that we are beholden to guidance that bears the force of law, and such force, argued the opponents to the guidance, only comes when the agencies follow the rules for making new law.

Countering such arguments, in Gloucester, the DOE argued that the issue of rulemaking and its implications for agency guidance was not the issue before the Court.   Rather, the court merely needed to determine whether the school board violated Title IX when it barred transgendered individuals from using the gendered restroom with which they identified. The DOE further argued its interpretation of the relevant law controlled the outcome in the case unless its interpretation was ambiguous or clearly inconsistent with the law. Well, the Court was essentially prepared to address all of this.  But remember your pin?  You stuck it in the new president and a new head of the DOE.  On February 22, 2017, the current administration of which they are both a part rescinded the 2016 guidance and indicated it would not enforce the DOE’s previous guidance on the issue.  The Supreme Court removed Gloucester from its calendar and the litigants in the Texas case withdrew their suit.

Questions? Comments? Complaints (really)? Email or call: tcooper@westmont.edu; ext. 6832.