Bakke, Bollinger and Beyond: How to Withstand The Emerging Imperfect Storm

1. Bakke, Bollinger and Beyond: How to Withstand The Emerging Imperfect Storm College Board Forum San Diego, November 2006 Arthur L. Coleman Holland & Knight LLP Washington, DC arthur.coleman@hklaw.com

2. The Big Picture: The Need to Prevail in the Courts of Law and Court of Public Opinion • The Courts of Law: • Bakke:A challenge to a rigid, mechanistic quota with remedial underpinnings. Sixteen of 100 seats reserved for minority students. • 1978 Ruling: An impermissible quota. But, not all uses of race are prohibited.... • Bollinger:Two challenges to two non-remedial programs, one of which involved a mechanistic points system by which underrepresented minority students would receive 20 out of 150 points because of their minority status. • 2003 Ruling: Universities may consider race when pursuing the educational benefits of diversity, but not in ways that are overly mechanical or that overly weight race in the process so that it operates as the driving force explaining virtually every admissions decision of a minimally qualified minority student.

3. The Big Picture: The Need to Prevail in the Courts of Law and Court of Public Opinion • The Courts of Law: • Seattle School District: A challenge to an “open choice” high school student assignment plan, with “integration tiebreaker” designed to maintain a desired level of racial balance. • Jefferson County Board of Education: A challenge to a voluntary student assignment policy designed to maintain racially integrated schools.

4. The Big Picture: The Need to Prevail in the Courts of Law and Court of Public Opinion 2003 GINSBURG STEVENS SOUTER BREYERO'CONNOR KENNEDY REHNQUIST SCALIA THOMAS GRUTTER MAJORITY GRATZ MAJORITY 2006 GINSBURG STEVENS SOUTER BREYERALITOKENNEDY ROBERTS SCALIA THOMAS

5. The Big Picture: The Need to Prevail in the Courts of Law and Court of Public Opinion • The Court of Public Opinion: • Voter Initiatives/Executive Orders have banned the use of race in higher education admissions (and related decisions)—despite federal court recognition of the “compelling” interest in achieving the educational benefits of diversity. • California—Proposition 209 • Washington—I-200 • Florida— “One Florida Plan” • Michigan—Proposition 2 • 58% vote in favor • 2/3 white voters in favor; 1/7 black voters • 2/3 men in favor; just over 50% women in favor

6. Key Foundations:Effective Policy Development Educationally sound and legally defensible race-/ethnicity-conscious practices must be the product of a well-designed, institutionally-aligned, and integrated process. Educational Benefits of Diversity Supporting Evidence Goal . . . . . . . . . . StudentSupport and Enrichment Enrollment Management Objectives. . . . . . . Supporting Evidence Recruitment Academic and Student Affairs Admissions Retention Strategies. . . . . . . Financial Aid

7. Key Next Generation Issues:Clarity on Goals and Objectives • Articulation of educational benefits • Teaching/Learning • Citizenship • Preparation for Workforce • Authenticity in efforts to attain goals • Beyond the numbers… • Infusion in the higher education experience • Academics • Social • Etc. • Bases for meaningful evaluation • Critical mass + educational outcomes

8. Key Next Generation Issues:Transparency in Defining Merit • Clear policies that explain concepts of merit, with a focus on: • What test scores/grade point averages do and do not tell us • Why test scores/grade point averages are not the sole basis for evaluating students • The multiple dimensions of diversity that are valued…and that sometimes (frequently?) explain why majority students with lower test scores were admitted or qualified for other educational offerings • Why the concept of merit is both student-centric and school-centric

9. Key Next Generation Issues: Precision in Describing & Limiting the Role of Race • No overstatement of the role of race in various enrollment management programs • Admissions • Financial aid • Recruitment/outreach • Retention • Ensuring the verifiable necessity of using race in current forms to achieve goals • More minimal use to same ends? • Race-neutral alternatives? • “Outside of the box” analysis?

10. Key Next Generation Issues: Effective Communications and Alliances • Education of Key Stakeholders: The What, Why and How • Faculty, staff, students • Alumni, Employers • The Public • Strategic Alliances (“We need this…”) • The business community (“an economic imperative”) • The military (“a national security imperative”) • K-12 (fixing what’s broken)

11. References • The College Board Access and Diversity Collaborative • www.collegeboard.com/diversitycollaborative • Coleman and Palmer, Admissions and Diversity After Michigan: The Next Generation of Legal and Policy Issues (CollegeBoard, 2006) • Coleman, Palmer and Richards, Federal Law and Financial Aid: A Framework for Evaluating Diversity Related Programs (CollegeBoard, 2005) • Coleman, Palmer and Richards, Federal Law and Recruitment, Outreach and Retention: A Framework for Evaluating Diversity-Related Programs (College Board, 2005) • Shaw, Researching the Educational Benefits of Diversity (College Board, 2005) • Rigol, Admissions Decision-Making Models (College Board, 2003) • Perfetto, et al., Toward a Taxonomy of the Admissions Decision-Making Process (College Board, 1999) • Rigol, Selection Through Individualized Review (College Board, 2004) • The University of Michigan • www.umich.edu/~urel/admissions/

12. Contact Information Art Coleman is a partner and co-leader of Holland & Knight’s Education Policy Practice. He previously served as Deputy Assistant Secretary for Civil Rights in the U.S. Department of Education. Holland & Knight LLP, with over 20 offices throughout the U.S., provides higher education institutions and organizations with a wide variety of educational services, including diversity-related services: strategic planning; policy counseling and program audits; litigation support (including regarding OCR investigations) and staff/member training. Mr. Coleman may be reached at 202-419-2567 or at arthur.coleman@hklaw.com.