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Could Universities Be Required to Increase Need-Based Aid before Resorting to Affirmative Action?

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With the U.S. Supreme Court showing increasing skepticism of race-based preferences in higher education and with these policies circling the drain in the eyes of policymakers and voters there is an urgent need to find new tools for ensuring racial and economic diversity at our nation۪s colleges and universities. One recent Supreme Court decision, though perceived by some as having dealt a near-fatal blow to affirmative action, may actually suggest a new path forward that could potentially find support among affirmative action advocates, policymakers, and Supreme Court justices alike. 
Catherine Lhamon, the U.S. Department of Education۪s assistant secretary for civil rights, recently described this potential new approach during a discussion of the 2013 Supreme Court decision Fisher v. University of Texas. Lhamon explained that the ruling which I believe created new hurdles for the use of race-based affirmative action could potentially require schools seeking to achieve diversity through affirmative action to first redirect more of their financial aid money toward need-based student aid. In this regard, the decision could actually be a catalyst for increasing investment in the educational needs of low-income and minority students.

In the 7-1 Fisher ruling, the court held that colleges and universities must now justify, with evidence, their decisions to use race-based affirmative action in lieu of race-neutral approaches that are capable of producing similar levels of diversity. As Justice Anthony Kennedy explained in his majority opinion, if a “nonracial approach” to college admissions could yield diversity “about as well” as affirmative action, and “at tolerable administrative expense,” a university must choose that approach “before turning to racial classifications.”

In the wake of Fisher, the Century Foundation and Lumina Foundation convened a national summit this June to explore new approaches to closing the racial achievement gap in American higher education. We were asked to embark on answering some tough questions given these new instructions from the court, including, perhaps most importantly, what sort of “tolerable” administrative expenses does Fisher compel universities to make in the name of diversity?

Currently, many universities utilizing race-based preferences aren۪t putting their money where their mouths are when it comes to investing in diversity. Like any business, a university operates with a finite amount of resources, so money that is spent on enrolling low-income students often by providing need-based financial aid is money that could be spent elsewhere. This is all fine and well, of course, except that competitive universities happen to be ranked each year in an extremely high-profile publication looked to by tens of thousands of aspiring college students. In other words, while the arc of the college-resource-allocation universe may be long, it bends toward those metrics valued by the U.S. News & World Report۪s “Best Colleges” rankings. Therefore, when universities are faced with choosing between factors that U.S. News values such as faculty salaries and “merit aid” (financial aid given to students with high test scores) and factors such as “economic and racial diversity,” it۪s easy to see why need-based aid gets lost in the crowd.

At the summit, Assistant Secretary Lhamon offered an encouraging sign that colleges and universities may indeed have to reorganize their financial resources to better serve low-income students. While making clear that Fisher does not compel a university to increase the total amount of money allocated to financial aid, she asserted that if a university wanted to achieve diversity yet claimed it was unable to do so without considering race it would be “hard to say” that shifting money from merit-based aid to need-based aid could not get the job done.

Yet for the most part, it remains to be seen how the use of affirmative action will fare post-Fisher. Abigail Fisher, after losing in the Fifth Circuit Court of Appeals this July, has appealed the decision, meaning her case could again find itself before the U.S. Supreme Court. There, a simple, active majority of the Fisher court could conclude that colleges seeking to achieve diversity must go so far as to lower their admissions criteria before resorting to affirmative action.

This possibility, though unlikely and completely anathema to the court۪s last major pronouncement on affirmative action some ten years ago, was nevertheless only addressed and rejected at one point in Fisher in Justice Ruth Bader Ginsburg۪s dissenting opinion, which does not carry the force of law. Indeed, Chief Justice John Roberts took this possibility further than it۪s ever gone before last October, when, during oral arguments for a separate affirmative action-related case, he wondered aloud why the court shouldn۪t simply instruct universities to do “everything [they] can without [using] racial preferences.” Thus for now, Assistant Secretary Lhamon۪s assertion that universities claiming unfeasibility could simply redirect more funding to need-based aid provides a far more palatable path to diversity for those universities whose missions and finances are truly committed to it.

Altogether, the Fisher decision has proved that defenders of affirmative action can no longer rely on the sporadic conscience of the Supreme Court۪s swing voter, Justice Kennedy, to save the ship. We now find ourselves firmly entrenched in an era of willful colorblindness. Proponents of racial and economic equality must adapt to this new reality by thinking creatively about new ways to promote diversity in a world where traditional affirmative action has become increasingly suspect.

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Scott Greytak is of counsel with Campinha Bacote LLC in Washington, D.C., where he provides legal guidance and policy recommendations on the intersection of education policy and civil rights law. He is the author of a chapter titled “New Rules for Affirmative Action” in the 2014 book The Future of Affirmative Action, released this past June by the Century Foundation and Lumina Foundation.

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