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‘Fisher’ Happened. Now What?

Like many college officials, Larry White has read and reread the U.S. Supreme Court’s majority opinion in Fisher v. University of Texas at Austin. He keeps returning to the same sentence on Page 11, searching for guidance. “Strict scrutiny,” Justice Anthony M. Kennedy wrote, “imposes on the university the ultimate burden of demonstrating, before turning to racial classifications, that available, workable race-neutral alternatives do not suffice.”

What, exactly, does that mean? “In those words is a mountain of unanswered questions,” said Mr. White, general counsel at the University of Delaware. “It’s pretty clear what we have to do. What’s not clear is how we have to do it.”

The long-awaited ruling—that lower courts should have applied stricter scrutiny to the University of Texas at Austin’s admissions policies—prompted an array of predictions about the future of race-conscious admissions programs. Yet the ruling didn’t deliver a precise blueprint for colleges that have such programs.

As they continue to analyze the opinion, admissions officers and general counsels have just begun to devise plans for re-examining—once again—their admissions programs and insulating them from judicial scrutiny. For now, it’s safe to say that Fisher has affirmed the importance of two D-words: documentation and data.

In the “demonstrating” sentence, Mr. White said he heard a call for documented evidence. ”The word ‘document’ doesn’t appear in the ruling, but I can guarantee you that word is coming up in admissions offices all over the country,” Mr. White said. ”Take that sentence, tack it on a wall, and start doing analytics.”

Some observers have interpreted the ruling to mean that any college with a race-conscious admission policy would be in legal jeopardy if it had not first tried to achieve diversity through race-neutral means. Some college officials dismissed that notion, insisting that merely studying such alternatives was enough. “If we really believe in the educational benefits of diversity,” said one admissions dean, “then trying it out for the sake of proving that it’s not going to be effective damages that belief.”

Still, the consensus is that colleges must do their homework on existing race-neutral policies—and be able to show that they have done it. To that end, some college officials said they would consider ways of estimating what would happen if their institution adopted a policy like Texas’ top-10-percent plan, which guarantees admission to students who graduate in the top 10th of their high-school classes.

Last year the University of North Carolina at Chapel Hill’s admissions office calculated how such a plan would have affected its freshman class. It found that the share of nonwhite and underrepresented students would have risen from 15 to 16 percent, but that the average SAT score of the class would have dropped by more than 50 points and its predicted mean grade-point average would have fallen slightly.

Gathering that kind of data, Mr. White suggested, is more important than ever. After all, a conclusion reached without an analysis could expose a college’s admissions process to legal challenges.

At Delaware, as at many institutions, officials are discussing the possibility of creating a working group to study the implications of the Fisher ruling. Mr. White said he expected the group would review race-neutral policies elsewhere and examine demographic data on high-school graduates. He anticipated that the group would include faculty members from the sociology department, and he did not rule out consulting outside experts.

On many campuses, officials may well end up replicating the reviews they conducted after the rulings in the University of Michigan affirmative-action cases a decade ago. At the University of Maryland at College Park, Barbara A. Gill said she anticipated that the institution would establish its own working group, which would probably revisit all of its policies, including how applicants are evaluated for scholarships and for admission to living-and-learning programs.

“I don’t think doing something once is sufficient,” said Ms. Gill, assistant vice president for undergraduate admissions and enrollment planning. “Whether it’s the use of race or assessing the value of test scores, these things need to be reviewed constantly.”

After the Supreme Court’s ruling in Grutter v. Bollinger, one of the Michigan cases, Maryland conducted a study to determine how a race-blind admissions policy would affect the diversity of incoming classes. It found that the percentage of underrepresented minority students admitted would decrease significantly. Ms. Gill said she suspected the university would conduct such a study again, using more-recent numbers.

Assessing internal data is one thing; reviewing external research is another. Teresa E. Taylor, a policy and legal adviser at EducationCounsel LLC, said colleges should regularly gather findings from other colleges, as well as relevant social-science research.

“For a long time, colleges could have these fiefdoms and operate on their own,” she said. “Now that’s changing, and it’s requiring colleges to do more to make connections between the research community and enrollment professionals.”

Ms. Gill agrees. “You can’t just look inward,” she said.

Yet even a trove of data may not satisfy a court. Justice Kennedy, citing a previous Supreme Court ruling that quoted a 1975 law-review article, wrote that a university may not consider race if a race-neutral plan “would promote the substantial interest about as well and at tolerable administrative expense.”

Mr. White, at Delaware, has pondered that sentence, too. What might happen, he wonders, if a university determined that a race-neutral alternative would work well but would be prohibitively expensive? Would a court extend deference to the university?

“The problem is, we have all these vague words, like ‘substantial’ and ‘tolerable,’” he said. “Each of those words requires judgment.”

The very thing, in other words, upon which admissions officers must so often rely.

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