Fisher

On Monday the Supreme Court announced its much-awaited decision in the affirmative action case, Fisher v. University ofTexas.  The announcement wasn’t a surprise, given that this is the final week in the Court term and that Fisher was the earliest argued case still remaining on the Court’s docket.

What was surprising is that the decision was by a 7-1 majority (Justice Kagan recused herself).  That is the kind of majority many observers thought this Court was incapable of producing.  That strong majority, along with the long period of time between oral arguments and the decision, invites speculation that Justice Anthony Kennedy’s majority opinion was narrowly tailored in order to cobble together that majority.

I read the opinion as soon as it came out on Monday morning, and had hoped to post a response later in the day, but I had a meeting out of town on Tuesday and Wednesday and didn’t want to rush just to get something out.

In Fisher the Supreme Court vacated a Fifth Circuit Court of Appeals decision supporting Texas, remanding the case back to the Fifth Circuit to try it on its merits.  The Fifth Circuit had denied Fisher’s appeal on the basis that Grutter v. Michigan, the last big affirmative action case decided by the Supreme Court, had required courts to give deference to universities to determine whether a diverse student body is a compelling interest and how to achieve that.  Justice Kennedy’s opinion finds that deference to be mistaken.

The good news is that the Fisher decision does not address the merits of affirmative action, although both Justices Scalia and Thomas made it clear that they would have voted to overturn Grutter if asked.  What it does is put the burden of proof on colleges and universities that take race into account in admission in order to achieve diversity.  Whereas the Fifth Circuit decision supported the idea that colleges should have discretion to decide what their institutional priorities are and how to achieve them, Justice Kennedy’s opinion puts the burden of proof on universities to demonstrate that achieving diversity is a compelling interest and that the admission policies put in place are narrowly tailored to achieve that interest.

So where does the Fisher decision leave the affirmative action debate?  It in no way resolves it, but it changes it by raising some fundamental philosophical questions that have been taken for granted in the past.     

The first question is, Is diversity a compelling educational interest for colleges and universities?  I think the answer is clearly yes, that a student’s education is broader and richer by being exposed to classrooms with a diverse array of backgrounds, experiences, and perspectives.  I also think that the higher education establishment has taken the value of diversity as an article of faith, asserting the value but not necessarily demonstrating the value. 

What factors contribute to educational diversity?  Given America’s history of racial discrimination, does being a student of color automatically bring diversity, or are there students of color who don’t contribute to diversity because of their socioeconomic backgrounds?  Are we as a society in a different place than we were during the Civil Rights Movement 50 years ago, or are our sensitivities to race just under the surface?  In oral arguments Texas argued for the importance of critical mass in order to relieve individual students of the burden of representing all students of a particular background, but didn’t have a great deal of research to show that classroom diversity would be lacking without the affirmative action program.  The amicus brief filed by the College Board and other educational organizations argues for self-determination, that colleges and universities should be trusted to determine their own policies, and it is clear that the court buys that argument only with limits.

If diversity is a compelling interest, is affirmative action necessary to achieve it?  Do colleges have alternatives?  In the Fisher case, the necessity argument was complicated by the fact that the defendant was the University of Texas. Several years ago the state of Texas instituted a law requiring that students ranking in the top ten percent of their high school classes be automatically admitted to public colleges and universities.  According to the UT-Austin website, 75% of the in-state spots in the freshman class are admitted through that program.  That law is certainly controversial and debatable on its own merits, but it has produced a diverse student body, if diversity is defined in terms of ethnic origin.  It was the program to admit the remaining 25% of students who were not in the top ten percent that was being challenged, and in oral arguments the attorney for Texas seemed to suggest that diversity required admitting underachieving middle- and upper-class students of color. It would have been easier to argue that affirmative action is necessary to produce a diverse student body had the defendant in Fisher not been located in Texas.

The ultimate question is whether the end justifies the means.  No one (at least no reputable voice) wants to return to the racial segregation of the 1940’s and 50’s, but does it make a difference how an institution achieves diversity?  In the first affirmative action case argued by the Supreme Court, the Bakke case, the medical school at the University of California at Davis set aside a certain number of slots for minority students and essentially conducted two different admission processes.  That approach was declared unconstitutional, but in succeeding cases institutions are less blatant but still figure out the result they want and reverse engineer the admission process to produce that result.  In Fisher the Supreme Court clearly answered that the means of achieving diversity is as important as the goal of achieving diversity.

In the wake of Fisher affirmative action lives, but colleges and universities will be challenged to demonstrate that their admission processes meet the burden of strict scrutiny if challenged in the courts.  That should stimulate a healthy discussion about how best to accomplish a worthy goal. I’m guessing that the Supreme Court will deal with this issue again in the near future.

Correction:  In the initial post I stated that the Bakke case involved the law school at the University of California-Davis.  It was the medical school, and I have corrected it above.  Thanks to Jon Reider for pointing out the error.  I could blame it on senility, but the truth is I was in a hurry to post and got careless.

Secret Agent

The National Security Agency wasn’t the only D.C. area entity dealing with fallout from leaks to the press last week.  While it didn’t receive the same publicity or have the same level of intrigue and serious implications for American society, NACAC was forced to release the report of its Commission on International Student Recruitment early after InsideHigherEd obtained a draft and published an article about the Commission’s findings.  It wasn’t exactly the Pentagon Papers, but NACAC had to speed-up its roll-out of the report to members and other stakeholders.

A Chronicle of Higher Education article on the report’s release characterized the report as weak and as attempting “to mollify everyone,” focusing on the Commission’s recommendation to change the language in the Statement of Principles of Good Practice prohibiting the payment of commissions to international recruiters from mandatory to a best practice.

I think that criticism is unfair, but I am hardly objective.  As a member of the NACAC Board, I was one of the driving forces for the Commission approach, arguing that a simple prohibition as originally proposed was an easy but wrong solution to an issue that is complex and in the words of the report, “dynamic.”  I think the Commission brought together a lot of good minds to study the morass of issues surrounding recruitment of international students, but the expectation that it would “solve” the problem is naïve.

What the Commission Report doesn’t attempt to do is address the ethical complexities that arise out of the use of agents compensated by commission to recruit international students.  That, of course, is exactly what I find most interesting.

Let’s try to sort through the issues.  First and foremost is that more American colleges and universities are recruiting students internationally.  Much of that is economically driven as colleges look for revenue, but it is also the case that bringing students to the United States from around the world is important educationally and also in the national interest.

Recruiting internationally is a challenge for many institutions.  Not only is it expensive to send staff members abroad, but getting a foothold in the international marketplace requires a network of contacts and knowledge of the culture.  A number of institutions have attempted to address these challenges by outsourcing recruitment to agents located overseas.

The use of agents is not in itself inherently wrong.  What is questionable from an ethical standpoint is that many agents are paid on a per-head commission basis, a practice that violates the NACAC Statement of Principles of Good Practice and is also illegal in the United States.  Given that per-head compensation of agents has been long-standing practice in many countries, is the NACAC/U.S. position morally right or arrogant and culturally naive?

A complicating factor is that in most parts of the world there is not a school-based college counseling infrastructure, although there seems to be movement in that direction.  If NACAC were to prohibit colleges from using agents (per-head) without there being legitimate alternatives for students to get information about American colleges, then it harms member institutions trying to do the right thing and perhaps also harms students. Any ethical principle is worthless if it is also impractical.

(It is not the case that there are no alternatives.  EducationUSA, a branch of the State Department, operates advising centers in 140 countries dispensing information about American higher education.  EducationUSA does not represent particular institutions and also does not work with agents who charge commissions.)

The essential issue is whether there is something fundamentally wrong with an agent being paid on a per-head commission basis.  There is always a tension in college admissions between counseling and sales; does per-head compensation tip the scales?  If I am being paid by a college for every student who applies or enrolls, is my advice to a student based on what is best for the student or what is best for me? 

Clearly there are agents who are ethical despite being paid per head, but the world of agents is rife with questionable and corrupt practices, from double dipping (accepting payment from both students and institutions) to conflict of interest to misrepresentation to falsification of transcripts and writing essays for students.  Commission-based compensation may not be responsible for these abuses, but it creates the conditions for them to breed and spread and poison the good work that is out there.

I hope that NACAC will not abandon the principle that payment of commissions based on the number of students recruited or enrolled is wrong.  The principle that admission officers and recruiters should be professionals and not salespeople led to NACAC’s founding. The commitment to ethical professional practice, while under siege on a number of fronts, remains the bedrock of our profession.  The federal prohibition on per head compensation for students receiving federal financial aid is telling, and the experience with the predatory recruiting practices utilized by many for-profit institutions in the U.S.  after the Bush Administration eased restrictions for a number of “safe harbors” should reassure us that per head compensation is dangerous and problematic, no matter where it occurs.

There are certainly those who argue that the train has already left the station with regard to agents and per-head compensation, including the American International Recruitment Council (AIRC), which argues that training and certification of agents is the better path.  That may be an interim step, but I don’t buy the argument that it’s the best we can hope for.  The fact that something is an accepted practice doesn’t mean that it’s best practice.  The fact that people commit bank robbery doesn’t mean that outlawing bank robbery is futile.

Saying that NACAC shouldn’t abandon its principle doesn’t mean that simply outlawing use of agents in its current form is the solution.  As the Commission correctly recognized, the issue is complex and dynamic.  Real reform requires developing legitimate recruiting alternatives for colleges that want to do the right thing for international students.  NACAC is not going to solve this issue alone, and I hope the Commission report will begin a discussion with groups like the College Board, NAFSA, AACRAO, IECA, HECA, and AIRC on a new framework for international recruiting, a framework that puts ethical principles like institutional oversight, accountability, transparency, and integrity at the forefront.

My hope is that the work of the Commission is the beginning of a larger discussion about the landscape of international recruiting, and my dream is that NACAC will serve as landscape architect, bringing simplicity and even beauty to that landscape.

 

Is "Fit" an Endangered Species?

Is “Fit” an endangered species in college counseling/admissions?  That question came up last week during a conversation with my close friend Brian Leipheimer.  Brian is the Director of College Counseling at the Collegiate School in Richmond, and he and I get together on a regular basis to compare notes and consume beverages.

The question came up because Brian was organizing his year-end Board report around the “fit as endangered species” theme to educate the Board about some of the trends and issues impacting college counseling. Brian continues to believe in the importance of fit and hopes it’s not endangered, but his hypothesis is that at many colleges fit is being eclipsed and preempted by the acronyms ED (Early Decision), DI (Demonstrated Interest), and FP (Full Pay).

I found the conversation both timely and ironic.  While Brian was preparing his board report, I was working on a presentation to alumni at the University of Richmond.  My assigned topic?  The importance of fit.

Both the conversation and the presentation made me think about fit, a concept that has been at the center of my college counseling philosophy and practice for more than thirty years.  It is one of a growing list of core values and beliefs that I find myself worrying are, shall we say, outdated.  Is the endangered species not fit but me?  Am I a Jumpasaurus, a college counseling dinosaur?  Are endangered species aware that they are endangered, or do they suddenly cease to exist?

The notion of fit is based on the belief that every one of the more than 3000 colleges and universities in the United States is right for someone and every one of them is wrong for someone.  What makes them right or wrong is the match or fit between the needs and expectations of the student and the culture or personality of the college.

I see fit as a world-view, the alternative to what might be called the “Best College” world-view.  That world-view, also known as the “Rankings” world-view, states that “you should go to the best college you can.”  What is flawed is the definition of “best” college.  More often than not “Best” equals “most prestigious” which has come to equal “most selective.”  This view sees the value of a college education in the name on the diploma rather than the college experience itself.

The world-view that sees fit as important is built on several foundational assumptions.  One is that a college education can be transformational in a young person’s life, with the experience one has in college being more important than where one goes.  The second is that where one goes to college is important, in that not all colleges are alike.  Finally, college selection is personal.  What is right for you may not be right for me.

There are two key ingredients in determining fit.  One is the student.  Understanding one’s self is essential to determining fit.  Who are you? What do you care about?  What do you want from college?  Issues like size, location, distance from home are all obvious considerations, but so are seemingly less-important things like climate and food.  If you can’t stand cold weather, going to college in Minnesota or Maine may be a mistake, while food, both quality and quantity, is pretty important to most of the college students I know.

The culture or personality of the college is the other component.  Figuring out what is unique or distinct about school culture requires some work, especially in these days of sophisticated marketing which makes schools sound alike.  A number of years ago I attended a conference session where a publications consultant read a passage from a viewbook from a small liberal-arts college and asked the representative from that college to stand.  Twenty admissions officers from twenty different institutions stood up.

Fit requires sophisticated research, and that is the part of the college search process that too many students shortchange.  It requires visiting enough campuses to have a base of knowledge in order to do “comparison shopping” among institutions.  I fell in love with the first college I visited, not realizing until much later that what I had fallen in love with was not the particular institution but the idea of college.  Years ago I worked a summer program at the College of William and Mary attended by students hoping to get an edge in the admissions process (which of course didn’t happen).  Every year I would counsel at least one student who discovered after three days that they couldn’t stand colonial architecture.  At another attractive campus a prospective student told his family to get back in the car as soon as they arrived because there were “too many trees.”

What too often gets overlooked is academic fit.  Several years ago one of my former students came back after his freshman year and stated that the only thing he didn’t think about in choosing a college was academics.  Fit requires finding the right balance between the intellectual, the achievement, and the social.  Going to a school where the other students are in a different place on that continuum is a recipe for misery.

The other issue with regard to academic fit is where you fit within a school’s student body.  One of my students, fortunate to be admitted to a selective institution, learned that the downside was that he had to work much harder than his classmates to earn grades that would qualify him for competitive internships.  Another student who earned good grades at a prestigious small college was told when he applied to law school that he would have been better off attending an easier undergraduate school and making straight A’s.  That seems absurd to me but perhaps says a lot about the legal profession.

Are colleges abandoning concern for fit?  Two years ago I attended a panel at a small conference featuring admissions officers from several selective institutions.  When I asked about fit, they looked at me as if I was speaking in tongues.  That doesn’t mean that fit is any less important in college counseling.  The rise in the use of ED, DI, and FP means that students have to apply more thoughtfully rather than simply apply to more places.  That increases the need for students to think about and articulate their fit with a particular institution.