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12/03/2018 News Release Image

"Forbes" featured Pace President Marvin Krislov's latest piece: "What Will the Harvard Case Mean for Affirmative Action? An Explainer"

With a federal lawsuit challenging Harvard University’s admissions policies pending in Boston, a state suit in Los Angeles that could set the stage for a similar case against the University of California system, and the changing composition of the U.S. Supreme Court, people are wondering about the future of race-conscious admissions policies at America’s colleges and universities.

When I was general counsel at the University of Michigan, I coordinated our defense of two lawsuits challenging our admissions policies. We went to the Supreme Court in 2003, and the justices upheld a longstanding precedent, that student-body diversity is a compelling interest and that a narrowly tailored plan to achieve that diversity was constitutionally permissible.

That precedent was affirmed again as recently 2016, and I don’t expect it will change soon. I want to answer some questions about the two current cases to explain why.

Before we talk about these two cases, what’s the law as it currently stands?

The Supreme Court’s 2003 Michigan decisions affirmed that a college or university can consider race and ethnicity as part of a holistic, multi-factor process, accepting Justice Lewis Powell’s analysis in the 1978 Bakke decision. (Ironically, that decision, which set the terms for race-conscious admissions, struck down the quota system Allan Bakke challenged at the University of California, Davis, but held up as an example the more holistic approach Harvard was then using. It comes full circle.) In the two Fisher v. Texas decisions, in 2013 and 2016, the Supreme Court once again affirmed that a college or university can consider race and ethnicity, so long as the process is narrowly tailored. What this all says is that it’s constitutionally permissible to consider race as one factor among many in an admissions process, so long as your process is carefully designed to provide individualized attention to each applicant. That’s the reigning precedent, and it’s been pretty consistent for 40 years.

What’s at stake in the Harvard case?

The thing to remember is that district courts don't make law. They interpret the law, and they apply it to a particular set of facts. So, I would expect the district court judge to be looking at a pretty specific set of questions, about whether or not the Harvard process is narrowly tailored. If the district court affirms the process, then people will look at the Harvard process as another model. If there is critique of the Harvard process, then that might well cause Harvard to modify its process, and perhaps other schools as well. But this case, at this level, is unlikely to really change the shape of the law.

Won’t it then be appealed?

The losing party, whether Harvard or its critics, might appeal the ruling to the First Circuit Court of Appeals. This court, too, is bound by precedent, but it might interpret the law differently, and if it finds against Harvard, it would potentially change the law for that circuit. Beyond that, the way the Supreme Court typically decides whether to take a case is whether there’s a conflict among the circuits. And, right now, there isn’t. Of course, no one can predict with certainty what the Supreme Court is going to do. But I think we're a long way away from the Supreme Court looking at this.

And what about the California case?

The consideration of race and ethnicity in admissions is banned in California’s public universities, following a 1996 state referendum. An academic who studies these issues has said that he thinks the University of California system is skirting that prohibition. He wants UC to crunch some publicly available data for him that he thinks will prove his point, and now he’s suing for that custom data set. He has failed in a similar suit against the California state bar, demanding data on bar applicants. Even if he obtains the information he’s seeking, his argument is about whether UC is following California state law. This case is a long way away from any constitutional challenge.

But the Trump administration has reversed of Obama-era guidance on race in admissions, and Justice Department has launched investigations at Harvard and Yale. Isn’t there cause to be concerned?

While some highly selective schools do consider race and ethnicity in admissions, and that's probably likely to continue for a while, many of us don’t. At Pace University, for example, we don’t consider race and ethnicity in admissions, because we don’t need to: our applicant pool, and student body are wonderfully diverse. What many of us are focused on is improving the pipeline. That’s where I think effort should be directed, at working to prepare and create opportunities for students of all backgrounds. In the immediate future, I think there is a real concern among some of the most selective schools that any curtailment of the ability to consider race could really affect their ability to assemble a diverse and excellent student body.

Is affirmative action simply a partisan issue?

It’s not. In the Michigan cases, we solicited amicus briefs from the business community and the military community attesting to the value of student-body diversity. That’s the part of that defense I’m proudest of. We live in a diverse and global world, and students benefit from exposure to people with different backgrounds. Employers know that. The military knows that. I think courts will give some consideration to that, and to scientific research and statements from educators that say the same thing. When the Michigan cases were pending, President Gerald Ford, a Republican (and Michigan alumnus), wrote an op-ed supporting the university’s position. As Justice Sandra Day O’Connor wrote in her decision for the court affirming the value of student-body diversity, “in order to cultivate a set of leaders with legitimacy in the eyes of the citizenry, it is necessary that the path to leadership be visibly open to talented and qualified individuals of every race and ethnicity.”

Why can’t admissions be a pure meritocracy?

The admission process can never be a formula. Building an incoming college class will always involve judgments. It's impossible to compare different people from different schools in different localities, with different interests and different talents. Even if only academic qualifications are considered, it’s difficult to compare the academic performances of students coming from different places and studying different things. Someone who went to an under-resourced public high school will have different academic qualifications — which is not to say skill or aptitude — than someone who went to an elite private or suburban high school.

Putting together a class of very different types of people, with different types of backgrounds, isn’t quantifiable. There are so many highly qualified applicants, from so many places, that simply saying that someone with a perfect GPA, for instance, should be an automatic admit to a fine school doesn’t work. The process needs to be fair, thorough, and individualized, but it needs to be open to people from all backgrounds.

Read the article.

 

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01/29/20

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Patch featured Mary Baglivo in "Mary Baglivo Named Chief Marketing Officer and VP at Pace"

01/29/20

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News12 featured Pace University in "Westchester County makes major push for participation in 2020 census"

01/28/20

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The Examiner News featured Pace University in "County Kicks Off 2020 Census Drive to Account for All Residents"

01/28/20

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Press Release: Communications and Marketing Strategist Mary Baglivo to Serve as Chief Marketing Officer and Vice President for University Relations at Pace University

01/28/20

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Westchester Rising featured Pace University in "Smashing Pumpkins Event Smashes Stereotypes at Pace"

01/24/20

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Broadway featured Pace University student Samantha Williams in "Caroline, or Change Taps Samantha Williams for Tony-Winning Role: 'I Know How Lucky I Am"

01/24/20

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NY Times featured Pace University in "5 sites that show how much lower Manhattan has changed"

01/24/20

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Washington Post featured Seidenberg Associate Professor Darren Hayes in "As Use of Facial Recognition Expands, Travelers Worry About Privacy"

01/24/20

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News12 featured Elisabeth Haub School of Law professor Bennett Gershman in "Pace law scholar, Trump supporter offer opposing visions of impeachment trial"

01/22/20

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USA Today featured associate professor of Information Technology Professor Darren Hayes piece: "Unlocking Apple iPhones needs congressional guidance on court warrants"

01/22/20

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Press Release: Pace Professor Margot J. Pollans, Expert on Food Law & Sustainability, Granted Tenure

01/21/20

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Patch featured Setters Head Men’s Lacrosse Coach Tom Mariano in "Chesapeake Bayhawks Names New Head Coach "

01/21/20

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Taipei Times featured Dyson history Professor Joseph Tse-hei Lee piece: "Election results a message to China"

01/21/20

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The New York Times featured Dyson’s Film Screen Studies Associate Professor Catherine Zimmer in "Who’s Watching Your Porch?"

01/21/20

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The New York Times featured Elisabeth Haub School of Law professor Bennett Gershman in "Weinstein Must Tread Carefully in Rape Trial Defense, Experts Say"

01/21/20

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Eye On Annapolis featured Setters Head Men’s Lacrosse Coach Tom Mariano in "Cottle stepping away as head coach of Chesapeake Bayhawks"

01/17/20

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Hudson Valley One featured Elisabeth Haub School of Law professor Karl Coplan in "Ready to go on a “carbon diet”?"

01/17/20

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Dance Spirit featured Dyson's PPA Professor Suzi Taylor in "The Nominees for Dance Spirit's 2019 Best Cinematic Choreography Award"

01/16/20

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Times Union featured Elisabeth Haub School of Law professor Bennett Gershman in "Issue of judicial discretion becoming focus of bail reform"

01/16/20

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Rewire featured Dyson’s Leora Trub's study in "Texting Makes It Easy to Overshare. Is That a Good Thing?"

01/16/20

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Autism Spectrum News featured Seidenberg School of Computer Science and Information Systems Professor James Lawler feature: "Learning Neurodiversity in a College Program for Middle / High School Students with ASD"

01/16/20

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Phys.Org featured environmental law Professor Karl Coplan's new book in "A guide to the good, low-carbon life"

01/15/20

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WAMC featured Haub Law Professor David Dorfman in "Pace University Law School Professor Talks About NY's Criminal Justice Reforms"

01/15/20

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The Somers Record featured Pace University in "Pace Partners with Kennedy Catholic HS on business curriculum"

01/15/20

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Putnam County Times featured Dyson student Dylan Seals in "Carmel Student Seals Victory for Pace U"

01/15/20

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Enrollment Management Report featured Lubin's Larry Chiagouris study in "Report reveals millennial graduates’ satisfaction with college investment, careers"

01/14/20

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Westchester County Business Journal featured Pace Lacrosse Coach Tom Mariano in "Pace Coach to Head US Intercollegiate Lacrosse Association"

01/14/20

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Bloomberg featured Elisabeth Haub School of Law professor Bennett Gershman in "Harvey Weinstein’s Dream Jury Is Conservative, Traditional, Skeptical"

01/14/20

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Law 360 featured Pace Law School professor Bennett L. Gershman in "Bridgegate To Reach High Court In McDonnell's Shadow"

01/14/20

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Canton Citizen featured Pace’s Dyson College of Arts and Sciences student Marissa Kleinbauer in "CSH grad wins national College Fed Challenge"

01/13/20

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The Evening Tribune featured associate professor of education Christine Clayton in "Regents drop Achieve Inc. from HS diploma review"

01/13/20

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Law360 featured law professor Bennett Gershman in "With DA Out, What’s Next For Curtis Flowers?"

01/13/20

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LoHud featured Pace University's associate professor of education Christine Clayton in "New High School Graduation Requirements"

01/13/20

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Cleveland Jewish News featured Pace University in "JCC Maccabi Games offers once-in-a-lifetime experience"

01/09/20

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Times Telegram featured associate professor of education Christine Clayton in "Regents consider new high school graduation requirements in New York"

01/09/20

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Forbes featured Pace President Marvin Krislov's latest piece: "Mentorship: Good For The Mentored And Good For Those Mentoring, Too"

01/09/20

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The Chronicle of Higher Education featured Dean Horace Anderson in "Transitions"

01/09/20

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Westchester Rising featured Pace University in "Con Ed Funds 'Solar Tree' at Pace University"

01/08/20

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Westchester Rising featured Pace University in "Hillary and Chelsea Clinton Visit Pace University"

01/08/20