According to published reports, the Trump administration appears poised to direct the Department of Justice to begin investigating, and potentially litigating against, institutions over what it characterizes as “intentional race-based discrimination in college and university admissions.” This initiative, first reported by the New York Times, is purportedly reflected in an internal DoJ communication obtained by the Times seeking Department staff attorneys to volunteer to work on the investigations and/or litigation. At this point, it is not clear whether institutions will be targeted on a random basis or (perhaps more likely) based on complaints received by the Department.
This initiative, of course, comes in the aftermath of the Supreme Court’s rulings with respect to the University of Texas’s affirmative action admissions programs in the Fisher decisions. Those decisions recognized the creation of a diverse student body as a compelling educational interest, but also emphasized that an institution must not make race the defining feature of a candidate’s application for admission, and must be able to demonstrate that it has seriously considered race-neutral alternatives and that no workable race-neutral alternatives would produce the educational benefits of diversity “about as well and at tolerable administrative expense.” Although this may not require institutions to implement race-neutral alternatives and demonstrate their failure, as we have previously advised, institutions should ensure that they are able to document evaluation of such alternatives in order to defend challenges to their admissions programs. The apparent advent of the reported Department of Justice initiative may quickly render this consideration more important than ever, and the prospect of challenges more than theoretical.
Yesterday, the U.S. Supreme Court upheld the University of Texas at Austin’s use of race in its admissions policies and procedures by rendering a decision in the second case brought by Abigail Fisher, a white woman who was rejected for admission to UT Austin over eight years ago. In June 2013, the Supreme Court remanded Ms. Fisher’s case to the U.S. Court of Appeals for the Fifth Circuit so it could reconsider the constitutionality of the university’s race-conscious admissions policies and procedures under the strict scrutiny standard articulated in prior affirmative action Supreme Court decisions. In July 2014, the Fifth Circuit again held in favor of UT Austin, finding that its use of race in admissions was constitutional since the university had considered race-neutral alternatives in its admissions process and still could not achieve sufficient diversity. Dissatisfied, Ms. Fisher appealed to the Supreme Court again, arguing that UT Austin’s use of race in its admissions process disadvantaged her and other non-minority applicants. In yesterday’s Fisher v. University of Texas at Austin decision, the Supreme Court found that UT Austin’s use of race in its admissions process meets the strict scrutiny standard since the university’s goal to provide its students with educational benefits that result from having a diverse student body advances a compelling interest. Further, the Court found that UT Austin validly demonstrated that race-neutral alternatives (e.g., scholarships, outreach programs, etc.) were not sufficient to achieve a diverse student body, even when used in conjunction with Texas’ Ten Percent Plan which guarantees Texas students graduating in the top tenth of their class admission to a public college or university of their choice in the state. While this decision puts an end to Ms. Fisher’s case against UT Austin and appears to be a win for the use of affirmative action by colleges and universities in admissions, the Court’s decision did include a warning to UT Austin – and colleges and universities across the country -- that the need for race-conscious admissions processes may change over time. In the Court’s majority opinion, Justice Anthony M. Kennedy stressed that institutions must periodically reassess the constitutionality of their admissions processes and procedures. Specifically, he stated that the university “must continue to . . . scrutinize the fairness of its admissions program; to assess whether changing demographics have undermined the need for a race-conscious policy; and to identify the effects, both positive and negative, of the affirmative-action measures it deems necessary.” Given this charge, colleges and universities that use race as a factor in their admissions process should avoid complacency and periodically audit their policies and procedures to ensure compliance with the Court’s mandate.
Last week, an anonymous Stanford University publication called The Fountain Hopper gained the attention of not only Stanford students, but admissions officers nationwide, when it disseminated a communication encouraging students to demand access to their purportedly confidential admissions files pursuant to the federal Family Educational Rights and Privacy Act (FERPA). Published accounts indicate that as many as 700 Stanford students have submitted such inspection requests, and other institutions are beginning to receive them as well. Though institutions have always been aware that FERPA provides students a right of inspection, this is the latest example of a circumstance in which the statute may require disclosure of information that institutional personnel have assumed to be confidential. FERPA affords students the right to inspect and review their "education records." The term "education records” is very broad, and, subject to certain exceptions, includes information recorded in any form that is directly related to an identifiable student. Of particular relevance to the Fountain Hopper initiative, there is no blanket exemption for admissions records and, accordingly, a student will have the right to inspect and review them unless a particular exception applies. There are at least two specific exceptions that could, potentially, narrow the scope of admissions records that must be made available in response to an inspection demand. First, although considered "education records," letters of recommendation are not available for inspection if the student has prospectively waived, in writing, his or her right to review them (as, for example, may occur in the Common Application).Second, the term "education records" does not include personal notes of an institutional employee, provided that the notes are made and kept by the employee solely for use as a personal memory aid, and are not accessible or revealed to anyone else, other than a temporary substitute for the employee. Of course, this exception likely will not apply to most evaluative notes typically made by admissions officers, because those notes are placed in applicant files and available to other admissions personnel. However, if individual admissions officers keep separate personal notes and do not reveal them further, those notes would not be subject to review.A few related considerations:
? FERPA is not a records retention statute. As a result, institutions are free to promulgate their own retention and destruction policies for admissions files, and FERPA does not prohibit an institution from destroying the admissions file of an admitted student at the time of enrollment (or a specified time thereafter), provided that the student has not previously demanded inspection of the file. (FERPA’s implementing regulations explicitly provide that an institution “shall not destroy any education records if there is an outstanding request to inspect and review the records.”) Of course, any retention/destruction policy must consider all of the relative benefits and risks of retaining or destroying the records to which they pertain.
? FERPA’s inspection right applies only to students who are, or have been, in attendance at an institution. Among other things, this means that students who were denied admission to an institution, or who were offered admission but never attended the institution, need not be provided the opportunity to inspect that institution’s admissions file on them.
? Finally, the inspection right granted by FERPA is just that – a right to “inspect.” Unless an institution has otherwise committed to doing so (e.g., by way of institutional policy), it is not required to provide copies of records to a student unless the failure to do so would effectively preclude the student’s ability to review the records (for example, because the student is geographically remote). Even then, an institution may satisfy its obligation by making alternate arrangements for inspection and review (for example, by finding a location proximate to the student’s place of residence at which records will be made available).
Last September, during its 2013 National Conference, the National Association for College Admission Counseling (NACAC) approved a change to its Statement of Principles of Good Practice that would allow member colleges and universities to use commissioned agents to recruit students outside the United States. As amended, the Statement admonished institutions using commissioned agents to “ensure accountability, transparency, and integrity” in their relationships. The amendments were set to become effective after a one-year moratorium during which NACAC was to determine their potential implications. Over the last year, NACAC’s Admission Practices Committee and International Initiatives Advisory Committee produced a number of proposals for clarifying the concepts of “accountability, transparency, and integrity” for NACAC members. During its National Conference in September, NACAC adopted additional changes via further amendments to the Statement. The amendments were published in NACAC’s 2014 Statement on October 4, 2014. Through these amendments, NACAC clarified the meaning of accountability by requiring member institutions to monitor, affirmatively, the conduct of commission-based agents acting on their behalf. To ensure transparency, the amended Statement instructs members to use a “conspicuous statement on their website that indicates their institution uses agents who are compensated on a per capita basis.” Finally, to ensure integrity, the amended Statement instructs members to deal “ethically and impartially with applicants and other stakeholders honoring commitments and acting in a manner that respects the trust and confidence placed in the institutions and the individuals representing them.” The amendments to the Statement of Principles are, of necessity, written at a high level. To provide additional detail, on September 16, 2014, NACAC issued International Student Recruitment Agencies: A Guide for Schools, Colleges and Universities. In addition to reiterating the concepts of accountability, transparency and integrity embodied in the amended Statement, the Guide provides a number of suggested best practices for contracting with commission-based recruiting agents. These include:
Screening for conflicts of interest involving agents having relationships with institutional personnel
Requiring use of an institutional template agreement for agency relationships (the Guide contains an extensive list of recommended provisions for such agreements), rather than agents’ template contracts
Prohibiting agents from “double dipping” by charging students and/or parents in addition to receiving commissions from the institution, and requiring agents to disclose institutional compensation arrangements to students and parents
Posting information about agency relationships on institutional websites
Developing an “agency manual” establishing an institution’s requirements for its agents, and offering training for agency staff on those requirements
Continuously evaluating the campus impact of the use of commissioned agents
Institutions make great efforts to ensure that their research labs are safe for students and staff, because it is the right thing to. Even then, accidents can happen that puts those working in these labs in harm’s way. A recent LA Times report highlights what can go wrong, for all involved. According to the report, in 2008, a 23 year old recent graduate who went to work in a University lab as a staff research assistant was fatally burned in a lab accident at UCLA. The student was handling a syringe containing tert-Butyllithium, which can ignite spontaneously in air. She died of injuries she suffered 18 days after the accident. It was alleged that the research assistant was relatively inexperienced, had been provided little training and was not wearing a protective lab coat. Felony charges were brought against both the University and the faculty member for whom she worked in what is believed to be the first time criminal charges have been filed in a fatal university lab accident. In 2012, three felony counts were dropped against the University after it agreed to new safety measures and funded a $500,000 scholarship in the research assistant’s name. Criminal charges lingered against the faculty member. He faced four felony counts and up to 4 ½ years in prison. Just about two weeks ago, a plea bargain was also reached in connection with the charges against the faculty member. Under the plea, the criminal charges will be dropped in five years and he will avoid a prison term, provided he develops and teaches an organic chemistry course for college-bound inner-city students for five summers, completes 800 hours of non-teaching community service in the UCLA Hospital System, and pays $10,000 to a designated burn center in lieu of restitution. This case should serve as one more stark reminder to institutions and faculty, individually, of the risks associated with not ensuring lab safety for those in their charge.
Many colleges and universities require applicants to provide information on arrests and convictions as part of the application process. A recent case, Matter of Powers v. St. John’s University School of Law, illustrates just how costly it can be for the applicant to be less than completely forthcoming. The St. John’s University School of Law, in its 2005 application form, required applicants to disclose whether they had ever been charged with, pleaded guilty to, or been found guilty of, a crime. The application required the individual to certify that his or her answers (to any application inquiry) were “complete and accurate” and noted that the failure to provide truthful answers could result in “denial of admission, dismissal, or rescission of an awarded degree….” Long after a student was admitted to the Law School, the School learned of information that led it to conclude that the student had not been completely forthcoming in his original application for admission with respect to a criminal conviction. Although the student had noted his conviction for possession of a controlled substance during the application process, it was only later that the School learned that he was originally charged with intent to distribute. Upon learning of this information, the School required the student to supplement his application information with respect to the incident. Based on this supplemental information, the School determined that the student’s original application contained “material omissions and misrepresentations” involving the actual criminal charges that had been brought against him. Although by this time the student had successfully completed three semesters of law school, the School rescinded his admission and, in effect, denied his application for admission nunc pro tunc. Not surprisingly, the student commenced a proceeding, claiming that the School’s actions were arbitrary and capricious and should be overturned. In a split decision, New York’s Appellate Division for the Second Department ruled in the School’s favor. The Court determined that the School’s decision involved an appropriate exercise of discretion after a full review of the facts and circumstances and as a result it was not arbitrary and capricious. And, given that the original charges (which the student acknowledged were true) involved distribution and possession with the intent to distribute a controlled dangerous substance, the Court found that the penalty was not disproportionate to the offense. One Justice in dissent felt that the School, in several respects, had gone too far and would have remanded the case back to the School to reconsider. The dissent found that the actual penalty imposed – retroactive denial of admission – was even more severe than dismissal, since it effectively wiped the student’s record clear of his three successful semesters as if the student had never gained admission to the School (without any evidence that the School correspondingly returned the student’s three semesters of tuition). While it may not be surprising that the Court recognized the School’s right to deny admission to a student who it believed had not been fully forthcoming in the application process, what stands out about this case, of course, is that the School only made that determination halfway through the student’s successful completion of its law school program. Given the holding in the case (and the specific language of the School’s application), it is possible that had the School learned of this deception only after the student had completed his course of studies (even years later), the Court might still have recognized the School’s right to rescind his degree. The decision certainly highlights the value of requiring applicants to certify the accuracy of the information they submit.
The United States Department of Justice and the United States Department of Education recently issued a jointly-authored Dear Colleague Letter and accompanying “Questions and Answers” document discussing the Supreme Court’s June 2013 decision in Fisher v. University of Texas at Austin. This joint guidance reaffirmed the Departments’ mutual belief in the value of efforts by colleges and universities to create racially diverse student bodies “in a lawful manner,” and observed that the Supreme Court “did not change” what institutions must do to narrowly tailor their efforts to meet the compelling interest in diversity. After Fisher, as before, institutions must not make race the defining feature of a candidate’s application for admission, and must demonstrate that the consideration of an individual applicants’ race in admissions is necessary because workable race-neutral alternatives do not suffice. This characterization is consistent with the Supreme Court’s opinion in Fisher. However, the most significant aspect of Fisher is its emphasis on a reviewing court’s obligation to perform a searching inquiry to determine the necessity of race-conscious measures and, correspondingly, the need for institutions to be able to prove that they have engaged in an ongoing consideration of race-neutral alternatives. In this regard, one question left unanswered by the Supreme Court was whether an institution must actually attempt to implement race-neutral alternatives before implementing race-conscious policies, or whether an institution need only demonstrate that a race-neutral alternative cannot be expected to work under prticular circumstances. While the Dear Colleague Letter and Q&A did not address this question or otherwise provide direct guidance on what level of consideration must be given to race-neutral alternatives, a senior Office of Civil Rights official remarked publically the same day that such alternatives “don't have to be tried and used” before implementing race-conscious practices. This provides a welcome degree of comfort to colleges and universities that OCR will not require them to put affirmative action policies on hold in order to first experiment with race-neutral measures, but institutions should nevertheless ensure that they can demonstrate the basis for their conclusions that those policies are necessary to create the desired diversity in their respective student bodies. However, there is some concern that this message may be unrealistically comforting. Already in some states, either as a result of litigation, laws passed by state legislatures or the impact of public referendums, public institutions are prohibited from considering race at all in the admissions process. The Supreme Court is poised to rule on the legality of such a ban via referendum in Michigan. In oral argument in that case, at least some justices expressed skepticism that such a ban was prohibited. Where the Court may go in the future on the permissibility of race conscious admissions decisions for private institutions is not free from doubt. As a result, some schools are looking more closely at implementing race-neutral practices where possible.
The use and compensation of commissioned agents to recruit students from outside the United States has been debated at length in recent years. On September 21, 2013, the debate took its latest turn when the Assembly of the National Association for College Admission Counseling (NACAC) voted to approve a change to its ethical standards that would allow member colleges and universities to use commissioned agents to recruit students outside the United States. The use of such agents has been divisive in recent years given arguable conflicts of interest that result from the prevailing practice of compensating them based on the success of their efforts (through tuition sharing or per capita payments based on enrollment). As a result, opponents had at times advocated a complete ban on the practice – in 2011, the NACAC Board had proposed a policy prohibiting incentive-based recruiting in the international context; that proposal was withdrawn following subsequent protest, and NACAC pronouncements have generally disfavored, but not prohibited, the practice. As amended, NACAC’s Statement of Principles of Good Practice provides that member institutions will “not offer or accept any reward or remuneration from a secondary school, college, university, agency or organization for placement or recruitment of students in the United States.” Member institutions using such agents outside the United States are admonished to “ensure accountability, transparency, and integrity” in their agent relationships. The prohibition on the use of commissioned agents to recruit within the United States does not necessarily represent an independent value judgment by NACAC, as the practice is already prohibited under the United States Department of Education’s Title IV program integrity rules, specifically 34 CFR § 668.14(b)(22)(i). The new standard will become effective following a one-year moratorium during which NACAC will consider its implications and, potentially, propose further refinements. Some colleges and universities have refrained from enlisting overseas recruiting agents pending NACAC guidance, and the delayed effectiveness of the amendment may cause some of these institutions to continue to wait. However, others may proceed, as many of their peers have already done given the nonbinding nature of prior NACAC pronouncements on the topic. In any event, a college or university that chooses to use agents to conduct foreign recruiting activities should take steps (including obtaining binding contractual commitments) to ensure that the agents conduct themselves in a manner consistent with the institution’s mission and values, and that there is appropriate recourse if an agent fails to do so.