Show Notes
In this episode we’re talking about the Supreme Court’s recent decision to strike down race-conscious admission and what the implications might be for colleges, students applying to those colleges, and the counselors who advise them. And what better person to talk about it with than Jay Rosner, whose entire career has been devoted to the intersection of law and college admissions.
This is the first in a series where we’ll be exploring the impacts of the SCOTUS decision from a variety of perspectives. In upcoming episodes you’ll hear from…
Lorenzo Gamboa (Director of Diversity, Inclusion and Outreach at Santa Clara University at Santa Clara) who shares with me some things Latinx Families Need to Know About Preparing for College — fun fact that I was raised in Latin America, so we recorded that episode in both Spanish and English
Rick Diaz takes us behind the scenes at SMU to give us insight into how they read applications, some of the impacts of the SCOTUS decision on the supplemental essays that many selective colleges and universities required, and why so many changed their prompts this year
You’ll also hear from current college student and TEDx speaker Tina Yong on Why You Don’t Have to Write about Trauma in Your College Essay to Stand Out—and What You Can Do Instead
But in this particular episode, Jay Rosner and I get into:
What the affirmative action ruling practically means and
How it might impact college admissions, including for underrepresented students
We address some students’ fears about whether or not they should mention their race, or share experiences directly related to their race or culture in their college applications
I ask Jay: “Who is the burden on here—students or the colleges themselves?”
We also talked about how counselors should advise students
For those of you who have never met Jay:
As the Executive Director of The Princeton Review Foundation, he has developed programs jointly with such organizations as the NAACP, the Hispanic Scholarship Fund, College and Graduate Horizons (serving Native American students) and the Asian Pacific Fund.
Jay’s career has combined education and law, with an emphasis on student advocacy. He has testified before state legislative committees in California, Texas, Illinois and New Jersey, and as an expert witness in cases involving testing.
Before attending law school, Jay was a public high school math teacher. Jay holds a BA from the University of Pennsylvania, a JD from Widener University, and is the proud father of two grown daughters.
Play-by-Play:
[0:53] Intro
[1:30] Who is Jay Rosner?
[2:25] A brief history of race-conscious admission
[4:52] Why is the Supreme Court decision such a big deal?
[6:22] What does the ruling actually mean?
[7:31] What colleges can and can’t consider after the ruling related to race
[9:49] How might diversity and inclusivity be affected on college campuses?
[13:00] Should students even mention race at all in their applications?
[15:39] Is the burden really on the students or on the colleges?
[17:20] How can students speak to the ways race has impacted their lives?
[18:50] Advice to counselors on guiding students on their college applications
[21:38] Do colleges still want to enroll a diverse population of students?
[23:36] What might colleges learn from the University of California, where race-conscious admission was banned in 1996?
[26:45] Jay’s thoughts about and hopes for the future
[28:28] What are folks not talking about?
[31:03] Final takeaways for students and counselors
Resources:
Example of How to Explain (Briefly) Context on Your Testing in the Additional Info Section of Your Common App
AP Physics I
I was the first student at my school to ever pass the AP Physics I exam.
There were two issues during the test: 1) the test began late because the previous test (AP Spanish) ran long and 2) during the AP Physics I exam, the fire alarms went off and continued for about an hour (the second half of the test). Unfortunately, this was the only time the test was offered and I was nonetheless proud of my score.
Highest SAT Score in My Class
Scored a 1910 on old SAT (570 CR, 730 Math, 610 WR), which was the highest overall test score in my grade.
Show transcript
Jay Rosner 0:00
Colleges want diverse student bodies. If you think they're not going to fully consider you, you're mistaken. You can discuss race and ethnicity in your application if it's important to you, and if it helps explain who you are and what you've done, students should continue to seek colleges that they want to attend and understand that those colleges want them and want to give them full consideration. And as far as counselors are concerned, they should be encouraging students not to pay as much attention to what the court said about this and to pay more attention to what the colleges have shown over the years about these issues, they want more diverse student bodies. Colleges haven't been perfect, but I don't question their motivations. I've talked to enough college personnel to know that they're sincere about wanting diverse student bodies and doing whatever they can within the law to get those diverse student bodies and to give full consideration to applications from underrepresented minority students.
Ethan Sawyer 1:22
Hi, friends, and welcome back to the podcast. So in this episode, we're talking about the Supreme Court's recent decision to strike down race conscious admission, and what the implications might be for colleges, for students applying to those colleges and the counselors who advise them. And what better person to talk about it than with Jay Rosner, whose entire career has been devoted to the intersection of law and college admissions. So this is the first in a series of episodes where we'll be exploring the impacts of the SCOTUS decision from a variety of perspectives. In upcoming episodes, you'll hear from Lorenzo Gamboa, who is the director of diversity, inclusion and outreach at Santa Clara University, who shares with me some things that Latinx families need to know about preparing for college. And fun fact, if you didn't know this, I was raised in Latin America, so we recorded the episode both in Spanish and English. Rick Diaz then takes us behind the scenes at SMU, that's Southern Methodist University, to give us insight into how they read applications, we talk about some of the impacts of the Supreme Court decision on the supplemental essays that many selective colleges and universities require and why so many change their prompts this year. And then in a future episode, you'll also hear me speak with TEDx, speaker and current college student, Tina young, on why you don't have to write about trauma in your college essay to stand out and what you could do instead. And quick side note, even though you'll hear Jay mention a few times in this episode, the possibility that students can write about challenges. I just want to like underscore for those of you listening, students who do not have to write about challenges in your personal statement. See Tina young episode for more. But in this particular episode, Jay Rosner and I get into what the affirmative action ruling practically means, and how it might impact college admissions, particularly for underrepresented students. We address some students fears about whether or not they should mention their race in their application or share experiences directly related to, say, culture. I asked Jay, who's the burden on here? Is it on students or the colleges themselves? We also talk about how counselors should advise students. For those of you who never met Jay He's the Executive Director of the Princeton Review Foundation, and in that role, has developed programs jointly with organizations like the NAACP, the Hispanic Scholarship Fund, college and graduate horizons, serving Native American students, and the Asian Pacific fund. His career has combined education in law with an emphasis on student advocacy. He's testified before state legislative committees in California, Texas, Illinois, New Jersey, and as an expert witness in cases involving standardized testing. Before he went to law school, Jay was a public high school math teacher. He holds a BA from the University of Pennsylvania, a JD from Widener University, and he's the proud father of two grown daughters. Hope you enjoyed this episode. Jay, welcome to the podcast.
Jay Rosner 4:10
Thanks. Ethan, happy to be talking with you about these interesting and important topics.
Ethan Sawyer 4:16
Yeah. So I know, Jay, you've been following race conscious admissions for a long time. Can you give folks a I don't want to say quick, but just an overview of race conscious admissions and why this Supreme Court decision is such a big deal. Sure.
Jay Rosner 4:32
Let's start with the 1970s colleges started using affirmative action in admissions. Some would argue, was the late 1960s but in that era and the numbers of underrepresented students, particularly African American students, began to increase in highly selective programs. And then there was a lawsuit called Bucha against the University of California Davis' medical school. Which had a set aside program for underrepresented minority students and a white student, filed a claim arguing reverse discrimination. Now, one of the interesting threads in the whole history, modern history of of affirmative action or race conscious admissions, is that the lawsuits, not only starting with Bakke, but starting before Bakke in the 1970s were all about discrimination against whites, discrimination against white students. But that was it was never that term was never used. It was always reverse discrimination and preferences. And so the Supreme Court, starting in the late 70s, affirmed the use of race conscious admissions through a series of decisions all the way up to the 20 teens. The first decision, as I said, the first positive decision, was against UC Davis Medical School. Then there were cases against the University of Michigan that went to the Supreme Court. Cases against the University of Texas in the 20 teens, Fisher one and Fisher two that went to the Supreme Court. And then finally, the Harvard and UNC cases were just which were decided in late June of this year, 2023 but all through that series of cases, the use of race conscious admissions was upheld. It was restricted over time, but upheld until the Harvard and UNC decision, which arguably reversed the use of race conscious admissions, but not completely, and we can talk about that. Yeah, so why is this such a big deal? It's a big deal because of structural racism in our society, which leaves underrepresented minorities who, on average, have weaker, lower funded K 12 education, less access to resources, and show up in the at the college admission stage with the results of that lack of access to resources, and what colleges realized is, if they just paid some attention to race and among qualified, and this is very important, among qualified, underrepresented minority candidates and applicants whom they knew could succeed if they just gave them what was called, in the Harvard case, a tip, a slight edge for a qualified candidates to bring in underrepresented minorities. It would diversify their class, which was good for the students, good for the rest of the students, good for the university, good for society. And that was able to be done again with some constrictions right up until June of 2023 with the Harvard UNC
Ethan Sawyer 8:09
decision, you said a minute ago that it arguably reverses things. What does the ruling actually mean? As far as your reading goes, well
Jay Rosner 8:18
Justice Thomas, who's an ultra conservative on the court, said that it, in effect, overrules Grutter, which was a 2003 decision by the Supreme Court that strongly affirmed the use of race conscious admissions, and is the one decision it was written by Justice O'Connor that I think can be adequately summarized in two words. Imagine that a legal decision that could be summarized in two words, and they were two words that she used in a complete sentence in the decision, and the two words are, race matters and race should be considered in university admissions, because it matters. The ruling means that a college is not well, I say College, and applies to college admissions, but I think graduate and professional school admissions are at risk and could be sued under the same principle. What it says is that colleges cannot use and consider race as race. They can consider factors that include race, and specifically mentioned in the majority opinion is obstacles overcome by a student where race is a factor, or inspiration received by a student where their race is a factor or some third factor that involves race. That is not race itself. And this actually has a historical echo, because one of the things in the Bakke decision in the late 70s that I referred to earlier, one of the things in that decision was that race can't be considered in college admissions with regard to the history of racial discrimination in our society. In other words, societal racism can't be considered, but the race of an individual student could be considered. So what the Supreme the Supreme Court, is kind of updating that, in a way saying the fact that race is a factor in society, and that a college might want to be mitigating the history of racial discrimination by giving an advantage to a student of certain race that's off the table. That's been off the table since Bakke, but it's really off the table. And in fact, now race itself is off the table, but it can be included if it's part of a larger context of a student overcoming obstacles, etc. So for students, they can include that kind of discussion in their personal statements, where they tell their story and it just part of the story. Can't be I want you to take into consideration the history of discrimination in our country. That's sort of off the table.
Ethan Sawyer 11:39
What are some of the potential implications in terms of the diversity inclusivity of college campuses?
Jay Rosner 11:47
Well, history showed us back when California in the mid 90s passed Prop 209, banning affirmative action and race conscious admissions in higher education that subsequent to that decision affecting only the state of California, because it was state ballot initiative, the applications to the state flagships, the University of California, Berkeley and UCLA, plummeted from underrepresented minority students, particularly from African American students, and there were two reasons posited for that. Number one was black students and underrepresented minority students got the message that their applications wouldn't be given the full consideration that they might have been given when race conscious admissions had been permitted prior to that. And secondly, a kind of chilling effect where there was this more general feeling that, well, these universities don't really want me or people who look like me, I'm not even going to apply. Applications plummeted, and admissions plummeted, and representation on campus by underrepresented minority students plummeted at places like Berkeley and UCLA. We saw the same effect with a ballot proposition in Michigan, Michigan prop two in 2006 University of Michigan, the flagship campus in that system. After that decision, after that ballot initiative passed, was not permitted to use race conscious admissions. Same thing happened. Applications and enrollment by underrepresented students plummeted. Now there's a countervailing factor that I'm hoping will mitigate that, or even I'm being overly optimistic here, might overpower that, and that is, we're in a different era. It's at least possible that underrepresented minority students after this decision will sort of feel empowered, that they can still tell their story, and there may not be a chilling effect. I hope there isn't a chilling effect as a result of this decision with educators encouraging students to still apply, and that while race alone won't be considered, race can be considered in combination with one of those other factors. So I'm hoping that with good messaging and some energy on the part of Diversity Advocates that that we won't see that kind of chilling effect that we saw in the past
Ethan Sawyer 14:50
in talking to a few students just since the decision came out. And, you know, getting questions on webinars, there are some students who worry. They wonder, Should I even you? Mention race at all in their application. What would you what would you say to them? I would
Jay Rosner 15:04
say to them, if race is a meaningful part of your story and you don't mention it, you're making a big mistake. And I say that from the experience of sitting through the Harvard trial, where there was testimony by minority students, including Asian American students, who said they believed that their discussion of race in their essays helped them. And there were there was evidence in their admissions files with comments by admissions officers that supported that, and it was particularly poignant for I remember a Vietnamese American student who testified and talked about at great length and detail about how his Vietnamese immigrant experience impacted everything about his life and most poignantly, his education, and felt very, very strongly that that story really supported very strongly his admissions and that and there were, there were, there was testimony by Chinese students who had variations of the same theme. So it's mostly, I think, in the Asian American community where one would hear that kind of sentiment, I would think that black and brown students would be less subject to not discussing the race. But I don't know, what have you have you seen evidence or heard evidence to the contrary? I haven't,
Ethan Sawyer 16:46
you know in actually, let me make sure I've got your question. Do you mean evidence the contrary, in regards to like, what? In particular, in
Jay Rosner 16:53
regard to black students, Latinx or Hispanic students, Native American students, saying, I'm not sure I should mention my race. I think people
Ethan Sawyer 17:03
are just freaked out a little bit and going, is this going to be a thing? Is this, you know? Ah, there's a little bit of ah, what does this mean? I think
Jay Rosner 17:12
that's where the role of Diversity Advocates to tell students what the situation is, that if race is a part of your story, not only should you mention it, but you would be making mistake to leave that out, to not mention
Ethan Sawyer 17:29
it. You've had a lot of experience, and we talked briefly before we started about college horizons. I'd love to just hear a little bit about give me some examples of students who have talked about race in meaningful ways, in ways that you feel like will be sort of within the bounds of the law, as it were, actually, let me, let me rephrase that question, because, I guess I wonder this is because this might be another way that students come at it. Are students in danger of quote, unquote, breaking the law, or is the burden really on colleges? The
Jay Rosner 17:57
burden is heavily on colleges. And one of the advantages of this situation is I see no burden on students, except as they impose it on themselves irrationally by saying, you know, I'm I'm not going to apply. They don't want me or I don't think I'll apply to that school, because they're no longer considering race. Those are just erroneous assumptions or conclusions, depending on what you consider them to be. So I see, I see, in effect, no burden of any significance on students whatsoever, which is a good thing. Colleges are in a different situation, and they can be sued, and the people suing them already have six votes on the Supreme Court, so that's a that's a dicey situation. The pressure is on the colleges.
Ethan Sawyer 19:00
So you mentioned briefly an example of a student speaking about how race had been a factor in his life. Can you think of other examples of experiences you've had with students where, just to give students some concrete examples of what's quote, unquote, okay,
Jay Rosner 19:14
some of the things that I think about from Native American students are things like walking a half an hour to my grandmother's house to chop wood for her. Now, I suppose there are rural students, rural white students who do that, but if that's on a reservation, it's got a different feel and context to it the lack of indoor plumbing, the lack of internet access. I remember a story about a student taking an online course for the GRE an online prep course. This was a student with an undergraduate degree, a. Applying to a Master's or PhD program living on the reservation whose internet connection went out at her home. So she traveled some distance, 40 minutes or something, to tribal headquarters, which had Internet access until she got there, and that went out. And so you, I mean, it's hard to think of a corresponding situation in the non native world, but there are those very unique situations that Native American students face.
Ethan Sawyer 20:38
Let's talk to counselors a minute. What advice would you give to counselors when they are advising students on their essays and application as it relates to students identity?
Jay Rosner 20:50
I think the key word is context. I was I've been thinking about this a bit recently, more than I ever have, because of the Harvard UNC decision. I'm not an essay guy, I know an essay guy, I'm not an essay guy, I'm a testing guy. But the decision, if you're thinking about students, compels you to think about a student telling their story. And I think what I would say to counselors is, this is about context, and I'm not I'm not saying anything to you that you don't know. But from my perspective, the colleges want to understand whatever numbers are in the file, or letter grades are in the file, all that written down stuff. They want to have a broader, deeper picture of who this individual is and what this individual will add to their environment on campus. In order to do that, most colleges require essays, and the essay is the opportunity that a student should seize to create the context for whatever else is in the file, so that the admissions officers can have a better understanding of who that individual applicant is, and that context should involve the most important things in that student's life that help explain who that student is, and certainly race, ethnicity, speaking a foreign language, those kinds of things have the kind of impact on day to day, experience, educational experience, objectives, goals, wishes, that leaving them out creates the kind of lack of context that a student shouldn't want for The admission officer to review they should want the richer, more complete picture of who they are to be considered by the admissions officer, and to the extent that that involves mentioning race, which I would think it would involve for most underrepresented minority students, certainly not all. They should introduce it in a way that's, in fact, helpful to the admissions officers in understanding who they are. If
Ethan Sawyer 23:30
there's a student out there listening and thinking, Well, I'm not sure if these colleges really want me. If there's a place for me, what would you say to them, and do you sense that there's been any change from the perspective of college colleges,
Jay Rosner 23:43
none whatsoever. The overwhelming majority of colleges around the country want more diversity in their student bodies, particularly selective colleges that have been less diverse than they should have been over the years. They want diversity the messaging, and that's our role as educators, to get that messaging out to students that underrepresented minority students are really wanted, are really welcome, are really desired by university admissions officers, and that has been the case for a couple of decades. Now. They shouldn't think that the attitude of the Supreme Court reflects the colleges, because, in fact, it's just the opposite. And one of the reasons that the use of race and admissions was challenged in the Supreme Court and not, for example, in Congress, where it could have been challenged is it's got very broad support in the society. Diversity has very broad support in society. The use of. Space in college admissions is a trickier question, but the broad and deep support for diversity in colleges by the colleges and universities themselves is overwhelming, and it's entirely contrary to what we just saw from the Supreme Court. So there's actually a lot of tension there. You
Ethan Sawyer 25:27
mentioned how California voters banned the consideration of race, ethnicity and gender in college admissions in 1996 and there's a neat article by Femi okandele, someone that you know who works at UC Berkeley. I'm curious. Let's talk about colleges for a second. Is there anything you feel like colleges could learn from Berkeley?
Jay Rosner 25:48
Yes, from Berkeley and from the UC system. They tried a lot of stuff to mitigate the damage done by prop 209, and the results that I mentioned to you earlier of the significant immediate decreases in applications, etc, from underrepresented minority students, and they have been successful in a couple of domains. One that jumps out to me is transfers from community colleges the UCS have been very successful in creating vibrant pipeline transfers from community colleges, and the community colleges are much more diverse than the highly selective universities, so that's been a big plus. They've done a couple of other things that have been successful. They've tried a lot of things that haven't been successful. Overall. All of the things that they've tried have not permitted them to get back, at least in the highly select among the highly selective campuses to the pre prop 209 diversity levels. So the I use the word success cautiously there, because not everything has helped them. On the other hand, we're in a new era. Now. In the last three years, the University of California has not been considering admissions tests at all, and I think that the removal of the barrier of admissions tests will prove to be an important diversifying tool, not all, and has, I think it has in the last three years. And then I think it will continue going forward. But there is the question of whether, even with the barrier of tests removed, whether a place like Berkeley can get back to its pre prop 209 diversity that that's an open question. So these are challenges for the UC, which has been subject to an affirmative action ban for well over 20 years, and now the challenges for all selective programs all through the country. Now I should mention that race conscious admissions is really salient only in the selective programs. For non selective programs, race conscious admissions is of tertiary importance, perhaps just doesn't rise to the level where it's discussed in any length. So this is about the selectives and and the highly selectives.
Ethan Sawyer 28:36
I'm curious to see if you had a crystal ball, foggy though it may be. Where do you see this going? I
Jay Rosner 28:42
think that. I think, and I hope, and sometimes it's, it's dangerous to to conflate the two, but I do think, and I do hope, that the role of testing will be significantly diminished. It has been significantly diminished already with the now status quo of test optional in the undergraduate level, I think a movement to test free could catch on beyond the 80 universities that are now test free. I think legacy admissions will go I even think that there will be questioning about the club sports, or the country club sports, like golf and tennis and the like, which not only are almost entirely white, but are very heavily skewed toward affluent students. And it might be that the affluent angle is a better angle of attack to open up those admissions and financial aid spots to more diverse students. So there are a lot of interesting things that can happen the barriers which I see. Be the most prominent ones. Test scores and legacy admissions will tend to go and the other avenues for white students, and particularly wealthy white students, like those sports, I think, will be under some pressure to continue to exist
Ethan Sawyer 30:19
before I do kind of like a closing question. I'm curious if there are any angles on this that you feel like aren't being talked about, or things that you're just really interested in.
Jay Rosner 30:27
Well, the 14th Amendment, equal protection under law, the whole range of decision making. One of the things that I wish were a little more discussed is that the whole range of decision making, from Bakke forward saying that under the 14th Amendment, you can't consider historical prior racial discrimination and justice, Jackson has made great comments about how the 14th Amendment wasn't intended to be colorblind. That's the furthest from the historical record. So you have this butchering. If I could use that term of the 14th Amendment through Supreme Court decisions that should continue to be discussed, they have twisted the 14th Amendment, equal protection under law beyond recognition, to achieve ideological ends. A second aspect I think I might mention, is that this decision was so ideological in that they just ignored the facts. There were 100 page opinions from the trial courts and from the appellate court in the Harvard case, detailing the extensive factual record that supported the use of race and that showed there was no discrimination, and the Supreme Court just summarily ignored that. And one of the, one of the issues with legal decision making is a court is supposed to consider the facts as found by the trial court and the law. And this Supreme Court ignored the facts. So there are, there are striking anomalies in our legal system and in the Supreme Court's jurisprudence that shouldn't be forgotten, given everyone's now got to focus. Everyone in the colleges now has a focus of, how do we run our admissions, get a diverse class and not get sued? I mean, those are the front of mind questions, and I hope this history and the contortions that the Supreme Court has gone through to give us an A historical decision who has not forgotten in this in this whole process,
Ethan Sawyer 32:54
what message would you want to convey to, let's say, students or counselors who are still grappling with these changes and some of the challenges. The
Jay Rosner 33:02
main message is, colleges want diverse student bodies. If you're an underrepresented minority student, they want you. They have to choose among all their applicants, and they're willing to fully consider you. They can't consider you in quite the same way that they could in prior years, but they are still able to give very extensive consideration to your application. If you think they're not going to fully consider you, you're mistaken. You can discuss race and ethnicity and your application, if it's important to you, and you don't discuss it, if it helps explain who you are and what you've done, and you don't discuss it, you're making mistake so that students should continue To seek colleges that they want to attend and understand that those colleges want them and want to give them full consideration. Can't always accept them, because there are lots of other applications. And as far as counselors are concerned, they should be encouraging students to have those attitudes that not to pay as much attention to what the court said about this and to pay more attention to what the colleges have shown over the years about these issues, and that is that they want more diverse student bodies, and that they've tried, in their own ways, to get them now that doesn't mean that colleges have made mistakes. I think the mistakes colleges have made is to give preferences to legacy applicants, for example, and essentially take away those slots to be more diverse, to overemphasize tests. Scores. I mean, colleges haven't been perfect, and I question a lot of what they do, but I don't question their motivations. I've talked to enough college personnel to know that they're sincere about wanting diverse student bodies and doing whatever they can within the law to get those diverse student bodies and to give full consideration to applications from underrepresented minority students. Jay,
Ethan Sawyer 35:27
thanks so much for your time. Thanks friends for listening. In the show notes, you'll find links to the actual Supreme Court decision so you can read it for yourself, a resource that was released jointly by the US Department of Education's Office for Civil Rights and the US Department of Justice's Civil Rights Division on how to help colleges and universities understand the Supreme Court's decision. If you're listening to this and you're on the college side, and in the coming weeks, we'll be sending out on our email list resources on should you write about race in your college application, and if you decide to do it, how do you do it? And when they're released, you'll find links to the episodes that I mentioned at the top of the show that are part of this continuing conversation. You'll find them all at college. Sa guy.com/podcast that's it be. Well, stay curious. You.
Transcribed by https://otter.ai
Show transcript
Jay Rosner 0:00 Colleges want diverse student bodies. If you think they're not going to fully consider you, you're mistaken. You can discuss race and ethnicity in your application if it's important to you, and if it helps explain who you are and what you've done, students should continue to seek colleges that they want to attend and understand that those colleges want them and want to give them full consideration. And as far as counselors are concerned, they should be encouraging students not to pay as much attention to what the court said about this and to pay more attention to what the colleges have shown over the years about these issues, they want more diverse student bodies. Colleges haven't been perfect, but I don't question their motivations. I've talked to enough college personnel to know that they're sincere about wanting diverse student bodies and doing whatever they can within the law to get those diverse student bodies and to give full consideration to applications from underrepresented minority students. Ethan Sawyer 1:22 Hi, friends, and welcome back to the podcast. So in this episode, we're talking about the Supreme Court's recent decision to strike down race conscious admission, and what the implications might be for colleges, for students applying to those colleges and the counselors who advise them. And what better person to talk about it than with Jay Rosner, whose entire career has been devoted to the intersection of law and college admissions. So this is the first in a series of episodes where we'll be exploring the impacts of the SCOTUS decision from a variety of perspectives. In upcoming episodes, you'll hear from Lorenzo Gamboa, who is the director of diversity, inclusion and outreach at Santa Clara University, who shares with me some things that Latinx families need to know about preparing for college. And fun fact, if you didn't know this, I was raised in Latin America, so we recorded the episode both in Spanish and English. Rick Diaz then takes us behind the scenes at SMU, that's Southern Methodist University, to give us insight into how they read applications, we talk about some of the impacts of the Supreme Court decision on the supplemental essays that many selective colleges and universities require and why so many change their prompts this year. And then in a future episode, you'll also hear me speak with TEDx, speaker and current college student, Tina young, on why you don't have to write about trauma in your college essay to stand out and what you could do instead. And quick side note, even though you'll hear Jay mention a few times in this episode, the possibility that students can write about challenges. I just want to like underscore for those of you listening, students who do not have to write about challenges in your personal statement. See Tina young episode for more. But in this particular episode, Jay Rosner and I get into what the affirmative action ruling practically means, and how it might impact college admissions, particularly for underrepresented students. We address some students fears about whether or not they should mention their race in their application or share experiences directly related to, say, culture. I asked Jay, who's the burden on here? Is it on students or the colleges themselves? We also talk about how counselors should advise students. For those of you who never met Jay He's the Executive Director of the Princeton Review Foundation, and in that role, has developed programs jointly with organizations like the NAACP, the Hispanic Scholarship Fund, college and graduate horizons, serving Native American students, and the Asian Pacific fund. His career has combined education in law with an emphasis on student advocacy. He's testified before state legislative committees in California, Texas, Illinois, New Jersey, and as an expert witness in cases involving standardized testing. Before he went to law school, Jay was a public high school math teacher. He holds a BA from the University of Pennsylvania, a JD from Widener University, and he's the proud father of two grown daughters. Hope you enjoyed this episode. Jay, welcome to the podcast. Jay Rosner 4:10 Thanks. Ethan, happy to be talking with you about these interesting and important topics. Ethan Sawyer 4:16 Yeah. So I know, Jay, you've been following race conscious admissions for a long time. Can you give folks a I don't want to say quick, but just an overview of race conscious admissions and why this Supreme Court decision is such a big deal. Sure. Jay Rosner 4:32 Let's start with the 1970s colleges started using affirmative action in admissions. Some would argue, was the late 1960s but in that era and the numbers of underrepresented students, particularly African American students, began to increase in highly selective programs. And then there was a lawsuit called Bucha against the University of California Davis' medical school. Which had a set aside program for underrepresented minority students and a white student, filed a claim arguing reverse discrimination. Now, one of the interesting threads in the whole history, modern history of of affirmative action or race conscious admissions, is that the lawsuits, not only starting with Bakke, but starting before Bakke in the 1970s were all about discrimination against whites, discrimination against white students. But that was it was never that term was never used. It was always reverse discrimination and preferences. And so the Supreme Court, starting in the late 70s, affirmed the use of race conscious admissions through a series of decisions all the way up to the 20 teens. The first decision, as I said, the first positive decision, was against UC Davis Medical School. Then there were cases against the University of Michigan that went to the Supreme Court. Cases against the University of Texas in the 20 teens, Fisher one and Fisher two that went to the Supreme Court. And then finally, the Harvard and UNC cases were just which were decided in late June of this year, 2023 but all through that series of cases, the use of race conscious admissions was upheld. It was restricted over time, but upheld until the Harvard and UNC decision, which arguably reversed the use of race conscious admissions, but not completely, and we can talk about that. Yeah, so why is this such a big deal? It's a big deal because of structural racism in our society, which leaves underrepresented minorities who, on average, have weaker, lower funded K 12 education, less access to resources, and show up in the at the college admission stage with the results of that lack of access to resources, and what colleges realized is, if they just paid some attention to race and among qualified, and this is very important, among qualified, underrepresented minority candidates and applicants whom they knew could succeed if they just gave them what was called, in the Harvard case, a tip, a slight edge for a qualified candidates to bring in underrepresented minorities. It would diversify their class, which was good for the students, good for the rest of the students, good for the university, good for society. And that was able to be done again with some constrictions right up until June of 2023 with the Harvard UNC Ethan Sawyer 8:09 decision, you said a minute ago that it arguably reverses things. What does the ruling actually mean? As far as your reading goes, well Jay Rosner 8:18 Justice Thomas, who's an ultra conservative on the court, said that it, in effect, overrules Grutter, which was a 2003 decision by the Supreme Court that strongly affirmed the use of race conscious admissions, and is the one decision it was written by Justice O'Connor that I think can be adequately summarized in two words. Imagine that a legal decision that could be summarized in two words, and they were two words that she used in a complete sentence in the decision, and the two words are, race matters and race should be considered in university admissions, because it matters. The ruling means that a college is not well, I say College, and applies to college admissions, but I think graduate and professional school admissions are at risk and could be sued under the same principle. What it says is that colleges cannot use and consider race as race. They can consider factors that include race, and specifically mentioned in the majority opinion is obstacles overcome by a student where race is a factor, or inspiration received by a student where their race is a factor or some third factor that involves race. That is not race itself. And this actually has a historical echo, because one of the things in the Bakke decision in the late 70s that I referred to earlier, one of the things in that decision was that race can't be considered in college admissions with regard to the history of racial discrimination in our society. In other words, societal racism can't be considered, but the race of an individual student could be considered. So what the Supreme the Supreme Court, is kind of updating that, in a way saying the fact that race is a factor in society, and that a college might want to be mitigating the history of racial discrimination by giving an advantage to a student of certain race that's off the table. That's been off the table since Bakke, but it's really off the table. And in fact, now race itself is off the table, but it can be included if it's part of a larger context of a student overcoming obstacles, etc. So for students, they can include that kind of discussion in their personal statements, where they tell their story and it just part of the story. Can't be I want you to take into consideration the history of discrimination in our country. That's sort of off the table. Ethan Sawyer 11:39 What are some of the potential implications in terms of the diversity inclusivity of college campuses? Jay Rosner 11:47 Well, history showed us back when California in the mid 90s passed Prop 209, banning affirmative action and race conscious admissions in higher education that subsequent to that decision affecting only the state of California, because it was state ballot initiative, the applications to the state flagships, the University of California, Berkeley and UCLA, plummeted from underrepresented minority students, particularly from African American students, and there were two reasons posited for that. Number one was black students and underrepresented minority students got the message that their applications wouldn't be given the full consideration that they might have been given when race conscious admissions had been permitted prior to that. And secondly, a kind of chilling effect where there was this more general feeling that, well, these universities don't really want me or people who look like me, I'm not even going to apply. Applications plummeted, and admissions plummeted, and representation on campus by underrepresented minority students plummeted at places like Berkeley and UCLA. We saw the same effect with a ballot proposition in Michigan, Michigan prop two in 2006 University of Michigan, the flagship campus in that system. After that decision, after that ballot initiative passed, was not permitted to use race conscious admissions. Same thing happened. Applications and enrollment by underrepresented students plummeted. Now there's a countervailing factor that I'm hoping will mitigate that, or even I'm being overly optimistic here, might overpower that, and that is, we're in a different era. It's at least possible that underrepresented minority students after this decision will sort of feel empowered, that they can still tell their story, and there may not be a chilling effect. I hope there isn't a chilling effect as a result of this decision with educators encouraging students to still apply, and that while race alone won't be considered, race can be considered in combination with one of those other factors. So I'm hoping that with good messaging and some energy on the part of Diversity Advocates that that we won't see that kind of chilling effect that we saw in the past Ethan Sawyer 14:50 in talking to a few students just since the decision came out. And, you know, getting questions on webinars, there are some students who worry. They wonder, Should I even you? Mention race at all in their application. What would you what would you say to them? I would Jay Rosner 15:04 say to them, if race is a meaningful part of your story and you don't mention it, you're making a big mistake. And I say that from the experience of sitting through the Harvard trial, where there was testimony by minority students, including Asian American students, who said they believed that their discussion of race in their essays helped them. And there were there was evidence in their admissions files with comments by admissions officers that supported that, and it was particularly poignant for I remember a Vietnamese American student who testified and talked about at great length and detail about how his Vietnamese immigrant experience impacted everything about his life and most poignantly, his education, and felt very, very strongly that that story really supported very strongly his admissions and that and there were, there were, there was testimony by Chinese students who had variations of the same theme. So it's mostly, I think, in the Asian American community where one would hear that kind of sentiment, I would think that black and brown students would be less subject to not discussing the race. But I don't know, what have you have you seen evidence or heard evidence to the contrary? I haven't, Ethan Sawyer 16:46 you know in actually, let me make sure I've got your question. Do you mean evidence the contrary, in regards to like, what? In particular, in Jay Rosner 16:53 regard to black students, Latinx or Hispanic students, Native American students, saying, I'm not sure I should mention my race. I think people Ethan Sawyer 17:03 are just freaked out a little bit and going, is this going to be a thing? Is this, you know? Ah, there's a little bit of ah, what does this mean? I think Jay Rosner 17:12 that's where the role of Diversity Advocates to tell students what the situation is, that if race is a part of your story, not only should you mention it, but you would be making mistake to leave that out, to not mention Ethan Sawyer 17:29 it. You've had a lot of experience, and we talked briefly before we started about college horizons. I'd love to just hear a little bit about give me some examples of students who have talked about race in meaningful ways, in ways that you feel like will be sort of within the bounds of the law, as it were, actually, let me, let me rephrase that question, because, I guess I wonder this is because this might be another way that students come at it. Are students in danger of quote, unquote, breaking the law, or is the burden really on colleges? The Jay Rosner 17:57 burden is heavily on colleges. And one of the advantages of this situation is I see no burden on students, except as they impose it on themselves irrationally by saying, you know, I'm I'm not going to apply. They don't want me or I don't think I'll apply to that school, because they're no longer considering race. Those are just erroneous assumptions or conclusions, depending on what you consider them to be. So I see, I see, in effect, no burden of any significance on students whatsoever, which is a good thing. Colleges are in a different situation, and they can be sued, and the people suing them already have six votes on the Supreme Court, so that's a that's a dicey situation. The pressure is on the colleges. Ethan Sawyer 19:00 So you mentioned briefly an example of a student speaking about how race had been a factor in his life. Can you think of other examples of experiences you've had with students where, just to give students some concrete examples of what's quote, unquote, okay, Jay Rosner 19:14 some of the things that I think about from Native American students are things like walking a half an hour to my grandmother's house to chop wood for her. Now, I suppose there are rural students, rural white students who do that, but if that's on a reservation, it's got a different feel and context to it the lack of indoor plumbing, the lack of internet access. I remember a story about a student taking an online course for the GRE an online prep course. This was a student with an undergraduate degree, a. Applying to a Master's or PhD program living on the reservation whose internet connection went out at her home. So she traveled some distance, 40 minutes or something, to tribal headquarters, which had Internet access until she got there, and that went out. And so you, I mean, it's hard to think of a corresponding situation in the non native world, but there are those very unique situations that Native American students face. Ethan Sawyer 20:38 Let's talk to counselors a minute. What advice would you give to counselors when they are advising students on their essays and application as it relates to students identity? Jay Rosner 20:50 I think the key word is context. I was I've been thinking about this a bit recently, more than I ever have, because of the Harvard UNC decision. I'm not an essay guy, I know an essay guy, I'm not an essay guy, I'm a testing guy. But the decision, if you're thinking about students, compels you to think about a student telling their story. And I think what I would say to counselors is, this is about context, and I'm not I'm not saying anything to you that you don't know. But from my perspective, the colleges want to understand whatever numbers are in the file, or letter grades are in the file, all that written down stuff. They want to have a broader, deeper picture of who this individual is and what this individual will add to their environment on campus. In order to do that, most colleges require essays, and the essay is the opportunity that a student should seize to create the context for whatever else is in the file, so that the admissions officers can have a better understanding of who that individual applicant is, and that context should involve the most important things in that student's life that help explain who that student is, and certainly race, ethnicity, speaking a foreign language, those kinds of things have the kind of impact on day to day, experience, educational experience, objectives, goals, wishes, that leaving them out creates the kind of lack of context that a student shouldn't want for The admission officer to review they should want the richer, more complete picture of who they are to be considered by the admissions officer, and to the extent that that involves mentioning race, which I would think it would involve for most underrepresented minority students, certainly not all. They should introduce it in a way that's, in fact, helpful to the admissions officers in understanding who they are. If Ethan Sawyer 23:30 there's a student out there listening and thinking, Well, I'm not sure if these colleges really want me. If there's a place for me, what would you say to them, and do you sense that there's been any change from the perspective of college colleges, Jay Rosner 23:43 none whatsoever. The overwhelming majority of colleges around the country want more diversity in their student bodies, particularly selective colleges that have been less diverse than they should have been over the years. They want diversity the messaging, and that's our role as educators, to get that messaging out to students that underrepresented minority students are really wanted, are really welcome, are really desired by university admissions officers, and that has been the case for a couple of decades. Now. They shouldn't think that the attitude of the Supreme Court reflects the colleges, because, in fact, it's just the opposite. And one of the reasons that the use of race and admissions was challenged in the Supreme Court and not, for example, in Congress, where it could have been challenged is it's got very broad support in the society. Diversity has very broad support in society. The use of. Space in college admissions is a trickier question, but the broad and deep support for diversity in colleges by the colleges and universities themselves is overwhelming, and it's entirely contrary to what we just saw from the Supreme Court. So there's actually a lot of tension there. You Ethan Sawyer 25:27 mentioned how California voters banned the consideration of race, ethnicity and gender in college admissions in 1996 and there's a neat article by Femi okandele, someone that you know who works at UC Berkeley. I'm curious. Let's talk about colleges for a second. Is there anything you feel like colleges could learn from Berkeley? Jay Rosner 25:48 Yes, from Berkeley and from the UC system. They tried a lot of stuff to mitigate the damage done by prop 209, and the results that I mentioned to you earlier of the significant immediate decreases in applications, etc, from underrepresented minority students, and they have been successful in a couple of domains. One that jumps out to me is transfers from community colleges the UCS have been very successful in creating vibrant pipeline transfers from community colleges, and the community colleges are much more diverse than the highly selective universities, so that's been a big plus. They've done a couple of other things that have been successful. They've tried a lot of things that haven't been successful. Overall. All of the things that they've tried have not permitted them to get back, at least in the highly select among the highly selective campuses to the pre prop 209 diversity levels. So the I use the word success cautiously there, because not everything has helped them. On the other hand, we're in a new era. Now. In the last three years, the University of California has not been considering admissions tests at all, and I think that the removal of the barrier of admissions tests will prove to be an important diversifying tool, not all, and has, I think it has in the last three years. And then I think it will continue going forward. But there is the question of whether, even with the barrier of tests removed, whether a place like Berkeley can get back to its pre prop 209 diversity that that's an open question. So these are challenges for the UC, which has been subject to an affirmative action ban for well over 20 years, and now the challenges for all selective programs all through the country. Now I should mention that race conscious admissions is really salient only in the selective programs. For non selective programs, race conscious admissions is of tertiary importance, perhaps just doesn't rise to the level where it's discussed in any length. So this is about the selectives and and the highly selectives. Ethan Sawyer 28:36 I'm curious to see if you had a crystal ball, foggy though it may be. Where do you see this going? I Jay Rosner 28:42 think that. I think, and I hope, and sometimes it's, it's dangerous to to conflate the two, but I do think, and I do hope, that the role of testing will be significantly diminished. It has been significantly diminished already with the now status quo of test optional in the undergraduate level, I think a movement to test free could catch on beyond the 80 universities that are now test free. I think legacy admissions will go I even think that there will be questioning about the club sports, or the country club sports, like golf and tennis and the like, which not only are almost entirely white, but are very heavily skewed toward affluent students. And it might be that the affluent angle is a better angle of attack to open up those admissions and financial aid spots to more diverse students. So there are a lot of interesting things that can happen the barriers which I see. Be the most prominent ones. Test scores and legacy admissions will tend to go and the other avenues for white students, and particularly wealthy white students, like those sports, I think, will be under some pressure to continue to exist Ethan Sawyer 30:19 before I do kind of like a closing question. I'm curious if there are any angles on this that you feel like aren't being talked about, or things that you're just really interested in. Jay Rosner 30:27 Well, the 14th Amendment, equal protection under law, the whole range of decision making. One of the things that I wish were a little more discussed is that the whole range of decision making, from Bakke forward saying that under the 14th Amendment, you can't consider historical prior racial discrimination and justice, Jackson has made great comments about how the 14th Amendment wasn't intended to be colorblind. That's the furthest from the historical record. So you have this butchering. If I could use that term of the 14th Amendment through Supreme Court decisions that should continue to be discussed, they have twisted the 14th Amendment, equal protection under law beyond recognition, to achieve ideological ends. A second aspect I think I might mention, is that this decision was so ideological in that they just ignored the facts. There were 100 page opinions from the trial courts and from the appellate court in the Harvard case, detailing the extensive factual record that supported the use of race and that showed there was no discrimination, and the Supreme Court just summarily ignored that. And one of the, one of the issues with legal decision making is a court is supposed to consider the facts as found by the trial court and the law. And this Supreme Court ignored the facts. So there are, there are striking anomalies in our legal system and in the Supreme Court's jurisprudence that shouldn't be forgotten, given everyone's now got to focus. Everyone in the colleges now has a focus of, how do we run our admissions, get a diverse class and not get sued? I mean, those are the front of mind questions, and I hope this history and the contortions that the Supreme Court has gone through to give us an A historical decision who has not forgotten in this in this whole process, Ethan Sawyer 32:54 what message would you want to convey to, let's say, students or counselors who are still grappling with these changes and some of the challenges. The Jay Rosner 33:02 main message is, colleges want diverse student bodies. If you're an underrepresented minority student, they want you. They have to choose among all their applicants, and they're willing to fully consider you. They can't consider you in quite the same way that they could in prior years, but they are still able to give very extensive consideration to your application. If you think they're not going to fully consider you, you're mistaken. You can discuss race and ethnicity and your application, if it's important to you, and you don't discuss it, if it helps explain who you are and what you've done, and you don't discuss it, you're making mistake so that students should continue To seek colleges that they want to attend and understand that those colleges want them and want to give them full consideration. Can't always accept them, because there are lots of other applications. And as far as counselors are concerned, they should be encouraging students to have those attitudes that not to pay as much attention to what the court said about this and to pay more attention to what the colleges have shown over the years about these issues, and that is that they want more diverse student bodies, and that they've tried, in their own ways, to get them now that doesn't mean that colleges have made mistakes. I think the mistakes colleges have made is to give preferences to legacy applicants, for example, and essentially take away those slots to be more diverse, to overemphasize tests. Scores. I mean, colleges haven't been perfect, and I question a lot of what they do, but I don't question their motivations. I've talked to enough college personnel to know that they're sincere about wanting diverse student bodies and doing whatever they can within the law to get those diverse student bodies and to give full consideration to applications from underrepresented minority students. Jay, Ethan Sawyer 35:27 thanks so much for your time. Thanks friends for listening. In the show notes, you'll find links to the actual Supreme Court decision so you can read it for yourself, a resource that was released jointly by the US Department of Education's Office for Civil Rights and the US Department of Justice's Civil Rights Division on how to help colleges and universities understand the Supreme Court's decision. If you're listening to this and you're on the college side, and in the coming weeks, we'll be sending out on our email list resources on should you write about race in your college application, and if you decide to do it, how do you do it? And when they're released, you'll find links to the episodes that I mentioned at the top of the show that are part of this continuing conversation. You'll find them all at college. Sa guy.com/podcast that's it be. Well, stay curious. You. Transcribed by https://otter.ai
