The upcoming Fisher II SCOTUS decision and its potential relationship to the campus climate for inclusion
Cassie L. Barnhardt, Assistant Professor, Higher Education and Student Affairs
University of Iowa
ACPA Emerging Scholar
Very soon, the Supreme Court of the United States (SCOTUS) is expected to decide the case of Fisher II (http://www.scotusblog.com/case-files/cases/fisher-v-university-of-texas-at-austin-2/), which focuses on the legality of considering an applicant’s race in college admissions. Following the unsettled legal aspects of the Fisher I (http://www.scotusblog.com/case-files/cases/fisher-v-university-of-texas-at-austin/) decision, the topic of affirmative action returned to a lower court, resulting in the Fifth Circuit endorsing the legality of UT-Austin’s existing admissions approach. Fisher II emerged following that decision to further prompt SCOTUS to review the legal interpretation of the Circuit court’s ruling. Oral arguments (http://www.supremecourt.gov/oral_arguments/argument_transcripts/14-981_p8k0.pdf) for Fisher II were presented to SCOTUS in December 2015. These arguments are memorable for many reasons, but one aspect that received much public attention was the late Justice Scalia’s comments where he described “slower-track” and “lesser” schools while discussing race and a student’s fit with the college to which one is admitted or enrolled.
Irrespective of the upcoming decision in Fisher II, be it an affirmation or a nullification of the lower court’s decision (or somewhere in between), campus leaders and administrators need to ready themselves for what may come next. For example, the American Council on Education (ACE) (http://www.acenet.edu/events/Pages/Preparing-for-Fisher-II-on-Your-Campus.aspx), and NACAC (in cooperation with other organizations) (http://www.nacacnet.org/issues-action/LegislativeNews/Documents/ADC_PreparingForFisherII.pdf), and NADOHE (http://diverseeducation.com/article/82444/) are aiding senior campus administrators (https://www.acenet.edu/the-presidency/columns-and-features/Pages/Legal-Watch-Campus-Diversity-in-the-Age-of-Fisher-II-Broadening-the-Conversation.aspx), enrollment managers, campus legal counsel, and vice presidents with understanding the administrative details associated with implementing selective admissions practices under various Fisher II outcome scenarios. This sort of preemptive advice-sharing is crucial for institutional planning so that leaders understand the reach and application of how the potential legal outcomes will apply to their existing organizational routines.
As the Justices have been contemplating the procedural nuances of whether and how race shall be deemed relevant to selective college admissions, the campus climate is punctuated by a new wave of campus activism, and a generalized deepening of ideological cleavages in the national body politic related to race, social class, gender and gender-identity, immigration status, and religious-identification (among others). These conditions denote that aside from anticipating possible organizational or structural adaptations to campus admissions practices that flow from the upcoming Fisher II decision, the ruling has the potential to act upon the pre-existing tensions that exist within the campus climate. New and seasoned campus leaders and student affairs educators will need to invoke their community building skills and capacities for convening people across their differences to overcome the potential for a Fisher II decision to fracture the campus community rather than settle long-standing contestations regarding race in America. Anticipating the Fisher II decision, campus educators need to consider the following as they navigate their unique campus climate dynamics.
Fisher II is not simply a legal matter, but it is likely to emerge as a symbol imparting meaning about the contemporary role of race in the field of higher education.
As an affirmative action case, Fisher II is part of the long saga surrounding how the United States structures opportunities such that all people might realize their potential through postsecondary education. Legal decisions function to codify and institutionalize the ‘rules of the game.’ In this instance, campuses are responsible for playing by the rules, while still exercising a measure of autonomy in their organizational routines and practices to differentiate themselves from other institutions. The Court will inevitably offer its interpretation of whether if, how much, how little, or in what ways race may be considered in admissions. This decision situated in race will be interpreted differently by various campus and student stakeholders and interest groups. Therefore, the decision will symbolize divergent realities. Some parties are likely to interpret that the ‘system’ has invalidated or failed them; others will view the ‘system’ as having worked. For others still, some campuses or their community members will take little notice of the Court’s decision; and this sort of peripheral attention (or even disengagement) on racial issues of national importance will be interpreted by some as symbolic evidence of systematized structural invisibility.
Fisher II is being decided in the wake of recent campus-based activism. Protesters’ demands include calls for race-conscious campus organizational practices and policies; these calls are asking for racial-awareness beyond admissions and will mediate how the Fisher II decision shapes the campus climate.
Campus protesters’ demands of late (https://higheredtoday.org/2016/01/13/what-are-students-demanding/) include a listing of what they conceive of as suitable solutions to move campuses towards greater access, equity, and inclusion for people with marginalized identities. Consistent across geographically dispersed campuses, protesters have insisted that policy adjustments focused on improving the campus climate for diversity are necessary. Such modifications involve expanding the compositional racial diversity of faculty, staff, and students. And for some organizers, this demand specifies that campuses enroll and employ Black students and faculty, respectively, in numbers that reflect the geographic racial composition of the state and nation. The activists’ demands for organizational-level racial-awareness are not limited to the composition of the campus community. The protesters’ demands also call upon senior administrators (particularly presidents) to articulate the institution’s role in historical and contemporary discriminatory practices enacted by the university, while simultaneously publicly advocating for greater inclusion across forms of difference.
(The aforementioned demands are not exhaustive, but among those most frequently invoked by campus protesters, see http://www.thedemands.org for additional details).
Aside from campus activism and issuing demands, students are also using conventional approaches to place greater attention on racially-aware organizational practices. One such example flows from the University of Kansas, where students have been pursuing the creation of a multicultural student government organizational structure (http://chronicle.com/article/Despite-Kansas-Chancellors/236403) that (when compared to the general student government body) places more attention on racial aspects of social justice and inclusion. This approach is one example of a method that students are pursuing to demonstrate the urgency in which they seek racially-aware organizational approaches – approaches designed to honor differences, to speak to cultural and structural manifestations of race-based oppression and racism, and to enact organizational-level solutions to the racial problems and issues they identify.
The focus on race-conscious organizational responses will likely interact with the Fisher II decision in some manner on many campuses. As educators prepare for the outcome of Fisher II, campus administrators might anticipate campus protest, if this has not already occurred. Likewise, current campus protest movements may shift their activism to particular administrative units that are structurally related to Fisher II- admissions offices, admissions staff, or admissions procedures - since these are the arenas where the ruling will be applied. While some campus administrators might be inclined to find such potential activist approaches disruptive, the task for educators is to prepare themselves to engage with activists’ concerns, listen deeply, and find ways to pursue an educational response, a response where community members can both assert their interests and concerns while remaining active participants in creating more inclusive learning environments. With Fisher II being such a direct tie between campuses and the structure and meaning of race in America more broadly, campus educators need to actively link the local context with the broader context to assure that students are able to apply their lived experiences on campus beyond the proverbial bounds of that setting.
Finally, for campus educators and administrators who have yet to fully think through their views about race-conscious administrative strategies in campus admissions, services, policies, programs, curricula, or employment, it is timely to reflect on these issues and determine what you value. The Fisher II decision holds the potential to bring renewed attention to the debates and contestations over the role of racial-awareness and how it is embedded in organizational routines, practices, and policies. Further, with the symbolic importance of a Fisher II decision, any pre-existing racial tensions on campus may evolve, heighten, or be extended. To be ready for these potential campus climate phenomena, campus educators and student affairs professionals will need to recommit themselves to creating democratic and inviting spaces for community members to convene, and correspondingly critique, contemplate evidence, innovate, and synthesize disparate but allied viewpoints so that the community can find its way forward.
 ACPA was a signatory on the 2013 and 2015 Amicus briefs for Fisher.