Affirmative Action and Academic Freedom

This guest blog post comes courtesy of Joseph McShane, S.J., the president of Fordham University:

In August, Fordham University—along with Boston College, DePaul, Georgetown, Holy Cross, Marquette, Notre Dame, and San Francisco—filed an amicus brief before the Supreme Court in the case of Abigail Fisher versus the University of Texas at Austin. Broadly speaking, at issue is whether affirmative action policies are constitutionally acceptable in the context of university admissions.

Ms. Fisher, and another young woman who has since dropped out of the case, applied to the University of Texas at Austin in 2008 and were denied admission. Both women are Caucasian. They filed suit, alleging that the university discriminated against them on the basis of their race in violation of the Equal Protection Clause of the Fourteenth Amendment.

At the time Ms. Fisher applied, the University of Texas at Austin accepted all students who graduated in the top 10 percent of every Texas high school under the University’s Top Ten Per-cent plan. Ms. Fisher fell short of the top 10 percent in 2008, and was considered among the pool of applicants whose attributes (grades, talents, leadership qualities, family circumstances, and race) were weighed more holistically. Unfortunately, Ms. Fisher was not accepted into the Uni-versity of Texas at Austin, hence the suit.

Fordham—and its sister schools—filed a brief supporting the University of Texas at Austin because we believe a holistic method that includes race-based criteria is the best path to a diverse student body.

Diversity matters, and the way a University achieves a diverse student body matters, as well. At Fordham we take part in New York state’s Higher Education Opportunity Program (HEOP), under which we admit approximately 125 economically disadvantaged students a year, and provide them with the support and resources to help them succeed in college. Though HEOP has a higher percentage of racial minorities than Fordham’s general student population, the program does not by itself achieve sufficient diversity, neither in absolute numbers nor in minority representation University wide.

We find, moreover, that one consequence of using economic metrics to increase diversity is that it can lead to conflating “poor” and “minority” in the minds of the very students HEOP is at-tempting to help. In seeking racial diversity across all income levels, we hope to dismantle pernicious stereotypes of race and class for all of our students. The ability to consider race as one factor in admission helps Fordham achieve that goal.

Fordham seeks to prepare its graduates for leadership in an increasingly multicultural and multi-national society. Toward that end, we try to develop in our students an understanding of, and reverence for, cultures and ways of life other than their own. We believe that such an understanding and reverence cannot be achieved absent a truly multiracial, multicultural student body.

At least as important as diversity is the issue of academic freedom raised by Fisher v. University of Texas at Austin. Our amicus brief, prepared by Susan Buckley, of the firm Cahill Gordon & Reindel, cites many First Amendment precedents in a robust defense of academic freedom (you can read the entire text of the brief here), but I’d like to share just one that I believe is at the intellectual and moral heart of the issue. In 1957, Justice Felix Frankfurter wrote a concurring opinion in Sweezy v. New Hampshire, in which he quoted a statement from scholars at the University of Cape Town. The statement referred to “the four essential freedoms of a university,” and enumerated them as “…to determine for itself on academic grounds who may teach; what may be taught; how it shall be taught; and who may be admitted to study.”

Whom we admit for study, and how we do so, are central to the university’s existence. Fordham’s mission since its founding has been, in part, to serve the immigrant church. That mission has served its graduates, the City of New York, and the world at large astonishingly well. In an increasingly globalized culture in which we find ourselves, there is no substitute for racial diversity among the student body, and no excuse for its lack.

Moreover, as with many constitutional issues, in Fisher v. University of Texas at Austin we are presented with an unwarranted intrusion upon academic freedom of the kind that puts the whole enterprise at risk.

My counterparts at our sister schools can attest that it is a rare day in which some organization, or government official, or parent, or journalist, or donor, or student does not object to some aspect of pedagogy or administration in the academy. It seems there is a critic—sometimes an influential one—for every area of content, for every tenure decision, and for every admission policy.

If the Supreme Court were to rule in Ms. Fisher’s favor and prohibit universities from looking to an applicant’s race as one factor in the admissions process, how long before we are compelled to mute unpopular points of view, or before we begin to use political litmus tests to determine who should and should not be allowed to teach at a university? Such a turn of events would be the end of our Jesuit identity: a disaster for our students, for Catholic higher education, and for the society we serve.

Joseph M. McShane, S.J., is the 32nd president of Fordham University. He is a University of Chicago-trained historian, and the former president of The University of Scranton.

Roger Clegg
4 years 10 months ago
By this logic, I guess you think that there should have been no legal objection to universities a half-century ago refusing to admit African Americans or hire African-American faculty, right?
4 years 10 months ago
Nearly every college has more applications than it has space for. Some of the candidates will have 5.0 averages on their high school's 4.0 scale (note to fogies: that is possible), 1600 SATs, fluency in French and Russian and be coming off a year as a midwife in Africa. After you admit them, the rest is pretty much up for grabs. Jesuit colleges seems to have remarkable luck at grabbing five basketball players in the leftover pile. There is no test or skill set that can separate the future golden alumni from the drop-outs at that stage.

But you sort of find what you are looking for. And if you don't find minorities, you find someone else. Whoever that is, he or she would be equally objectionable to the people who object to schools finding minorities, based on the principles those critics apply when objecting to finding minorities.
Vincent Gaitley
4 years 10 months ago
Diversity matters?  Well, that's a hoax.  Perhaps a happy and self deluding one. Colleges routinely bar speakers due to political beliefs, or sexual orientation-Villanova blocked a gay themed performance recently.  How tolerant would any college be when a burning cross goes up?  It seems that left leaning behaviors are tolerated, right leaning not; any liberal speaker (even kooky ones) are welcomed, and conservative politicians are booed or barred.  

In admissions only merit should matter, and then a consideration of financial status allowing the able poor to matriculate. This should get all the racial minorities a fair chance without the onus of AA.  No Jesuit college would hire an atheist for a president, what's the point of admitting an atheist student?  Proof of tolerance or a chance to convert?  The diversity that matters is diversity of ideas-that is the essence of academic freedom. 
4 years 10 months ago
''As new immigrants hold on to their cultures, our distinct American culture that was formed and has united us over the last 300 years becomes broken down into diverse parts.''

I am going to need some help here. Our distinct American culture was already formed during the colonial period? How do/did the Tories fit into that culture? John Adams said that only about one-third of Americans were patriots at the time of our Revolution. Were the other two-thirds outliers? Or did our culture take a minority turn then?

Then in the 19th Century, when we were so united we went to war with each other, what was it that united the Irish western miners (who were going to root for Germany in 1914), the Spanish speaking grandees of New Mexico and the unrepentant sons of the Confederacy with the Boston Brahmins who were convinced they still were the national culture? Not to mention the obviously unassimilable Italians, who cooked with garlic, and the eastern European Jews, who looked odd.

Did all of these various groups that once had trouble assimilating eventually end up as Ozzie and Harriet in a perfect medley that was only lately disturbed by the discovery that there are some people here of a different color and some who - heavens to Betsy! - just arrived, speaking a different language?

 Or is there another, completely different, scenario to the one Mr. Brooks offers?
David Smith
4 years 10 months ago
This paragraph from a recent New Yorker article makes clear what I think Joseph McShane, above, left muddled:
The facts of the new case are straightforward. Abigail Fisher, a white high-school student in Sugar Land, Texas, was rejected for admission to the University of Texas-Austin. The state requires all students in the top ten per cent of their high-school classes to be admitted to state universities, but students who fall just short of that threshold, like Fisher, are admitted according to a formula; race is one factor in the equation. Fisher’s lawsuit is based on a claim that any consideration of race by a university in admissions violates the Equal Protection Clause of the Fourteenth Amendment.
Good, short article - much clearer than the piece here.  The last paragraph reads:
In a way, it would not be surprising if the Court sent affirmative action to its doom. No figure in public life, including President Obama, has made a full-throated defense of the practice in years. On an aggressively conservative Court like the current one, that relative silence could well be seen as an invitation to dismantle the practice. In today’s political environment, a decision in favor of Abigail Fisher would generate as much praise as criticism. For the Roberts Court, that makes for a relatively risk-free license to follow its inclinations. Thanks to O’Connor’s opinion, it’s been clear for some time that the days of affirmative action were numbered, but it’s clearer than ever that that number may be dwindling quickly indeed.
Sounds as though even the New Yorker is ready to stop defending racial discrimination, but Father McShane seems determined to support it to the bitter end.
Ada Meloy
4 years 10 months ago
President McShane is right to sound the alarm about the threat to academic freedom posed by the Fisher case, to Fordham University and its mission and to the mission of the entire higher education community.

Our federal government, from the Supreme Court to Congress and the executive branch, historically has granted individual colleges and universities the power to make key decisions such as who to admit. This has led to America’s uniquely pluralistic higher education system, one that continues to be the envy of a world in which many other countries control their universities from a central ministry. As Father McShane puts so well: If the Supreme Court were to find in favor of Fisher and rule against the University of Texas at Austin it would mean an unwarranted intrusion upon academic freedom that indeed would put the whole enterprise at risk.
Ada Meloy
General Counsel
American Council on Education
Jim McCrea
4 years 10 months ago
Affirmative Action is bad, but legacy preference is not?  Preference for children of faculty and staff isn't?  How about preference for brawn over brains in athletic scholarships?

Should Catholic colleges and universities be allowed to give preference to Catholic students when said schools rely so heavily on tax dollars coming from research grants, scholarships and many other forms of middle class welfare - all from taxpayers of all religions and none?

Remember the old saw about having one's cake and eating it too?
Amy Ho-Ohn
4 years 10 months ago
I understand why affirmative action is controversial. I taught the first-year computer programming course at a top-ranked engineering school for several years. The majority of the students admitted on racial preferences were not able to pass. The university persisted in cynically admitting these students, pocketing their (borrowed) tuition, allowing them to flunk out and leaving them to make the debt payments. (Students who flunked out of the engineering college would usually transfer to the general college and get degrees in business, humanities, social "sciences" or kinesiology.)

On the other hand, it is a fact that the younger generations are heavily skewed toward ethnic groups which are currently underrepresented in engineering. If America wants to compete in the global economy in the twenty-first century, something has to be done to incorporate those segments of society into the technological professions. If one generation can be successfully brought on board, possibly at the expense of some small sacrifice in quality, probably the next will be able to compete on their own merits.

The public universities serve not only their students, but the taxpayers as well. They have an obligation to provide a sustainable workforce. If they think this necessitates the use of affirmative action in admissions, they should be allowed to do it.

Moreover, it should not be overlooked that the most prevalent form of affirmative action in use today is second- and third-tier institutions (Most Catholic colleges are in these categories.) preferentially admitting male students whose qualifications are significantly inferior to those of their female classmates. This is done on the rather dubious theory that campus social life benefits from an evenly balanced sex ratio. If students' dating opportunities are considered adequate justification for abandoning merit-based admissions, it is hard to see why projected national workforce composition should not be too.
Tom Maher
4 years 10 months ago
Michael Brooks' is correct to ask:  Who decided that seeking  diversity by use of affirmative action should be public policy protected by the law and the Constitutiion?  A fair question to ask that deserves an answer.  The public should know what is going on, who decided the these policies and whom do these policies advantage and disadvantage and even harm?    And furhter Micahel Brooks rightly observes that diveristy by afffirmative action negatively impacts the United States overall since a democracy needs to maintain national unity and cqmmon sense of national purpose and consensus.  The motto on the seal of the United States since 1782  has been the Latin phrase "E pluribus unum" translated "From many, one".  Mr. Brooks is correct.  We do have and need to mainatin a robust expectation of a common American political culture based on equality for all including Ms. Fisher.   
Has the U.S.Constitution been repealed recently to allow for different or preferencial treatment of people based on race or has the Consitutionall protections of  due process and equal treatment under the law and equal protection under the law still in the Costitution from as far back as 1791 still in effect?  The short answer is that equality of each individual citizen a still very much a foundation of the U.S. Constitution and the U.S. system qf Government.

Let not kid ourselves preferencial treatment based on group idenity is obnoxious to Constitutional  principles of equality under the law and can not longer be justified, if it ever really could,  Affiranmtive action is very much at odds with everything  the Costitution stands for and does harm to people like Ms. Fisher who are unfarily disadvantaged  from being cosidered for admissiqn to a university that is publically funded ior recieves public funds.
Vince Killoran
4 years 10 months ago
College and university admissions officers consider region, legacy status, faculty family connections, athletic status, donar connections, feeder school applicants, and. . . race.  There is no such thing as a merit-only criteria (narrowly defined).

The debate would be more transparent and fruitful if we acknowledged this. 
C Walter Mattingly
4 years 10 months ago
Amy and Vince (#5 & 6) make salient points. Admission solely by merit is interrupted by more than racial considerations. Even there, universities in California have in the recent past been accused of discriminating against Asian in favor of Caucasian students. Evidently those Asians study too hard and perform too well on tests, resulting in a significant overrepresentation of Asians in the student population. And legacy students. Can anyone even imagine a Kennedy with a high school diploma not getting in to Harvard? Does Harvard really want to cut the guys some slack at the expense of female applicants because the guys have spent time chasing girls who weren't studying in the library in order to "even out" the sexual balance Harvard wants to attain?
The issue of Affirmative Action affecting other better qualified applicants is a legitimate one, but so are all these other preferential treatment issues that have little or nothing to do with talent or academic qualifications. 
Mike Brooks
4 years 10 months ago
"Diversity matters."

Yes, it does.  It emphasizes our cultural differences, encourages us to hold on to them, and demands that others accept/tolerate them.  It's counter productive to the advancement of our nation. Our greatest achievements occured when we, as a nation of recent immigrants from diverse places, viewed our country as a melting pot, not a stew.  

As new immigrants hold on to their cultures, our distinct American culture that was formed and has united us over the last 300 years becomes broken down into diverse parts.  We are no longer a nation, but a hodgepodge of cultures.  Affirmative action policies emphasize our cultural differences, treat us better or worse because of those differences.  I can't see what good comes of that, except that it makes happy the people who are resistant to change and to conforming to the culture in which they live.

Who decided that assimilation should be trumped by diversity?

I was told just the other day, from a friend that has foreign relatives attending college in the US, that foreign students are not entitled to receive financial aid (at least not at the university her relatives attend).  I can imagine the admission officers laughing as they use the word "diversity" as a euphemism for payers of full tuition.
Leo Cruz
4 years 10 months ago
  As  I had said earlier, beneficiaries of preferences regardless of the kind do not perform as will as those who were admitted without any kind of a preference whatsoever . Download the Arcidiacono study and you can see the results of preferences yourself be it a legacy or a racial preference  etc. This has long been understood by people in other coutries . It is only in this country that we try to pretend that is otherwise.
 The average white legacy admit at Duke was performing on the median 50th percentile on  the average at Duke, while  white non-legacy admits were performing on the average at Duke for a median 61st percentile . What that means is  that at Duke  half of the white legacy admits at Duke where scoring above the 50th percentile  and the other half below it  for an average  class at Duke.
 Certainly what is true at Princeton, Harvard and the other Ivies and at Stanford or any other university in the country . For blacks, the median percentile for them was in the 26th percentile. Although the study was done for 4 entering freshman classes back in the early 2000's, what it says is still very relevant today.
 I had always said in other blogs that preferences regardless of the kind has a nasty habit of benefiting the wealthy more than the poor be it a racial or legacy preference or any other kind of preference whatsoever . Take a look at the Arcidiacono study at Duke.30% of black freshman at Duke come from families making over $130k ( in today's dollars ) a year. For Hispanics or Latinos the figure was 45 or 46 % . Only 30% of black freshman at Duke come from families who are eligible for Pell grants , a measure of and a proxy for poverty. On the average, only 14% percent of  Ivy League freshman are eligible for Pell grants.
 The problem of preferences even continues after college.  White legacy admits at Fordham. Notre Dame, Boston College, Georgetown etc. are less likely to become doctors , less likely to have doctorates in science and engineering, less likely to pass licensing exams compared to their classmates who were admitted without any kind of a preference whatsoever. What is true at Fordham  or Georgetown is also certainly true at the Ivies and Stanford. Preferences of any kind brings out what is the worst  in human beings and what is vile and evil in human nature. A lie and a deceit can only be maintained by a continious underpinning of new lies to ensure its survival. And that is the intrinsic nature of evil isn't it ? Evil has an ever urgent obsession to be accepted as truth, it is part of its intrinsic nature. Always trying to become what it never will be. And it is utterly hopeless and powerless if it is not accepted as truth, that is why it is forever  engaged in an unending Sisyphean labor to achieve that goal. Many men unfortunately fall for it.
So  preferences in turn  spawns an industry. It comes in the form of parents forever trying to justify them, schools who practice it praising its dubious benefits at best  to society and fellow classmates of the beneficiaries, a set of believers in the professoriate   who write amici briefs ( friend of the court ) briefs that  for want of a better word , nothing but sheer "psychobabble ".
Marie Rehbein
4 years 10 months ago
Texas should want most, if not all, of its students who want a college education to get that education in Texas and then stay in Texas and make it a better place.  Not guaranteeing any but the top 10% a place in its state universities and colleges is so Texas-like.  Where I live anyone with A's and B's in high school who maintains A's and B's in college get their tuition paid out of lottery funds, and none of these students have their applications rejected.
Leo Cruz
4 years 10 months ago
Fordham is hardly an exemplar of concern for the poor. I understand that 17 % of its undergrads are eligible for Pell grants. Compare that to nearby CCNY in Harlem where 55  % are eligible for Pell grants. At Baruch  the percentage of  students eligible for Pell grants is 44 % according to the Washington Times.
 You can  combine poverty with diversity ( unless of course you believe that a school could only be diverse if there is a substantial number of blacks and Hispanics in it) and excellence at the same time. At Baruch and CCNY  for the freshman class last  year , there were more Asians than whites. For the fall 2012 entering freshman class at nearby Hunter College, 36.1 % will be Asian and 37.4 % will be white.
 According to the Baruch Common Data Set there were 269 students in the freshman class who scored above 700 in the Math portion of the SAT 9 E466666639be last year, Fordham had 273, but then again Baruch does not have the luxury of having 80% of its freshman class  coming out of New York City which Fordham does.
Is Ada Meloy claiming that the right  to practice legacy preferences, children of the faculty preferences, children of famous, race , athletic preferences , geographical preferences etc. is a form of academic freedom ? Unbelievable... that is simply beyond the pale...........
 If Fordham , Georgetown, Notre Dame (specially Notre Dame ) etc. wants to practice legacy preferences, then at least it should have the decency not to ask for a single cent of tax money, to do otherwise would be odious indeed.
Leo Cruz
4 years 10 months ago
@ tom blackburn

 It is not a question of " capability " , there are gazillions   of students who are capable of doing the work at  Harvard or Fordham who will never apply or will be denied admission  at either school. in 2910, there were 1200 students in the freshman class at Harvard who scored above 700 in the Math portion of the  SAT. There were about  400 students  in that year who scored between 600-700 in the Math portion of the SAT  or less. A typical Harvard class for the past 20 years has been about 1600-1700 students. Harvard claims it has a 97 % graduation rate. In the the 2010 entering freshman class at California State University Long Beach, there were slightly over 800 students who scored between 600-700 in the Math portion of the SAT.
So if these 800 freshman students from CSULB enrolled at Harvard , they will have at least a 94 % graduation rate , right ?

The rationales  therefore in these admission decisions at Harvard or any private school for that matter has more  to do with money than any other factor , right  ? Even the use of  race and geographical preferences has to do with  money, even if someone comes from Montana.
Leo Cruz
4 years 10 months ago
 I meant that 80 % of the freshman class at Fordham are not graduate of  New York City high schools, the complete opposite of Baruch College.
Leo Cruz
4 years 10 months ago

[email protected]  Blackburn,
Let me reiterate again that what is true at Duke is also true at Columbia, Penn,Brown or any Ivy school or any private school for that matter. At  Harvard over half of applicants with perfect SAT scores  are denied admission . So it has nothing to do with capability.

@ John Sullivan,

 The irony is that  race preferences has led to fewer black doctors, fewer blacks who apply to doctoral programs, fewer blacks who become engineers , fewer blacks who pass the USMLE, bar exams, CPA licensing exams etc.. Download the Richard Sanders study, if you do not believe me.
4 years 10 months ago
Even after you disaggregate and reaggregate the data in the studies, some salient facts remain: The students under consideration, of whatever color, are - so far as the admissions officers can tell - capable of doing the college work. Statistics are suggestive, but in individual lives - which is what admissions officers deal with - they are not definitive. If any assumedly qualified A gets in for swiftness of foot, alumniness of parent, whim of admissions office or color of parents, he gets assumedly qualified B's seat. But if assumedly qualified B is seated instead, A is out in the cold.

This argument always comes back to some unqualified or less qualified student allegedly taking a seat away from some more qualified student. At the moment of admission, nobody knows who is more qualified than whom. The "injustice" to the unadmitted is solely in the eye of the person who is arguing about who was admitted. I know that in modern America, we are supposed to discriminate only on the basis of money. We heard all about that a couple of weeks ago. But that is not what we are trying to do when we admit students.
4 years 10 months ago
Please define for me the criteria for "merit only" admissions. It doesn't exist, contrary to the myth that it was such until affirmative action was instituted. If you look at some objective criteria like SAT scores and grade point averages for example, you might suppose that those with the highest scores and grades would be admitted before all others. The reality is that if you happen to live in a state like Montana, you m,ight have a better chance of being admitted before an applicant from New York with better scores and grade point average to a highly competitive school because the school wants to have a student boby that represents a greater cross section of the country. Affirmative action levels the playing field for those minorities who have not had  historically the connections that many iothers have had for any number of reasons. I am, of course, saying only qualified students are part of  the equation. We are simply broadening the factors ( in this case race ) that have always been part of the admissions process.
C Walter Mattingly
4 years 10 months ago
John (18),
While I am not an expert admission councillor speaking on the subject of "merit," perhaps the laity can agree on some factors which are not properly "merit based" qualities?
Such as the applicant's genitalia, aristocratic vs common genes, geographic location of applicant, and yes, being penalized for possessing yellow skin tone and being advantaged for possessing another? We would be hard pressed to say these factors enter into merit-based considerations.
4 years 10 months ago
Wallter (19), your examples don't solve the problem. They illustrate it. If I eliminate what is NOT a properly merit based quality, do I have to then admit only those candidates that have none of those qualities? In Fordham's case, for example, if the kid from Montana mentioned in an earlier post and the kid from New York are otherwise equal as far as anyone can tell, the kid from New York gets in because I can't take into account the advantage the other students might get from going to school with someone as romantic as a Montanan. Is that it? That doesn't seem fair. Nor does it seem merit-based.
Jonathan Oliver
2 years 3 months ago
In a approaching essay in the new Indiana Journal of Law and community equal opportunity, I disagree that overturn Grutter would have alarming authorized penalty for public advanced education. In doing so, the Court would be repudiate a long and significant line of jurisprudence with respect to the freedom of universities — acting ahead the good faith educational judgment of their faculty — to establish for themselves how most excellent to take out their academic mission. See more:

Don't miss the best from America

Sign up for our Newsletter to get the Jesuit perspective on news, faith and culture.

The latest from america

A dry fountains is seen in St. Peter's Square at the Vatican on July 24. The Vatican says it is shutting off all its fountains, including those in St. Peter's Square, because of Italy's drought. (Alessandro Di Meo/ANSA via AP)
Meteorologists say spring 2017 was Italy's third-driest in some 60 years. The drought has put Rome at risk for drastic water rationing, a measure being considered later this week by authorities.
APJuly 24, 2017
The parents of Charlie Gard dropped their legal bid Monday to send him to the United States for an experimental treatment after new medical tests showed that the window of opportunity to help him had closed.
Art by Andrew Zbihlyj
Having so often petitioned a gracious God for the blessing of mercy, how could I deny it to others?
Mark SingelJuly 24, 2017
“To the Bone,” which recently premiered on Netflix, tells the story of 20-year-old Ellen (Lily Collins), who is living with anorexia nervosa.
Karen RossJuly 21, 2017