Conversations on Jesuit Higher Education interviewed three presidents of Jesuit institutions—each of them legal scholars—to discuss the decision and how to move forward in its aftermath: Fordham President Tania Tetlow, Seattle University President Eduardo Peñalver, and College of the Holy Cross President Vincent Rougeau.

When asked about the advantages and disadvantages of focusing on class, not race, in developing diverse student communities, President Tetlow said:

“The advantages are that class is an issue that should have gotten more focus already. … The disadvantage is that class is not entirely a proxy for race… [T]he impact of racism is very real, even if you aren’t also economically deprived, and the statistics bear that out.”

Read more excerpts of the conversation and listen to the whole podcast here.

Today the Supreme Court has significantly restricted the ways that universities consider race in making holistic decisions about admission. As a university president—and a law professor who focused on the constitutional guarantee of equal protection—I am both disappointed and determined to find a path forward.

The debates over the use of race in admissions miss some fundamental facts. This is not about people skipping the line. When universities recruit a class, it is not possible for us to line students up in rank order of merit (as any of you who have ever made a subjective hiring decision understand). We know that a student who spends years in private tutoring to ace a standardized test is not necessarily smarter than the rest, which is why most of us have gone test-optional. We know that incoming GPAs from a variety of schools are not all created alike. We also understand that talent also comes in many forms, including the brilliant creativity of an artist; the fierce discipline of an athlete, or dancer, or soldier; and remarkable acts of leadership. Most of all, we know that students who have overcome tremendous obstacles in their life, from the death of a parent to growing up in rural poverty, come to us with critical resilience and grit.

Now, the Court gives us very mixed messages on whether we can consider one—and only one—obstacle, that of overcoming racism. That is not because a majority of the Court denies the ongoing impact of racism, an argument impossible to make when looking at empirical evidence. Studies show that identical resumes sent to potential employers with white- or non-white-sounding names get very different results. Doctors, on average, give less pain medicine to African-American patients. Black women are much more likely to die in childbirth and from heart attacks because of cultural and institutional biases. And children of color face a culture that continues to stereotype them and undermine their confidence.

Despite all of this evidence, the Court bans colleges from assuming that people of color have had to overcome the obstacle of racism. Instead, the majority opinion leaves open a window for an applicant to prove “how race affected his or her life, be it through discrimination, inspiration, or otherwise.” We in higher education will collectively struggle with that instruction and the burden it seems to put on individual students to prove what a majority of the Court seems so determined to ignore. But we will do our best.

Fordham was founded for the Irish and then Italian and other immigrants who were excluded and belittled in the 19th century. For almost two hundred years, Fordham has invested in the talent that would have been squandered by the world. We have proved the magnificent results. And we refuse to pull up the ladder behind us.

What does this mean for Fordham? We have been preparing for this moment all year. We will do everything allowed under the law to continue assembling a student body of the best and brightest, with every type of talent and experience. We will keep bringing together students from every corner of the country and the world, from every background, because we know our students learn as much from each other as they do from us. Fordham’s diversity, by race, class, geography, nationality, and background, is an enormous source of strength. And it is a fundamental expression of our religious mission, as Catholic universities across the country reminded the Court in an amicus brief.

And this is where I need everyone’s commitment—together we must work ever harder to create a community where every single one of us knows, at our core, that we belong here. We have no bubble over our campus to shelter us from an unjust world, but we have the power to do better.  The best way to solve terrible problems is not by pretending they do not exist. We solve problems by tackling them head-on, working harder, finding answers, and living our values.

All my best,

Tania Tetlow
President

“When we have groups missing [from campus], we know we’re missing some of our best and brightest… [diversity]is something our own students demand, but also is such a big part of their education.
“There’s something very particular about growing up in this country, dealing with the ways that you were underestimated, the educational opportunities you were denied—when a student comes to us having overcome all of that, and succeeding in a way that means they belong at Fordham, we’re even more eager for them to be here. And the idea that we’re supposed to ignore that, I just don’t understand.”
Tania Tetlow, President
Fordham University

Her interview, along with that of brothers German and Yariel Ortega—who are students at Fordham and Baruch College, CUNY, respectively—and David Wu, Baruch’s president, can be viewed here.

To get a sense of where the court might be heading in the next four years, we spoke with Robert Hume, PhD, professor of political science and chair of the political science department at Fordham.

Full transcript below

Patrick Verel: Now, the Supreme Court has been short a member since February and President Obama’s current choice for or replacement of Merrick Garland has not been granted a hearing by the Republican controlled Senate. Now that Obama is going to be succeeded by Trump, what chance do you give Garland of getting confirmed, and can you imagine a scenario where Obama declares the Senate has abandoned its role to “advise and consent” and simply appoints Garland to the bench?

Robert Hume: I think, unfortunately for Merrick Garland, there is about a 0% chance that he is going to end up on the U.S. Supreme Court at this point. If there was any chance that he could’ve gotten on the Supreme Court, it would be for Obama to make a recess appointment, but liberals, conservatives alike basically restricted the President’s use of recess appointment power a couple terms ago by saying that the Senate can determine for itself when it is in recess. All the republican controlled Senate needs to do is have pro forma sessions at the end of their regular session and there’s no chance to use the recess appointment powers.

There is some precedent for this. Before President Johnson tried to leave office in the late 1960s, he tried to appoint the successor for Earl Warren, so Earl Warren announced his retirement pretty late in Johnson’s term, I think with the hope that Johnson would replace him, and what President Johnson wanted to do is get Abe Fortas, but Congress wouldn’t have it. Johnson wasn’t able to do that and so the appointment ended up falling to Richard Nixon who appointed Warren Burger to the court.

Patrick Verel: On January 20, the Republican Party is going to control the President’s office and both houses of Congress, and potentially the tie-breaking vote in the Supreme Court. Is there a precedent for this type of situation?

Robert Hume: It is absolutely a pivotal time on the Supreme Court right now. What I could see is that the politics of these upcoming Supreme Court appointments could end up being similar to the very divisive, the very ugly politics that we saw in the 1980s when Reagan tried to put Robert Bork on the Supreme Court. I have every expectation that Anthony Kennedy, who is the current swing vote, who was appointed by a republican, so he was appointed by Reagan, and is 80 years old. I have every expectation that Kennedy is going to retire within the next few years. Because he is the swing vote, that’s going to end up being very contentious.

Patrick Verel: What future cases could be affected by a Trump Supreme Court appointee?

Robert Hume: Affirmative action is very vulnerable right now and the precedents are set up in such a way that if a five, four conservative majority decided to do away with affirmative action and education altogether they could do that. I think the Voting Rights Act is very vulnerable. The Shelby County case from a few terms ago ineffectively made the Voting Rights Act defunct, but I could see a five, four conservative Supreme Court majority putting the nail in the coffin of the Voting Rights Act. I think abortion is vulnerable, although there the politics is so contentious that I think even a five, four conservative majority is going to be cautious there in ways that maybe they wouldn’t be with affirmative action and voting rights. Also, I think if there was some hope after this election that we would see Citizens United overturned and a return to more aggressive campaign finance regulations, I think that hope is gone.