Fisher v. University of Texas at Issue

(Washington, D.C.) The University of Texas and the United States made a compelling case before the U.S. Supreme Court today that a diverse student body is indispensible to its mission to educate the future leaders of Texas and the nation. A diverse campus, where students are exposed to people of different races, backgrounds and viewpoints, prepares them to be a part of an increasingly diverse society and workforce. Indeed, Fisher’s lawyer recognized the core value of diversity in education.

The U.S. Solicitor General stressed in his argument in support of the University of Texas that our nation has a vital interest in drawing its civilian and military leaders from a well-qualified and diverse pool of university graduates who have the skill-set necessary to govern and defend the United States.

UT’s admissions plan fully complies with Grutter v. Bollinger (2003) and Justice Powell’s opinion in Regents of the University of California v. Bakke (1978) and allows universities to consider race as one of many factors in college admissions. At the University of Texas, race is one of more than a dozen factors considered for applicants who are not automatically admitted because they were in the Top Ten Percent of their high school class. 

It takes four Justices to agree to hear a case, but it takes five Justices to make new law. Because Justice Kagan has recused herself, a 4-4 split on the Court will mean that the U.S. Court of Appeals for the Fifth Circuit’s decision will stand. The Fifth Circuit upheld the University of Texas’s admissions policy, noting that it was more narrowly tailored to achieve the compelling state interest in a diverse student body than the University of Michigan Law School policy that the Court upheld in Grutter.

As the University of Texas made clear, its admissions process addresses the key concerns that Justice Kennedy raised about the University of Michigan Law School’s admissions policy in Grutter, where he reaffirmed diversity as a compelling state interest. For instance, it is undisputed that the University of Texas does not have admissions quotas or other numerical targets and no points are assigned based upon race. Admissions officers do not track or tally how many students of color are being admitted during the admissions process. The district court in this case called race a “factor of a factor of a factor of a factor.” There is no question that the University of Texas’s consideration of race is more modest than the University of Michigan Law School admissions policy that the Court upheld in Grutter.     

Justice Kennedy’s questioning today suggested that he recognized that the modesty of the policy is a virtue, not a vice. The Justices’ vigorous questioning demonstrated their concern for rigorous evaluation to ensure that the admissions process adheres to the principles in Grutter. Many of the Justices also recognized the dangers of micromanaging complex admission schemes designed to prepare all students for effective citizenship.

The American dream should be within reach of every child.  The pathways to opportunity must be visibly open to everyone in our society.  Opening the pathways to leadership is particularly critical for African-American and Latino students who were effectively excluded from the University of Texas for much of its history and continue to be severely underrepresented on campus and in occupations that require a college degree, both in Texas and throughout the nation.

There has been an outpouring of support for the principle that diversity in college is critical: from major corporations, former military leaders, over 100 colleges and universities, religious organizations, diverse student organizations, labor unions, as well as Latino, and civil rights organizations, including Asian-American organizations and the NAACP Legal Defense Fund on behalf of the UT Black Student Alliance.  The NAACP Legal Defense Fund is proud to stand up for college diversity with students from the UT Black Student Alliance who traveled to Washington to be here on this important day. 

Despite all the progress our nation has made, we still have a long way to go. In response to those who pretend that we can achieve enough diversity while ignoring race, we need look no further than California to see what can happen when consideration of race is eliminated from college applications: UCLA and Berkeley now have 50% fewer Black students than before. 

Fisher’s arguments could do grave damage. If they are accepted by a majority of the Justices, the University of Texas would be able to continue to consider virtually any aspect of students’ backgrounds and experiences as part of its individualized, holistic admissions process — except for their race. Eliminating this one factor, among so many others, would demean students whose race has been an integral part of their experience growing up, as well as those whose race remains a vital part of their identity. Yet pretending that race plays no role in students’ construction of their own identities does not make it so.  As the Court recognized in Grutter, “Just as growing up in a particular region or having particular professional experiences is likely to affect an individual’s views, so too is one’s own, unique experience of being a racial minority in a society, like our own, in which race unfortunately still matters.”

We’ve made progress, but any claim of victory that ignores persisting barriers to equal educational opportunity, or erects barriers to college is premature. Let’s not move backwards, but continue to move our great country forward.