John Paul Schnapper-Casteras is Special Counsel for Appellate and Supreme Court Advocacy at the NAACP Legal Defense and Educational Fund in Washington, DC.
Next Term, as the Supreme Court reviews the constitutionality of the University of Texas’s admissions policies for the second time, it should reaffirm that diversity in higher education remains a compelling goal that benefits us all. While what is technically left for the Court to review in the latest iteration of Fisher v. University of Texas at Austin is highly fact-specific, the case is, in reality, part of a broader assault on the legitimacy of educational diversity writ large. The Justices should rebuff this attack, drawing upon existing precedent, including the Court’s decision in Fisher I, the full range of legal and practical arguments that will be submitted by the University and its amici, and an appreciation for the grave problems that would arise if the Court upended constitutional doctrine.
There is no reason to reinvent the wheel here. Years of legal precedent have sensibly set out how universities can consider and achieve student body diversity. In Fisher I, a seven-to-one majority declined to question the Court’s prior precedents (including its seminal 2003 decision in Grutter v. Bollinger) and continued to recognize that a diverse campus yields important benefits, “including enhanced classroom dialogue and the lessening of racial isolation and stereotypes.” Indeed, the reliance interests in these precedents have only heightened in recent years as businesses and universities invested further in hiring plans and admissions programs – and generations of college students grew up experiencing increasingly diverse college classrooms, roommates, and campuses – to great effect.
The wisdom and value of these precedents have become widely accepted. In Texas, the hybrid admissions plan at issue in this case was enacted with bipartisan support and defended by the state’s often-conservative elected officials. In Fisher I, a broad coalition in the Supreme Court stressed the critical importance of diversity in higher education. This coalition included: Fortune 100 corporations, former military leaders, over one hundred colleges and universities, religious organizations, student organizations, labor unions, and civil rights advocates including Asian-American, Latino, and African-American groups. The breadth of this alliance reflects the fact that the vast majority of Americans (sixty-nine percent as of 2013) agree that “a bigger, more diverse workforce will lead to more economic growth” and that “diverse workplaces and schools will help make American businesses more innovative and competitive.”
Conversely, to undermine diversity efforts at this moment in our nation’s history would be both tone-deaf and troubling. After a year that has resurfaced deep rifts along racial lines – in Ferguson, Baltimore, and beyond – no one can seriously deny the salience of race in our society, including of course, in young people’s educational opportunities and life experiences. Yet, despite the defining impact race still has, the ultimate goal of Fisher’s camp is to create a world in which institutions are free to consider the myriad factors that shape students’ experiences except race. This would impinge upon existing admissions processes in ways that are dire and disrespectful. For example, if an applicant wrote an admissions essay about volunteering for an Asian-American charity or growing up in Ferguson, then that essay would presumably have to be disregarded or discarded. Such an approach belittles the respect that each individual deserves and chills the very speech that universities otherwise invite. The signal would be: feel free to talk about any other type of experience or diversity – including gender, class, or nationality – but just not race. That cannot be right. In addition to willfully ignoring important parts of many applicants’ identities, that would have grave consequences for the mission and makeup of educational institutions. It would constrict our nation’s ability to help realize the promise of equal opportunity and impede efforts to reduce stark racial disparities.
It should also be noted that this case is a particularly distressing vehicle for such drastic change because it presents serious Article III standing problems that the Court has not yet squarely addressed (e.g., Fisher would not have been admitted to UT even if diversity had not been a factor). Moreover, Fisher’s preferred “race neutral alternative,” the Top Ten Percent plan, functions largely because Texas neighborhoods and schools remains deeply divided along racial lines. Indeed, just last Term, Justice Anthony Kennedy recognized that the vestiges of de jure residential segregation “remain today, intertwined with the country’s economic and social life,” and that anti-discrimination laws “must play an important part” in “moving the Nation toward a more integrated society.”
Instead, the Supreme Court should affirm once more the broader ways in which diversity matters for us all. When students encounter classmates from different backgrounds – racial, ethnic, and otherwise – and come to understand and respect each other as individuals, everyone is better for it. When our campuses and our country become more inclusive and integrated, we all benefit – an axiom that dates back to Brown v. Board of Education, in which NAACP LDF established that segregation hurts both racial minorities and also majority groups. These tenets of inclusion and equality should guide the Justices’ approach to Fisher II today.