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Last week, the Supreme Court agreed to hear a case, Fisher v. The University of Texas, which may challenge the future of race-conscious admissions at our country’s colleges and universities. If the Court bars the use of race in admissions decisions, it threatens years of hard work by civil rights activists in the higher education field who fought to make college campuses more integrated, diverse and just.

The case being considered by the Court was filed by a young White woman named Abigail Fisher of Texas. Fisher failed to rank in the top 10 percent of her graduating high school class, which would have automatically earned her admission into the state’s public university system. As a result, she was placed in a separate pool of applicants who could be admitted through a complicated admissions process that allows race to be considered as a factor in admissions. When Fisher failed to be admitted to the University of Texas at Austin, the state’s flagship university, she concluded that she was rejected based on her race and sued the university in 2008.

Conservatives hope that this case will overturn the Court’s 2003 Grutter v. Bollinger ruling that allowed schools to use race as one of the factors in achieving racial diversity in their institutions. The Fisher case claims that the current admissions policy in Texas, which was explicitly formed after the 2003 ruling, is an unconstitutional form of “blatant racial balancing.” But such an interpretation of the role of race in admissions reveals a gross misunderstanding of the 2003 Supreme Court ruling and the role of diversity in higher education.

Grutter v. Bollinger

Grutter v. Bollinger was similarly filed by a White female Michigan resident who believed she had been rejected from the University of Michigan Law School based on her race. Ultimately, the Supreme Court’s decision ruled that the U.S. Constitution “does not prohibit the Law School’s narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body.” The central question, then, is how the Court decided that diversity was a “compelling interest” in the context of higher education.

Justice Sandra O’Connor delivered the opinion of the Court and cited the substantial benefits that educational diversity is designed to produce. O’Connor specifically highlighted numerous studies that “show student body diversity promotes learning outcomes … better prepares students for an increasingly diverse workforce and society, and better prepares them as professionals.”

Various sectors came forward as amici to make this argument. Major American businesses argued that today’s global marketplace requires skills that can only be developed through exposure to widely diverse people. The U.S. military argued that a highly qualified and racially diverse officer corps is essential to the military’s ability to provide national security. And legislators came forward to argue that the path to leadership must be open to individuals of every race and ethnicity to cultivate a set of leaders with legitimacy in the eyes of our citizenry.

What the 2003 ruling did allow was the law school’s admissions program to continue considering race as one factor among many, a point that is sadly lost on Fisher and the conservatives pushing for the ruling to be overturned during the Supreme Court’s fall docket. What the ruling did not allow was for race to be the defining feature in a student’s application, or to operate under a quota system that would impose a fixed number of admission slots that are reserved exclusively for certain racial or ethnic groups. Moreover, the ruling did not require schools to consider race, but it allowed them to—an important distinction that means schools that implement such admissions policies clearly agree that diversity is enough of a compelling interest to pursue in their classrooms.

A Political Moment

So why do Fisher and the opponents of affirmative action think the Court would rule differently this time around? Well, for one, the makeup of the Court has changed dramatically in the nine years since the Grutter ruling. Not only did O’Connor retire from the bench in 2006, but only two of the five justices in the majority on the Grutter decision—Justices Ruth Bader Ginsburg and Stephen G. Breyer—remain on the Court. Three of the four dissenters in 2003 are still serving—Justices Anthony M. Kennedy, Antonin Scalia, and Clarence Thomas. The new justices that have been appointed since then are Chief Justice John G. Roberts Jr. and Justices Samuel A. Alito Jr., Elena Kagan and Sonia Sotomayor, though Kagan recently recused herself from hearing the Fisher case because she worked on the issue while at the Justice Department as solicitor general. That makes a 5-3 decision in favor of Fisher a more likely possibility, given that Roberts, Alito, Thomas, Scalia and Kennedy have previously voted to restrict government programs that take account of race.

It is also likely that conservatives are trying to take advantage of an election year to make the tired argument that a Black incumbent president proves we’ve accomplished some sort of post-racial society that would do away with the need to consider race in admissions. The latest numbers on racial and ethnic disparities in college enrollment, however, quickly dispel that myth.

While students of color have made major strides in college enrollment rates since 2000, significant disparities still persist. As of 2011, 36 percent of Whites ages 25 to 29 had obtained at least a bachelor’s degree, while only 18 percent of African-Americans, 12 percent of Latinos, and 10 percent of American Indians had reached the same level of educational attainment.

We also know that, as of 2010, students of color did not complete high school at disproportionately high rates. While 12.3 percent of Whites have less than a high school diploma, the rate is 18.1 percent for African-Americans, 37.8 percent for Latinos, and 22.7 percent for American Indians and Alaska Natives. And though the rate is 14.6 percent for Asians overall, the rates spike when the data are disaggregated to measure Southeast Asian groups in particular: 33.3 percent of Cambodians, 35.4 percent of the Hmong, 32.5 percent of Laotian, and 30.2 percent of Vietnamese all have less than a high school diploma.

Even when income is taken into account, racial and ethnic disparities do not disappear. With disproportionate educational attainment numbers like these, it is clear we have not reached the ballyhooed post-racial utopia in higher education.

O’Connor argued in 2003 that affirmative action would not be necessary indefinitely as the country made progress toward a more just and inclusive educational system, but that it was likely to be needed for another 25 years. It should be incumbent on the plaintiffs in the Fisher case to prove why race should be ignored completely while we still see these glaring disparities—particularly in institutions that have chosen not to consider race a factor in admissions.

Why Diversity Matters

Ensuring diversity in our institutions of higher education is not only important to close these achievement gaps, but it is also, as the Grutter decision argued, a compelling interest for all those involved. While the long list of amici in 2003 made convincing arguments to retain the consideration of race in admissions, more recent social science evidence released since the ruling has only continued to make the argument for the benefits of educational diversity.

Specifically, research shows that the overall academic and social effects of increased racial diversity are likely to be positive, from enhanced impact on academic achievement to the improvement of near- and long-term intergroup relations.

What’s more, diversity has consistently been valued in higher education, particularly when it involves group characteristics that have nothing to do with an applicant’s race or ethnicity. Athletes, legacies, women and veterans are only a few examples of groups that have benefited from a holistic consideration of identities and backgrounds, instead of formulaic indexes made up of test scores and grade-point averages. When is the last time a student filed suit for being rejected from a university because he or she was raised in New York, as opposed to Nebraska?

Race and ethnic politics, however, never fails to incite ugly stereotypes about who is entitled to a first-rate education or who deserves the privilege of having their background considered as one of many admissions factors.

The Obama administration has been strong on the issue of diversity in education. At the end of 2011, the Education and Justice departments issued a joint guidance that told college administrators and K-12 school officials they could use race to achieve diversity in our nation’s schools. The guidelines sought to reverse the guidance schools had received from the Bush administration, which warned them that they would risk losing federal funding if they promoted diversity on campus. Instead, the Obama administration’s guidelines refer to the Grutter decision and underline the benefits diversity generates for all involved.


While the Court is expected to hear Fisher v. The University of Texas, remarkably, right around the November presidential election, we cannot afford to let affirmative action become another casualty of race-baiting, dog-whistle politics. As our country becomes more diverse, it is absolutely crucial that our institutions of higher education reflect this diversity. Our growing communities of color are made up of our future leaders, workers, taxpayers, homebuyers and voters, but, more important, both our White and non-White youth need to be exposed to diversity in education to learn how to compete effectively in an increasingly global economy.

Julie Ajinkya is a Policy Analyst for Progress 2050 at The Center for American Progress.

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