By Sherrilyn Ifill, president and director-counsel of the NAACP Legal Defense and Education Fund
The Supreme Court today endorsed the benefits of student-body diversity in colleges and universities and allowed the continued use of race-conscious admissions policies. The Court upheld the equal protection framework as laid out in Grutter, and did not strike down affirmative action. And it recognized that a diverse campus brings important benefits, “including enhanced classroom dialogue and the lessening of racial isolation and stereotypes.” This is a win for the principles of opportunity, diversity, and equality. Abigail Fisher’s legal team failed to prove that she was discriminated against.
However, the Court added a wrinkle by sharpening the standard that universities must meet, requiring colleges to show there were no “available, workable race-neutral” alternatives available to them. The Court sent the case back to the lower court to determine whether the University of Texas admissions policy meets this standard. In dissent, Justice Ginsburg stated that she would not have asked the court of appeals to take a “second look” because she believes that the University has already produced sufficient evidence that its policy is permissible. We are confident that the University of Texas will be able to meet this standard, as will other universities that have been responsibly using affirmative action. However, it will be critically important that the voices of students – those most affected by the policy – be fully heard at any re-hearing, and we will do everything possible to help make that happen.
The University of Texas admissions policy challenged by Fisher involved only a very modest consideration of race, in addition to race-neutral initiatives. Most of the University of Texas’s students are admitted through its Top Ten Percent Plan, which guarantees acceptance to Texas residents in the top ranks of their high school class. For the remainder of its applicants, the University undertakes an individualized “whole-file” review to assemble a class that is both exceptionally academically qualified and broadly diverse. This process allows the school to consider a student’s race along with multiple other criteria, such as essays, leadership qualities, extracurricular activities, awards, work experience, community service, family responsibilities, socio-economic status, and languages spoken in the home.
The full-file review process does not award any fixed points to racial minorities; nor does it involve illegal quotas or set aside designated admissions slots for minority students. The University of Texas’s admissions process is sufficiently flexible to take into consideration the racial background of any applicant, including white students, based on their unique backgrounds and experiences. As the Court of Appeals noted when it first upheld the University of Texas’s admissions policy, the University’s policy considers race even more modestly than the University of Michigan Law School policy that the Supreme Court previously upheld in Grutter. We are eager for the lower court to hear student voices, and we will be there to vigorously represent those students, when it hears the case again.
It is important to emphasize that a clear majority of the Justices did not challenge the Court’s precedents, including its seminal 2003 decision in Grutter, that colleges and universities have a compelling interest in creating diverse campuses. Getting into a high quality college impacts a person’s life well beyond their time in that school. Higher education plays a vital role in opening pathways to opportunity in today’s society. A broad coalition supported the critical importance of diversity in higher education in Fisher, including major corporations, former military leaders, over 100 colleges and universities, religious organizations, diverse student organizations, labor unions, as well as civil rights advocates, including Latino groups, Asian-American organizations, and the NAACP Legal Defense Fund, which filed a brief on behalf of the UT Black Student Alliance and African-American alumni of UT.
Our country must deliver on its promise to make the pathways of opportunity open to everyone. The promise of equal opportunity will ring hollow unless colleges and universities can ensure meaningful access to students of all races. We will not rest until a quality college education is within reach of every American child. Stark racial disparities in education continue to limit opportunity from elementary school through college. We must redouble efforts to develop creative policies that open and maintain access to higher education for all of our nation’s students. We must do everything possible within the Court’s guidelines to make diverse colleges the norm across the United States. The NAACP Legal Defense and Educational Fund is co-counsel in another case on the Court’s docket for next term about college diversity, but the legal questions before the Court are very different from this case.
There is little to no chance a ruling in Schuette v. Cantrell next year will tell colleges nationwide whether or not they can consider race on applications. Next term’s case does not ask the Court to weigh in on what types of diversity policies colleges and universities may adopt. Instead, Cantrell is about reaffirming the constitutional principle that our democratic processes must be open and accessible to all citizens. In that case, we urge the Court to declare Michigan’s ballot initiative, which bars the consideration of race in college admissions within the state, unconstitutional because it rigs Michigan’s political process against students and universities that support diversity.
In practice, the ballot initiative creates a racially selective, two-tiered political process. It forces supporters of racial diversity to overcome more formidable obstacles than those who advocate for consideration of legacy status, athletics, or virtually any other lawful factor in the college admissions process.
ABOUT LDF: Founded in 1940, the NAACP Legal Defense Fund (LDF) is the leading law firm fighting for racial justice in America. LDF has been a separate entity from the NAACP since 1957. For seven decades, LDF has worked to dismantle racial segregation and ensure educational opportunities at every level of education.
In its first two decades, LDF undertook a coordinated legal assault against officially enforced public school segregation. This campaign included LDF’s legal advocacy in the five cases that culminated in Brown v. Board of Education, the landmark Supreme Court decision in 1954 that has been described as “the most important American governmental act of any kind since the Emancipation Proclamation.”
LDF has been involved in Fisher v. University of Texas from the outset. On behalf of the UT Black Student Alliance and UT African-American alumni, LDF presented oral argument in Fisher before the U.S. Court of Appeals for the Fifth Circuit in support of the University’s admissions policy and filed an amicus brief with the U.S. Supreme Court. LDF’s efforts in Fisher carry forward the legacy of our past leaders, beginning with Thurgood Marshall, LDF’s first Director-Counsel and the first black Supreme Court Justice, whose advocacy in Sweatt v. Painter led to the desegregation of UT Austin Law School in 1950.
LDF is also involved in other U.S. Supreme Court cases: cases concerning the Voting Rights Act and the National Voter Registration Act, marriage equality, Michigan’s ban on affirmative action; and The Fair Housing Act.
Additional information on Fisher, including answers to frequently asked questions, a case overview and photos are available at www.naacpldf.org/case/fisher-v-texas