The Supreme Court Frees Colleges to Sensibly Pursue Diversity

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Twice in three years, the Supreme Court has wrestled with the nuances of the U. of Texas at Austin’s plan for molding a diverse campus-learning environment. Thursday’s decision is not a free pass for race-conscious admissions, but instead suggests that colleges have latitude to pursue student diversity in the interest of benefiting education.
June 24, 2016

In its second Fisher v. University of Texas at Austin decision (Fisher II) the Supreme Court on Thursday wisely reaffirmed the long-held legal principle that obtaining the educational benefits of a diverse student body is a compelling government interest. The court also signaled, during a time of deep unrest and debate regarding diversity and inclusion on college campuses nationwide, something salient and undeniable: Race matters.

The affirmation that American colleges and universities can consider race as one factor in a holistic admissions review is a seemingly obvious and essential concept, especially now. But the long march to the Supreme Court’s recent ruling showed that accomplishing it can be remarkably challenging. Witness the University of Texas at Austin. Twice now in three years, the Supreme Court has wrestled with the nuances of that institution’s "Texas plan" for molding a diverse campus-learning environment.

That’s quite a story. The bigger story, though, is that there is a Texas plan, that it is different from the Harvard plan, and that both are different from diversity efforts across the broad landscape of higher education, including those in states that ban race-conscious admissions, such as California and Michigan. There is a difference in what a particular college, in a particular place, and at a particular moment, means by "diversity" and how an individual institution goes about encouraging and enabling it.

The American Council on Education and 37 other associations representing the entire spectrum of higher education emphasized in an amicus brief to the Supreme Court in Fisher II that institutional pluralism is a hallmark of American higher education. The brief stressed that "the constitutionally protected freedom to assemble a diverse student body would amount to little if it did not include the freedom to define the diversity sought" in accordance with each institution’s mission and concept of education.

We said that the interest in student diversity is compelling because it is grounded in educational benefits and rooted in educational judgment. Three times before, in Bakke, Grutter, and as recently as 2013 in its Fisher I ruling, the Supreme Court recognized that when a college sets its educational goals — including a goal of attaining the educational benefits of a diverse student body — it makes an autonomous educational judgment that merits judicial regard.

It has now said so once again. Thursday’s majority opinion gives due deference to an institution in defining "intangible characteristics, like student body diversity, that are central to its identity and educational mission," and also recognizes that the University of Texas has met its burden.

Of course, the Fisher II ruling does not give colleges unfettered discretion. The court reminded us — as laid out in Fisher I — that institutions must be able to demonstrate that the methods chosen to attain an institution’s own conception of diversity are narrowly tailored to that goal. They must define their goals "by reference to the educational benefits that diversity is designed to produce" (Grutter) and be able to articulate a "reasoned, principled explanation" (Fisher I) for their academic decisions.

 In this regard, the Texas plan delivered. The majority opinion from Thursday’s ruling marches readers through the many steps and re-steps that the university took to arrive at its current practice of using the top-10-percent plan to admit roughly three-quarters of a freshman class in combination with an individualized or holistic review process for the remaining 25 percent of the students it admits. In the end, the court acknowledged that the university "articulated concrete and precise goals," and went through its required due diligence to ultimately conclude that "race-neutral programs had not achieved the University’s diversity goals, a conclusion supported by significant statistical and anecdotal evidence."

It ought not to be surprising that an institution would consider and simultaneously implement strategies that are race-conscious and race-neutral. Research conducted by ACE at the time that the Supreme Court took up Fisher II makes clear that institutions that consider race in admissions decisions use other race-conscious and race-neutral diversity strategies more often and find them more effective than institutions that use race-neutral strategies alone. In short, striving for a racially diverse student body is not an "either/or" but a "both/and" proposition. As the majority of justices in fact acknowledged, the evidence put forth by the University of Texas clearly demonstrates that race-neutral approaches alone proved insufficient to meet its diversity goals; a finding widely supported by scholarly research.

If the decision had gone the other way and somehow barred the consideration of race, additional harms would ensue beyond the inability of institutions to exercise their best judgment in accordance with each of their missions and as they seek to enroll a diverse class. An insistence on the sole use of race-neutral approaches risks something more: stifling a much-needed conversation about diversity generally — and race in particular — on our country’s campuses, with an accompanying potential to worsen inequities.

We need only look to events of the past many months where students nationwide have demanded not only an increase in the number of minority students on campuses, but also recognition of injustices and increased attention to the experiences of students of color. Moreover, institutions are responding. ACE’s survey of more than 550 college presidents released in March shows that since 2013, campuses have made racial climate a priority and are taking substantive, systemic action by way of increased support for diversity initiatives, student support services, cultural competency training, and public acknowledgment of a range of issues related to racial climate on campus. In this decision, the Supreme Court continued to enable these efforts in ways both legal and symbolic.

Now it is up to institutions to continue to do their part, and for the judiciary, legislators, and governors to continue to give them the latitude to go about their business. Colleges cannot claim to provide an excellent education if they send students into the world wearing blinders. Interaction among students from diverse backgrounds exposes each to a broad array of vantage points from which to view his or her own values.

Fortunately for the pursuit of diversity and for the educational benefits that flow from a diverse campus environment, the highest court in the land has made it clear that the ultimate educational judgment as how best to construct a diverse campus remains the purview of individual colleges and universities.

And yes, this is not a free pass. Nor should it be. It also is up to colleges that include race and ethnicity as one factor in admissions decisions to monitor their policies and practices to ensure they meet the high court’s test. That’s not a bad thing. The Fisher II decision recognizes the reality that the formula for educational excellence is ever-changing and almost always affected by context.

The takeaway for colleges from this decision is clear: If you feel as an institution you have gone about the pursuit of a diverse campus in a defensible, sensible way, and you believe in the value of a diverse learning community, you should feel very good today about what you can accomplish tomorrow.

Lorelle L. Espinosa is assistant vice president of the Center for Policy Research and Strategy, and Peter McDonough is vice president and general counsel, both at the American Council on Education.