In the immediate aftermath of the Supreme Court ruling in Fisher v. University of Texas at Austin, the decision has been understood as upholding the principles underlying affirmative action to create a diverse learning environment, opening the door to a still unknown level of judicial review of admissions practices at colleges and universities, and generally sidestepping the most fundamental questions about diversity and race in America. I want to suggest that this decision, despite its seeming moderation, should also serve as a call to action.
Alone among the justices, Clarence Thomas tied the Fisher case to the larger historical and societal context in which affirmative action was born, albeit in a way that I find to be profoundly wrong. In his passionate concurring opinion, Justice Thomas reminded us of what is at stake and of the need to offer a countervailing view. His provocative claim that there is "no principled distinction between the University's assertion that diversity yields educational benefits and the segregationists' assertion that segregation yielded those same benefits," deserves to be fully considered. For there is a very real principled distinction between the two, and it explains why colleges must be allowed to assemble diverse student bodies if we are to fulfill our educational mission in American society.
Ask any faculty member or administrator of an American college why we are committed to diversity, and the swift and certain reply will be that our students learn better in educational environments that confront them with people who are, or whom they perceive to be, different. Ask the same question of students, as I did at Columbia University's commencement in May, and they will tell you that encountering the diverse backgrounds and experiences of their talented classmates was among the most influential part of their experience on campus.
Probe further as to why, for this purpose, a racially diverse learning community is so valuable, and the answer will be that the past history and current reality of race in America continue to shape experiences and perspectives in powerful ways. To enter into this conversation about the importance of diversity is to contemplate our nation's unique history and its enduring effects on the present. It is a shame that the Supreme Court's deliberations and opinions—and, too often, our own discussions—seem no longer able to reflect on those historical and contemporary realities.
What, then, to make of Justice Thomas's argument that just as "no court today would accept the suggestion that segregation is permissible because historically black colleges produced Booker T. Washington, Thurgood Marshall, [and] Martin Luther King Jr.," it must also be the case that no court today should validate race-conscious admissions policies based on the rationale that they "produce better leaders"?
The first thing to say is that the formulation raises the question of whether the absence of diversity was the source of Washington's, Marshall's, and King's immense intellectual accomplishments.
But more to the point, for the past 35 years, since the Bakke decision held that the use of race in admissions was permissible to obtain the educational benefits of diversity so long as it was not in service of a quota system, society has sought to promote the intellectual growth and greater open-mindedness that occur when college students are exposed to classmates different from themselves. And since Brown v. Board of Education, in 1954, we have recognized the link between the way we educate our children and our struggle to overcome two centuries of slavery and another hundred years of Jim Crow laws. The nation has a forceful and undeniable interest in this objective. The suggestion that there is no difference between this multilayered societal commitment and the benefits to be derived from segregated environments is divorced from historical reality.
And our great system of higher education does not stand alone in this view. Virtually every institutional sector in the nation concurs with what higher education has done to assemble racially and culturally diverse enrollments. Reprising what they had done a decade earlier in Grutter v. Bollinger, the nation's leading corporations submitted an amicus brief in Fisher in support of the University of Texas. The companies identified the ability to hire graduates from diverse campus environments as a "business and economic imperative." Obviously, they will not be able to achieve their own goals if we do not produce graduates with the capacity to work across perceived and real divides within our institutions.
The altered legal landscape established by Fisher raises consequential questions about what is required by the Supreme Court when it holds that lower courts must be satisfied that "no workable race-neutral alternatives would produce the educational benefits of diversity." Will courts demand that race-neutral plans first be implemented and found wanting? (I suspect not.) What data must be analyzed by universities in reaching these judgments?
As the answers to those questions emerge, we will continue to hear the arguments made prominent in recent months by the critics of affirmative action. Chief among those is that we should dispense with race-conscious affirmative action in favor of preferences for the children of low-income families.
This, of course, is a false choice, because we should and do embrace both kinds of experiences and because, in truth, unless we pursue both independently we will not succeed in getting either one. At Columbia, as at most of our peer institutions today, admissions officers value a kaleidoscope of talents and nontraditional backgrounds, including those possessed by military veterans, artists, and individuals who have overcome the obstacles of geography or family circumstance. We are proud that we have been able to achieve high levels of both socioeconomic and racial diversity.
To be sure, at a time of growing inequality in our society, we all should acknowledge legitimate concerns about the high tuition costs and growing student debt that are responsible, at least in part, for the attention to socioeconomic diversity. But as both a graduate and a former president of a public university, I know that the source of increased tuition is not the pursuit of racial and cultural diversity, as some argue. It is, at least in large part, the fact that too many state governments have, for too long, slashed their investment in the public universities that are the ladders of opportunity in our society.
Two months from now, all of us in higher education will welcome new and returning students to our campuses. I suspect that the most common message we convey will be about the opportunities for learning that are available because of the diversity of the students and the faculty who will teach them.
But few, if any, of us will go on to describe the origins of that diversity and the social context in which it arose and exists today. Fewer still will explain the connection between the educational benefits we rightly extol and the legacies of racial and other injustices that mar our ability to say we live by the ideals we subscribe to in the Constitution. If we want our educational institutions to retain their distinctive and irreplaceable value to society, it is essential for us to make that connection.
With Fisher we have achieved a further cementing of Supreme Court precedents for the constitutionality of affirmative action in higher education. What we have not achieved, and need desperately to have, are more decisions with heart—conveying the essence of why it matters to the broader moral and social needs of the nation.
Correction (6/28/2013, 12:49 p.m.): This article originally misstated the nature of Justice Thomas's opinion in the Fisher case. It was a concurring opinion, not a dissenting opinion. The article has been updated to reflect this correction.