First Monday in October

Last Monday was the first Monday in October, the day each fall that the United States Supreme Court begins its term.  Last year at this time there was great anticipation in the college admissions world as the Court had on its docket a major affirmative action case, Fisher v. Texas. 

This year the Court will hear another case related to affirmative action, Schuette v. Coalition to Defend Affirmative Action.  Unlike Fisher, though, that case doesn’t have to do with affirmative action itself, but rather the constitutionality of a state (in this case Michigan) amending its constitution to prohibit race- or sex-based discrimination or preferential treatment in public university admissions when other forms of preferential treatment (such as legacy status) aren’t prohibited.  The oral arguments for that case are today, and I’ll post later in the week if I see any interesting admissions issues arising from the discussion before the Court.      

In admissions parlance, the Supreme Court put affirmative action on a Wait List in the Fisher decision. The Court declined to rule on the merits of the affirmative action program employed by the University of Texas and remanded the case back to a lower court.  What does that mean for the future of affirmative action?  It depends on whom you ask.  As is so often the case these days in American politics, both sides claimed victory.

Several weeks ago, Jocelyn Samuels from the Civil Rights Division of the Department of Justice and Catherine Lhamon from the Office of Civil Rights at the Department of Education sent a joint letter to college and university presidents.  The letter stated that the Fisher decision preserved the legal precedent that colleges have a compelling interest in a diverse student body and can advance that interest through their admissions programs.  The letter also affirmed that a 2011 Guidance on the Voluntary Use of Race to Achieve Diversity in Postsecondary Education statement from the two offices remains in effect, and included a list of Frequently Asked Questions about the Fisher case.

They may be alone in being that optimistic about the future of affirmative action in its present form.  Just yesterday I talked with the Dean of Admissions at a flagship public university who said that he is spending a lot of his time with university lawyers preparing a defense of the institution’s affirmative action program in anticipation that there will be new legal challenges in the wake of Fisher, and an article by Eric Hoover in yesterday’s Chronicle of Higher Education suggests that a number of colleges and universities are thinking about and preparing for a “race neutral” future.

With all due respect, I found the optimism in the letter unwarranted.  The Obama administration (I think it is fair to assume that the letter represents the administration view) is technically correct that the Fisher decision did not overturn affirmative action in its current form, but several justices made it clear in their opinions that they would have done so if asked.  In no way could Fisher have been interpreted as upholding the 2003 Grutter v. Bollinger decision, as the letter seems to suggest.  As Richard Kahlenberg points out in an op-ed in the Chronicle of Higher Education, four justices (Kennedy, Scalia, Thomas, Ginsberg) voted on different sides of the two cases.

At the very least, the Fisher decision places the burden of proof on those who want to use race-conscious approaches to achieve diversity.  Fisher was remanded back to the lower court because it had failed to exercise strict scrutiny, taking at face value the University of Texas’s claim that diversity was a compelling interest and that its affirmative action program (which operated to supplement the diversity produced by the state’s top 10% program) was necessary. Fisher will put the onus on institutions to demonstrate that diversity is a compelling goal, that any affirmative action program is narrowly tailored to achieve the goal, and that no race-neutral solution would be effective.  That’s a subtle, but significant, change.

I also wonder if Fisher will lead to a much-needed conversation about diversity.  I am not suggesting that we need to back away from a commitment to diversity but rather to clarify how and why diversity is important.  Is all diversity equally valuable?  One of the odd arguments made by counsel for the University of Texas during Fisher was that it needed to admit more underachieving middle class and wealthy students of color for the sake of diversity.   

Diversity in higher education has been so worshipped as a virtue that it wouldn’t be surprising to see some university rebrand itself as a 21^st century “Diversity”—think the Diversity of California or Brown Diversity.  But is diversity an intrinsic value, good for its own sake, or an instrumental value, good because it provides and supports a richer educational experience?  I would argue the latter. 

Fisher v. Texas  was the fourth major Supreme Court case dealing with affirmative action in college admissions, and odds are that it won’t be the last.  The issue defies easy solution because it brings into conflict two important fundamental principles. 

One is equality of opportunity.  In August we celebrated the 50^th anniversary of Martin Luther King’s “I Have a Dream” speech.  I have watched it multiple times, and I am always struck by two things.  One is how different the world was in 1963, from voting rights issues to segregated lodging facilities and even separate drinking fountains in the South.  The other is King’s genius in alerting the nation to the cognitive dissonance between the promises made in the Declaration of Independence and Constitution and the reality of racial discrimination.  We have made great strides, but do we have equality of opportunity today, and can we provide opportunity to higher education in a meaningful way without using racial preferences in admissions?

The other issue is fairness.  If giving preferences on account of race is wrong, isn’t it wrong even when done with noble intentions?  Does the end justify the means?  Is there any alternative?

I am much better at asking questions than I am at providing answers, but two things are clear to me.  It would be a mistake to keep affirmative action in its present form, and it would be a mistake to abolish affirmative action altogether.  By comparison, the current “discussion” between Republicans and Democrats over the debt ceiling and the government shutdown is a walk in the park (but not a National Park).