Supreme Court case on tap

Moderated by Tom Sabulis

There may be health care-like interest in the U.S. Supreme Court when it convenes in October to hear the case of a spurned college student who’s challenging race-based admissions at the University of Texas. In today’s commentary, leaders at Emory and Syracuse universities argue that schools need to consider the whole person and not forsake the education of an increasingly diverse work pool. A Mercer law professor writes that the next step toward constitutional color-blindness will be cause for celebration.

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By Earl Lewis and Nancy Cantor

The Supreme Court has agreed to hear yet another and strikingly similar case about affirmative action at a flagship public university (Fisher v. University of Texas) and many of us are having a Yogi Berra moment.

It’s déjà vu, all over again, considering the compelling interest of not leaving behind a growing proportion of the nation’s talent pool, particularly as we try to play catch up in science, technology, engineering and mathematics.

If you read the appellate decision in the Fisher case, it is clear that the lower court believes the University of Texas has met the standard established by the Supreme Court in Grutter v. Bollinger. Why then take this case other than to rule race an impermissible component of the diversity matrix?

For a long time universities have been told to review the entire person. Yet if narrow tailoring comes to mean excluding ethnic background, gender or race, colleges and universities will find ourselves in a curious social position.

Think of it, race is noted when you are born; it is registered when you die. Race is observed in close human interactions; its characteristics are collected by the state for a range of reasons. It could be that the only time race won’t be considered is when an admissions counselor makes a decision about how to shape a given college class. Is that in the nation’s interest as we attempt to compete on the world’s stage, where we need to tap the full range of human talent in the United States?

As history repeats itself, the stakes couldn’t be higher. In 2003, a distinguished group of retired military generals filed an amicus brief in Grutter v. Bollinger that those of us working on the case believe awakened the Court’s majority, and much of the nation, to the compelling national security interest of diversity.

Drawing on the lessons of Vietnam, in which a primarily white leadership attempted to lead an enlisted force largely composed of soldiers of color, the generals underlined with the court the importance of affirmative action to ensure a military leadership with legitimacy in the eyes of its troops. This was particularly compelling against the backdrop of a nation, less than two years after 9/11, deeply drained by old wars in Iraq and new engagements in Afghanistan and fearful of global terrorism.

Nearly a decade later, we are still a country drained by war and fearful of global competition. Only now we add economic war to the list as well as the social divisions and disparities it portends. We cannot lead in a global-knowledge economy, one largely driven by entrepreneurship and innovation in science and technology, without full participation of the increasingly diverse next generation of talent. We are losing the talent war by leaps and bounds; diversity means better science, more innovation, and healthier communities.

From our experiences, in Syracuse, N.Y., a prototypical rust-belt city, and in Atlanta, the citadel of the modern civil rights movement, there is no luxury to this argument – we simply can’t win the war for the social and economic health of our communities without this full participation. And make no mistake, we are in the midst of that war.

Even with affirmative action, the road forward is full of land mines. Pervasive zero-sum thinking divides and distracts us, pitting groups against groups, as we see in the inflamed rhetoric over immigration and The Dream Act. This comes at the time when we most need a collective 21st century barn-raising to turn around our failing schools and send our full talent pool on to college.

Higher education has a task in educating that diversity of talent, and must do it without assuming that those who for generations have lived in relative isolation from one another beyond our campuses will automatically cohere into a vibrant whole once invited onto our campuses. When we structure direct intergroup experiences, they do translate into sustained increases in civic agency, civic mindedness and mutual understanding that matter to prosperity going forward.

Private and public colleges and universities are partnering with our communities and we can’t legitimately do that if we are not as diverse as our neighbors. Leveraging diversity for democracy does work, so it is time that we work at it.

Earl Lewis is provost at Emory University. Nancy Cantor is chancellor of Syracuse University.

By David G. Oedel

The most-anticipated case of the Supreme Court’s next term is Abigail Fisher’s challenge to the racial preference system at the University of Texas. Fisher is a white college student who was denied admission to UT in 2008.

Before the Supreme Court ruled in 2003 in another prominent affirmative action case, Grutter v. Bollinger, UT had been effectively promoting diversity by automatically admitting the top 10 percent of Texas high school students – without explicitly considering race.

Then came Grutter in 2003, in which the Supreme Court allowed Michigan’s law school to use racial factors in admissions. Justice Sandra Day O’Connor for the court in Grutter warned that any need for racial consciousness in admissions was already waning. Nonetheless, UT later used the Grutter decision to add explicit racial considerations to supplement UT’s top-10-percent admissions system.

In the Supreme Court case coming up next term, Fisher is challenging the denial of her admission to UT. Fisher claims that other applicants to UT, on explicit racial diversity grounds, were admitted with credentials less than hers. Fisher must hope for a different result from the one Grutter got to her similar complaint back in 2003.

It’s not a long-shot for Fisher. The world is moving. Young people entering colleges are already more accepting of diversity than their older cohorts. The 2012 Pew poll on American values shows that 95 percent of young adults now approve of interracial dating, and that people younger than 50 have more accepting views of immigrants than do people 50 and older. Testing another measure of diversity consciousness, the Public Religion Research Institute in 2011 found that young adults approve of gay marriage by 20 percentage points more than older adults. The young have more personal peer experience of diversity.

According to the 2010 census, 80 percent of seniors are white, compared with only 54 percent of children. As diversity is more pervasive in general society, so the burden on educational institutions to promote diversity is lightened.

The legal world is changing too. In the Parents Involved case of 2007, Chief Justice John Roberts and Samuel Alito expressed significant skepticism about any use of racial factors, while limiting use of race in voluntary integration of charter schools. “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” Roberts wrote.

In the Fisher case, the court has many options. It could hold that diversity, though a compelling purpose, can be achieved effectively enough through non-racially-explicit means, such as the top-10-percent admissions program that is already in place at UT. The court could also rule that UT failed to comply with Grutter’s approach by adopting admissions targets akin to quotas. The court could overrule Grutter and end explicit affirmative action in higher education altogether. Or, of course, Fisher could lose her case, as she has already lost in the courts below.

On its face, Grutter was a temporary license to continue the offense that is suffered when any public official legally, explicitly considers any person’s race as a ground for official action. Justice O’Connor in Grutter warned that affirmative action might no longer be constitutionally defensible in 25 years. She may have over-estimated that time period, just as she might, in 2003, have over-estimated the time until the election of the first African-American president.

Ever since Justice John Marshall Harlan dissented in Plessy v. Ferguson, the notorious 1896 case that endorsed “separate but equal” and Jim Crow, we have been waiting for the promise of a truly color-blind constitution. Whether or not Abigail Fisher’s case will mark that event, the eventual arrival of constitutional color-blindness will be a cause for celebration, not despair.

David G. Oedel is a professor at Mercer University School of Law.