Leading Progressive Groups Join Amicus Brief In Support of University of Texas Admissions Policy

Sigma Pi Phi Fraternity Joins Amicus Brief of the Lawyers' Committee for Civil Rights Under Law, et al., in Fisher v. University of Texas at Austin

 

SUMMARY OF ARGUMENT

Less than ten years ago, this Court reaffirmed that attaining the benefits of diversity in higher education is a compelling state interest that can justify the use of race in university admissions.  Grutter v. Bollinger, 539 U.S. 306, 325 (2003) (endorsing “Justice Powell’s view” in Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 314-15 (1978)).  This Court recognized that, for decades, Justice Powell’s opinion in Bakke “has served as the touchstone for constitutional analysis of race-conscious admissions policies,” as “[p]ublic and private universities across the Nation have modeled their own admissions programs on [his] views on permissible race-conscious policies.”  Grutter, 539 U.S. at 323.  This Court endorsed Justice Powell’s view because diversity in education remains important “in a society, like our own, in which race unfortunately still matters.”  Id. at 333.  Because, as we explain below, race matters still in 2012, the reasoning and holdings of Bakke and Grutter remain sound and should govern this case. 

It is crucial that the Court’s consideration of this case be informed by a proper understanding of the nature of a university’s interest in diversity.  As this Court has recognized, the presence of a diverse student body on campus leads to a range of educational benefits, including improved learning outcomes and better preparation for work and citizenship.  Critically, however, these benefits will not necessarily be realized merely by the admission of certain numbers or percentages of broad categories of students.  Studies show that the benefits of diversity depend upon the character and frequency of interactions among students of diverse backgrounds.  This insight should guide the Court’s application of strict scrutiny to the admissions policies of the University of Texas (“UT”).

Because race and ethnicity continue to affect the experiences and perspectives of individuals in society, racial and ethnic diversity[1] is one important aspect of the diversity that promotes the best educational outcomes.  As Justice O’Connor observed in Grutter, “[j]ust as growing up in a particular region or having particular professional experiences is likely to affect an individual’s views, so too is one’s own, unique experience of being a racial minority in a society, like our own, in which race unfortunately still matters.”  Grutter v. Bollinger, 539 U.S. 306 (2003).  A student’s identity as a member of a particular racial group inevitably shapes, in various ways, the experiences and perspectives that student brings to both campus life and the classroom.  For that reason, admitting a student body that is racially diverse remains a compelling educational interest of a college or university.

But there are no magic numbers that, by themselves, produce diversity’s benefits.  Instead, meaningful interactions among students of different races are essential to—and indeed are the operative mechanism for—achieving diversity’s benefits.  This fact compels at least three conclusions: 

First, a university seeking to realize diversity’s benefits may consider not only the race or other characteristics of admitted students, but also how those students will contribute to the school’s courses, programs, and overall educational environment.  Social science research shows that meaningful interactions among students of different races in classrooms, departments, and campus life are key to achieving a university’s educational interests.  Thus, the “truly individualized consideration” that this Court deemed constitutionally required if race is to be considered at all, Grutter, 539 U.S. at 334—and which UT has implemented—is crucial to realization of diversity’s benefits.

Second, Petitioner’s assertion that the University’s compelling interest is necessarily satisfied by numbers alone—here, that it was satisfied when conglomerated “Hispanic and African-American enrollment” constituted “21.4% of the incoming freshman class,” Petr’s Br. 35—is misplaced.  Focusing exclusively on the numbers or percentages of students of color on campus without also permitting race to factor into individualized admissions decisions fails to protect the university’s interest in promoting meaningful interactions of students of different races inside and outside the classroom.  To merely aim to admit particular numbers of minority students, without also considering whether that is sufficient by itself to attain the educational benefits of diversity, “would amount to outright racial balancing,” which this Court has held is “patently unconstitutional.” Grutter, 539 U.S. at 331.

Third, the Court’s scrutiny of UT’s limited use of race in its admissions decisions must take into account that these decisions are made in an educational context.  See id. at 327 (“Context matters when reviewing race-based governmental action under the Equal Protection Clause.”)  A university’s admissions decisions intended to increase meaningful interaction among students of different backgrounds are educational judgments that are entitled to a measure of deference.  As Justice Frankfurter stated in Sweezy v. New Hampshire, the “four essential freedoms of a university” are: “to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study.” 354 U.S. 234, 263 (1957) (Frankfurter, J., concurring) (emphasis added).  Efforts to realize the benefits of racial diversity, without sacrificing other educational objectives of a university’s admissions policies (such as ensuring that admitted students are adequately prepared and otherwise diverse), require numerous judgments about both the students to be admitted and the nature of students’ interactions inside and outside the classroom.  These judgments require expertise in higher education that is clearly possessed by universities and is squarely within universities’ constitutional domain.  The courts should therefore accord some deference to a university’s judgments about both the need for racial diversity and the means that will achieve it without sacrificing other important educational interests.

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[1] Throughout the remainder of this brief, for the sake of brevity, references to “racial diversity” encompass both racial and ethnic diversity.