On October 10th, the Supreme Court heard oral arguments in a case contesting the use of race in college admissions brought by petitioner, Abigail Noel Fisher, against The University of Texas at Austin. This is the third time that affirmative action has been brought before the Court. The Court previously reviewed affirmative action in Regents of the University of California v. Bakke
(1978) and Gratz v. Bollinger
(2003) together with Grutter v. Bollinger
(2003). Having been involved inthe legal defense team that provided social science evidence in Gratz
University of Michigan, I read the court transcripts for the Fisher case with great interest. The lawyers from both sides claim that they are not challenging diversity as a compelling interest. Nor do they challenge the educational benefits of diversity in college, a fact consistently established by evidence gained through social science research (see, for example, the 2002 article I coauthored with Patricia Gurin, Eric Dey, and Gerald Gurin in 2002, “Diversity and Higher Education: Theory and Impact on Educational Outcomes
,” published in the Harvard Educational Review
). It was surprising that the petitioner’s lawyers did not claim to overrule Grutter (the Michigan graduate case where admissions involved a whole student review of individual applications). Justice Sotomayor proved she was aware of their intentions, however, when she said to Fisher’s counsel, “So you don't want to overrule Grutter, you just want to gut it.” That is, the intent was to “narrow the window” in which race can be used in admissions so much as to render the two previous decisions in Bakke
The University of Texas uses the race-neutral 10 percent plan for 75 percent of those they admit. Then, to achieve more diversity, the university uses a process similar to what is used at many selective colleges—individualized review for the remainder of students (who are evaluated on both academic and personal characteristics). That is, the majority of students are admitted if they rank in the top 10% of any high school in the state (with ranking determined by student grade point averages). While this policy increases representation of every state high school, there are many other details about a student’s background that are relevant to the university’s goals in identifying talent and leadership for a diverse state. These qualities can be recognized through a holistic admissions review. In most selective admissions processes, readers use holistic review of a file to attempt to understand the factors that make achievements more extraordinary. This helps them to identify students that demonstrate extraordinary leadership, talent in music, commitments to public service, and what UC Berkeley has called “pluck” or determination to overcome obstacles in order to succeed. Race is not a predominant factor in holistic selection in determining contributions to a campus and to the public good, but it does affect one’s circumstances, perspective, and commitments. It is hard to imagine a more constrained approach that will also achieve the educational benefits of diversity. A race-neutral procedure alone does not go far enough in achieving diversity, as shown by the low levels of diversity at The University of Texas prior to 2004 and at elite California institutions that only use race-neutral processes.
How an institution may go about achieving diversity in a student body remains in contention in this case and all previous cases. Much of the Court discussion centered on the climate of an institution, focusing on what constitutes a critical mass necessary to prevent racial isolation, stereotyping, and minority students from becoming spokespersons for their race in classrooms. The late John Payton, former President of the NAACP and the principal Washington-based lawyer representing the University of Michigan in the Grutter
case, foretold that this issue of critical mass would return to haunt the Court. The conservative justices in Fisher
pushed for a clearer definition of the term, but writing one could quickly lead to accusations of establishing a quota (which the Court already found unconstitutional in Bakke
A more nuanced response came from U.S. Solicitor General Donald Verrilli, when he told the Court that critical mass is not a number but rather is based on educational goals and needs within the institutional context. (Justice Scalia then joked that it should be called something else—a “cloud or something like that.”) Verrilli stated that it was up to institutions to substantiate the need to use race in admissions and that, as a particular institution became more diverse, it would be more difficult for it to rationalize the continued use of race as a factor. He further stated:
I think it is important, Your Honors, not just to the government, but to the country, that universities have the flexibility to shape their environments and their educational experience to make a reality of the principle that Justice Kennedy identified in Parents Involved [in Community Schools vs. Seattle Sch. Dist. No. 1 (2007)], that our strength comes from people of different races, different creeds, different cultures, uniting in a commitment to freedom, and to more a perfect union.
How much diversity is enough? The University of Texas conducted a climate study assessing the university’s environment and circumstances and found that underrepresented racial minority groups experienced racial isolation. Our research at the Higher Education Research Institute using the Diverse Learning Environments survey across institutions showed a significant relationship between student perceptions of exclusion and experiences of discrimination in low racial diversity environments (below 20%) when compared with moderate and high diversity campuses. The implication for institutions is that they must undertake regular assessments to understand if they are successfully reducing stereotyping and incidents of discrimination as they increase diversity in the student body. But it is also important to understand that knowledge of how to work together does not come naturally. Institutions have to foster the conditions that will achieve the educational benefits of diversity.
So how much diversity is enough? Because of the strength of research that links diversity with cognitive, social, and civic learning in higher education contexts, my response to that question is, how much learning do you want? How much racial understanding and engagement do you want in college and beyond? How much economic development and social mobility do you want in states with increasing minority populations? How skilled in working with a diverse population do you want leaders in government, the workforce, and the military to be? Educators need clear goals for and evidence about how diversity fits into their environment, educational practices, and commitment as institutions to advancing social progress.
Can there be too much diversity? Abigail Fisher’s counsel implied there is too much diversity at The University of Texas, and that sufficient diversity is achieved through race-neutral procedures—regardless of the educational goals of the institution or the potential benefit of diversity to society. The inequality in schools and in the assets of Black and Latina/o families in the middle class continues to limit the numbers of racial/ethnic groups in selective college environments. We know that affirmative action is not an issue at very diverse institutions with relatively low admissions requirements; limited resources have to be allocated differently to develop the talents of students who arrive at their doorsteps. That is, when there is a lot of diversity on a campus, it is also the case that there are too few resources and more first-generation and low-income students who have a lower probability of completing a degree.
When seats are limited at elite institutions, where there are many resources, privileged groups begin to think there is too much diversity. Abigail Fisher feels that “her spot” was taken by an undeserving minority student. This unchecked privilege associated with race obscures the fact that she was not admitted under race-neutral means, nor would she have been admitted under any supplemental review process because of a relatively unremarkable record of personal and academic accomplishment. The rationale that this supplemental process is unfair to unqualified white applicants seems like a very weak test case—but her qualifications were a mere side issue. We are so far from social and economic parity on race in education and the workplace that we have a lot of work to do before we will ever be able to answer the question, can there be too much diversity?
Source: Abigail Noel Fisherv. University of Texas at Austin, 2011
. Transcript downloaded October 10th, 2012.