By Dennis Parker, Director, ACLU Racial Justice Program & Courtney Bowie, Racial
Yesterday, the Supreme Court issued its long-awaited opinion in the university admissions case, Fisher v. University of Texas. In it, the Court left intact the important principle that universities have a compelling interest in a diverse student body, and that race can be one factor among many that universities may consider in a carefully crafted admissions program. Like decisions before it, the Court recognized that educational benefits flow from a diverse student body. However, the case was sent back to the lower court with instructions that the lower court more closely examine the means that the University of Texas used to achieve a diverse student body in order to assure that it complies with clearly-established criteria for the Constitutional use of race in admissions. Significantly, the Court did not strike down the University’s plan. It is our belief that Texas’s program will survive the lower court’s review.
This will not be the last challenge to university admissions programs. Future challenges will undoubtedly claim that only so-called race-neutral alternatives, such as the University of Texas’ “Top Ten Percent Plan” are permissible. But the goal of providing opportunities for a diverse group of students is too important to be compromised by accepting plans which do not provide true diversity. The “Top Ten” plan, which guarantees admission to anyone in the top ten percent of each Texas high school, illustrates some of the inherent difficulties in so called “non racial” plans. First, as pointed out by Justice Ginsburg in her dissent, plans such as the “Ten Percent Plan” can hardly be considered race- neutral since the success of the plan relies upon continued and persistent segregation in schools and housing. If high schools were not so racially segregated the “Ten Percent Plan” would not provide the automatic racial diversity that it currently does. It seems particularly ironic that a plan to increase diversity would be inextricably tethered to the continuation of segregation in housing and K-12 education. The “Ten Percent Plan” was also ineffective in creating the level of diversity that the University felt was necessary after conducting extensive studies. The holistic plan challenged in Texas was put in place because University of Texas studies showed that the “Ten Percent Plan” did not provide the level of diversity that would benefit all of the students in the University.
By affirming that diversity and its educational benefits are a compelling government interest permitting the use of race in a careful way, the decision permits us to pursue the imperative of equal educational opportunity for all of our citizens so that diversity becomes the norm, not the anomaly. Today, ensuring equal educational opportunity means universities must assess more than a student’s grade point average and SAT score when making admissions decisions to ensure that all students, including those in substandard housing, neighborhoods, and schools, can access our public universities.