(AP/Pablo Martinez Monsivais)

Imagine a college whose orchestra was missing a bassoon player, or whose football team was down a running back. It would go without saying that this school could admit an applicant who plays the bassoon over a candidate who plays the French horn, even if that French horn player had slightly higher grades, or that its admissions officers could give preference to a high school’s star running back over its equally talented defensive lineman. The entire university community benefits from a full orchestra or a football team with a complete offensive lineup, and college admissions officers routinely take similar considerations into account when they think about how to build an incoming freshman class. Nine years ago, in its landmark Grutter v. Bollinger decision, the Supreme Court recognized that race is just like an orchestra. Contrary to the common view that affirmative action is a zero-sum game—in which each seat given to a minority must be taken from a white student—Grutter recognized that a university’s entire student body, white students included, benefit from a more diverse campus in ways that simply cannot be replicated in a homogenous community. As the Court explained, “‘classroom discussion is livelier, more spirited, and simply more enlightening and interesting’ when the students have ‘the greatest possible variety of backgrounds.’”

This commitment to diversity, however, is unlikely to survive the current Supreme Court term. This week, the justices will hear oral arguments in Fisher v. University of Texas, which challenges a racial diversity program that is in many respects identical to the one upheld in the Grutter decision. Four of those justices believe that racial justice cases are almost cartoonishly simple—in the words of an opinion that all four of them joined, “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” The Court’s fifth conservative, Justice Kennedy, has at times shown more rhetorical nuance than his fellow ideologues, but he rarely parts ways with them when they vote to strike down race-conscious laws. Kennedy dissented in Grutter.

At issue in Fisher is the University of Texas at Austin’s two-stage admissions process. The majority of UT’s students are admitted under a state law guaranteeing admission to any graduate of a Texas high school ranked in the top 10 percent of their class. The remaining slots are then filled by a more individualized selection process, where race, a low-income background, or similar factors give applicants a slight edge. Under longstanding precedents, such consideration of race is allowed, but only if the admissions policy is “narrowly tailored” to serve a “compelling state interest.”

Even Justice Kennedy admits that there are compelling reasons for a university to foster diversity through its admissions policy, and for good reason. The benefits of diversity continue long after an incoming college class graduates and enters the workforce. As a brief filed by 57 of the Fortune 100 companies explains, graduates educated in a diverse environment are “better equipped to understand a wider variety of consumer needs, including needs specific to particular groups, and thus to develop products and services that appeal to a variety of consumers and to market those offerings in appealing ways.”

Nor are the benefits of diversity limited to the private sector. For much of our nation’s history, enlisted United States service members of color served under an almost entirely white officer corps. Indeed, as recently as the early 1960s, just 1.6 percent of commissioned officers were African-American. It should go without saying that our military cannot thrive when its command structure resembles that of a plantation, and this racial divide between troops and their commanders bred widespread resentment in the enlisted ranks. In 1969 and 1970 alone, the Army uncovered more than 300 racial incidents resulting in the death of 71 soldiers. When enlisted personnel of color understand that there can be a place for them in the military’s highest ranks, they become better soldiers, sailors, airmen, and marines—and America’s security benefits as a result. Yet, because nearly half of the military’s officer corps earns their commission through ROTC programs on civilian colleges and universities, less diverse campuses means less diversity in the military’s officer corps as well. 

It is unlikely that five justices will explicitly turn their back on this need for diversity, but that does not mean that Texas’ admissions plan will survive. Recall that race-conscious policies must be “narrowly tailored” to achieve the objective of diversity. Opponents of UT’s admissions policies claim that merely by admitting the top 10 percent of graduates from Texas high schools—including those high schools that are almost entirely black or Latino—UT already achieves sufficient diversity without having to take any further action.

While it is true that Texas’ top 10 percent plan enables many students of color to attend the state’s flagship university—just under 1 in 5 UT students are minorities from the top tenth of their high school class—it is important to understand exactly why this is. Residential segregation remains the norm in much of the United States, so the top 10 percent plan primarily benefits minority students from schools that are overwhelmingly black or Latino. The diversity achieved by a 10 percent plan depends upon Texas maintaining unacceptable levels of high school segregation.

Additionally, schools serving communities of color are frequently under-resourced compared to those in (often much more affluent) white communities. For this reason, the 10 percent plan risks perpetuating racial stereotypes by admitting many minority students who, through no fault of their own, are less prepared for college than their white classmates.

So while the 10 percent plan can help create the appearance of diversity, it is unlikely to achieve many of the benefits of diversity, which depend upon students of varying backgrounds coming to view each other as equals. Nevertheless, it is likely that this pale shadow of a diversity plan will be all that survives the current Supreme Court term.

The justices should not delude themselves into thinking such a decision will come without a price. If UT loses Fisher, college graduates will enter the workforce less prepared to succeed in business. Their future employers will become less capable of competing in a global marketplace. And our military will be less equipped to handle the challenges of modern warfare.

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