By Mark Ladov, is counsel for the Justice Program of the Brennan Center for Justice at NYU School of Law.
The nation will be paying close attention to the Supreme Court’s review of the University of Texas’s admissions policies when it hears oral argument in Fisher v. University of Texas at Austin (UT) on October 10. Most of the conversation will focus, as it should, on what the Court has to say about race, education and opportunity in the twenty-first century. But Fisher is also important for what it will teach us about the Roberts Court’s faith in the rule of law and the principle of stare decisis (or the binding effect of past precedent).
UT’s admissions program considers the race of its applicants, but only alongside a variety of factors (including class, family history, work experience and individual talents) that shape a student’s identity and potential. As Joshua Civin explained well in this blog, the alternative so-called “race-neutral” approach would actually demean students’ individuality, by forcing them to censor references to race and culture out of their college applications.
It is well established that UT’s admissions policies are good for our multi-racial democracy, and wholly consistent with the Constitution’s equal protection clause. That is not just the opinion of over 70 amici briefs siding with the university. It is also the view of the Supreme Court, which addressed these exact issues less than a decade ago in Grutter v. Bollinger.
In Grutter, the Court upheld the University of Michigan Law School’s similarly holistic admissions policy. Justice O’Connor’s opinion enthusiastically affirmed principles first announced by Justice Powell in Regents of Univ. of Cal. v. Bakke(1978). She explained the importance of diversity for giving all students the best education possible, and for training a diverse set of leaders for America’s future.
UT has followed these instructions to the letter. The Fifth Circuit found exactly that when upholding the constitutionality of its admissions program. As my colleague Sidney Rosdeitcher points out, in a thorough review of the facts and law of this case, “it would be an assault on the principles underlying stare decisis” for the Supreme Court to reach beyond the issues raised in this case to overturn or limit Grutter.