By Joshua Civin is counsel to the director of litigation at the NAACP Legal Defense and Educational Fund, Inc. (LDF). In the U.S. Court of Appeals for the Fifth Circuit, Civin presented oral argument in support of UT’s race-conscious admissions policy on behalf of amici LDF and the Black Student Alliance at UT Austin (BSA). Last month, LDF, along with the BSA and the Black Ex-Students of Texas, filed one of the more than 70 amici briefs supporting UT in the Supreme Court.
Even more so today than when the Supreme Court upheld the University of Michigan Law School’s race-conscious admissions policy nine years ago in Grutter v. Bollinger, there is broad consensus that a diverse college experience better prepares students to participate in our nation’s civic life and our rapidly globalizing economy. This consensus is reflected by the wide spectrum of amicus filings supporting the University of Texas’s admissions program in Fisher v. the University of Texas at Austin (UT), one of the most widely discussed cases of the Court’s current term. UT’s supporters include, among many others, Colin Powell and thirty-six other high-ranking retired military officers; General Electric, American Express, Wal-Mart, and fifty-four other leading corporations; small businesses; prominent religious denominations; the United States; California and an array of other states; and the National League of Cities.
Indeed, even Abigail Fisher, the petitioner in this case, is not urging the Supreme Court to reconsider “the benefits of diversity for society as a whole, businesses, the military, or the civil service.” Distancing herself from the radical claims of her supporters, Fisher makes this important clarification in her reply brief.
Still, Fisher’s arguments could do grave damage. If they are accepted by a majority of the Justices, UT would be able to continue to consider virtually any aspect of students’ backgrounds and experiences as part of its individualized, holistic admissions process — except for their race. Eliminating this one factor, among so many others, would demean students whose race has been an integral part of their experience growing up, as well as those whose race remains a vital part of their identity. As Harvard Law School Dean Martha Minow and Yale Law School Dean Robert Post explain in their amicus brief supporting UT, it “would have the perverse effect of penalizing some applicants in the name of equal protection.”
Indeed, a purely race-neutral holistic admissions process might require admissions officials to censor all references to race from students’ essays, letters of reference, and every other aspect of their application. Yet pretending that race plays no role in students’ construction of their own identities does not make it so. As the Court recognized in Grutter, “Just 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.”
The benefits of UT’s holistic review are significant for students of all races. Like all colleges and universities, UT Austin considers high school grades to be important. They are the only factor considered by UT in admitting the overwhelming majority of its student body. Between 60 and 80 percent of UT’s first-year class is admitted through the Top Ten Percent Plan, enacted by the Texas legislature to guarantee admissions for all state residents ranked at the top of their high school graduating class.
But UT admissions officers also acknowledge what we all know to be true: Grades cannot tell the whole story. An admissions system that relies exclusively on class rank may overlook students who take intellectual risks by enrolling in demanding classes outside their comfort zone. Or prodigies who focus all their energy on a subject in which they excel. Or late bloomers like Albert Einstein.
Without consideration of race as one factor among many, however, it is difficult to ensure robust diversity among the intellectual risk-takers and other talented students admitted through UT’s holistic review process. UT learned this the hard way between 1997 and 2004 when it was prohibited from using race-conscious admissions, as a result of a court of appeals decision in Hopwood v. Texas, which was subsequently overruled by the Supreme Court in Grutter.
By diversifying the pool of non-Top Ten Percent students, race-conscious holistic review contributes to the vibrancy of the overall UT community. It also enhances the degree of diversity within and among underrepresented minority student communities.
This last point is particularly salient. To ensure continued progress in our nation’s ongoing efforts to chart a more racially inclusive future, universities must be free to create environments that foster respect for the distinctive contributions that each student offers. This depends in part on admitting different kinds of minority students — including both those at the top of their class and those who offer other unique contributions to further UT’s educational mission — in order to defeat racial stereotypes that all students of color think alike.
Especially for African-American and Latino students, racial isolation, tokenism, and the ever-present threat of racial stereotypes can profoundly alter college experiences in ways that have a lasting and, often damaging, impact. UT’s pursuit of broader diversity helps to mitigate these dangers by creating an educational environment that encourages both underrepresented minority students and their fellow students to develop and express their own unique identities as individuals.