The blog is pleased to have reactions to yesterday’s oral arguments from supporters of both sides.  Earlier, we posted reactions from Roger Clegg, a supporter of Abigail Fisher; this post contains reactions from Elise Boddie, the Acting Litigation Director of the NAACP Legal Defense and Educational Fund, Inc., which supported the university in Fisher

 At yesterday’s oral argument, the Justices grappled with the University of Texas’s articulation of what I will call “diversity within diversity,” referring to the consideration of distinctive characteristics of individuals within underrepresented minority groups.

On closer consideration, the University’s approach is fully consistent with the Supreme Court’s precedents, including Grutter v. Bollinger (2003) and Regents of the University of California v. Bakke (1978).

UT’s pursuit of the broadest forms of diversity, including diversity within, as well as among, racial groups, shows that its commitment is genuine and not driven simply by “racial balancing.”

UT is not just seeking students who have different racial backgrounds but also those who have had different experiences, in light of those backgrounds.  This is precisely the form of meaningful diversity that the Court embraced in Grutter.  As the Court later observed in Parents Involved in Community Schools v. Seattle School District No. 1 (2007), the strength of the admissions program upheld in Grutter was that it “focused on each applicant as an individual, and not simply as a member of a particular racial group.”  Holistic admissions policies like UT’s rest on the premise that individual qualifications, characteristics, and experiences are necessary to admit not only the best applicants but to assemble the best classes of students.

The irony here is that the University is being taken to task for adopting a modest approach, completely faithful to Grutter, that relies on a qualitative assessment of racial minorities as individual applicants.  Petitioner, by contrast, lumps African-American and Latino students enrolled through the Top Ten Percent Plan to argue that UT has achieved “enough” diversity and would impose a cap that is functionally indistinguishable from a quota, as Justice Sotomayor recognized.  But this runs strongly counter to the principle most forcefully articulated by the Court in Parents Involved, which rejected school integration policies that failed to recognize racial distinctions among minority groups.  If this principle applies among minority groups, why shouldn’t it apply within them?

For instance, the Court in the redistricting context in League of United Latin American Citizens v. Perry (2006) criticized Texas for ignoring the fact that Latino populations in different parts of the state have “divergent needs and interests.”  Similarly, Justice Powell recognized in Bakke that university admissions policies could consider “the variety of points of view, backgrounds, and experiences of blacks in the United States.”

The point here is that minorities are not fungible; and a basic staple of the Court’s equal protection cases since Bakke is the salience of the individual, rather than the group.  By allowing flexible, non-mechanical consideration of an applicant’s race during individualized review, UT acknowledges that not all students are the same.

Indeed, the son of an African-American doctor may have experiences that shape his identity in ways that are quite different from the son of a white doctor.  Just as the children of Justice Thurgood Marshall likely experienced life in ways quite different than the children of another Justice.

A black student who graduates in the top ten percent of a majority-black high school in the inner city of Houston may have a materially different experience and perspective than a black student who attends a mostly white private school in Waco and just misses the ten-percent cutoff.  The strength of UT’s policy – as the U.S. Solicitor General emphasized in his oral argument today – is that it creates room for the African-American champion fencer and a Latino who has mastered classical Greek, but who rank in the second decile of their respective graduating classes in a suburban school district or elite private school.

As a matter of common sense, it is probably fair to assume that these kinds of students have had a more (as Justice Alito put it) “privileged” upbringing and that they are the sons or daughters of parents who were able to create educational opportunities for their children that pale in comparison to those from low-income backgrounds.  And yet, while fair to assume, it also misses a salient point.

These students advance the University’s educational mission by helping to defeat racial stereotypes that all minorities have experiences and perspectives that are functionally indistinguishable.  The point of having broad diversity is to bring together people from different backgrounds so that they can experience each other as peers in a shared educational environment.  The problem is that racial stereotypes inhibit authentic cross-racial interactions. A white student who plays the cello might not appreciate his similarities to a black student who also plays the cello because he may, in the first instance, assume that blacks don’t play cellos, having never met a black cello player.

The point here is not about who plays the cello, but ultimately that the opportunity for students to learn from, live with, and work alongside students from widely different backgrounds helps students celebrate their differences and appreciate their similarities.  At bottom, diversity within diversity diminishes the salience of race because it advances the common-sense understanding that all people, including racial minorities, are unique in their own way.

Unfortunately, race still matters, not because it should, but because it does.

This holds even for “privileged” minorities who also bear the brunt of racial discrimination.  As employment studies indicate, African Americans with the exact same qualifications as white applicants are still less likely to be selected for jobs.  Higher-income minorities also still experience the indignities “driving while black,” the greater likelihood of being stopped by the police; and studies demonstrate that predatory lending has disproportionately affected minority communities, even controlling for socioeconomic status.

Finally, but just as importantly, we should not lose sight of the fact that the University of Texas does significant outreach to low-income African Americans and Latinos, as it should given the continuing barriers to educational opportunity that are a direct legacy of the state’s painful history of de jure segregation.  UT also admits low-income students in considerable numbers.  Indeed, socioeconomic criteria are an explicit part of its multi-factor admissions policy.

Expanding opportunity, including opportunity to low-income minority students, is a valuable and necessary educational objective.

Posted in Fisher v. University of Texas at Austin, Merits Cases

Recommended Citation: Elise Boddie, Commentary on Fisher: The importance of diversity within diversity, SCOTUSblog (Oct. 11, 2012, 10:50 AM),