The second in a series of three about the use of race in affirmative action.
Building upon the rulings in Bakke and Grutter, the Fisher Court made it clear that
achieving a diverse student body is a compelling government interest and a
constitutionally permissible goal for a university. In analyzing a university’s
pursuit of diversity, the Court has given a liberal amount of deference to the
educational institution’s own judgment, though such decisions do need to be
within reason.[1] This deference includes not only recognizing
a need for increased diversity but also deciding what that diversity might look
like. Justice Thomas has argued that
such deference is “[c]ontrary to the very meaning” of strict scrutiny, though
the Fisher majority employs a more
boots-on-the-ground type viewpoint for determining needs.[2] Despite the fact that the Equal Protection
clause was created to overpower local bias for or against specific groups, the
allotment of deference is correct in this situation.[3] The educational needs of unrepresented
minorities are best understood when evaluated on the local level.
Photo by Ryan Tyler Smith on Flickr CC BY 2.0.
The closest the Court has come to a definition of educational diversity is prohibiting quota or percentage systems that reserve a certain number of seats for minority students.[4] Such statistical mandates amount to unconstitutional “racial balancing” and would thus fail to qualify as a compelling government interest under strict scrutiny.[5] This rejection of “racial balancing” means that the diversity a school desires must not be racial diversity but rather a more general diversity.[6] Cultivating a variety of viewpoints rather than a variety of skin tones accepts the reality that we live in an ethnically diverse country where the way someone looks does not translate into how that person thinks or feels.
The classification of diversity as a compelling government interest is based on the benefits that diversity creates in the educational process.[7] Diminished racial isolation and stereotypes, enhanced classroom dialogue, expanded viewpoints and opinions, and a fostering of tolerance are all effects that diversity can have on students.[8] A diverse educational environment can also benefit First Amendment free speech by developing an “atmosphere which is most conducive to speculation, experiment, and creation.”[9] The freedom to express oneself, even if artificially developed in the classroom laboratory, furthers the participatory-democracy ideals the Court has supported in the past.[10] That said, any benefit to free speech from diversity seems to be a mere positive side-effect and not a driving policy consideration.
[1] See Fisher, 133 S. Ct. at 2419.
[2] Id. at 2424 (Thomas, J., concurring).
[3] See id.at 2418.
[4] Grutter, 539 U.S. at 334.
[5] See id.
[6] See Bakke, 438 U.S. 265.
[7] See Fisher, 133 S. Ct. at 2418.
[8] Id.
[9] Sweezy v. New Hampshire, 354 U.S. 234, 263, (1957) (Frankfurter, J., concurring).
[10] See id.
