Casting with a Broader Net: Race-Neutral Diversity in Higher Education

The first in a series of three about the use of race in affirmative action.

In 1978 Justice Blackmun wrote “I suspect that it would be impossible to arrange an affirmative-action program in a racially neutral way and have it successful.”[1] He went on to reason that “[i]n order to get beyond racism, we must first take account of race. There is no other way.”[2] The Court’s ruling on college admissions affirmative action in Fisher v. University of Texas at Austin attempts to walk a nonexistent line between Justice Blackmun’s ideas.[3] By finding that race may only be considered after a good faith effort by the university to use other race-neutral options in achieving diversity, the Court accepts the benefit of educational diversity without recognizing the actual role race plays in our society. Echoing Justice Blackmun’s call that “[w]e cannot—we dare not—let the Equal Protection Clause perpetuate racial supremacy,” it is important to manage racial injustice instead of blindly ignoring it.[4] Pretending that diversity can be achieved without accepting race as an integral part of that diversity could render its pursuit moot.


Photo by matteo0702 on Flickr CC BY 2.0.

Affirmative Action in the Wake of Fisher

In Fisher v. University of Texas at Austin, a Caucasian applicant sued the University for violating her constitutional right to equal protection under the Fourteenth Amendment after being denied admission to the school.[5] The applicant claimed that her rejection resulted from the University’s use of race as an admissions “plus factor,” as well as the University’s commitment to achieving a “critical mass” of underrepresented minorities at the school.[6] The Court held that race is a factor that may be considered when attempting to create a diverse student body but universities are required to first make a good faith effort to exhaust other race-neutral options before considering an applicant’s race.[7] The case was subsequently remanded back to the lower court with the instruction to reevaluate the University’s use of race as an admissions factor.

Anytime government action involves racial classification, the Court views it as “inherently suspect.”[8] Based on the line of affirmative action cases that culminated in Fisher, strict scrutiny requires: (1) a compelling government interest and (2) a narrowly tailored means used to achieve that interest. As the Court has stated, when government action “touch[es] upon an individual’s race or ethnic background,” the action must be “precisely tailored to serve a compelling government interest.”[9] Typically, a compelling government interest is a goal or result that warrants government action, viewed in light of the government’s constitutional purpose and mandates.[10] A narrowly tailored means is a necessary and limited government action to achieve the goal with its constitutional power.[11] Under the broader umbrella of Fourteenth Amendment jurisprudence, the Court has reasoned that “distinctions between citizens solely because of their ancestry are by their very nature odious to a free people” and consequently subject to this higher standard of scrutiny.[12] Thus, a compelling government interest that addresses race in its implementation could pass the test if it furthers this underlying policy articulated by the Court.

Most recently, in Schuette v. Coalition to Defend Affirmative Action, the Court addressed the question of if a state can decide whether race consideration is allowable at all, even when it fits under Supreme Court precedent.[13] There, the Court upheld a Michigan ban on racial preference in college admissions. Proposal 2, which is now Art. 1 § 26 of the Michigan State Constitution, was adopted in reaction to the Court’s prior rulings in Gratz[14] and Grutter. [15] It should be noted that in upholding the ban, the focus was on a state’s right to decide racial questions in college affirmative action. As Justice Kennedy, writing for the 6-2 majority, put it, “This case is not about how the debate about racial preferences should be resolved. It is about who may resolve it.”[16]   

[1] Regents of University of California v. Bakke, 438 U.S. 265, 406 (1978) (Blackmun, J., concurring in part).

[2] Id.

[3] See Fisher v. University of Texas at Austin, 133 S. Ct. 2411 (2013).

[4] Bakke, 438 U.S. at 406.

[5] See Fisher, 133 S. Ct. 2411.

[6] See Id. at 2416.

[7] Id.

[8] Fullilove v. Klutznick, 448 U.S. 448, 523 (1980).

[9] Bakke, 438 U.S. at 299.

[10] See e.g. Fisher, 133 S. Ct. 2411.

[11] Id.

[12] Rice v. Cayetano, 528 U.S. 495, 517, (2000) (internal quotation marks omitted).

[13] 134 S.Ct. 1623 (2014).

[14] Gratz v. Bollinger, 539 U.S. 224 (2003).

[15] Grutter v. Bollinger, 539 U.S. 306 (2003).

[16] Schuette, 134 S.Ct. at 1638.