Intraracial Diversity: A Compelling State Interest After Fisher v. University of Texas

Last week, by a vote of 4-3, the Supreme Court decided Fisher v. University of Texas, upholding the University of Texas affirmative action plan. We filed an amicus brief in the case on behalf of six educational non-profits, supporting the University of Texas (UT) on the basis of its interest in “intraracial diversity,” i.e., its interest in promoting diversity within racial minority groups. Specifically, we argued that UT had an interest in admitting black and Latino students from urban, suburban, and rural backgrounds, and from diverse regions of the country, among other characteristics that make a minority group internally diverse. The five-Justice majority did not expressly address this argument, siding with UT on more general grounds, though the Court signaled a willingness to accept our reasoning on a different factual record. In dissent, however, Justice Alito pointedly cited our brief and attempted to rebuke it, calling the interest in intraracial diversity unfounded and even, tacitly, racist. Of course, it is no such thing. Properly understood, intraracial diversity is, as we argued, essential to dismantling racial stereotypes and bringing about meaningful integration in higher education, though like affirmative action more generally, it requires an approach to structural racism that does not suppress consideration of race, but which instead embraces it in all of its nuance and complexity.

Our concern about intraracial diversity arises from UT’s unusual admission policy, whereby all State schools must offer admission to any Texas public school student who finishes in the top ten percent of her graduating class. This “Top Ten Percent (TTP) Rule” accounts for over three quarters of UT’s undergraduate admissions. The remaining seats are filled using more typical admissions metrics, which account for a variety of academic and other factors, including (since 2005) race. It was this aspect of the admissions process that was the object of the petitioner’s constitutional challenge in Fisher. The historical genesis of the TTP Rule, however, is critical to understanding the Fisher decision: it came about when the Fifth Circuit, in Hopwood v. Texas, 78 F.3d 932 (5th Cir. 1996), struck down Texas’s affirmative action plan, which gave preference to racial minorities. The TTP Rule was an effort to preserve racial diversity by capitalizing on the severe segregation of Texas’s communities and public schools: by skimming off the top of public schools State-wide, the university could essentially replicate the demographic make-up of the State. As the Court recognized in Fisher, the TTP Rule was enacted with race “front and center stage.” Slip Op. at 17. And indeed, with increased publicity, outreach, and financial aid, the TTP Rule ultimately proved successful in restoring black and Latino enrollment at UT to near pre-Hopwood levels. In 2003, however, the Supreme Court upheld affirmative action in Grutter v. Bollinger, 539 U.S. 306, effectively overruling Hopwood, and UT decided to reintroduce express consideration of race in its holistic admissions, while leaving the TTP Rule intact for the vast majority of its admissions. Whether UT was permitted to consider race in even this limited way, or whether instead it was required to rely entirely on the TTP, was the underlying question in Fisher.

In our amicus brief to the Court, we argued that UT’s explicit consideration of race was not only permissible but was essential to vindicating its interest in diversity. The Court’s affirmative action cases make clear that, among the reasons racial diversity is a compelling State interest is that racially integrated student bodies serve to dismantle racial stereotypes and promote cross-racial understanding. Citing social science research and legal scholars in the fields of race and affirmative action, we argued that numerical diversity – that is, a threshold percentage of racial minority students – is insufficient to achieve these objectives on its own. To the contrary, admission of even large numbers of minority students can entrench stereotypes and solidify racial segregation on campus if the minority students are an internally homogenous group. As a result, we argued, achievement of the benefits of diversity in education requires enrollment of racial minority students who are not only reasonably numerous but are also different from one another in terms of such factors as geography, ethnic and national heritage, religion, language, educational background, socioeconomic status and culture, among others.

Without explicit consideration of race, we said, UT could not achieve the requisite intraracial diversity in its student body. Black and Latino students admitted under the TTP Rule, while certainly contributing to diversity on campus, make up a somewhat homogenous group. This is a natural result of the ways in which residential segregation – the mechanism by which the TTP serves to increase numerical diversity – overlaps with variables like socioeconomic status, education and employment level, culture, and more. Put another way, Black and Latino students admitted through the TTP reflect the dynamics of segregation in Texas’s geography and public education; thus, black and Latino students overwhelmingly live in concentrated areas,attend highly segregated “majority-minority schools” that have fewer resources and which studies suggest graduate students less prepared for college, have parents who are less educated than their white peers, and come from socio-economically depressed backgrounds. Thus, the record showed that the racial minority population admitted via the TTP alone was not sufficient to attain the benefits of diversity: racial minority students tended to cluster in the same concentrations and colleges and reported feelings of isolation, and racial tensions on campus were manifested in numerous incidents suggesting that far from achieving cross-racial understanding, stereotyping and segregation were the norm. In our brief to the Court, we stressed that the explicit consideration of race was the only way for UT to address this problem and to be certain that it is admitting black students from integrated high schools, or whose parents have professional degrees, for example.

The Fisher majority, written by Justice Kennedy and joined by Justices Breyer, Sotomayor, and Ginsburg, did not address this argument. Instead, the majority held more generally that UT had conducted sufficient investigation in the wake of the Grutter decision to justify renewed race-consciousness in its admission policy. But the majority also intimated that on a different factual record, it might have endorsed UT’s interest in intraracial diversity. In an unusual section that precedes the merits discussion, the majority opinion took pains to note that the petitioner had not challenged the TTP Rule but only UT’s use of race in the holistic approach, a consequence, the Court lamented, that “led to a record that is almost devoid of information about the students who secured admission to the University through the Plan [TTP]. The Court thus cannot know how students admitted solely based on their class rank differ in their contribution to diversity from students admitted through holistic review.” Slip Op. at 9 (emphasis added). Moreover, the Court noted that UT’s affirmative action policy begets a continuing obligation to collect data:

As the University examines this data, it should remain mindful that diversity takes many forms. Formalistic racial classifications may sometimes fail to capture diversity in all of its dimensions and, when used in a divisive manner, could undermine the educational benefits the University values.

Id. at 10-11. This passage, of course, resonates with the interest in intraracial diversity that we discussed.

The Fisher dissent – written by Justice Alito and joined by Justice Thomas and Chief Justice Roberts – addressed intraracial diversity, and our amicus submission, directly. As characterized by Justice Alito, “UT’s intraracial diversity rationale relies on the baseless assumption that there is something wrong with African-American and Hispanic students admitted through the Top Ten Percent Plan[.]” Dissent of Justice Alito, Slip Op. at 31. This assumption, Justice Alito said, “appear[s] to be based on the pernicious stereotype that the African-Americans and Hispanics admitted through the Top Ten Percent Plan only got in because they did not have to compete against very many whites and Asian-Americans.” Id. at 32. Moreover, the argument “turns the concept of affirmative action on its head,” insofar as it seems to favor use of race in admissions “to admit privileged minorities.” Id. at 32. Finally, according to Justice Alito, the evidence refutes that UT needs to use race in its holistic admissions to achieve intraracial diversity, because existing data suggests that racial minority students admitted via the TTP are not from depressed socioeconomic or educational backgrounds, and are not less capable of academic success than minority students admitted through holistic review. Id. at 32-35. In sum, Justice Alito concludes, the interest in intraracial diversity is little more than a “post hoc rationalization,” id. at 38, and an “insulting” one, at that, id. at 4. Id.

Justice Alito’s approach to intraracial diversity is, however, a classic example of a straw man argument – he mischaracterizes the idea so as to rebut it more easily. This starts with the rhetorical device of summarizing the argument as a criticism of minority students admitted through the TTP (assigning the “assumption that there is something wrong with [them]”). Of course, the interest in intraracial diversity is no insult – it is a call for representation of a broad array of diverse individuals within racial groups. To the extent that TTP admittees do not reflect all of the ways in which race can intersect with other characteristics, it does not demean them to acknowledge this fact. It is rather a statement that UT has not yet attained sufficient diversity within its racial minority population to attain the desired benefits.

Likewise, Justice Alito infers that our argument boils down to the racist assumption that black and Latino TTP admittees would not have gained entrance had they been forced to compete with whites. But that, obviously is not what we, UT or any amici argued at any point. Regardless, it is off base. The facts suggest that racially segregated, majority-minority schools in Texas, as elsewhere, exhibit an achievement gap relative to predominantly white schools. But no one is suggesting this is because of the race of the students involved. To the contrary, racially segregated majority-minority schools, in Texas and elsewhere, are empirically proven to be underfunded, and provided with poorer educational resources, even as they seek to educate children of lesser means and greater needs. In keeping with the well-established facts, our position was that anyone, of any race, will manifest an achievement gap if educated in the sort of environment that produces most of the black and Latino students admitted through the TTP Rule. Indeed, at its root, Justice Alito’s dissent challenges the fundamental notion, which has been accepted since Brown v. Board of Education, 347 U.S. 483 (1954), that separate is not and cannot be equal. We all know that to be true, as a matter of both law and fact.

The dissent is also mistaken in arguing that intraracial diversity would “turn affirmative action on its head” because it amount to declaring an interest in admitting privileged minorities. Of course, intraracial diversity is about far more than just socioeconomic status. But in any event, Justice Alito’s argument misunderstands both the history and purpose of affirmative action. “When affirmative action programs were first adopted,” Justice Alito declares, “it was for the purpose of helping the disadvantaged.” For this proposition, he cites Justice Powell’s landmark opinion in Regents of the University of California v. Bakke, 438 U.S. 265 (1978), the first decision authorizing affirmative action. Justice Powell would be surprised to see his opinion cited that way, for he wrote:

The Admissions Committee, with only a few places left to fill, might find itself forced to choose between A, the child of a successful black physician in an academic community with promise of superior academic performance, and B, a black who grew up in an inner-city ghetto of semi-literate parents whose academic achievement was lower but who had demonstrated energy and leadership as well as an apparently abiding interest in black power. If a good number of black students much like A but few like B had already been admitted, the Committee might prefer B; and vice versa. If C, a white student with extraordinary artistic talent, were also seeking one of the remaining places, his unique quality might give him an edge over both A and B. Thus, the critical criteria are often individual qualities or experience not dependent upon race but sometimes associated with it.

Bakke, 438 U.S. at 324 (Powell, J.). This excerpt, included in our submission to the Court, makes plain that far from turning affirmative action on its head, the idea of admitting minority students from a variety of backgrounds, including more privileged ones, has been central from the very start.

Furthermore, Justice Alito fails to grasp the point of admitting, for example, black and Latino students of higher socioeconomic status. As we argued in our brief, the presence of these students on campus is a counterpoint to pervasive stereotypes that such individuals are generally poor; the research we cited suggests that counterexamples of this sort help to break down such stereotypes, while the presence of wealthier black and Latino admittees can serve to connect whites with racial minority students who will have their socioeconomic backgrounds in common. Doing so will, in fact, “help[] the disadvantaged,” a point that Justice Alito misses entirely.

Finally, Justice Alito supplied his own data – much of which, as the majority noted, was not in the record, Slip Op. at 14 – to allege that TTP minority students do, in fact, exhibit the desired intraracial diversity. In fact, that data refutes his argument. For example, Justice Alito argues that the parents of TTP minority students are in fact well-educated. To make this claim, he cites UT enrollment data from 2008, the year that the Fisher petitioner applied, to show that higher percentages of black and Latino parents of TTP enrollees had attended high school, college, and/or graduate school than the average Texas adult. Dissent, Slip Op. at 33. But this is very obviously the wrong comparison. The question is not how educated the parents of black and Latino TTP students are relative to the State-wide average; it is how much education these parents have relative to the parents of black and Latino students admitted through UT’s holistic criteria. On this front, according to the same UT source cited by Justice Alito, the data is against him: 59% of black TTP parents gained a bachelor’s degree or higher, compared to 73% of parents of holistic admittees; and 42% of Latino parents of TTP admittees obtained at least a bachelor’s, while 66% of Latino parents of holistic admittees hit this mark. See UT Student Profile, Admitted Freshman Class of 2008, at 8, available at https://www.utexas.edu/vp/irla/Documents/2008%20Admitted%20Freshmen%20Profile%20Revised.pdf.

Justice Alito’s assertion regarding the wealth of TTP minority parents is similarly misguided. Here again, he compares the 2008 median household income for black and Latino parents of TTP admittees against the Texas average, this time finding them “[roughly] on par.” Dissent, Slip Op. at 33. But here, too, the relevant comparison should be to black and Latino parents of holistic admittees, and here, too, the statistics cut against his assertion: 12% of black parents of TTP admittees had a median household income under $20,000 per year, compared to 6% of black parents of holistic admittees; 25% of black TTP parents earned over $80,000, compared 37% for the holistic set. Similarly, 14% of Latino parents of TTP admittees brought in under $20,000, compared to 8%, and 27% earned over $80,000, while 47% of Latino parents of holistic admittees earned this much. UT Student Profile 2008, at 6.

Carefully considered, as our brief sought to do, the data simply do not show, as Justice Alito would have it, that TTP minority enrollees are no different from the holistic admittees along axes of significance for intraracial diversity. Ultimately, what emerges from the dissent’s collection of mischaracterizations, unfounded assumptions, and irrelevant data is little more than a profound discomfort with the very notion of intraracial diversity. This should not be surprising. Intraracial diversity requires discussion of race at the threshold so that the nuances and complexities of minority groups may be explored, identified, and included. Justice Alito and his fellow dissenters subscribe to the very opposite approach. They prefer a “colorblind Constitution,” one that approaches problems of entrenched racism with solutions that specifically eschew acknowledgement of race. As Chief Justice Roberts famously wrote in Parents Involved in Community Schools v. Seattle School District 1, in a majority opinion joined by Justice Alito, “[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” 551 U.S. 701, 748 (2007). This approach sounds logical, but as the case of Parents Involved itself shows, it is wrongheaded. Parents Involved was a case in which two different cities attempted to integrate their public school systems through explicit consideration of race – an approach the Court struck down, severely handicapping municipalities in their attempts to fight the vestiges of segregation in residential housing and public schools. Fittingly, Parents Involved thus preserved the very segregation in public schooling that made the TTP Rule possible as a “race-neutral” alternative to affirmative action.

This is no kind of solution. Structural racism, in education and elsewhere, cannot and need not be fixed through deliberate avoidance of race and use of the unfortunate proxies that result. Instead, our Court and Constitution should look to the approach embodied by the interest in intraracial diversity: frank and open discussion of our racial issues, beginning with a deeper understanding of race itself. In the affirmative action disputes of the future, universities should prepare themselves with the appropriate data and press the constitutional interest in intraracial diversity, and for the sake of integration and the educational benefits that follow, the Court should listen.

This piece was co-authored by Gibbons Fellow Avram Frey.