Progress Despite the Supreme Court's Imprecise Position on Racial Preferences

Eighteen years ago, I was in the United States Supreme Court chambers when the Court announced its decision in another landmark class involving preferential racial classification. In Adarand Constructors, Inc. v. Peña, like in this week's Fisher v. University of Texas at Austin, the Supreme Court explored whether racial preference is constitutional. Specifically, the Adarand case dealt with whether financial incentives paid by the federal government for minority subcontractors were constitutional, while the Fisher case dealt with preferential admissions standards based on race.

In each case, the Court held that governmental benefits based on racial classifications must pass an exacting review by courts, which requires the practice to clear a high bar. This review, in both cases, was called "strict scrutiny."

I remember being uncertain in court that day about what the "strict scrutiny" doctrine might mean in practice, including its implications for higher education. Since then, the U.S. Supreme Court has repeatedly struggled with providing clear guidance about the question of benefits conferred on the basis of race.

The Fisher case did little new to help colleges and universities draw a line between the permissible and the impermissible. It renewed the mandate of the Adarand case that preferential treatment based on race be held to a very high and difficult standard. And the Fisher majority opinion did not overrule the Grutter v. Bollinger case decided 10 years ago involving preferential admissions to the University of Michigan Law School, where the Supreme Court stated that realizing the educational benefits of "student body diversity is a compelling state interest that can justify the use of race in university admissions."

As with the Grutter case, with Fisher the Court held that while diversity at universities might be a compelling state interest, colleges and universities must meet the "strict scrutiny" standard by proving the means the University relied upon to advance diversity were "narrowly tailored" to that goal. The University of Texas did not offer that proof, so the Supreme Court sent the case back to the Court of Appeals for further consideration. And one could argue that the court's statement that "strict scrutiny must not be strict in theory but feeble in fact" raised an already high bar even higher.

Why won't the court provide clearer guidance to colleges and universities? Why does the court describe the law in language that only lawyers could love: "strict scrutiny" and "narrowly tailored"? It is because the issue of racial preference is one of the most complex and difficult of our time. Most agree that the law should be color blind, not conferring benefits on the basis of race. But most would also agree that our law has never been color blind and the inequity in educational attainment and socioeconomic status is closely related to past discrimination. Should the law protect rigid equality, while ignoring the realities of history? Is the law rigid or dynamic? The public is split on this issue, as well as our judiciary. Fisher has demonstrated it is unlikely the court will provide needed clarity soon.

During the several decades of the Supreme Court's parsing (and reparsing) the law, higher education has made admirable progress on increasing minority student enrollment in higher education. According to the U.S. Census Bureau, between 1989 and 2009 the percentage of African Americans age 18 to 24 enrolled in college grew from 23.5% to 35.3%, with the percentage of young Hispanics increasing from 16.1% to 29.1%. Both percentages, however, have consistently lagged behind that for whites in the same age range, which stood at 45.7% in 2009.

In my view, these gains have been made not because of court cases, but because higher education now views the crafting of enrollment differently. Most colleges, including Augustana, have worked beyond the boundaries of racial preferences to increase broadly defined diversity, with the result of increasing racial diversity. Twenty years ago, Augustana focused its recruiting on what it considered the top 100 high schools in our region. Now we cast the net much more broadly for students, recognizing that quality college students come from all sorts of high schools. Twenty years ago, essays and letters of recommendation were optional, interviews were the exception and test scores were mandatory. Changes in each of these policies have made our admissions decisions more thoughtful and careful. And changes in these policies have had the ancillary benefit of helping us increase our diversity.

We also have evolved and broadened our views of what diversity means. Religious diversity is essential in a world in which religion divides. Augustana, a college with ecumenical Lutheran roots, is deliberate in welcoming students of all religions. Our world is becoming a global community, so our recruitment of international students is a priority. And socioeconomic diversity is critical in helping our students develop a passion for social justice. Generous endowments provided by alumni and the growth of federal financial aid have facilitated socioeconomic diversity that we could only have dreamed of 20 years ago. The result of more religious, global and socioeconomic diversity also has been more racial diversity.

Though we have not arrived at full racial equality in college attendance, we are making progress in spite of courts' refusal to provide clear guidelines. We are making progress because we are viewing diversity more broadly. And perhaps that is what the Supreme Court is hoping for when it stated in Fisher that student body diversity encompasses a "broad array of qualifications and characteristics of which racial or ethnic origin is but a single though important element." If so, it may well prove that the judiciary's refusal to provide clear guidelines has been an effective encouragement for higher education to view admissions criteria more holistically, to the benefit of us all.