How Much Diversity? Who Decides?

The Obama administration has weighed in on a key legal question in the wake of the Supreme Court's ruling in June that courts could not approve the consideration of race in admissions by colleges just because those institutions offered their "good faith."

The administration argued in a brief filed Friday that although the Supreme Court ruling requires courts to independently review whether colleges' policies are legitimate, those colleges are still entitled to "due regard" of their educational goals and how affirmative action fits into them. Specifically, the administration is calling for colleges to be granted some leeway in determining whether they have a "critical mass" of minority students necessary to promote the educational values of diversity.

That question could be crucial to the outcome of a challenge to the admissions policies of the University of Texas at Austin -- the case in which the administration filed the brief -- and to expected challenges to the consideration of race by many other colleges and universities.

The U.S. Court of Appeals for the Fifth Circuit, where the Texas case currently resides, need not accept the Obama administration's argument. But administration views can be influential and, at the very least, the brief outlines a rationale for preserving some deference to colleges in the wake of the Supreme Court's June ruling. (The Supreme Court sent the case back to the appeals court.)

The reason that the question of deference is so important is the nature of the challenge to the Texas policies. The plaintiffs in the case -- representing a woman who was rejected by UT-Austin -- argue that Texas has race-neutral ways of achieving diversity in its class. In the case of Texas, that approach involves the state's 10 percent plan, under which those in the top 10 percent of Texas high schools -- regardless of grades or test scores -- are assured admission to any public university in the state.

Because Texas has many high schools that are overwhelmingly made up of people of the same race or ethnicity, this plan means that UT will automatically be admitting some number of black and Latino applicants. While only a few states have so-called percent plans, many colleges and universities have the means -- without considering race in admissions -- to achieve some level of diversity. The question is who gets to decide how much diversity is sufficient -- and whether a college is making its consideration of race "narrowly tailored," as required by the Supreme Court.

The Obama administration's brief argues that -- within reason -- colleges should make that decision. The brief said that "a court should independently review a university’s determination that it has not yet achieved sufficient diversity in order to ensure that the determination is supported by concrete evidence and that the university has provided a reasoned, principled explanation of its need to increase student-body diversity. At the same time, the court should take account of a university’s experience and expertise in reviewing those aspects of the university’s reasoning that reflect its academic expertise and its judgments about its educational objectives," the brief says.

And this is particularly true, the brief argues, on the question of whether a university lacks sufficient diversity -- thus making the consideration of race necessary. The brief rejects the idea that a judge should look only at the percentage of minority students, but the brief acknowledges that "as a minority group's representation increases, the university will have more difficulty demonstrating that the educational benefits of diversity are still lacking."

But the brief says there are a variety of ways that colleges can demonstrate that they need more diversity -- and that these should be treated as legitimate measures. "For instance, a university might use student surveys to determine how many opportunities for cross-racial interaction are available or the degree to which minority students feel isolated. It might also compile data on the extent to which minority students are represented in student activities involving leadership, such as student government, or in other areas of student life," the brief says. "The university should then explain the conclusions it draws from this evidence and how the evidence demonstrates that the university is not yet providing the educational benefits of diversity to an extent consonant with its mission."

And it is the college, not the court, that should consider the appropriate metrics, the brief says.

"[In] investigating the extent to which it is providing the educational benefits of diversity, the university must determine what metrics it should use to evaluate the educational experience it is providing. That choice – to focus on the classroom experience, extracurricular activities, or other measures – generally reflects the university’s knowledge of how its students interact and learn on campus, as well as its judgment about what educational experiences are most important to its mission," the brief says. "The court should take that expertise into account. In addition, in evaluating the data, a university might choose to place more weight on certain pieces of evidence. For instance, it might place more emphasis on evidence that classroom interactions are lacking rather than on evidence that extracurricular interactions are plentiful, or vice versa. So long as the university has adequately explained how its analysis follows from its judgments about its educational objectives, a court considering all the evidence should take into account the university’s reasons for weighing the evidence as it did."

In the case of the University of Texas, the brief continues, UT has offered sound reasons -- related to its mission -- for using affirmative action beyond the 10 percent plan. While 17 percent of the student body around the time the university started to consider race was Latino, the state's population was 35 percent at that time. "In view of the significant – and growing – Hispanic proportion of the state’s population, as well as the trend toward less classroom diversity, the university concluded that it could not provide the degree of cross-racial interactions necessary to prepare its students for leadership in Texas," the brief says.

Edward Blum, one of the lawyers for the woman who sued the University of Texas, criticized the Justice Department brief. "In essence, DOJ’s amicus brief instructs the Fifth Circuit to ignore the Supreme Court’s recent opinion," he said via email.

"To argue as DOJ does in its brief that sufficient racial diversity on campus is not a 'number' but rather a ‘qualitative point’ provides university administrators with a green light to use racial classifications and preferences ad infinitum. This is not what the Supreme Court instructed."