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Supreme Court Race-Conscious Affirmative Action Case Important for Women Too

This blog is cross-posted at ACSBlog.

Yesterday, the Supreme Court agreed to hear Fisher v. University of Texas at Austin, a challenge to the affirmative action plan used by the University of Texas at Austin. Currently, the university allocates over 80 percent of its slots to students who graduate in the top ten percent of their public high school. For the final 20 percent, the university considers many factors, including grades, a personal essay, character, special talents, socio-economic circumstances, and race. As the Fifth Circuit Court of Appeals held last year in upholding the constitutionality of the plan, UT-Austin carefully crafted its plan to comply with the Supreme Court’s 2003 ruling in Grutter v. Bollinger, which held that consideration of race in public university admissions could properly forward the compelling interest in diversity in education.

One of the great promises of public education, at every level, is its potential to create a student body drawn from a wide variety of backgrounds and perspectives, enhancing the educational experience of all students. As the Supreme Court recognized in Grutter, “Numerous studies show that student body diversity promotes learning outcomes, and better prepares students for an increasingly diverse workforce and society, and better prepares them as professionals.”

Racial diversity within schools breaks down stereotypes that feed and perpetuate inequality. This is particularly important for women because many of the most poisonous racial stereotypes are also gender stereotypes—for example, that black women are promiscuous, that Asian women are subservient, or that Latina women are domestics. Membership within a diverse student body challenges gender stereotypes that harm women (and men) of color: when a student’s classrooms are full of numerous exceptions to every stereotypical rule, the rules lose their power to define people for that student. Moreover, racial diversity may also help break down gender stereotypes more broadly. Studies indicate that diverse schools encourage students to reject stereotypes in general, and to view individuals as individuals, rather than as representatives of particular group characteristics.

In Grutter, the Supreme Court set out a workable framework to guide public colleges and universities seeking to ensure the benefits of diversity for their students. Indeed, just two months ago, the Department of Justice and the Department of Education released joint guidance for how K-12 schools, colleges, and universities can voluntarily consider race to achieve diversity and avoid racial isolation, clarifying schools’ ability to undertake such efforts under Supreme Court precedent. As the guidance recognizes, schools around the country have taken and continue to take important steps to forward these goals in reliance on Supreme Court precedent.

Fisher will be the first time the Court has revisited the issue of race-conscious affirmative action in a public university since Grutter and the first time the current Court has addressed the question at all, though it will consider the case without Justice Kagan, who has recused herself. In measuring UT-Austin’s admission plan against the Constitution’s requirements, the Court should bear in mind the importance of diversity for breaking down invidious stereotypes, including gender stereotypes, and furthering educational achievement.

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The affirmative action case

The affirmative action case is important to the two white women who originally brought the suit. Also, affirmative action discriminates against Asian women.

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