Federalism, Diversity, Equality, and Article III Judges: Geography, Identity, and Bias

F. Lesson Six: The Holding in Fisher Is Irrelevant to Diversity Goals This analysis does not change because of the Fisher Court's decision. The Fisher Court could have ruled for or against Fisher on the facts and kept the basic holding of Grutter intact, or it could have held that the Constitution prohibits states from considering race in their public university admissions processes. An affirmation of Grutter reinforces, from the Constitution's perspective, the reality that group racial identity--the Group Equality Principle is at the heart of diversity in public education. Moreover, it also reinforces the importance of federalism and state sovereignty because each state may choose whether or not to consider race in university admissions. But even if the Fisher Court had overruled Grutter and held that race cannot be considered in public university admissions processes, it would not mean that individual racial identity is no longer protected under the Constitution. The Individual Equality Principle would survive, in that it still would be unconstitutional to discriminate on account of race. Indeed, Fisher's suit was brought under a claim of racial discrimination through the current admissions policy, and probably would have been the Court's rationale for overruling Grutter if it had done so; to consider race in state university admissions even as one factor among many would be race discrimination. No state, then, would be able to identify as an "affirmative action" state as that phrase is commonly understood. But what would overruling Grutter do to the Group Equality Principle and federalism? Importantly, even if the Fisher Court had denied states the choice to consider race in their public school admissions processes, it is unlikely that diversity, including racial diversity, would have become irrelevant to public institutions. (203) It is worth emphasizing that the underlying rationale for the Grutter Court's decision is that a racially diverse class enriches the learning environment, in that students can share experiences gained from their racial identities. (204) Every student in the classroom has experiential bias based on race and myriad other factors. Naturally, classrooms have always been filled with students who have unique experiences to share with each other. Grutter's focus on including the experiences of racial minorities simply highlights the need, in a democracy that values equality and representation, to acknowledge that the experiential biases of these minorities are just as valuable as those of other students including white students--in enriching the learning environment. Grutter exposes this history and the hidden assumption behind excluding racial minorities from certain public universities: that only white students' experiences have ever mattered. Moreover, just as experiential bias has always formed the basis of the classroom learning environment, the importance of including the experiences of racial minorities (and thus striving to meet the Group Equality Principle) will not evaporate if Grutter is overruled, as it probably will be someday. State universities understand this reality. While a future Court might make it unconstitutional for a state to hold itself out or identify itself as an "affirmative action" state, all states have chosen to identify as "diversity" states. My research efforts did not find one state, through its public university or college websites, that did not value diversity. Indeed, go to any public college or university website and inevitably it will hold itself out as an institution that seeks a diverse student body. In fact, the University of Wisconsin-Madison recently admitted that it altered a photo to include racial minorities for the sole purpose of holding itself out as an institution that values racial diversity. (205) While a future Court decision might present challenges to the way in which diversity, especially racial diversity, is achieved, achieving diversity--or meeting the Group Equality Principle--is ostensibly a priority for all state universities. …