Monday, September 30, 2013
Over the summer, scholars and advocates poured over the question of whether and how much the Court's opinion Fisher v. Texas changed the legality of affirmative action. According to the Departments of Education and Justice, not much has changed. In a "Dear Colleague" letter released Friday, they wrote:
On June 24, 2013, the U.S. Supreme Court announced its ruling in Fisher v. University of Texas at Austin. The Court preserved the well-established legal principle that colleges and universities have a compelling interest in achieving the educational benefits that flow from a racially and ethnically diverse student body and can lawfully pursue that interest in their admissions programs. The educational benefits of diversity, long recognized by the Court and affirmed in research and practice, include cross-racial understanding and dialogue, the reduction of racial isolation, and the breaking down of racial stereotypes.
The Departments of Education and Justice strongly support diversity in higher education. Racially diverse educational environments help to prepare students to succeed in our increasingly diverse nation. The future workforce of America must be able to transcend the boundaries of race, language, and culture as our economy becomes more globally interconnected.
This statement to be more than just rhetoric supporting theoretical diversity. The letter goes on to say that its pre-Fisher guidance on voluntary desegregation in K-12 and diversity in higher education remain in effect. Most important, many read Fisher to increase the burden on universities and colleges to justify their affirmative action programs under the narrowly tailored prong of strict scrutiny, but in a "Question and Answer" document that accompanied the letter, the Departments said Fisher did not even change the narrowly tailored prong. Rather, Fisher just emphasized what the law already was.
Kudos to the Departments for taking a stand on these key issues. This is something they had been reluctant and slow to do during Obama's first term. They waited for over three years before retracting the Bush administration's misleading and inaccurate guidance on Parents Involved in Community Schools v. Seattle's holding regarding voluntary integration. Now, they have positively acted in a matter of just months on Fisher. This should go a long way toward avoiding the uncertainty and fear among districts and universities that persisted following Parents Involved.