When is diversity in public universities “good enough” and is it the job of the courts to determine when that optimal level of diversity within a university has been reached? That seemed to be the central focus of the conservative justices during oral argument in Fisher v. Texas.
At the center of the arguments was the Supreme Court’s last major ruling on affirmative action in college admissions—Grutter v. Bollinger. While there were assurances that nobody was trying to overrule Grutter outright, there was also plenty of evidence that the Court being asked to gut it. At a minimum, it seemed, based on questions from the conservative wing of the Court, the precedent would have to be rewritten with its central point—that a university can make some limited use of race until it achieves a “critical mass” in a diverse student body—likely cast aside.
If that happens, and the idea that “critical mass” in a diverse student body is no longer a compelling state interest and something that can justify the qualified use of race in admissions, then the Roberts Court will have succeeded in upending the intellectual and legal cornerstone of affirmative action policies. More importantly though, the decision would stand as a repudiation of the idea that states have a compelling interest in fostering and sustaining diverse environments in public institutions and that equality of educational opportunity is important enough for the courts to protect.