Casting Shadows: Fisher v. University of Texas and the Misplaced Fear of Too Much Diversity
Well, I thought that the whole purpose of affirmative action was to help students who come from underprivileged backgrounds, but you make a very different argument that I don't think I've ever seen before.
- Justice Alito
Justice Alito’s comment, made during the recent oral argument before the Supreme Court in Fisher, is troubling on many levels. Significantly, the comment suggests that Justice Alito has not recently re-read Bakke or Grutter—the two Supreme Court decisions that will likely control the outcome in Fisher. Both Bakke and Grutter acknowledge two distinct justifications for race-conscious admissions policies: remedial justifications meant to cure the effects of past discrimination (the justification that Justice Alito refers to) and educational excellence justifications meant to foster an optimal intellectual environment through the inclusion of diverse student viewpoints (the argument Justice Alito did not think he had “seen before”).
As it turns out, Justice Alito’s confusion represents a larger confusion on the Court about the relationship between remedial and educational excellence justifications for race-conscious admissions policies—a confusion clearly manifested at oral argument in the case. The Court’s decision in Fisher presents a critical opportunity to sort out this confusion and provide clear guidance for race-conscious admissions programs going forward.
72 Maryland L. Rev. Endnotes 1 (2012).