Affirmative Action Message Guidance: Discussing the Supreme Court s Ruling in Fisher v. UT

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1 Affirmative Action Message Guidance: Discussing the Supreme Court s Ruling in Fisher v. UT June 2013 On June 24 th, 2013, the U.S. Supreme Court issued its decision in Fisher v. University of Texas at Austin, concerning the constitutionality of the University of Texas at Austin s diversity admissions policy. The Court s ruling preserved the principle that universities may consider racial and ethnic diversity as one factor among many in a carefully crafted admissions policy. But because it found that the court below (the U.S. Court of Appeals for the 5 th Circuit) incorrectly applied the legal standard in deciding whether the University of Texas policy met those criteria, it sent the case back to the Court of Appeals for reconsideration. This memo offers communications advice to advocates, lawmakers, educators, business leaders, students, and others speaking or writing about the case in the media and in other forums. The recommendations are based on public opinion research, media analysis, and consultation with a broad range of educational and civil rights experts. Communications Goals Our shared communications goals in talking about this case include: Themes to Emphasize A Victory for Equal Opportunity and Our Nation s Future: We are pleased that a majority of the Court came down in favor of equal opportunity in higher education. The Court correctly preserved its past holding that a diverse learning environment benefits students, our workforce, and our nation. Expanding Opportunity: It s in everyone s interest to see that talented students from all backgrounds get a close look and a fair shot at overcoming obstacles to educational opportunity. The Benefits of Diversity: Learning with people from different backgrounds and perspectives benefits all students, our workforce, and our country as a whole. Explaining the ruling from our perspective, in order to help define the public s perception of the decision and preserve the broadest range of equal opportunity policies available. Promoting understanding and support for the benefits of diversity, as well as the importance and fairness of policies that promote equal opportunity in higher education and other sectors. Calling on universities, policymakers, business leaders and others to recommit to expanding opportunity and fostering diversity in the wake of the decision. Page 1 of 5

2 The Court s Ruling: The Court had previously ruled, in Grutter v. Bollinger, that an admissions policy that carefully considers racial and ethnic diversity as one of many individualized factors is constitutional. The University of Texas policy in Fisher is similar, except that it is utilized only to admit approximately 20-25% of the undergraduate class. Most students are enrolled under a state law (the Top Ten Percent Plan ), which requires the University to automatically admit Texas students in the top 10% of their high school class. This policy provides some racial and ethnic diversity (due in part to the hyper-segregation of Texas high schools), but falls far short of what experience shows is necessary for a diverse campus that yields benefits to all students. In its Fisher decision, the Court preserved the principle that universities may consider racial and ethnic diversity as one factor among many in a carefully crafted admissions policy. But because it found that the court below (the U.S. Court of Appeals for the 5 th Circuit) did not properly apply strict scrutiny (the standard the Court used in Grutter) in deciding whether the University of Texas policy met those criteria, it sent the case back to the Court of Appeals for reconsideration under the proper strict scrutiny analysis. The decision was 7-to-1. Justice Kagan recused herself from the case because she was involved in the litigation before joining the Supreme Court. As a result, only eight justices participated in the decision. Among other things, Justice Kennedy s opinion for the Court stated that: The attainment of a diverse student body serves values beyond race alone, including enhanced classroom dialogue and the lessening of racial isolation and stereotypes. The academic mission of a university is a special concern of the First Amendment. Part of the business of a university is to provide that atmosphere which is most conducive to speculation, experiment, and creation, and this in turn leads to the question of who may be admitted to study. (Internal cites and quotations omitted). Core Messaging: Our messaging around the decision should emphasize these core themes: This is a victory for equal opportunity and the future of our nation. We are pleased that a majority of the Court ruled in favor of equal opportunity in higher education. The Court correctly preserved its past holding that a diverse learning environment benefits students, our workforce, and the country as a whole. And it made clear that universities may consider racial and ethnic diversity as one factor in shaping a class of well-qualified students. In light of the Court s decision, America s educational, business, and other institutions should recommit to fair and thoughtful ways of fostering diverse participation. Today s decision is good news for all Americans. The University of Texas policy will be upheld. We believe that the University of Texas s admissions policy is a carefully crafted one that will ultimately be upheld by the Court of Appeals. Page 2 of 5

3 Universities, businesses, and other institutions should recommit to fostering diversity and expanding opportunity in the wake of the Court s decision. In the coming months, we ll be working with universities, policymakers, and the business community to see that qualified candidates from a diversity of backgrounds get a close look and a fair shot in the wake of this decision. Regarding Diversity and Equal Opportunity policies generally, we should emphasize: Expanding Opportunity: It s in everyone s interest to see that talented students from all backgrounds get a close look and a fair shot at overcoming obstacles to educational opportunity. The Benefits of Diversity: Learning with people from different backgrounds and perspectives benefits all students, our workforce, and our country as a whole. Our National Interest: Fostering educational diversity and greater opportunity is critical to our nation s future in a global economy and an increasingly interconnected world. Broad Support: Diversity policies, and the UT policy in particular, are supported by a broad crosssection of American society, including military leaders, major corporations, small business owners, educators, and students from all backgrounds. Additional Messages Today s decision is good news for all Americans. As the Court has frequently noted, providing a diverse learning environment benefits students, our workforce, and the country as a whole. The national interest demands that talented students from a variety of backgrounds get a close look and a fair chance at overcoming obstacles to higher education. The Court preserved the important principle that, within a group of qualified applicants, universities should be able to look at factors in addition to test scores to create a diverse learning environment that prepares students for the real world. Many students of color face extra obstacles to success, often without resources available to other students, and when students do well despite those obstacles, Universities should be able to offer them a chance to succeed. The Opportunity Agenda s Pre-Argument Message Memo (available at includes additional sample messages for talking about the Fisher case and diversity policies with a range of audiences. Highlights include: Expanding Opportunity: The university has created a fair process for expanding opportunity. Many minority students grow up facing multiple obstacles to educational opportunity, like under-funded schools with crumbling walls and outdated textbooks, or having to work at demanding jobs during high school to help their families make ends meet. They are less likely to be able to afford expensive classes to prepare for the SATs and less likely to know the ins and outs of the college admissions process. The university s approach makes it more likely that talented students working to overcome these challenges will get a fair shot at attending college. Fostering Diversity: A diverse learning environment that prepares students for the real world. Fair Page 3 of 5

4 and effective diversity policies let universities identify a diverse group of highly qualified students, and all students benefit when they can learn from classmates of different backgrounds. That education prepares students for today s diverse workplace and global economy, and to be leaders in the 21st century. I learned a lot by attending college with classmates from different races and backgrounds. I graduated much better prepared to be part of a modern workplace and the real world around me. As someone who runs a business, I need to be able to hire well qualified graduates of all backgrounds who are comfortable with a wide range of customers and can help my business compete in a global economy. Our National Interest: A diverse, well-educated generation of Americans is crucial to our success as a nation. Over 50 Fortune 100 and other successful businesses filed a friend-of-the-court brief explaining that diverse universities and workplaces are crucial to America s business success in a diverse, global marketplace. They said, among other things, that Americans who are educated in a diverse setting are better able to work productively with business partners, employees, and clients in the United States and around the world; and they are likely to generate a more positive work environment by decreasing incidents of discrimination and stereotyping. Addressing Questions When speaking with the press, remember that your goal is to get your message out, not to answer their question. In addressing potentially divisive questions from reporters and others, we typically recommend responding briefly to the specific question then pivoting back to the main theme that expanding opportunity and promoting diversity benefit all students and advance the national interest. Q. Do universities have to revise their policies in light of this decision? A: Whenever there s a Supreme Court decision on a higher education topic it s wise for universities to take a look at their policies to make sure they comply, and this case is no different. We are confident that universities across the country will continue to maintain thoughtful, lawful diversity policies after reviewing this decision. Q: Did the Court strike down UT s admissions plan? A: No. It restated the principle that universities may consider racial diversity as one factor among many in a narrowly tailored admissions plan, then sent the case back to the court below to consider whether UT s plan met that standard. We re confident that UT s plan will be upheld as a careful one that fosters an effective learning environment. Page 4 of 5

5 Q: Did the Court make it tougher for universities to use these policies? A: The standard has always been a tough one, and universities around the country have shown that they know how to meet that standard through thoughtful policies that foster a diverse learning environment. That will continue to be the case under the Court s Fisher ruling. Q: Does the Court s opinion create a new legal standard for colleges and universities seeking to implement diversity admissions programs? A: No. It provided further detail regarding the existing standard. Q: Don t these policies hurt Asian American students? A: "Asian Americans, like all students, benefit from an application process that considers all of each candidate's qualities, including factors such as language spoken at home. Getting rid of affirmative action would hurt many Asian American applicants who continue to face educational barriers. Asian Americans also benefit from affirmative action because it enables them to learn in diverse environments with students of different backgrounds and perspectives. These benefits extend beyond the school environment, so that students of all races who become leaders, employers, and co-workers are better equipped to lead, interact with, and value the contributions of people of all races. Indeed, Asian Americans are themselves an extremely diverse group, from a range of economic backgrounds, experiences, and national origins. And like all of us, they both contribute to and benefit from the national diversity that helps make America strong." Q. Why isn t socioeconomic class sufficient to achieve the diverse student body we all would like to see? A: Expanding opportunity to students of lower socioeconomic status is very important, and colleges do take that into account. We also know that students of color often face additional obstacles on top of poverty. An example is Carina Sanchez. Carina grew up in San Antonio, a child of immigrants, and started learning English when she got to kindergarten. No one in her family had gone to college and she didn t have access to the kinds of resources in her high school that a lot of students do. But she worked hard, did well in school, and her background, as well as the community service she did through her church, may have gotten her a second look from the University of Texas. She got in, graduated, and now she s in medical school on her way to being a doctor. When we talk about expanding opportunity, we are talking about students like Carina. Building the National Will to Expand Opportunity in America THE OPPORTUNITY AGENDA IS A PROJECT OF TIDES CENTER. ### 568 Broadway Suite 302 New York, NY Tel: Fax: contact@opportunityagenda.org Page 5 of 5