“In order to cultivate a set of leaders with legitimacy,” Justice Sandra Day O’Connor wrote for the court in Grutter v. Bollinger, the 2003 decision that recognized student body diversity as a compelling state interest, “it is necessary that the path to leadership be visibly open to talented and qualified individuals of every race and ethnicity.”
It’s an argument not just about what is good for individual students, but about what’s good for society. And it’s an important point for advocates of affirmative action in higher education to keep in mind after the U.S. Supreme Court announced this week that it will hear cases challenging affirmative action programs at Harvard and the University of North Carolina.
Under existing precedent, both universities have seen their policies, challenged by a group called Students for Fair Admission, affirmed by lower federal courts. But with a changed composition since the last time it considered and endorsed such programs, in 2016, the high court is now taking a fresh look.
I was vice president and general counsel at the University of Michigan when the Grutter and Gratz cases challenged affirmative action policies at our law school and for our undergraduates, respectively. Our strategy for defending our policies included emphasizing their real-world impact. Leaders from military, business, healthcare, educational, and religious communities filed briefs supporting our position and attesting to the importance of diverse leadership.
An amicus brief signed by dozens of retired top military leaders—including Gen. H. Norman Schwarzkopf and Adm. William J. Crowe Jr.—stated that “the military cannot achieve an officer corps that is both highly qualified and racially diverse unless the service academies and the ROTC used limited race-conscious recruiting and admissions policies.”
One legal analyst said that “may have been the most influential amicus brief in the history of the Supreme Court.”
Today, whatever the shifting winds of politics, leaders still know that diversity matters. CEOs recognize that for their companies to remain globally competitive in an increasingly diverse world, they require a workforce that draws from that diverse talent pool. Military leaders still know that they require a well-educated, well-trained, and diverse officer corps.
Indeed, the last several years have only underlined the importance of an inclusive, diverse society, in which everyone can see themselves represented in leadership roles. We recognize today, even more than in the past, how crucial it is for everyone to see opportunities to live the best version of the American dream.
Since the 1978 Bakke decision that first recognized the consideration of race and ethnicity as one factor among many in composing a diverse student body, the Supreme Court’s precedents have remained remarkably clear. While there have been differing interpretations of the constitutionally permissible ways to compose a diverse class, the ultimate goal of student body diversity has been consistently upheld. The court has repeatedly affirmed that compelling interest, both in the Michigan cases I worked on, and in the Fisher case from Texas in 2016, the last time it reviewed affirmative action in admission.
Today, as our demographics have changed, it is at least as compelling as it was in 2003—and probably even more so.
For all the pitched battles about affirmative action in higher education, today’s reality is that such preferences in admission is a factor at only a small number of America’s colleges and for a smaller number of America’s college students. Almost exclusively, those are the country’s most selective institutions, and even there, many fewer report considering race in admissions than did a decade ago.
But those few institutions represent the entry points to leadership roles in our society. A Justice O’Connor recognized in 2003, and Gen. Schwarzkopf and his colleagues did then, too, well-qualified young people of all backgrounds must have access to those pathways.
Together with attorneys representing Harvard and UNC, military, business, healthcare, educational, and religious leaders must once again say so.