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Bret D. Asbury
Excertpted from: Bret D. Asbury, Loyalty, Diversity, and Colorblindness, 79 Tennessee Law Review 891 (Summer, 2012) (227 Footnotes)
On October 10, 2012, the Supreme Court heard oral argument on a challenge to the constitutionality of the University of Texas's consideration of race in undergraduate admissions. In the case on appeal, Fisher v. Texas, the Fifth Circuit upheld the legality of the University of Texas's narrow consideration of race as a factor in selecting some of the members of its entering class. Fisher represents the first instance in which the Court has grappled with the constitutionality of considering race in university admissions since 2003, when it upheld the University of Michigan Law School's narrow use of race-conscious admissions criteria in Grutter v. Today, for the first time in nearly a decade, the conflict between diversity and strict colorblindness in higher education is at the forefront of Supreme Court jurisprudence.
The Fifth Circuit's opinion in Fisher-like Grutter-represents a clear victory for advocates of race-conscious practices aimed at diversifying student populations. At the same time, Fisher stands as a setback for those who believe that strict colorblindness is not only desirable, but required under the Constitution. But not all is lost for advocates of strict colorblindness: Given the Supreme Court's ideological shift since 2003, current membership, and recent colorblindness jurisprudence, there is reason to believe that in deciding Fisher, it might revisit Grutter in order to reassess the constitutionality of the consideration of race in admissions.
This Article frames the sharply contrasting Fifth Circuit opinions in Fisher as being reflective of the currently predominant responses to the long-standing conflict between two important aspirations: diversity and colorblindness. It then argues that because pro-diversity norms are more deeply entrenched today-in education, the corporate world, and federal legislation-than in 2003, when Grutter was decided, the case for a limited privileging of race-consciousness aimed at increasing diversity over strict colorblindness is stronger now than it was nine years ago. Because efforts aimed at increasing diversity and strict colorblindness frequently cannot coexist, this Article argues, the Court must privilege one of these aspirations over the other in deciding Fisher. And, as shown below, an opinion privileging strict colorblindness has the potential to reverberate far beyond public university admissions and radically reshape the public and private sectors.
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The Fisher opinions authored by Judges Higginbotham and Garza offer divergent takes on the relationship between the often at-war societal aspirations of promoting diversity and colorblindness. In the abstract, even members of the Supreme Court's conservative wing recognize that at least some forms of diversity are, or can be, of value. Where conservatives and liberals tend to disagree most sharply is with respect to when, if ever, efforts aimed at increasing diversity may consider race as a criterion.
This Part argues that the diversity versus colorblindness debate is frequently a zero-sum game, meaning that it is at times impossible to promote diversity absent some consideration of race. It posits, borrowing from social science and humanities literature, that instances in which these two aspirations are at odds can be understood as being conflicts of loyalties. Loyalty literature shows that the resolution of conflicts between deeply held principles is always challenging and highly context-specific. Relying on this literature, this Part argues that, in light of the emerging national consensus in favor of diversity and in recognition of the extraordinary costs of strict colorblindness, when the two aspirations collide, entities that wish to privilege their loyalty to diversity should remain free to resolve the conflict by rejecting strict colorblindness.