A Worthwhile Argument

By Laurie Patton

I write at the start of a new semester to address an important and timely issue relating to diversity and inclusivity in higher education—one that is of great relevance for us here at Middlebury. Sometime before the end of June, the United States Supreme Court is likely to issue a decision in an important case now before it, Fisher vs. the University of Texas at Austin, which centers on the right of colleges and universities to include race as one factor in admissions decisions. Without question, the recent death of Supreme Court Justice Antonin Scalia, who consistently opposed the use of race as a factor in college admissions, has added to the uncertainly surrounding this case.

As it has in similar cases in the past, Middlebury joined other colleges and universities in filing an amicus curiae (“friend of the court”) brief in Fisher, spelling out our position that we “ have a compelling education interest in enrolling broadly diverse—including racially diverse—classes, and cannot do so without taking the diversity [we] strive for into account.” That compelling interest is about providing access for and welcoming students of color to our intellectual community.

In my inauguration address last fall, I spent some time exploring what it means to have a worthwhile argument. A worthwhile argument is an argument to establish a greater understanding and a better community. A worthwhile argument doesn’t undermine another person’s dignity and integrity. Middlebury’s participation in the Fisher case is just such an argument.

To understand Middlebury’s role, it’s important to understand the basic details of the Fisher case, as it’s commonly known. It’s the latest in a long line of civil lawsuits centering on affirmative action to reach the Supreme Court, stretching back to 1978’s Regents of the University of California vs. Bakke, in which the court barred the use of racial quotas. Fisher centers on the constitutionality of the University of Texas at Austin’s admission policies, which allow the consideration of race as one of several “plus” factors in a small percentage of admission decisions. A young white woman, Abigail Fisher, first filed the case in 2009 after she was denied entrance to UT Austin in favor, she says, of a student of color with a less qualified academic record. The Project on Fair Representation, a legal defense fund active in attempts to overturn race-based laws, assembled her legal team.

Fisher’s case moved through lower courts, which upheld the university’s admission policies. The Supreme Court first heard the case in 2012 and sent it back to the Fifth Circuit Court of Appeals for further consideration. That court again ruled in favor of the University of Texas, and again, Fisher again appealed to the Supreme Court.

Many comments made in December in the argument of this case were deeply troubling not only to me personally but for institutions of higher learning as well. When Gregory Garre, the University of Texas’s lawyer, suggested that diversity would plummet if universities are not permitted to consider race in their admission decisions, Scalia invoked the highly disputed “mismatch theory,” suggesting that: “There are those who contend that it does not benefit African Americans to get them into the University of Texas where they do not do well, as opposed to having them go to a less advanced school, a . . . slower track school where they do well. I’m just not impressed by the fact that the University of Texas may have fewer. Maybe it ought to have fewer.”

Chief Justice John Roberts’ remarks were equally and sorrowfully disturbing. “What unique perspective does a black student bring to a class in physics?” he asked. (For a brilliant reply, I encourage you to read the open letter that thousands of scientists sent to the Supreme Court: https://www.inverse.com/article/9237-thousands-of-scientists-sent-this-open-letter-to-the-supreme-court-about-diversity)

Educator and leader W.E.B. DuBois wrote more than 100 years ago that “The function of the university is …to be the organ of that fine adjustment between real life and the growing knowledge of life, an adjustment which forms the secret of civilization.” It is distressing that, at the highest court in the land, we are still having an argument about the worth of students of color in the classroom and whether universities have the right to seek diversity in order to achieve the function that DuBois celebrates. Middlebury’s experience, like those of the other colleges and universities that signed the amicus curiae, is that inclusive practices create academic excellence. Beyond the intrinsic good of diversity, students of color have earned their place at Middlebury and other institutions and they are a crucial part of and vibrant contributors to our community.

Scalia’s death last week has further highlighted our fractured national political landscape. I won’t comment on Scalia’s legal philosophy or his place in history. That analysis is best left to others who study this field deeply. And, we do not know how the Fisher case will be decided—or even if it will be in the wake of Scalia’s death. It remains possible that the circuit court’s opinion in Fisher will be upheld, overturned, or the case will be reargued in the future. We hope that the Supreme Court will fully appreciate this worthwhile argument.

In the meantime, we are proud to be part of this national debate, and we will continue with our own efforts to make Middlebury a more inclusive community for those already here and who will join us in the future. I encourage you refer to my campus email of January 29, 2016, “Update On Our Inclusivity Efforts,” to see where we have traveled together so far in my presidency. I know that we will sometimes fall short of our own goals and intentions. But our commitment remains steadfast and energetic.

In that spirit, I took note of the concern students expressed about a need for more sensitivity and appropriate representation for the Martin Luther King Jr. event at Mead Chapel in January. In response, and after a constructive dialogue following the event, we will make changes in the design of such events in the future, so that students of color can lead if they choose to do so. We will continue to work hard to be watchful and listen carefully to each other in the hope that we will better see and hear all the issues that at stake in our community.

As we begin the spring semester, I eagerly anticipate more honest, compassionate, open and worthwhile arguments. Let us recommit ourselves to the spirit of understanding. In doing so, we will find ourselves in closer community, more committed to one another, not afraid to fail and not afraid to try.