By John Garvey • Catholic News Service • Posted October 26, 2012

In October, the Supreme Court heard oral arguments in Fisher v. University of Texas. The issue was affirmative action at public colleges and universities.

Nine years ago, in a case from the University of Michigan, the court held that public universities can consider race as one factor among many in admissions. The University of Texas does that for some of its undergraduate applicants. But Texas also admits all applicants from the top 10 percent of each high school’s graduating class — a colorblind program that produces a fairly diverse mix of students.

Abigail Fisher is a white student who did not finish in the top 10 percent of her high school class. Thrown into the color-sensitive segment of the school’s admissions program, she was rejected. Her case may prompt the court to re-examine the Michigan decision.

[hotblock]

Affirmative action has done a lot of good in higher education. It has given many young people opportunities their parents and grandparents never had. And it has contributed to interracial understanding and acceptance. America is a better place for these changes than it was 50 years ago.

There is, to be sure, some tension between affirmative action and other principles we hold dear — like the moral irrelevance of race. The Rev. Martin Luther King Jr. had a dream that his children would not be judged by the color of their skin. The Supreme Court has suggested that we resolve this tension by thinking of affirmative action as a temporary expedient. The Fisher case will decide whether the time has come to end that expedient.

The University of Texas is a state school whose behavior is governed by the equal protection clause. The Catholic University of America, where I am president, is a private school. The equal protection clause does not apply to us.

But Title VI of the 1964 Civil Rights Act does apply to us, and the Supreme Court has held that it imposes the same rule on us that the Constitution imposes on public schools. Right now, Title VI allows us to consider race as a factor in admitting students. It would be unfortunate if a change in the constitutional rule meant there must be a similar change in the statutory rule.

There are many situations where we allow private institutions to behave differently from public ones. The First Amendment forbids public schools to profess or favor a particular faith. But it lets Catholic schools prefer Catholics in hiring and admissions. Sex is another example. The equal protection clause frowns on sex-segregated state universities. Private schools are different. Smith College has admitted only women since 1871.

The distinction between public and private institutions presupposes that private ones can pursue ends beyond the government’s competence. The Holy Spirit guides the Catholic Church — but perhaps not the state of California — in her efforts to know, love and serve God.

Sometimes we may think this way about race, too. Whatever the Supreme Court may decide is appropriate for the University of Texas, we would never dream of forcing the United Negro College Fund to ignore race in awarding scholarships.

So, too, with admissions at private schools like ours. As the national university of the Catholic Church, we aim to educate the church’s future religious and lay leaders. Given that 54 percent of Catholics born here in the past 30 years are Hispanic, we would not be doing our job if we failed to serve what will soon be the majority of American Catholics.

If we are to serve the faithful well, and all of them equally, then it is Catholic University’s business to concern itself with race, ethnicity, language, culture, customs, devotions, movements and other characteristics that enrich and distinguish groups within the church.

If this entails some consideration of race or ethnicity in admissions and hiring, that is a good and necessary thing.

***

Garvey is president of The Catholic University of America in Washington.