Last week the United States–collectively through the Departments of Defense, Education, Health and Human Services, Commerce, Labor, and Justice–filed a friend of the court brief in Fisher v. University of Texas at Austin, et al.  As noted in Bob Eitel’s earlier posts of July 26 and August 8, this closely watched case again raises the permissibility of racial preferences in university admissions.  Oral argument is scheduled in the Supreme Court in less than two months (October 10, 2012).

The absence of any mention by the United States of the Department of Education Organization Act (Pub. L. No. 96-88)–the seminal Act that established the Department over 30 years ago–is interesting.  In that Act, Congress spoke of the importance of education to individuals (“education is fundamental to the development of individual citizens”), and the continuing need to “ensure equal access for all Americans.”  The governmental interest in diversity in education is diversity of educational settings (“the American people benefit from a diversity of educational settings including public and private schools, libraries, museums and other institutions, the workplace, the community, and the home.”).  Finally, the Act’s first purpose is “to strengthen the Federal commitment to ensuring access to equal educational opportunity for every individual.”