By Emily Martin, vice president and general counsel at the National Women’s Law Center. This commentary is cross-posted at NWLC's blog.
On Tuesday, the Supreme Court agreed to hear Fisher v. University of Texas at Austin, a challenge to the affirmative action plan used by the University of Texas at Austin. Currently, the university allocates over 80 percent of its slots to students who graduate in the top ten percent of their public high school. For the final 20 percent, the university considers many factors, including grades, a personal essay, character, special talents, socio-economic circumstances, and race. As the Fifth Circuit Court of Appeals held last year in upholding the constitutionality of the plan, UT-Austin carefully crafted its plan to comply with the Supreme Court’s 2003 ruling in Grutter v. Bollinger, which held that consideration of race in public university admissions could properly forward the compelling interest in diversity in education.
One of the great promises of public education, at every level, is its potential to create a student body drawn from a wide variety of backgrounds and perspectives, enhancing the educational experience of all students. As the Supreme Court recognized in Grutter, “Numerous studies show that student body diversity promotes learning outcomes, and better prepares students for an increasingly diverse workforce and society, and better prepares them as professionals.”
Racial diversity within schools breaks down stereotypes that feed and perpetuate inequality. This is particularly important for women because many of the most poisonous racial stereotypes are also gender stereotypes — for example, that black women are promiscuous, that Asian women are subservient, or that Latina women are domestics. Membership within a diverse student body challenges gender stereotypes that harm women (and men) of color: when a student’s classrooms are full of numerous exceptions to every stereotypical rule, the rules lose their power to define people for that student. Moreover, racial diversity may also help break down gender stereotypes more broadly. Studies indicate that diverse schools encourage students to reject stereotypes in general, and to view individuals as individuals, rather than as representatives of particular group characteristics.
ol’s affirmative action program was constitutional. The law school’s policy, in part, was based on a longstanding commitment to “one particular type of diversity,” that is, “racial and ethnic diversity with special reference to the inclusion of students from groups which have been historically discriminated against, like, African-Americans, Hispanics and Native Americans, who without this commitment might not be represented in our student body in a meaningful manner.”
On August 28, 2011, forty-eight years to the day Martin Luther King, Jr. delivered from the steps of the Lincoln Memorial his famed speech known for its “I have a dream” refrain, Americans are honoring him with a statue on the National Mall. Already honored with a national holiday, King will be forever enshrined with Washington, Jefferson, and Lincoln on some of our nation’s most hallowed ground. This high honor is a special point of pride for black Americans, given Dr. King’s role in the Civil Rights Movement of the fifties and sixties, and his stature as a martyr in the struggle for racial and economic justice. 
The upcoming confirmation hearings on Sotomayor highlight three trouble issues. I share my assessment of the issues to understand better both the process of judicial appointments and the person qua judge.