Diversity, Racial Balancing, and the Experience of Race

The immediate impetus for my latest Verdict column is the news that Tirien Steinbach is no longer the associate dean for Diversity, Equity and Inclusion (DEI) at Stanford Law School--perhaps because of her role in the kerfuffle over the disruption of Judge Kyle Duncan's speech by some students last spring. Given the right's leveraging of the Duncan speech as part of its anti-woke crusade against DEI more broadly, my column ponders whether colleges, universities, companies, and other institutions subject to federal anti-discrimination law might be considering disbanding or rebranding their DEI initiatives.

The Verdict column also addresses the question whether DEI efforts remain legal following the SCOTUS ruling in Students for Fair Admissions (SFFA) v. President and Fellows of Harvard College. I conclude that while some programs may now be unlawful, it remains legal to pursue DEI through race-neutral means. Put simply, SFFA held that diversity is no longer a compelling interest sufficient to justify race-based affirmative action in higher education, but nothing in SFFA calls into question the continuing legitimacy of pursuing diversity through race-neutral means. In this accompanying essay, I'll explore (but ultimately reject) the possibility that I'm wrong about that.

As a preliminary matter, it's worth noting that Supreme Court case law identifies at least one illegitimate aim of government. In a line of cases sometimes said to exemplify rational basis scrutiny with teeth (or equivalently, with bite), the Court has said that a "a bare . . . desire to harm a politically unpopular group" is not a legitimate interest. Thus even without officially applying heightened scrutiny, this line of cases has invalidated laws that aimed at harming "hippies," persons with intellectual disabilities, and LGBTQ+ persons.

Is diversity likewise a goal that is not merely not compelling but actually impermissible? In his SFFA concurrence and prior writings, Justice Clarence Thomas has sometimes referred to diversity as an "aesthetic" interest. Justice Thomas clearly means the term pejoratively. An aesthetic interest, he implies, is trivial. Yet even trivial interests aren't necessarily illegitimate ones. More directly to the point, actual aesthetic interests are not impermissible objectives for government programs.

For example, the National Endowment for the Arts and the Smithsonian American Art Museum foster aesthetics. Is that problematic? We have seen controversies erupt over particular aesthetic judgments of government-funded agencies. Readers my age or older may recall protests involving "Piss-Christ" by Andres Serrano and the homoerotic images of Robert Mapplethorpe. Even so, one cannot sensibly say that government is constitutionally forbidden from making any aesthetic judgments. Decisions involving such matters as the design of government buildings or the images that appear on coins and stamps require aesthetic judgment.

Nonetheless, Justice Thomas shouldn't be taken literally in calling diversity an "aesthetic" interest. What he apparently means by that term is that diversity aims at including a particular mix of persons of various races in an institution--what the Court's cases sometimes call "racial balancing." Yet, as the SFFA majority states, quoting an earlier decision, "outright racial balancing is patently unconstitutional" (internal quotation marks omitted). So is it patently unlawful--i.e., illegitimate--to aim for a diverse student body or a diverse workforce even if using only race-neutral means?

The answer is not entirely clear from the Supreme Court's holdings. Every prior case in which the Court has condemned racial balancing arose in the context of a race-based affirmative action program or its equivalent, giving the Court no occasion to rule on race-neutral means of fostering racial diversity. However, as various other commentators have observed, the Supreme Court has spoken approvingly of race-neutral means that aim at maintaining or increasing racial diversity.

Much has been made of the Court's apparent approval of the "percent plans" like the one Texas adopted in the 1990s that guaranteed admission to a state university to everyone who graduated in a specified top percentage (originally ten percent) of their in-state high school class. Critics (including me) noted that such plans were only nominally race-neutral: they achieved racial diversity largely as a consequence of de facto racial segregation in secondary schools; and it was widely accepted that if a university adopted a ten percent or similar plan for the purpose of limiting the number of admittees of a particular race (Asian Americans, say), that would be impermissible proxy discrimination. And yet, even conservative Justices are on record saying that it's permissible to try to achieve some particular racial balance through these and other race-neutral means.

Even Justice Thomas seems to think that. After all, in his dissent in Grutter v. Bollinger, he proposed that the University of Michigan Law School could admit all minimally qualified applicants as a race-neutral means of achieving racial diversity. To be sure, he denigrated that goal by calling it the state's "vision of the racially aesthetic student body," but even in so doing, Justice Thomas described the minimal standards approach as race-neutral and thus permissible.

Hence, my column gets it right. Even though diversity is no longer a compelling interest, it is a permissible/legitimate aim that may be pursued through formally race-neutral means.

What is the relation between that conclusion and the warning that Chief Justice Roberts included at the end of his roadmap for colleges and universities to mitigate the impact of the holding of SFFA? He wrote:

nothing in this opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise. [But] universities may not simply establish through application essays or other means the regime we hold unlawful today. 

As I read that last sentence, colleges and universities that ask applicants to describe how race affected them (whether by asking that question directly or by embedding it in a broader question about accomplishments in light of obstacles) may not then use the answers to assign admissions points based on (actual or imputed) race; instead, they must actually evaluate the experiences reported.

So long as colleges and universities do that--i.e., so long as they actually evaluate individual experiences with race and not simply an applicant's race--they can use this approach even if they are doing so for the purpose of maintaining racial diversity if (as one would expect) on average members of disadvantaged racial minority groups (especially African Americans) have had more substantial experiences encountering (and overcoming) racial obstacles to success. Because the Roberts majority opinion conceptualizes individual evaluation of individual experiences with race as race-neutral, choosing to evaluate such experiences is race-neutral--just like Justice Thomas's proposal of an admissions program that accepts everyone over a minimal threshold is race-neutral, notwithstanding the fact that either could be adopted for the purpose of achieving the racial balance it achieves.

Finally, although it should go without saying with respect to everything I write on this blog, my Verdict columns, and anywhere else, the views I've expressed here are my own as a scholar. As someone who teaches in a law school subject to Title VI, I have a stake in how students are admitted, but I am speaking here and in the column (and again, everywhere else) solely for myself and not as any kind of representative of Cornell Law School or Cornell University.