Justice is (color)blind: Why DEI isn’t likely to go away any time soon
By doubling down on “colorblindness” in last year's SFFA v. Harvard decision, the chief justice bolstered the constitutional case for the newest target of conservatives’ ire: DEI.
Just about one year ago today, the Supreme Court struck down as illegal the race-based admissions policies of Harvard and the University of North Carolina.
Chief Justice John Roberts’s opinion in Students for Fair Admissions v. Harvard signaled open season on any inclusionary policy that treats individuals differently based on race. Conservative activists enjoyed quick victories against law firm “diversity fellowships,” government programs exclusively for people of color, and venture capital funding for Black women. Yet a separate side of SFFA still flies under the radar.
By doubling down on “colorblindness,” the chief justice bolstered the constitutional case for the newest target of conservatives’ ire: diversity, equity and inclusion programs, known widely as DEI.
Most DEI initiatives are not race-based in the relevant legal sense. They might serve some racial motivation, such as improving racial equality or reducing racial stereotypes, but they do not distinguish between individuals based on race.
In Supreme Court parlance, this makes DEI policies “facially neutral” and therefore, constitutionally secure.
This hasn’t stopped right-wing officials from claiming that DEI runs afoul of the Supreme Court decision. Consider a June 3 letter sent by 21 Republican attorneys general to the American Bar Association, asserting that the association's Rule 206 fails to account for the decision and, "by all appearances, directs law-school administrators to violate both the Constitution and Title VII.” The Republican attorneys general then assert that under Students for Fair Admissions, “facially neutral” practices become unlawful if “undertaken with the aim to achieve particular racial outcomes.”
As a moral and practical matter, this assertion presents immediate concerns. According to this reasoning, it would be unlawful for a university to eliminate an application fee or forgo legacy preferences if it took that action because it wanted to increase, say, Asian American enrollment. The same goes for any policy adopted to racially integrate an institution, to cultivate a welcoming climate for Black law students, or to racially diversify a legal profession that remains disproportionately white.
The Republican attorneys general and their right-wing allies have a separate problem: conservative justices.
In Students for Fair Admissions, the chief justice and his conservative colleagues berated Harvard and UNC for “separating students on the basis of race.” Yet in the same opinion, they condoned the universities’ racial motives as “plainly worthy” and “commendable.” This language tracks a notorious 2007 Roberts opinion that struck down race-based assignment plans designed to desegregate K-12 public schools. As in Students for Fair Admissions, Roberts lauded the defendants’ racial motives as “worthy” even as he barred the means they were using. The upshot is that in 2007 and 2023, the defendants lost because they employed disfavored means, not because they wanted to achieve particular racial outcomes.
Justice Brett Kavanaugh’s concurrence in the same case provides even more support for colorblind DEI efforts, reiterating the majority’s distaste for policies that distinguish between individual students based on their race. According to Kavanaugh, such policies must be “limited in time” because they are “so dangerous” and “deviat[e] from the norm of equal treatment.” But again, his concern lies with the means schools employ, not the ends they pursue. We know this, in part, because Kavanaugh concludes by noting that universities still “can, of course, act to undo the effects of past discrimination in many permissible ways that do not involve classification by race.”
This is an invitation to pursue expressly racial goals such as those embedded within the Bar Association's Rule 206 — so long as the means remain facially neutral. It might be a surprise to learn that Kavanaugh was quoting Justice Antonin Scalia, perhaps the most influential conservative justice of the last half-century. Even Scalia was open to colorblind practices that resemble many contemporary DEI initiatives.
A final data point reveals the clash between today’s conservative assault on DEI and conservative caselaw. Even before Students for Fair Admissions had concluded, the right-wing Pacific Legal Foundation sued several public high schools for adopting colorblind policies designed to increase racial diversity. The best-known lawsuit targeted Thomas Jefferson High School in Fairfax County, Va., which had rebooted its admissions policy, spurred by the racial justice protests of 2020.
The policy had been colorblind before the changes, and it remained colorblind thereafter. Pacific Legal nonetheless argued that Thomas Jefferson High School had violated the Constitution because the new policy had been adopted to alter the school’s racial make-up. The argument should sound familiar, because it’s the same one that permeates the AGs’ letter.
Pacific Legal lost in the Fourth Circuit, the appellate court that covers Virginia. Many expected the Supreme Court to take the case. Many also expected Pacific Legal to prevail. Neither occurred. The Supreme Court denied review earlier this year. Only two justices — Samuel Alito and Clarence Thomas — dissented from that decision.
One should not overread the significance of Pacific Legal’s defeat. But it should reassure organizations like the American Bar Association that even this Supreme Court isn’t ready to strike down DEI, so long as the specific initiatives remain colorblind. It also highlights how radical the conservative assault on DEI has become.
Jonathan Feingold is an associate professor at Boston University School of Law. He is an expert in affirmative action, antidiscrimination law, education law, and critical race theory.