Abstract

Excerpted From: Daniel Kees, Defanging Diversity: Sffa V. Harvard and its Implications for the Diversity Rationale in Higher Education Admissions, 14 Columbia Journal of Race and Law 1023 (August, 2024) (307 Footnotes) (Full Document)

In September 2019, Judge Allison D. Burroughs of the United States District Court for the District of Massachusetts issued a decision in a case that would come to change the face of affirmative action in higher education: Students for Fair Admissions, Inc. (SFFA) v. President & Fellows of Harvard College (Harvard Corporation). SFFA is “a nonprofit membership group” that believes “racial classifications and preferences in college admissions are unfair, unnecessary, and unconstitutional.” $%^2 SFFA contended in its suit that Harvard unfairly discriminated against Asian American applicants in its undergraduate admissions process, violating Title VI of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000d et seq. (“Title VI”). SFFA considers itself to be advancing the principles of the civil rights movement--namely, that a student's race should not factor into their admissions chances at a competitive university.

The Massachusetts court, in an expansive and footnote-laden opinion, considered the merits of SFFA's and Harvard's arguments and concluded that Harvard--whose review process has been deemed a model for race-conscious admissions -- did not discriminate against Asian Americans or violate the U.S. Constitution. SFFA appealed the decision all the way to the U.S. Supreme Court which reached the opposite conclusion, spelling the end of the diversity rationale in higher education admissions and ushering in a post-affirmative action era.

The end of affirmative action followed years of the Supreme Court narrowing the bounds of the so-called “diversity rationale,” which is the justification provided for giving additional weight to race in the college admissions process. The Court's failure to fully endorse the social justice orientation of the diversity rationale, or to simply require schools to more explicitly set forth what they value in admissions, resulted in an anemic jurisprudential framework utterly incapable of fulfilling its purpose. Despite this failure, diversity has--and will continue to be--an important *1026 part of college admissions. The Supreme Court's ruling fell far short of meaningfully curtailing schools' ability to structure admissions in the ways they see fit; rather, schools will simply have to be more innovative about achieving the desired makeup of their classes. The concept enshrined in the diversity rationale, if not the doctrine itself, survives, at least for the moment.

This Article examines the history of the diversity rationale, the factors that eroded its efficacy and legitimacy, and a path forward in a post-SFFA world. It also examines the elite college admissions system, an understanding of which is necessary to comprehend why the diversity rationale failed to achieve its potential as a transformative concept in American higher education. The discussion that follows is meant to shed light on a judicial framework that was doomed from inception and to advocate for a more robust framework that can achieve the implicit goals of the diversity rationale. This Article seeks to provide a more nuanced understanding of diversity--in a factual and legal sense--to aid policymakers and laypersons alike in laying the groundwork for a more equitable approach to college admissions and the legal structure under which those decisions are made.

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The SFFA decision should be a surprise to few. Courts were always reluctant to tackle diversity in a way that accounted for the realities of our world, and the days of such juridical trepidation were always numbered. Even assuming the legitimacy of all of Harvard's justifications for its consideration of race in admissions, the lack of a clear, singular justification beyond the nebulous concept of “diversity” doomed affirmative action from the start. The throughline here is that a broader conception of diversity was needed at the outset. If the spirit of the diversity rationale is to survive, because the legal doctrine is now dead, it must expand beyond its narrow confines. Diversity as a concept must be broadened to account for the pluralities of the modern age, and this liberalizing effort must extend to our notions of community, allowing us to finally desegregate our country.

Though this writing eschews a formal proposal of a so-called “neo-diversity rationale” in which one merely swaps the historically favored category of race for another equally amorphous category, it is clear that affirmative action defenders and sympathetic courts will have to grow ever more exacting in justifying race-based preferences in American life, as potential litigants are sure to look to SFFA's success and refine their assaults on whatever is left of affirmative action in educational settings and corporate America. Harvard and its peers can avoid much of this coming headache by re-framing their stated admissions goals. On one hand, they can do the unglamorous work of truly diversifying their student body, making good on the lofty ideals espoused on their websites and in admissions brochures. On the other hand, a more explicit embrace of ALDCs and the value they bring to campus coffers might sound less lofty and egalitarian, but it may be far more honest and, perhaps, more legally defensible.

Either schools will find a new way to achieve the campus diversity they presumptively value, or they will not. Perhaps, in light of the High Court's decision, schools will simply wash their hands of the matter, saying they have done all they could to advance racial justice, silently grateful that they no longer have to employ such complicated admissions schemes to foster on-campus racial diversity. Perhaps elite colleges and universities will more openly stress the financial incentives that play a much larger role in the process than advertised. Who can say?

The forces that led to the very need for the diversity rationale are not in the rear view. The SFFA case is a watershed moment in this country's long, sordid racial history. With each feeble defense of the diversity rationale written over the recent decades, the Supreme Court retreated further into a corner, continually shrinking the role of race-based considerations in higher education admissions. Rather than continue this delicate jurisprudential waltz, the Supreme Court has now stopped the music. But silence brings opportunity. In this stillness, the vacuum wherein the word “diversity” is said in hushed whispers, stakeholders, particularly the students of this country, would be better served by an open conversation about the goals of universities, elite and otherwise, and the processes such institutions use to achieve those goals. A performative and thin endorsement of the value of “diversity” did not accomplish this aim. It never could. So, something more robust--and more honest--is needed.

Judicial Law Clerk, Court of Appeals for the Third Circuit. B.A., Millsaps College; J.D., University of Pennsylvania Carey Law School.