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July 13, 2023+David J. Sacks
+Campus Policy+Viewpoint Diversity

How Universities Should Consider Diversity After SFFA (OPINION)

Editor’s Note: This blog was written in response to our call for opinion pieces on the recent SCOTUS ruling on race-based college admissions at Harvard and UNC. You can read the ruling here.


On June 29th, the Supreme Court effectively declared affirmative action unconstitutional under the 14th Amendment, barring the use of race as a factor in university admissions. This ends a program that had been federally sanctioned for over forty-five years. Affirmative Action, albeit through an attenuated mechanism, boosted minority applicants in the higher education admissions process in the hope of aligning results with talent. 

This program did not operate explicitly under the name of disadvantage, but of diversity. Justice Powell, writing the controlling opinion in Bakke v. Regents of California, rejected a “classification that aids persons perceived as members of relatively victimized groups at the expense of other innocent individuals.” Instead, Powell accepted the “diversity” rationale in an academic freedom context, seeking to promote the First Amendment priority of the “robust exchange of ideas.” Racial diversity, in Powell’s view, joined other “diversity” factors such as geography or culture as a valid criterion in holistic admissions. Grutter v. Bollinger, 25 years later, made diversity the touchstone of permissible affirmative action.

Diversity-related values, such as promoting a diverse academy or ensuring equality of opportunity, are laudable. In many ways, Justice Powell’s view recommends itself to those of us who embrace the Heterodox Academy’s values of viewpoint diversity and academic freedom. However, I see two problems with Powell’s approach: The Court is right about Affirmative Action’s unconstitutionality, and relatedly, it is functionally the wrong approach for promoting diversity.

Short of a showing of “past governmental discrimination” that is “concrete and traceable to [a] de jure segregated system” which created “some discrete and continuing discriminatory effect that warrants a present remedy,” the Court has abjured even affirmative discrimination as a corrective impulse. They’ve done so rightly. As Justice Ginsburg writes in Gratz v. Bollinger, one reason racial categorization is proscribed by the Fourteenth Amendment was the historic use of such categorization to perpetuate inequality against racial minorities. However, the non-neutral use of race — even if it is affirmative — will promote racial discrimination if the use is disproportionate. Recognizing this, the Court does not proscribe the use of race, period. Rather, there must be “sufficiently focused and measurable objectives warranting the use of race” so that “race” is not employed “in a negative manner.”

"The Court is right about Affirmative Action’s unconstitutionality, and relatedly, it is functionally the wrong approach for promoting diversity."

This approach accords with the 14th Amendment, which, as Justice Thomas explains in his SFFA concurrence, properly understood reflects a colorblind ethos. Such was the evident intent of its framers, its understanding in early cases, and how it ultimately has been vindicated in the Court’s jurisprudence. Indeed, colorblindness should be our ethos, especially when it comes to our law: “The Constitution abhors classifications based on race, not only because those classifications can harm favored races or are based on illegitimate motives, but also because every time the government places citizens on racial registers and makes race relevant to the provision of burdens or benefits, it demeans us all.” In other words, our race, itself, does not make us special, inferior, or anything at all. In and of itself, race is merely an external characteristic. For this reason, race is necessarily an over- or under-inclusive metric for measuring or attaining diversity.

Eliminating race as a proxy for diversity ends this failure. Rather than providing an undiscerning boost based ultimately on skin color, admissions committees are now forced to conduct a genuinely holistic analysis that should include “how race affected” an individual applicant’s "life.” This will force admissions committees to conduct more individualized analysis when it comes to less tangible indicators of academic potential. Admissions committees should consider the “courage and determination” of individual students in overcoming life’s obstacles, including those imposed by racial — or socioeconomic, or medical — status. Such qualities surely prepare a student for academic success, and success in life.

Qualities such as “courage and determination,” moreover, tend to indicate wisdom, often beyond one’s years, and a unique perspective. Or perhaps they reflect having dealt, successfully and distinctively, with obstacles and experiences that peers might not have faced. The value of these personal qualities is clear, and does not depend on promoting certain racial groups. It should, however, allow those disadvantaged to demonstrate qualities that contextualize slight relative deficiencies per an objective metric enough to get them closer to an outcome that best reflects their potential. And it can do so without placing deserving Asian and Jewish applicants, for example, groups that have historically suffered adversity themselves, at a disadvantage as filtering by race in the zero-sum game of higher education admissions must.

"This will force admissions committees to conduct more individualized analysis when it comes to less tangible indicators of academic potential."

An emphasis on diversity of experience better captures the values Justice Powell aimed to capture in Bakke — and it better accords with HxA’s values too. Diversity of experience not only can prepare students for a university’s academic rigor — it makes a more interesting student body, promoting viewpoint diversity. The university exists primarily to encourage students’ intellectual and spiritual growth, and to promote thoughtful, novel research.

Thus, there’s nothing wrong with prioritizing diversity in admissions — a student body with the widest variety of interests, perspectives, abilities, and worldviews will create a richer educational environment inside and outside the classroom. But doing so based on race misses the point. Eliminating this crude proxy may create more work for admissions committees to ensure that deserving disadvantaged students can earn their spot in the institution. But this work is worth the time it takes. It is the privilege of the university to elevate deserving candidates across all groups, and in so doing, create a richer, more viewpoint-diverse student body.


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