September 20, 2023

Beyond Diversity - SFFA's Silver Lining

Taonga Leslie Director of Policy and Program for Racial Justice

This summer, the Supreme Court all but overruled Grutter v. Bollinger, a precedent which allowed universities to consider an applicants’ race alongside other factors to achieve “the educational benefits that flow from a racially diverse student body.” At the same time, the majority in Students for Fair Admissions (SFFA) emphasized that the opinion should not prevent universities from considering “how race affected the applicant’s life, so long as that discussion is concretely tied to a quality of character or unique ability that the particular applicant can contribute to the university.”

While the court’s decision is likely to have devastating near-term effects for Black and Latino representation on elite campuses, it also potentially opens new opportunities for progressives advocates and scholars to argue for affirmative consideration of race in admissions. Freed from defending Grutter’s singular focus on the benefits of diversity, progressive advocates can more robustly articulate the relationships between race, lived experience, and individual “merit.” 

Central to the majority’s analysis was the premise that using racial categories to achieve diversity necessarily relies on stereotypes, undermining the individualized merits considerations that applicants deserve (and the Constitution requires). There are too many flaws in the majority’s analysis of history, law, and contemporary admissions practices to fairly cover here (they are thoroughly and powerfully exposed in Judge Sotomayor and Jackson’s dissents). But the argument that the “diversity rationale” for affirmative action has tended to distract from more meaningful discussions of merit and racial justice has also been raised by progressive scholars of color like Derrick Bell and Lani Guinier.

As scholars and activists have noted, the “diversity” rationale for affirmative action can tend to objectify students of color, under the tacit assumption that “diverse” students (i.e., POC) are there to educate and provide perspective to “non-diverse” ones (i.e., white students). This unspoken expectation can fuel awkward campus dynamics where students of color are polled for their opinions on historical atrocities like slavery or commoditized as symbols of their institutions’ progressive ideals on college brochures 

The perceived tension between merit and diversity can harm students long past graduation. The achievements of graduates of color are too often diminished when they are viewed primarily as affirmative action admits or hires, and receive less value for their degrees than their white counterparts.  

Meanwhile, focus on numerical or visual diversity has tended to pull focus from the most disadvantaged. Diversity within communities of color is sometimes flattened, as Black immigrants are conflated with descendants of American slavery, and the unique challenges of Hmong and other underrepresented Asian communities are swept under the rug of the “model minority myth.” 

Of course, progressives’ full-throated defense of the diversity rationale is in part because, until SFFA, diversity was the only rationale the Supreme Court had deemed sufficiently “compelling” to justify positive consideration of race in admissions. Justice Powell’s controlling opinion in Regents of Univ. of California v. Bakke had already rejected the rationale of reducing the historic deficit of disfavored minorities, remedying the effects of historical discrimination, or increasing the number of graduates serving disadvantaged communities. While SFFA largely outlawed categorical use of race to advance diversity, the Court also explicitly acknowledged that individual’s experiences with race may be relevant to admissions decisions and seemingly blessed college’s consideration of racialized experience. 

Revisiting the rationales rejected in Bakke under the more individualized admissions assessment recommended by the SFFA majority may yield new insights for schools, candidates, and our communities. For example, instead of looking to remedy the effects of historical discrimination generally, as Bakke forbids, universities might consider how historical and present-day discrimination are relevant to individual applicants and recognize the resilience applicants demonstrated in overcoming these barriers. A university might find that an applicant who managed to achieve high grades and test scores and secure prestigious internships, while also coping with negative stereotypes from biased teachers and employers, is more competitive than an applicant who had not faced similar bias.  

The Bakke court also called for “more precise and reliable” ways, other than racial category, to identify applicants committed to serving disadvantaged communities. The Court advised schools to instead look to identify applicants with a “demonstrated . . . concern” and declared interest in serving such communities. Elevating lived experience, in place of so-called “box checking”, would add the precision Bakke demanded—arguably applicants who themselves had first-hand experience living in racialized communities and navigating racialized medical and economic conditions may be both more committed to resolving such disparities and better equipped to do so than applicants with solely intellectual or ideological motivations behind their work.  

Relying solely on individual reporting of experience may not fully replace the benefits of consideration of racial categories. As Evan Mandery points out, relying on essay content alone may be insufficient to meaningfully bring lived experience to the fore. It may risk “further co-opting of disadvantage” by placing “a premium on an applicant’s ability to present a compelling narrative of their experience.” Even if the communications playing field were even, applicants may not have personal knowledge of the ways race has presented barriers to them. Many forms of bias are implicit, and even explicit forms (for example passing over an internship applicant with a funny name) are often invisible to the people they affect.  

Nevertheless, until there is a change in the Supreme Court’s composition, statistical forms of racial consideration are unlikely to survive legal scrutiny. Given the current landscape, advocates and institutions would do well to accept the Court’s invitation to re-center the rich experiences, talents, and contributions of individual applicants of color.  


Taonga Leslie is the Director of Policy and Program for Racial Justice at ACS.

Constitutional Interpretation, Equality and Liberty, Racial Justice