Last week, Stanford Law School announced that Tirien Steinbach had left her post as associate dean for Diversity, Equity and Inclusion (DEI). Such a middle management personnel change would not ordinarily be national news, but Steinbach was embroiled in a controversy last spring when some students disrupted a speech by federal judge Kyle Duncan. Law School Dean (and soon-to-be university provost) Jenny Martinez used that occasion to affirm Stanford’s commitment to free speech in a letter of apology to Judge Duncan. As Professor (and then-Dean) Vikram Amar and Professor Jason Mazzone noted on Verdict, Dean Martinez sensibly committed to educating rather than punishing the students who had disrupted the talk.
Dean Martinez’s letter also blamed “staff members who should have enforced university policies [but] failed to do so, and instead intervened in inappropriate ways that are not aligned with the university’s commitment to free speech.” Informed observers understood that Steinbach was the key staff member Dean Martinez was chiding. Yet in light of the fact that Judge Duncan himself behaved childishly before, during, and after the incident, one might well think that Steinbach did her best to navigate a difficult situation and, as Professor Neil Buchanan observed on Verdict, was being made a scapegoat for a Stanford administration fearful of further attacks from the anti-woke mob.
With Steinbach’s departure, Stanford will apparently now look for a new associate dean for DEI. Or maybe it won’t. After all, the same crowd that vilified Stanford and villainized Steinbach for supposedly failing to defend Judge Duncan with sufficient zeal have their sights set on the very institution of DEI. Moreover, the Supreme Court’s recent ruling in Students for Fair Admissions (SFFA) v. President and Fellows of Harvard College appears to cast doubt on the pursuit of diversity itself. Should Stanford and other institutions disband their DEI offices and abandon the goal of diversity?
The Legal Status of Diversity After SFFA
Begin with the law. In 1978, Justice Lewis Powell wrote the controlling opinion for the Supreme Court in its first major substantive ruling on race-based affirmative action in higher education. In Regents of Univ. of California v. Bakke, Justice Powell rejected efforts to justify race-based admissions as a remedy for the legacy of slavery and Jim Crow but said that race could be a “plus factor” if used to enhance the intellectual diversity of a college or university class. The Court as a whole adopted Justice Powell’s view twenty-five years later in Grutter v. Bollinger. In the meantime and since, colleges and universities that might have preferred to envision affirmative action as serving remedial goals have attempted to fit it on the procrustean bed of diversity.
This year’s ruling in SFFA seems to have put an end to those efforts. To be sure, the majority opinion of Chief Justice John Roberts does not expressly repudiate the rule of Bakke and Grutter. Such repudiation is, however, pretty evidently implicit.
The SFFA majority opinion and a concurrence by Justice Brett Kavanaugh emphasize that race-based affirmative action must be time-limited but complain that the diversity rationale for a race-based admissions boost offered by Harvard and by the University of North Carolina in a companion case is open-ended. In addition, the majority states that because the benefits of diversity are not readily quantifiable, they cannot satisfy the strict judicial scrutiny the Court applies to racial classifications. Although a concurrence by Justice Clarence Thomas contains many tendentious claims about the history of Reconstruction, it is difficult to disagree with his bottom-line assessment of the majority opinion he joined in SFFA: “Grutter is, for all intents and purposes, overruled.” In other words, the Court no longer regards racial diversity as a compelling interest.
Implications for DEI
Does that mean that colleges and universities now have a legal obligation to purge the “D” from their “DEI” initiatives and offices? And what about businesses? In SFFA, the Court followed Bakke in one crucial respect: it equated the legal standard applicable to government actors like the University of North Carolina in virtue of the Fourteenth Amendment’s Equal Protection Clause with the standard applicable to federally funded actors, including private ones like Harvard, in virtue of Title VI of the Civil Rights Act of 1964. Title VII of the same Act contains very similar language forbidding race discrimination in employment, a point highlighted by Justice Neil Gorsuch in yet another concurrence. Is diversity accordingly on the chopping block throughout the economy?
Not necessarily. SFFA held that diversity is no longer a compelling interest sufficient to justify using an applicant’s race as an express criterion in college or university admissions. But the Court did not say that diversity is an illegitimate goal. Colleges, universities, and presumably employers may continue to pursue diversity—including racial diversity—through race-neutral means. Because many of the activities of DEI offices do not involve classifying anyone based on race, SFFA does not render DEI unlawful.
That is not to say that everything that is done in the name of DEI remains legal. Programs that do classify based on race will need to be shelved or substantially reconfigured.
Moreover, as Professor Amar observed in a Verdict column in May, pending litigation by faculty members subject to DEI directives may raise First Amendment issues that the Supreme Court’s balancing test for permissible limits on employee speech do not clearly resolve. So DEI offices must be careful how they go about promoting diversity (and equity and inclusion) to stay on the right side of a fuzzy line—but of course all regulated actors must do their best to stay within the law’s bounds. Accordingly, the law does not require the shuttering of DEI offices.
What about prudence? Should colleges, universities, and employers re-brand their DEI offices using other terms and a whole new acronym? Perhaps, but there are reasons to doubt that doing so will ward off litigation or public attacks. After all, the anti-woke provocateurs and demagogues demonizing DEI already blithely conflate it with critical race theory and other ostensible bogeymen that have no necessary connection to any DEI initiatives.
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Justice Powell’s Bakke opinion diverted the energy of egalitarian educators and policy makers away from justice and towards diversity. The Roberts Court’s repudiation of diversity as a compelling interest in SFFA thus presents not just a challenge but also an opportunity. No longer must efforts to achieve racial justice be cloaked in the language of diversity. So long as the means are race-neutral, egalitarians can pursue racial justice directly.
Yet in so doing, public and private actors need not and should not abandon diversity as a separate good. Intellectual diversity and background diversity—including diverse experiences of race—remain important contributors to the success of educational institutions, businesses, and other organizations. Whether or not re-branding diversity or DEI temporarily fends off the attacks from anti-woke critics, broad diversity remains a worthwhile and legal goal.