Before Students for Fair Admission, Inc. v. President and Fellows of Harvard College (2023), the Supreme Court already narrowed the allowable basis for affirmative action from a longer list of options. The background rule is that government-sponsored racial preferences are not allowed unless "narrowly tailored" to "further compelling governmental interests." What counts as compelling? Regents of University of California v. Bakke (1978) provided the following selection, which was brought forward in later cases:
|Compelling Interest Option||Allowable?|
|1. "Reducing the historic [admissions] deficit of traditionally disfavored minorities"||No|
|2. "Countering the effects of societal discrimination [generally]"||No|
|3. "Increasing the number of [practitioners] in communities currently underserved"||No|
|4. "Obtaining the educational benefits that flow from an ethnically diverse student body"||Yes*|
*Grutter v. Bollinger (2003).
Not a definite "yes" until later confirmed in
Now the Supreme Court has determined option 4 is not compelling after all (in the legal sense of not presenting benefits that outweigh the presumed harm of incorporating race as one factor among others in admissions decisions). Also, none of these related options are compelling: "training future leaders, acquiring new knowledge based on diverse outlooks, promoting a robust marketplace of ideas, and preparing engaged and productive citizens."
Unwinding option 4 is complicated by the fact that it transcended school admissions. For example, in their July 12, 2023, Harvard Business Review article titled What SCOTUS’s Affirmative Action Decision Means for Corporate DEI, Kenji Yoshino and David Glasgow wrote: "Given the benefits of a diverse and inclusive workforce for innovation, productivity, and employee engagement, [DEI] initiatives are not just an ideal, they’re a necessity for businesses in the 21st century."
Championing the "innovation, productivity, and ... engagement" that flow from racially diverse settings is restating option 4, which is the "business case" for racial preferences. Alternatively, options 1, 2, and 3 are the "social justice case" for racial preferences. Although affirmative action is commonly understood to be about social justice, it's actually been about good business since 1978.
In 2023, we lost the business case too. Justice Thomas saw "no reason why seeking a diverse society would not be equally supported by admitting individuals with diverse perspectives and backgrounds, rather than varying skin pigmentation." He goes on to say: "[I]n the future, universities wishing to discriminate based on race in admissions must articulate and justify a compelling and measurable state interest based on concrete evidence ... I highly doubt any will be able to do so."
Although affirmative action may have lost its last leg to stand on, for many, good business is a true yet partial proxy. Yoshino and Glasgow paint the bigger picture: "At a time of rapid demographic and social change, it is more urgent than ever to shape institutions so that everyone — regardless of their identity and background — can belong." That's compelling to me.