Michael C. Dorf (Cornell; Google Scholar), Does Diversity Have a Future?:
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? …
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. …
[P]ublic 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.
Michael C. Dorf (Cornell; Google Scholar), Diversity, Racial Balancing, and the Experience of Race:
The immediate impetus for my latest Verdict column is the news that Tirien Steinbach is no longer the associate dean for Diversity, Equity and Inclusion (DEI) at Stanford Law School—perhaps because of her role in the kerfuffle over the disruption of Judge Kyle Duncan's speech by some students last spring. Given the right's leveraging of the Duncan speech as part of its anti-woke crusade against DEI more broadly, my column ponders whether colleges, universities, companies, and other institutions subject to federal anti-discrimination law might be considering disbanding or rebranding their DEI initiatives.
The Verdict column also addresses the question whether DEI efforts remain legal following the SCOTUS ruling in Students for Fair Admissions (SFFA) v. President and Fellows of Harvard College. I conclude that while some programs may now be unlawful, it remains legal to pursue DEI through race-neutral means. Put simply, SFFA held that diversity is no longer a compelling interest sufficient to justify race-based affirmative action in higher education, but nothing in SFFA calls into question the continuing legitimacy of pursuing diversity through race-neutral means. In this accompanying essay, I'll explore (but ultimately reject) the possibility that I'm wrong about that. …
[M]y column gets it right. Even though diversity is no longer a compelling interest, it is a permissible/legitimate aim that may be pursued through formally race-neutral means.
What is the relation between that conclusion and the warning that Chief Justice Roberts included at the end of his roadmap for colleges and universities to mitigate the impact of the holding of SFFA? He wrote:
nothing in this opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise. [But] universities may not simply establish through application essays or other means the regime we hold unlawful today.
As I read that last sentence, colleges and universities that ask applicants to describe how race affected them (whether by asking that question directly or by embedding it in a broader question about accomplishments in light of obstacles) may not then use the answers to assign admissions points based on (actual or imputed) race; instead, they must actually evaluate the experiences reported.
So long as colleges and universities do that—i.e., so long as they actually evaluate individual experiences with race and not simply an applicant's race—they can use this approach even if they are doing so for the purpose of maintaining racial diversity if (as one would expect) on average members of disadvantaged racial minority groups (especially African Americans) have had more substantial experiences encountering (and overcoming) racial obstacles to success. Because the Roberts majority opinion conceptualizes individual evaluation of individual experiences with race as race-neutral, choosing to evaluate such experiences is race-neutral—just like Justice Thomas's proposal of an admissions program that accepts everyone over a minimal threshold is race-neutral, notwithstanding the fact that either could be adopted for the purpose of achieving the racial balance it achieves.
