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Race, One Among Many Factors: Navigating the Legality & Reality of Diversity Initiatives

Updated: May 7

Once upon a time in the future, diversity is valued as a social asset, a moral compass and a business driver. That’s aspirational thinking given the early indications from the US Supreme Court during recent oral arguments in the Students for Fair Admissions cases. Yet, I’m keeping an optimistic outlook balanced with a healthy dose of pragmatism. I think the moral compass for diversity needs to be recalibrated before we can expect any real gains in advancing an impactful diversity agenda. But given the magnitude of morality, where should we start? I propose starting by level-setting on the definition of “moral”. The New Oxford American Dictionary defines moral as follows: “concerned with the principles of right and wrong behavior and the goodness or badness of human character.” Thus, my basic theory is that we have to first decide if diversity is right or wrong. However, we cannot make that decision in isolation; rather, it must be viewed in light of human character and whether said character is deemed good or bad when making decisions where diversity is at stake. My optimistic nature influences my belief that diversity is recognized as right, although not necessarily a legal right. Hence, the legality of diversity is being challenged under the Equal Protection Clause (or, the 14th Amendment of the U.S. Constitution), which guarantees “equal protection of the laws”.

Ironically, it is this same constitutional provision that has given rise to the appeal of a diversity ruling in the college admissions process (in addition, Title VI of the 1964 Civil Rights federal statute is also being touted as the legal basis for the lawsuits). For the pending cases before the Court, the looming (and potentially dooming) question revolves around race as a factor, among several other factors, in college admissions. Specifically, the factual assertion of discrimination is mostly centered on admission rates, not simply admissions. In other words, the legality of the college admissions process is being challenged because the racial category with higher test scores, student rankings, and other academic accolades is not amounting to higher admission rates than other applicants --- more admissions, that is, than other racial categories. Whereas in reality, the college admissions policies are structured based on “the whole person” or requiring a “holistic” view, thereby allowing each applicant to be considered for admissions based on individual merits beyond, but also including, academics. Data has even been presented (and presumably stipulated by the parties as accurate) to show that admissions have increased over the last decade for all underrepresented racial groups. Thus, reliable data apparently reveals that admission rates for all racial categories have steadily improved under the existing admissions processes. Sounds like equality at work to me (and a bit like equity) – same opportunity for everyone regardless of circumstances (including, but not limited to, racial category) with an equal outcome. Still, race is in question when a totality of circumstances is clearly the overriding factor in driving diversity outcomes for these college admissions. Yet, we’ll wait until the US Supreme Court determines if “holistic” reviews have created an abridgement to an individual right when race is among several factors in decision-making for college admissions. For now, my perspective is that it remains elusive whether there’s “goodness or badness” in human character when it comes to viewing diversity as a moral compass. Nonetheless, there’s enough data to substantiate diversity as both a social asset and a business driver. Therefore, optimistically, I’ll assert that once upon time in the future, there is a reality for diversity with or without legality. What’s your perspective on race as a factor for driving diverse outcomes?

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