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Stricter Scrutiny as the DEI New Normal: Guidance from SFFA on Lawful Methods for Promoting Diversity Efforts

👉 In SFFA, the Court found that the universities’ reasons for promoting diversity interests through college admissions processes were not “sufficiently coherent for purposes of strict scrutiny”, in part, because (1) they were not measurable and (2) they did not have an ending.

👉 The Court said that reaching an end point to promoting diversity interests by comparing the racial makeup of an incoming class to a previous class (or to the population in general) amounts to ‘racial balancing’ and is ‘patently unconstitutional’.  In other words, it seems the Court was saying that the universities’ processes had a flavor of quotas.

👉 Therefore, setting “some proportional goal” by measuring racial makeup runs afoul of the Equal Protection Clause and cannot be utilized as a way of saying “meaningful representation and diversity” has been achieved.

👉 The Court went on to clarify that race is not totally off the table for purposes of college admissions; however, rather than focusing on skin color, universities could consider how race has affected a student’s life, “be it through discrimination, inspiration, or otherwise”.

“Many universities have for too long wrongly concluded that the touchstone of an individual’s identity is not challenges bested, skills built, or lessons learned, but the color of their skin.” (SFFA, 2023)

👉 Thus, the future of DEI should be focused on problems, not people, as an aspiration for satisfying the stricter scrutiny applied in the DEI New Normal.

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