{"id":2269,"date":"2024-10-28T20:15:48","date_gmt":"2024-10-29T00:15:48","guid":{"rendered":"https:\/\/www.law.georgetown.edu\/public-policy-journal\/in-print-2\/copyright-reprint-permissions\/why-dei-will-not-die\/"},"modified":"2025-05-12T11:11:30","modified_gmt":"2025-05-12T15:11:30","slug":"why-dei-will-not-die","status":"publish","type":"page","link":"https:\/\/www.law.georgetown.edu\/public-policy-journal\/in-print-2\/volume-22-issue-2\/why-dei-will-not-die\/","title":{"rendered":"Why DEI Will Not Die"},"content":{"rendered":"

Affirmative action is dead and DEI programs are next\u2014<\/span>that is the consensus,at least, on both the left and right. Indeed, following the Supreme Court\u2019s decision in Students for Fair Admissions v. Harvard<\/i>,1 <\/span>a chorus of experts and pundits declared the official end of affirmative action,2 <\/span>with the left and right disagreeing only on whether this will produce beneficial or harmful results.3 <\/span>With affirmative action banned, next on the hit list seems to be Diversity, Equity, and Inclusion (\u201c<\/span>DEI\u201d<\/span>) programs, which similarly discriminate on the basis of race.4<\/span><\/p>\n

As I have explained in various articles, scholars have been predicting the end of affirmative action for nearly 50 years, but each time, they have been wrong.5 <\/span>Of course, that scholars have been wrong about affirmative action in the past does not mean they are wrong now. While it is true that these predictions have a \u201c<\/span>boy who cried wolf\u201d <\/span>quality, that should not blind us to the possibility that this time <\/i>the wolf may have finally arrived.<\/p>\n

There is at least some reason to think that this time is different. While the Court has ruled against affirmative action programs in the vast majority of cases it has heard on the subject, these rulings have been Janus<\/i>-faced, condemning affirmative action as a practice while explicitly leaving pathways for affirmative action to continue in the future. Indeed, this was the case in the creation of the diversity rationale in Regents of the University of California v. Bakke<\/i>, 6 <\/span>as well as in the extensions of the Bakk<\/i>e diversity rationale in Grutter v. Bollinger<\/i>7 <\/span>and Fisher <\/i>v. University of Texas<\/i>.8 <\/span>The SFFA <\/i>decision, in rejecting the diversity rationale, represents a stronger repudiation of affirmative action than past Supreme Court rulings on the subject.<\/p>\n

Nevertheless, the SFFA <\/i>decision is unlikely to produce the change that many predict. This is partly because of the SFFA <\/i>opinion itself, which does three things in particular to signal that the decision does not mean the end of affirmative action: first, it stops short of actually overruling the Bakke\/Grutter <\/i>regime; 9 <\/span>second, it provides an escape route for universities to evade the ban through personal statements;10 <\/span>and, third, it severely distorts how affirmative action actually works, which suggests that the Court is not prepared to grapple with the practical realities involved in eliminating affirmative action.11<\/span><\/p>\n

This is all ground I have covered elsewhere.12 <\/span>So, in this Article, I would like to do something different: I would like to explore why, irrespective of both the SFFA <\/i>opinion and the substantive content of affirmative action law itself, DEI programs are not likely to die anytime soon. Understanding the non-doctrinal reasons that caution against predicting the end of DEI programs requires some background on how socio-legal movements effectuate social change through judicial decision-making.<\/p>\n

Part I provides this background with an overview of leading political science scholarship on the limits of judicial power in creating social change. Part II applies that background to the movement against DEI and affirmative action. The Conclusion briefly explores why the mood after the SFFA <\/i>opinion should not be one of triumph (within the legal right) or despair (within the legal left), but rather one of consternation (among all of us). That is because the current DEI conflict consists of two growing and accelerating forces headed right for one another, and therefore portends not the demise of DEI but the further denigration of our constitutional order.<\/p>\n

Continue reading.<\/a><\/p>\n","protected":false},"excerpt":{"rendered":"

Affirmative action is dead and DEI programs are next\u2014that is the consensus,at least, on both the left and right. Indeed, following the Supreme Court\u2019s decision in Students for Fair Admissions […]<\/p>\n","protected":false},"author":10127,"featured_media":0,"parent":2080,"menu_order":5,"comment_status":"closed","ping_status":"closed","template":"abstract.php","meta":{"_acf_changed":false,"_price":"","_stock":"","_tribe_ticket_header":"","_tribe_default_ticket_provider":"","_tribe_ticket_capacity":"0","_ticket_start_date":"","_ticket_end_date":"","_tribe_ticket_show_description":"","_tribe_ticket_show_not_going":false,"_tribe_ticket_use_global_stock":"","_tribe_ticket_global_stock_level":"","_global_stock_mode":"","_global_stock_cap":"","_tribe_rsvp_for_event":"","_tribe_ticket_going_count":"","_tribe_ticket_not_going_count":"","_tribe_tickets_list":"[]","_tribe_ticket_has_attendee_info_fields":false,"footnotes":"","_tec_slr_enabled":"","_tec_slr_layout":""},"class_list":["post-2269","page","type-page","status-publish","hentry"],"acf":[],"ticketed":false,"_links":{"self":[{"href":"https:\/\/www.law.georgetown.edu\/public-policy-journal\/wp-json\/wp\/v2\/pages\/2269","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.law.georgetown.edu\/public-policy-journal\/wp-json\/wp\/v2\/pages"}],"about":[{"href":"https:\/\/www.law.georgetown.edu\/public-policy-journal\/wp-json\/wp\/v2\/types\/page"}],"author":[{"embeddable":true,"href":"https:\/\/www.law.georgetown.edu\/public-policy-journal\/wp-json\/wp\/v2\/users\/10127"}],"replies":[{"embeddable":true,"href":"https:\/\/www.law.georgetown.edu\/public-policy-journal\/wp-json\/wp\/v2\/comments?post=2269"}],"version-history":[{"count":6,"href":"https:\/\/www.law.georgetown.edu\/public-policy-journal\/wp-json\/wp\/v2\/pages\/2269\/revisions"}],"predecessor-version":[{"id":2346,"href":"https:\/\/www.law.georgetown.edu\/public-policy-journal\/wp-json\/wp\/v2\/pages\/2269\/revisions\/2346"}],"up":[{"embeddable":true,"href":"https:\/\/www.law.georgetown.edu\/public-policy-journal\/wp-json\/wp\/v2\/pages\/2080"}],"wp:attachment":[{"href":"https:\/\/www.law.georgetown.edu\/public-policy-journal\/wp-json\/wp\/v2\/media?parent=2269"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}