54. What Kind of Diversity Does the Constitution Support? (Pt. 3)
Part 3: Between Individuals and Groups—The Constitutional Balancing Act
In the first two parts of this series, we explored how Bakke grounded affirmative action in the idea of intellectual exchange, and how Grutter expanded that vision into a broader argument about institutional legitimacy and national leadership. We also asked a hard question: Who really benefits when affirmative action is justified on the basis of utility?
Now we turn to the underlying constitutional dilemma that has shaped—and ultimately destabilized—this entire doctrinal arc: Can the Equal Protection Clause, which is rooted in individual fairness, support policies designed to address group-based inequality?
This tension has been present from the very beginning. It was in Powell’s opinion in Bakke, where he emphasized that universities must consider the “individual” applicant. It was in O’Connor’s insistence in Grutter that holistic review must ensure that each applicant is evaluated as an individual and not in a way that makes race the defining feature of the application. And it was at the very center of Chief Justice Roberts’s majority opinion in Students for Fair Admissions v. Harvard (2023), where he wrote:
“College admissions are zero-sum. A benefit provided to some applicants but not to others necessarily advantages the former group at the expense of the latter.”
The idea is simple, but its implications are not: The Constitution protects people, not groups.
So if race-conscious admissions advantage “underrepresented minorities” as a class, then they necessarily disadvantage others as a class—and violate the principle of equal protection.
But is that really how fairness works?
The Promise—and Limits—of Individualism
On one reading, this individualist vision is noble. It insists that we look past stereotypes, past group identities, and evaluate each person based on their achievements, experiences, and potential. It’s a deeply American ideal.
But it can also be a deeply ahistorical one.
In a society shaped by slavery, segregation, redlining, unequal schools, discriminatory policing, and wealth disparities that stretch across generations, group identity often does shape opportunity. To ignore that and act as if every student enters the admissions process with the same starting line is to blind ourselves to structures that still define access.
In that sense, what the Court calls “individualized treatment” may be more fiction than fairness.
Equal Protection in Theory vs. Equal Protection in Context
The Equal Protection Clause, ratified in the aftermath of the Civil War, was meant to ensure that the law did not treat people differently on the basis of race. But for much of its history, it has done so in ways that reflect profound ambivalence about whether racial classifications can ever be used to remedy racial injustice.
On one hand, the Court has struck down explicit segregation and overt racial exclusion (Brown v. Board, Loving v. Virginia). On the other, it has consistently warned against racial classifications—even those used to promote inclusion.
This doctrine rests on a principle of symmetry: If the government can’t disadvantage people based on race, it also can’t advantage them based on race. But in practice, symmetry can reproduce inequality. If a system has long advantaged some and disadvantaged others, treating everyone “the same” going forward doesn’t level the playing field—it locks in the imbalance.
This is why some legal scholars have argued that equal protection should be interpreted in anti-subordination terms: not simply preventing racial classifications, but preventing systems that reinforce racial hierarchy. Under this view, affirmative action isn’t a violation of equality but a fulfillment of it.
But the Court has largely rejected this interpretation.
From Group Harm to Group Remedy—And Back Again
There is, of course, a deep irony in the Roberts Court’s objection to group-based remedies. Because some of the same justices who oppose race-conscious admissions because they treat students as members of racial groups also embrace religious liberty arguments that define harm in group terms—e.g., “religious minorities” or “Christian business owners.”
The inconsistency reflects not just legal doctrine, but political discomfort. Talking about systemic racism invites conflict. It raises hard questions about merit, inheritance, and what fairness really means.
In the wake of the Court’s decision in SFFA v. Harvard, many schools are turning to workarounds: essay prompts that ask students to discuss adversity, new metrics for socioeconomic disadvantage, and renewed interest in geographic and school-district diversity. But these are all, in some sense, proxies. They speak in the language of individual stories, while still hoping to reach historically underrepresented groups.
That may satisfy the doctrine. But it leaves the deeper philosophical problem unresolved.
What About Other Kinds of Diversity?
Critics have long asked: if the goal is diversity of perspectives, why do elite institutions focus so heavily on race and not on political, religious, or ideological diversity?
Where are the efforts to recruit rural white students from conservative towns? Or evangelical Christians? Or working-class students from red states?
These groups are often underrepresented too. Yet universities rarely treat their perspectives as constitutionally compelling. This raises a provocative challenge: If we care about “viewpoint diversity,” why is race the main axis?
The answer often lies in history. Race is not just a difference of opinion—it’s a site of systemic, state-sponsored subordination. That’s why the Equal Protection Clause was written in the first place. But the fact that schools haven’t more robustly pursued other forms of diversity has left affirmative action vulnerable to charges of ideological selectivity.
It also opens a deeper cultural rift—one that populist backlash movements are now exploiting.
The Shift from Justice to Discomfort
In recent years, opponents of affirmative action have shifted their rhetoric. No longer content to argue that racial preferences are unfair, they now argue that they’re divisive. That they cause resentment. That they foster a culture of entitlement.
This is where debates over CRT and DEI enter the conversation. These programs, critics say, make white students feel guilty and Black students feel patronized. They turn the university into a space of political grievance instead of intellectual inquiry.
But this discomfort, too, reveals something. It reveals that race is not a resolved issue but an ongoing negotiation. And that negotiation is not just legal. It’s emotional. Cultural. Structural.
The question is: Can the law hold space for that complexity? Or will it retreat into abstractions like “colorblindness” that pretend complexity doesn’t exist?
What Happens After the Collapse?
With Students for Fair Admissions, the Court dismantled the legal framework that had sustained affirmative action for 45 years. Race can no longer be used—even as one factor among many—if the goal is racial diversity alone.
And so we return to the core question of this series:
What kind of diversity does the Constitution support?
One that enriches the classroom? One that legitimizes leadership? One that helps institutions function? Or one that dares to acknowledge the harm our systems have done—and tries, imperfectly, to repair it?