SIDEBAR: Back to School, Without Affirmative Action
What Equal Protection means now
SIDEBAR is my occasional op-ed series on unfolding constitutional controversies. These pieces step outside the usual analysis to weigh in on the news of the moment.
In just a few weeks, students will return to college campuses across the country—into an environment reshaped by the Supreme Court’s decision to end affirmative action. The effects are no longer theoretical: last year’s freshman class revealed the consequences of that ruling. At Amherst College, Black student enrollment dropped by eight percentage points. At MIT, it plunged from 15 percent to just 5 percent. Yet somehow, Yale, Princeton and Duke maintained their diversity levels, raising uncomfortable questions about whether some schools are quietly working around the Court’s decision.
Now, as the class of 2029 settles into dorm rooms, the Trump administration has escalated the stakes. This spring, federal investigators launched probes into more than 50 universities for alleged racial discrimination — not against students of color, but against white and Asian American students. The charge? That DEI programs (diversity, equity and inclusion) give unfair advantage to underrepresented groups. Unless universities certify that they run no “illegal” diversity efforts, they risk losing federal funds.
That’s more than a shift in enforcement priorities. It’s a stunning reversal: civil rights laws once used to dismantle segregation are now being leveraged to dismantle efforts at racial integration.
Of course, questions about how DEI programs are designed and implemented are fair, and many institutions have taken those critiques seriously. Even those who believe in the fundamental importance of diversity can acknowledge that some approaches have fallen short or have been perceived as exclusionary. These are not reasons to abandon the goals altogether, but to refine how we pursue them.
At heart, though, this isn’t just a policy dispute. It’s a clash between two constitutional visions: one that views equality as requiring colorblindness, and another that understands justice as requiring attention to race and competing histories. The conflict has been decades in the making.
In 1978, in Regents of the University of California v. Bakke, the Supreme Court tried to walk a tightrope. Justice Lewis Powell allowed universities to consider race as one factor among many to promote the educational benefits of diversity. The goal was a richer classroom conversation, not racial remedy.
But by 2003, in Grutter v. Bollinger, diversity had morphed from intellectual enrichment into national necessity. The Court spoke of producing military officers, Fortune 500 executives, and judges who looked like the communities they served. Colleges weren’t just classrooms anymore; they were training grounds for America’s leadership class.
That broader rationale helped Grutter survive constitutional scrutiny — but it came at a price. If diversity served institutional goals rather than individual justice, then who was it really for?
Too often, the answer was: everyone else. Students of color were no longer being admitted because they deserved opportunity or because the law demanded a remedy for past discrimination. They were being admitted to help others learn, to make universities look good, to fill out the brochure. As Justice Clarence Thomas warned in Grutter, such policies risked turning students into instruments of “racial engineering” — valued not for who they were, but for what they symbolized.
And so, the seeds of affirmative action’s downfall were sown.
That downfall came in Students for Fair Admissions v. Harvard (2023). The Court ruled that race-conscious admissions violated the Constitution’s guarantee of equal protection. Chief Justice John Roberts insisted that applicants must be treated as individuals, not as representatives of racial groups. In one sweep, the Court ended the era of affirmative action in higher education.
Trump’s executive orders take that logic even further. They direct federal agencies to review DEI initiatives across the board, not just in admissions, but also in hiring, training, and campus programs. Agencies have been instructed to treat nearly any consideration of race as suspect. Schools that fail to comply face losing federal support.
But this approach ignores a deeper reality: DEI programs often help organizations comply with civil rights laws by ensuring that opportunity is truly equal. When deep-rooted disparities persist, treating everyone “the same” often cements inequality.
This constitutional paradox — between the promise of equal protection and the persistence of unequal conditions — lies at the heart of our national debate. Does fairness mean treating everyone identically, or does it mean recognizing how unequal starting points still shape opportunity?
Recently, a federal judge blocked major portions of Trump’s anti-DEI orders, calling them vague and likely unconstitutional. But the court battle won’t end there. The bigger question remains unresolved.
Maybe the answer isn’t to choose between individual rights and group equality, but to see how one can depend on the other. True individual fairness sometimes requires acknowledging group-based disadvantage. The Constitution’s promise of equal protection isn’t fulfilled by pretending that race doesn’t matter; it’s fulfilled by knowing when it does.
Until we reconcile that fundamental tension, our battles over diversity will keep flaring up with each political swing. The questions aren’t new. But we’re still struggling to answer them.
This piece was published at Deseret News.