Diversity by Facially Neutral Means

*Robert E. Scott Distinguished Professor of Law and Director of the Center for Law and Philosophy, University of Virginia School of Law. I would like to thank Molly Brady, Kim Forde-Mazrui, Benjamin Eidelson, Lily Hu, Mike Seidman, and the participants and audiences at workshops and lectures at the University of Florida Department of Philosophy, the University of Chicago School of Law, Northeastern University Department of Philosophy, the University of Virginia School of Law, and Yale Law School for their very helpful feedback and critique, and Ryan Carp, Jacob Cohen, Maya McCollum, and Nicholas Sheets for excellent research assistance.Show More

The decision in Students for Fair Admissions v. President & Fellows of Harvard College (SFFA), invalidating the use of race in college admissions, reignites a pressing and critical question. Is the deliberate use of facially neutral means to achieve racial diversity constitutionally permissible? The problem is that current equal protection doctrine suggests conflicting answers to this question. On one hand, cases addressing the use of explicit racial classifications state clearly that the use of race is impermissible if diversity could be achieved by facially neutral means. These statements suggest that universities and others may adopt such means. On the other hand, when state actors adopt facially neutral policies that have a disparate negative impact on the basis of race or sex, these policies are impermissible if enacted specifically because they will have this effect. This part of the doctrine suggests that state actors may not adopt facially neutral means of achieving racial diversity if they do so in order to achieve this result.

This Article resolves that enduring puzzle. It does so by explaining that equal protection doctrine contains two distinct commitments: a prohibition on race-based differential treatment and a prohibition on governmental actors intending to harm. The claim that the combination of these commitments—the intent to select on the basis of race—is also forbidden rests on a mistake. Because these two doctrinal threads stem from different normative foundations, they cannot be combined. In addition, while intentions do matter within equal protection doctrine, that observation is overstated. It is only the intent to harm that is constitutionally relevant. Facially neutral policies aimed at increasing racial diversity lack an intent to harm and are therefore permissible.

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Justice Kagan: So suppose that . . . there’s a 10 percent plan or something like that, and part of the justification is socioeconomic diversity and another part of the justification is we’ll also get more racial diversity in this manner. . . . Is that permissible?

Mr. Strawbridge: Well, like I said, it—it’s a different analysis when the . . . mechanism that’s chosen is not a racial classification itself, but I do think that this Court’s precedents—

Justice Kagan: Well, I guess the question is why—why is that true. A lot of our constitutional doctrine suggests that it’s not a different analysis. In other words, one way you can offend the Constitution is by using an impermissible classification. Another way you can offend the Constitution is by devising a proxy mechanism with the purpose of . . . achieving the same results that the impermissible classification would.

Mr. Strawbridge: Right.¹ 1.Transcript of Oral Argument at 13–14, Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 143 S. Ct. 2141 (2023) (No. 21-707).Show More

Introduction

The Supreme Court’s decision in Students for Fair Admissions, Inc. v. President & Fellows of Harvard College (SFFA),² 2.143 S. Ct. 2141 (2023).Show More striking down the use of race-based classifications in university admissions, sets up an important question.³ 3.The use of race in admissions was invalidated because the interests allegedly served by student body diversity are too difficult to measure and because the means adopted to achieve these ends are inapt. Id. at 2166–67. Additionally, in the Court’s view, the policies at issue rely on racial stereotypes and harm those not preferred by the policies. Id. at 2168–70. Chief Justice Roberts’s opinion for the Court does not, however, explicitly overrule Grutter v. Bollinger, 539 U.S. 306 (2003), and explicitly leaves open the question of whether the consideration of race is also impermissible in the context of admissions at the military academies. SFFA, 143 S. Ct. at 2166 n.4 (“This opinion also does not address the issue, in light of the potentially distinct interests that military academies may present.”).Show More May universities adopt “facially neutral”⁴ 4.The term “facially neutral” refers to a law or policy that does not explicitly classify on protected grounds.Show More selection policies that will predictably increase racial diversity if they do so because these policies are likely to have this result?⁵ 5.The Court in SFFA considered both a constitutional claim and a statutory claim but viewed the prohibition on race discrimination contained in Title VI of the Civil Rights Act of 1964 as equivalent to the constitutional requirements of equal protection. For this reason, the result of the constitutional analysis will also have implications for non-state actors. See SFFA, 143 S. Ct. at 2156 n.2 (explaining that the Court would “evaluate Harvard’s admissions program under the standards of the Equal Protection Clause” because “discrimination that violates the Equal Protection Clause of the Fourteenth Amendment committed by an institution that accepts federal funds also constitutes a violation of Title VI” (quoting Gratz v. Bollinger, 539 U.S. 244, 276 n.23 (2003))).Show More Such policies might include admissions guarantees by a state university to the top ten percent of each high school senior class in the state, as Justice Kagan noted in the oral argument of the University of North Carolina case,⁶ 6.See Transcript of Oral Argument at 13–14, SFFA, 143 S. Ct. 2141 (No. 21-707).Show More or “plus” factors for students who are first-generation college students, who attend under-resourced schools, or whose families are poor or are the descendants of enslaved people,⁷ 7.See id. at 13, 43–45.Show More among others.

It may seem like the answer is an obvious “yes,” as Mr. Strawbridge, the lawyer for Students for Fair Admissions, initially suggested.⁸ 8.Id. at 13. Mr. Strawbridge seems to equivocate in his answer to Justice Kagan’s question. He initially seems to say that such policies would be permissible but ultimately does say that if the university adopted the policy at least in part because it would increase diversity and would not have adopted it without this reason, then the facially neutral policy would be impermissible. Id. at 16 (“[I]f the only reason to do it is through the narrow lens of race and there is no other race-neutral justification for it that the government can come forward and demonstrate that would have led it to adopt that policy anyway, I think . . . that’s the only scenario where it would create problems under the Court’s precedent.”).Show More After all, in the affirmative action cases that predate the current decision, narrow tailoring was assessed by reference to whether race-neutral means of achieving diversity were available.⁹ 9.See, e.g., Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 280 n.6 (1986); Grutter v. Bollinger, 539 U.S. 306, 340 (2003) (“We are satisfied that the Law School adequately considered race-neutral alternatives currently capable of producing a critical mass without forcing the Law School to abandon the academic selectivity that is the cornerstone of its educational mission.”); id. at 342 (“Universities in other States can and should draw on the most promising aspects of these race-neutral alternatives as they develop.”).Show More Indeed, the Justices who dissented in those previous cases did so in part on the grounds that such alternatives were present, in their view.¹⁰ 10.See, e.g., Fisher v. Univ. of Tex. at Austin (Fisher II), 579 U.S. 365, 426–27 (2016) (Alito, J., dissenting) (noting that if the University of Texas at Austin adopted race-neutral policies it could achieve diversity “without injecting race into the process”); Grutter, 539 U.S. at 394–95 (Kennedy, J., dissenting) (“Were the courts to apply a searching standard to race-based admissions schemes, that would force educational institutions to seriously explore race-neutral alternatives. . . . Other programs do exist which will be more effective in bringing about the harmony and mutual respect among all citizens that our constitutional tradition has always sought. They, and not the program under review here, should be the model, even if the Court defaults by not demanding it.”); Gratz, 539 U.S. at 297 (Souter, J., dissenting) (“Drawing on admissions systems used at public universities in California, Florida, and Texas, the United States contends that Michigan could get student diversity in satisfaction of its compelling interest by guaranteeing admission to a fixed percentage of the top students from each high school in Michigan. . . . [T]here is nothing unconstitutional about such a practice . . . .”).Show More If the explicit use of race is not narrowly tailored to achieve the educational benefits of diversity when workable race-neutral means exist to achieve the same result, surely the deliberate use of such race-neutral means is constitutionally permissible.¹¹ 11.Judge Heytens makes precisely this argument in response to the claim that the deliberate use of race-neutral polices to increase racial diversity transforms the policy into one that is race-based. See Coal. for TJ v. Fairfax Cnty. Sch. Bd., 68 F.4th 864, 891 (4th Cir. 2023) (Heytens, J., concurring) (emphasizing that “it would be quite the judicial bait-and-switch to say such race-neutral efforts are also presumptively unconstitutional” after spending “decades telling school officials they must consider race-neutral methods for ensuring a diverse student body before turning to race-conscious ones”), cert. denied, No. 23-170, 2024 WL 674659 (U.S. Feb. 20, 2024).Show More

And yet, scholars have long wondered about the constitutional permissibility of such policies.¹² 12.See, e.g., Brian T. Fitzpatrick, Can Michigan Universities Use Proxies for Race After the Ban on Racial Preferences?, 13 Mich. J. Race & L. 277, 283 (2007) (arguing that “antidiscrimination laws have been [and should be] interpreted to prohibit not only facial classifications, but also neutral classifications that were adopted to serve as proxies for the facially-prohibited one”); Richard A. Primus, Equal Protection and Disparate Impact: Round Three, 117 Harv. L. Rev. 493, 496 (2003) (exploring the possibility that disparate impact liability mandated by Title VII may violate the constitutional guarantee of equal protection because that statute was adopted with the purpose of redressing racial inequality); Kim Forde-Mazrui, The Constitutional Implications of Race-Neutral Affirmative Action, 88 Geo. L.J. 2331, 2364–65, 2377 (2000) (arguing that race-neutral affirmative action may be unconstitutional if motivated by the same purposes as affirmative action that relies on racial classification). See generally Larry Alexander & Kevin Cole, Discrimination by Proxy, 14 Const. Comment. 453 (1997) (assuming that the deliberate use of a facially neutral trait to select for people with a protected trait violates the anti-discrimination principle and arguing that equal protection doctrine is internally conflicted).Show More To see the argument for this position, imagine a hypothetical case in which a university admissions program made minority race a minus rather than a plus. After being sued for race discrimination, the university stops using race explicitly in its admissions process. Instead, suppose it adopts a policy disfavoring people from particular zip codes. Further, suppose the university does so because race correlates with zip code, so the university can achieve the same result as it had by explicitly disfavoring people of particular races. If the deliberate use of zip codes to exclude Black students would be impermissible, then should the deliberate use of class rank to include Black students be treated similarly? It is precisely this logic that Justice Kagan referred to in her question to Mr. Strawbridge.

The argument for treating these hypothetical cases the same seems plausible for two reasons. First, when facially neutral policies disadvantage women or racial minorities, the Court evaluates these policies by reference to the reasons for which they were adopted. If the state chose the facially neutral policy “because of” its effect, then the policy is treated as if it contains an explicit classification.¹³ 13.Pers. Adm’r of Mass. v. Feeney, 442 U.S. 256, 279 (1979) (emphasis added) (requiring a showing that a defendant discriminated “‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable group” in order to impose liability). The Feeney Court upheld Massachusetts’s preference for veterans in civil service positions, despite the fact that the policy disproportionately excluded women, because the policy was not adopted in order to exclude women. Id. at 275. The clear implication of this holding is that had the policy been adopted in order to exclude women, it would be impermissible.Show More Second, when explicit classifications are used, the Court has treated the fact that the policy was well-motivated as legally insignificant, and has treated a benefit on the basis of race in the same manner as a burden.¹⁴ 14.The Chief Justice emphasizes this fact in SFFA. See SFFA, 143 S. Ct. 2141, 2175 (2023) (critiquing the dissent by asserting that “[w]hile the dissent would certainly not permit university programs that discriminated against black and Latino applicants, it is perfectly willing to let the programs here continue”).Show More For example, the explicit use of race in higher education admissions must pass strict scrutiny even when the policy is adopted for benign or even laudable reasons.¹⁵ 15.See id. at 2166; Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 298–99 (1978) (holding that whether a racial classification is used for benign purposes or invidious ones is not relevant and instead that classifications that “touch upon an individual’s race or ethnic background” all require the application of strict scrutiny).Show More Moreover, in SFFA, Chief Justice Roberts emphasized that university admissions is a “zero-sum” enterprise, and so, in his view, giving a plus to some applicants necessarily functions as a minus to others.¹⁶ 16.SFFA, 143 S. Ct. at 2169 (“A benefit provided to some applicants but not to others necessarily advantages the former group at the expense of the latter.”).Show More According to the combined logic of these two features of the doctrine, the deliberate use of class rank to select for minority applicants would seem to be constitutionally impermissible.

The Court’s opinion in SFFA itself does not directly address the question of whether universities may use race-neutral means to achieve diversity.¹⁷ 17.In another case, the Chief Justice has suggested that he would find such motivation suspect. See, for example, Chief Justice Roberts’s comment in Parents Involved,where he opined that “[r]acial balancing is not transformed from ‘patently unconstitutional’ to a compelling state interest simply by relabeling it ‘racial diversity,’” which suggests that he might find intending to select for people on the basis of race to also be a patently unconstitutional motivation. Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 732 (2007).Show More However, Justice Kavanaugh, concurring, indicated that he would find it constitutional for a university to do so: “[G]overnments and universities still ‘can, of course, act to undo the effects of past discrimination in many permissible ways that do not involve classification by race.’”¹⁸ 18.SFFA, 143 S. Ct. at 2225 (Kavanaugh, J., concurring) (quoting City of Richmond v. J.A. Croson Co., 488 U.S. 469, 526 (1989) (Scalia, J., concurring)).Show More And Justice Gorsuch noted that “Harvard could nearly replicate the current racial composition of its student body without resorting to race-based practices if it: (1) provided socioeconomically disadvantaged applicants just half of the tip it gives recruited athletes; and (2) eliminated tips for the children of donors, alumni, and faculty.”¹⁹ 19.Id. at 2215 (Gorsuch, J., concurring).Show More The implication of this comment is that it would be permissible for Harvard to do so, even if it is motivated to adopt these policies to replicate the current racial composition of the class. Lastly, Justice Thomas, concurring, used language that suggests that he too would find the use of race-neutral policies to achieve a diverse student body permissible. He wrote: “Race-neutral policies may thus achieve the same benefits of racial harmony and equality without any of the burdens and strife generated by affirmative action policies.”²⁰ 20.Id. at 2206 (Thomas, J., concurring).Show More That said, none of these statements specifically address whether race-neutral policies deliberately adopted to achieve racial diversity would be constitutional.²¹ 21.What Justice Thomas would say about such a case is especially uncertain, as other parts of his concurring opinion suggest that he finds questionable the very idea that racial diversity is important in higher education. See id. at 2207.Show More

The argument that they are not constitutional has recently gained traction. For example, it has already appeared in debates about the admissions criteria for public magnet schools.²² 22.For a recent analysis, see Sonja Starr, The Magnet School Wars and the Future of Colorblindness, 76 Stan. L. Rev. 161, 163–64 (2024). Show More In Coalition for TJ v. Fairfax County School Board, a change from one facially neutral admissions policy to another at the Thomas Jefferson High School for Science and Technology (“TJ”) was challenged on the grounds that the change was motivated by a desire to “racially balance” the school.²³ 23.See Coal. for TJ v. Fairfax Cnty. Sch. Bd., 68 F.4th 864, 871–72, 875–76 (4th Cir. 2023). Judge Rushing, dissenting, argued that a “school board’s motivation to racially balance its schools, even using the means of a facially neutral policy, must be tested under exacting judicial scrutiny.” Id. at 893 (Rushing, J., dissenting).Show More While one could interpret that claim as alleging that the School Board intended to exclude Asian students, which would be prohibited, it could also be understood as a claim that the School Board impermissibly changed its policy in order to include more Black and Latinx students. In its petition for certiorari, the petitioners fused these questions and treated these claims as equivalent.²⁴ 24.See Petition for Writ of Certiorari at 13, Coal. for TJ, No. 23-170 (U.S. Aug. 21, 2023) (styling their first reason for granting the petition in these terms: “The Use of Facially Race-Neutral Admissions Criteria to Achieve Racial Balance Presents an Unsettled Question of National Importance”).Show More To date, this argument has not succeeded,²⁵ 25.The majority opinion in Coalition for TJ does not specifically address this issue. See generally Coal. for TJ, 68 F.4th 864. In Christa McAuliffe Intermediate School PTO, Inc. v. de Blasio, the plaintiffs unsuccessfully argued that “where the government shifts to a policy that treats applicants differently based on a factor that is designed to operate as a proxy for race, it becomes suspect.” 627 F. Supp. 3d 253, 263–65 (S.D.N.Y. 2022).Show More but it has not been repudiated, either.²⁶ 26.See, for example, Lewis v. Ascension Parish SchoolBoard, 662 F.3d 343, 352 (5th Cir. 2011) (per curiam), in which the Fifth Circuit reversed the lower court’s summary judgment and remanded the case in light of the existence of genuine issues of material fact regarding whether a racially discriminatory purpose and effect were present. Then-Chief Judge Jones, concurring, asserted that geographic boundaries used in student assignment are not racially neutral if adopted for the purpose of achieving racial balance in the schools. Id. at 354 (Jones, C.J., concurring) (“Streets . . . may well be racial proxies because the district or its agents apparently knew and used the racial composition of the people living on those streets to pursue racial balancing.”). Following remand to the district court, the Fifth Circuit upheld the finding of no constitutional violation without reaching the question of whether discriminatory intent was present. Lewis v. Ascension Parish Sch. Bd., 806 F.3d 344, 358, 363 (5th Cir. 2015).Show More And, while the Supreme Court declined to grant certiorari in this case, its reasons for doing so are unknown.²⁷ 27.Coal. for TJ v. Fairfax Cnty. Sch. Bd., No. 23-170, 2024 WL 674659, at *1 (U.S. Feb. 20, 2024). Justice Alito, joined by Justice Thomas, dissented from the denial of certiorari but did so for reasons unrelated to the question regarding what intentions are prohibited under equal protection doctrine. Id. at *1, 5 (Alito, J., dissenting from the denial of certiorari).Show More Perhaps the Court approved of the reasoning of the U.S. Court of Appeals for the Fourth Circuit that the use of facially neutral policies to increase diversity is permissible, or perhaps the Court was simply not yet ready to take this issue on.

This unresolved question comes with high stakes. If the Court decides that facially neutral policies adopted to increase racial diversity in public magnet schools are unconstitutional, many policies, both within the education context and beyond it, would also be at risk. For example, suppose a universal pre-kindergarten program is adopted in order to reduce racial disparities in educational achievement. Or suppose a city adopts a government-funded doula program in order to reduce the racial disparity in maternal death rates.²⁸ 28.See, e.g., Zeina Mohammed, Black Women Are More Likely to Die During Pregnancy. A Local Doula Program Aims to Change That, Bos. Globe (Dec. 30, 2022, 5:14 PM), https://www.bostonglobe.com/2022/12/30/metro/mass-general-brighams-doula-program-aim‌s-close-racial-disparities-childbirth/; Working Together to Reduce Black Maternal Mortality, Ctrs. for Disease Control & Prevention, https://www.cdc.gov/womens-health/features/matern‌al-mortality.html [https://perma.cc/4TR9-VV7E] (last updated Apr. 8, 2024).Show More If the intention to affect which racial group is most benefited by a policy constitutes an impermissible intent, these programs would be subject to strict scrutiny. While such policies could be adopted for alternative reasons, unrelated to the race of likely beneficiaries, if they would not have been adopted for these alternative reasons alone, then the constitutional problem remains.²⁹ 29.Where a constitutionally impermissible reason is a motivating reason for facially neutral state action, the burden shifts to the state to show that the same decision would have been reached absent the impermissible motivation. If the state is unable to do so, the facially neutral policy is subject to heightened review. See Village of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 265–66, 270 n.21 (1977).Show More

Moreover, the implications of invalidating facially neutral policies enacted to improve racial diversity or reduce racial disparities likely apply beyond the constitutional context. Because the Court in SFFA treats the requirements of Title VI of the Civil Rights Act of 1964 as equivalent to the requirements of equal protection, prohibitions on the deliberate adoption of facially neutral means of achieving diversity could also extend to non-state actors receiving federal funds.³⁰ 30.See supra note 5.Show More

This Article thus addresses a pressing and critical question. To restate it in terms of the two hypothetical policies mentioned earlier, we need to know: What, if anything, distinguishes the use of class rank to include minority students from the use of zip codes to exclude them? In the following Parts, I provide a novel answer to that enduring puzzle. The answer, which I call the “Distinct Threads” approach, rests on the claim that though equal protection doctrine prohibits race-based differential treatment and prohibits actions taken with impermissible intent, these two proscriptions rest on different foundations and cannot be combined. In addition, I argue that the focus on impermissible intent is poorly understood. What the doctrine prohibits is only actions that are motivated by the harm they cause to individuals or groups. Facially neutral policies that are deliberately adopted in order to increase racial diversity neither involve race-based differential treatment, nor are they motivated by the desire to cause harm. As a result, these actions are permissible.

The argument for this solution proceeds as follows. Part I lays out the question this Article investigates and describes the three conceptually available answers. In addition, Part I describes how other scholars have analyzed the question and explains why their answers are unsatisfactory. Part II describes my proposed solution. It argues for the claim that the prohibitions contained within equal protection doctrine cannot be combined and diagnoses why the prohibition on invidious intent has been misunderstood. Part III elaborates this account, explaining why harm must be assessed objectively and describing how current doctrine supports the view that racial isolation is a harm. In addition, Part III discusses the implications of this account for our understanding of the term “race conscious” and for how courts ought to evaluate implicit bias. A brief conclusion follows.

1.  Transcript of Oral Argument at 13–14, Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 143 S. Ct. 2141 (2023) (No. 21-707). ↑
2.  143 S. Ct. 2141 (2023). ↑
3.  The use of race in admissions was invalidated because the interests allegedly served by student body diversity are too difficult to measure and because the means adopted to achieve these ends are inapt. Id. at 2166–67. Additionally, in the Court’s view, the policies at issue rely on racial stereotypes and harm those not preferred by the policies. Id. at 2168–70. Chief Justice Roberts’s opinion for the Court does not, however, explicitly overrule Grutter v. Bollinger, 539 U.S. 306 (2003), and explicitly leaves open the question of whether the consideration of race is also impermissible in the context of admissions at the military academies. SFFA, 143 S. Ct. at 2166 n.4 (“This opinion also does not address the issue, in light of the potentially distinct interests that military academies may present.”). ↑
4.  The term “facially neutral” refers to a law or policy that does not explicitly classify on protected grounds. ↑
5.  The Court in SFFA considered both a constitutional claim and a statutory claim but viewed the prohibition on race discrimination contained in Title VI of the Civil Rights Act of 1964 as equivalent to the constitutional requirements of equal protection. For this reason, the result of the constitutional analysis will also have implications for non-state actors. See SFFA, 143 S. Ct. at 2156 n.2 (explaining that the Court would “evaluate Harvard’s admissions program under the standards of the Equal Protection Clause” because “discrimination that violates the Equal Protection Clause of the Fourteenth Amendment committed by an institution that accepts federal funds also constitutes a violation of Title VI” (quoting Gratz v. Bollinger, 539 U.S. 244, 276 n.23 (2003))). ↑
6.  See Transcript of Oral Argument at 13–14, SFFA, 143 S. Ct. 2141 (No. 21-707). ↑
7.  See id. at 13, 43–45. ↑
8.  Id. at 13. Mr. Strawbridge seems to equivocate in his answer to Justice Kagan’s question. He initially seems to say that such policies would be permissible but ultimately does say that if the university adopted the policy at least in part because it would increase diversity and would not have adopted it without this reason, then the facially neutral policy would be impermissible. Id. at 16 (“[I]f the only reason to do it is through the narrow lens of race and there is no other race-neutral justification for it that the government can come forward and demonstrate that would have led it to adopt that policy anyway, I think . . . that’s the only scenario where it would create problems under the Court’s precedent.”). ↑
9.  See, e.g., Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 280 n.6 (1986); Grutter v. Bollinger, 539 U.S. 306, 340 (2003) (“We are satisfied that the Law School adequately considered race-neutral alternatives currently capable of producing a critical mass without forcing the Law School to abandon the academic selectivity that is the cornerstone of its educational mission.”); id. at 342 (“Universities in other States can and should draw on the most promising aspects of these race-neutral alternatives as they develop.”). ↑
10.  See, e.g., Fisher v. Univ. of Tex. at Austin (Fisher II), 579 U.S. 365, 426–27 (2016) (Alito, J., dissenting) (noting that if the University of Texas at Austin adopted race-neutral policies it could achieve diversity “without injecting race into the process”); Grutter, 539 U.S. at 394–95 (Kennedy, J., dissenting) (“Were the courts to apply a searching standard to race-based admissions schemes, that would force educational institutions to seriously explore race-neutral alternatives. . . . Other programs do exist which will be more effective in bringing about the harmony and mutual respect among all citizens that our constitutional tradition has always sought. They, and not the program under review here, should be the model, even if the Court defaults by not demanding it.”); Gratz, 539 U.S. at 297 (Souter, J., dissenting) (“Drawing on admissions systems used at public universities in California, Florida, and Texas, the United States contends that Michigan could get student diversity in satisfaction of its compelling interest by guaranteeing admission to a fixed percentage of the top students from each high school in Michigan. . . . [T]here is nothing unconstitutional about such a practice . . . .”). ↑
11.  Judge Heytens makes precisely this argument in response to the claim that the deliberate use of race-neutral polices to increase racial diversity transforms the policy into one that is race-based. See Coal. for TJ v. Fairfax Cnty. Sch. Bd., 68 F.4th 864, 891 (4th Cir. 2023) (Heytens, J., concurring) (emphasizing that “it would be quite the judicial bait-and-switch to say such race-neutral efforts are also presumptively unconstitutional” after spending “decades telling school officials they must consider race-neutral methods for ensuring a diverse student body before turning to race-conscious ones”), cert. denied, No. 23-170, 2024 WL 674659 (U.S. Feb. 20, 2024). ↑
12.  See, e.g., Brian T. Fitzpatrick, Can Michigan Universities Use Proxies for Race After the Ban on Racial Preferences?, 13 Mich. J. Race
    

    & L

    . 277, 283 (2007) (arguing that “antidiscrimination laws have been [and should be] interpreted to prohibit not only facial classifications, but also neutral classifications that were adopted to serve as proxies for the facially-prohibited one”); Richard A. Primus, Equal Protection and Disparate Impact: Round Three, 117 Harv. L. Rev. 493, 496 (2003) (exploring the possibility that disparate impact liability mandated by Title VII may violate the constitutional guarantee of equal protection because that statute was adopted with the purpose of redressing racial inequality); Kim Forde-Mazrui, The Constitutional Implications of Race-Neutral Affirmative Action, 88 Geo. L.J. 2331, 2364–65, 2377 (2000) (arguing that race-neutral affirmative action may be unconstitutional if motivated by the same purposes as affirmative action that relies on racial classification). See generally Larry Alexander & Kevin Cole, Discrimination by Proxy, 14 Const. Comment. 453 (1997) (assuming that the deliberate use of a facially neutral trait to select for people with a protected trait violates the anti-discrimination principle and arguing that equal protection doctrine is internally conflicted). ↑

13.  Pers. Adm’r of Mass. v. Feeney, 442 U.S. 256, 279 (1979) (emphasis added) (requiring a showing that a defendant discriminated “‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable group” in order to impose liability). The Feeney Court upheld Massachusetts’s preference for veterans in civil service positions, despite the fact that the policy disproportionately excluded women, because the policy was not adopted in order to exclude women. Id. at 275. The clear implication of this holding is that had the policy been adopted in order to exclude women, it would be impermissible. ↑
14.  The Chief Justice emphasizes this fact in SFFA. See SFFA, 143 S. Ct. 2141, 2175 (2023) (critiquing the dissent by asserting that “[w]hile the dissent would certainly not permit university programs that discriminated against black and Latino applicants, it is perfectly willing to let the programs here continue”). ↑
15.  See id. at 2166; Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 298–99 (1978) (holding that whether a racial classification is used for benign purposes or invidious ones is not relevant and instead that classifications that “touch upon an individual’s race or ethnic background” all require the application of strict scrutiny). ↑
16.  SFFA, 143 S. Ct. at 2169 (“A benefit provided to some applicants but not to others necessarily advantages the former group at the expense of the latter.”). ↑
17.  In another case, the Chief Justice has suggested that he would find such motivation suspect. See, for example, Chief Justice Roberts’s comment in Parents Involved, where he opined that “[r]acial balancing is not transformed from ‘patently unconstitutional’ to a compelling state interest simply by relabeling it ‘racial diversity,’” which suggests that he might find intending to select for people on the basis of race to also be a patently unconstitutional motivation. Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 732 (2007). ↑
18.  SFFA, 143 S. Ct. at 2225 (Kavanaugh, J., concurring) (quoting City of Richmond v. J.A. Croson Co., 488 U.S. 469, 526 (1989) (Scalia, J., concurring)). ↑
19.  Id. at 2215 (Gorsuch, J., concurring). ↑
20.  Id. at 2206 (Thomas, J., concurring). ↑
21.  What Justice Thomas would say about such a case is especially uncertain, as other parts of his concurring opinion suggest that he finds questionable the very idea that racial diversity is important in higher education. See id. at 2207. ↑
22.  For a recent analysis, see Sonja Starr, The Magnet School Wars and the Future of Colorblindness, 76 Stan. L. Rev.
    

    161, 163–64 (2024).

    ↑

23.  See Coal. for TJ v. Fairfax Cnty. Sch. Bd., 68 F.4th 864, 871–72, 875–76 (4th Cir. 2023). Judge Rushing, dissenting, argued that a “school board’s motivation to racially balance its schools, even using the means of a facially neutral policy, must be tested under exacting judicial scrutiny.” Id. at 893 (Rushing, J., dissenting). ↑
24.  See Petition for Writ of Certiorari at 13, Coal. for TJ, No. 23-170 (U.S. Aug. 21, 2023) (styling their first reason for granting the petition in these terms: “The Use of Facially Race-Neutral Admissions Criteria to Achieve Racial Balance Presents an Unsettled Question of National Importance”). ↑
25.  The majority opinion in Coalition for TJ does not specifically address this issue. See generally Coal. for TJ, 68 F.4th 864. In Christa McAuliffe Intermediate School PTO, Inc. v. de Blasio, the plaintiffs unsuccessfully argued that “where the government shifts to a policy that treats applicants differently based on a factor that is designed to operate as a proxy for race, it becomes suspect.” 627 F. Supp. 3d 253, 263–65 (S.D.N.Y. 2022). ↑
26.  See, for example, Lewis v. Ascension Parish School Board, 662 F.3d 343, 352 (5th Cir. 2011) (per curiam), in which the Fifth Circuit reversed the lower court’s summary judgment and remanded the case in light of the existence of genuine issues of material fact regarding whether a racially discriminatory purpose and effect were present. Then-Chief Judge Jones, concurring, asserted that geographic boundaries used in student assignment are not racially neutral if adopted for the purpose of achieving racial balance in the schools. Id. at 354 (Jones, C.J., concurring) (“Streets . . . may well be racial proxies because the district or its agents apparently knew and used the racial composition of the people living on those streets to pursue racial balancing.”). Following remand to the district court, the Fifth Circuit upheld the finding of no constitutional violation without reaching the question of whether discriminatory intent was present. Lewis v. Ascension Parish Sch. Bd., 806 F.3d 344, 358, 363 (5th Cir. 2015). ↑
27.  Coal. for TJ v. Fairfax Cnty. Sch. Bd., No. 23-170, 2024 WL 674659, at *1 (U.S. Feb. 20, 2024). Justice Alito, joined by Justice Thomas, dissented from the denial of certiorari but did so for reasons unrelated to the question regarding what intentions are prohibited under equal protection doctrine. Id. at *1, 5 (Alito, J., dissenting from the denial of certiorari). ↑
28.  See, e.g., Zeina Mohammed, Black Women Are More Likely to Die During Pregnancy. A Local Doula Program Aims to Change That, Bos. Globe (Dec. 30, 2022, 5:14 PM), https://www.bostonglobe.com/2022/12/30/metro/mass-general-brighams-doula-program-aim‌s-close-racial-disparities-childbirth/
    

    ;

    Working

    Together to Reduce Black Maternal Mortality, Ctrs. for Disease Control & Prevention, https://www.cdc.gov/womens-health/features/matern‌al-mortality.html [https://perma.cc/4TR9-VV7E] (last updated Apr. 8, 2024). ↑

29.  Where a constitutionally impermissible reason is a motivating reason for facially neutral state action, the burden shifts to the state to show that the same decision would have been reached absent the impermissible motivation. If the state is unable to do so, the facially neutral policy is subject to heightened review. See Village of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 265–66, 270 n.21 (1977). ↑

30.  See supra note 5. ↑