One of the more interesting, but less reported, aspects of the Supreme Court’s decision in the landmark affirmative action case Students for Fair Admissions v. Harvard was its criticism of universities’ racial categories in admissions policies.
That critique opens a new way to challenge racial discrimination in court. Lawyers and litigants who care about racial equality should take full advantage of it.
The high court’s perspective on racial categories arose out of what is known among lawyers as “the diversity rationale,” which comes from a 1978 opinion by Justice Lewis Powell.
Subsequently adopted by a majority of the court, it holds that colleges had some latitude to discriminate on the basis of race to achieve “genuine diversity” on campus.
Genuine diversity means diversity of thought, culture, experience, religion, philosophy, and so on. The…
