Diversity by Facially Neutral Means

45 Pages Posted: 29 Feb 2024 Last revised: 11 Mar 2024

See all articles by Deborah Hellman

Deborah Hellman

University of Virginia School of Law

Date Written: February 28, 2024


The decision in Students for Fair Admissions v. President and Fellows of Har-vard [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 the 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 poli-cies that have a disparate negative impact on the basis of race or sex, these poli-cies 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 argument that the combination of these commitments – the intent to select on the basis of race – is also forbidden is a mistake. Because these two doctrinal threads rest on different normative foundations, they cannot be com-bined. 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.

Keywords: Discrimination, diversity, facially neutral, equal protection

Suggested Citation

Hellman, Deborah, Diversity by Facially Neutral Means (February 28, 2024). 110 Va. L. Rev. (forthcoming, 2024), Virginia Public Law and Legal Theory Research Paper No. 2024-24, Available at SSRN: https://ssrn.com/abstract=4742118

Deborah Hellman (Contact Author)

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States

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