Abstract

Excerpted From: Nancy Leong, Diversity Messaging after Affirmative Action, 109 Minnesota Law Review 1059 (February, 2025) (386 Footnotes) (Full Document)

On June 16, 2023, Yale Law School's "Diversity & Inclusion" website broadcast a strong commitment to racial justice. A banner at the top of the page featured a photo of smiling racially diverse young people. A message from Dean Heather Gerken stated: "Diversity and inclusion are core to the values of this school." Dean Gerken's message proclaimed, in bold text, that "[t]he most daunting and important challenges we face, both as a society and as a school, stem from the powerful effects of past and present racial discrimination." The message went on to highlight that Yale Law's six most recent classes had been the most diverse in its history, with 55% students of color and 52% women.

By August 16, 2023--just two months later--much had changed. The webpage, now hosted at a different link, had been retitled "Equity, Inclusion, & Belonging." Gone was Dean Gerken's stirring message, replaced by a brief unsigned paragraph that stated: "We are committed to prioritizing equity, inclusion, and belonging within the Yale Law School community and in broader partnership with Yale University." Gone were the comments about the daunting challenges of past and present racial discrimination. Gone were the statistics about the diversity of Yale Law School's recent classes. The sole remnant of the June website was the banner photo with the smiling racially diverse young people.

What happened between June 16 and August 16? For one thing, the Supreme Court decided Students for Fair Admissions v. President of Harvard College (SFFA) on June 29, 2023. There, the Court held that race-conscious admissions programs at Harvard and the University of North Carolina (UNC) violated the Equal Protection Clause and Title VI of the Civil Rights Act of 1964. The decision effectively eliminated race-based affirmative action programs in higher education. Colleges and universities could still pursue the goal of racial diversity, the Court held, but could not do so by using race as a factor in evaluating individual applicants.

Considerable scholarly analysis and popular commentary have already examined SFFA's implications for college and university admissions. These implications are substantial: one study found that seventy-four percent of selective colleges and universities used race as a factor in their admissions processes prior to SFFA, and these schools will need to revise their procedures to comply with the decision. Such revisions may dramatically impair racial justice efforts by reducing enrollment of students from underrepresented racial groups.

But SFFA affects more than admissions processes. The decision also implicates a practice I will call diversity messaging--public signaling about racial diversity. At colleges and universities, diversity messaging may include public statements by the institution's leadership, information on the institution's website, promotional brochures, and other public-facing materials produced by the institution.

To understand the significance of diversity messaging in higher education, we must consider the complex history of the diversity rationale for affirmative action. Forty-five years before SFFA, the Supreme Court decided Regents of the University of California v. Bakke, in which Justice Powell's controlling opinion concluded that "obtaining the educational benefits that flow from an ethnically diverse student body" could justify the use of race in college and university admissions. Many commentators criticized the diversity rationale for its weak relationship to racial justice: renowned critical race theory scholar Charles Lawrence wrote that diversity was a "substanceless" concept that held "no inherent meaning." Others observed that the diversity rationale was palatable precisely because of its indeterminacy. The diversity rationale was flexible enough to capture progressive ideals of racial justice without overtly excluding conservative constituencies, because, in theory, anyone could contribute to diversity. And so diversity messaging became a convenient way for schools to signal a commitment to racial justice while minimizing the extent to which they alienated other stakeholders.

SFFA, however, effectively invalidated higher education admissions processes that consider the race of individual applicants in order to achieve the benefits of student body diversity. So a school that expresses an affinity for diversity--particularly the racial kind--now risks the perception that it is engaged in an impermissible endeavor. Diversity messaging has become fraught with legal and political hazards.

This Article investigates empirically whether schools have changed their diversity messaging after SFFA, and, if so, how. Using law schools as a case study, I examined three sources of diversity messaging: application materials; faculty hiring announcements; and diversity, equity, and inclusion (DEI) websites. Many law school application materials signal an interest in diversity by requesting that applicants discuss diversity in their personal statement or a supplemental essay. Likewise, many law school hiring announcements indicate that a school is interested in diversity by stating that the school seeks candidates who would contribute to its diversity or by requesting that candidates submit a "diversity statement." And law school DEI websites provide a forum for schools to communicate the value they place on diversity to current and prospective students, faculty, alumni, and the world at large.

Examining each of these sources of diversity messaging before and after SFFA revealed significant changes in schools' diversity messaging. Seventy-three percent of law schools revised the diversity messaging in their application materials: explicit references to race decreased by 73%, and explicit references to diversity decreased by 36%. Similarly, 44% of law schools revised the diversity messaging in their hiring announcements: 50% of those schools eliminated language stating that they actively seek or value diversity, and the number of schools requesting a diversity statement decreased by 33%. And 54% of law schools revised their DEI websites in the five months following SFFA, with 48% of those schools deleting explicit references to race or diversity, and several schools completely deleting their DEI pages. (The empirical information used for this Article was current as of August 2023.)

A small subset of the changes schools made to their diversity messaging was required by SFFA. But even the changes to application materials far exceeded those that SFFA mandated. For example, SFFA did not prohibit schools from inviting applicants to discuss how they would contribute to the diversity of the law school community or from considering an applicant's discussion of the way that race impacted their life. It held only that schools could not use the bare fact of a student's racial identity characteristics as a factor in their decisions. Yet many schools eliminated such essay prompts from their application materials or revised them so that they no longer explicitly referenced diversity. The revisions to hiring announcements and DEI websites went further still: Although SFFA said nothing at all about diversity statements in hiring processes or DEI website content, many schools eliminated these forms of diversity messaging altogether.

The Article then considers possible explanations for these sweeping revisions. It may be that schools are revising their diversity messaging to minimize legal, political, and social risks. Such behavior implies that some colleges and universities were willing to prioritize racial diversity only when their efforts were relatively costless. Now that SFFA has increased the risks of diversity messaging, perhaps some schools have quietly decided that it is no longer worth the effort.

Ultimately, however, the changes in diversity messaging may not matter much as far as racial equity is concerned. That is, the fact that schools are saying less about race does not have to mean that they must do less about racial justice. Indeed, by directing fewer resources to diversity messaging, schools may find that they have more time, money, energy, and goodwill to devote to substantive racial reforms. I explore three reforms that are not dependent on diversity messaging: substantive curricular offerings, cluster hiring centered around racial justice, and financial aid for students who seek to pursue careers in racial justice. This list of reforms is by no means exhaustive; rather, it is intended to demonstrate that robust racial justice measures have not been foreclosed by SFFA and may operate wholly independent of diversity messaging efforts.

The balance of the Article is organized in three parts. Part I examines the diversity rationale, uncovering its origins and considering common critiques. Part II presents original empirical research comparing schools' diversity messaging before and after SFFA. It demonstrates that schools have significantly reduced their diversity messaging beyond what is required by SFFA. Finally, Part III considers the implications of these empirical findings, first positing possible explanations and then arguing that the decline in diversity messaging need not limit racial justice reforms.

[. . .]

This Article has demonstrated a significant decrease in diversity messaging after SFFA. But this shift need not stifle racial justice efforts. Indeed, the move away from diversity messaging liberates money, time, energy, and goodwill that could be better directed toward substantive reforms advancing racial equity. SFFA is the law; it dictates the shape of schools' admissions processes. But it still remains within schools' power to throw their resolve behind expansive and transformative racial justice measures. Time will tell whether they do.

Associate Dean for Faculty Scholarship & Provost Professor, University of Denver Sturm College of Law.