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Hidden In Plain Sight: A More Compelling Case For Diversity, Jonathan P. Feingold

Utah Law Review

For four decades, the diversity rationale has offered a lifeline to affirmative action in higher education. Yet even after forty years, this critical feature of equal protection doctrine remains constitutionally insecure and politically fraught. Legal challenges persist, the Justice Department has launched a new assault on affirmative action, and a rightward shift on the Supreme Court could usher in an era of increased hostility toward the concept of diversity itself. The future of race-conscious admissions may hang in the balance.

In this Article, I contend that the diversity rationale’s present fragility rests, in part, on its defenders’ failure to center …