The decision in Students for Fair Admissions v. President and Fellows of Harvard [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 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 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 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.