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UC Law Constitutional Quarterly

Abstract

The Supreme Court’s decision in Students for Fair Admissions v. Harvard College marked the end of affirmative action as traditionally practiced in higher education admissions, forcing universities to seek alternative legal pathways for fostering diversity. At the same time, the Trump administration’s executive orders targeting DEI initiatives have exacerbated the legal uncertainty, raising critical questions about how institutions can preserve fairness in admissions while withstanding both judicial and political scrutiny.

This article argues that Procedural Due Process—when read in conjunction with Equal Protection—provides a constitutionally sound and structurally fair framework for admissions policies that align with strict scrutiny while preserving diversity. Specifically, it explores the narrowly tailored component of the Equal Protection analysis, assessing how universities can design transparent, neutral, and procedurally robust admissions programs that enhance legitimacy and resilience against constitutional challenges.

The strength of this approach is confirmed by some recent lower federal courts’ opinions, granting equitable relief against such orders on Procedural Due Process and First Amendment grounds, showing how fairness, neutrality, and structured decision-making can provide a constitutionally viable means for universities to sustain diversity efforts.

This article is closely connected to my companion piece, The Role of First Amendment in Equal Protection and Affirmative Action Analysis: The Compelling Governmental Interest, arguing that academic freedom and free speech offer additional constitutional grounding for race-conscious admissions and legitimate DEI initiatives. Together, these works provide a forward- looking constitutional roadmap to help universities navigate the post- Students for Fair Admissions era and resist new government efforts to dismantle DEI programs.

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