Affirmative Action One Year Later: A Conversation with Devon Westhill 

This month marks the first anniversary of the Supreme Court’s decisions in the Students for Fair Admissions v. Harvard and the Students Against Fair Admissions v. University of North Carolina cases. These seminal decisions ended racial preferences in college admissions processes, also known as affirmative action, after the court ruled in 2023 that the schools were violating the civil rights of certain students based on race.  

Philanthropy Roundtable Adjunct Senior Fellow Patrice Onwuka spoke with Devon Westhill, president and general counsel of the Center for Equal Opportunity (CEO), about the ripple effect from the decision one year later and what higher education can do to provide opportunities to those in need and support True Diversity. 

The interview below has been edited for length and clarity. 

Q: Can you tell us about your background and what led you to become president and general counsel of the Center for Equal Opportunity (CEO)? 

Westhill: People who work in the civil rights space often have a personal background that drives their passion to be involved, and that’s true of me. As a kid, I was underprivileged or disadvantaged. I was raised by a single mother. We were poor. However, we had a couple of real privileges: One, a mother who loved us and wanted the best for us. I can’t say the same for many people that I grew up with who had no parents in the household.  

Two, I was born in America, and that really made all the difference in my ability to move from where I started to where I am today as president and general counsel of CEO, which will celebrate 30 years next year of advocating for colorblind, equal opportunity for everyone. This is why we have been involved in racial preferential treatment in college admissions and all areas of life. 

I also got involved professionally because I have an interest in big questions like “How do we treat other people?” “Why are we here?” “What is our worth to the world, our country and mankind?” I went to Washington, D.C., nearly a decade ago to work on some of these issues in the areas of race, sex and regulation. Then, Donald Trump became president, and I was recruited into the administration to work at the Department of Labor and then to run the Civil Rights program at the Department of Agriculture before coming to CEO. 

Q: It’s been one year since the Supreme Court banned racial affirmative action in higher education. What has this led to across academia?  

Westhill: CEO has been involved in affirmative action issues for a long period of time. We continue to be involved because we don’t think it’s over now that the Supreme Court has prohibited race affirmative action in college admissions. We’ve launched our After Affirmative Action Network, which is looking to make sure that schools are complying with the state of the law as it’s changed. 

The 100-foot view of admissions in higher education is that we’ve seen a hair-on-fire response from selective colleges and universities. That’s really who is affected by race-preferential treatment—something like the top 100 colleges and universities in the country, which must be selective in who they bring into their campus and try to maintain racial diversity in line with that elite status. Almost universally, people view the SCOTUS decisions as a categorical ban on the use of race in college admissions.  

The question is: What is the ban on the use of race in admissions? Legal professionals are helping colleges unpack the decision and its implications for racial diversity on their campuses. 

Q: Although it’s only been one school year, have the worst fears that racial minority enrollment will plummet materialized?  

Westhill: There is a concern that sheer racial diversity is going to plummet on campus. That’s the reason Harvard and the University of North Carolina, which were both sued in this SCOTUS litigation, suggest that they can’t keep racial minorities on their campuses.  

The real question is: has opportunity plummeted? We don’t have data yet; it’s too early to determine whether or not this has happened. After the affirmative action decision, President Biden gave a speech and said, “Look, what we don’t want is for the door of opportunity to be slammed shut.” I agree. I don’t want the door of opportunity to be slammed shut, which is why we are against affirmative action. The door of opportunity has been substantially closed for other racial minorities, such as Asian Americans. Their enrollment was depressed on these campuses because they were “overrepresented.” 

This isn’t the first time we’ve seen affirmative action outlawed. California was the first state to do this back in 1996 through Proposition 209. We saw a decrease in minority enrollment on some University of California campuses, particularly Berkeley, but we also observed an increase in minorities at other campuses. At the University of California at San Diego, the performance of minorities increased in GPAs, graduation rates and participation in STEM majors.  

The door of opportunity has not been slammed shut but opened wider for people to be judged based on their character, merit and potential, not their skin color or ethnicity. 

Q: You wrote recently that “Another unforced error was the portion of the court’s opinion last year that allegedly outlawed affirmative action which stated that schools can still consider applicant essays discussing their race.” Do we know if colleges took this advice and adjusted their selection processes accordingly? 

Westhill: Yes, we’ve seen schools respond to this idea that you ought to use essays to determine whether or not someone might be disadvantaged or has overcome adversity to get at—in a very crude way—the race or ethnicity of a person to determine whether they fit the profile of the student they’re looking for.  

We’ve seen schools change their essay prompts. Some of them have even asked outright, “How did the Students for Fair Admissions decision from last term affect you?” For example, there was an exposé on Columbia Law School. It exposed the fact that the school was requiring very short (30-second) video statements in a crude attempt to look at the skin color, race or ethnicity of the applicant applying to the school.  

They went back on that quickly after the exposé came out, but these are the types of ham-fisted efforts we’re seeing. I’m hopeful that with time and individuals like you and me continuing to talk about this issue, schools will do a better job of finding those diamonds in the rough that they’re looking for, and you’ll get true diversity. 

Q: There has been a shocking uptick in antisemitism on campuses nationwide in recent months. And yet, the DEI bureaucracy seems to have gone silent. Why is that?  

Westhill: Throughout the Civil Rights Movement and throughout the history of this country, Jews have stood hand-in-hand with Black Americans in their plight out of oppression and into freedom. I’m especially disturbed that students and the DEI bureaucracy seem to think of their Jewish brothers and sisters as oppressors and not people who have undergone historic oppression.  

What we’re seeing on these campuses today is driven by the idea that because Jewish Americans have some power in some ways in American society or globally, they sit squarely within the oppressor side of the oppressor-oppressed matrix. We should not rework the oppressor-oppressed matrix. I’m dubious that the answer is an antisemitic task force or committee.  

Here’s what schools should be doing: uphold the law. On one side, there are laws against treating people differently and discriminating against or creating a harassing environment for them. On the other side, schools should be consistent and uphold their own standards about protests, speech, expression and academic freedom.  

There’s a real problem if we shut down speech and expression. I’m a radical when it comes to free speech and expression. It’s one of the reasons why the Civil Rights Movement was successful: minorities stood up and stood hand-in-hand with each other to say something was amiss and we needed to change as a country. Many of those people were Black and Jewish, holding hands together. 

Q: We believe in True Diversity, which encompasses embracing all of the facets of individuals that make them unique—inside and out—not just their skin color or gender. How can we help change people’s perceptions about diversity to broaden it beyond just superficial categories of race and gender? 

Westhill: We’ve developed this atmosphere in America (and probably some other places around the globe as well) where, because of the consistent drumbeat about what “diversity” means, it has become synonymous with treating people differently. For example, diversity is often incorrectly defined as having a certain skin color or one’s ancestors coming from a certain place. It’s important to consistently point out that actually supporting diversity is not about a preferred skin color or gender in a given situation. Diversity is the opposite; it’s looking at the full person who’s going to bring their different experiences and views on various issues to the table.  

Right now, many people are interested in racial preferencing because they are aware that the law has changed and that something is happening on college campuses and in corporate America. We have a historic moment to persuade people that we need a deeper way of thinking about diversity. In polling, people think diversity is valuable, but as a deep contextual analysis of what people bring, not just skin color, We can bring people back to understanding that the idea of diversity is good but has been co-opted to be more narrow than how it should be viewed.  

Philanthropy Roundtable’s True Diversity initiative is an equality-based, holistic framework for embracing diversity. It values every person as a unique individual and empowers charitable organizations with the freedom and flexibility to advance their missions and help those in need. 

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