For decades, elite universities in the United States used race-conscious admissions to foster diversity. That era seems to be over. The latest of a series of warnings issued by the Donald Trump administration targets Ivy-League institutions like Harvard and Brown University. Universities must abandon Diversity, Equity and Inclusion (DEI) policies or risk losing federal funding, they are told. DEI attempts to reframe merit by increasing access to social and political spaces for historically underrepresented groups. These policies promote equality of opportunity through race-conscious scholarships, sensitisation programmes and affirmative action in college admissions.
Though Harvard University has defied Trump’s orders and risked $2.2 billion, the implications of such orders on the overall higher education system are undeniable. American policymakers who, in the name of “merit” are trying to undermine diversity, must ask what “merit” means in a society built on structural inequality. As the US seems to roll back affirmative action — a pillar of its DEI policies — India’s experience with affirmative action in public education offers critical insights.
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The American experience
The Department of Education has launched federal investigations into over 50 colleges for continuing DEI policies that allegedly “segregate students on the basis of race”. Opponents of DEI argue in terms of “excellence” and “meritocracy,” claiming that race-conscious policies compromise academic standards, favouring underrepresented races at the cost of “individual” merit.
However, this perspective overlooks affirmative action’s historical and legal foundations in the US. Under the Civil Rights Act, 1964 and the Equal Protection Clause (14th Amendment), courts upheld race-conscious policies, recognising their role in addressing historical discrimination. Empirical evidence reflects that the absence of race-conscious admission programmes leads to a decline of racial minorities in elite institutions.
The Supreme Court’s decision in Students for Fair Admissions vs Harvard (SFA) upended more than four decades of precedent, established in Bakke (1978), affirmed in Grutter (2003), Fisher I (2013) and Fisher II (2016). These judgments recognised race as one of the factors that could be considered by colleges when selecting their students if it improves diversity. SFA, on the contrary, held DEI policies in violation of the US Constitution’s Equal Protection Clause.
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The divided bench in SFA reflected the schism between two competing visions of equality — formal and substantive, to assess race-based affirmative action. The formal approach to equality, rooted in Aristotle’s philosophy, envisions treating all individuals identically (which need not translate to equally).
The ruling adopted a strict, race-blind interpretation of the Equal Protection Clause, and concluded against DEI based on a formal interpretation of equality. Thus, the US moves away from the idea of substantive equality that conversely recognises the historical injustice faced by racial minorities and attempts to level an uneven playing field through affirmative action.
Lessons to learn from India
Constitutional law in India, pertaining to affirmative action in electoral politics, public education and employment, is unique. As the US grapples with the backlash against DEI, India’s turbulent history with reservation offers crucial lessons on resistance and resilience.
While race is central to affirmative action in the US, the pernicious caste system drives this debate in India. The system favours the privileged castes and sanctions the repression of the depressed castes and tribes. Reservation addresses the historical injustices of the caste system by promoting equality of opportunity.
The Indian Constitution guarantees affirmative action as a fundamental right. Conversely, in the US, it is a matter of policy introduced through the Civil Rights Act, 1964. This creates a stronger premise for affirmative action in India. The backlash against affirmative action in both nations, however, shares a common thread — resistance from historically privileged groups. Affirmative action in India has sparked intense and often violent protests, particularly during policy expansions to include the Other Backward Classes (OBCs). In the 1990s, opposition to caste-based reservations led to mass demonstrations, arson, and tragic acts of self-immolation by students in protest.
In an early challenge to reservation, the Indian Supreme Court ruled against affirmative action for violating the principle of equality, signifying a formal conception. Unlike the American experience, in India, the discourse gradually tilted in favour of affirmative action. The Supreme Court, through progressive judgements like N M Thomas and Indra Sawhney interpreted affirmative action as a facet of equality rather than an exception.
The shift from formal to substantive equality was underscored by the notion that to truly achieve equality, it is important to recognise that individuals are placed differently in a society. This, in turn, is due to the historical experiences of the social groups that they belong to. The inequality in India’s caste-ridden society is so pervasive that treating everyone equally through facial neutrality would only perpetuate structural inequality. Similarly, the historical experiences of racial minorities in the US place them at an unequal footing. Affirmative action, then, becomes a compelling response to remedy this historical injustice.
In the recent attacks on DEI, the transformative impact of affirmative action is being undermined despite the clear evidence that it works. Affirmative action is not a deviation from merit — it redefines it. As the US dismantles DEI, it risks entrenching the inequalities it feigns blindness towards. Most recently, despite serious divides within the Indian electorate, affirmative action to increase women’s representation in Parliament was unanimously approved. On this count, the US could look east and consider a perspective often overlooked in its context — affirmative action has its own merit — it is inclusion.
Kamath is an advocate, Karnataka High Court. Narain and Nautiyal are law students of Jindal Global Law School and NALSAR, Hyderabad