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Excerpted From: Jeena Shah, Affirming Affirmative Action by Affirming White Privilege: SFFA V. Harvard, 108 Georgetown Law Journal Online 134 (2020) (54 Footnotes) (Full Document)


JeenaShahHarvard College's race-based affirmative action measures for student admissions survived trial in a federal district court. Harvard's victory has since been characterized as “[t]hrilling,” yet “[p]yrrhic.” Although the court's reasoning should be lauded for its thorough assessment of Harvard's race-based affirmative action, the roads not taken by the court should be assessed just as thoroughly. For instance, NYU School of Law Professor Melissa Murray commented that, much like the Supreme Court's seminal decision in Grutter v. Bollinger (which involved the University of Michigan Law School), the district court's decision in Students for Fair Admissions v. Harvard, by “focus[ing] on diversity as the sole grounds on which the use of race in admissions may be justified,” avoided “engag[ing] more deeply and directly with the question of whether affirmative action is now merely a tool to promote pluralism or remains an appropriate remedy for longtime systemic, state-sanctioned oppression.” This Essay, however, criticizes the district court's assessment of Harvard's use of race-based affirmative action at all, given that the lawsuit's central claim had nothing to do with it. In a footnote, the court addresses the real claim at hand--discrimination against Asian-American applicants vis-à-vis white applicants resulting from race-neutral components of the admissions program. Had the analysis in this footnote served as the central basis of the court's ruling, it could have both demonstrated how elite schools privilege whiteness, and also thwarted the possibility of the Supreme Court ending race-based affirmative action in higher education once and for all.

In 2014, Students for Fair Admissions (SFFA), whose founder and president is the notorious anti-affirmative-action advocate Edward Blum, sued Harvard for anti-Asian-American discrimination in its admissions program. This Essay argues first that SFFA could have sought to remedy the portions of Harvard's admissions program that SFFA itself identified as potentially allowing anti-Asian-American bias to infect the selection process--namely, race-neutral components that effectively give preferences to white applicants. Instead, SFFA challenged the portion of the program that considers race in order to address the underrepresentation of Black and Latinx students at Harvard--commonly referred to as its affirmative action component. Nowhere in its arguments did SFFA draw a connection between the harm to Asian-American applicants and the race-based affirmative action component. Indeed, in its arguments to the court, SFFA presented its claim as arising out of discrimination against Asian-American applicants “vis-à-vis white applicants,” not Black and Latinx applicants. Nevertheless, following a trial, the district court conducted a thorough analysis of Harvard's use of race-based affirmative action, ultimately upholding it under Grutter's strict scrutiny test.

This Essay argues next that the district court could have instead isolated those race-neutral components of Harvard's admissions program that produced “disparate outcomes as between whites and Asian Americans” and found the race-based affirmative action component of the program irrelevant to the inquiry. In doing so, the court would have applied the test for facially neutral policies, assessing whether Asian-American applicants were disparately impacted by Harvard's race-neutral criteria and whether Harvard had the requisite discriminatory intent in maintaining such criteria. Breaking down Harvard's massive admissions program in this way would have been justified. Under a separate, yet related, doctrine--the state action doctrine derived from the Fourteenth Amendment's Equal Protection Clause--the Supreme Court has directed courts to focus on only those specific facts that give rise to the discrimination claim. Because the affirmative action component of the admissions program did not give rise to SFFA's claim, the court should not have assessed it.

Ultimately, the court did not find that Harvard intentionally discriminated against Asian-American applicants. But, as shown below, that point was under-prosecuted by SFFA. If this claim had been more thoroughly addressed in the litigation and succeeded, its remedy would not have impacted Harvard's race-based affirmative action.

[. . .]

Writer Hua Hsu draws a connection between, on the one hand, the rise of persons of Asian descent attending elite schools and resulting characterizations by the general public that the “schools weren't as good as they once were,” and, on the other, the route the challenge against Harvard's admissions program has taken. The idea that Harvard would not be “Harvard” if its student body was less white is, perhaps, what has pitted communities of color against one another. The district court's focus on Harvard's race-based affirmative action program serving to increase its enrollment of Black and Latinx students, instead of Harvard's effective preferences for white students--the real potential cause of any harm to Asian-American applicants and other applicants of color--once again echoes this sentiment. The court's ruling thus effectively affirmed, yet again, the inherent value of whiteness in the racial caste system of the United States

Associate Professor of Law, City University of New York School of Law. © 2020, Jeena Shah.

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