Ambivalent Advocates: Why Elite Universities Compromised the Case for Affirmative Action

78 Pages Posted: 23 Jun 2022 Last revised: 15 Aug 2022

Date Written: June 16, 2022

Abstract

“The end of affirmative action.” The headline is coming. When it arrives, scholars will explain that a controversial set of policies could not withstand unfriendly doctrine and less friendly Justices. This story is not wrong. But it is incomplete. This account masks an underappreciated source of affirmative action’s enduring instability: elite universities, affirmative action’s formal defenders, have long been ambivalent advocates.

Elite universities are uniquely positioned to shape legal and lay opinions about affirmative action. They are named parties in affirmative action litigation and objects of public obsession. Yet schools like Harvard and the University of North Carolina at Chapel Hill—embroiled in litigation now before the Supreme Court—avoid the facts and theories that would buttress their own race-conscious programs against predictable lines of attack. As a result, affirmative action’s formal advocates enable the case against affirmative action.

In this Article, I examine how common institutional dynamics disincentivize elite universities from marshaling the most compelling case for their own policies. The consequences transcend discrete legal disputes. Affirmative action debates have long comprised sites of contestation over what, if anything, is necessary to overcome America’s legacy of white supremacy. When universities understate the case for affirmative action, they do more than compromise their own modest interventions. They also enable a resurgent right-wing campaign to discredit antiracism as the new racism and antiracists as the new racists.

Keywords: race, law, affirmative action, equal protection, critical race theory

Suggested Citation

Feingold, Jonathan, Ambivalent Advocates: Why Elite Universities Compromised the Case for Affirmative Action (June 16, 2022). Harvard Civil Rights- Civil Liberties Law Review (CR-CL), 2022 Forthcoming, Available at SSRN: https://ssrn.com/abstract=4138470 or http://dx.doi.org/10.2139/ssrn.4138470

Jonathan Feingold (Contact Author)

Boston University School of Law ( email )

765 Commonwealth Avenue
Boston, MA 02215
United States

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