Brief of Legal Scholars Defending Race-Conscious Admissions as Amici Curiae in Support of Respondents, SFFA v. Harvard (20-1199) and SFFA v. University of North Carolina at Chapel Hill (21-707)

40 Pages Posted: 6 Aug 2022

See all articles by Jonathan Feingold

Jonathan Feingold

Boston University School of Law

Vinay Harpalani

University of New Mexico - School of Law

Date Written: August 1, 2022

Abstract

Legal Scholars Defending Race-Conscious Admissions uplift two underappreciated dynamics in the subject litigation challenging race-conscious admissions at Harvard and UNC:

1) Petitioner Students for Fair Admissions (“SFFA”) conflates two discrete claims against Harvard: (a) an intentional discrimination (or “negative action”) claim alleging that anti-Asian bias benefits white applicants and (b) a standard affirmative action challenge. SFFA blurs these claims to scapegoat and stigmatize affirmative action as a practice that pits Asian Americans against other students of color. Yet, SFFA belies its own narrative. According to SFFA’s own expert, anti-Asian bias—to the extent it exists—is caused by "colorblind" components of the admissions process and benefits wealthy White applicants, not students of color.

2) Race-conscious admissions policies ("RCAPs") counter racial advantages that White applicants enjoy in purportedly “colorblind” components of the admissions process. Respondents’ RCAPs, in turn, are best characterized as essential antidiscrimination that promote the “fair appraisal of each individual’s academic promise” and constitute “no ‘preference’ at all.” By countering unearned racial advantages that benefit White applicants, Respondents realize a more individualized and “meritocratic” process that helps to desegregate and diversify their campuses.

Universities’ RCAPs clearly satisfy strict scrutiny. But this backdrop also troubles the conclusion that strict scrutiny should apply to all “racial classifications.” As these cases highlight, strict scrutiny views with suspicion race-conscious practices that counter discrimination in the present—and thereby hinders universities from realizing Brown v. Board of Education’s fundamental aspiration of an America where race no longer matters. SFFA acknowledges that racism exists but urges the Supreme Court to ignore that reality and cripple Respondents’ ability to overcome it.

Keywords: affirmative action, diversity, higher education, university, race-conscious, admissions

Suggested Citation

Feingold, Jonathan and Harpalani, Vinay, Brief of Legal Scholars Defending Race-Conscious Admissions as Amici Curiae in Support of Respondents, SFFA v. Harvard (20-1199) and SFFA v. University of North Carolina at Chapel Hill (21-707) (August 1, 2022). Available at SSRN: https://ssrn.com/abstract=4179822 or http://dx.doi.org/10.2139/ssrn.4179822

Jonathan Feingold

Boston University School of Law ( email )

765 Commonwealth Avenue
Boston, MA 02215
United States

Vinay Harpalani (Contact Author)

University of New Mexico - School of Law ( email )

1117 Stanford, N.E. MSC11 6070
1 University of New Mexico
Albuquerque, NM 87131
United States

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