Volume 108

Affirming Affirmative Action by Affirming White Privilege: SFFA v. Harvard

by Jeena Shah

Harvard 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.

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