Law Commons^™

The Right To Inequality: Conservative Politics And Precedent Collide, Jonathan Feingold

Faculty Scholarship

The “end of affirmative action” is the beginning of this story. In Students for Fair Admissions v. Harvard (SFFA), the Supreme Court struck a near fatal blow to race-consciousness. Many institutions have since pivoted to “race neutral alternatives.” This is a natural turn. But one that faces immediate headwinds.

The same entities that demanded Harvard pursue racial diversity through colorblind means have sued public high schools for doing just that. These litigants assert a “right to inequality”—a theory that would pit the equal protection clause against equality itself. Even if normatively jarring, a right to inequality might seem a …

Overturning Sffa V. Harvard, David Hinojosa, Chavis Jones

The Scholar: St. Mary's Law Review on Race and Social Justice

One of the first lessons law students learn is the importance of stare decisis. It not only serves as a tool to learn how to apply settled law to argument and persuasive writing, but foundationally stare decisis helps promote the public’s trust, confidence, and faith in the judicial system. Thus, when the Supreme Court issued its 6-3 opinion in 2023 in Students for Fair Admissions v. Harvard/University of North Carolina (“Harvard”), most onlookers viewed the decision as being the final nail in the coffin for affirmative action in higher education admissions. However, we—the authors—are among the minority.

In …

Taking Our Position: Repairing The Breach In The Pipeline To The Legal Profession By Transforming The Impact Of Bias Against Black Girls In Student Discipline, Hon. Tiffany W. Brewer

Belmont Law Review

This Article implores the legal profession to intervene in promoting accountability in remediating implicit bias and discrimination in school discipline decisions disproportionately impacting Black girls’ educational outcomes, given their significant impact in disrupting the pipeline to the legal profession. The lack of accountability for disparate school discipline policies has resulted in little progress in decreasing the school-to-prison pipeline for Black girls. As a result, failures to eradicate implicit bias and discrimination in educational systems threaten the pipeline of future Black women law students, lawyers, and judges. This Article contends that if the bias in current school discipline policies toward Black …

Students For Fair Admissions: Affirming Affirmative Action And Shapeshifting Towards Cognitive Diversity?, Steven A. Ramirez

Seattle University Law Review

The Roberts Court holds a well-earned reputation for overturning Supreme Court precedent regardless of the long-standing nature of the case. The Roberts Court knows how to overrule precedent. In Students for Fair Admissions v. Harvard (SFFA), the Court’s majority opinion never intimates that it overrules Grutter v. Bollinger, the Court’s leading opinion permitting race-based affirmative action in college admissions. Instead, the Roberts Court applied Grutter as authoritative to hold certain affirmative action programs entailing racial preferences violative of the Constitution. These programs did not provide an end point, nor did they require assessment, review, periodic expiration, or revision for greater …

Religious Freedom And Diversity Missions: Insights From Jesuit Law Deans, Anthony E. Varona, Michèle Alexandre, Michael J. Kaufman, Madeleine M. Landrieu

Seattle University Law Review

This Article is a transcript of a panel moderated by Anthony E. Varona, Dean of Seattle University School of Law. During the panel, Jesuit and religious law school deans discussed what law schools with religious missions have to add to the conversation around SFFA and the continuing role of affirmative action in higher education.

The Sffa V. Harvard Trojan Horse Admissions Lawsuit, Kimberly West-Faulcon

Seattle University Law Review

Affirmative-action-hostile admissions lawsuits are modern Trojan horses. The SFFA v. Harvard/UNC case—Students for Fair Admissions, Inc. v. President & Fellows of Harvard College and Students for Fair Admissions, Inc. v. University of North Carolina, et. al., decided jointly—is the most effective Trojan horse admissions lawsuit to date. Constructed to have the distractingly appealing exterior façade of a lawsuit seeking greater fairness in college admissions, the SFFA v. Harvard/UNC case is best understood as a deception-driven battle tactic used by forces waging a multi-decade war against the major legislative victories of America’s Civil Rights Movement, specifically Title VI and Title VII …

Going Forward: The Role Of Affirmative Action, Race, And Diversity In University Admissions And The Broader Construction Of Society, Steven W. Bender

Seattle University Law Review

The third annual EPOCH symposium, a partnership between the Seattle University Law Review and the Black Law Student Association took place in late summer 2023 at the Seattle University School of Law. It was intended to uplift and amplify Black voices and ideas, and those of allies in the legal community. Prompted by the swell of public outcry surrounding ongoing police violence against the Black community, the EPOCH partnership marked a commitment to antiracism imperatives and effectuating change for the Black community. The published symposium in this volume encompasses some, but not all, the ideas and vision detailed in the …

Sffa V. Harvard College: Closing The Doors Of Equality In Education, Ediberto Roman

Seattle University Law Review

The United States Supreme Court’s recent combined decision ending affirmative action in Students for Fair Admissions v. Harvard College and Students for Fair Admissions v. University of North Carolina was hailed in conservative circles as the beginning of “the long road” towards racial equality. Others declared that “the opinion may begin the restoration of our nation’s constitutional colorblind legal covenant.” Another writer pronounced, “Affirmative action perpetuated racial discrimination. Its end is a huge step forward.” A Washington-based opinion page even declared: “[T]he demise of race-based affirmative action should inspire renewed commitment to the ideal of equal opportunity in America.” Despite …

Ochoa, Big Ten Law Deans Pledge Support For Diversity Ahead Of Scotus Affirmative Action Ruling, The Indiana Lawyer

Christiana Ochoa (7/22-10/22 Acting; 11/2022-)

s the U.S. Supreme Court prepares to hand down a decision that could fundamentally alter affirmative action, a group of law school deans — including Dean Christiana Ochoa of the Indiana University Maurer School of Law — has issued a statement affirming the deans’ commitment to diversity.

The group of 15 deans represent Big Ten law schools, including IU Maurer. In their statement — which IU Maurer posted to its official Facebook page — the deans say they are “joining together to affirm our commitment to advancing diversity, equity, and inclusion through legally permissible means, regardless of the outcome of …

When Claims Collide: Students For Fair Admissions V. Harvard And The Meaning Of Discrimination, Cara Mcclellan

All Faculty Scholarship

This term, the Supreme Court will decide Students for Fair Admissions v. President and Fellows of Harvard College (SFFA v. Harvard), a challenge to Harvard College’s race-conscious admissions program. While litigation challenging the use of race in higher education admissions spans over five decades, previous attacks on race-conscious admissions systems were brought by white plaintiffs alleging “reverse discrimination” based on the theory that a university discriminated against them by assigning a plus factor to underrepresented minority applicants. SFFA v. Harvard is distinct from these cases because the plaintiff organization, SFFA, brought a claim alleging that Harvard engages in intentional discrimination …

Accessibility Of Medical School To Students With Physical Disabilities, Shelby A. Cowan

Senior Theses

This thesis is an exploration of perceived and institutional barriers to matriculation into medical school for students with physical disabilities. Factors such as the lived admissions experience, available accommodations and supportive resources, and legal considerations surrounding a student's disclosure of their disability are examined; however, future work is needed to better access this population of students and empower them to become physicians and use their unique perspective to benefit patients.

Affirmative Action After Sffa, Jonathan Feingold

Faculty Scholarship

In SFFA v. Harvard (SFFA), the Supreme Court further restricted a university’s right to consider the racial identity of individual applicants during admissions. The ruling has spawned considerable confusion regarding a university’s ongoing ability to pursue racial diversity, racial inclusion, and other equality-oriented goals—whether through “raceconscious” or “race-neutral” means. To assist institutions attempting to navigate the ruling, this article outlines a set of key legal rights and responsibilities that universities continue to possess following SFFA.

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), Jonathan Feingold, Vinay Harpalani

Faculty Scholarship

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 …

Affirmative Action Tested: The Constitutionality Of “Landscape”, Eric James Seltzer

St. John's Law Review

(Excerpt)

In August 2019, the College Board announced it was launching a program providing higher education institutions with “context about students’ high schools and neighborhoods when making admissions decisions.” In August 2019, the College Board announced it was launching “Landscape,” a program providing higher education institutions with “context about students’ high schools and neighborhoods when making admissions decision.” Landscape collects and organizes data into three categories—basic high school data, such as school locale, test score comparison, and high school and neighborhood indicators—that offers insight into high schools and neighborhoods. Among these indicators are quintessential measures of socioeconomic status, including college …

In The Name Of Diversity: Why Mandatory Diversity Statements Violate The First Amendment And Reduce Intellectual Diversity In Academia, Daniel M. Ortner

Catholic University Law Review

In the 1950s and 1960s in many parts of the country, a professor could be fired or never hired if he refused to denounce communism or declare loyalty to the United States Constitution. The University of California system took the lead in enforcing these loyalty oaths. These loyalty oaths were challenged all the way up to the United States Supreme Court and were soundly rejected, establishing the centrality of academic freedom and open inquiry on the university campus. So why are loyalty oaths making their resurgence in the form of mandatory diversity statements? Universities have begun requiring faculty members to …

The Discounted Labor Of Bipoc Students And Faculty, Taleed El-Sabawi, Madison Fields

Faculty Publications

Black Law Students experienced a different COVID-19 pandemic than their majority counterparts due in part to the emotional and physical toll caused by the violent, public mistreatment of Black persons at the hands of law enforcement. While some law faculty at some institutions were proactive in identifying the struggles that their Black students were facing, most law faculty and administrators did nothing—prompting Black students to take time away from their studies to organize, draft letters, gather signatures, and have very uncomfortable conversations with university administrators and faculty about the need for change. Meanwhile, Black faculty and faculty of color, who …

Disaggregation & Diversity: A Case For Race Conscious Admissions, Connor Oniki

Brigham Young University Prelaw Review

Since its founding, people all over the world have looked towards

America as a land of opportunity. Immigrants viewed it as a place

for fresh starts, new beginnings, and equal chances. However, for

centuries, concrete and subtle barriers have slowed the opportunity

for progress for those who are not in the majority. Throughout America’s

beginnings, lawmakers legalized segregation and discrimination

throughout the country multiple times. The Chinese Exclusion

Act prevented Asian Americans from immigrating to the United

States to pursue opportunities. Jim Crow laws enforced racial segregation

and ensured that though African Americans were no longer

enslaved, they did not …

Racial Indirection, Yuvraj Joshi

Yuvraj Joshi

Return Of The Campus Speech Wars, Thomas Healy

Michigan Law Review

Review of Erwin Chemerinsky and Howard Gillman's Free Speech on Campus.

A Diverse Student Body Without Student Bodies?: Online Classrooms And Affirmative Action, Ryan H. Nelson

Pepperdine Law Review

America’s public universities engage students in myriad classroom environments that range from traditional, entirely-in-person classroom environments to entirely-online, virtual classrooms, with every shade of grey in between. These varied learning environments pose a fascinating question with respect to the ways such universities use affirmative action in admissions. In Grutter v. Bollinger, the United States Supreme Court held that “student body diversity is a compelling state interest that can justify the use of race in university admissions.” Indeed, student body diversity remains one of the few “compelling interests” that the Court has held satisfies the constitutional imperative that the “government may …

Ensuring The Constitution Remains Color Blind Vs. Turning A Blind Eye To Justice: Equal Protection And Affirmative Action In University Admissions, Attashin Safari

Loyola of Los Angeles Law Review

No abstract provided.

Not For Free: Exploring The Collateral Costs Of Diversity In Legal Education, Spearit

Articles

This essay examines some of the institutional costs of achieving a more diverse law student body. In recent decades, there has been growing support for diversity initiatives in education, and the legal academy is no exception. Yet for most law schools, diversity remains an elusive goal, some of which is the result of problems with anticipating the needs of diverse students and being able to deliver. These are some of the unseen or hidden costs associated with achieving greater diversity. Both law schools and the legal profession remain relatively stratified by race, which is an ongoing legacy of legal education’s …

Diversity Without Integration, Kevin Woodson

Law Faculty Publications

The de facto racial segregation pervasive at colleges and universities across the country undermines a necessary precondition for the diversity benefits embraced by the Court in Grutter — the requirement that students partake in high-quality interracial interactions and social relationships with one another. This disjuncture between Grutter’s vision of universities as sites of robust cross-racial exchange and the reality of racial separation should be of great concern, not just because of its potential constitutional implications for affirmative action but also because it reifies racial hierarchy and reinforces inequality. Drawing from an extensive body of social science research, this article explains …

Protecting Diversity In The Ivory Tower With Liability Rules, Ting Wang

Pace Law Review

The two sides of the debate over race-based affirmative action in higher education tell two distinct stories – one of diversity’s benefits and the other of affirmative action’s burdens. In Grutter v. Bollinger, 539 U.S. 306 (2003), the Supreme Court found the benefits to be so compelling to society that they were deemed to outweigh the burdens. Voters in Michigan and other states found otherwise and the Court in Schuette v. Coalition to Defend Affirmative Action, 572 U.S. — (2014) upheld their right to ban race-conscious admissions. Paradoxically, since the use of race as a “plus factor” by selective universities …

Faculty Insights On Educational Diversity, Meera E. Deo

Fordham Law Review

Twice in the past two years, the U.S. Supreme Court has approved educational diversity as a compelling state interest that justifies the use of race in higher education admissions decisions. Nevertheless, it remains on somewhat shaky ground. Over the past decade, the Court has emphasized that its acceptance of diversity stems from the expectation that a diverse student body will enhance the classroom environment, with students drawing on their diverse backgrounds during classroom conversations that ultimately bring the law to life. Yet, the Court provides no support for its assumption that admitting and enrolling diverse students actually result in these …

Following Fisher: Narrowly Tailoring Affirmative Action, Eang L. Ngov

Catholic University Law Review

Affirmative action has been at the forefront of educational policies and to this day continues to enliven debates. For decades, schools have litigated over whether affirmative action can be used to create a diverse student body. Now, the litigation has shifted to whether affirmative action policies are narrowly tailored. The Supreme Court’s most recent affirmative action case, Fisher v. University of Texas at Austin, requires that schools prove that there are no workable race neutral alternatives in order to demonstrate that their affirmative action programs are narrowly tailored. This article examines the available race neutral alternatives: percentage plans; socioeconomic …

From Access To Success: Affirmative Action Outcomes In A Class-Based System, Matthew N. Gaertner, Melissa Hart

Publications

Scholarly discussion about affirmative action policy has been dominated in the past ten years by debates over "mismatch theory'"--the claim that race-conscious affirmative action harms those it is intended to help by placing students who receive preferences among academically superior peers in environments where they will be overmatched and unable to compete. Despite serious empirical and theoretical challenges to this claim in academic circles, mismatch has become widely accepted outside those circles, so much so that the theory played prominently in Justice Clarence Thomas's concurring opinion in Fisher v. University of Texas. This Article explores whether mismatch occurs in …

Lsac Data Reveals That Black/White Multiracials Outscore All Blacks On Lsat By Wide Margins, Kevin D. Brown

Articles by Maurer Faculty

No abstract provided.

The 'Compelling Government Interest' In School Diversity: Rebuilding The Case For An Affirmative Government Role, Philip Tegeler

University of Michigan Journal of Law Reform

How far does Justice Kennedy’s “moral and ethical obligation” to avoid racial isolation extend? Does the obligation flow primarily from Supreme Court case law, does it derive from an evolving consensus in the social sciences, or does it also have a statutory basis in Title VI and other federal law? In addition to its value as a justification for non-individualized, race-conscious remedial efforts by state and local governments, does the compelling interest identified in Parents Involved also suggest an affirmative duty on the part of the federal government? And if so, how far does this affirmative duty extend, and how …

White Like Me: The Negative Impact Of The Diversity Rationale On White Identity Formation, Osamudia R. James

Articles

In several cases addressing the constitutionality of affirmative action admissions policies, the Supreme Court has recognized a compelling state interest in schools with diverse student populations. According to the Court and affirmative action proponents, the pursuit of diversity does not only benefit minority students who gain expanded access to elite institutions through affirmative action. Rather, diversity also benefits white students who grow through encounters with minority students, it contributes to social and intellectual life on campus, and it serves society at large by aiding the development of citizens equipped for employment and citizenship in an increasingly diverse country.

Recent scholarship …