Law Commons^™

Sffa V. Harvard: How Affirmative Action Myths Mask White Bonus, Jonathan Feingold

Faculty Scholarship

In the ongoing litigation of Students for Fair Admissions v. Harvard College, Harvard faces allegations that its once-heralded admissions process discriminates against Asian Americans. Public discourse has revealed a dominant narrative: affirmative action is viewed as the presumptive cause of Harvard’s alleged “Asian penalty.” Yet this narrative misrepresents the plaintiff’s own theory of discrimination. Rather than implicating affirmative action, the underlying allegations portray the phenomenon of “negative action” — that is, an admissions regime in which White applicants take the seats of their more qualified Asian-American counterparts. Nonetheless, we are witnessing a broad failure to see this case for what …

Hidden In Plain Sight: A More Compelling Case For Diversity, Jonathan Feingold

Faculty Scholarship

For four decades, the diversity rationale has offered a lifeline to affirmative action in higher education. Yet even after forty years, this critical feature of equal protection doctrine remains constitutionally insecure and politically fraught. Legal challenges persist, the Justice Department has launched a new assault on race-conscious admissions, and an impending shift on the Supreme Court could usher in an era of increased hostility toward the concept of diversity itself. The future of race-conscious admissions arguably hangs in the balance.

In this Article, I argue that the diversity rationale’s present fragility rests, in part, on its defenders’ failure to center …

Affirmative Action, David Oppenheimer, Angela Onwuachi-Willig, Nancy Leong

Faculty Scholarship

There are consistent messages to people of color about their proper place in
society, which has always been a really important tool for maintaining and
advancing white supremacy. Referring back to what Professor Haney-Lopez
asserted earlier today, in today’s post-civil rights society, few people would
argue in favor of segregation in racial terms explicitly so. And few people would
assert that Blacks, for example, do not belong in certain places. However,
opponents of affirmative action have begun to articulate a form of these
arguments as an add-on to the mismatch theory. In the minds of these scholars,
affirmative action should …