[I’m reposting this because the linked article disappeared from SSRN’s website soon after I posted it, until a copyright permission issue was resolved.]
My article, Students for Fair Admissions and the End of Racial Profiling as We Know ItIt was published in Al-Jadeed Cato review for the Supreme Court. Here is the summary:
Supreme Court decision in Students for Fair Admissions Inc. v. President and Fellows of Harvard College (SFFA) This likely marks the beginning of the end for the overt use of race in college admissions. However, the court’s decision has much broader implications.
Harvard University and the University of North Carolina (UNC) classified applicants based on racial and ethnic categories adopted by the federal government in the 1970s. sixthFIFA He concluded that these classifications were so arbitrary as to be unconstitutional. SFFA It therefore provides a new and broad avenue of attack for litigants who challenge racial preferences and other race-based policies based on these ubiquitous classifications. Any entity sued for engaging in discriminatory preferences or for allocating goods or services by race will need to explain why the racial classifications it relies on do not fail the arbitrariness test.
The first part of this article briefly reviews the history of universities’ use of racial preferences beginning in the 1960s.
The second part of this article discusses how SFFA This case disrupted a comfortable status quo, as universities pretended to abide by court-imposed restrictions on the use of racial preferences, and the Supreme Court pretended not to notice that universities were ignoring those restrictions.
Part Three of this article notes that, for the first time, a Supreme Court majority has concluded that the standard racial classifications used by universities and many other institutions are arbitrary and incoherent. This means that many other uses of racial classifications outside of college admissions are suddenly more vulnerable to legal challenge.
This is the topic of the fourth part of this article. It discusses the potential challenges of using race-based preferences in government contracting; the mandatory use of racial classifications in biomedical research; And the arbitrary criteria the government uses to classify people as American Indians.