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Stuart Chinn

Abstract

In striking down race-based affirmative action in Students for Fair Admissions, Inc. v. President & Fellows of Harvard College (SFFA), Chief Justice Roberts’s opinion for the Court was surely one of the most significant of his tenure. In this article, I offer a critical analysis of the various opinions in SFFA, and use them as a starting point for a more general assessment of admissions practices at selective higher educational institutions.

I begin with an initial assumption that equality and leveling illegitimate social hierarchies (such as hierarchies based on race, gender, class, sexual orientation, and gender identity) are worthwhile normative goals. From there, I make two primary claims. First, a focus on social hierarchy can illuminate the selective egalitarianism that has long oriented admissions practices at elite universities. While I believe these institutions genuinely care about equality, they are nevertheless focused on only specific forms of equality. This is most apparent in the continuation of some admissions practices like legacy preferences. Even with respect to race-based affirmative action itself, these programs remain selectively egalitarian given that they are inherently elitist in how they function. A radical egalitarian seeking to fundamentally restructure higher education would almost certainly not dream up or gravitate toward anything like affirmative action—at least in the forms that we are familiar with.

My second claim is partly descriptive and partly normative. One key mechanism that, pre-SFFA, allowed universities to engage in this mix of admissions practices that only half-heartedly advanced egalitarian goals was the relatively generous deference granted them by the Court in its prior decisions on affirmative action. The use of this deference by universities to promote and defend affirmative action was sufficient reason for affirmative action’s defenders to believe that this was appropriate and wise. But in the post- SFFA era, with affirmative action seemingly off the table for the foreseeable future, there are significant reasons for both defenders and skeptics of affirmative action to question the virtues of a broad deference to universities regarding admissions going forward. At the very least, I will argue the time is right to rethink the various pluses and minuses that surround a broad deference to universities on these admissions matters.

I proceed as follows: in Part II, I first provide some background on the SFFA litigation and then critically discuss the various opinions in the case from the standpoint of equality and hierarchy concerns. My primary task here is to provide some overview of the opinions and to illuminate the centrality of hierarchy and egalitarian concerns within the arguments of Justices from both the majority and among the dissenters. From Parts III to V, I then turn my attention to three distinct issues in elite university admissions, discussing how each issue underscores their selective egalitarianism. Those three issues are, in turn: assessing race-based affirmative action (Part III); assessing the treatment of Asian-American applicants in the SFFA litigation (Part IV); and assessing socioeconomic diversity at elite universities (Part V). Since my argument in these three Parts will be conceptually driven, in each of them I draw selectively from prior case law and the SFFA opinions where appropriate to provide additional context for the discussion.

While I am sympathetic to the claim made by the dissenters in SFFA that race-based affirmative action in higher education has, since its constitutional validation in Regents of the University of California v. Bakke, served as a powerful tool to combat racial hierarchy—especially with respect to African- Americans and Hispanics who have generally been considered underrepresented racial minority groups under such programs—my assessments in Parts IV and V on the treatment of Asian-American applicants and socioeconomic diversity are much more critical of universities.

With those items on the table, I conclude the article in Part VI by more squarely turning our attention to the themes of hierarchy and university deference to assess them from a more systemic perspective. In short, broad deference to universities on admissions should be understood as a mixed bag for committed egalitarians. Notwithstanding their various institutional goals— many of which I find commendable—selective universities are fundamentally committed to the pursuit and maintenance of more and more exclusive status, so any egalitarian efforts that involve these institutions must grapple with that constraint.

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