Tuesday, November 14, 2023
David E. Bernstein (George Mason; Google Scholar), Racial Classification in Higher Education Admissions Before and after SFFA, 77 SMU L. Rev. __ (2024):
Hundreds of law review articles have discussed the legality of affirmative action programs. Virtually all of them begin with the implicit assumption that the racial classifications used in these programs are legitimate and uncontroversial (an assumption I challenge in my 2022 book, Classified: The Untold Story of Racial Classifications In America). That assumption has been undermined by Students for Fair Admissions, Inc. v. President and Fellows of Harvard College (“SFFA”).
Chief Justice Roberts, writing for a 6-3 majority, asserted that the underlying classifications are “imprecise in many ways” and “opaque.” He quoted Justice Gorsuch’s concurring opinion, which criticized the classifications for relying on “incoherent” and “irrational” stereotypes. Using these classifications in admissions decisions, Roberts concluded, is inherently illegal because they are so arbitrary that using them could not be a narrowly tailored means to serve the universities’ asserted compelling interest in educational diversity.
This Article focuses on the evolution of, and judicial reaction to, racial classifications in cases involving university affirmative action programs. The classifications themselves initially included preferences African Americans plus an idiosyncratic collection of other groups. For example, in the DeFunis case, preferences were given to Mexican Americans and Filipinos, but not to other Hispanic or Asian Americans. By the early 2000s, however, all universities were using the racial and ethnic classifications established by the federal government in Statistical Directive No. 15.
Meanwhile, while lower courts sometimes raised important issues with regard to the scope and definition of the classifications used by universities, this issue played only a tangential role in relevant Supreme Court decisions until SFFA. Following SFFA, institutions seeking to classify people by race and ethnicity are going to need to show a much closer match between the classifications and the “compelling” interests they are pursuing than they needed to before SFFA, and will not be able to rely on broad classifications as “Asian American” or “Hispanic” combine people of wildly varied physiognomies, national origins, and cultural backgrounds.