Benjamin Eidelson (Harvard Law School) & Deborah Hellman (University of Virginia School of Law) have posted Unreflective Disequilibrium: Race-Conscious Admissions after SFFA (American Journal of Law and Equality (Summer 2024)) on SSRN. Here is the abstract:
What does Students for Fair Admissions v. Harvard College (SFFA) mean for race-conscious admissions practices and for equal protection law? While the decision announces a victory for opponents of affirmative action, it also evinces a telling ambivalence that warrants closer examination. Even as it purported to condemn race-based decision-making, the conservative majority acknowledged the relevance of race in individual people’s lives—and invited universities to attend to this dimension of their experiences—in ways that contradict any standard notion of colorblindness. None of the values invoked in the Court’s opinion, we argue, can support a principled distinction between the forms of race-consciousness that the Court approved and those that it probably intended to inter. In contrast to the “reflective equilibrium” to which many legal thinkers aspire, we conclude, SFFA reveals the Court to be in a state of unreflective disequilibrium—pulled in different directions, but lacking, so far, the willingness to adjust its starting points as necessary to reconcile these conflicts. As the Court tries to build on SFFA’s foundation in the years to come, we expect that it will prove increasingly difficult to square the Court’s conviction that people should be assessed based on their individual qualities and experiences with its conviction that race must be irrelevant.
