Justin Driver (Yale Law School) has posted The Cure as Disease: The Conservative Case against SFFA v. Harvard (Supreme Court Review) on the University of Chicago Website. Here are excerpts:
From the introduction:
In 1979, following Regents of the University of California v. Bakke, then-Professor Antonin Scalia published a short article with a long title excoriating the decision, The Disease as Cure: “In Order to Get Beyond Racism, We Must First Take Account of Race.” Scalia—in only eleven crisp pages—contended that Bakke’s validation of affirmative action marked an unwise retreat from the Fourteenth Amendment’s colorblind mandate. If race-conscious student assignment plans presented an unconstitutional malady in cases like Brown v. Board of Education, Scalia suggested, how could race-conscious admissions policies somehow receive a clean bill of health in Bakke? In other words, how could racial classifications have been the “disease” during the Jim Crow era and then suddenly somehow morph into the “cure” in the late 1970s? Scalia asserted that Bakke would not only fail to help America’s race relations, but would significantly harm them: “From racist principles flow racist results.”
Scalia’s article denouncing Bakke from more than four decades ago has now largely been forgotten. But it merits renewed attention in the wake of last Term’s decision invalidating affirmative action in Students for Fair Admissions, Inc. (SFFA) v. President and Fellows of Harvard College, as Scalia’s critique proved prescient along four dimensions. . . .
Not surprisingly, conservatives have overwhelmingly hailed SFFA as among the most venerable judicial decisions in modern Supreme Court history. . . . But even as assessed from the perspective of conservatives’ own principles, SFFA ushers in a legal regime that is markedly worse than the one it replaced. Indeed, while conservatives have long believed that a decision ending affirmative action would help to cure what they deem America’s primary racial ailments, now that SFFA has arrived it is becoming apparent that the decision only intensifies the disease. By conservatives’ own professed lights, then, SFFA contains not an antidote, but a toxin. . . .
Unrecognized in the voluminous affirmative action debates, however, is that the converse point also holds: affirmative action’s detractors have failed to recognize that their preferred approach raises dangers of its own. Those dangers are considerable, and even one who is dedicated to advancing conservative principles must grapple forthrightly with the serious risks SFFA poses to their ideological commitments. This point has been permitted to hide in plain sight because conservatives have been targeting affirmative action so ardently and for so long that they have dedicated insufficient attention to the particularities of the regime that will replace the old affirmative action model now that it has been destroyed. Following SFFA, however, these questions can no longer be evaded. Today, with its long-sought victory firmly in hand, the conservative legal movement may soon recognize that the opinion is actually a glorious defeat.
FROM PART II:
SFFA contravenes time-honored conservative principles in four fundamental ways. First, the opinion places a new premium on college application essays that emphasize racial victimization, a dynamic that will heighten both the salience of race and the notion that racial progress has stalled. Second, SFFA encourages leading universities to usher students who attended struggling high schools into alien environments where they are likely to flounder, rather than flourish, a particular version of mismatch theory that Justice Thomas himself has repeatedly articulated. Third, the opinion’s carveout for military academies invites racial balkanization, as the Black and brown communities will resent that some of their brightest, most ambitious young minds are being funneled into not only an unusually hostile racial environment, but also harm’s way. Finally, SFFA is at war with important visions of conservativism itself, as the decision rejects both Burkean conservatism and the traditional notion of constitutional conservatism that prioritizes stare decisis.
In perhaps SFFA’s most arresting feature, Chief Justice Roberts allowed that colleges may award applicants an admissions boost if their personal essays “discuss[] . . . how race affected his or her life, be it through discrimination, inspiration, or otherwise.” This allowance, combined with SFFA’s prohibition of racial boxes on college applications, seems virtually guaranteed to produce a state of affairs that conservatives will detest even more than the system that SFFA replaced. Under the old regime, Black and brown college applicants could (if they so desired) check the relevant racial box, and then write their personal statements about their passion to study Proust, Plato, differential geometry, string theory, The Odyssey, or anything else under the university’s sun. Under the SFFA regime, in contrast, Black and brown applicants are strongly encouraged to produce narratives of racial woe that not only utilize the victimhood mindset that conservatives loathe, but also complicate the tale of America’s racial progress that conservatives prize. College application essay writing, moreover, is a far more deliberate, constitutive act than simply checking a racial box, which can happen quickly and without much thought at many quotidian settings—including, for example, the doctor’s office or the DMV. Exemplary college application essays, of course, require careful planning, sustained thought, and numerous rounds of revisions. As Black and brown college applicants spend an outsized amount of time polishing their statements of highly individualized brushes with racism in response to SFFA, they will not simply abandon those sentiments when they arrive at college. Instead, much to conservatives’ chagrin, those students will lug their senses of racial aggrievement to campus right along with their dorm trunks. This essay-driven dynamic will surely succeed in heightening the salience of race at universities—and around the nation.
Highly recommended.
