The Volokh Conspiracy

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SMU Law Review Symposium on Students for Fair Admissions


I was pleased to participate in an excellent symposium at the SMU Law Review on Students for Fair Admissions v. UNC. This journal made a strong effort to seek out diverse viewpoints. This is one of the more balanced symposium issues I've seen in years. Well done. Here is the roster of submissions:

Here is the abstract of my article, Students for Fair Admissions v. Universities for Division, Exclusion, and Inequity: The Petitions, the Arguments, and the Decision:

Students for Fair Admissions v. Harvard will be studied by law students for generations, in much the same way that Bakke and Grutter were studied before. But there is much more to SFFA than the final decisions about Harvard University and the University of North Carolina will reveal. This Article, published for a symposium by the SMU Law Review, focuses on three stages of the litigation: the petitions, the oral arguments, and the decision. Part I recounts the complex procedural history, which began in federal courts in Massachusetts and North Carolina. The Harvard case reached the Supreme Court first, while the UNC case lingered in District Court. The Supreme Court called for the views of the Solicitor General. By doing so, the Court could punt the case to the following term, which allowed the UNC case to catch up, and Justice Breyer's replacement to be confirmed. Both cases would be argued on October 31, 2022.

Part II parses the questions asked by all nine Justices during oral argument. Chief Justice Roberts signaled up front that he would rule against the universities. Justice Thomas repeated his charge that arguments in favor of racial preferences mirror the arguments made by segregationists. Justice Alito worried about discrimination against Asian-American applicants. Justice Sotomayor focused on the detailed findings of the trial courts. Justice Kagan questioned whether SFFA would favor universities with few, or no racial minorities on campus. Justice Gorsuch looked to Title VI of the Civil Rights Act of 1964. Justice Kavanaugh suggested preferences could be reserved for the descendants of slaves. Justice Barrett inquired about the expiration date of Grutter. And Justice Jackson recounted how the Reconstruction Congress used racial preferences for the freedmen.
Finally, Part III breaks down four aspects of the Court's decision. SFFA eliminated the "educational benefits" rationale for affirmative action. Chief Justice Roberts continues to take inconsistent positions in similar cases during the same term. Justice Kavanaugh continues to follow the lead of Chief Justice Roberts in leading cases, including SFFA. And I defend Justice Jackson's likely-involvement in the Harvard case, notwithstanding her recusal.