Document Type

Article

Disciplines

Civil Rights and Discrimination | Constitutional Law

Abstract

The “end of affirmative action” is the beginning of this story. In Students for Fair Admissions v. Harvard (SFFA), the Supreme Court struck a near fatal blow to race-consciousness. Many institutions have since pivoted to “race neutral alternatives.” This is a natural turn. But one that faces immediate headwinds.

The same entities that demanded Harvard pursue racial diversity through colorblind means have sued public high schools for doing just that. These litigants assert a “right to inequality”—a theory that would pit the Equal Protection Clause against equality itself. Even if normatively jarring, a right to inequality might seem a natural extension of SFFA and decades of conservative caselaw hostile to remedial reform.

That sentiment is understandable. But it misreads the caselaw and overlooks a striking irony. The Supreme Court’s fifty-year war on affirmative action culminated in SFFA. But the same caselaw that precipitated affirmative action’s demise fortifies the constitutional case for colorblind remedies—the precise conduct a right to inequality would preclude. To enshrine such a right, sitting conservative Justices would have to abandon their own principles and precedent. This includes longstanding disregard for theories of equality that center groups and outcomes— both of which animate the right to inequality lawsuits. This means that conservative litigants, should they prevail, would benefit from concerns long associated with progressive causes. One corresponding question is whether a right to inequality— because it attends to group-based impacts—could re-empower racial justice advocates to challenge colorblind policies that conservative Justices have long shielded from legal scrutiny.

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