72 Am. U. L. Rev. 1775 (2023).

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Affirmative action has long spurred debates over whether the Equal Protection Clause and subsequent civil rights legislation were intended to permit policies aimed at disrupting racial hierarchies, dismantling systemic discrimination, and ensuring equal opportunity for Black people and other historically marginalized groups. The current lawsuits pending before the Supreme Court challenging affirmative action admissions programs at the University of North Carolina at Chapel Hill (UNC) and Harvard College are no exception. Like prior lawsuits, the plaintiff in both cases—Students for Fair Admissions (“SFFA”)—and its amici seek to turn back the clock on racial diversity at selective universities by urging the Supreme Court to upend over forty years of precedent and outlaw affirmative action admissions altogether. Ratcheting up the constitutional threat even further, SFFA has argued, in part, that the Equal Protection Clause, and in turn Title VI of the Civil Rights Act of 1964, prohibit any distinctions based on race because the provisions are “colorblind.”

SFFA’s theory of strict constitutional colorblindness did not receive much attention by the Justices at oral argument, perhaps because SFFA did not provide much briefing in support. Nevertheless, the extremity of SFFA’s colorblind regime
warrants serious attention by legal advocates, universities, scholars, policymakers, and other stakeholders. ‘While it is unlikely that a majority of Justices will endorse such a far-reaching constitutional interpretation in the Court’s forthcoming decision, SFFA and its amici have advanced arguments that could lay a dangerous foundation for future legal challenges. Proponents of racial progress and equity must be prepared to fend off such attacks, some of which have already been launched by SFFA’s amici and allies.

To this end, this Article vigorously contends with SFFA’s colorblind regime to expose its legal and practical infirmities. We begin by summarizing the doctrinal framework that currently governs affirmative action in higher education, describing the seminal cases and emphasizing the pending cases before the Supreme Court. We then turn to demonstrating how SFFA’s colorblind arguments are constitutionally defective and practically undesirable. First, we highlight how SFFA’s proposition that the Fourteenth Amendment is colorblind runs contrary to the Equal Protection Clause’s original purpose and legislative history. Such an interpretation perversely interferes with the Fourteenth Amendment’s anti-subjugation and equality-based goals, and it would gut the strict scrutiny framework that has reliably guided courts for decades. Next, we trace how SFFA and its amici have articulated a colorblind legal framework that—in its most extreme forms—entrenches today’s racial hierarchies by systematically privileging predominantly white experiences while devaluing the lived reality of many historically marginalized people of color. The net effect of the differing treatment raises serious concerns with equal protection violations. Finally, we map out how SFFA’s more drastic colorblind assertions—such as its request that admissions officers be banned from learning an applicant’s race—could run afoul of the First Amendment by unjustifiably censoring certain students’ application essays merely because they ascribe some meaning to their race or ethnicity. Through legal analysis and specific examples drawn from the UNC and Harvard case records, this Article underscores how the unfounded, extremist colorblind regime invoked by SFFA and its amici poses a severe threat to core constitutional principles and the proper functioning of our multi-racial democracy.

* J.D., University of Texas at Austin School of Law, 2000; B.A., New Mexico State University, 1997.

** J.D., Harvard School of Law, 2013; M. Ed., Arizona State University, 2010; B.A., Harvard University, 2008.

The authors are counsel with the Lawyers’ Committee for Civil Rights Under Law and represent a multiracial group of student and alumni intervenors and amici in three current affirmative action cases, two pending before the Supreme Court and one stayed in the Western District of Texas: Students for Fair Admissions, Inc. v. President & Fellows of Harv. Coll., No. 20-1199 (U.S.); Students for Fair Admissions, Inc. v. Univ, of N.C., No. 21-707 (U.S.); Students for Fair Admissions, Inc. v. Univ. of Tex. at Austin, No. 120-cv-763 (W.D. Tex.). Opinions expressed by the authors represent their own opinions and not that of their clients or the organization.

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