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115 Nw. U. L. Rev. Online 1 (2020-2021)

handle is hein.journals/nulro115 and id is 1 raw text is: Copyright 2020 by Issa Kohler-Hausmann Vol. 115 Northwestern University Law Review WHAT'S THE POINT OF PARITY? HARVARD, GROUPNESS, AND THE EQUAL PROTECTION CLAUSE Issa Kohler-Hausmann ABSTRACT-Students for Fair Admissions (SFFA) v. Harvard-a case alleging racial discrimination against Asian applicants in undergraduate admissions on appeal to the First Circuit-is one of the most notable recent equal protection challenges to be advanced almost exclusively on the basis of statistical evidence. The case could well end affirmative action in higher education and beyond if it winds up at the Supreme Court. However, the central issue in this case is not an evidentiary question about what is probative of discrimination; it is a substantive question about what constitutes discrimination. The plaintiffs SFFA put forward a substantive definition of racial nondiscrimination-group-based conditional parity-under which equal protection is denied if applicants grouped by race do not face similar likelihood of admission conditional on having similar credentials. Neither Harvard, in defending their affirmative action practices, nor the trial judge, in ostensibly favoring Harvard's expert findings, meaningfully countered SFFA's definition of discrimination. This Essay argues that there is no good normative reason to accept this definition of what equal protection demands in the context of higher education admissions because it will be violated whenever groups sit in some relation of social and material inequality to each other. Furthermore, it is at odds with the Supreme Court's line of cases allowing universities to value racial diversity and the graded scrutiny scale in the equal protection doctrine. Before to debating the content of a substantive principle of nondiscrimination/equal protection with respect to a particular form of groupness, we must first define what constitutes that form of social groupness. A relation of equality and fairness proposed by a principle of 'nondiscrimination' or 'equal protection' is only valid in light of what makes the social grouping what it is under current conditions. 1

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