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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
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.


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