Affirming Affirmative Action by Affirming White Privilege: SFFA v. Harvard

This essay critically assesses the district court’s ruling in favor of Harvard in SFFA v. Harvard, a case which ultimately led to the end of the diversity rationale for the use of race in higher education’s affirmative action in admissions. This essay criticizes the district court’s assessment of Harvard’s use of race-based affirmative action at all, given that the lawsuit’s central claim had nothing to do with it. In a footnote, the court addressed the real claim at hand—discrimination against Asian-American applicants vis-à-vis white applicants resulting from race-neutral components of the admissions program. Had the analysis in this footnote served as the central basis of the court’s ruling, it could have both demonstrated how elite schools privilege whiteness, and also thwarted the possibility of the Supreme Court dismantling race-based affirmative action in higher education.