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Selective Egalitarianism in Elite University Admissions: A Look at Sffa V. Harvard
Full text linkIn striking down race-based affirmative action in Students for Fair Admissions, Inc. v. President & Fellows of Harvard College (SFFA), Chief Justice Roberts’s opinion for the Court was surely one of the most significant of his tenure. In this article, I offer a critical analysis of the various opinions in SFFA, and use them as a starting point for a more general assessment of admissions practices at selective higher educational institutions.
I begin with an initial assumption that equality and leveling illegitimate social hierarchies (such as hierarchies based on race, gender, class, sexual orientation, and gender identity) are worthwhile normative goals. From there, I make two primary claims. First, a focus on social hierarchy can illuminate the selective egalitarianism that has long oriented admissions practices at elite universities. While I believe these institutions genuinely care about equality, they are nevertheless focused on only specific forms of equality. This is most apparent in the continuation of some admissions practices like legacy preferences. Even with respect to race-based affirmative action itself, these programs remain selectively egalitarian given that they are inherently elitist in how they function. A radical egalitarian seeking to fundamentally restructure higher education would almost certainly not dream up or gravitate toward anything like affirmative action—at least in the forms that we are familiar with.
My second claim is partly descriptive and partly normative. One key mechanism that, pre-SFFA, allowed universities to engage in this mix of admissions practices that only half-heartedly advanced egalitarian goals was the relatively generous deference granted them by the Court in its prior decisions on affirmative action. The use of this deference by universities to promote and defend affirmative action was sufficient reason for affirmative action’s defenders to believe that this was appropriate and wise. But in the post- SFFA era, with affirmative action seemingly off the table for the foreseeable future, there are significant reasons for both defenders and skeptics of affirmative action to question the virtues of a broad deference to universities regarding admissions going forward. At the very least, I will argue the time is right to rethink the various pluses and minuses that surround a broad deference to universities on these admissions matters.
I proceed as follows: in Part II, I first provide some background on the SFFA litigation and then critically discuss the various opinions in the case from the standpoint of equality and hierarchy concerns. My primary task here is to provide some overview of the opinions and to illuminate the centrality of hierarchy and egalitarian concerns within the arguments of Justices from both the majority and among the dissenters. From Parts III to V, I then turn my attention to three distinct issues in elite university admissions, discussing how each issue underscores their selective egalitarianism. Those three issues are, in turn: assessing race-based affirmative action (Part III); assessing the treatment of Asian-American applicants in the SFFA litigation (Part IV); and assessing socioeconomic diversity at elite universities (Part V). Since my argument in these three Parts will be conceptually driven, in each of them I draw selectively from prior case law and the SFFA opinions where appropriate to provide additional context for the discussion.
While I am sympathetic to the claim made by the dissenters in SFFA that race-based affirmative action in higher education has, since its constitutional validation in Regents of the University of California v. Bakke, served as a powerful tool to combat racial hierarchy—especially with respect to African- Americans and Hispanics who have generally been considered underrepresented racial minority groups under such programs—my assessments in Parts IV and V on the treatment of Asian-American applicants and socioeconomic diversity are much more critical of universities.
With those items on the table, I conclude the article in Part VI by more squarely turning our attention to the themes of hierarchy and university deference to assess them from a more systemic perspective. In short, broad deference to universities on admissions should be understood as a mixed bag for committed egalitarians. Notwithstanding their various institutional goals— many of which I find commendable—selective universities are fundamentally committed to the pursuit and maintenance of more and more exclusive status, so any egalitarian efforts that involve these institutions must grapple with that constraint
From Margins to Center: Elevating the Voices of Disadvantaged Families in Child Welfare
No full textThis essay sheds light on the systemic challenges faced by indigent,
minority families within the child welfare system, using personal experiences
from my time as a student at the University of Florida
Levin College of Law as a lens. This essay aims to highlight the intersection
of poverty, race, and the child welfare system, showing
how these factors can hinder parents\u27 ability to reunite with their
children despite their best efforts. The essay seeks to underscore the
urgent need for a more nuanced, multidisciplinary approach to child
welfare advocacy that includes legal professionals, social workers,
and health professionals working collaboratively to support families
struggling with reunification
A Better Path Forward: The Need for Restorative Justice in the Child Welfare System
No full textThe child welfare system in the United States often prioritizes punishment
over healing, failing both the children harmed by maltreatment
and the responsible parties. This Comment explores how incorporating
restorative justice within state child welfare systems
can shift the focus to repairing relationships, building trust, and
promoting healing of the parties harmed, the parties responsible for
the harm, and the community as a whole. Aimed at an audience
who is interested in, but not deeply familiar with restorative justice,
this Comment suggests for the mandatory inclusion of restorative
justice practices to create a more comprehensive and healing-centered
approach within the child welfare system
Keeping it Wreal: How The Eleventh Circuit\u27s Wreal Decision Is Better Suited For A Uniform Reverse Confusion Multifactor Analysis
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Can the Excessive Fines Clause Mitigate the LFO Crisis? An Assessment of the Caselaw
Full text linkThe nation’s increasing use of fees, fines, forfeiture, and restitution has resulted in chronic debt burdens for millions of poor and working-class Americans. These legal financial obligations (LFOs) likely entrench racial and socioeconomic divides and contribute to the breakdown of trust in the police and courts in disadvantaged communities. One possible source of restraint on LFOs may be the Excessive Fines Clause of the Eighth Amendment. Largely ignored by courts and commentators for two centuries, the Clause has in recent years been the subject of a burgeoning volume of litigation and scholarship. The U.S. Supreme Court has decided a handful of Excessive Fines Clause cases but has left a great many questions about the Clause’s reach unanswered. Lower courts are now regularly grappling with these open questions, giving rise to an ever-growing body of caselaw. This Article offers the first systematic survey and evaluation of the caselaw on what counts as a “fine” for Eighth Amendment purposes, particularly in relation to the major categories of LFOs. Based on an assessment of nearly 200 cases, important interjurisdictional variations are apparent. In a few states, expansive understandings of the Clause’s reach are becoming established, which may create a foundation for robust constitutional regulation of LFOs. In most states, though, the precedent is either less favorable or simply still too undeveloped to see a clear trajectory. The Article further identifies seven key, open doctrinal questions that cut across the LFO categories and will likely determine the extent to which the full range of LFOs will be subject to the Clause
