[I'm reposting this because the linked article disappeared from SSRN's website soon after I posted it, until a copyright permission issue was resolved.]
My article, Students for Fair Admissions and the End of Racial Classification as We Know It, has been published in the new Cato Supreme Court Review. Here is the abstract:
The Supreme Court's decision in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College (SFFA) likely marks the beginning of the end of the overt use of race in university admissions. The Court's decision, however, has much broader implications.
Harvard University and the University of North Carolina (UNC) classified applicants based on racial and ethnic categories adopted by the federal government in the 1970s. SFFA concluded that these classifications were so arbitrary as to be unconstitutional. SFFA therefore offers a broad new avenue of attack for litigants challenging racial preferences and other race-based policies based on these ubiquitous classifications. Any entity that is sued for engaging in discriminatory preferences or for otherwise allocating goods or services by race will need to explain why the racial classifications they rely upon don't fail the arbitrariness test.
Part I of this article briefly reviews the history of the use of racial preferences by universities starting in the 1960s.
Part II of this article discusses how the SFFA case disrupted a cozy status quo, in which universities pretended to abide by the limitations the Court had imposed on the use of racial preferences and the Supreme Court pretended not to notice that universities were ignoring those limitations.
Part III of this article notes that, for the first time, a Supreme Court majority has concluded that the standard racial classifications used by universities and many other institutions are arbitrary and incoherent. This means that many other uses of racial classifications beyond university admissions are suddenly more vulnerable to legal challenge.
That is the subject of Part IV of this article. It discusses potential challenges to the use of race-based preferences in government contracting; to the mandatory use of racial classifications in biomedical research; and to the arbitrary standards the government uses to classify people as American Indians.
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