Issues

On October 25th, 2024, the Northwestern University Law Review hosted its annual symposium, titled Racial Justice After SFFA v. Harvard. The Supreme Court’s decision in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College and Students for Fair Admissions, Inc. v. University of North Carolina (collectively, SFFA) marked a seismic shift in equal protection law, dismantling the practice of race-conscious admissions that had existed for almost half a century. The symposium sought to address the impact and ramifications of this historic ruling, and through four panels, seven essays, and a keynote speech from Janai Nelson, President of NAACP Legal Defense Fund, we would declare a success. Both on the day itself and the in the scholarship that emerged thereafter, thoughtful discussion and crucial debate occurred about how to best “march forward” in the shadow of SFFA. The pieces in this issue explore theories of constitutional interpretation and crisis convergence, analyze attacks on racial inclusion policies and racial consciousness, discuss the role of affirmative action and the impact of structural inequities, and underscore the foundational importance of standing and stare decisis. The Northwestern University Law Review is unsurprisingly proud to be able to contribute to these ever-more-important areas of scholarship. However, we would be remiss not to bring attention to the fact that the landscape of racial justice in this country has changed—and continues to change—dramatically.

Progressive jurists and legal scholars have called the Supreme Court’s doctrine of colorblind constitutionalism that dismantled affirmative action in Students for Fair Admissions, Inc. v. President and Fellows of Harvard (SFFA) a crisis for constitutional democracy. However, scholars have not yet tended to students, particularly students mobilized for racial justice, to understand their interpretation of this race-evasive ideology and what insights those mobilized students might offer in this pivotal moment. Given the fact that a small coalition of dissenting conservative jurists, scholars, and mobilized students—the Federalist Society—spent decades crafting the doctrine, scholarship, and resources that drive colorblind constitutionalism and originalist doctrine, it seems that one way out of this crisis would be for progressive scholars to pursue a similar approach. This Essay intervenes by describing how mobilized students have demanded race-conscious laws despite the SFFA majority’s race-evasive ruling, highlighting where those demands converge with the interests of progressive jurists and legal scholars working to protect race-conscious constitutionalism. To do so, this Essay provides a qualitative empirical study identifying converging interests in the SFFA dissenting opinions, the legal scholarship criticizing the SFFA opinion, and the grassroots student campaigns demanding race-conscious laws in the wake of SFFA. The Essay introduces the concept of “crisis convergence” to describe the common interests and values at the intersection of constitutional change, racial justice, and education. Crisis convergence builds on critical race theorist Derrick Bell’s concept of interest convergence and divergence—the idea that Black communities win constitutional change, particularly in the realm of education, only when their interests converge with those of their privileged, white counterparts. This concept helps explain why mobilized students of color and progressive legal scholars should leverage their common ground to develop a race-conscious, rebellious constitutionalism to turn the tides of conservative backlash. The Essay concludes that some of the largest constituencies of mobilized students share a broad convergence point with the SFFA dissent on the pursuit of the self-determination of racially isolated students of color, but also that those same students diverge from progressive scholars on belonging as a race-conscious end. Both the convergence and divergence present helpful insights for progressive scholars to begin to co-construct progressive constitutional theory with broad-based support from impacted students and progressive jurists.

How do we reckon with the past? The Supreme Court’s recent embrace of originalism as a mode of constitutional analysis relies almost exclusively on a view of history and tradition that would bind us to an understanding of principles and ideals that legitimized the exclusion of minority voices. Cases such as New York State Pistol and Rifle Ass’n v. Bruen use flavors of originalism as a framework to define rights and governmental powers through their historical antecedents, but this broad standard of interpretation is notably absent in the Court’s recent discussions
of histories and traditions of racism in the United States. In Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, the Court instead relies on an ahistorical framing of equal protection as colorblindness. This selective history ignores both the social context of cases such as Plessy v. Ferguson and Brown v. Board of Education, and the conceptual origins of affirmative action itself. This results in a vision of a colorblind present and future that is silently constrained and controlled by racisms of the past. Building on Professor Bennett Capers’s work on Afrofuturism and Professor Paul Gowder’s Constitutional Sankofa, I advance a new, futurist methodology of constitutional interpretation—one that incorporates a plurality of histories and traditions, and imagines alternative futures of race and the law.

Despite perceptions that affirmative action is “dead” following the Supreme Court ruling in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College (SFFA), this Essay argues that affirmative action remains crucial for addressing racial bias in admissions processes. This Essay examines the strict scrutiny standard, which requires that any use of race must serve a compelling government interest and be narrowly tailored to achieve that interest. Courts have interpreted the narrowly tailored prong of this standard to include a logical end point requirement, which mandates that race-conscious measures must have a clear and limited duration. This requirement was a point of contention in the SFFA case, where Chief Justice John Roberts criticized the lack of a precise end point in the affirmative action programs of Harvard and the University of North Carolina. To navigate the end point problem, this Essay proposes shifting the focus of affirmative action from achieving diversity to correcting racial bias in admissions processes. Educational institutions can create race-conscious programs that do not require a fixed end point by emphasizing the need to eliminate bias rather than simply achieving a diverse student body. This Essay also incorporates a feminist epistemological approach to understand the subjective nature of admissions processes. It critiques the belief that standardized tests and grades are objective measures, arguing that biases influence all assessments. Drawing on the work of feminist scholar Donna Haraway, this Essay suggests that universities must adopt practices that account for racial bias in their admissions processes, recognizing how measures such as standardized tests may favor certain racial groups and taking steps to correct these biases through race-conscious policies. This Essay concludes that affirmative action remains essential for achieving social justice and addressing racial biases in higher education admissions. The logical end point requirement should not hinder the effectiveness of affirmative action programs. Instead, institutions should focus on continuously assessing and correcting their admissions processes to ensure equality in admissions.

In a new wave of litigation, conservative legal organizations are attempting to rely on Reconstruction-era civil rights legislation to prevent nonprofits, charities, foundations, and other privately organized groups from engaging in race-conscious work. Unlike the Supreme Court’s recent rollback of affirmative action, which dealt with universities’ ability to consider race in admissions as state actors and as recipients of federal funding, a series of lawsuits now challenge the ability of private organizations to consider race in how they invest money and resources to create social impact. Adding fuel to the fire, on January 21, 2025, President Trump issued an Executive Order entitled “Ending Illegal Discrimination and Restoring Merit-Based Opportunity,” which purports to prohibit “all discriminatory and illegal [racial] preferences” and directs federal agencies to enforce the order through investigating the private and nonprofit sectors.

The legal attack on race consciousness in charitable work has distinct implications from the Supreme Court’s rollback of other efforts to limit race-conscious state action. The attack on race-conscious charity is grounded in one of the major historical civil rights statutes, 42 U.S.C. § 1981, which governs private contracting. Thus, the new frontier in affirmative action litigation raises questions regarding the law’s role in regulating voluntary private action to address racial justice problems, in particular through philanthropic action.

Relying on § 1981 to prohibit race-conscious charitable work is deeply ahistorical, conflicting with both the purpose of the statute and how race-conscious giving was understood at the time the Civil Rights Act of 1866 was passed. Under that statute, which was the precursor to § 1981, Black charitable work was both a legal and legitimate strategy for addressing the gap in economic provisions for Black citizens. Indeed, the Congress that adopted the Civil Rights Act encouraged mutual aid as an extralegal solution to address economic inequality resulting from the private market that the government failed to address. In addition to challenging the misuse of § 1981 to restrict race-conscious charitable giving, advocates seeking to continue race-conscious giving should consider returning to mutual aid, a strategy of pursuing social justice through collective philanthropic action. Both historically and today, mutual aid plays a critical role in offering alternative political visions and solutions to pressing racial justice problems.

The United States’ racialized geographies have left communities of color with systematically inferior essential infrastructure that perpetuates their social and economic exclusion. From roads, public transportation, and sewage systems, to banks, high-speed internet, and high-quality public schools, people and communities of color have limited access to the fundamental infrastructure necessary to lead socially and economically vibrant lives. This Essay introduces “infrastructure equality” as a unifying framework to address the critical intersection of physical, social, and legal infrastructures that feed racial inequality. Drawing on multidisciplinary research, it argues that infrastructure—the interconnected and vital system of physical structures, networks, and social institutions—should be conceptualized as foundational to racial equality. The Essay then examines the legal system’s role in advancing this effort and considers the complex legal landscape that infrastructure equality advocates face following the Supreme Court’s decision in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, which restricted race-conscious admissions policies in higher education and may serve as a cornerstone for further retrenchment on racial justice. As traditional legal approaches to identifying and challenging racial exclusion face new obstacles, this Essay argues for a renewed focus on the structural inequities that necessitate such interventions. Indeed, efforts to revive and reimagine race-conscious admissions policies will see limited success if communities of color continue to face the infrastructural inequalities that makes such programs necessary.

This Essay criticizes the use of the term “colorblind” in reference to attacks on racial diversity, equity, and inclusion (DEI) policies. It argues it is inapt and unconscionably obtuse to use colorblindness terminology to selectively target inclusion-motivated race consciousness for automatic illegality. The Essay’s central project is to examine claims underlying attacks on racial inclusion policies such as the Students for Fair Admissions, Inc. v. President and Fellows of Harvard College lawsuit to expose the legal endgame that anti-DEI forces seek to make a centerpiece of America’s future. In so doing, it surfaces the differential scrutiny of race consciousness that the not-colorblind attacks on DEI seek to install.

The Supreme Court recognized nearly half a century ago in Regents of the University of California v. Bakke that “the ‘nation’s future depends upon leaders trained through wide exposure’ to the ideas and mores of students as diverse as this Nation of many peoples.” Nevertheless, the Court seriously undercut efforts to bring such a future to life by striking down race-conscious admissions programs in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College and Students for Fair Admissions, Inc. v. University of North Carolina (collectively SFFA). Though SFFA’s binding effect is limited to educational institutions, the Court’s broad and unrestrained approach allows for it to be weaponized in other contexts. Indeed, the decision has already had tangible, negative effects on the diversity, equity, and inclusion (DEI) landscape in the United States. Opponents of DEI have already brought a slew of lawsuits attempting to extend the Court’s reasoning to bar race-consciousness in hiring policies, grants and fellowships, and even workplace trainings. These disputes place lower federal courts in the difficult position of guessing at the reach of SFFA and the Court’s future intentions. To empower those courts to defend the pursuit of racial justice in this country in a principled manner, we advocate the use of two time-honored doctrines as shields against the creativity and persistence of DEI’s opponents: standing and stare decisis.