What's the Point of Parity? Harvard, Groupness, and the Equal Protection Clause

By many accounts, the pending case Students for Fair Admissions (SFFA) v. Harvard — alleging racial discrimination against Asian applicants in undergraduate admissions — could end affirmative action in higher education and beyond. Some hold out hope for a ruling that addresses discrimination against Asian applicants vis-a-vis white applicants, but maintains affirmative action for African American and Hispanic applicants. This essay argues that this hope is only possible if the court rejects the definition of discrimination animating both parties’ statistical expert reports. This definition holds that equal protection on the basis of race entails the similar treatment of persons in different racial groups who are similarly situated with respect to variables rationally relevant to the domain in question. 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 equal protection doctrine. I argue that, prior 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.