What Did SFFA Ban? Acting on the Basis of Race and Treating People as Equals

The Supreme Court has declared that the “race-conscious admissions” at Harvard and the University of North Carolina (“UNC”) are unconstitutional under the Fourteenth Amendment of the United States Constitution. The problem is, nobody knows what, precisely, has been banned by the Court’s decision in Students for Fair Admissions v. Harvard. The majority said things like admissions must not “depend,” “turn on,” or be “based on” race, and that admissions officers must not “consider” race. Part I of this Article explores what precisely these terms might mean. The majority’s rhetoric sometimes indicates that anytime someone acts on the basis of race, it counts as unlawful under the Equal Protection Clause. But that is not what the majority opinion actually holds. Nor could it be. If race is a real category of thought, experience, and action in our world, then one cannot just excise it and leave social and cognitive antimatter in its place. But one can put forward a theory of what is fair or just treatment in light of race. And that is what the majority is doing—they just obfuscate it. Part II of this Article argues that any coherent view on what is required by the Equal Protection Clause (or non-discrimination under Title VI) on the basis of race amounts to taking a position on what kinds of considerations are just in light of race (among other statuses), not abstracted from it.