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Harvard Law School




“The end of affirmative action.” The headline is near. When it arrives, scholars will explain that a controversial set of policies could not withstand unfriendly doctrine and less friendly Justices. This story is not wrong. But it is incomplete. Critically, this account masks an underappreciated source of affirmative action’s enduring instability: elite universities, affirmative action’s formal champions, have always been ambivalent advocates.

Elite universities are uniquely positioned to shape legal and lay opinions about affirmative action. They are formal defendants in affirmative action litigation and objects of public obsession. And yet, schools like Harvard and the University of North Carolina—embroiled in litigation now before the Supreme Court—avoid the facts and theories that would buttress their own race-conscious programs against predictable lines of attack. As a result, affirmative action’s formal advocates enable the case against affirmative action.

In this Article, I explore the source of this ambivalence. Specifically, I examine how common institutional dynamics disincentivize elite universities from marshaling the most compelling case for their own policies, thereby compromising the case for affirmative action in the court of law and the court of public opinion. The consequences transcend legal skirmishes over race-conscious admissions. For decades, affirmative action debates have stood in for more fundamental fights over what, if anything, is necessary to overcome America’s legacy of legalized white supremacy. Accordingly, when university defendants understate the case for affirmative action, they do more than compromise their own modest interventions. They also enable a resurgent right-wing campaign to discredit antiracism as the new racism, and antiracists as the new racists.

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