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Harvard Law Review Association




In a seminal article published nearly twenty years ago in the Yale Journal of Law and the Humanities, Professor Peter Brooks posed a critical yet underexplored question: "Does the [flaw [n]eed a [n]arratology?"5 In essence, he asked whether law as a field should have a framework for deconstructing and understanding how and why a legal opinion, including the events that the opinion is centered on, has been crafted and presented in a particular way.6 After highlighting that "how a story is told can make a difference in legal outcomes," Brooks encouraged legal actors to "talk narrative talk" and study "perspectives of telling."7 He invited lawyers and legal scholars to consider in their analyses of opinions "who sees and who tells," what is the "explicit or implicit relation of the teller to what is told," and "how cases come to the law and are settled by the law."8 According to Brooks, the more that lawyers begin to apply a narratology to the law, the more lawyers will be able to see the "constructedness" of narratives in opinions - to understand "how they are put together and what [lawyers] can learn from taking them apart." 9 Similarly, he argued, the more lawyers accepted that the study of narrative in the law "demands analytic consideration in its own right," 10 the more lawyers would see "how narrative discourse is never innocent but always presentational and perspectival."11

Few things reveal the power and truth in Brooks's call for a narratology in the law more than the line of U.S. Supreme Court cases concerning affirmative action in higher education. This year, in two cases that colleges and universities closely watched, Students for Fair Admissions, Inc. v. President & Fellows of Harvard College and Students for Fair Admissions, Inc. v. University of North Carolina,12 the U.S. Supreme Court issued a joint opinion that reshaped nearly fifty years of precedent on race and admissions, holding that Harvard College and the University of North Carolina (UNC) violated the Equal Protection Clause of the Fourteenth Amendment in their use of race in their admissions processes.13 In so ruling, the Court offered "a moment of narrative peripeteia, a reversal that forces a re-reading, an anagnorisis or recognition that makes the past bathe in a different light."14 That rereading, specifically the re-reading of the line of opinions that culminated in the decision in the Students for Fair Admissions, Inc. (SFFA) opinion, highlights two critical revelations about the Court's jurisprudence on race-based affirmative action in higher education.

First, the re-reading reveals how Chief Justice Roberts has forced a new understanding of what the Equal Protection Clause requires in the affirmative action landscape by revising history, precedent, and reality through omissions, misstatements, and untruths. Second, the re-reading exposes how the perspectives of telling and the "narrative glue"15 in SFFA are rooted in what Professor Barbara Flagg defines as the "transparency phenomenon," meaning an invisibility of whiteness, racism, and racism's everyday impacts for everyone, whether advantaging or disadvantaging, to white people. 16 Specifically, it shows that the "doxa" that Chief Justice Roberts relied on in crafting the majority opinion - the "set of unexamined cultural beliefs that structure[d] [his] understanding of everyday happenings" 17 - involve a simplistic understanding of race and racism that is not grounded in the substantive realities of life for people of color. Such doxa include beliefs (1) that race is not socially constructed and is defined only by skin color; (2) that racism is aberrational; (3) that "Jim Crow racism"18 is the only racism that law should redress; (4) that racism is so obvious that people of color, including teenagers applying to college, will know all the ways that they are being discriminated against to discuss them in their essays; (5) that treating people "equally" and with "equality" requires treating them all exactly the same without accounting for history and context; (6) that the "traditional" means for measuring "merit" in admissions are race neutral and do not systemically advantage white people; (7) that white people do not still benefit from discrimination that occurred prior to Brown v. Board of Education;19 (8) that affirmative action creates preferences for Black 20 and Latinx 21 people; and (9) that he and his majority colleagues are simply "call[ing] balls and strikes 22 (as opposed to choosing how to rewrite past precedent and which facts to emphasize and ignore).

This Comment seeks to guide readers through this narratological rereading by offering a critical examination of SFFA. Part I of this Comment provides a brief account of narratology, storytelling, and their imports. Part II delves into the doctrine of affirmative action in higher education, detailing the assumptions - the "doxa" - underlying the decision in SFFA and highlighting how the Chief Justice revised history, precedent, and reality to craft new doctrine about what the Fourteenth Amendment requires of colleges and universities in their admissions processes.

Part III then reveals a major danger in the majority's presumption that the suppression of an applicant's checked racial-identification box or boxes will somehow remove racial considerations in all aspects of an applicant's file review except the essay portions. It does so by highlighting how race, a social construct,23 and the effects of racism are frequently present in considerations of every applicant's file, whether or not an applicant's self-identified race is explicitly known by admissions-file reviewers. More importantly, Part III shows why the Court's move away from explicit race consciousness in admissions will work to deepen rather than lessen the impacts of racial bias. Specifically, Part III utilizes social science research to demonstrate why refusing to explicitly acknowledge race and, in fact, trying to suppress considerations of race will actually make it impossible to remove implicit, as well as explicit, racial bias from the admissions evaluation process. Implicit bias research reveals that making race salient in the assessment of people - as is done with the review of admissions files during a holistic review process - may be a necessary precursor to reducing the effects of nonconscious racial bias.24 Furthermore, much like scholars such as Professors Devon Carbado, Cheryl Harris, Jonathan Feingold, and Stacy Hawkins have done and as Justices Sotomayor and Jackson did in their SFFA dissents, Part III argues that the discontinuation of the use of race in admissions will actually result in further racial discrimination against applicants of color, particularly Blacks, in the admissions process.25 Finally, this Comment concludes with lessons on how future stories about race, racism, education, and admissions can and should be reframed to ensure a truly equal society for all.

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