Students for Fair Admissions Through the Lens of Interest-Convergence Theory: Reality, Perception, and Fear

Authors

Robert A. Garda Jr., Loyola University of New Orleans School of LawFollow

Abstract

In two cases, Students for Fair Admissions, Inc. v. President & Fellows of Harvard College and Students for Fair Admissions, Inc. v. University of North Carolina (SFFA), the Supreme Court held that Harvard and UNC violated the Equal Protection Clause of the Fourteenth Amendment and Title VI of the Civil Rights Act in their use of race in their admissions process. This Article examines the SFFA decision through the lens of interest-convergence theory.

This Article is novel in three respects. It is the first article to explain the SFFA decision in-depth. The opaqueness of the decision has led to significant confusion between commentators, scholars, and universities about the impact of the decision. I conclude that the SFFA decision overturned prior precedent and ended affirmative action in higher education, no matter how carefully crafted the race-conscious admission plan. I also conclude that universities will not be able to ignore the decision, or use race-neutral alternatives, to maintain a critical mass of minority students.

Second, this Article is the first to explain the SFFA outcome using interest-convergence theory. I break down the separate interests of Black,[1] Hispanic,[2] White,[3] and Asian-Americans.[4] I find that Black and Hispanic interests remain served by race-conscious admission policies, but that shifting racial demographics and political power dynamics changed the decades-long White interest in supporting affirmative action. I further find that Asian-Americans have an interest in maintaining affirmative action, but that the SFFA outcome aligned with White interests because it permitted universities to continue “negative action” against Asian-Americans in favor of White students.

Third, this Article is the first to explain how the perceptions of White Americans about policies that benefit minorities overrides the significant benefits they receive from diverse educational environments. I conclude that the longstanding and concrete benefits that White students receive from a critical mass of minority students on campus has become less important than the perceived threat of such admission policies to the current societal hierarchy. I conclude that interest-convergence theory explains why the Supreme Court overturned decades of precedent and university admission practices: it served the perceived interests of White Americans.

[1] I use the commonly followed practice of capitalizing the term Black. See Angela Onwuachi-Willig, Comment, Roberts’s Revisions: A Narratological Reading of the Affirmative Action Cases, 137 Harv. L. Rev. 192, 195 n.20 (2023) (explaining history and reasons for using the term “Black”).

[2] I use the term Hispanic, instead of Latinx, because the Supreme Court used that racial category in the SFFA decision and UNC and Harvard use that racial category in their admissions policies. Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll. (SFFA), 600 U.S. 181, 216 (2023). Latinx is a narrower term that refers to a person with origins from anywhere in Latin America. William Alexander, Ask the OEDI: Hispanic, Latino, Latina, Latinx—Which is Best?, Duke Univ. Sch. Med. (Sept. 8, 2022), https://medschool.duke.edu/blog/ask-oedi-hispanic-latino-latina-latinx-which-best [https://perma.cc/WY4B-6UXR].

[3] I will capitalize White because putting it in lowercase affirms that Whiteness is the norm when other racial categories are capitalized. Kristen Mack and John Palfrey, Capitalizing Black and White: Grammatical Justice and Equity, MacArthur Found. (Aug. 26, 2020), https://www.macfound.org/press/perspectives/capitalizing-black-and-white-grammaticaljustice-and-equity [https://perma.cc/V9E2-ANWT].

[4] I use the term Asian-American because the Supreme Court used the racial category in the SFFA decision and UNC and Harvard use the racial category in their admissions policies. See SFFA, 600 U.S. at 216.

Recommended Citation

Robert A. Garda, Students for Fair Admissions Through the Lens of Interest-Convergence Theory: Reality, Perception, and Fear, 77 SMU L. Rev. 93 (2024)