SMU Law Review

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In Students for Fair Admissions, Inc. v. President & Fellows of Harvard College, the Supreme Court considered voluminous evidence that Harvard discriminated against Asian Americans to keep the racial composition of its student body similar year after year. The Court held that Harvard engaged in unlawful discrimination, providing clarity to an area of the law that was filled with ambiguities and self-contradictions. The Court’s decision made clear that discrimination in favor of some racial groups necessarily inflicts discriminatory, race-based harms on others.

This Article explores how Fair Admissions sheds light on the failure of identity politics to create a genuinely inclusive, egalitarian society. Practitioners of identity politics, whom this Article refers to as identitarians, argue that all “people of color” in the United States have a common political interest in uniting against the hegemony of the White majority. In reality, racial minorities experience both positive and negative interactions with members of the White majority and other racial minorities. Fair Admissions revealed how, in some circumstances, members of the White majority may unite with some racial minorities to perpetrate discrimination against other minorities. Identitarianism provides no account of how society should weigh the competing interests of different minorities in a manner that best serves the common good. Nor does it offer a vision for how the White majority and racial minorities can and should strive to live together in harmony and cooperation.

This Article argues for an alternative theoretical framework for civil rights advocacy rooted in individual dignity. It argues that society should banish arbitrary racial categories from public life, enforce bans on discrimination against both overt and covert discrimination when justified by the evidence, foster talent-based institutions that are inclusive of all people, and promote honest discourse about race. Only a society that values and respects the dignity of the individual can be genuinely inclusive and egalitarian.

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