Data’s Demise and the Rhetoric of SFFA

Abstract

The Supreme Court’s holding that Harvard College’s and the University of North Carolina’s (UNC) “admissions systems” are invalid under the Equal Protection Clause of the Fourteenth Amendment and Title VI of the Civil Rights Act of 1964 was an anticipated result. The Court’s 2016 decision in Fisher v. University of Texas at Austin (Fisher II), left some speculation that race-conscious admissions could eventually be struck down by the Court; however, Fisher II also offered some guidance for future litigants to address challenges. Colleges and universities needed to use data to “scrutinize the fairness of their admissions programs” to satisfy the burden strict scrutiny and narrow tailoring impose. Despite previously touting the importance of data, the current Justices of the Supreme Court disregarded the data presented by both Harvard and UNC. Furthermore, the Court ignored stare decisis by discounting the diversity rationale enshrined by Justice Powell in Regents of the University of California v. Bakke. Since the Supreme Court’s decision on June 29, 2023, scholars and parties to the case have opined about the decision’s impact. Several writings focus on the majority opinion written by Chief Justice John Roberts. Others highlight the dissents written by Justices Sonia Sotomayor and Ketanji Brown-Jackson, but few focus on the concurring opinions. This Article focuses on stare decisis and the data presented by Harvard and UNC in the case. It also posits that rhetoric has been used to falsely frame inclusion practices as racial preferences. As such, this Article explores the origins of rhetoric to evaluate Justice Thomas’s colorblind perspective of the United States Constitution, and more specifically, the Fourteenth Amendment. Finally, this Article conducts a deeper examination of the approach highlighted by Justice Thomas in his concurring opinion.