Toward a Perpetual Practice of Affirmative Action

Despite perceptions that affirmative action is “dead” following the Supreme Court ruling in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College (SFFA), this Essay argues that affirmative action remains crucial for addressing racial bias in admissions processes. This Essay examines the strict scrutiny standard, which requires that any use of race must serve a compelling government interest and be narrowly tailored to achieve that interest. Courts have interpreted the narrowly tailored prong of this standard to include a logical end point requirement, which mandates that race-conscious measures must have a clear and limited duration. This requirement was a point of contention in the SFFA case, where Chief Justice John Roberts criticized the lack of a precise end point in the affirmative action programs of Harvard and the University of North Carolina. To navigate the end point problem, this Essay proposes shifting the focus of affirmative action from achieving diversity to correcting racial bias in admissions processes. Educational institutions can create race-conscious programs that do not require a fixed end point by emphasizing the need to eliminate bias rather than simply achieving a diverse student body. This Essay also incorporates a feminist epistemological approach to understand the subjective nature of admissions processes. It critiques the belief that standardized tests and grades are objective measures, arguing that biases influence all assessments. Drawing on the work of feminist scholar Donna Haraway, this Essay suggests that universities must adopt practices that account for racial bias in their admissions processes, recognizing how measures such as standardized tests may favor certain racial groups and taking steps to correct these biases through race-conscious policies. This Essay concludes that affirmative action remains essential for achieving social justice and addressing racial biases in higher education admissions. The logical end point requirement should not hinder the effectiveness of affirmative action programs. Instead, institutions should focus on continuously assessing and correcting their admissions processes to ensure equality in admissions.