Unsuspecting Eviction: SFFA’s Racialized Distortion of Suspect Classification

Students for Fair Admissions, Inc. v. President and Fellows of Harvard College is infamous for the obvious: ending affirmative action. Yes, its wrapping of the diversity rationale for race-conscious admissions in a bow before discarding it is monumental in and of itself. But to accomplish this disposal, the opinion took an approach to suspect classification and strict scrutiny that has gone unprobed. In SFFA, the Roberts Court took advantage of American jurisprudence’s sinuous development of race’s legal conceptualization and strict scrutiny’s formulaic nature to distort suspect classification. Prong by prong, the opinion widened the gap in access to suspect classification for white and non-white people, offering the former group an increased path to “suspicion” and leaving the latter group with a constricted path to “suspicion.” In effect, the opinion has manufactured a dual system of classification that blocks non-white people’s access to the Fourteenth Amendment’s Equal Protection Clause in the affirmative action context. SFFA’s barricading of equality by way of diluting suspect classification is a destination of Fourteenth Amendment jurisprudence’s increasing insistence on a one-size-fits-all approach in race-related challenges. Truly, it is the Supreme Court’s myopic demand for parity that has allowed a “Whites Only” sign to be placed on the door to equal protection. Accordingly, the dismembering of compelling interests and narrow tailoring in SFFA are technical fractures that create a need for a new approach to class-based protection outside of the Fourteenth Amendment. This Note will analyze these fractures to reveal the Court’s strategy, present suspect classification’s bifurcation in practice, and present a solution to SFFA’s establishment of a racialized Fourteenth Amendment access gap.