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Abstract

This term, the Supreme Court will decide Students for Fair Admissions v. President and Fellows of Harvard College (SFFA v. Harvard), a challenge to Harvard College’s race-conscious admissions program. While litigation challenging the use of race in higher education admissions spans over five decades, previous attacks on race-conscious admissions systems were brought by white plaintiffs alleging “reverse discrimination” based on the theory that a university discriminated against them by assigning a plus factor to underrepresented minority applicants. SFFA v. Harvard is distinct from these cases because the plaintiff organization, SFFA, brought a claim alleg-ing that Harvard engages in intentional discrimination by penalizing Asian American applicants despite their status as people of color. SFFA alleges that Asian American applicants are discriminated against in the college ad-missions process because Harvard undervalues standardized test scores and other “objective” factors on which Asian American students in the aggre-gate outperform other applicants. Yet, at the same time that a Massachusetts district court considered SFFA’s claims, on the other side of the country, a coalition of students of color, including Asian American students, brought Smith v. Regents of University of California, a lawsuit arguing that stand-ardized test scores were racially biased against them and that reliance on standardized test scores was itself discriminatory. The claims in these cases provide an entry point for considering what I call “mirror” claims of dis-crimination, in which allegations of discrimination are brought challenging both sides of an issue or policy decision, in this case the use of standardized test scores in the college admissions process. This Article argues that with-out a contextual analysis that is grounded in white supremacy, discrimina-tion claims lose their meaning and could be actionable on competing sides of many issues and policy decisions. Instead, courts have a duty to provide guidance about when liability exists by considering how racial disparities in power and resources operate in the context of a particular claim. First, I argue that one way of distinguishing between what appear to be mirror dis-crimination claims is to ask whether there is a strong basis in evidence to believe that a policy or decision would entail liability for disparate impact discrimination. If so, avoiding disparate impact liability provides a defense against a claim of intentional discrimination and a basis for distinguishing the reverse action. Next, I consider how to analyze mirror claims that in-volve intragroup variation within a protected group, such as in the Smith and SFFA cases where there are contested arguments about how different subgroups of Asian American applicants are impacted. I argue that for an intentional discrimination claim to succeed, it should address, rather than ignore, how intragroup differences contribute to experiences of subordina-tion. Finally, I argue that, as Harvard students testified, diversity within diversity can challenge stereotyping and essentialism and provide a pathway to combat subordination.

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