Whiteness as Property in the world of Students for Fair Admissions v. Harvard - George

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Harris grounds her argument for affirmative action in the idea that institutions should seek to "equalize treatment" of racial groups by overcoming the "property interest" of whites whose privilege and historically derived advantages prevent the possibility of a neutral background over which merely "equal treatment" can be justified (1780). Affirmative action therefore seeks to achieve a form of "distributive justice" where resources, such as school admissions, are distributed according to "what would have been the proper allocation in absence of the warp of racial oppression," (1784). She claims that objections to affirmative action are grounded in the property interest of whiteness," and a desire to realize "the settled expectations of whites" to receive preferential treatment, grounded, of course in subordination of other races, and, having been established, requiring only facial neutrality for its maintenance.


However, recent affirmative action litigation complicates this picture. In Students for Fair Admissions v. Harvard, the plaintiffs claim that the University's consideration of diversity in admissions amounts to discrimination against Asian American applicants. Despite a growing proportion of applicants being Asian American, and those applicants tending to have higher test scores than other groups, Harvard's admissions process has kept its racial makeup constant. Harris rejects the idea that we should worry about things like test scores in considering affirmative action, as, even these "merit" criteria  are "colorblind" in and of themselves, they exist on the background of oppression, and thus, an expectation of facially neutral treatment is just another "expectation of continued white privilege. "In SFFA v. Harvard, however, the plaintiffs are not white. Could they be said to have benefitted from white privilege, or whiteness as property? Does the fact that they succeeded against the background of oppression make their desire to be considered neutrally against this background illegitimate? Asian Americans have certainly been harmed by whiteness as property. If affirmative action requires discriminating against them, how does it help realize "what would have been the proper allocation in absence of the warp of racial oppression," (1784)?

These are very difficult questions, but I don't think they require us to abandon Harris's arguments entirely. A large plurality of Harvard students and admittees are still white. Given the success of Asian American applicants in  "merit" criteria despite the background of discrimination and the continued need to realize a distribution that accounts for that background, this plurality should probably be reduced. This can be accomplished without "racially neutral" admissions that abandon the goal of "de-legitimating property interest in whiteness," and instead by abandoning the goal of a student body that reflects the demographics of the country (1777). This seems like an important goal until we remember that institutions selective enough for affirmative action to come into play are actually quite rare, and that most schools just accept most of their applicants (https://www.pewresearch.org/fact-tank/2019/04/09/a-majority-of-u-s-colleges-admit-most-students-who-apply/).Moreover, white Americans  still attend college at higher rates than Black or Hispanic Americans (https://nces.ed.gov/programs/raceindicators/indicator_rea.asp). Elite schools being more demographically unrepresentative then they already are is therefore unlikely to cause major societal ills, and using them to achieve distributional justice is a reasonable policy.

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