Sabotaging Scrutiny: SFFA’s Racialized Distortion of Suspect Classification

Abstract

This Note explores how the Supreme Court’s opinion in Students for Fair Admissions (SFFA) has changed the functional effect of strict scrutiny in affirmative action challenges, subsequently warped suspect classification under the Fourteenth Amendment. It argues that the Court’s strict scrutiny analysis in SFFA, which ignores the dynamic realities of race in America and gives doctrinal credence to meritocracy in higher education, handicaps non-white litigants’ access to the Fourteenth Amendment’s Equal Protection Clause while widening the availability of the Fourteenth Amendment suspect for white litigants. By parsing whiteness’ evolution in race related jurisprudence before and after suspect classification became canonical doctrinally, dissecting the SFFA opinion’s approach to narrow tailoring and compelling interests, and presenting the lower courts’ utilization of post-SFFA strict scrutiny’s edit in employment cases, the Note highlights the court’s strategy in reconstructing strict scrutiny and offers the Thirteenth Amendment as a solution to the foreclosure of the Fourteenth Amendment for non-white litigants post-SFFA.