Abstract
Racial resentment, stemming from perceptions that one racial group has unfairly lost opportunities to another, has profoundly shaped decades of affirmative action law. Affirmative action programs
emerged in the 1960s to counteract racial discrimination and expand opportunities for racial minorities. However, some white applicants soon viewed these programs with resentment, believing they unfairly benefited other groups at their expense. From the 1970s to the 2010s, U.S. Supreme Court decisions on affirmative action in higher education sought to assuage this resentment. The Court restricted such programs to indirectly considering race through diversity rationales rather than directly relying on racial justice justifications.
The Court recently departed from this approach in Students for Fair Admissions v. Harvard. The plaintiff in this case leveraged resentment among white and Asian American communities to oppose affirmative action, and the Court rewarded legal tactics exploiting such resentment. Rather than emphasizing diversity’s broader benefits to reduce resentment, the Court endorsed a “zero-sum” view seeing Black and Latine students’ success as an acceptable basis for others’ resentment. The Court also promoted a “colorblind” ideology that catered to racial resentment while preserving systemic inequities.
While legal scholars have emphasized SFFA v. Harvard’s seismic shift in equal protection law, comparatively little attention has focused on the Court’s changing responses to resentment. This Article introduces a novel framework categorizing judicial postures toward racial resentment into three approaches: (1) vindication, which endorses resentment by highlighting racial justice measures’ perceived costs to white people; (2) mitigation, which assuages resentment by downplaying race and racial justice; and (3) resilience, which actively resists and contests such resentment.
Viewing SFFA through this tripartite framework yields several insights. First, labeling the Court’s unabashed resentment validation as “vindication” clarifies its departure from decades of doctrine aimed at mitigating racial resentment. This shift is concerning given the threat such resentment poses to a multiracial democracy. Recognizing vindication’s disadvantages, legal scholars may be tempted to call for returning to the status quo of mitigating resentment. However, mitigation itself has validated resentments and perversely incentivized continued opposition to racial equality measures. Identifying an alternative “resilience” approach demonstrates that accepting resentment as legitimate and embedding it into law are not the only paths forward. Instead, judges, scholars, advocates, and others can strive to safeguard inclusive laws against backlash rooted in racial
grievances.
