Abstract
Excerpted From: David Simson, Conceptual Gerrymandering in SFFA and Some Thoughts on How It Enables the Case’s Weaponization, 73 Buffalo Law Review 1377 (December, 2025) (377 Footnotes) (Full Document)
Race is hard. It is hard to understand and define as a concept even though most of us think we know what it is. It is hard to grasp all of the ways in which race influences who we think we are and who others are--what unites and divides us. It is hard to grasp all of the ways in which race is reflected in social life, from the most mundane to the most impactful activities and decisions. It is hard to grasp all of the many ways in which race intersects with the law. It is hard to grasp the long history of all of these things, and the many changes along the way. It is hard to grasp the untold amount of harm and suffering that has been imposed and justified in the name of race and what to do about it. This Article provides a way of thinking about many of these complexities as they manifest themselves in the decision making of the Supreme Court, and analyzes an example of how decisions that cut across these complexities can be mobilized in troubling ways: the Supreme Court’s decision in the consolidated cases of Students for Fair Admissions against Harvard and the University of North Carolina (“SFFA”) and its subsequent weaponization.
To set the stage for this analysis, consider the following context: While objections to various institutional and scholarly efforts to critique and address continuing racial inequality across many aspects of American life have a long history, they arguably have turned into an all-out assault over the last few years. The first big move in this regard came in 2020 in the aftermath of massive protests for racial justice called forth by police murders of black men and women, most publicly that of George Floyd. This move consisted of a wave of both federal (at the end of the first Trump administration) and state-level attacks that assailed a boogeyman constructed out of misrepresentations (deliberate in at least some cases) of ““Critical Race Theory” (CRT) and conflations of a wide variety of ideas into this newly created boogeyman irrespective of any actual ties to CRT. This first line of attack was an attempt to discredit the leading progressive edge of racial justice scholarship and advocacy, as CRT is one of the most well-developed and comprehensive frames in the legal academy in this regard. It was also an attempt to chill and silence teaching, scholarship, and advocacy that foster critical thinking about, and challenge, the racial status quo more generally.
In the chaotic first few months of 2025, the second Trump administration extended this attack to more moderate efforts to address racial inequality-- most notably, to efforts operating in a wide variety of forms as “diversity, equity, and inclusion” (DEI) programs--by again misrepresenting and conflating a wide variety of ideas and practices into an ill-defined “DEI” amalgam that has now become a target of choice for the administration. Having molded and redefined both critical and more moderate efforts to problematize and attempt to reduce racial inequality as the very definition of racial discrimination and injustice, the administration has been weaponizing this redefinition. Using various tools of executive power, the administration has moved swiftly to end racial justice efforts within the control of the federal government, and engaged in pressure tactics (at times, clearly unlawfully) to force other actors to similarly end all efforts that may even remotely be viewed as problematizing, much less challenging, existing racial inequalities.
Wedged between these executive and legislative efforts--and in many ways serving as a bridge between them and as an ideological foundation and justification for the most recent efforts--is the Supreme Court’s latest foray into the question of whether race-conscious efforts to address racial inequality in American society are constitutional (and statutorily permissible): its 2023 decision in SFFA.
Viewed narrowly, SFFA is a decision about the legal boundaries of one particular justification--the “diversity rationale”--for the explicit consideration of race in one very specific context--admissions decisions of colleges and universities. Moreover, and again viewed narrowly, SFFA only decided very specific legal questions. It tightened the requirements for when the diversity rationale passes constitutional (and statutory) muster and held that the admissions systems of both universities that were parties in the case did not meet those requirements. Strictly speaking, SFFA neither declared the diversity rationale unconstitutional as such/in its entirety, nor explicitly overruled prior cases that had also spoken to the diversity rationale, nor did SFFA explicitly decide anything regarding the permissibility of the use of race in government or private decision-making outside of its own context.
However, key opinions in SFFA also went much further than resolving these narrow questions and made pronouncements about the propriety of race-consciousness in institutional decision making much more broadly. And it is these broader pronouncements that the Trump administration has seized on as one of the main justifications for its all-out attacks.
To give just a few examples of various kinds:
SFFA was used as the main intellectual framework underlying a February 2025 ““Dear Colleague Letter” from the U.S. Department of Education Office for Civil Rights to all educational institutions receiving federal funds, which described education on “systemic and structural racism” as “toxic[] indoctrinat[ion],” attacked DEI programs as a vehicle for impermissible stereotyping, and warned that any “race-based decision-making, no matter the form” is impermissible under the Equal Protection Clause of the 14th Amendment and Title VI of the Civil Rights Act of 1964. SFFA played a similarly central role in a related April 2025 Department of Education document titled “Reminder of Legal Obligations Undertaken in Exchange for Receiving Federal Financial Assistance and Request for Certification under Title VI and SFFA v. Harvard.” The Department of Education sent this document to State Commissioners overseeing K-12 Education Agencies to remind recipients that the use of “illegal DEI practices” would lead to “serious consequences,” including termination of federal funds under Title VI and False Claims Acts liability. While the “Dear Colleague Letter” and the Request for Certification were subsequently found unlawful by lower courts on procedural, free speech, and vagueness grounds and the Department of Education recently appears to have abandoned efforts to enforce these specific documents, the Department’s aggressive invocation of Title VI against racial equality initiatives continues and may well lead to similar actions in the future that continue to aggressively rely on SFFA but avoid those specific problems.
SFFA played a central role in multiple letters that the Department of Justice’s Civil Rights Division sent to various recipients at the University of Virginia between April and June 2025, which aimed at forcing the university to end any consideration of race in its admissions and other operations, to complete a “total elimination of DEI,” and to push out (eventually successfully) UVA’s president for insufficiently submitting to this pressure campaign.
SFFA’s reasoning is the main justification presented by the Department of Energy’s Office of Minority Economic Impact for its May 2025 action to rescind prior regulations that set up special provisions for the award and administration of loans to minority business enterprises.
SFFA’s reasoning is cited as a main justification by the Department of Labor for its July 2025 decision to propose rescinding regulatory provisions that impose certain types of affirmative action obligations on employers that participate in certified apprenticeship programs.
But does the reasoning of the key opinions in SFFA justify this heavy justificatory reliance placed upon it, which will almost certainly continue and expand?
My short answer is no, because the reasoning exhibits significant amounts of problematic “jurisprudential gerrymandering.” This undermines both SFFA’s own legitimacy as well as the legitimacy of actions, such as those summarized above, that rely heavily on the persuasiveness of SFFA’s reasoning. SFFA not only gerrymanders in its approach to constitutional interpretation--i.e. engages in “methodological gerrymandering,” as I have analyzed previously--but its key opinions also gerrymander their definitions of the crucial concept of “race”--i.e. they engage in what this Article calls ““conceptual gerrymandering.” To summarize and simplify somewhat, these opinions define “race” inconsistently in different places, ranging from a deeply substantive, socially constructed attribute to a meaningless biological one. However, these inconsistencies appear to be neither random nor the result of the consistent application of interpretational methodology. Rather, the different definitions used for race in different parts of the opinions appear to be consistently chosen such that they implement the relevant Justices’ preferences vis-à-vis the status quo way in which American society is ordered along racial lines. More specifically, they appear to be consistently chosen such that they support a strategy of undermining and discrediting attempts to question and reduce the way in which American society is currently ordered into a particular type of racial hierarchy. This is problematic and should undermine not only the persuasiveness of SFFA itself, but also of other actions that rely on its reasoning.
The remainder of this Article elaborates on these points as follows. Part I provides a high-level overview of the contours and goals of the ““jurisprudential gerrymandering” framework. It explains that ““jurisprudential gerrymandering” occurs when Justices manipulate or distort their jurisprudential choices in order to implement their political or ideological preferences for how society should be organized. It also explains that such gerrymandering is generally incompatible with broadly shared notions about how Justices should decide legal questions. Thus, focusing one’s analysis on whether such gerrymandering is present should help people with diverse value commitments agree about how to evaluate the Justices’ work when agreement is possible and disagree more productively when agreement is not possible. Finally, Part I notes that “jurisprudential gerrymandering” can take a variety of forms, including most importantly for this Article, the form of conceptual gerrymandering.
Part II elaborates on “conceptual gerrymandering.” Section II.A briefly explains what “conceptual gerrymandering” is generally, i.e. the manipulation or distortion of the definition of legally significant social concepts in pursuit of political or ideological preferences. Section II.B then explains in depth how such conceptual gerrymandering can occur in the context of “race,” specifically. To do so, Section II.B.1 first briefly lays out the deep legal significance of the concept of race in American law. Section II.B.2 then explains what may sound counterintuitive to some people: that there are multiple competing conceptualizations of what “race” “is,” which conflict with each other in legally significant ways. This makes legal decision making related to race a context in which conceptual gerrymandering is a significant possibility. Building on this foundation, Section II.B.3 then explains how to analyze conceptual gerrymandering in the specific context of race.
Part III applies the analytical framework developed in Part II to key opinions in SFFA, with the main focus being on Chief Justice Roberts’s majority opinion and its constitutional analysis. Section III.A provides an in-depth analysis of the majority opinion which supports the conclusion that the opinion engages in conceptual gerrymandering to a significant extent. It does so by using (1) inconsistent conceptualizations of race in different parts of the opinion (2) without explanation or justification (3) in the consistent pursuit of a jurisprudential strategy that aims to implement particular ideological preferences vis-à-vis the status quo way in which American society is ordered along racial lines by undermining and discrediting interventions that would reduce the status quo of racial hierarchy in the United States. This should cause observers to assign comparatively little legitimacy to the opinion and its reasoning. While a full conceptual gerrymandering analysis of Justice Gorsuch’s concurring opinion and its statutory interpretation discussion is beyond the scope of this Article, Section III.B nevertheless provides some high-level observations on why a conclusion that Justice Gorsuch’s opinion, too, engages in conceptual gerrymandering seems persuasive.
Finally, the Conclusion shares some thoughts about (1) why the foregoing analysis suggests that recent attempts to weaponize SFFA should not receive much credit and should be resisted when possible, and (2) how we should engage with one another about the complex and deeply significant questions that the operation of race in American society raises on a daily basis more generally.
[ . . . ]
While I believe that there are many implications of the above analysis that are worth elaborating, for purposes of this Article, I want to focus briefly on what my critique of the majority opinion’s (and to a lesser extent of Justice Gorsuch’s opinion’s) analysis means for how we should think about efforts that try to extend the reasoning of SFFA beyond the specific context of the case--and which thus depend on the degree of legitimacy that we are willing to assign to SFFA. As noted earlier, at least at the level of basic baseline assumptions and widely shared views about Supreme Court opinions in our legal system, the amount of legitimacy that a given decision of the Justices receives--and the consequent credibility boost it can impart on efforts that try to rely on and extend its reasoning--should at least in part be a function of the degree to which we can describe the decision and its reasoning as the result of principled legal analysis rather than political or ideological preference. With respect to SFFA, the above analysis supports both a broader and a more specific takeaway in this regard.
More broadly, this Article’s conceptual gerrymandering analysis adds to numerous existing critiques of SFFA with respect to other aspects of its reasoning to further support the conclusion that, as a whole, the case should not be viewed as an example of strong degrees of principled legal decision making. Thus, SFFA should not be viewed as being able to provide much, if any, credibility boost to other actors who want to extend its reasoning either. Those actors should include lower courts deciding to extend SFFA to new circumstances, but also, importantly, the political branches when they take actions such as the recent assault on efforts even remotely related to problematizing the hierarchical racial status quo of American society, as mentioned in the Introduction. The farther away an action is from the specific and narrowly construed subject matter of SFFA (i.e. race-conscious higher education admissions decisions based on a diversity rationale), the more any reliance on SFFA’s reasoning should be questioned and discounted. To be credible and persuasive, such actions should be viewed as having to stand on their own beyond SFFA. If certain actions require acceptance of the persuasiveness of SFFA for their own persuasiveness, their legitimacy should be questioned and discounted. Recent actions by federal administrative agencies that attempt to change the rules for the administration of public loans and the regulation of apprenticeship programs, for example, are clear instances where this line of analysis should obtain in my view.
More specifically, the above analysis of conceptual gerrymandering in relation to “race” in SFFA allows observers to be more granular in evaluating which of the Justices’ choices among possible conceptions of race other actors decide to mobilize to support their own actions. Most notable in this regard is that for numerous recent actions that have weaponized SFFA in their quest to undo both recent and more longstanding efforts to problematize continued racial inequality across a variety of contexts, the “choice quotes” from SFFA have been those that use formalistic skin color-based conceptions of race to discredit the universities’ actions. For example, in its (recently abandoned) effort to extend SFFA to the K-12 context by demanding that State Commissioners overseeing K-12 State Education Agencies certify compliance with antidiscrimination obligations under Title VI and SFFA, the U.S. Department of Education expressly cited the statement from the SFFA majority opinion’s stereotyping discussion that “[t]he entire point of the Equal Protection Clause is that treating someone differently because of their skin color is not like treating them differently because they are from a city or from a suburb, or because they play the violin poorly or well.” The Department also cited Chief Justice Roberts’s final critique of the universities in SFFA and extended this critique to the previous presidential administration by noting that “[t]hrough its equity mandates, the Biden administration has, as did the colleges and universities in SFFA v. Harvard, 'concluded, wrongly, that the touchstone of an individual’s identity is not challenges bested, skills built, or lessons learned but the color of their skin.”’
Similarly, in its action to rescind regulations meant to facilitate access to loans for minority businesses seeking government contracts, the Department of Energy quotes a separate statement from Roberts’s stereotyping discussion in SFFA--noting that “[t]he Supreme Court ... has 'time and again forcefully rejected the notion that government actors may intentionally allocate preference to those who may have little in common with one another but the color of their skin,”’ and arguing that current regulations “do exactly that, in violation of” SFFA.
The in-depth conceptual gerrymandering analysis of SFFA provided above helps us understand that such reliance on SFFA by other actors is problematic not simply because it is based on a poorly reasoned case (from a different context) in general, but because it relies for its strongest force on the weakest analyses of race in that case. Equating race with empty notions of skin pigmentation is not only an incomplete and analytically dissatisfying way of conceptualizing this incredibly complex social concept, but also the use of such a conceptualization to criticize what the universities in SFFA (and many other institutions) are actually doing falls especially flat. As analyzed earlier, whatever one may think about the universities’ admissions programs (and there are critiques of them from all sides of the ideological spectrum), those programs are not allocating preferences on the basis of (or even collecting information on) different shades of skin color as such. Thus, these recent efforts to extend SFFA are built on multiple levels of sand.
This is troubling for many different reasons. It should be clear at this point that I personally reject efforts such as those of the second Trump administration that aim (at most semi-transparently) to re-assert and fortify the very racial hierarchy the ostensible rejection of which forms the basis of the Court’s assertion of the aggressive role for itself in SFFA upon which the administration now relies. But I recognize that many others are institutionally situated such that there is strong pressure to comply, and perhaps even to anticipatorily over-comply.
Part of what this Article hopes to accomplish is to add to the list of arguments that should make such actors think hard about those choices. In a country that prides itself on constantly reiterating, if often only in words, its deep commitments to racial equality, efforts in tension with those commitments should require the strongest, not the weakest level of justification. The executive should not be able to rely on select quotations that import gerrymandered (as well as substantively dissatisfying) reasoning from a Court decision from a different context to create a façade of legitimacy for its attempts at dismantling established institutional efforts across a wide swath of American life.
However complex different institutions’ decisions on whether to submit to those attempts are and will be, what I hope this Article helps make clear is that the Supreme Court’s reasoning in SFFA is not a strong reason to do so-- notwithstanding what the current administration may have us believe. If institutions do challenge the administration’s actions, courts reviewing those challenges have good reasons to question and reject the administration’s reliance on SFFA. If a majority of the Justices on the Supreme Court believe that the problematic, gerrymandered reasoning in SFFA has purchase beyond the immediate context of the decision itself, we should demand that they explicitly say so and take responsibility for allowing SFFA’s suffusion into other areas.
Most broadly, and ending this Article with the general point with which it started--that race is hard--the key opinions in SFFA analyzed above have troubling implications for how all of us engage on and debate issues of race. To reiterate a point made in multiple places above, this Article’s strong critique of the reasoning of these opinions is not grounded in a claim that there is an obvious answer to the multi-layered issues with which the case deals, and that the relevant Justices simply “got wrong” something they should have easily “gotten right.” Similarly, the critique is not grounded in a simplistic accusation that the Justices writing or joining those opinions are simply “political hacks” (or, even more simplistically, “bad people”) that merely dress up their decisions in the garb of legal justification to dupe a gullible American public. However, the critique is grounded in strong claims that the justifications offered by those opinions and Justices are weak and unsatisfactory, and that their decisions do seem to be driven by political or ideological preferences to a significant extent.
Two points follow from this. First, if the complexity of the issues at stake is such that even a partial analysis of one aspect (such as the analysis put forward in this Article) takes tens of thousands of words, then one should decidedly not be persuaded by, and indeed should work to limit the influence of, both the Court’s attempt to declare that these issues can be resolved by reference to simplistic shibboleths such as “[e]liminating racial discrimination means eliminating all of it” and its inaccurate claims that America’s universities are distributing admissions spots solely based on applicants’ skin pigmentation. Moreover, the self-congratulatory confidence and dismissal of critics that these opinions put forward encourage further polarization and disengagement between those who agree with the outcome of the case and those who disagree with it. After all, why engage with someone who is so obviously and self-deludingly wrong? What is needed instead, however, is encouraging engagement over the fact that this area of law and life mixes together inescapable conceptual complexity and messiness with contested and contestable value choices in the context of hundreds of years of complicated and tragic historical and social context. How could there possibly be a simplistic answer to the problems that grow out of such an environment, especially when the stakes involved are so significant and personal? The Trump administration is exploiting people’s willingness to engage in self-serving oversimplification when it equates critical engagement with this complexity with “toxic[] indoctrinat[ion].” Such rhetoric puts pressure on people who find themselves on multiple sides of such questions (i.e. all of us) to sort themselves into two oversimplified camps and encourages demonization of one of those camps. Accordingly, such rhetoric is not only substantively inaccurate but socially dangerous and should be resisted.
Second, I do not think that it is inconsistent to critique SFFA as a decision that seems to be driven by political or ideological preferences to a significant and problematic extent while resisting calling the Justices who wrote or joined its key opinions simple “political hacks.” In fact, in my view a productive engagement with the complexity of the issues involved requires the drawing of such distinctions. If, as set out above, “race” as a social concept is highly complex, socially significant, historically laden, ever-present, shape-shifting, and yet seemingly “common sense” and “self-evident,” then we all constantly make choices about how to define and implement it in our daily lives. Given the omnipresence and significance of race in American society, it is likely that we are often inconsistent in how we do so yet unaware of this inconsistency. As noted above, it is plausible that the SFFA opinions analyzed in this Article are examples of this. But while inconsistency and lack of awareness may be inevitable to some degree, that does not mean that they are therefore insignificant or should be ignored. Quite the opposite. Learning about the dynamics and complexities of race should lead us to be more conscious of the fact that we are constantly making choices and to more often think about, and then wrestle with, what seems to be driving our choices. This is especially true at the Supreme Court, which so heavily relies for its legitimacy on the (perceived) principled nature of its decision making.
As suggested above, a basic guidepost in thinking about what may drive our decisions in the context of race and racial equality is the degree to which we (consciously or unconsciously) believe that the status quo way in which American society is ordered along racial lines is presumptively legitimate or illegitimate--in particular as it relates to the superordination of whiteness. The uncomfortable, but unsurprising, empirical reality that social psychology research suggests for people racialized as white in the United States--a group which includes all Justices in the SFFA majority except Justice Thomas (as well as myself, for that matter)--is that people who benefit from a status hierarchy tend to be, on average, more supportive of such hierarchy, as well as more likely to subscribe to ideologies that justify the hierarchy or the practices that sustain it. Thus, all else being equal, there is also reason to suspect that people who benefit from a status hierarchy will, on average, be more likely to make choices in navigating ambiguous and complex social concepts in their decision making in ways that are hierarchy-supportive. This Article’s analysis of key opinions in SFFA provides further evidence in support of this suspicion. The point here is not that this line of research, or any other simple set of explanations, “can provide all the answers or fully explain the incredibly complex process of judging.” Nevertheless, the overall insights and patterns uncovered by this research matter and should cause those who are part of a dominant group, and especially those like the authors of the relevant SFFA opinions as well as the Trump administration who claim that they view racial hierarchy as problematic, to pay close attention to the social psychological forces that are likely to operate on them--often subconsciously.
Engaging with the messiness and high stakes of race in American society and law in this way requires uncomfortable and often deeply personal and disorienting work--work on which one inevitably brings one’s values to bear. I am generally persuaded “that there is no 'apolitical’ or 'neutral’ set of principles for constitutional interpretation that does not depend on contested and contestable value choices about what constitutes 'proper’ social arrangements,” and I believe that this general point also holds true when choices have to be made about how to conceptualize race in a given context. Claiming that there is no truly “value-neutral” approach to such decision making, however, is different from claiming that principled decision making is therefore impossible.
No set of principles may be truly value-neutral, but each set of principles can be applied consistently on its own terms once selected--even if consistent application will at times conflict with one’s narrow ideological preferences. Conceptual gerrymandering analysis relies on this distinction to justify a stronger objection to Supreme Court decision making when conceptual gerrymandering is present than might be justified when objections are based primarily on a disagreement in values. While in a vastly diverse society like the United States it is highly unlikely that there will be stable agreements about overall social values, it should still be possible to agree that when the members of the institution that we hold to the highest standards of principled decision making--the highest Court in the land--manipulate or distort their self-asserted principles when adherence to them is ideologically inconvenient, their work product should be viewed with deep skepticism. And such work product should certainly not boost the legitimacy of the work product of others who are more overtly ideologically motivated. As I hope the above has demonstrated, SFFA and its weaponization are a highly tangible illustration of these points.
Associate Professor of Law, New York Law School.
