Excerpted From: Sheldon Bernard Lyke, Defense Against the Dark Arts: The Diversity Rationale and the Failed Affirmative Defense of Affirmative Action, 80 Washington and Lee Law Review 1873 (2024) (299 Footnotes) (Full Document)

SheldonBernardLykeIn the famous fictional world of Harry Potter, students who attend Hogwarts School for Witchcraft and Wizardry enroll in Defense Against the Dark Arts. This required core course teaches students to defend themselves from Dark Creatures and the Dark Arts--the magic used to harm, exert control over, or kill beings. The course aims to teach students how to fight the Dark Arts by protecting themselves, primarily through defense.

Art often imitates life, as parallels exist between this fantasy world and reality. Instead of witchcraft, lawyers in the real world fight the exercise of white supremacy, or--what Ta-Nehisi Coates describes as “the dark art of racecraft.” Those who resist the dark arts of racecraft and champion racial equality through affirmative action litigation have taken an approach similar to the protagonists in Harry Potter--be on the defensive.

Affirmative action is a social policy originally initiated to achieve equality and economic and social advancement for racial and ethnic minorities. Numerous institutions--e.g., private employers and non-profit colleges and universities--have used affirmative action policies to provide opportunities for minorities. Starting in the 1970s, social conservatives and plaintiff litigants--Allan Bakke, Jennifer Gratz, Barbara Grutter, Abigail Fisher, and the organization Students for Fair Admissions fought to end these policies. Their campaign is a practice of racecraft geared towards reverting to a system of fewer opportunities for minority folk. They advance arguments in the courts and media to influence the public to believe that affirmative action is a racial preference that reversely discriminates against Whites and folks of Asian descent. This decades-long racecraft campaign has contributed to the warping of our collective understanding of race, merit, and opportunity.

Unfortunately, conservatives are not the only ones to perpetuate the belief that affirmative action is a racial preference. Schools that defend affirmative action policies also have a hand in furthering that belief. Colleges and universities have adopted an affirmative defense legal strategy when defending affirmative action lawsuits. Instead of disputing the claim that affirmative action constitutes racial discrimination, schools advance an affirmative defense strategy, arguing that courts should permit some degree of racial discrimination in admissions because it meets the compelling government goal to achieve educational diversity.

This affirmative defense strategy not only centers on diversity but is a nod to the dangerous racecraft myth that affirmative action is a racial preference. During the fifty-year history of the Supreme Court's affirmative action cases, society took a detour from the road to racial equality in school admissions and found itself on a ragged path toward diversity. While disparate and distinct, diversity became synonymous with equality, race, and racial minority. By centering diversity, this affirmative defense strategy has ignored other rhetorically stronger arguments highlighting equality and the remedial nature of affirmative action.

While colleges and universities may have good intentions, they participate in the dark art of racecraft that negatively shapes understandings of racial equality laws in the following ways. First, defendant schools help perpetuate the narrative that affirmative action injects race into the admissions process when they (1) explicitly adopt the language of affirmative action as a racial preference, and (2) solely rely on diversity rationale and fail to explain that affirmative action can serve remedial functions (e.g., as a check for the racially biased assessments they utilize). Not only does the diversity rationale reinforce myths about affirmative action as a racial preference, but it also produces a discourse that frames minority applicants' bodies and perspectives as commodities for schools to use so that it may offer a better educational product.

In Part II, this Article discusses the affirmative defense strategy schools have used to defend affirmative action. In addition to comparing and contrasting affirmative versus negating defense strategies in the affirmative action context, this part shows how the affirmative defense strategy is a product of our nation's unique equal protection jurisprudence. This part also offers a history of this defense strategy in the Court's affirmative action cases.

In Part III, this Article explains the meaning of racecraft and argues that the affirmative defense strategy is a form of dark racecraft. This Part illustrates how the affirmative defense strategy is linked to descriptions of affirmative action as a racial preference. Finally, in Part IV, this Article explores how abandoning the diversity rationale is the first step in reviving affirmative action. It notes that affirmative action is highly vulnerable, but not dead. Part IV goes on to argue that abandoning diversity and centering equality rationales is the path to providing racial justice through affirmative action policies.

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Over the past forty years, affirmative action advocates have participated in a defensive campaign where they have admitted that affirmative action is a form of justified discrimination. This is a dangerous strategy because it allows for the practice of pernicious beliefs about race and remedies for racism. When schools fail to fight the perception that affirmative action is a racial preference, they allow the bulk of society to participate in the belief that affirmative action has no remedial purpose and that we live in a society of institutions that do not have histories of discrimination, or do not engage in current practices of discrimination.

This Article calls for institutions to follow--at least partially--the Court's lead in the SFFA decision. Portions of the SFFA decision that are critical of the diversity rationale (or at least its means) align with principles of racial equality.

The time has come for advocates of affirmative action to free themselves of the shackles of diversity, abandon the rationale because it is vague, stereotypes, and commodifies racial minorities, and fully embrace equality rationales. Most importantly, however, it is time for advocates to shed diversity because it distracts us from fully embracing and making robust arguments that call for the racial equality of traditionally disadvantaged people.

In future work, it is crucial to think about taking a more offensive approach to white supremacy and the dark arts of racecraft. Future legal research needs to challenge whether college and university admissions are free of racial basis. One step is to collect credible social science evidence that admissions measures, such as grades, standardized testing, and letters of recommendation, are laced with racial bias. Accounting for these biases and providing a remedy for them is paramount in the next chapter of affirmative action.

Sheldon Bernard Lyke, Associate Professor, Loyola University Chicago School of Law. Please direct questions to This email address is being protected from spambots. You need JavaScript enabled to view it..