Standpoint Epistemology, the First Amendment, and University Affirmative Action

Egalitarian legal scholars understandably might have been troubled by the end of June 2023, when, on two successive days, the Supreme Court appeared to put an end to public as well as to private university affirmative action on a theory of race discrimination in Students for Fair Admissions v. Harvard, then appeared to put an end to the application of anti-discrimination law to any private enterprise that could be characterized as “expressive” in 303 Creative LLC v. Elenis. Yet the June 30 case, I shall contend, has the potential to undermine the negative impact of the June 29 case, at least as applied to private universities—for teaching and research is undoubtedly expressive. Thus, this Essay sketches the outline of a case for First Amendment protection of private university race-based affirmative action. This abstract has been taken from the author's introduction.