Prof. Theodore M. Shaw

speaker Prof. Theodore M. Shaw

People conflate the terms affirmative action and diversity... they are not the same thing.

Theodore "Ted" Shaw is the Julius L. Chambers Distinguished Professor of Law and the Director of the UNC Center for Civil Rights. Shaw teaches Civil Procedure and Advanced Constitutional Law and his research areas include the Fourteenth Amendment, affirmative action, housing policies regarding fair housing. Early in his career, Shaw practiced as a Trial Attorney in the Honors Program of the U.S. Department of Justice, Civil Rights Division. He also spent time at the NAACP Legal Defense Fund (LDF) where, for over 26 years, Shaw litigated cases related to elementary, secondary and higher education, housing, voting rights and capital punishment. He directed LDF’s education docket, established LDF’s Western Regional Office in Los Angeles and eventually became LDF's fifth Director-Counsel. Prior to UNC, Shaw also taught at the University of Michigan Law School, where he played a key role in initiating a review of its admissions policy that was later upheld in Grutter v. Bollinger in 2003 by the Supreme Court. He's also held teaching positions at Columbia University School of Law, CUNY School of Law at Queens College and Temple Law School. 

Talks by Prof. Theodore M. Shaw

related talk Understanding SFFA v. Harvard
Understanding SFFA v. Harvard

Students for Fair Admissions v. Harvard College signals a radical shift in how the Supreme Court views favoring racial diversity and affirmative action in higher education. Chief Justice John Roberts, writing the majority opinion in SFFA v. Harvard, rejects the use of race as a factor in college admissions, asserting that this practice, previously accepted under prior cases such as Bakke and Fisher (see additional resources), is no longer permissible. Professor Theodore Shaw of UNC Law School explains the evolution of affirmative action and racial diversity programs and the impact of this decision on our understanding of Title VI of the Civil Rights Act of 1964 and the Equal Protection Clause of the Fourteenth Amendment.

Affirmative action is a policy designed to give employment and educational consideration to individuals from groups that have been historically underrepresented or disadvantaged. Diversity programs similarly promote racial diversity but do so in an effort to improve the overall learning experience and college culture. The group Students for Fair Admissions argues that both are improper. SFFA sued both Harvard and the University of North Carolina (where Prof. Shaw teaches) claiming that race-conscious admissions programs disadvantaged Asian and Asian-American applicants. These applicants, they claim, were disfavored by the policies because Asians are not statistically “underrepresented” at the elite schools.

Chief Justice Roberts rejected the diversity justifications offered by the universities as insufficient to meet the high burden of “strict scrutiny,” and sided with SFFA. According to Chief Justice Roberts, “both programs lack sufficiently focused and measurable objectives warranting the use of race, unavoidably employ race in a negative manner, involve racial stereotyping, and lack meaningful endpoints.” Roberts finds that the schools may have had good intentions, but their efforts fall short of the standard of the Fourteenth Amendment.

According to Prof. Shaw, there was one notable crack in the wall erected by the SFFA decision barring the use of race in the admissions process. Chief Justice Roberts explained that this decision does not prevent a student from expressing their racial experiences in a personal essay or similar component of a college application. Prof. Shaw discusses what this means for colleges that continue to advocate for diversity, breaks down noteworthy footnotes and dissents, and predicts additional litigation to come.