January 25, 2022
Education
Affirmative Action up for Judgment? US Supreme Court Grants
Cases Seeking to Prohibit Consideration of Race in College
Admissions
By: Matthew S. Hellman, Ishan K. Bhabha, Lauren J. Hartz, and Julia K. Hirata
Intro ducti on
Yesterday, the Supreme Court agreed to hear a pair of cases asking the Court to overrule its precedents
governing t he consider ation of ra ce in college ad missions. One case conce rns admissions at Harvard
College, and th e other concerns ad missions at the University of North Carolina. In both cases, the
petitioner, Stud ents for F air Admissions (SFFA), a lleged that th e university e ngaged in r acial
discrimination against Asian- American applicants. And in each case, th e lower courts reje cted those
claims after a full trial. SFFA petitioned for certior ari and a sked the Cour t to reco nsider and overrule its
key precede nt, Grutte r v. Bollinger, 539 U.S. 306 (200 3), which permits universities to consider r ace as
one factor among many in a holistic admissions eva luation. Th e grant su ggests that t he Court is willing
to reconside r its preced ents in this ar ea, and it may result in addition al limitations or an ou tright
prohibition o n the conside ration of r ace in college admissions. The case s will likely be argued in the fall,
and a decision is expected by the end of June 2023.
Backgro und
The Supreme Cour t’s grant o f certiorar i marks the latest d evelopment in a seve n-year d ispute between
SFFA and Harvard Colleg e. In 2014, the n on-pro fit group filed a lawsuit in federal cou rt, alleging that
Harvard’s policies violate T itle VI by intentionally discriminating aga inst Asian Americans throug h its use
of race as a factor in a dmissions.[1] In ruling for Harvard on all counts, a fe deral district court
determined that Harvard’s admissions policy was consistent with Supreme Court p recedent a nd
advanced th e college’s fund amental interest in diversity. Specifically, the court held that “[t]h e evidence
at trial was clear that a hetero geneous stu dent body p romotes a more ro bust academic enviro nment
with a greater depth and breadth of learning, encourages learning outside the classroom, and creates
a richer sen se of community.”[2] On appe al, the Fir st Circuit affirmed the district court ’s ruling.[3]
In 2014, SFFA also filed a lawsuit against the University of North Car olina at Chape l Hill, similarly
alleging that t he use of r ace in its admission policy viola ted the Equal Pro tection Clause a nd Title VI.
On October 18, 2021, a federa l district court determined that UNC met its burden of demonstrat ing that
“its underg raduate admissions progra m withstan ds strict scrutin y and is ther efore con stitutionally
permissible.”[4] SFFA filed an appeal in November 2021 , which is currently pend ing befor e the Fou rth
Circuit, and, as discussed below, also asked the Supreme Cour t to grant review ahead of th e Fourt h
Circuit’s considerat ion.
Que stions Bef ore the Cour t
In February 2 021, SFFA filed a petition for review of the Fir st Circuit’s decision. In November 2021,
SFFA also filed a p etition asking th e Court to review the North Carolina decision ahead of the Fou rth
Circuit’s review. The primary fo cus of both petitions was whether the Cour t should re visit and over rule
its preceden ts governing the consider ation of r ace in college a dmissions. The Cour t’s leading
precedent in this area is Grutter, which allows a college to consider ra ce as one f actor among many as
part of th e admissions inquiry. Under Gr utter, an admissions policy “may consider race or ethnicity only
as a ‘plus’ in a pa rticular ap plicant's file; i.e., it must be flexible enough to consider all p ertinent
