End of Affirmative Action? Supreme Court Agrees to Hear Potential Landmark Case in 2022-2023 Term

Written by Connor Ingerson


On January 24th, the Supreme Court announced that it would hear a challenge to the admissions policy of Harvard University as it pertains to affirmative action. The challenge comes from a group known as Students for Fair Admissions, Inc., that seeks to invalidate Harvard’s race-conscious admissions policy. The group is a nonprofit membership that believes that “racial classifications and preferences in college admissions are unfair, unnecessary, and unconstitutional.” They seek to eliminate the consideration of an applicant’s race or ethnicity in deciding their admission to a college or university.

The group initially filed suit in 2014 but was defeated at the District Court level in 2019. In 2020, the U.S. Court of Appeals for the First Circuit held that Harvard’s admissions process complied with Supreme Court precedent. In a statement, Harvard’s President Lawrence Bacow stated that “Harvard does not discriminate; our practices are consistent with Supreme Court precedent; there is no persuasive, credible evidence warranting a different outcome.” Harvard has also received support from the Biden Administration. It is not in debate that the Supreme Court’s precedent concerning affirmative action is squarely in the crosshairs of this litigation and coupled with the new makeup of the Court may determine the fate of affirmative action in higher education in America.


The Supreme Court first grappled with affirmative action in higher education in Regents of the University of California v. Bakke in which the Court struck down set aside slots or quotas for minority applicants for medical school. Justice Powell’s plurality opinion left open the possibility of race to be considered as a plus in a particular applicant’s file. The case that is squarely at issue here as pointed out by the petitioners is Grutter v. Bollinger. In Grutter, the Court upheld Michigan University Law School’s use of race-conscious admissions policy under strict scrutiny. The Court determined that student body diversity is a compelling state interest that can justify the use of race in university admissions. The Court stated that an admissions policy can only survive strict scrutiny if it is narrowly tailored. This means that there must be individualized consideration of each applicant, the policy must be time-limited, there must be a serious good-faith effort to consider race-neutral alternatives, and no quotas may be used. Race or ethnicity may be utilized as a plus factor but cannot amount to a fixed rate or percentage. The Court reaffirmed this principle in the 2016 case of Fisher v. University of Texas, in which it upheld Texas’ admissions policy. Justice Kennedy articulated that the university considered race as “a factor of a factor of a factor in the holistic review calculus.”

The Arguments

The primary contention of Students for Fair Admissions (SFFA) is that Grutter is unconstitutional as violating the 14th Amendment and should be overruled. Petitioners argue that Grutter rests on incorrect foundations and it is unworkable in practice. It also argues that Harvard’s admissions process does not comply with Court precedent as applied to Asian Americans because race is used as a minus in their applications. The group claims that Asian Americans bear a penalty on their applications personal rating by lowering their rating by a significant degree. It states that Harvard does not utilize a critical mass as a metric and that its admissions process amounts to impermissible racial balancing. Overall, the group contends that Harvard’s admissions process cannot survive strict scrutiny’s requirements for narrow tailoring and ban on racial balancing.

Harvard countered these arguments by contending that the lower court’s ruling should be controlling when it determined that Harvard complied with Supreme Court precedent. It also argues that it does not discriminate against Asian Americans and that its admissions process uses race solely as a factor in compliance with precedent. It warrants that SFFA’s arguments have no merit and that there is no reason for the Court to return and consider overruling its affirmative action jurisprudence. Harvard concludes that overruling Grutter and instituting race-blind admissions procedures would undermine the general public and universities across the country in their goals of obtaining highly qualified and diverse student bodies.


This litigation will be the new-look Supreme Court’s first encounter with affirmative action. It is all but uncertain how the Court will rule. The new justices on the Court may tip the balance in SFFA’s favor as the Court decides to review its affirmative action precedent. The Court will also be welcoming a new member with the retirement of Justice Stephen Breyer at the end of the Court’s present term. However the Court rules, the ramifications will be substantial as the fate of both Grutter and affirmative action as a whole hangs in the balance. The consequences will also be substantial for colleges and universities across the country in how they construct and implement their admissions policy.


Brief for Petitioner at 20, Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll. (No. 20-1199) (2021). https://www.supremecourt.gov/DocketPDF/20/20-1199/169941/20210225095525027_Harvard%20Cert%20Petn%20Feb%2025.pdf.

Brief for Respondent at 15–16, Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll. (No. 20-1199) (2021). https://www.supremecourt.gov/DocketPDF/20/20-1199/179362/20210517111311678_20-1199%20Brief%20in%20Opposition.pdf.

Fisher v. Univ. of Texas, 136 S. Ct. 2198 (2013).

Grutter v. Bollinger, 539 U.S. 306 (2003).

Press Release, Harvard University, SCOTUS Statement from President Bacow (Jan. 24, 2022) https://www.harvard.edu/admissionscase/2022/01/24/scotus-statement/.

Regents of Univ. of Cal. v. Bakke, 438 U.S. 265 (1978).

Students For Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 397 F.Supp. 3d 126 (D. Mass. 2019).

Students For Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 980 F.3d 157, 204 (5th Cir. 2020).