Last month, as the United States Supreme Court completed its 2021-2022 term, it issued several significant decisions that largely (or entirely) reversed prior decisions on hot button social issues including abortion and school prayer. Next fall, the Supreme Court will be asked to reconsider its position on another divisive issue: Using race as a factor in the college admissions process.
Students for Fair Admissions (SFFA) – a conservative organization involved in affirmative action litigation – brought lawsuits against Harvard and the University of North Carolina challenging their admissions policies. Both cases have been consolidated for appeal purposes and will be argued before the Supreme Court in the next term.
SFFA argues that the Court should overrule Grutter v. Bollinger, a 2003 decision upholding the University of Michigan Law School’s admissions practices and permitting “race-sensitive” admissions programs that consider race as one among multiple factors in the admissions process. Writing the majority opinion, now retired Justice Sandra Day O’Connor concluded that the Constitution “does not prohibit the law school’s narrowly-tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body.” Grutter v. Bollinger largely upheld the Court’s 1978 decision in Regents of the University of California v. Bakke, which permitted race as a factor for consideration in admission policies but ruled that strict racial quotas were unconstitutional.
In all likelihood, we will not know the outcome of the SFFA cases until June of 2023. But we can expect careful scrutiny of the Justices’ questions and comments during oral arguments next term as legal experts and commentators try to predict whether the Court will retain the status quo or narrow the use of affirmative action in higher education admissions.