The first of the three cases currently challenging the use of preferences in college and university admissions is now pending before the Supreme Court. Students for Fair Admissions (SFFA), a private advocacy organization, filed its initial complaint against Harvard College in November, 2014. It alleged that Harvard intentionally discriminated against Asian American applicants, engaging in “racial balancing” that denied them a fair and equitable chance for admission.
After lengthy discovery and a bench trial, United States District Judge Allison D. Burroughs held on September 30, 2019, that the Harvard policy complied with the principles and rules promulgated by the Supreme Court in Grutter v. Bollinger (2003). Harvard did use a racial preference as part of the admissions process. But that “tip” was simply one factor among many designed to admit a “diverse” group of students, consistent with the Supreme Court’s determination that the attainment of a diverse student body is a constitutionally appropriate “compelling” institutional interest. The admissions policy was, in turn, “narrowly tailored,” that is, structured and implemented in ways that complied with procedural rules outlined by the Court.
A panel for the Court of Appeals for the First Circuit affirmed these holdings on November 12, 2020. SFFA then filed a petition for a writ of certiorari with the Supreme Court on February 25, 2021. It expressly invited the Court to overrule Grutter and hold that race cannot be used as a factor in college and university admissions. In the alternative, it argued that if Grutter remained good law, the system used by Harvard was overt racial balancing, that is, was not narrowly tailored.
The current briefing schedule gives the Court adequate time to assess the request and accept the case for review during its October, 2021 Term, which will commence on October 4, 2021. The Court may wish to defer consideration until the District Court and Court of Appeals for the Fourth Circuit have ruled in a parallel case brought by SFFA against the University of North Carolina. That would allow it to assess these matters in the arguably different contexts provided by a private institution like Harvard and a public flagship university like North Carolina. That said, the Court did take Grutter’s companion case, Gratz v. Bollinger (2003) after only a district court holding and in advance of a ruling by the Court of Appeals for the Sixth Circuit. So there is precedent for acting expeditiously and taking the cases, if the Court is so inclined.