On June 14th, the Supreme Court announced that it has asked the Solicitor General to submit its opinion on the merits of granting certiorari to SFFA v. Harvard. Among other things, this means the Court is unlikely to decide the question of granting cert until late summer or early fall.
The petition asking for review was filed on February 25, 2021. Harvard was granted an extension of time to file its response, which was docketed on May 17, 2021. Students for Fair Admissions or SFFA filed its reply one week later, on May 24th. The filings to date were then distributed to the Justices the next day.
SFFA is making two principal arguments. The first is that the Court should overrule Grutter v. Bollinger (2003) and hold that “institutions of higher education cannot use race as a factor in admissions.” The second is that if the use of race as a factor in fashioning an entering class remains constitutional, Harvard, as a private institution subject to the strictures of Title VI of the Civil Rights Act, is violating that measure’s ban on discrimination on the basis of “race, color, or national origin” by using an admissions policy that “penaliz[es] Asian-Americans” by “engaging in racial balancing overemphasizing race and rejecting workable race-neutral alternatives.” Harvard, not surprisingly, defends the “detailed” and “fact-specific” findings of the District Court and Court of Appeals for the First Circuit, which held that the admissions policy was in accord with the rules and standards sets by the Court in Grutter v. Bollinger, Gratz v. Bollinger (2003), and Fisher v. The University of Texas at Austin (2016). It also argues that there are no reasons to revisit these precedents and that their repudiation would have serious, adverse consequences for many institutions of higher education, which view the attainment of diversity via the use of race as an admissions criterion as central to the fulfillment of their educational missions.
Seventeen briefs were filed by various parties in late March as “friends of the Court” supporting SFFA’s request that the use of race to achieve diversity be deemed unconstitutional. Two were filed in support of neither party, offering independent perspectives on the issues and the suitability of the Harvard admissions program. No briefs were submitted supporting Harvard prior to the June 10th discussion and, surprisingly, none have been filed as of this writing in early July, 2021.
It is possible that the Court would like to consider the pending district-court decision in what is, in effect, a companion case, brought by the same plaintiffs, involving the University of North Carolina. That would allow it to take up these questions in the light of the different circumstances and characteristics of both a public and private university. The District Court has completed its bench trial in the UNC case but has not yet issued an opinion. Once it does, it is certain that the losing party will ask the Court of Appeals for the Fourth Circuit to review and reverse, a process that could take considerable time and delay any consideration by the Supreme Court. That said, it is worth noting that the Court did invoke a little-used rule in the University of Michigan litigation, taking up Gratz without the benefit of a court of appeals ruling.
The proverbial bottom line: stay tuned.