December, 2021: Solicitor General Files Brief for the United States in SFFA v. Harvard

On June 14, 2021, the Supreme Court “invited” the then-Acting Solicitor General of the United States (SG), Elizabeth B. Prologar, “to file a brief expressing the views of the United States” in the Harvard College litigation.  The invitation presumably reflected the Court’s understanding that with the transition from President Trump to President Biden the views of the United Sates had likely changed, given the Trump Administration’s prior support of the plaintiffs in the Harvard litigation and, in a separate matter, its own suit against Yale University.

The SG was not obligated to respond.  But on December 8, 2021, the now-confirmed SG Prologar submitted a brief supporting Harvard and arguing that SFFA’s petition for a writ of certiorari should be denied.

The government’s position was straightforward.  It argued that the Harvard admissions policy and practices met the requirements of the applicable precedents, which should not, as SFFA requested, be overruled.  That is, that Harvard simply used race as one factor among may in a holistic review of each individual applicant.  The SG stressed that “this Court has approved the educational benefits of student body diversity as a compelling interest” and maintained that “the educational benefits of diversity identified in Grutter [v. Bollinger (2003) and Fisher [v. The University of Texas at Austin (2016)] are of critical importance to the United States.”  In particular, the brief emphasized the strong presumption against overruling prior precedents, especially where, as is allegedly the case here, they had not proven “unworkable” and had generated significant “reliance interests” on the part of the institutions that use racial preferences.  The “special justifications” necessary to defeat these interests are, the government stated, are simply not present when “no decision of this Court has called Grutter into doubt or cabined its holding that the educational benefits of diversify may qualify as a compelling interest justifying limited consideration of race in university admissions.”