On December 8, the Solicitor General filed a brief stating the views of the United States on the pending petition for certiorari in the case challenging the admissions program of Harvard University. The petition, filed by Students for Fair Admissions (SFFA), asks the Supreme Court not only to find Harvard’s admissions plan unlawful for its use of race but also asks the Court to overturn its precedent from Grutter v. Bollinger and Fisher v. Univ. of Texas, which holds that race is a compelling interest in higher education admissions. The United States urges the Court to deny certiorari on the basis that there is no dispute in the lower courts on the law applicable to race-conscious college admissions plans; there is no reason to overturn existing precedent in this area; and that even if the Court were inclined to overturn existing precedent, this case would be a poor vehicle for the Court’s review.

The Court will consider the case at its private conference on January 7, meaning that by that date, we may know whether the Court will agree to hear the case this term, opening the door to overturning current precedent and thereby prohibiting colleges from any use of race in their student admissions plans.


In 2014, SFFA brought suit against Harvard, arguing that Harvard’s admissions plan violates Title VI of the Civil Rights Act by discriminating based on race. SFFA argued that Harvard intentionally discriminated against Asian-American students and that Harvard’s consideration of race in its admissions program did not meet the standards established by the Supreme Court in Grutter and Fisher.

SFFA lost its suit, first after a trial and again on appeal. See our previous examination of the case here in the content, Harvard’s Affirmative Action Plan Upheld by First Circuit: Victory Now But What Will Come Next?  On petitioning to the Supreme Court for review, SFFA argues primarily that the Court should overrule its precedent that allows colleges to consider race in their admissions programs. In June, the Court asked the Solicitor General for the views of the United States, a common step taken by the Court when a petition for certiorari raises questions of federal law and the United States is not a party to the case.

The Brief of the United States

The United States argues that the Court should not grant certiorari. First, the United States argues that the courts below properly applied existing Supreme Court precedent. The courts below found that Harvard had demonstrated it was using race to further its interest in the educational benefits of diversity. Harvard had also shown that its use of race was narrowly tailored to achieve that interest. The United States argues that SFFA does not deserve a third chance to reargue the facts of its case that it has already lost twice.

Second, the United States argues that the Court should not grant review of the case to overturn the Court’s precedent allowing colleges to consider race in admissions. The United States notes that applying the Court’s test for whether precedent should be overruled leads to a conclusion that this precedent should remain because:

  • It is not an outlier in its legal analysis. Grutter relied on the Court’s earlier opinion in Bakke, and no subsequent opinion of the Court has called Grutter into question.
  • It is not unworkable in practice. Lower courts have been able to apply strict scrutiny as Grutter requires without a problem.
  • Grutter has engendered great reliance interests by colleges and universities. The United States identifies this as perhaps the most important factor in a stare decisis.

Third, the United States argues that even if the Court is interested in reviewing Grutter, the Harvard case is not a good vehicle for such a review. The United States notes that SFFA relies on associational standing and it is unclear whether any of its members still has individual standing to bring a case against Harvard, meaning that standing could be an issue before the Supreme Court. The United States also notes that the Court may want to review its precedent in the context of a public institution to which the Equal Protection Clause applies, rather than in the context of a private institution which is bound to the same standards, but through the statutory tool of Title VI.

What Will Happen Next

The Supreme Court will likely consider SFFA’s petition at its conference on January 7. Under traditional principles of review, like those stated in Supreme Court Rule 10, certiorari should be denied because the decision below does not conflict with other federal court decisions and does not raise an important question of federal law that the Court has not already addressed. But those traditional principles will likely have little to do with whether the Court grants review of this case.

At least five members of the Court almost certainly believe that the current precedent in this area is incorrect. It only takes four votes to grant certiorari. Whether the Court grants review in this case may depend on whether the Court is interested in having a second case on its docket this year that potentially overrules a high-profile precedent (as it already is reviewing the high-profile case on the Mississippi abortion law). SFFA has several cases pending in other courts that will eventually make their way to the Supreme Court—most notably a case against the University of North Carolina that SFFA lost in the district court in October 2021, on which the Fourth Circuit will likely rule in late 2022 or early 2023.

At the January 7 conference, the Court may grant the petition, deny the petition or “relist” it, meaning that it will be considered again at the Court’s next conference, scheduled for January 14. We can expect to know no later than January 10 which of these three options the Court has decided. If the Court grants certiorari in January, the case will almost certainly be heard no later than April 2022, with a decision issued by July.

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