Students For Fair Admissions v. Harvard: The Future of Affirmative Action

Every year, millions of students across the country send in college applications, desperately hoping to be admitted to their first choice. These students consider their academic performance, extracurricular involvement, family situation, and a host of other factors to determine which college is indeed the best fit for them. However, one factor that applicants cannot control is their racial background and identity, which can play a part in the admissions process due to affirmative action policies found at colleges and universities in most states. 

The most common affirmative action policies for colleges are race-based, which examine applicants’ racial identity to increase attendance of certain minority groups like African-American and Hispanic students. However, Asian American applicants often experience no advantage or even a disadvantage due to affirmative action as they are perceived to be overrepresented on most college campuses. Nonminority applicants have also raised objections, complaining that such policies promote “reverse discrimination.” 

Because of these concerns, affirmative action policies have been hotly debated and challenged by lawsuits since the 1970s, but the Supreme Court has repeatedly upheld affirmative action, declaring in the 2003 case Grutter v. Bollinger that the “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” does not violate the Constitution. In other words, promoting racial diversity is a compelling state interest as long as such policies are not overt like filling quotas or adding a mechanical boost based on race. However, this precedent may be overruled sometime this year through the case of Students for Fair Admissions v. Harvard. 

In this case, Students for Fair Admissions (SFFA) have sued Harvard for impermissibly discriminating against Asian American applicants while aiming to create racially “balanced” student bodies. SFFA is a nonprofit organization composed of Asian American students who were rejected from Harvard who believe that its affirmative action policies led to their rejection, giving them standing to pursue their case over Harvard’s objections.

Since Harvard is the oldest private university in the United States, they believe their suit could overturn affirmative action nationwide as Harvard’s seniority makes it a “model” for other colleges to follow; if the model is flawed, then the whole system must be, their argument goes. Harvard claims that its admissions process is not discriminatory, but its personal rating system and preferences towards legacy students, who tend to be largely wealthy nonminority students, have sparked debate. Thus far, the trial court and appellate court both ruled in Harvard’s favor, but in January, the Supreme Court agreed to hear the case.

SFFA v. Harvard will likely revisit the 2003 case, Grutter v. Bollinger, which determined that the University of Michigan’s Law School’s consideration of race served the compelling state interest of promoting racial diversity for educational benefit. If the Supreme Court sides with SFFA, the holding from this case could be modified in significant ways. 

If Grutter is overturned, no university in the United States would legally be allowed to consider race as a factor in admissions, having to return to a system that may mirror the current system in California, where race-based affirmative action is illegal. However, this could enable universities to consider a host of other social factors, such as religious affiliation, sexual orientation, socioeconomic status, and so forth.

Current critics of affirmative action argue that race-based affirmative action may promote racial diversity, but that it is lacking in other forms of diversity which may provide equal or greater educational benefit. A common example suggested by these critics is increasing religious diversity as different faiths naturally have different perspectives on a number of issues, and being surrounded by various faiths could provide students as much educational benefit as being surrounded by peers of different races. Nevertheless, Harvard’s admissions processes redact religious affiliation from applications, preventing admissions readers from considering religion, a potentially significant part of a student’s identity. 

On the other hand, the Supreme Court could go as far as declaring that diversity of any form is not a compelling state interest, which would prevent colleges from considering any feature of a student’s identity outside of what appears in their essays. Race-based affirmative action, along with alternative forms, would be completely illegal, drastically affecting how college admissions are conducted. Many colleges have become test-optional after the pandemic as they are able to consider a multitude of personal factors, but without access to that data, they may be forced to return to a test-mandatory system. 

Regardless of your stance towards affirmative action, keep a close eye on SFFA v. Harvard because this case could easily affect how you and your college application will be considered by colleges across the nation.