Students for Fair Admissions Ended an Experiment That Began With Bakke in 1978

Every government program that treats citizens differently by race is supposed to come with an expiration date. That was the promise. In 2003 the Supreme Court wrote the date into an opinion: twenty-five years. Twenty years later the Court found that nobody could name a single thing that would tell us when the clock had run out, and that is when it stepped in.

Students for Fair Admissions v. President and Fellows of Harvard College, decided on June 29, 2023, ended race-conscious admissions at American colleges and universities. It did so after forty-five years of a practice that the Court had tolerated but never squarely endorsed. To understand the decision, you have to understand the experiment it ended, and the experiment starts in 1978.

Define the terms

Strict scrutiny. The standard the Court applies when government classifies people by race. The government must show that its use of race serves a compelling interest and that its means are narrowly tailored to that interest. It is the most demanding test in constitutional law.

Equal Protection Clause. The Fourteenth Amendment, Section 1: no State shall "deny to any person within its jurisdiction the equal protection of the laws."

Title VI. Section 601 of the Civil Rights Act of 1964: "No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." Harvard, a private university, is bound by Title VI because it takes federal money. The University of North Carolina, a public one, is bound by both Title VI and the Equal Protection Clause.

Race-conscious admissions. A policy that allows an applicant's race to count as a factor in the decision to admit.

1978: Bakke and a lone opinion

The experiment began with Regents of the University of California v. Bakke. Allan Bakke, a white applicant, was rejected twice by the medical school at the University of California, Davis, which had reserved sixteen of its one hundred seats for minority students. The Court split in a way that is hard to summarize. Four justices (Burger, Stewart, Rehnquist and Stevens) would have decided the case under Title VI and held the program unlawful. Four others (Brennan, White, Marshall and Blackmun) would have upheld the program as a remedy for societal discrimination. That left Justice Lewis Powell, who wrote only for himself.

Powell's opinion did two things. It held that the fixed quota of sixteen seats was unconstitutional. And it held that a university's interest in the educational benefits of a diverse student body was a compelling interest that could justify considering race as one factor among many. He pointed to the Harvard admissions plan as an example, one in which race was a "plus" in a holistic review of the individual applicant.

Here is the oddity. No other justice joined that part of Powell's opinion. The idea that universities may use race to achieve diversity rested on the opinion of one person, who spoke for himself. Over the next forty-five years, universities built admissions systems on the assumption that his view had become law. It was a bold bet on a single vote.

2003: Grutter and Gratz, and a twenty-five year line

In 2003 the Court revisited the question in two cases about the University of Michigan.

In Grutter v. Bollinger, the Court, 5 to 4, in an opinion by Justice O'Connor, upheld the law school's admissions policy. It adopted Powell's diversity rationale as law and held that the school's holistic review of each applicant, with race as one factor, was narrowly tailored. The opinion deferred to the school's educational judgment. It also included a sentence that has become famous: the Court expected that twenty-five years from then, the use of racial preferences would no longer be necessary to further the interest approved in the case.

In Gratz v. Bollinger, decided the same day, the Court, 6 to 3, struck down the undergraduate policy, which automatically gave twenty points, one-fifth of the points needed to guarantee admission, to any applicant from an underrepresented minority group. That was too mechanical, the Court held, to be narrow tailoring.

So the rule was this: race may count, but not as a number, and not forever. The first part of the rule gave rise to a thousand admissions offices. The second part, the twenty-five years, drew little attention until it was nearly due.

2013 and 2016: Fisher

In Fisher v. University of Texas at Austin (2013), the Court, 7 to 1 in an opinion by Justice Kennedy, held that the lower courts had given the university too much deference. Strict scrutiny required the court itself to verify that the use of race was necessary. The case was sent back.

In Fisher II (2016), a short-handed Court, 4 to 3 (Justice Scalia had died, and Justice Kagan was recused), upheld the Texas program. Kennedy wrote the opinion. It was the last time the Court approved a race-conscious program, and the decision was narrow. The Texas program was unusual because most of its students were admitted through the Top Ten Percent Plan, which was race-neutral, and race was a factor only for the remaining places.

The cases

Students for Fair Admissions, founded by Edward Blum, sued Harvard and the University of North Carolina. The claims were these. Against Harvard, a private school, the claim was under Title VI. Against UNC, a public school, the claims were under Title VI and the Equal Protection Clause. The charge was that both schools used race in ways that violated the law. SFFA argued, in particular, that Harvard's process disadvantaged Asian American applicants, who it said received lower "personal ratings" on average, and that the use of race at both schools operated as a preference for some and a penalty for others.

The Court heard the cases together in October 2022. Justice Jackson was recused from the Harvard case because she had served on Harvard's Board of Overseers, but she took part in the UNC case. The result was 6 to 2 for SFFA against Harvard, and 6 to 3 against UNC.

The majority opinion

Chief Justice Roberts wrote the opinion. It had four main moves, and I will set them out in order, because this is the structure of the holding.

1. Strict scrutiny applies, and the Court's own precedent applies it. The Court said that Grutter and its predecessors had approved race-conscious admissions only as an exception, and that exception had to meet strict scrutiny. A "compelling interest" must be defined in a way that a court can measure.
2. The universities' interests are not measurable. Harvard and UNC identified goals such as training future leaders, promoting the robust exchange of ideas, preparing engaged citizens, and enhancing cross-racial understanding. The Court said those aims are commendable, and also that they are not sufficiently coherent for a court to say when they have been achieved. How does a court know when a student body has enough "exchange of ideas"? How does it know whether the right amount of race-consciousness has been used? The goals are too vague to be tested.
3. The programs have no logical end point, and they use race as a negative and as a stereotype. Because admissions are a zero-sum exercise, a benefit given to one applicant on the basis of race is a loss to another. The Court said that the programs rely on stereotypes by assuming that students of a particular race think alike or hold particular views, and that the programs have no end date. The twenty-five years of Grutter could not be enforced.
4. The result. The admissions programs at Harvard and UNC violated the Equal Protection Clause and Title VI.

Roberts's most quoted sentence is that eliminating racial discrimination means eliminating all of it. He wrote that a benefit to a student who overcame racial discrimination, in the form of the applicant's own experience, is not forbidden. A university may consider an applicant's discussion of how race has affected his or her life, so long as the discussion is concretely tied to a quality of character or a unique ability that the applicant can contribute to the university. But the university may not use that as a back door: what cannot be done directly cannot be done indirectly. The question is the applicant as an individual, and not the color of the applicant's skin.

Thomas and the colorblind Constitution

Justice Thomas wrote a long concurrence, and it is the best statement of the principle behind the decision. He argued that the Equal Protection Clause is colorblind, and he drew the line back to Justice Harlan's dissent in Plessy v. Ferguson (1896), which said the Constitution "neither knows nor tolerates classes among citizens." He argued that the Fourteenth Amendment's authors meant to ban racial classification by government, and that the history of the Freedmen's Bureau and other measures after the Civil War was about helping people in need and not about racial preference.

He also pointed to the human costs: students admitted on the basis of race and then mismatched with the school's academic environment, and stigma attached to every member of a favored group. Thomas wrote that racial classifications, however benign the intent, treat people as members of a class.

Justice Gorsuch, in a concurrence, argued that the text of Title VI is clear on its face and requires the same result without reference to the Constitution. Justice Kavanaugh, in a concurrence, argued that the temporary nature of race-based remedies is the principle that held Grutter together, and that the time had run out.

The dissents, stated fairly

Justice Sotomayor, joined by Justice Kagan in both cases and Justice Jackson in the UNC case, wrote a dissent that said the Court's decision ignored the realities of American life. She argued that race still matters in the lives of applicants and that colorblindness in an unequal society entrenches inequality. She said the Court was rewriting the Equal Protection Clause, which was adopted to protect Black Americans, to forbid measures meant to help them. Justice Jackson, in her own dissent in the UNC case, wrote that the gulf between the formal equality the Court demanded and the reality of racial disparities was too large to be ignored.

This is a real argument and it is made by serious people who care about the opportunity of students of every background. The best version of it holds that a nation with a long history of legal discrimination cannot erase its effects by pretending to ignore race, and that universities should be allowed to consider the whole person, including the part of identity that shaped his or her experience.

The answer has four points.

1. The Constitution protects individuals. The Equal Protection Clause says "any person." It does not say any group. The Court has held since Adarand Constructors v. Pena in 1995 that the standard is the same whether the classification is meant to help or to hurt.
2. A system with winners by race has losers by race. A university with a fixed class cannot add a point for one applicant without taking it from another. The loser is a specific person who has done nothing wrong.
3. The Fourteenth Amendment's origin does not point the other way. The dissent is right that the Amendment was adopted to protect freed slaves. But it protected them by guaranteeing equal law, and the legal tradition from Harlan's dissent in Plessy to the lawyers who argued Brown v. Board of Education in 1954 relied on the rule that the government may not sort its citizens by race. The principle that won Brown is the principle of SFFA.
4. The promise was always temporary. The Court itself said in 2003 that the practice would end. The majority held the universities to the Court's own words.

What schools may still do

The decision did not end efforts to expand opportunity. It ended the use of race as a factor in the decision on an applicant, and it left open a great deal.

• Schools may consider an applicant's own account of how race affected his or her life, in the manner the opinion described, tied to character or ability.
• They may recruit widely, and reach out to underserved high schools and communities.
• They may consider socioeconomic disadvantage, such as family income or the first generation to attend college, as a factor in itself.
• They may drop legacy preferences and early-decision advantages that favor the already-advantaged. Whether to do so is a choice for each school, and a good conservative argument for it exists, on the ground that favoring the children of alumni is its own kind of inherited privilege.
• Military academies were treated in a footnote: the Court said it did not address them, because the question of whether they have distinct interests was not before it.

There are also open questions. Critics say some schools have looked for proxies. The law forbids a university from doing indirectly what it cannot do directly, and a school that tries to bring race back through a proxy risks litigation. How courts will treat essays, recruitment and other devices will be worked out in the lower courts, and readers who want the current state should check the decisions of the federal appeals courts.

Where the argument leaves us

The debate between the two sides is a debate about what America owes people who are not the beneficiaries of the nation's history, and the question of whether the answer is a rule that sorts by race or a rule that refuses to. The majority chose the second. Conservatives who favor the decision should be as careful about what they say as the decision was about what it held. It did not hold that diversity is a bad thing, or that disparities do not exist, or that schools have no obligation to reach students of every background. It held that the means must respect the equal standing of every applicant.

For more on the Court's reasoning about overturning precedent, see Stare Decisis Explained, and the Factors Justices Weigh Before Overruling. For the dissent that first stated the colorblind principle, see Justice Harlan's Lone Dissent in Plessy and the Colorblind Constitution. A look at how the press treated this and other decisions is in How the Press Covers Supreme Court Decisions, and What the Stories Leave Out. For what the Court has revisited and why, there is From Plessy to Chevron, a Timeline of Precedents the Court Was Right to Overrule, and for the wider record of the Roberts Court, Seven Myths About the Roberts Court, Tested Against Its Own Opinions. To check the claims on this page against the full text of the Constitution, see the Constitution page.

The case in brief

1. Bakke (1978) rested the diversity rationale on one justice's opinion, and the experiment grew from that single vote.
2. Grutter (2003) approved race as one factor and said the practice should no longer be necessary in twenty-five years, and Gratz struck down a points system.
3. SFFA v. Harvard (2023) held that the programs failed strict scrutiny because their goals could not be measured, they used race as a negative and a stereotype, and they had no end point.
4. Thomas grounded the result in a colorblind Constitution and Harlan's Plessy dissent, and the dissents answered that colorblindness ignores real disparities.
5. Schools may still consider an applicant's own experience, recruit widely and weigh disadvantage, so long as they do not use race as a factor in itself.

What you can do: read Section 1 of the Fourteenth Amendment and Section 601 of Title VI, then ask a school you care about, in writing, how its admissions office follows the decision.