SMU Law Review


This Article traces the legal path to the Supreme Court’s decision in Students for Fair Admissions v. Harvard and the University of North Carolina (2023), from the famous Bakke case in 1978 to the Grutter decision twenty-five years later. It reviews the shifting fortunes of the “diversity” rationale for racial preferences in higher education and assesses the widening—rather than narrowing—gulf between the Court’s majority and the dissenting Justices on the issue of racial preferences.

After half a century of closely contested Supreme Court decisions, some of them seeming to point in opposing directions, others relying on fragmented pluralities among the Justices, the Court, by a 6–3 majority, has now set out a clear resolution. The Court struck down the Harvard and UNC admissions policies, which like those at many selective colleges and universities, applied different standards—often dramatically different standards—depending on the race or ethnicity of the applicant. Racial preferences by government or government-funded bodies are now under a strong presumption of illegality, notwithstanding claims that they are benign. Such preferences in higher education—and implicitly in other areas—will be very difficult or impossible to defend from here on in light of the Court’s decision.

However sharp the disagreement between the majority and dissenting Justices, perhaps all sides in the country at large have reason to be grateful for the clarity of the Supreme Court’s decision. It is to be hoped that the decision will lead to better policies in higher education and elsewhere, and to less division on the basis of race and identity in American life.

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