SMU Law Review


In 2023, the Supreme Court modified its 2003 decision in Grutter v. Bollinger. That decision had allowed colleges, graduate schools, and professional schools to explicitly consider race in the admissions process. In two cases decided together, Students for Fair Admissions v. Harvard University and University of North Carolina, a 6–3 majority of the Court held that colleges could not employ a general racial preference but could take account of how race affected the specific applicant. The decision was based on the Court’s understanding of the Equal Protection Clause of the Fourteenth Amendment and Title VI of the Civil Rights Act of 1964. Chief Justice Roberts wrote the opinion for the Court in which he held that the justifications put forth by the colleges were too vague to be evaluated by the judiciary, that racial preferences inflicted real harm, and that Grutter itself had recognized that the employment of racial preferences in college admissions were a temporary measure. In the process, Chief Justice Roberts reaffirmed that the color-blind principle was the proper focus of the Equal Protection Clause with respect to race, rejecting the competing anti-subordination theory, made it clear that universities were forbidden from providing a remedy for societal discrimination, and reaffirmed that establishing racial proportionality was an illegitimate goal. In this respect, Chief Justice Roberts brought the law in line with Bakke, J.A. Croson, and Adarand. The majority rejected Justice O’Connor’s conclusion in Grutter that university admissions were in a different context entailing less severe analysis under Equal Protection. Justice Thomas, the only justice who participated in both Grutter and the Fair Admissions cases, wrote a very lengthy concurrence expanding on the Chief Justice’s opinion and making a few points of his own.

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