Page 39 - FDCC Insights Spring 2022

in Students of Fair Admissions, Inc. v. President & Fellows of Harvard College.23
Decades later, the Court re-considered affirmative action policies at higher education institutions in “Gratz v. Bollinger (challenging the policy at the University’s College of Literature, Science, and the Arts) and Grutter v. Bollinger (challenging the University’s Law School policy).”24 Both of these cases were challenging policies of the University of Michigan.25 In Grutter, the Court held definitively that “‘student body diversity is a compelling state interest that can justify the use of race in university admissions.’”26 The law school policy was sufficiently tailored to survive strict scrutiny, while the affirmative action methods used at the undergraduate level were rejected for failing to be narrowly tailored.27
In two pending cases before the Court, the Justices will have to address how the concept of affirmative action is currently applied in admissions processes of institutions of higher education and whether or not those processes violate equal protection laws.
Ten years later, in Fisher v. University of Texas, the Court again considered affirmative action policies in higher education.28 In Fisher, the Court reviewed admissions at the University of Texas at Austin after an unsuccessful white applicant challenged the assisting policies, similar to Bakke.29 While the Court continued to support educational diversity as a compelling state interest, the Court “insisted that going forward, [institutions of higher education] using affirmative action must engage in regular evaluation of data and consideration of student experience [to ensure] that race plays no greater role than is necessary to meet its compelling interest.”30
III. The Impending Cases Before the Supreme Court
This year, the Court will consider two cases directly addressing the constitutionality of affirmative in higher education. The first case, Students for Fair Admissions, Inc. v. President & Fellows of Harvard College, arises from a lawsuit against Harvard alleging that its current admission process discriminates against Asian American applicants.31 The petitioners in the case were unsuccessful in the United States District Court for the District Court of Massachusetts and in the United States Court of Appeals for the First Circuit.32 The second case, Students for Fair Admissions, Inc. v. University of North Carolina, was unsuccessful in the United States District Court for the Middle District of North Carolina.33 Before the appeal was heard before
23 Deo, supra note 10.
24 Id.
25 Id.
26 Id.
27 Id.
28 Id.
29 Id.
30 Id.
31 Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 142 S. Ct. 895 (2022).
32 Id.
33 Id.
Insights SPRING2021
37