August 2022 Overturning Roe v. Wade is Only the Beginning: Affirmative Action is Next ~ By: Francis Lu, MD

This October, the Supreme Court will hold oral argument in two cases that have been consolidated, which will greatly impact diversity, inclusion, and equity in institutions of higher education: 1) Students for Fair Admissions, Inc. v. President & Fellows of Harvard College and 2)Students for Fair Admissions, Inc. v. University of North Carolina. While the Harvard case involves a private institution whereas the University of North Carolina involves a public institution among other issues, the central issue for both cases is whether the Supreme Court should overrule Grutter v. Bollinger and hold that institutions of higher education cannot use race as a factor in admission. Grutter v. Bollinger was the 2003 Supreme Court case that found that a race-sensitive admissions program at the University of Michigan Law School was constitutional, since it was narrowly tailored because the consideration of race was merely one factor in the decision-making process and individualized consideration was given to each applicant. Narrow tailoring requires it is “necessary” for the university to use race to achieve the educational benefits of diversity. It is at all times the University’s obligation to demonstrate that admissions processes “ensure that each applicant is evaluated as an individual and not in a way that makes an applicant’s race or ethnicity the defining feature of his or her application.”  

This case was decided in support of the precedent of the landmark 1978 Supreme Court case of Regents of University of California v. Bakke that found a university’s admissions criteria which used race as a definite and exclusive basis for an admission decision violated the U.S. Constitution. The UC Davis medical school argued that their racial quota system served a compelling government interest by remedying the traditional underrepresentation of minorities in the medical profession and that the diversity in the classroom enhances the free exchange of ideas. The Court rejected UC’s arguments though, finding that there are other ways to achieve representation of traditionally underrepresented groups and classroom diversity without an explicit racial quota system. That is, the Court left the door open for race as a consideration among many factors in admissions. But the Court ruled that a quota system which excludes candidates because of their race alone is racial discrimination and therefore unconstitutional.

History and Future of Students for Fair Admissions, Inc. v. President & Fellows of Harvard College

​​​​​​​​​​​​​​​​​​​​​​​​Supported by 130 pages of factual findings and legal conclusions, Judge Allison Burroughs in the U.S. District Court in Massachusetts ruled for Harvard​ on Sept. 30, 2019. Students for Fair Admissions, Inc. appealed the case to the U.S. Court of Appeals claiming that the Harvard admissions process discriminated against Asian Americans. The U.S. Court of Appeals for the First Circuit in Boston ruled on Nov. 12, 2020, that Harvard does not discriminate against Asian-American applicants, reaffirming the importance of race-conscious admissions in helping construct diverse campuses; it upheld the decision by the U.S. District Court. Students for Fair Admissions, Inc. filed a petition to appeal the case to the Supreme Court. Harvard argued in its brief to the Supreme Court that it should not accept the case on appeal for review for these reasons: 

“There is no circuit split to resolve [two Court of Appeals do not disagree], and this Court rarely grants certiorari to review the application of settled law [the two precedents of University of California v. Bakke and Grutter v. Bollinger among other cases] to a particular set of facts. Where, as here, two lower courts [District Court and Court of Appeals in Massachusetts] have made “concurrent findings,” this Court will not overturn them absent ‘a very obvious and exceptional showing of error,’ Exxon Co. v. Sofec, Inc.

To provide context, the Supreme Court accepts only 100-150 of the more than 7,000 cases that it is asked to review each year. The Court holds oral argument in about 70-80 cases each year. Each case that is accepted for review must have the support of at least 4 Supreme Court justices who wish to have the case reviewed.

On January 24, 2022, the Supreme Court accepted the petition for appeal rather than deny it, which implies that at least 4 justices are willing to consider overturning the two precedents of University of California v. Bakke and Grutter v. Bollinger just like the Supreme Court just overturned both the 1973 Roe v. Wade and the 1992 Planned Parenthood v. Casey ruling that “Roe was egregiously wrong from the start.”

Events since then are detailed at On May 2, Students for Fair Admissions, Inc. filed its brief to the Supreme Court; by the May 9 deadline, 34 amicus briefs in support were filed including one led by the Congressional Republican minority leadership of both the House and Senate. On the July 25 deadline, both Harvard and UNC must file their briefs with an August 1 deadline for amicus briefs in support. I believe that the Association of American Medical Colleges is working on a brief that other organizations may be able to sign onto. Please contact me for further information at ; time is of the essence. The Supreme Court decision will likely be announced in June 2023. Since Justice Jackson has recused herself in the Harvard case (she is on the Harvard Board of Overseers), I fear the Supreme Court will rule that institutions of higher education will no longer be able to take into consideration race in admissions as one factor among others.