The Peculiar Silence in the Students for Fair Admissions Decision
16th August 2023
To hear almost anyone tell it, racial preferences in university admissions are dead. But this pervasive sense of finality belies a curious silence in the Supreme Court’s decision in Students for Fair Admissions. The Court never expressly overrules the line of precedent that has allowed universities to discriminate for the last 50 years. Without a direct overruling, how can we know whether the Supreme Court has ended racial preferences or simply renovated the existing case law?
A careful reading of the Chief Justice’s opinion and an understanding of his judicial philosophy indicates that the Court has left universities with no realistic means to rely on racial preferences in admissions, even if the case law stating otherwise lingers in a vegetative state. Four key cases have formed the foundation for racial preferences in student admissions, with a case called Grutter v. Bollinger as the cornerstone. The Students for Fair Admissions case presented the Court with a choice: either apply the existing test under Grutter and friends or uproot the whole line of precedent.