For Whom the Advantage Tolls: Institutional Racism and the Prospective Legacies ofSFFA v. Harvard

Abstract

Few U.S. Supreme Court decisions in living memory have combined a widespread expectation in verdict with a broad aggrievement of impact as dynamically as SFFA v. Harvard. Anyone remotely concerned with the fortunes of higher education in North America would have had good reason to believe, on or before June 29, 2023, that the “special consideration” of race in university admissions had reached its best-buy date. The key predictive decisions twenty years earlier—Grutter v. Bollinger and Gratz v. Bollinger—tolled the clock. In the Bollinger cases, several justices opined that, a quarter century out, affirmative action policies might no longer be necessary in university admissions to even the score for the racially disadvantaged. The majority in SFFA changed might to must with five years to spare.