Document Type

Supreme Court Commentaries

Publication Date



Affirmative Action, Strict Scrutiny, Race and the Law

Subject Category

Constitutional Law | Law


For a decade, Justice Clarence Thomas has sharply criticized the Court's treatment of affirmative action, the race-conscious university admissions processed used to pursue the educational benefits associated with diverse classrooms. Calling affirmative action a "faddish theory" that the "Constitution abhors," Justice Thomas signaled his readiness to overrule Grutter v. Bollinger, which endorsed the practice in 2003.

Justice Thomas and the Court's originalist Justices have a new opportunity to strike down affirmative action in the Students for Fair Admissions litigation. Students for Fair Admissions, a non-profit organization founded by Edward Blum, is suing Harvard College and the University of North Carolina, Chapel Hill. It alleges that the universities' affirmative action programs are unconstitutional—chiefly, because they are repugnant to the Fourteenth Amendment and Title VI of the Civil Rights Act.

SFFA claims to represent rejected applicants from the universities, though the litigation has a peculiar focus on the universities' behavior generally, not their treatment of the aggrieved applicants. This Commentary examines the factual records of both suits, highlighting the key differences between Harvard and the University of North Carolina and the parties' positions in briefing and oral argument.

In anticipation of Justice Thomas' overrule of Grutter, this Commentary chiefly explores the consequences of declaring affirmative action unconstitutional by explores topics such as standing, the Court's constitutional role, Grutter's bizarre sunset provision, and the efficacy of race-neutral alternatives as a proxy for attaining racial diversity in the classroom.