US asks Supreme Court to deny review of Harvard case | Bass, Berry & Sims PLC

On December 8, the Solicitor General filed a brief outlining the United States’ position on the pending motion for certiorari in the case challenging Harvard University’s admissions program. The petition, filed by Students for Fair Admissions (SFFA), asks the Supreme Court not only to declare Harvard’s admission plan illegal for its use of breed, but also asks the court to overturn its precedent of Grutter vs. Bollinger and Fisher v. Univ. from texas, who argues that this breed is of compelling interest for higher education admissions. The United States urges the Court to deny certiorari on the grounds that there is no dispute in the lower courts over the law applicable to racial-conscious college admission plans; there is no reason to overturn the existing precedent in this area; and that even if the Court was inclined to overturn an existing precedent, this case would be a poor vehicle for the Court’s consideration.

The Court will consider the case at its private conference on January 7, which means that on that date we will be able to know whether the Court will agree to hear the case this quarter, opening the door to the reversal of the current precedent and prohibiting thus colleges to use race in their student admission plans.


In 2014, the SFFA filed a lawsuit against Harvard, arguing that Harvard’s admissions plan violated Title VI of the Civil Rights Act by discriminating on the basis of race. The SFFA argued that Harvard intentionally discriminated against Asian American students and that Harvard’s consideration of race in its admissions program did not meet the standards set by the court. supreme in Rutter and Sinner.

The SFFA lost its case, first after a trial and then again on appeal. See our previous review of the case here in Content, Harvard’s Positive Action Plan Backed By The First Circuit: Win Now But What Comes Next? In an application for review to the Supreme Court, the SFFA mainly argues that the court should set aside its precedent that allows colleges to consider race in their admissions programs. In June, the Court asked the Solicitor General for the opinion of the United States, a common step taken by the Court when a petition for certiorari raises questions of federal law and the United States is not a party to the case.

The Brief of the United States

The United States argues that the Court should not grant certiorari. First, the United States argues that the courts below correctly applied the existing Supreme Court precedent. The lower courts found that Harvard had demonstrated that it used race to promote its interest in the educational benefits of diversity. Harvard had also shown that its use of breed was narrowly tailored to achieve this interest. The United States argues that the SFFA does not deserve a third chance to reaffirm the facts of its case that it has already lost twice.

Second, the United States argues that the Court should not grant a review of the case to set aside the Court’s precedent allowing colleges to consider race in admissions. The United States notes that applying the Court’s test to determine whether a precedent should be set aside leads to the conclusion that that precedent should be maintained because:

  • This is not an outlier in his legal analysis. Rutter relied on the Court’s earlier opinion in Bakke, and no subsequent court opinion called Grutter into question.
  • This is not impractical. Lower courts were able to apply strict control Rutter requires no problem.
  • Rutter has created a great dependence on colleges and universities. The United States considers this to be perhaps the most important factor in a watch decisis.

Third, the United States argues that even if the Court wishes to consider Rutter, the Harvard case is not a good vehicle for such an examination. The United States notes that the SFFA relies on association quality, and it is not clear whether any of its members still have standing to bring an action against Harvard, which means that this quality could be a question in the Supreme Court. The United States also notes that the Court may wish to review its precedent in the context of a public institution to which the equal protection clause applies, rather than in the context of a private institution that is bound by the same standards, but through the tool law of Title VI.

What will happen next

The Supreme Court will likely consider the SFFA’s petition at its conference on January 7. According to traditional review principles, such as those set out in Supreme Court Rule 10, certiorari should be refused because the decision below does not conflict with other Federal Court decisions and does not raise an important question of federal law that the Court has not yet addressed. But these traditional principles will likely have little to do with whether the Court allows review of this case.

At least five members of the court almost certainly believe that the current precedent in this area is incorrect. It only takes four voices to tune certiorari. Whether the court grants a review in this case may depend on its interest in having a second case on its record this year that potentially sets aside a high-profile precedent (as it is already reviewing the high-profile Mississippi abortion law case. ). The SFFA has several pending cases in other courts that will eventually go to the Supreme Court, including a case against the University of North Carolina which the SFFA lost in district court in October 2021, on which the Fourth Circuit is likely to be decided in late 2022 or early 2023.

At the January 7 conference, the Court may grant the motion, dismiss it or “re-register” it, which means that it will be reconsidered at the next Court conference, scheduled for January 14. We can expect to find out by January 10 at the latest. which of these three options the Court decided. If the court grants certiorari in January, the case will almost certainly be heard no later than April 2022, with a ruling delivered in July.

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