Did the Court in SFFA Overrule Grutter?

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Bill Watson*

In Students for Fair Admissions, Inc. v. President and Fellows of Harvard College (SFFA), the Supreme Court held that affirmative action programs designed to comply with the precedent set in Grutter v. Bollinger were unlawful.  Yet the Court nowhere said that it was overruling Grutter and, in fact, relied on Grutter as authority.  Neither the Justices themselves nor subsequent commentators have been able to agree on what, if anything, remains of Grutter today.  Did SFFA overrule Grutter or not?  This Essay analyzes that question and its normative fallout.  The Essay concludes that SFFA at least partially overruled Grutter and that the Court’s failure to acknowledge as much should trouble us.  What exactly is left of Grutter will be a question for future parties to litigate and for lower courts to resolve as they struggle to apply SFFA’s opaque reasoning. 

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© 2023 Bill Watson.  Individuals and nonprofit institutions may reproduce and distribute copies of this Essay in any format, at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review Reflection, and includes this provision and copyright notice.

*      Climenko Fellow and Lecturer on Law, Harvard Law School.  I am grateful to Ben Eidelson, Deborah Hellman, and Susannah Barton Tobin for comments on earlier drafts.