*Paige Boyer
I. Introduction
Their name is deceptive, but their mission is clear: to remove affirmative action from the higher education admissions process.[1] Students for Fair Admissions, Inc. (SFA) is in the midst of two legal battles attacking affirmative action in higher education admissions; Students for Fair Admissions, Inc. v. The University of North Carolina and Students for Fair Admissions, Inc. v. President & Fellows of Harvard.[2] The Supreme Court heard both cases on October 31, 2022.[3] These cases look to overturn the Supreme Court case Grutter v. Bollinger and instead enforce race-neutral admissions practices.[4] While any attack on civil rights and affirmative action is one for concern, the history and relentless efforts of a relatively new nonprofit group bring pause. Who is the SFA, and why are they attacking affirmative action now?
II. Students for Fair Admissions, Inc. and Edward Blum
The nonprofit group boasts a membership of over “20,000 students, parents, and others who believe that racial classifications and preferences in college admissions are unfair, unnecessary, and unconstitutional.”[5] Prior to creating and owning SFA, Edward Blum set out on his legal career to limit voting rights in Texas.[6] In the early 1990s, Blum lost a congressional election in Texas.[7] Blum sued Texas and alleged that his election loss was due to the manipulation of voter districts in a way that favored African American and Hispanic voters.[8] The case, Bush v. Vera, created the term “racial gerrymandering” and eroded the Voting Rights Act protections afforded to citizens.[9] Blum went on to win this suit and began to challenge additional civil rights policies in America.[10] In an attempt to attack affirmative action, Blum represented the plaintiff in the Supreme Court case Fisher v. University of Texas at Austin in 2016, and after losing the case, began SFA.[11]
Petitioner Abigail Fisher, a white woman, alleged she was rejected from the University of Texas Austin due to her race and claimed the university’s admissions practices were unconstitutional under the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution.[12] The Supreme Court held that the university’s admissions processes were not unconstitutional and met the standards established in Grutter v. Bollinger and Regents of University of California v. Bakke.[13] Grutter upheld Bakke and protected affirmative action in college admissions so long as a compelling interest and narrowly tailored process exist.[14] However, the case was not a total loss for Fisher and Blum. Justice Thomas, Justice Alito, and Chief Justice Roberts filed a joint dissent in which they called for a stricter level of specificity in outlining the university’s interest in race-based admissions and referred to the majority’s conclusion as “remarkably wrong.”[15] The dissent is strongly worded and leaves the door open for further attacks on affirmative action.[16]
III. Current SFA Supreme Court Cases
Originally filed jointly, the University of North Carolina and the President & Fellows of Harvard cases were argued in front of the Supreme Court this fall and once again asked the justices to weigh in on affirmative action in higher education admissions.[17] Since 2016, the Court has changed dramatically and currently has a conservative majority.[18] Furthermore, all three dissenting justices in Fisher have the opportunity they have been waiting for to overturn the previous decision in favor of the new majority’s beliefs.[19] This would not be the first precedent the current justices have overturned.[20] In his concurring opinion in Dobbs, Justice Thomas urged his colleagues to reconsider other due process precedent cases, including Griswold, Lawrence, and Obergefell.[21]
After Blum’s loss in Fisher, he claimed he would need to use Asian Americans to strike down affirmative action in higher education admissions.[22] Blum has done just that in his case against Harvard.[23] In his petition for certiorari, Blum claimed that African American and Hispanic students are selected over their Asian American and white peers simply because of their race.[24] Blum made this same claim in his petition for certiorari in the SFA case against the University of North Carolina (UNC).[25] In both cases, SFA calls on the Court to overturn Grutter v. Bollinger.[26] Further, the SFA asks the Court to determine whether Harvard violated Title IV of the Civil Rights Act and whether UNC can reject a race-neutral admissions alternative.[27] Overturning Grutter could open the door to limiting or reversing affirmative action policies across the nation.
IV. Conclusion
In a perfect storm, SFA and Blum presented these cases to a court with a conservative majority, including the original three Justices who dissented in Fisher, demanding strict scrutiny and specificity.[28] While the precedent established in Grutter and Bakke supports affirmative action in higher education admissions, the current majority has made it clear that they are willing to overturn even heavily relied on precedents.[29] The cases may seem only to impact higher education admissions, but Blum has shown from his attack on the Voting Rights Act in Bush and continued attacks on civil rights that it will not end with these cases.[30]
*Paige Boyer is a second-year evening student and Staff Editor for the University of Baltimore Law Review. Paige has been a member of the University of Baltimore community since 2019. She graduated with her Master of Public Administration in December 2021 and is currently working for the University’s Office of Human Resources. After graduating with her J.D., Paige is interested in pursuing a legal career in child advocacy and public interest law.
Photo Credit: Rizka (This file is licensed under the Creative Commons Attribution-Share Alike 3.0 Unported license.)
[1] Students for Fair Admissions, https://studentsforfairadmissions.org/about/ (last visited Aug. 28, 2022).
[2] Students for Fair Admissions, Inc. v. University of North Carolina, et al., No. 21-707 (S. Ct. filed Nov. 11, 2021); Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, No. 20-1199 (S. Ct. filed Feb. 25, 2021).
[3] See cases cited supra note 2.
[4] See cases cited supra note 2.
[5] Students for Fair Admissions, supra note 1.
[6] Id.
[7] Id.
[8] Id.; Bush v. Vera, 517 U.S. 952 (1996).
[9] Bush, 517 U.S. at 956.
[10] Id.; Sarah Hinger, Meet Edward Blum, the Man Who Wants to Kill Affirmative Action in Higher Education, ACLU: Speak Freely (Oct. 18, 2018), https://www.aclu.org/blog/racial-justice/affirmative-action/meet-edward-blum-man-who-wants-kill-affirmative-action-higher.
[11] Hinger, supra note 10.
[12] Fisher v. University of Texas at Austin, 579 U.S. 365 (2016).
[13] Id. A university may use race-based admission processes if a compelling interest and a narrowly tailored program can be shown. See Grutter v. Bollinger, 539 U.S. 306 (2003); see also Regents of University of California v. Bakke, 438 U.S. 265 (1978).
[14] See cases cited supra note 2.; see also Grutter v. Bollinger, 539 U.S. 306 (2003); Regents of University of California v. Bakke, 438 U.S. 265 (1978).
[15] Fisher, 579 U.S. at 437 (Alito, J., Roberts, J., & Thomas, J., dissenting).
[16] Id.
[17] See cases cited supra note 2.
[18] Supreme Court of the United States, Ballotopedia, https://ballotpedia.org/Supreme_Court_of_the_United_States (last visited Aug. 28, 2022); Michael A. Bailey, If Trump Appoints a Third Justice, the Supreme Court Would be the Most Conservative it’s Been Since 1950, Wash. Post (Sept. 22, 2020), https://www.washingtonpost.com/politics/2020/09/22/if-trump-appoints-third-justice-supreme-court-would-be-most-conservative-its-been-since-1950/.
[19] Id.
[20] Ann E. Marimow et al., How the Supreme Court Ruled in the Major Decisions of 2022, Wash. Post (June 30, 2022), https://www.washingtonpost.com/politics/interactive/2022/significant-supreme-court-decisions-2022/; see Dobbs v. Jackson Women’s Health Organization, 124 S. Ct. 2228 (2022).
[21] Dobbs, 124 S. Ct. at 2301.
[22] Hinger, supra note 10.
[23] See cases cited supra note 2.
[24] See cases cited supra note 2.
[25] See cases cited supra note 2.
[26] See cases cited supra note 2.
[27] See cases cited supra note 2.
[28] See cases cited supra note 2.
[29] See cases cited supra note 26 and accompanying text.
[30] See Hinger, supra note 10; see also Bush v. Vera, 517 U.S. 952 (1996).
University of Baltimore Law Review 
Interesting indeed. At the same time when society is objecting to various concepts of ‘white supremacy,’ it seems quite ironic that past traditional civil rights standards are now being challenged in higher education. I can understand Asian & White getting lumped together, though Harvard & Yale have successfully, traditionally encouraged foreign student admission from non-white nations. Would at least those limited admission policies remain?