Bill Watson (Harvard Law School) has posted Did the Court in SFFA Overrule Grutter? (99 Notre Dame L. Rev. Reflection (Forthcoming)) on SSRN. Here is the abstract:
The Supreme Court’s decision in Grutter v. Bollinger stated the law on affirmative action in higher education for twenty years. Then, in Students for Fair Admissions (SFFA) v. President and Fellows of Harvard College, the Court held that affirmative-action programs designed to comply with Grutter were unlawful. The Court, however, nowhere said that it was overruling Grutter and, in fact, seemed to rely on Grutter as authority. Some of the justices thought that the Court left Grutter fully intact, while others said that the Court overruled Grutter or overruled it “for all intents and purposes.”
Did SFFA overrule Grutter or not? This Essay analyzes that question and its normative fallout. Although asking whether SFFA overruled Grutter might at first seem overly formalistic, the answer is practically significant. It matters not just to how parties litigate and lower courts resolve the challenges to universities’ admissions programs that will inevitably follow but also to how we normatively assess what the Court did in SFFA. The Essay concludes that SFFA at least partially overruled Grutter and that the Court’s failure to acknowledge as much should trouble us.
Highly recommended.