Affirmative Action Cases: Admissions, Employment, and Contracting

The major affirmative action cases decided by the U.S. Supreme Court trace a 45-year arc that began by permitting race as one factor in university admissions and ended, in 2023, by effectively forbidding it. Along the way, the Court applied the same skeptical review to employment programs, government contracting set-asides, and state ballot measures banning racial preferences. The current framework treats every government use of race as constitutionally suspect, and the reasoning is now reshaping federal contracting rules, private grant programs, and workplace diversity initiatives.

Regents of the University of California v. Bakke (1978)

Allan Bakke, a white applicant twice rejected from the UC Davis medical school, challenged a policy that reserved 16 of 100 seats in each entering class for minority students. He argued the quota violated the Constitution and Title VI of the Civil Rights Act of 1964.¹

The Court agreed the rigid quota was unconstitutional but did not close the door on race entirely. Justice Powell’s controlling opinion held that universities could consider race as a “plus factor” in a holistic review, so long as every applicant competed against every other applicant rather than within racially segregated pools. That distinction between a quota and a flexible consideration of race defined the law for the next four and a half decades.

Grutter and Gratz v. Bollinger (2003)

Two University of Michigan cases decided the same day drew the sharpest line yet between permissible and impermissible ways to pursue campus diversity.

Grutter v. Bollinger

Michigan Law School used a holistic admissions process in which race was one factor among many, including work experience, personal statements, and letters of recommendation. The Court upheld it, ruling that the educational benefits of a diverse student body qualified as a compelling government interest under the Equal Protection Clause.² Because admissions officers evaluated each applicant individually rather than assigning automatic advantages by race, the program satisfied the narrow-tailoring requirement of strict scrutiny.

Justice O’Connor’s majority opinion added a prediction that would echo for years: “The Court expects that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”²

Gratz v. Bollinger

Michigan’s undergraduate program fared differently. It used a 150-point scale and automatically awarded 20 points to every applicant from an underrepresented minority group, out of the 100 points needed to guarantee admission.³ The Court struck it down. The mechanical point system did not provide the individualized review that Bakke and Grutter required. Diversity could be a goal, but the method had to involve genuine person-by-person evaluation, not a formula that functioned as a quota.

Fisher v. University of Texas (2013 and 2016)

The University of Texas at Austin filled most of its class through a state law guaranteeing admission to top graduates of every Texas high school, then used a holistic process considering race among other factors for the remaining seats. Abigail Fisher, a white applicant denied admission, challenged the holistic component twice.

In Fisher I (2013), the Court did not rule on the program’s constitutionality. It found that the lower court had been too deferential in essentially taking the university’s word that race-conscious measures were necessary. Universities receive some deference in defining their educational goals, the Court clarified, but no deference on whether their chosen means are narrowly tailored. A reviewing court must independently verify that “no workable race-neutral alternatives would produce the educational benefits of diversity.”⁴

When the case returned in Fisher II (2016), a 4-3 majority upheld the program. The university had presented statistical and anecdotal evidence that race-neutral alternatives alone had not achieved meaningful classroom diversity. Race played a role in only a small share of decisions, which the Court called “a hallmark of narrow tailoring, not evidence of unconstitutionality.”⁵ Fisher II was the last time the Supreme Court upheld a race-conscious university admissions program.

Students for Fair Admissions v. Harvard (2023)

On June 29, 2023, the Court held 6-2 that the admissions programs at Harvard College and the University of North Carolina violated the Equal Protection Clause of the Fourteenth Amendment.⁶ The ruling effectively ended race-conscious admissions at public and private universities that receive federal funding.

Why the Programs Failed

The Court’s central problem was that the universities’ diversity goals were too vague to measure. Chief Justice Roberts wrote that the Court could not determine how to tell whether leaders had been adequately trained, whether the exchange of ideas was “robust,” or when these objectives would be satisfied enough to end racial preferences.⁶ Without measurable benchmarks, courts had no way to perform the searching review that strict scrutiny demands.

The absence of a logical endpoint compounded the problem. Grutter had expected race-conscious admissions to sunset within 25 years, yet the universities involved could not point to any criteria that would trigger the end of their programs. Allowing racial classifications to continue indefinitely, the Court concluded, was fundamentally at odds with the Fourteenth Amendment.

What Remains Permissible

The ruling did not prohibit all discussion of race in admissions. Applicants can still write about how their racial identity has shaped their experiences, so long as admissions officers evaluate those essays based on the applicant’s character, resilience, or specific contributions rather than treating race itself as a favorable trait. The Department of Education issued guidance in early 2025 emphasizing that schools may not use essays or extracurricular activities as a proxy for identifying and favoring applicants of a particular race.⁷ A federal court enjoined that guidance in April 2025, so its enforceability remains unsettled.

The Court also left open whether military academies might be treated differently, noting in a footnote that “potentially distinct interests” at those institutions were not before it.⁶

Employment: United Steelworkers v. Weber (1979)

The first major employment case reached the Court in 1979, when a white employee challenged a voluntary training program at Kaiser Aluminum that reserved half its spots for Black workers. Fewer than 2 percent of skilled craft workers at the plant were Black, in a local labor force that was roughly 39 percent Black.⁸

The Court upheld the program, ruling that Title VII of the Civil Rights Act of 1964 does not prohibit voluntary, private-sector affirmative action plans aimed at breaking down longstanding patterns of racial segregation in specific job categories. Three features mattered: the plan was temporary, it did not require firing white workers, and it targeted a conspicuous imbalance rather than permanent racial balancing.⁸ Weber remains the leading precedent for voluntary employer affirmative action plans, though its practical reach has narrowed in the post-SFFA environment.

Government Contracting: Croson and Adarand

City of Richmond v. J.A. Croson Co. (1989)

Richmond, Virginia adopted a plan requiring prime contractors on city projects to subcontract at least 30 percent of the dollar value to minority-owned businesses. The Court struck it down. Richmond had not shown specific, documented evidence of discrimination in its own contracting practices.⁹ Broad claims about societal discrimination or historical patterns in an entire industry were not enough. Croson applied strict scrutiny to state and local racial classifications for the first time and effectively required governments to build a factual record of identified discrimination before adopting race-based set-asides.

Adarand Constructors, Inc. v. Peña (1995)

Adarand extended strict scrutiny to the federal government. The case involved a federal highway program giving contractors a financial bonus for hiring subcontractors certified as socially and economically disadvantaged, a designation that in practice tracked racial categories. The Court held that all racial classifications imposed by any level of government must satisfy strict scrutiny, regardless of whether the purpose is remedial or benign.¹⁰ After Adarand, no federal affirmative action program could survive on good intentions alone.

State Bans: Schuette v. Coalition to Defend Affirmative Action (2014)

Michigan voters approved a constitutional amendment banning race-conscious admissions at public universities. Opponents argued the amendment restructured the political process to disadvantage racial minorities. The Court disagreed, holding that voters have the constitutional authority to prohibit racial preferences in government decisions, including university admissions.¹¹ The Constitution does not require states to use affirmative action even where it would be constitutionally permissible.

At least eight states had banned race-based affirmative action in public university admissions before SFFA rendered those bans largely redundant at the federal level. California, Washington, Michigan, Nebraska, Arizona, and Oklahoma did so through voter referendums; Florida through executive order; New Hampshire through legislation.

The Post-SFFA Landscape

SFFA was technically an education case decided under the Fourteenth Amendment and Title VI, but its reasoning has moved into employment, contracting, and philanthropy with remarkable speed.

Federal Contractors

Executive Order 11246, signed in 1965, had for decades required federal contractors to take affirmative action to ensure equal employment opportunity. Executive Order 14173, signed on January 21, 2025, revoked it. The new order directed the Office of Federal Contract Compliance Programs to stop holding contractors responsible for affirmative action and to cease promoting workforce balancing based on race, sex, religion, or national origin.¹² It also requires every new federal contract and grant to include a certification that the recipient does not operate DEI programs violating federal anti-discrimination laws.

The SBA’s 8(a) Business Development Program, which channels federal contracts to socially and economically disadvantaged small businesses, has faced its own legal challenge. A federal district court in 2023 enjoined the SBA from using a rebuttable presumption that members of certain racial groups are socially disadvantaged, finding the presumption failed strict scrutiny for many of the same reasons SFFA identified: not narrowly tailored, no logical endpoint, no recent reassessment against race-neutral alternatives. The SBA responded by requiring all 8(a) participants to submit individual narratives documenting personal experiences with social disadvantage.¹³

Private-Sector Diversity Programs

The EEOC has stated that SFFA “likely has no immediate, direct legal impact on the existing standards in the employment context under Title VII.”¹⁴ Title VII has always prohibited employment decisions motivated by race, even partly, and there has never been a judicially recognized “diversity” exception in employment the way there was in education under Grutter. Programs that were lawful before SFFA remain lawful; programs that were already illegal remain so.

The legal environment has still grown considerably more hostile to race-conscious workplace initiatives. Litigants have increasingly used 42 U.S.C. § 1981, a Reconstruction-era statute guaranteeing all persons the same right to make and enforce contracts regardless of race, to challenge grant programs and fellowships restricted to particular racial groups.¹⁵ In the highest-profile example, the Eleventh Circuit preliminarily enjoined a venture capital grant contest limited to Black women-owned businesses, ruling the plaintiff was substantially likely to succeed in showing the program violated Section 1981’s prohibition on race-based contracting.¹⁶

A 2024 decision expanded the exposure further. In Muldrow v. City of St. Louis, the Supreme Court lowered the bar for Title VII discrimination claims by eliminating the requirement that employees prove “significant” harm from a challenged employment action. A plaintiff now needs to show only “some” harm tied to a protected characteristic. Lower courts are still working out the reach, but the ruling has made it easier to challenge employer actions like diversity-focused training assignments, mentorship tracks, or promotion criteria.

The Test Courts Apply

Every government-imposed racial classification must survive strict scrutiny, the most demanding standard in constitutional law. A program passes only if it serves a compelling governmental interest and is narrowly tailored to achieve that interest.¹⁰

Before SFFA, two compelling interests could justify race-conscious programs: remedying specific, documented discrimination by the institution itself (Croson) and achieving the educational benefits of student body diversity (Grutter). After SFFA, the diversity rationale no longer supports race-conscious admissions programs, leaving remediation of identified past discrimination as the primary surviving justification.

Narrow tailoring requires that the program be the least restrictive way to accomplish its goal. Courts look for several indicators:

No quotas. Reserving a fixed number of positions for a racial group fails automatically, as Bakke established.
Individualized review. Each person must be evaluated on their own merits, with race as one consideration among many, not an automatic advantage like the point system struck down in Gratz.
A logical endpoint. The program must have defined conditions under which it will end. SFFA made this especially demanding, rejecting programs that lacked measurable benchmarks for success.
Consideration of race-neutral alternatives. The institution must show it examined and found inadequate other approaches that do not rely on racial classifications, as Fisher I reinforced.
Minimal burden on others. The program cannot impose excessive costs on individuals outside the preferred group.

Title VI of the Civil Rights Act of 1964 adds a parallel restriction for any program receiving federal financial assistance, prohibiting exclusion or discrimination based on race, color, or national origin.¹⁷ Because virtually all colleges and universities accept federal funds, Title VI gives the government an enforcement tool that reaches public and private institutions alike, and the Court has interpreted its requirements as coextensive with the Equal Protection Clause.

1
Justia U.S. Supreme Court Center. Regents of Univ. of California v. Bakke, 438 U.S. 265 (1978)
2
Justia U.S. Supreme Court Center. Grutter v. Bollinger, 539 U.S. 306 (2003)
3
Justia U.S. Supreme Court Center. Gratz v. Bollinger, 539 U.S. 244 (2003)
4
Justia U.S. Supreme Court Center. Fisher v. University of Texas, 570 U.S. 297 (2013)
5
Justia U.S. Supreme Court Center. Fisher v. University of Texas at Austin, 579 U.S. ___ (2016)
6
Supreme Court of the United States. Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, No. 20-1199 (2023)
7
U.S. Department of Education. Dear Colleague Letter: Title VI of the Civil Rights Act in Light of Students for Fair Admissions v. Harvard
8
Justia U.S. Supreme Court Center. United Steelworkers v. Weber, 443 U.S. 193 (1979)
9
Justia U.S. Supreme Court Center. City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989)
10
Justia U.S. Supreme Court Center. Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995)
11
Justia U.S. Supreme Court Center. Schuette v. Coalition to Defend Affirmative Action, 572 U.S. 291 (2014)
12
Federal Register. Ending Illegal Discrimination and Restoring Merit-Based Opportunity
13
Office of the Law Revision Counsel. 15 USC 637 – Additional Powers
14
U.S. Equal Employment Opportunity Commission. The Future of DEI, Disparate Impact, and EO 11246 after Students for Fair Admissions v. Harvard/UNC
15
Office of the Law Revision Counsel. 42 USC 1981 – Equal Rights Under the Law
16
United States Court of Appeals for the Eleventh Circuit. American Alliance for Equal Rights v. Fearless Fund Management, No. 23-13138
17
United States Department of Justice. Title VI of the Civil Rights Act of 1964