Standing on Stare Decisis After Students for Fair Admissions

The Supreme Court recognized nearly half a century ago in Regents of the University of California v. Bakke that “the ‘nation’s future depends upon leaders trained through wide exposure’ to the ideas and mores of students as diverse as this Nation of many peoples.” Nevertheless, the Court seriously undercut efforts to bring such a future to life by striking down race-conscious admissions programs in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College and Students for Fair Admissions, Inc. v. University of North Carolina (collectively SFFA). Though SFFA’s binding effect is limited to educational institutions, the Court’s broad and unrestrained approach allows for it to be weaponized in other contexts. Indeed, the decision has already had tangible, negative effects on the diversity, equity, and inclusion (DEI) landscape in the United States. Opponents of DEI have already brought a slew of lawsuits attempting to extend the Court’s reasoning to bar race-consciousness in hiring policies, grants and fellowships, and even workplace trainings. These disputes place lower federal courts in the difficult position of guessing at the reach of SFFA and the Court’s future intentions. To empower those courts to defend the pursuit of racial justice in this country in a principled manner, we advocate the use of two time-honored doctrines as shields against the creativity and persistence of DEI’s opponents: standing and stare decisis.