The major affirmative action court cases run from Regents of the University of California v. Bakke in 1978 to Students for Fair Admissions v. Harvard in 2023, and together they trace a steady tightening of when government and institutions may use race in decision-making. Admissions, government contracting, and employment each developed on their own legal track, but the direction has been the same: narrower room for race-conscious programs, higher burdens on the institutions that run them, and, since 2023, an outright ban on race as a factor in college admissions.
Regents v. Bakke (1978)
The modern framework began with Allan Bakke, a white applicant twice rejected by the UC Davis medical school. Davis had reserved 16 seats out of 100 in each entering class for minority applicants, who were evaluated in a separate pool.1Justia. Regents of Univ. of California v. Bakke, 438 U.S. 265 (1978)
The Court fractured. Six justices agreed the quota was unconstitutional because it walled non-minority applicants off from those 16 seats entirely. Justice Lewis Powell’s controlling opinion, however, held that a diverse student body qualified as a compelling interest, and that universities could still consider race so long as they weighed each applicant individually rather than reserving fixed spots.1Justia. Regents of Univ. of California v. Bakke, 438 U.S. 265 (1978) The line between rigid quotas and flexible consideration governed admissions law for the next 25 years.
Grutter and Gratz (2003)
Two University of Michigan cases decided the same day sharpened that line.
In Grutter v. Bollinger, the Court upheld Michigan’s law school program. Admissions officers reviewed each file holistically, weighing academics alongside personal statements, recommendations, and essays about the applicant’s potential contribution to campus life. Race functioned as a flexible plus factor, not a determinative category. Justice O’Connor’s majority opinion also expressed the expectation that race-conscious admissions would “no longer be necessary” 25 years later.2Cornell Law Institute. Grutter v. Bollinger
In Gratz v. Bollinger, the Court struck down Michigan’s undergraduate program. That system used a 150-point index and automatically awarded 20 points to every applicant from an underrepresented minority group, out of the 100 points needed to guarantee admission.3Justia. Gratz v. Bollinger, 539 U.S. 244 (2003) The mechanical bonus was not individualized review. Schools could consider race, but only through genuine case-by-case evaluation, not point formulas.
Fisher I and II (2013, 2016)
A decade later, the Court raised the bar again. In Fisher v. University of Texas (2013), the justices held that courts cannot simply defer to a university’s assurance that its race-conscious program is necessary. The school itself carries the burden of proving that no workable race-neutral alternative would produce the same educational benefits.4Justia. Fisher v. University of Texas That means seriously exploring socioeconomic preferences, geographic recruitment, or percentage plans before turning to race.
When the case returned in 2016, the Court upheld the Texas program but added an ongoing duty: universities must periodically reassess whether race-conscious policies remain necessary, and race can play no greater role than required.5Justia. Fisher v. University of Texas at Austin, 579 U.S. (2016) Any program that could achieve its diversity goals without race had to end.
SFFA v. Harvard (2023)
In Students for Fair Admissions v. President and Fellows of Harvard College, the Court held that the admissions programs at Harvard and the University of North Carolina violated the Equal Protection Clause.6Justia. Students for Fair Admissions, Inc. v. President and Fellows of Harvard College The 25-year clock O’Connor invoked in Grutter ran out almost on schedule.
The Court identified several fatal flaws. The schools’ diversity goals, described as training future leaders, fostering a marketplace of ideas, and preparing engaged citizens, were too vague to measure, which made meaningful judicial review impossible. The programs had no logical endpoint, and measuring success by comparing each class’s racial composition to prior classes amounted to racial balancing. The programs also relied on the assumption that students of the same race think alike, which the Court called an “offensive and demeaning assumption.”6Justia. Students for Fair Admissions, Inc. v. President and Fellows of Harvard College Evidence also showed Harvard consistently rated Asian American applicants lower on personal qualities than white applicants with comparable academics.
What SFFA Did Not Reach
Two boundaries matter. First, applicants can still write about how race shaped their lives, and admissions offices can consider that discussion, so long as it is “concretely tied to a quality of character or unique ability that the particular applicant can contribute to the university.”6Justia. Students for Fair Admissions, Inc. v. President and Fellows of Harvard College The essay is evaluated for character and resilience, not racial identity as an automatic plus.
Second, in a footnote that has generated its own litigation, the Court said its opinion “does not address” race-conscious admissions at military academies “in light of the potentially distinct interests” they may present.6Justia. Students for Fair Admissions, Inc. v. President and Fellows of Harvard College Whether West Point, the Naval Academy, or the Air Force Academy can still weigh race remains an open question in the lower courts.
Ripple Effects After SFFA
Although SFFA addressed admissions, its reasoning has spread. Dozens of colleges have paused or eliminated race-conscious scholarships, and several state attorneys general have directed public institutions to stop considering race in scholarship decisions. The Equal Protection question is not fully settled for privately funded scholarships, which raise different legal issues than state programs, but the practical retreat has been broad.
Universities are leaning harder into race-neutral strategies: family income, neighborhood characteristics, high school quality, and evidence of overcoming hardship. Some admissions offices use contextual data tools that describe an applicant’s environment without directly identifying race. Whether these proxies preserve campus diversity is still being tested.
Government Contracting: Croson and Adarand
Contracting followed its own track. In City of Richmond v. J.A. Croson Co. (1989), the Court struck down a Richmond program requiring prime contractors to subcontract 30% of the dollar amount of city projects to minority-owned businesses. A statistical gap between the city’s minority population and the share of contracts going to minority firms was not, by itself, enough evidence of discrimination to justify a rigid quota; the city had not investigated race-neutral alternatives or tied the disparity to its own practices.
Six years later, Adarand Constructors, Inc. v. Peña (1995) extended the same principle to the federal government. All racial classifications by any level of government must survive strict scrutiny: a compelling interest, pursued through narrowly tailored means.7Cornell Law Institute. Adarand Constructors v. Pena, 515 U.S. 200 (1995) Presumptions favoring minority-owned firms trigger the same demanding review as any other government use of race.
Executive Order 11246 and the SBA 8(a) Program
For decades, Executive Order 11246 required federal contractors to take affirmative action in hiring and maintain written plans covering underrepresentation of minorities and women. On January 21, 2025, a new executive order revoked E.O. 11246 and directed the Office of Federal Contract Compliance Programs to stop enforcing race- and sex-based affirmative action obligations against contractors.8The White House. Ending Illegal Discrimination And Restoring Merit-Based Opportunity Contractor obligations for workers with disabilities and veterans under Section 503 of the Rehabilitation Act and the Vietnam Era Veterans’ Readjustment Assistance Act stay in place.9U.S. Department of Labor. Office of Federal Contract Compliance Programs
The Small Business Administration’s 8(a) Business Development Program has also changed. It historically presumed members of certain racial and ethnic groups were socially disadvantaged and therefore eligible. A federal district court declared that presumption unconstitutional in 2023, and in January 2026 the SBA issued formal guidance stating that the program must be administered on a race-neutral basis, with no applicant preferred or denied because of race.
Workplace Affirmative Action: A Separate Track
Employment cases run under Title VII of the Civil Rights Act, which prohibits discrimination based on race, color, religion, sex, and national origin and applies to employers with 15 or more employees.10U.S. Equal Employment Opportunity Commission. Title VII of the Civil Rights Act of 1964 The admissions cases interpret the Fourteenth Amendment, which binds government actors. Title VII reaches both public and private employers, so the workplace rules have evolved independently.
Weber and Johnson
In United Steelworkers of America v. Weber (1979), the Court held that Title VII does not prohibit all voluntary race-conscious workplace programs. Kaiser Aluminum and the steelworkers’ union had reserved half the slots in a craft-training program for Black employees until Black representation in the skilled trades matched the local labor force. The Court upheld the plan because it was designed to break down longstanding segregation, did not require firing white workers or bar their advancement, and was temporary.11Justia. Steelworkers v. Weber, 443 U.S. 193 (1979)
Johnson v. Transportation Agency (1987) extended the framework to sex and confirmed that employers can act on a clear statistical imbalance in traditionally segregated job categories without proving they personally discriminated in the past.12Justia. Johnson v. Transportation Agency, 480 U.S. 616 (1987) The plan still had to be flexible, temporary, and not shut out any group entirely.
Section 1981 Claims and Muldrow
Two recent developments have changed the environment for corporate diversity programs. Since SFFA, employees have filed claims under 42 U.S.C. § 1981, which guarantees all people the same right to make and enforce contracts regardless of race and applies to private employers of any size.13Office of the Law Revision Counsel. 42 USC 1981 – Equal Rights Under the Law Plaintiffs argue that corporate diversity goals, such as targets for minority representation in leadership, amount to race-based decision-making. Courts so far have held that aspirational goals alone, without quotas or mechanisms that prioritize race over qualifications, do not establish discrimination.
In Muldrow v. City of St. Louis (2024), the Supreme Court lowered the threshold for a Title VII discrimination claim. Many courts had required employees to show they suffered “significant” harm from an adverse employment action. The Court eliminated that heightened standard; an employee now needs to show only “some” disadvantageous change in the terms or conditions of employment.14Justia. Muldrow v. City of St. Louis, 601 U.S. (2024) Job transfers, schedule changes, and role adjustments are easier to challenge, even when pay stays the same.
Weber and Johnson remain good law, so voluntary workplace affirmative action plans are not categorically unlawful. But plans that resemble quotas, lack an endpoint, or block advancement for employees outside the targeted group are vulnerable. The safer path for employers is expanding applicant pools and removing barriers, rather than engineering outcomes by the numbers.