Abstract
The Court suddenly departed from forty years of affirmative action case law in SFFA, appearing to hold that race can no longer be used as a factor in higher education admissions policies. This Note analyzes the SFFA opinion and the case law it relies on to illustrate the sudden departure from precedent case law while pointing out important exceptions within the opinion that would permit consideration of race in admissions. Regrettably, the SFFA decision has been invokved by litigants seeking to improperly expand the scope of its holding, encompassing the removal of DEI programs from K–12 and higher education institutions. This Note argues that a more broad application of the SFFA holding is unjustified and, in part, based on misinformation about the supposed “harms” of affirmative action and DEI. This Note concludes by recommending that lower courts recognize the more narrow reading of SFFA – meant to apply solely to cases involving higher education admissions policies and not to other areas of law in order to prevent “harms.”
Recommended Citation
Madeleine Goedicke,
SFFA’s Slippery Slope: Doctrinal Creep and the Erosion of DEI,
91 Brook. L. Rev.
1343
(2026).
Available at:
https://brooklynworks.brooklaw.edu/blr/vol91/iss4/5