STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT AND FELLOWS OF HARVARD COLLEGE
No. 20-1199
SUPREME COURT OF THE UNITED STATES
June 29, 2023
600 U. S. ____ (2023)
Arguеd October 31, 2022. Together with No. 21-707, Students for Fair Admissions, Inc. v. University of North Carolina et al., on certiorari before judgment to the United States Court of Appeals for the Fourth Circuit.
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
Syllabus
STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT AND FELLOWS OF HARVARD COLLEGE
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
No. 20-1199. Argued October 31, 2022-Decided June 29, 2023*
At Harvard, each application for admission is initially screened by a “first reader,” who assigns a numerical score in each of six categories: academic, extracurricular, athletic, school support, personal, and overall. For the “overall” category-a composite of the five other ratings-a first reader can and does consider the applicant‘s race. Harvard‘s admissions subcommittees then review all applications from a particular geographic area. These regional subcommittees make recommendations to the full admissions committee, and they take an applicant‘s race into account. When the 40-member full admissions committee begins its deliberations, it discusses the relative breakdown of applicants by race. The goal of the process, according to Harvard‘s director of admissions, is ensuring there is no “dramatic drop-off” in minority admissions from the prior class. An applicant receiving a majority of the full committee‘s votes is tentatively accepted for admission. At the end of this process, the racial composition of the tentative applicant pool is disclosed to the committee. The last stage of Harvard‘s admissions process, called the “lop,” winnows the list of tentatively admitted students to arrive at the final class. Applicants that Harvard considers cutting at this stage are placed on the “lop list,” which contains only four pieces of information: legacy status, recruited athlete status, financial aid eligibility, and race. In the Harvard admissions process, “race is a determinative tip for” a
UNC has a similar admissions process. Every application is reviewed first by an admissions office reader, who assigns a numerical rating to each of several categories. Readers are required to consider the applicant‘s race as a factor in their review. Readers then make a written recommendation on each assigned application, and they may provide an applicant a substantial “plus” depending on the applicant‘s race. At this stage, most recommendations are provisionally final. A committee of experienced staff members then conducts a “school group review” of every initial decision made by a reader and either approves or rejects the recommendation. In making those decisions, the committee may consider the applicant‘s race.
Petitioner, Students for Fair Admissions (SFFA), is a nonprofit organization whose stated purpose is “to defend human and civil rights secured by law, including the right of individuals to equal protection under the law.” SFFA filed separate lawsuits against Harvard and UNC, arguing that their race-based admissions programs violate, respectively, Title VI of the
Held: Harvard‘s and UNC‘s admissions programs violate the Equal Protection Clause of the
(a) Because SFFA complies with the standing requirements for organizational plaintiffs articulated by this Court in Hunt v. Washington State Apple Advertising Comm‘n, 432 U. S. 333, SFFA‘s obligations under Article III are satisfied, and this Court has jurisdiction to consider the merits of SFFA‘s claims.
The Court rejects UNC‘s argument that SFFA lacks standing because it is not a “genuine” membership organization. An organizational plaintiff can satisfy Article III jurisdiction in two ways, one of which is to assert “standing solely as the representative of its mem-bers,” Warth v. Seldin, 422 U. S. 490, 511, an approach known as representational or organizational standing. To invoke it, an organization must satisfy the three-part test in Hunt. Respondents do not suggest that SFFA fails Hunt‘s test for organizational standing. They argue instead that SFFA cannot invoke organizational standing at all because SFFA was not a genuine membership organization at the time it filed suit. Respondents maintain that, under Hunt, a group qualifies as a genuine membership organization only if it is controlled and funded by its members. In Hunt, this Court determined that a state agency with no traditional members could still qualify as a genuine membership organization in substance because the agency represented the interests of individuals and otherwise satisfied Hunt‘s three-part test for organizational standing. See 432 U. S., at 342. Hunt‘s “indicia of membership” analysis, however, has no applicability here. As the courts below found, SFFA is indisputably a voluntary membership organization with identifiable members who support its mission and whom SFFA represents in good faith. SFFA is thus entitled to rely on the organizational standing doctrine as articulated in Hunt. Pp. 6-9.
(b) Proposed by Congress and ratified by the States in the wake of the Civil War, the
Despite the early recognition of the broad sweep of the Equal Protection Clause, the Court-alongside the country-quickly failed to live up to the Clause‘s core commitments. For almost a century after the Civil War, state-mandated segregation was in many parts of the Nation a regrettable norm. This Court played its own role in that ignoble history, allowing in Plessy v. Ferguson the separate but equal regime that would come to deface much of America. 163 U. S. 537.
After Plessy, “American courts . . . labored with the doctrine [of separate but equal] for over half a century.” Brown v. Board of Education, 347 U. S. 483, 491. Some cases in this period attempted to curtail the perniciousness of the doctrine by emphasizing that it required States to provide black students educational opportunities equal to-even if formally separate from-those enjoyed by white students. See, e.g., Missouri ex rel. Gaines v. Canada, 305 U. S. 337, 349-350. But the inherent folly of that approach-of trying to derive equality from inequality-soon became apparent. As the Court subsequently recognized, even racial distinctions that were argued to have no palpable effect worked to subordinate the afflicted students. See, e.g., McLaurin v. Oklahoma State Regents for Higher Ed., 339 U. S. 637, 640-642. By 1950, the inevitable truth of the
The culmination of this approach came finally in Brown v. Board of Education, 347 U. S. 483. There, the Court overturned the separate but equal regime established in Plessy and began on the path of invalidating all de jure racial discrimination by the States and Federal Government. The conclusion reached by the Brown Court was unmistakably clear: the right to a public education “must be made available to all on equal terms.” 347 U. S., at 493. The Court reiterated that rule just one year later, holding that “full compliance” with Brown required schools to admit students “on a racially nondiscriminatory basis.” Brown v. Board of Education, 349 U. S. 294, 300–301.
In the years that followed, Brown‘s “fundamental principle that racial discrimination in public education is unconstitutional,” id., at 298, reached other areas of life-for example, state and local laws requiring segregation in busing, Gayle v. Browder, 352 U. S. 903 (per curiam); racial segregation in the enjoyment of public beaches and bathhouses Mayor and City Council of Baltimore v. Dawson, 350 U. S. 877 (per curiam); and antimiscegenation laws, Loving v. Virginia, 388 U. S. 1. These decisions, and others like them, reflect the “core purpose” of the Equal Protection Clause: “do[ing] away with all governmentally imposed discrimination based on race.” Palmore v. Sidoti, 466 U. S. 429, 432.
Any exceptions to the Equal Protection Clause‘s guarantee must survive a daunting two-step examination known as “strict scrutiny,” Adarand Constructors, Inc. v. Peña, 515 U. S. 200, 227, which asks first whether the racial classification is used to “further compelling governmental interests,” Grutter v. Bollinger, 539 U. S. 306, 326, and second whether the government‘s use of race is “narrowly tailored,” i.e., “necessary,” to achieve that interest, Fisher v. University of Tex. at Austin, 570 U. S. 297, 311-312. Acceptance of race-based state action is rare for a reason: “[d]istinctions between citizens solely because of their ancestry are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality.” Rice v. Cayetano, 528 U. S. 495, 517. Pp. 9-16.
(c) This Court first considered whether a university may make race-based admissions decisions in Bakke, 438 U. S. 265. In a deeply splintered decision that produced six different opinions, Justice Powell‘s opinion for himself alone would eventually come to “serv[e] as the touchstone for constitutional analysis of race-conscious admissions policies.” Grutter, 539 U. S., at 323. After rejecting three of the University‘s four justifications as not sufficiently compelling, Justice Powell turned to its last interest asserted to be compelling-obtaining the educational benefits that flow from a racially diverse student body. Justice Powell found that interest to be “a constitutionally permissible goal for an institution of higher education,” which was entitled as a matter of academic freedom “to make its own judgments as to . . . the selection of its student body.” 438 U. S., at 311-312. But a university‘s freedom was not unlimited-“[r]acial and ethnic distinctions of any sort are inherently suspect,” Justice Powell explained, and antipathy toward them was deeply “rooted in our Nation‘s constitutional and demographic history.” Id., at 291. Accordingly, a university could not employ a two-track quota system with a specific number of seats reserved for individuals from a preferred ethnic group. Id., at 315. Neither still could a university use race to foreclose an individual from all consideration. Id., at 318. Race could only operate as “a ‘plus’ in a particular applicant‘s file,” and even then it had to be weighed in a manner “flexible enough to consider all pertinent elements of diversity in light of the particular qualifications of each applicant.” Id., at 317. Pp. 16-19.
(d) For years following Bakke, lower courts struggled to determine whether Justice Powell‘s decision was “binding precedent.” Grutter, 539 U. S., at 325. Then, in Grutter v. Bollinger, the Court for the first time “endorse[d] Justice Powell‘s view that student body diversity is a compelling state interest that can justify the use of race in university admissions.” Ibid. The Grutter majority‘s analysis tracked Justice Powell‘s in many respects, including its insistence on limits
To manage these concerns, Grutter imposed one final limit on race-based admissions programs: At some point, the Court held, they must end. Id., at 342. Recognizing that “[e]nshrining a permanent justification for racial preferences would offend” the Constitution‘s unambiguous guarantee of equal protection, the Court expressed its expectation that, in 25 years, “the use of racial preferences will no longer be necessary to further the interest approved today.” Id., at 343. Pp. 19-21.
(e) Twenty years have passed since Grutter, with no end to race-based college admissions in sight. But the Court has permitted race-based college admissions only within the confines of narrow restrictions: such admissions programs must comply with strict scrutiny, may never use race as a stereotype or negative, and must-at some point-end. Respondents’ admissions systems fail each of these criteria and must therefore be invalidated under the Equal Protection Clause of the
(1) Respondents fail to operate their race-based admissions programs in a manner that is “sufficiently measurable to permit judicial [review]” under the rubric of strict scrutiny. Fisher v. University of Tex. at Austin, 579 U. S. 365, 381. First, the interests that respondents view as compelling cannot be subjected to meaningful judicial review. Those interests include training future leaders, acquiring new knowledge based on diverse outlooks, promoting a robust marketplace of ideas, and preparing engaged and productive citizens. While these are commendable goals, they are not sufficiently coherent for purposes of strict scrutiny. It is unclear how courts are supposed to measure any of these goals, or if they could, to know when they have been reached so that racial preferences can end. The elusiveness of respondents’ asserted goals is further illustrated by comparing them to recognized compelling interests. For example, courts can discern whether the temporary racial segregation of inmates will prevent harm to those in the prison, see Johnson v. California, 543 U. S. 499, 512-513, but the question whether a particular mix of minority students produces “engaged and productive citizens” or effectively “train[s] future leaders” is standardless.
Second, respondents’ admissions programs fail to articulate a meaningful connection between the means they employ and the goals they pursue. To achieve the educational benefits of diversity, respondents measure the racial composition of their classes using racial categories that are plainly overbroad (expressing, for example, no concern whether South Asian or East Asian students are adequately represented as “Asian“); arbitrary or undefined
The universities’ main response to these criticisms is “trust us.” They assert that universities are owed deference when using race to benefit some applicants but not others. While this Court has recognized a “tradition of giving a degree of deference to a university‘s academic decisions,” it has made clear that deference must exist “within constitutionally prescribed limits.” Grutter, 539 U. S., at 328. Respondents have failed to present an exceedingly persuasive justification for separating students on the basis of race that is measurable and concrete enough to permit judicial review, as the Equal Protection Clause requires. Pp. 22-26.
(2) Respondents’ race-based admissions systems also fail to comply with the Equal Protection Clause‘s twin commands that race may never be used as a “negative” and that it may not operate as a stereotype. The First Circuit found that Harvard‘s consideration of race has resulted in fewer admissions of Asian-American students. Respondents’ assertion that race is never a negative factor in their admissions programs cannot withstand scrutiny. College admissions are zero-sum, and a benefit provided to some applicants but not to others necessarily advantages the former at the expense of the latter.
Respondents admissions programs are infirm for a second reason as well: They require stereotyping-the very thing Grutter foreswore. When a university admits students “on the basis of race, it engages in the offensive and demeaning assumption that [students] of a particular race, because of their race, think alike.” Miller v. Johnson, 515 U. S. 900, 911-912. Such stereotyping is contrary to the “core purpose” of the Equal Protection Clause. Palmore, 466 U. S., at 432. Pp. 26-29.
(3) Respondents’ admissions programs also lack a “logical end point” as Grutter required. 539 U. S., at 342. Respondents suggest that the end of race-based admissions programs will occur once meaningful representation and diversity are achieved on college campuses. Such measures of success amount to little more than comparing the racial breakdown of the incoming class and comрaring it to some other metric, such as the racial makeup of the previous incoming class or the population in general, to see whether some proportional goal has been reached. The problem with this approach is well established: “[O]utright racial balancing” is “patently unconstitutional.” Fisher, 570 U. S., at 311. Respondents’ second proffered end point-when students receive the educational benefits of diversity-fares no better. As explained, it is unclear how a court is supposed to determine if or when such goals would be adequately met. Third, respondents suggest the 25-year expectation in Grutter means that race-based preferences must be allowed to continue until at least 2028. The Court‘s statement in Grutter, however, reflected only that Court‘s expectation that race-based preferences would, by 2028, be unnecessary in the context of racial diversity on college campuses. Finally, respondents argue that the frequent reviews they conduct to determine whether racial preferences are still necessary obviates the need for an end point. But Grutter never suggested that periodic review can make unconstitutional conduct constitutional. Pp. 29-34.
No. 20-1199, 980 F. 3d 157; No. 21–707, 567 F. Supp. 3d 580, reversed.
ROBERTS, C. J., delivered the opinion of the Court, in which THOMAS, ALITO, GORSUCH, KAVANAUGH, and BARRETT, JJ., joined. THOMAS, J., filed a concurring opinion. GORSUCH, J., filed a concurring opinion, in which THOMAS, J., joined. KAVANAUGH, J., filed a concurring opinion. SOTOMAYOR, J., filed a dissenting opinion, in which KAGAN, J., joined, and in which JACKSON, J., joined as it applies to No. 21-707. JACKSON, J., filed a dissenting opinion in No. 21-707, in which SOTOMAYOR and KAGAN, JJ., joined. JACKSON, J., took no part in the consideration or decision of the case in No. 20-1199.
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, pio@supremecourt.gov, of any typographical or other formal errors.
Nos. 20-1199 and 21-707
STUDENTS FOR FAIR ADMISSIONS, INC., PETITIONER
20-1199 v. PRESIDENT AND FELLOWS OF HARVARD COLLEGE
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
21-707 STUDENTS FOR FAIR ADMISSIONS, INC., PETITIONER v. UNIVERSITY OF NORTH CAROLINA, ET AL.
ON WRIT OF CERTIORARI BEFORE JUDGMENT TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH
[June 29, 2023]
CHIEF JUSTICE ROBERTS delivered the opinion of the Court.
In these cases we consider whether the admissions systems used by Harvard College and the University of North Carolina, two of the oldest institutions of higher learning in the United States, are lawful under the Equal Protection Clause of the
I
A
Founded in 1636, Harvard College has one of the most selective application processes in the country. Over 60,000 people applied to the school last year; fewer than 2,000 were admitted. Gaining admission to Harvard is thus no easy feat. It can depend on having excellent grades, glowing recommendation letters, or overcoming significant adversity. See 980 F. 3d 157, 166–169 (CA1 2020). It can also depend on your race.
The admissions process at Harvard works as follows. Every application is initially screened by a “first reader,” who assigns scores in six categories: academic, extracurricular, athletic, school support, personal, and overall. Ibid. A rating of “1” is the best; a rating of “6” the worst. Ibid. In the academic category, for example, a “1” signifies “near-perfect standardized test scores and grades“; in the extracurricular category, it indicates “truly unusual achievement“; and in the personal category, it denotes “outstanding” attributes like maturity, integrity, leadership, kindness, and courage. Id., at 167-168. A score of “1” on the overall rating-a composite of the five other ratings-“signifies an exceptional candidate with >90% chance of admission.” Id., at 169 (internal quotation marks omitted). In assigning the overall rating, the first readers “can and do take an applicant‘s race into account.” Ibid.
Once the first read process is complete, Harvard convenes admissions subcommittees. Ibid. Each subcommittee meets for three to five days and evaluates all applicants from a particular geographic area. Ibid. The subcommittees are responsible for making recommendations to the full admissions committee. Id., at 169–170. The subcommittees can and do take an applicant‘s race into account when making their recommendations. Id., at 170.
The final stage of Harvard‘s process is called the “lop,” during which the list of tentatively admitted students is winnowed further to arrive at the final class. Any applicants that Harvard considers cutting at this stage are placed on a “lop list,” which contains only four pieces of information: legacy status, recruited athlete status, financial aid eligibility, and race. 980 F. 3d, at 170. The full committee decides as a group which students to lop. 397 F. Supp. 3d 126, 144 (Mass. 2019). In doing so, the committee can and does take race into account. Ibid. Once the lop process is complete, Harvard‘s admitted class is set. Ibid. In the Harvard admissions process, “race is a determinative tip for” a significant percentage “of all admitted African American and Hispanic applicants.” Id., at 178.
B
Founded shortly after the Constitution was ratified, the University of North Carolina (UNC) prides itself on being the “nation‘s first public university.” 567 F. Supp. 3d 580, 588 (MDNC 2021). Like Harvard, UNC‘s “admissions process is highly selective“: In a typical year, the school “receives approximately 43,500 applications for its freshman class of 4,200.” Id., at 595.
Every application the University receives is initially reviewed by one of approximately 40 admissions office readers, each of whom reviews roughly five applications per hour. Id., at 596, 598. Readers are required to consider “[r]ace and ethnicity . . . as one factor” in their review. Id., at 597 (internal quotation marks omitted). Other factors include academic performance and rigor, standardized testing results, extracurricular involvement, essay quality, personal factors, and student background. Id., at 600. Readers are responsible for providing numerical ratings for the academic, extracurricular, personal, and essay categories. Ibid. During the years at issue in this litigation, underrepresented minority students were “more likely to score [highly] on their personal ratings than their white and Asian American peers,” but were more likely to be “rated lower by UNC readers on their academic program, academic performance, . . . extracurricular activities,” and essays. Id., at 616-617.
After assessing an applicant‘s materials along these lines, the reader “formulates an opinion about whether the student should be offered admission” and then “writes a comment defending his or her recommended decision.” Id., at 598 (internal quotation marks omitted). In making that decision, readers may offer students a “plus” based on their race, which “may be significant in an individual case.” Id., at 601 (internal quotation marks omitted).
Following the first read process, “applications then go to a process called ‘school group review’ . . . where a committee composed of experienced staff members reviews every [initial] decision.” 567 F. Supp. 3d, at 599. The review committee receives a report on each student which cоntains, among other things, their “class rank, GPA, and test scores; the ratings assigned to them by their initial readers; and their status as residents, legacies, or special recruits.” Ibid. (footnote omitted). The review committee either approves or rejects each admission recommendation made by the first reader, after which the admissions decisions are finalized. Ibid. In making those decisions, the review committee may also consider the applicant‘s race. Id., at 607; 2 App. in No. 21-707, p. 407.1
C
Petitioner, Students for Fair Admissions (SFFA), is a nonprofit organization founded in 2014 whose purpose is “to defend human and civil rights secured by law, including the right of individuals to equal protection under the law.” 980 F. 3d, at 164 (internal quotation marks omitted). In November 2014, SFFA filed separate lawsuits against Harvard College and the University of North Carolina, arguing that their race-based admissions programs violated, respectively, Title VI of the
We granted certiorari in the Harvard case and certiorari before judgment in the UNC case. 595 U. S. ____ (2022).
II
Before turning to the merits, we must assure ourselves of our jurisdiction. See Summers v. Earth Island Institute, 555 U. S. 488, 499 (2009). UNC argues that SFFA lacks standing to bring its claims because it is not a “genuine” membership organization. Brief for University Respondents in No. 21–707, pp. 23-26. Every court to have considered this argument has rejected it, and so do we. See Students for Fair Admissions, Inc. v. University of Tex. at Austin, 37 F. 4th 1078, 1084–1086, and n. 8 (CA5 2022) (collecting cases).
Article III of the Constitution limits “[t]he judicial power of the United States” to “cases” or “controversies,” ensuring that federal courts act only “as a necessity in the determination of real, earnest and vital” disputes. Muskrat v. United States, 219 U. S. 346, 351, 359 (1911) (internal quotation marks omitted). “To state a case or controversy under Article III, a plaintiff must establish standing.” Arizona Christian School Tuition Organization v. Winn, 563 U. S. 125, 133 (2011). That, in turn, requires a plaintiff to demonstrate that it has “(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Spokeo, Inc. v. Robins, 578 U. S. 330, 338 (2016).
In cases like these, where the plaintiff is an organization, the standing requirements of Article III can be satisfied in two ways. Either the organization can claim that it suffered an injury in its own right or, alternatively, it can assert “standing solely as the representative of its members.” Warth v. Seldin, 422 U. S. 490, 511 (1975). The latter approach is known as representational or organizational standing. Ibid.; Summers, 555 U. S., at 497–498. To invoke it, an organization must demonstrate that “(a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization‘s purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.” Hunt v. Washington State Apple Advertising Comm‘n, 432 U. S. 333, 343 (1977).
Hunt involved the Washington State Apple Advertising Commission, a state agency whose purpose was to protect the local apple industry. The Commission brought suit challenging a North Carolina statute that imposed a labeling requirement on containers of apples sold in that State. The Commission argued that it had standing to challenge the requirement on behalf of Washington‘s apple industry. See id., at 336–341. We recognized, however, that as a state agency, “the Commission [wa]s not a traditional voluntary membership organization . . . for it ha[d] no members at all.” Id., at 342. As a result, we could not easily apply the three-part test for organizational standing, which asks whether an organization‘s members have standing. We nevertheless concluded that the Commission had standing because the apple growers and dealers it represented were effectively members of the Commission. Id., at 344. The growers and dealers “alone elect[ed] the members of the Commission,” “alone . . . serve[d] on the Commission,” and “alone finance[d] its activities“-they possessed, in other words, “all of the indicia of membership.” Ibid. The Commission was therefore a genuine membership organization in substance, if not in form. And it was “clearly” entitled to rely on the doctrine of organizational standing under the three-part test recounted above. Id., at 343.
The indicia of membership analysis employed in Hunt has no applicability in these cases. Here, SFFA is indisputably a voluntary membership organization with identifiable members-it is not, as in Hunt, a state agency that concededly has no members. See 2018 DC Opinion 241-242. As the First Circuit in the Harvard litigation observed, at the time SFFA filed suit, it was “a validly incorporated 501(c)(3) nonprofit with forty-seven members who joined voluntarily to support its mission.” 980 F. 3d, at 184. Meanwhile in the UNC litigation, SFFA represented four members in particular-high school graduates who were denied admission to UNC. See 2018 DC Opinion 234. Those members filed declarations with the District Court stating “that they have voluntarily joined SFFA; they support its mission; they receive updates about the status of the case from SFFA‘s President; and they have had the opportunity to have input and direction on SFFA‘s case.” Id., at 234-235 (internal quotation marks omitted). Where, as here, an organization has identified members and represents them in good faith, our cases do not require further scrutiny into how the organization operates. Because SFFA complies with the standing requirements demanded of organizational
III
A
In the wake of the Civil War, Congress proposed and the States ratified the
At first, this Court embraced the transcendent aims of the Equal Protection Clause. “What is this,” we said of the Clause in 1880, “but declaring that the law in the States shall be the same for the black as for the white; that all persons, whether colored or white, shall stand equal before the laws of the States?” Strauder v. West Virginia, 100 U. S. 303, 307-309. “[T]he broad and benign provisions of the
Despite our early recognition of the broad sweep of the Equal Protection Clause, this Court-alongside the country-quickly failed to live up to the Clause‘s core commitments. For almost a century after the Civil War, state-mandated segregation was in many parts of the Nation a regrettable norm. This Court played its own role in that ignoble history, allowing in Plessy v. Ferguson the separate but equal regime that would come to deface much of America. 163 U. S. 537 (1896). The aspirations of the framers of the Equal Protection Clause, “[v]irtually strangled in [their] infancy,” would remain for too long only that-aspirations. J. Tussman & J. tenBroek, The Equal Protection of the Laws, 37 Cal. L. Rev. 341, 381 (1949).
After Plessy, “American courts . . . labored with the doctrine [of separate but equal] for over half a century.” Brown v. Board of Education, 347 U. S. 483, 491 (1954). Some cases in
The culmination of this approach came finally in Brown v. Board of Education. In that seminal decision, we overturned Plessy for good and set firmly on the path of invalidating all de jure racial discrimination by the States and Federal Government. 347 U. S., at 494–495. Brown concerned the permissibility of racial segregation in public schools. The school district maintained that such segregation was lawful because the schools provided to black students and white students were of roughly the same quality. But we held such segregation impermissible “even though the physical facilities and other ‘tangible’ factors may be equal.” Id., at 493 (emphasis added). The mere act of separating “children . . . because of their race,” we explained, itself “generate[d] a feeling of inferiority.” Id., at 494.
The conclusion reached by the Brown Court was thus unmistakably clear: the right to a public education “must be made available to all on equal terms.” Id., at 493. As the plaintiffs had argued, “no State has any authority under the equal-protection clause of the
dedicated belief.“); post, at 39, n. 7 (THOMAS, J., concurring). The Court reiterated that rule just one year later, holding that “full compliance” with Brown required schools to admit students “on a racially nondiscriminatory basis.” Brown v. Board of Education, 349 U.S. 294, 300-301 (1955). The time for making distinctions based on race had passed. Brown, the Court observed, “declar[ed] the fundamental principle that racial discrimination in public education is unconstitutional.” Id., at 298.
So too in other areas of life. Immediately after Brown, we began routinely affirming lower court decisions that invalidated all manner of race-based state action. In Gayle v. Browder, 352 U.S. 903 (1956) (per curiam), for example, we summarily affirmed a decision invalidating state and local laws that required segregation in busing. As the lower court explained, “[t]he equal protection clause requires equality of treatment
In the decades that followed, this Court continued to vindicate the Constitution‘s pledge of racial equality. Laws dividing parks and golf courses; neighborhoods and businesses; buses and trains; schools and juries were undone, all by a transformative promise “stemming from our American ideal of fairness“: “the Constitution . . . forbids . . . discrimination by the General Government, or by the States, against any citizen because of his race.” Bolling v. Sharpe, 347 U.S. 497, 499 (1954) (quoting Gibson v. Mississippi, 162 U.S. 565, 591 (1896) (Harlan, J., for the Court)). As we recounted in striking down the State of Virginia‘s ban on interracial marriage 13 years after Brown, the
These decisions reflect the “core purpose” of the
Eliminating racial discrimination means eliminating all of it. And the
Any exception to the Constitution‘s demand for equal protection must survive a daunting two-step examination known in our cases as “strict scrutiny.” Adarand Constructors, Inc. v. Peña, 515 U.S. 200, 227 (1995). Under that standard we ask, first, whether the racial classification is used to “further compelling governmental interests.” Grutter v. Bollinger, 539 U.S. 306, 326 (2003). Second, if so, we ask whether the government‘s use of race is “narrowly tailored“—meaning “necessary“—to achieve that interest. Fisher v. University of Tex. at Austin, 570 U.S. 297, 311-312 (2013) (Fisher I) (internal quotation marks omitted).
Outside the circumstances of these cases, our precedents have identified only two compelling interests that permit resort to race-based government action. One is remediating specific, identified instances of past discrimination that violated the Constitution or a statute. See, e.g., Parents Involved in Community Schools v. Seattle School Dist. No. 1, 551 U.S. 701, 720 (2007); Shaw v. Hunt, 517 U.S. 899, 909-910 (1996); post, at 19-20, 30-31 (opinion of THOMAS, J.). The second is avoiding imminent and serious risks to human safety in prisons, such as a race riot. See Johnson v. California, 543 U.S. 499, 512-513 (2005).3
Our acceptance of race-based state action has been rare for a reason. “Distinctions between citizens solely because of their ancestry are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality.” Rice v. Cayetano, 528 U.S. 495, 517 (2000) (quoting Hirabayashi v. United States, 320 U.S. 81, 100 (1943)). That principle cannot be overridden except in the most extraordinary case.
B
These cases involve whether a university may make admissions decisions that turn on an applicant‘s race. Our Court first considered that issue in Regents of University of California v. Bakke, which involved a set-aside admissions program used by the University of California, Davis, medical school. 438 U.S., at 272-276. Each year, the school held 16 of its 100 seats open for members of certain minority groups, who were reviewed on a special admissions track separate from those in the main admissions pool.
In a deeply splintered decision that produced six different opinions—none of which commanded a majority of the Court—we ultimately ruled in part in favor of the school and in part in favor of Bakke. Justice Powell announced the Court‘s judgment, and his opinion—though written for himself alone—would eventually come to “serv[e] as the touchstone for constitutional analysis of race-conscious admissions policies.” Grutter, 539 U.S., at 323.
Justice Powell began by finding three of the school‘s four justifications for its policy not sufficiently compelling. The school‘s first justification of “reducing the historic deficit of traditionally disfavored minorities in medical schools,” he wrote, was akin to “[p]referring members of any one group for no reason other than race or ethnic origin.” Bakke, 438 U.S., at 306-307 (internal quotation marks omitted). Yet that was “discrimination for its own sake,” which “the Constitution forbids.” Id., at 307 (citing, inter alia, Loving, 388 U.S., at 11). Justice Powell next observed that the goal of “remedying . . . the effects of ‘societal discrimination‘” was also insufficient because it was “an amorphous concept of injury that may be ageless in its reach into the past.” Bakke, 438 U.S., at 307. Finally, Justice Powell found there was “virtually no evidence in the record indicating that [the school‘s] special admissions program” would, as the school had argued, increase the number of doctors working in underserved areas. Id., at 310.
Justice Powell then turned to the school‘s last interest asserted to be compelling—obtaining the educational benefits that flow from a racially diverse student body. That interest, in his view, was “a constitutionally permissible goal for an institution of higher education.” Id., at 311-312. And that was so, he opined, because a university was entitled as a matter of academic freedom “to make its own judgments as to . . . the selection of its student body.” Id., at 312.
But a university‘s freedom was not unlimited. “Racial and ethnic distinctions of any sort are inherently suspect,” Justice Powell explained, and antipathy toward them was deeply “rooted in our Nation‘s constitutional and demographic history.” Id., at 291. A university could not employ a quota system, for example, reserving “a specified number of seats in each class for individuals from the preferred ethnic groups.” Id., at 315. Nor could it impose a “multitrack
The role of race had to be cabined. It could operate only as “a ‘plus’ in a particular applicant‘s file.” Id., at 317. And even then, race was to be weighed in a manner “flexible enough to consider all pertinent elements of diversity in light of the particular qualifications of each applicant.” Ibid. Justice Powell derived this approach from what he called the “illuminating example” of the admissions system then used by Harvard College. Id., at 316. Under that system, as described by Harvard in a brief it had filed with the Court, “the race of an applicant may tip the balance in his favor just as geographic origin or a life [experience] may tip the balance in other candidates’ cases.” Ibid. (internal quotation marks omitted). Harvard continued: “A farm boy from Idaho can bring something to Harvard College that a Bostonian cannot offer. Similarly, a black student can usually bring something that a white person cannot offer.” Ibid. (internal quotation marks omitted). The result, Harvard proclaimed, was that “race has been“—and should be—“a factor in some admission decisions.” Ibid. (internal quotation marks omitted).
No other Member of the Court joined Justice Powell‘s opinion. Four Justices instead would have held that the government may use race for the purpose of “remedying the effects of past societal discrimination.” Id., at 362 (joint opinion of Brennan, White, Marshall, and Blackmun, JJ., concurring in judgment in part and dissenting in part). Four other Justices, meanwhile, would have struck down the Davis program as violative of Title VI. In their view, it “seem[ed] clear that the proponents of Title VI assumed that the Constitution itself required a colorblind standard on the part of government.” Id., at 416 (Stevens, J., joined by Burger, C. J., and Stewart and Rehnquist, JJ., concurring in judgment in part and dissenting in part). The Davis program therefore flatly contravened a core “principle imbedded in the constitutional and moral understanding of the times“: the prohibition against “racial discrimination.” Id., at 418, n. 21 (internal quotation marks omitted).
C
In the years that followed our “fractured decision in Bakke,” lower courts “struggled to discern whether Justice Powell‘s” opinion constituted “binding precedent.” Grutter, 539 U.S., at 325. We accordingly took up the matter again in 2003, in the case Grutter v. Bollinger, which concerned the admissions system used by the University of Michigan law school. Id., at 311. There, in another sharply divided decision, the Court for the first time “endorse[d] Justice Powell‘s view that student body diversity is a compelling state interest that can justify the use of race in university admissions.” Id., at 325.
The Court‘s analysis tracked Justice Powell‘s in many respects. As for compelling interest, the Court held that “[t]he Law School‘s educational judgment that such diversity is essential to its educational mission is one to which we defer.” Id., at 328. In achieving that goal, however, the Court made clear—just as Justice Powell had—that the law school was limited in the means that it could pursue. The school could not “establish quotas for members of certain racial groups or put members of those groups on
These limits, Grutter explained, were intended to guard against two dangers that all race-based government action portends. The first is the risk that the use of race will devolve into “illegitimate . . . stereotyp[ing].” City of Richmond v. J. A. Croson Co., 488 U.S. 469, 493 (1989) (plurality opinion). Universities were thus not permitted to operate their admissions programs on the “belief that minority students always (or even consistently) express some characteristic minority viewpoint on any issue.” Grutter, 539 U.S., at 333 (internal quotation marks omitted). The second risk is that race would be used not as a plus, but as a negative—to discriminate against those racial groups that were not the beneficiaries of the race-based preference. A university‘s use of race, accordingly, could not occur in a manner that “unduly harm[ed] nonminority applicants.” Id., at 341.
But even with these constraints in place, Grutter expressed marked discomfort with the use of race in college admissions. The Court stressed the fundamental principle that “there are serious problems of justice connected with the idea of [racial] preference itself.” Ibid. (quoting Bakke, 438 U.S., at 298 (opinion of Powell, J.)). It observed that all “racial classifications, however compelling their goals,” were “dangerous.” Grutter, 539 U.S., at 342. And it cautioned that all “race-based governmental action” should “remai[n] subject to continuing oversight to assure that it will work the least harm possible to other innocent persons competing for the benefit.” Id., at 341 (internal quotation marks omitted).
To manage these concerns, Grutter imposed one final limit on race-based admissions programs. At some point, the Court held, they must end. Id., at 342. This requirement was critical, and Grutter emphasized it repeatedly. “[A]ll race-conscious admissions programs [must] have a termination point“; they “must have reasonable durational limits“; they “must be limited in time“; they must have “sunset provisions“; they “must have a logical end point“; their “deviation from the norm of equal treatment” must be “a temporary matter.” Ibid. (internal quotation marks omitted). The importance of an end point was not just a matter of repetition. It was the reason the Court was willing to dispense temporarily with the Constitution‘s unambiguous guarantee of equal protection. The Court recognized as much: “[e]nshrining a permanent justification for racial preferences,” the Court explained, “would offend this fundamental equal protection principle.” Ibid.; see also id., at 342-343 (quoting N. Nathanson & C. Bartnik, The Constitutionality of Preferential Treatment for Minority Applicants to Professional Schools, 58 Chi. Bar Rec. 282, 293 (May-June 1977), for the proposition that “[i]t would be a sad day indeed, were America to become a quota-ridden society, with each identifiable minority assigned proportional representation in every desirable walk of life“).
Grutter thus concluded with the following caution: “It has been 25 years since Justice Powell first approved the use of race to further an interest in student body diversity in the context of public higher education. . . . We expect that 25 years
IV
Twenty years later, no end is in sight. “Harvard‘s view about when [race-based admissions will end] doesn‘t have a date on it.” Tr. of Oral Arg. in No. 20-1199, p. 85; Brief for Respondent in No. 20-1199, p. 52. Neither does UNC‘s. 567 F. Supp. 3d, at 612. Yet both insist that the use of race in their admissions programs must continue.
But we have permitted race-based admissions only within the confines of narrow restrictions. University programs must comply with strict scrutiny, they may never use race as a stereotype or negative, and—at some point—they must end. Respondents’ admissions systems—however well intentioned and implemented in good faith—fail each of these criteria. They must therefore be invalidated under the
A
Because “[r]acial discrimination [is] invidious in all contexts,” Edmonson v. Leesville Concrete Co., 500 U.S. 614, 619 (1991), we have required that universities operate their race-based admissions programs in a manner that is “sufficiently measurable to permit judicial [review]” under the rubric of strict scrutiny. Fisher v. University of Tex. at Austin, 579 U.S. 365, 381 (2016) (Fisher II). “Classifying and assigning” students based on their race “requires more than an amorphous end to justify it.” Parents Involved, 551 U.S., at 735.
Respondents have fallen short of satisfying that burden.
First, the interests they view as compelling cannot be subjected to meaningful judicial review. Harvard identifies the following educational benefits that it is pursuing: (1) “training future leaders in the public and private sectors“; (2) preparing graduates to “adapt to an increasingly pluralistic society“; (3) “better educating its students through diversity“; and (4) “producing new knowledge stemming from diverse outlooks.” 980 F. 3d, at 173-174. UNC points to similar benefits, namely, “(1) promoting the robust exchange of ideas; (2) broadening and refining understanding; (3) fostering innovation and problem-solving; (4) preparing engaged and productive citizens and leaders; [and] (5) enhancing appreciation, respect, and empathy, cross-racial understanding, and breaking down stereotypes.” 567 F. Supp. 3d, at 656.
Although these are commendable goals, they are not sufficiently coherent for purposes of strict scrutiny. At the outset, it is unclear how courts are supposed to measure any of these goals. How is a court to know whether leaders have been adequately “train[ed]“; whether the exchange of ideas is “robust“; or whether “new knowledge” is being developed? Ibid.; 980 F. 3d, at 173-174. Even if these goals could somehow be measured, moreover, how is a court to know when they have been reached, and when the perilous remedy of racial preferences may cease? There is no particular point at which there exists sufficient “innovation and problem-solving,” or
Comparing respondents’ asserted goals to interests we have recognized as compelling further illustrates their elusive nature. In the context of racial violence in a prison, for example, courts can ask whether temporary racial segregation of inmates will prevent harm to those in the prison. See Johnson, 543 U.S., at 512-513. When it comes to workplace discrimination, courts can ask whether a race-based benefit makes members of the discriminated class “whole for [the] injuries [they] suffered.” Franks v. Bowman Transp. Co., 424 U.S. 747, 763 (1976) (internal quotation marks omitted). And in school segregation cases, courts can determine whether any race-based remedial action produces a distribution of students “compar[able] to what it would have been in the absence of such constitutional violations.” Dayton Bd. of Ed. v. Brinkman, 433 U.S. 406, 420 (1977).
Nothing like that is possible when it comes to evaluating the interests respondents assert here. Unlike discerning whether a prisoner will be injured or whether an employee should receive backpay, the question whether a particular mix of minority students produces “engaged and productive citizens,” sufficiently “enhance[s] appreciation, respect, and empathy,” or effectively “train[s] future leaders” is standardless. 567 F. Supp. 3d, at 656; 980 F. 3d, at 173-174. The interests that respondents seek, though plainly worthy, are inescapably imponderable.
Second, respondents’ admissions programs fail to articulate a meaningful connection between the means they employ and the goals they pursue. To achieve the educational benefits of diversity, UNC works to avoid the underrepresentation of minority groups, 567 F. Supp. 3d, at 591-592, and n. 7, while Harvard likewise “guard[s] against inadvertent drop-offs in representation” of certain minority groups from year to year, Brief for Respondent in No. 20-1199, at 16. To accomplish both of those goals, in turn, the universities measure the racial composition of their classes using the following categories: (1) Asian; (2) Native Hawaiian or Pacific Islander; (3) Hispanic; (4) White; (5) African-American; and (6) Native American. See, e.g., 397 F. Supp. 3d, at 137, 178; 3 App. in No. 20-1199, at 1278, 1280-1283; 3 App. in No. 21-707, at 1234-1241. It is far from evident, though, how assigning students to these racial categories and making admissions decisions based on them furthers the educational benefits that the universities claim to pursue.
For starters, the categories are themselves imprecise in many ways. Some of them are plainly overbroad: by grouping together all Asian students, for instance, respondents are apparently uninterested in whether South Asian or East Asian students are adequately represented, so long as there is enough of one to compensate for a lack of the other. Meanwhile other racial categories, such as “Hispanic,” are arbitrary or undefined. See, e.g., M. Lopez, J. Krogstad, & J. Passel, Pew Research Center, Who is Hispanic? (Sept. 15, 2022) (referencing the “long history of changing labels [and] shifting categories . . . reflect[ing] evolving cultural norms about what it means to be Hispanic or Latino in the U. S. today“). And still other
Indeed, the use of these opaque racial categories undermines, instead of promotes, respondents’ goals. By focusing on underrepresentation, respondents would apparently prefer a class with 15% of students from Mexico over a class with 10% of students from several Latin American countries, simply because the former contains more Hispanic students than the latter. Yet “[i]t is hard to understand how a plan that could allow these results can be viewed as being concerned with achieving enrollment that is ‘broadly diverse.‘” Parents Involved, 551 U.S., at 724 (quoting Grutter, 539 U.S., at 329). And given the mismatch between the means respondents employ and the goals they seek, it is especially hard to understand how courts are supposed to scrutinize the admissions programs that respondents use.
The universities’ main response to these criticisms is, essentially, “trust us.” None of the questions recited above need answering, they say, because universities are “owed deference” when using race to benefit some applicants but not others. Brief for University Respondents in No. 21-707, at 39 (internal quotation marks omitted). It is true that our cases have recognized a “tradition of giving a degree of deference to a university‘s academic decisions.” Grutter, 539 U.S., at 328. But we have been unmistakably clear that any deference must exist “within constitutionally prescribed limits,” ibid., and that “deference does not imply abandonment or abdication of judicial review,” Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). Universities may define their missions as they see fit. The Constitution defines ours. Courts may not license separating students on the basis of race without an exceedingly persuasive justification that is measurable and concrete enough to permit judicial review. As this Court has repeatedly reaffirmed, “[r]acial classifications are simply too pernicious to permit any but the most exact connection between justification and classification.” Gratz v. Bollinger, 539 U.S. 244, 270 (2003) (internal quotation marks omitted). The programs at issue here do not satisfy that standard.5
B
The race-based admissions systems that respondents employ also fail to comply with the twin commands of the
First, our cases have stressed that an individual‘s race may never be used against him in the admissions process. Here, however, the First Circuit found that Harvard‘s consideration of race has led to an 11.1% decrease in the number of Asian-Americans admitted to Harvard. 980 F. 3d, at 170, n. 29. And the District Court
Respondents nonetheless contend that an individual‘s race is never a negative factor in their admissions programs, but that assertion cannot withstand scrutiny. Harvard, for example, draws an analogy between race and other factors it considers in admission. “[W]hile admissions officers may give a preference to applicants likely to excel in the Harvard-Radcliffe Orchestra,” Harvard explains, “that does not mean it is a ‘negative’ not to excel at a musical instrument.” Brief for Respondent in No. 20-1199, at 51. But on Harvard‘s logic, while it gives preferences to applicants with high grades and test scores, “that does not mean it is a ‘negative’ to be a student with lower grades and lower test scores.” Ibid. This understanding of the admissions process is hard to take seriously. College admissions are zero-sum. A benefit provided to some applicants but not to others necessarily advantages the former group at the expense of the latter.
Respondents also suggest that race is not a negative factor because it does not impact many admissions decisions. See id., at 49; Brief for University Respondents in No. 21-707, at 2. Yet, at the same time, respondents also maintain that the demographics of their admitted classes would meaningfully change if race-based admissions were abandoned. And they acknowledge that race is determinative for at least some—if not many—of the students they admit. See, e.g., Tr. of Oral Arg. in No. 20-1199, at 67; 567 F. Supp. 3d, at 633. How else but “negative” can race be described if, in its absence, members of some racial groups would be admitted in greater numbers than they otherwise would have been? The “[e]qual protection of the laws is not achieved through indiscriminate imposition of inequalities.” Shelley, 334 U.S., at 22.6
Respondents’ admissions programs are infirm for a second reason as well. We have long held that universities may not operate their admissions programs on the “belief that minority students always (or even consistently) express some characteristic minority viewpoint on any issue.” Grutter, 539 U.S., at 333 (internal quotation marks omitted). That requirement is found throughout our
Yet by accepting race-based admissions programs in which some students may obtain
We have time and again forcefully rejected the notion that government actors may intentionally allocate preference to those “who may have little in common with one another but the color of their skin.” Shaw, 509 U.S., at 647. The entire point of the
“One of the principal reasons race is treated as a forbidden classification is that it demeans the dignity and worth of a person to be judged by ancestry instead of by his or her own merit and essential qualities.” Rice, 528 U.S., at 517. But when a university admits students “on the basis of race, it engages in the offensive and demeaning assumption that [students] of a particular race, because of their race, think alike,” Miller v. Johnson, 515 U.S. 900, 911-912 (1995) (internal quotation marks omitted)—at the very least alike in the sense of being different from nonminority students. In doing so, the university furthers “stereotypes that treat individuals as the product of their race, evaluating their thoughts and efforts—their very worth as citizens—according to a criterion barred to the Government by history and the Constitution.” Id., at 912 (internal quotation marks omitted). Such stereotyping can only “cause[] continued hurt and injury,” Edmonson, 500 U.S., at 631, contrary as it is to the “core purpose” of the
C
If all this were not enough, respondents’ admissions programs also lack a “logical end point.” Grutter, 539 U.S., at 342.
Respondents and the Government first suggest that respondents’ race-based admissions programs will end when, in their absence, there is “meaningful representation and meaningful diversity” on college campuses. Tr. of Oral Arg. in No. 21-707, at 167. The metric of meaningful representation, respondents assert, does not involve any “strict numerical benchmark,” id., at 86; or “precise number or percentage,” id., at 167; or “specified percentage,” Brief for Respondent in No. 20-1199, at 38 (internal quotation marks omitted). So what does it involve?
Numbers all the same. At Harvard, each full committee meeting begins with a discussion of “how the breakdown of the class compares to the prior year in terms of racial identities.” 397 F. Supp. 3d, at 146. And “if at some point in the admissions process it appears that a group is notably underrepresented or has suffered a dramatic drop off relative to the prior year, the Admissions Committee may decide to give additional attention to applications from students within that group.” Ibid.; see also id., at 147 (District Court finding that Harvard uses race to “trac[k] how
The results of the Harvard admissions process reflect this numerical commitment. For the admitted classes of 2009 to 2018, black students represented a tight band of 10.0%-11.7% of the admitted pool. The same theme held true for other minority groups:
| African-American Share of Class | Hispanic Share of Class | Asian-American Share of Class | |
|---|---|---|---|
| Class of 2009 | 11% | 8% | 18% |
| Class of 2010 | 10% | 10% | 18% |
| Class of 2011 | 10% | 10% | 19% |
| Class of 2012 | 10% | 9% | 19% |
| Class of 2013 | 10% | 11% | 17% |
| Class of 2014 | 11% | 9% | 20% |
| Class of 2015 | 12% | 11% | 19% |
| Class of 2016 | 10% | 9% | 20% |
| Class of 2017 | 11% | 10% | 20% |
| Class of 2018 | 12% | 12% | 19% |
Brief for Petitioner in No. 20-1199 etc., p. 23. Harvard‘s focus on numbers is obvious.7
UNC‘s admissions program operates similarly. The University frames the challenge it faces as “the admission and enrollment of underrepresented minorities,” Brief for University Respondents in No. 21-707, at 7, a metric that turns solely on whether a group‘s “percentage enrollment
The problem with these approaches is well established. “[O]utright racial balancing” is “patently unconstitutional.” Fisher I, 570 U.S., at 311 (internal quotation marks omitted). That is so, we have repeatedly explained, because “[a]t the heart of the Constitution‘s guarantee of equal protection lies the simple command that the Government must treat citizens as individuals, not as simply components of a racial, religious, sexual or national class.” Miller, 515 U.S., at 911 (internal quotation marks omitted). By promising to terminate their use of race only when some rough percentage of various racial groups is admitted, respondents turn that principle on its head. Their admissions programs “effectively assure[] that race will always be relevant . . . and that the ultimate goal of eliminating” race as a criterion “will never be achieved.” Croson, 488 U.S., at 495 (internal
quotation marks omitted).
Respondents’ second proffered end point fares no better. Respondents assert that universities will no longer need to engage in race-based admissions when, in their absence, students nevertheless receive the educational benefits of diversity. But as we have already explained, it is not clear how a court is supposed to determine when stereotypes have broken down or “productive citizens and leaders” have been created. 567 F. Supp. 3d, at 656. Nor is there any way to know whether those goals would adequately be met in the absence of a race-based admissions program. As UNC itself acknowledges, these “qualitative standard[s]” are “difficult to measure.” Tr. of Oral Arg. in No. 21-707, at 78; but see Fisher II, 579 U. S., at 381 (requiring race-based admissions programs to operate in a manner that is “sufficiently measurable“).
Third, respondents suggest that race-based preferences must be allowed to continue for at least five more years, based on the Court‘s statement in Grutter that it “expect[ed] that 25 years from now, the use of racial preferences will no longer be necessary.” 539 U. S., at 343. The 25-year mark articulated in Grutter, however, reflected only that Court‘s view that race-based preferences would, by 2028, be unnecessary to ensure a requisite level of racial diversity on college campuses. Ibid. That expectation was oversold. Neither Harvard nor UNC believes that race-based admissions will in fact be unnecessary in five years, and both universities thus expect to continue using race as a criterion well beyond the time limit that Grutter suggested. See Tr. of Oral Arg. in No. 20-1199, at 84-85; Tr. of Oral Arg. in No. 21-707, at 85-86. Indeed, the high school applicants that Harvard and UNC will evaluate this fall using their race-based admissions systems are expected to graduate in 2028-25 years after Grutter was decided.
Finally, respondents argue that their programs need not have an end point at all because they frequently review them to determine whether they remain necessary. See Brief for Respondent in No. 20-1199, at 52; Brief for University Respondents in No. 21-707, at 58-59. Respondents point to language in Grutter that, they contend, permits “the durational requirement [to] be met” with “periodic reviews to determine
Here, however, Harvard concedes that its race-based admissions program has no end point. Brief for Respondent in No. 20-1199, at 52 (Harvard “has not set a sunset date” for its program (internal quotation marks omitted)). And it acknowledges that the way it thinks about the use of race in its admissions process “is the same now as it was” nearly 50 years ago. Tr. of Oral Arg. in No. 20-1199, at 91. UNC‘s race-based admissions program is likewise not set to expire any time soon-nor, indeed, any time at all. The University admits that it “has not set forth a proposed time period in which it believes it cаn end all race-conscious admissions practices.” 567 F. Supp. 3d, at 612. And UNC suggests that it might soon use race to a greater extent than it currently does. See Brief for University Respondents in No. 21-707, at 57. In short, there is no reason to believe that respondents will-even acting in good faith-comply with the
V
The dissenting opinions resist these conclusions. They would instead uphold respondents’ admissions programs based on their view that the
The dissents’ interpretation of the
The Court soon adopted Justice Powell‘s analysis as its own. In the years after Bakke, the Court repeatedly held that ameliorating societal discrimination does not constitute a compelling interest that justifies race-based state action. “[A]n effort to alleviate the effects of societal discrimination is not a compelling interest,” we said plainly in Hunt, a 1996 case about the
The dissents here do not acknowledge any of this. They fail to cite Hunt. They fail to cite Croson. They fail to mention that the entirety of their analysis of the
The dissents are no more faithful to our precedent on race-based admissions. To hear the principal dissent tell it, Grutter blessed such programs indefinitely, until “racial inequality will end.” Post, at 54 (opinion of SOTOMAYOR, J.). But Grutter did no such thing. It emphasized-not once or twice, but at least six separate times-that race-based ad-missions programs “must have reasonable durational limits” and that their “deviation from the norm of equal treatment” must be “a temporary matter.” 539 U. S., at 342. The Court also disclaimed “[e]nshrining a permanent justification for racial preferences.” Ibid. Yet the justification for race-based admissions that the dissent latches on to is just that-unceasing.
The principal dissent‘s reliance on Fisher II is similarly mistaken. There, by a 4-to-3 vote, the Court upheld a “sui generis” race-based admissions program used by the University of Texas, 579 U. S., at 377, whose “goal” it was to enroll a “critical mass” of certain minority students, Fisher I, 570 U. S., at 297. But neither Harvard nor UNC claims to be using the critical mass concept-indeed, the universities admit they do not even know what it means. See 1 App. in No. 21-707, at 402 (“[N]o one has directed anybody to achieve a critical mass, and I‘m not even sure we would know what it is.” (testimony of UNC administrator)); 3 App. in No. 20-1199, at 1137-1138 (similar testimony from Harvard administrator).
Fisher II also recognized the “enduring challenge” that race-based admissions systems place on “the constitutional promise of equal treatment.” 579 U. S., at 388. The Court thus reaffirmed the “continuing obligation” of universities “to satisfy the burden of strict scrutiny.” Id., at 379. To drive the point home, Fisher II limited itself just as Grutter
The principal dissent wrenches our case law from its context, going to lengths to ignore the parts of that law it does not like. The serious reservations that Bakke, Grutter, and Fisher had about racial preferences go unrecognized. The unambiguous requirements of the
Most troubling of all is what the dissent must make these omissions to defend: a judiciary that picks winners and losers based on the color of their skin. While the dissent would certainly not permit university programs that discriminated against black and Latino applicants, it is perfectly willing to let the programs here continue. In its view, this Court is supposed to tell state actors when they have picked the right races to benefit. Separate but equal is “inherently unequal,” said Brown. 347 U. S., at 495 (emphasis added). It depends, says the dissent. That is a remarkable view of the judicial role-remarkably wrong. Lost in the false pretense of judicial humility that the dissent espouses is a claim to power so radical, so destructive, that it required a Second Founding to undo. “Justice Harlan knew better,” one of the dissents decrees. Post, at 5 (opinion of JACKSON, J.). Indeed he did:
“[I]n view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens.” Plessy, 163 U. S., at 559 (Harlan, J., dissenting).
VI
For the reasons provided above, the Harvard and UNC admissions programs cannot be reconciled with the guarantees of the
Many universities have for too long done just the opposite. And in doing so, they have concluded, wrongly, that the touchstone of an individual‘s identity is not challenges bested, skills built, or lessons learned but the color of their skin. Our constitutional history does not tolerate that choice.
The judgments of the Court of Appeals for the First Circuit and of the District Court for the Middle District of North Carolina are reversed.
It is so ordered.
JUSTICE JACKSON took no part in the consideration or decision of the case in No. 20-1199.
JUSTICE THOMAS, concurring.
In the wake of the Civil War, the country focused its attention on restoring the Union and establishing the legal status of newly freed slaves. The Constitution was amended to abolish slavery and proclaim that all persons born in the United States are citizens, entitled to the privilеges or immunities of citizenship and the equal protection of the laws.
This Court‘s commitment to that equality principle has ebbed and flowed over time. After forsaking the principle for decades, offering a judicial imprimatur to segregation and ushering in the Jim Crow era, the Court finally corrected course in Brown v. Board of Education, 347 U. S. 483 (1954), announcing that primary schools must either desegregate with all deliberate speed or else close their doors. See also Brown v. Board of Education, 349 U. S. 294 (1955) (Brown II). It then pulled back in Grutter v. Bollinger, 539 U. S. 306 (2003), permitting universities to discriminate based on race in their admissions process (though only temporarily) in order to achieve alleged “educational benefits of diversity.” Id., at 319. Yet, the Constitution continues to embody a simple truth: Two discriminatory wrongs cannot make a right.
I wrote separately in Grutter, explaining that the use of race in higher education
Because the Court today applies genuine strict scrutiny to the race-conscious admissions policies employed at Harvard and the University of North Carolina (UNC) and finds that they fail that searching review, I join the majority opinion in full. I write separately to offer an originalist defense of the colorblind Constitution; to explain further the flaws of the Court‘s Grutter jurisprudence; to clarify that all forms of discrimination based on race-including so-called affirmative action-are prohibited under the Constitution; and to emphasize the pernicious effects of all such discrimination.
I
In the 1860s, Congress proposed and the States ratified the
I do not contend that all of the individuals who put forth and ratified the
This was Justice Harlan‘s view in his lone dissent in Plessy, where he observed that “[o]ur Constitution is color-blind.” 163 U. S., at 559. It was the view of the Court in Brown, which rejected “any authority . . . to use race as a factor in affording educational opportunities.” Parents Involved in Community Schools v. Seattle School Dist. No. 1, 551 U. S. 701, 747 (2007). And, it is the view adopted in the Court‘s opinion today, requiring “the absolute equality of all citizens” under the law. Ante, at 10 (internal quotation marks omitted).
A
In its 1864 election platform, the Republican Party pledged to amend the Constitution to accomplish the “utter and complete extirpation” of slavery from “the soil of the Republic.” 2 A. Schlesinger, History of U. S. Political Parties 1860-1910, p. 1303
It quickly became clear, however, that further amendment would be necessary to safeguard that goal. Soon after the
Congress responded with the landmark Civil Rights Act of 1866, 14 Stat. 27, in an attempt to pre-empt the Black Codes. The 1866 Act promised such a sweeping form of equality that it would lead many to say that it exceeded the scope of Congress’ authority under the
“Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States; and such citizens, of every race and color, without regard to any previous condition of slavery or involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall have the same right, in every State and Territory in the United States, to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens, and shall be subject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom, to the contrary notwithstanding.”
The text of the provision left no doubt as to its aim: All persons born in the United States were equal citizens entitled to the same rights and subject to the same penalties as white citizens in the categories enumerated. See M. McConnell, Originalism and the Desegregation Decisions, 81 Va. L. Rev. 947, 958 (1995) (“Note that the bill neither forbade racial discrimination generally nor did it guarantee particular rights to all persons. Rather, it required an equality in certain specific rights“). And, while the 1866 Act used the rights of
The 1866 Act‘s evolution further highlights its rule of equality. To start, Dred Scott v. Sandford, 19 How. 393 (1857), had previously held that blacks “were not regarded as a portion of the people or citizens of the Government” and “had no rights which the white man was bound to respect.” Id., at 407, 411. The Act, however, would effectively overrule Dred Scott and ensure the equality that had been promised to blacks. But the Act went further still. On January 29, 1866, Senator Lyman Trumbull, the bill‘s principal sponsor in the Senate, proposed text stating that “all persons of African descent born in the United States are hereby declared to be citizens.” Cong. Globe, 39th Cong., 1st Sess., 474. The following day, Trumbull revised his proposal, removing the reference to “African descent” and declaring more broadly that “all persons born in the United States, and not subject to any foreign Power,” are “citizens of the United States.” Id., at 498.
“In the years before the
Trumbull and most of the Act‘s other supporters identified the
But opponents argued that Congress’ authority did not sweep so broadly. President Andrew Johnson, for example, contended that Congress lacked authority to pass the measure, seizing on the breadth of the citizenship text and emphasizing state authority over matters of state citizenship. See S. Doc. No. 31, 39th Cong., 1st Sess., 1, 6 (1866) (Johnson veto message). Consequently, “doubts about the constitutional authority conferred by that measure led supporters to supplement their
B
Critically, many of those who believed that Congress lacked the authority to enact the 1866 Act also supported the principle of racial equality. So, almost immediately following the ratification of the
Discussion of Bingham‘s initial draft was later postponed in the House, but the Joint Committee on Reconstruction continued its work. See 2 K. Lash, The Reconstruction Amendments 8 (2021). In April, Representative Thaddeus Stevens proposed to the Joint Committee an amendment that began, “[n]o discrimination shall be made by any State nor by the United States as to the civil rights of persons because of race, color, or previous condition of servitude.” S. Doc. No. 711, 63d Cong., 1st Sess., 31-32 (1915) (reprinting the Journal of the Joint Committee on Reconstruction for the Thirty-Ninth Congress). Stevens’ proposal was later revised to read as follows: ““No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.” Id., at 39. This revised text was submitted to the full House on April 30, 1866. Cong. Globe, 39th Cong., 1st Sess., at 2286-2287. Like the eventual first section of the
Stevens explained that the draft was intended to “allo[w] Congress to correct the unjust legislation of the States, so far that the law which operates upon one man shall operate equally upon all.” Id., at 2459. Moreover, Stevens’ later statements indicate that he did not believe there was a
The proposal passed the House by a vote of 128 to 37. Id., at 2545.
Senator Jacob Howard introduced the proposed Amendment in the Senate, powerfully asking, “Ought not the time to be now passed when one measure of justice is to be meted out to a member of one caste while another and a different measure is meted out to the member of another caste, both castes being alike citizens of the United States, both bound to obey the same laws, to sustain the burdens of the same Government, and both equally responsible to justice and to God for the deeds done in the body?” Id., at 2766. In keeping with this view, he proposed an introductory sentence, declaring that ““all persons born in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the States wherein they reside.” Id., at 2869. This text, the Citizenship Clause, was the final missing element of what would ultimately become
The proposal was approved in the Senate by a vote of 33 to 11. Id., at 3042. The House then reconciled differences between the two measures, approving the Senate‘s changes by a vote of 120 to 32. See id., at 3149. And, in June 1866, the amendment was submitted to the States for their consideration and ratification. Two years later, it was ratified by the requisite number of States and became the
“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
§1 .
As enacted, the text of the
The drafters and ratifiers of the
U. S. Brown Reargument Brief 65 (citation omitted). For example, the Pennsylvania debate suggests that the
The most commonly held view today-consistent with the rationale repeatedly invoked during the congressional debates, see, e.g., Cong. Globe, 39th Cong., 1st Sess., at 2458-2469-is that the Amendment was designed to remove any doubts regarding Congress’ authority to enact the Civil Rights Act of 1866 and to establish a nondiscrimination rule that could not be repealed by future Congresses. See, e.g., J. Harrison, Reconstructing the Privileges or Immunities Clause, 101 Yale L. J. 1385, 1388 (1992) (noting that the “primary purpose” of the
Consistent with the Civil Rights Act of 1866‘s aim, the Amendment definitively overruled Chief Justice Taney‘s opinion in Dred Scott that blacks “were not regarded as a portion of the people or citizens of the Government” and “had no rights which the white man was bound to respect.” 19 How., at 407, 411. And, like the 1866 Act, the Amendment also clarified that American citizenship conferred
rights not just against the Federal Government but also the government of the citizen‘s State of residence. Unlike the
C
In the period closely following the
The
For example, they asserted that “free government demands the abolition of all distinctions founded on color and race.” 2 Cong. Rec. 4083 (1874). And, they submitted that “[t]he time has come when all distinctions that grew out of slavery ought to disappear.” Cong. Globe, 42d Cong., 2d Sess., 3193 (1872) (“[A]s long as you have distinctions and discriminations between white and black in the enjoyment of legal rights and privileges[,] you will have discontent and parties divided between black and white“). Leading Republican Senator Charles Sumner compellingly argued that “any rule excluding a man on account of his color is an indignity, an insult, and a wrong.” Id., at 242; see also ibid. (“I insist that by the law of the land all persons without distinction of color shall be equal before the law“). Far from conceding that segregation would be perceived as inoffensive if race roles were reversed, he declared that “[t]his is plain oppression, which you . . . would feel keenly were it directed against you or your child.” Id., at 384. He went on to paraphrase the English common-law rule to which he subscribed: “[The law] makes no discrimination on account of color.” Id., at 385.
Others echoed this view. Representative John Lynch declared that “[t]he duty of the law-maker is to know no race, no color, no religion, no nationality, except to prevent distinctions on any of these grounds, so far as the law is concerned.” 3 Cong. Rec. 945 (1875). Senator John Sherman believed that the route to peace was to “[w]ipe out all legal discriminations between white and black [and] make no distinction between black and white.” Cong. Globe, 42d Cong., 2d Sess., at 3193. And, Senator Henry Wilson sought to “make illegal all distinctions on account of color” because “there should be no distinction recognized by the laws of the land.” Id., at 819; see also 3 Cong. Rec., at 956 (statement of Rep. Cain) (“[M]en [are] formed of God equally. . . . The civil-rights bill simply declares this: that there shall be no discriminations between citizens of this land so far as the laws of the land are concerned“). The view of the Legislature was clear: The Constitution “neither knows nor tolerates classes among citizens.” Plessy, 163 U. S., at 559 (Harlan, J., dissenting).
D
The earliest Supreme Court opinions to interpret the
In the Slaughter-House Cases, 16 Wall. 36 (1873), the Court identified the “pervading purpose” of the Reconstruction Amendments as “the freedom of the slave race, the security and firm establishment of that freedom, and the protection of the newly-made freeman and citizen from the oppressions of those who had formerly exercised unlimited dominion over him.” Id., at 67–72. Yet, the Court quickly acknowledged that the language of the Amendments did not suggest “that no one else but the negro can share in this protection.” Id., at 72. Rather, “[i]f Mexican peonage or the Chinese coolie labor system shall develop slavery of the Mexican or Chinese race within our territory, [the
Seven years later, the Court relied on the Slaughter-House view to conclude that “[t]he words of the [Fourteenth Amendment . . . contain a necessary implication of a positive immunity, or right, most valuable to the colored race,—the right to exemption from unfriendly legislation against them distinctively as colored.” Strauder v. West Virginia, 100 U. S. 303, 307–308 (1880). The Court thus found that the
This Court‘s view of the
History has vindicated Justice Harlan‘s view, and this Court recently acknowledged that Plessy should have been overruled immediately because it “betrayed our commitment to ‘equality before the law.‘” Dobbs v. Jackson Women‘s Health Organization, 597 U. S. ___, ___ (2022) (slip op., at 44). Nonetheless, and despite Justice Harlan‘s efforts, the era of state-sanctioned segregation persisted for more than a half century.
E
Despite the extensive evidence favoring the colorblind view, as detailed above, it appears increasingly in vogue to embrace an “antisubordination” view of the
Start with the
Several additional federal laws cited by respondents appear to classify based on race, rather than previous condition of servitude. For example, an 1866 law adopted special rules and procedures for the payment of “colored” servicemen in the Union Army to agents who helped them secure bounties, pensions, and other payments that they were due. 14 Stat. 367-368. At
These laws—even if targeting race as such—likely were also constitutionally permissible examples of Government action “undo[ing] the effects of past discrimination in [a way] that do[es] not involve classification by race,” even though they had “a racially disproportionate impact.” Richmond v. J. A. Croson Co., 488 U. S. 469, 526 (1989) (Scalia, J., concurring in judgment) (internal quotation marks omitted). The government can plainly remedy a race-based injury that it has inflicted—though such remedies must be meant to further a colorblind government, not perpetuate racial consciousness. See id., at 505 (majority opinion). In that way, “[r]ace-based government measures during the 1860‘s and 1870‘s to remedy state-enforced slavery were . . . not inconsistent with the colorblind Constitution.” Parents Involved, 551 U. S., at 772, n. 19 (THOMAS, J., concurring).
Moreover, the very same Congress passed both these laws and the unambiguously worded
JUSTICE SOTOMAYOR argues otherwise, pointing to “a number of race-conscious” federal laws passed around the time of the
JUSTICE SOTOMAYOR points also to the
In addition to these federal laws, Harvard also points to two state laws: a South Carolina statute that placed the burden of proof on the defendant when a “colored or black” plaintiff claimed a violation, 1870 S. C. Acts pp. 387-388, and Kentucky legislation that authorized a county superintendent to aid “negro paupers” in Mercer County, 1871 Ky. Acts pp. 273-274. Even if these statutes provided race-based benefits, they do not support respondents’ and JUSTICE SOTOMAYOR‘S view that the
If services had been given only to white persons up to the
Most importantly, however, there was a wide range of federal and state statutes enacted at the time of the
II
Properly understood, our precedents have largely adhered to the
Three aspects of today‘s decision warrant comment: First, to satisfy strict scrutiny, universities must be able to establish an actual link between racial discrimination and educational benefits. Second, those engaged in racial discrimination do not deserve deference with respect to their reasons for discriminating. Third, attempts to remedy past governmental discrimination must be closely tailored to address that particular past governmental discrimination.
A
To satisfy strict scrutiny, universities must be able to establish a compelling reason to racially discriminate. Grutter recognized “only one” interest sufficiently compelling to justify race-conscious admissions programs: the “educational benefits of a
Even in Grutter, the Court failed to clearly define “the educational benefits of a diverse student body.” 539 U. S., at 333. Thus, in the years since Grutter, I have sought to understand exactly how racial diversity yields educational benefits. With nearly 50 years to develop their arguments, neither Harvard nor UNC—two of the foremost research institutions in the world—nor any of their amici can explain that critical link.
Harvard, for example, offers a report finding that meaningful representation of racial minorities promotes several goals. Only one of those goals—“producing new knowledge stemming from diverse outlooks,” 980 F. 3d 157, 174 (CA1 2020)—bears any possible relationship to educational benefits. Yet, it too is extremely vague and offers no indication that, for example, student test scores increased as a result of Harvard‘s efforts toward racial diversity.
More fundamentally, it is not clear how racial diversity, as opposed to other forms of diversity, uniquely and independently advances Harvard‘s goal. This is particularly true because Harvard blinds itself to other forms of applicant diversity, such as religion. See 2 App. in No. 20–1199, pp. 734-743. It may be the case that exposure to different perspectives and thoughts can foster debate, sharpen young minds, and hone students’ reasoning skills. But, it is not clear how diversity with respect to race, qua race, furthers this goal. Two white students, one from rural Appalachia and one from a wealthy San Francisco suburb, may well have more diverse outlooks on this metric than two students from Manhattan‘s Upper East Side attending its most elite schools, one of whom is white and other of whom is black. If Harvard cannot even explain the link between racial diversity and education, then surely its interest in racial diversity cannot be compelling enough to overcome the constitutional limits on race consciousness.
UNC fares no better. It asserts, for example, an interest in training students to “live together in a diverse society.” Brief for University Respondents in No. 21–707, p. 39. This may well be important to a university experience, but it is a social goal, not an educational one. See Grutter, 539 U. S., at 347-348 (Scalia, J., concurring in part and dissenting in part) (criticizing similar rationales as divorced from educational goals). And, again, UNC offers no reason why seeking a diverse society would not be equally supported by admitting individuals with diverse perspectives and backgrounds, rather than varying skin pigmentation.
Nor have amici pointed to any concrete and quantifiable educational benefits of racial diversity. The United States focuses on alleged civic benefits, including “increasing tolerance and decreasing racial prejudice.” Brief for United States as Amicus Curiae 21–22. Yet, when it comes to educational benefits, the Government offers only one study purportedly showing that “college diversity experiences are significantly and positively related to cognitive development” and that “interpersonal interactions with racial diversity are the most strongly related to cognitive development.” N. Bowman, College Diversity Experiences and Cognitive Development: A Meta-Analysis, 80 Rev. Educ. Research 4, 20 (2010). Here again, the link is, at best, tenuous, unspecific, and stereotypical. Other amici assert that diversity (generally) fosters the even-more nebulous values of “creativity” and “innovation,” particularly in graduates’ future workplaces. See, e.g., Brief for Major American Busi- ness Enterprises as Amici Curiae 7–9; Brief for Massachusetts Institute of Technology et al. as Amici Curiae 16–17 (describing experience at IBM). Yet, none of those assertions deals exclusively with racial diversity—as
Of course, even if these universities had shown that racial diversity yielded any concrete or measurable benefits, they would still face a very high bar to show that their interest is compelling. To survive strict scrutiny, any such benefits would have to outweigh the tremendous harm inflicted by sorting individuals on the basis of race. See Cooper v. Aaron, 358 U. S. 1, 16 (1858) (following Brown, “law and order are not here to be preserved by depriving the Negro children of their constitutional rights“). As the Court‘s opinions in these cases make clear, all racial stereotypes harm and demean individuals. That is why “only those measures the State must take to provide a bulwark against anarchy, or to prevent violence, will constitute a pressing public necessity” sufficient to satisfy strict scrutiny today. Grutter, 539 U. S., at 353 (opinion of THOMAS, J.) (internal quotations marks omitted). Cf. Lee v. Washington, 390 U. S. 333, 334 (1968) (Black, J., concurring) (protecting prisoners from violence might justify narrowly tailored discrimination); Croson, 488 U. S., at 521 (opinion of Scalia, J.) (“At least where state or local action is at issue, only a social emergency rising to the level of imminent danger to life and limb . . . can justify [racial discrimination]“). For this reason, “just as the alleged educational benefits of segregation were insufficient to justify racial discrimination [in the 1950s], see Brown v. Board of Education, the alleged educational benefits of diversity cannot justify racial discrimination today.” Fisher I, 570 U. S., at 320 (THOMAS, J., concurring) (citation omitted).
B
The Court also correctly refuses to defer to the universities’ own assessments that the alleged benefits of race-conscious admissions programs are compelling. It instead demands that the “interests [universities] view as compelling” must be capable of being “subjected to meaningful judicial review.” Ante, at 22. In other words, a court must be able to measure the goals asserted and determine when they have been reached. Ante, at 22–24. The Court‘s opinion today further insists that universities must be able to “articulate a meaningful connection between the means they employ and the goals they pursue.” Ante, at 24. Again, I agree. Universities’ self-proclaimed righteousness does not afford them license to discriminate on the basis of race.
In fact, it is error for a court to defer to the views of an alleged discriminator while assessing claims of racial discrimination. See Grutter, 539 U. S., at 362–364 (opinion of THOMAS, J.); see also Fisher I, 570 U. S., at 318-319 (THOMAS, J., concurring); United States v. Virginia, 518 U. S. 515, 551, n. 19 (1996) (refusing to defer to the Virginia Military Institute‘s judgment that the changes necessary to accommodate the admission of women would be too great and characterizing the necessary changes as “manageable“). We would not offer such deference in any other context. In employment discrimination lawsuits under
This judicial skepticism is vital. History has repeatedly shown that purportedly benign discrimination may be pernicious, and discriminators may go to great lengths to hide and perpetuate their unlawful conduct. Take, for example, the university respondents here. Harvard‘s “holistic” admissions policy began in the 1920s when it was developed to exclude Jews. See M. Synnott, The Half-Opened Door: Discrimination and Admission at Harvard, Yale, and Princeton, 1900–1970, pp. 58-59, 61, 69, 73-74 (2010). Based on de facto quotas that Harvard quietly implemented, the proportion of Jews in Harvard‘s freshman class declined from 28% as late as 1925 to just 12% by 1933. J. Karabel, The Chosen: The Hidden History of Admission and Exclusion at Harvard, Yale, and Princeton 172 (2005). During this same period, Harvard played a prominent role in the eugenics movement. According to then-President Abbott Lawrence Lowell, excluding Jews from Harvard would help maintain admissions opportunities for Gentiles and perpetuate the purity оf the Brahmin race—New England‘s white, Protestant upper crust. See D. Okrent, The Guarded Gate 309, and n. * (2019).
UNC also has a checkered history, dating back to its time as a segregated university. It admitted its first black undergraduate students in 1955—but only after being ordered to do so by a court, following a long legal battle in which UNC sought to keep its segregated status. Even then, UNC did not turn on a dime: The first three black students admitted as undergraduates enrolled at UNC but ultimately earned their bachelor‘s degrees elsewhere. See M. Beauregard, Column: The Desegregation of UNC, The Daily Tar Heel, Feb. 16, 2022. To the extent past is prologue, the university respondents’ histories hardly recommend them as trustworthy arbiters of whether racial discrimination is necessary to achieve educational goals.
Of course, none of this should matter in any event; courts have an independent duty to interpret and uphold the Constitution that no university‘s claimed interest may override. See ante, at 26, n. 5. The Court today makes clear that, in the future, universities wishing to discriminate based on race in admissions must articulate and justify a compelling and measurable state interest based on concrete evidence. Given the strictures set out by the Court, I highly doubt any will be able to do so.
C
In an effort to salvage their patently unconstitutional programs, the universities and their amici pivot to argue that the
To start, the case for affirmative action has emphasized a number of rationales over the years, including: (1) restitution to compensate those who have been victimized by past discrimination, (2) fostering “diversity,” (3) facilitating “integration” and the destruction of perceived racial castes, and (4) countering longstanding
The Court refuses to engage in this lexicographic drift, seeing these arguments for what they are: a remedial rationale in disguise. See ante, at 34–35. As the Court points out, the interest for which respondents advocate has been presented to and rejected by this Court many times before. In Regents of University of California v. Bakke, 438 U. S. 265 (1978), the University of California made clear its rationale for the quota system it had established: It wished to “counteract effects of generations of pervasive discrimination” against certain minority groups. Brief for Petitioner, O. T. 1977, No. 76–811, p. 2. But, the Court rejected this distinctly remedial rationale, with Justice Powell adopting in its place the familiar “diversity” interest that appeared later in Grutter. See Bakke, 438 U. S., at 306 (plurality opinion). The Court similarly did not adopt the broad remedial rationale in Grutter; and it rejects it again today. Newly and often minted theories cannot be said to be commanded by our precedents.
Indeed, our precedents have repeatedly and soundly distinguished between programs designed to compensate vic- tims of past governmental discrimination from so-called benign race-conscious measures, such as affirmative action. Croson, 488 U. S., at 504–505; Adarand Constructors, Inc. v. Peña, 515 U. S. 200, 226–227 (1995). To enforce that distinction, our precedents explicitly require that any attempt to compensate victims of past governmental discrimination must be concrete and traceable to the de jure segregated system, which must have some discrete and continuing discriminatory effect that warrants a present remedy. See United States v. Fordice, 505 U. S. 717, 731 (1992). Today‘s opinion for the Court reaffirms the need for such a close remedial fit, hewing to the same line we have consistently drawn. Ante, at 24-25.
Without such guardrails, the
The Court today enforces those limits. And rightly so. As noted above, both Harvard and UNC have a history of racial discrimination. But, neither have even attempted to explain how their current racially discriminatory programs are even remotely traceable to their past discriminatory conduct. Nor could they; the current race-conscious admissions programs take no account of ancestry and, at least for Harvard, likely have the effect of discriminating against some of the very same ethnic groups against which Harvard previously discriminated (i.e., Jews and those who are not part of the white elite). All the while, Harvard and UNC ask us to blind ourselves to the burdens imposed on the millions of innocent applicants denied admission because of their membership in a currently disfavored race.
The Constitution neither commands nor permits such a result. “Purchased at the price of immeasurable human suffering,” the
III
Both experience and logic have vindicated the Constitution‘s colorblind rule and confirmed that the universities’ new narrative cannot stand. Despite the Court‘s hope in Grutter that universities would voluntarily end their race-conscious programs and further the goal of racial equality, the opposite appears increasingly true. Harvard and UNC now forthrightly state that they racially discriminate when it comes to admitting students, arguing that such discrimination is consistent with this Court‘s precedents. And they, along with today‘s dissenters, defend that discrimination as good. More broadly, it is becoming increasingly clear that discrimination on the basis of race—often packaged as “affirmative action” or “equity” programs—are based on the benighted notion “that it is possible to tell when discrimination helps, rather than hurts, racial minorities.” Fisher I, 570 U. S., at 328 (THOMAS, J., concurring).
We cannot be guided by those who would desire less in our Constitution, or by those who would desire more. “The Constitution abhors classifications based on race, not only because those classifications can harm favored races or are based on illegitimate motives, but also because every time the government places citizens on racial registers and
makes race relevant to the provision of burdens or benefits, it demeans us all.” Grutter, 539 U. S., at 353 (opinion of THOMAS, J.).
A
The Constitution‘s colorblind rule reflects one of the core principles upon which our Nation was founded: that “all men are created equal.” Those words featured prominently in our Declaration of Independence and were inspired by a rich tradition of political thinkers, from Locke to Montesquieu, who considered equality to be the
Our Nation did not initially live up to the equality principle. The institution of slavery persisted for nearly a century, and the United States Constitution itself included several provisions acknowledging the practice. The period leading up to our second founding brought these flaws into bold relief and encouraged the Nation to finally make good on the equality promise. As Lincoln recognized, the promise of equality extended to all people—including immigrants and blacks whose ancestors had taken no part in the original founding. See Speech at Chicago, Ill. (July 10, 1858), in 2 The Collected Works of Abraham Lincoln 488-489, 499 (R. Basler ed. 1953). Thus, in Lincoln‘s view, “the natural rights enumerated in the Declaration of Independence” extended to blacks as his “equal,” and “the equal of every living man.” The Lincoln-Douglas Debates 285 (H. Holzer ed. 1993).
As discussed above, the
Of course, even the promise of the second founding took time to materialize. Seeking to perpetuate a segregationist system in the wake of the
“A statute which implies merely a legal distinction between the white and colored races—a distinction which is founded in the color of the two races, and which must always exist so long as white men are distinguished from the other race by color—has no tendency to destroy the legal equality of the two races, or reestablish a state of involuntary servitude.” 163 U. S., at 543.
Such a statement, of course, is precisely antithetical to the notion that all men, regardless of the color of their skin, are born equal and must be treated equally under the law. Only one Member of the Court adhered to the equality principle; Justice Harlan, standing alone in dissent, wrote: “Our constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law.” Id., at 559. Though Justice Harlan rightly predicted that Plessy would, “in time, prove to be quite as pernicious as the decision made . . . in the Dred Scott case,” the Plessy rule persisted for over a half century. Ibid. While it remained in force, Jim Crow laws prohibiting blacks from entering or utilizing public facilities such as schools, libraries, restaurants, and theaters sprang up across the South.
This Court rightly reversed course in Brown v. Board of Education. The Brown appellants—those challenging segregated schools—embraced the equality principle, arguing that “[a] racial criterion is a constitutional irrelevance, and is not saved from condemnation even though dictated by a sincere desire to avoid the possibility of violence or race friction.” Brief for Appellants in Brown v. Board of Education, O. T. 1952, No. 1, p. 7 (citation omitted).6 Embracing that view, the Court held that “in the field of public education the doctrine of ‘separate but equal’ has no place” and “[s]eparate educational facilities are inherently unequal.” Brown, 347 U. S., at 493, 495. Importantly, in reaching this conclusion, Brown did not rely on the particular qualities of the Kansas schools. The mere separation of students on the basis of race—the “segregation complained of,” id., at 495 (emphasis added)—constituted a constitutional injury. See ante, at 12 (“Separate cannot be equal“).
Just a few years later, the Court‘s application of Brown made explicit what was already forcefully implied: “[O]ur decisions have foreclosed any possible contention that . . . a statute or regulation” fostering segregation in public facilities “may stand consistently with the
Today, our precedents place this principle beyond question. In assessing racial segregation during a race-motivated prison riot, for example, this Court applied strict scrutiny without requiring an allegation of
B
Respondents and the dissents argue that the universities’ race-conscious admissions programs ought to be permitted because they accomplish positive social goals. I would have thought that history had by now taught a “greater humility” when attempting to “distinguish good from harmful uses of racial criteria.” Id., at 742 (plurality opinion). From the Black Codes, to discriminatory and destructive social welfare programs, to discrimination by individual government actors, bigotry has reared its ugly head time and again. Anyone who today thinks that some form of racial discrimination will prove “helpful” should thus tread cautiously, lest racial discriminators succeed (as they once did) in using such language to disguise more invidious motives.
Arguments for the benefits of race-based solutions have proved pernicious in segregationist circles. Segregated universities once argued that race-based discrimination was needed “to preserve harmony and peace and at the same time furnish equal education to both groups.” Brief for Respondents in Sweatt v. Painter, O. T. 1949, No. 44, p. 94; see also id., at 79 (“[T]he mores of racial relationships are such as to rule out, for the present at least, any possibility of admitting white persons and Negroes to the same institutions“). And, parties consistently attempted to convince the Court that the time was not right to disrupt segregationist systems. See Brief for Appellees in McLaurin v. Oklahoma State Regents for Higher Ed., O. T. 1949, No. 34, p. 12 (claiming that a holding rejecting separate but equal would “necessarily result . . . [i]n the abandoning of many of the state‘s existing educational establishments” and the “crowding of other such establishments“); Brief for State of Kansas on Reargument in Brown v. Board of Education, O. T. 1953, No. 1, p. 56 (“We grant that segregation may not be the ethical or political ideal. At the same time we recognize that practical considerations may prevent realization of the ideal“); Tr. of Oral Arg. in Davis v. School Bd. of Prince Edward Cty., O. T. 1954, No. 3, p. 208 (“We are up against the proposition: What does the Negro profit if he procures an immediate detailed decree from this Court now and then impairs or mars or destroys the public school system in Prince Edward County“). Litigants have even gone so far as to offer straight-faced arguments that segregation has practical benefits. Brief for Respondents in Sweatt v. Painter, at 77-78 (requesting deference to a state law, observing that “the necessity for such separation [of the races] still exists in the interest of public welfare, safety, harmony, health, and recreation . . .” and remarking on the reasonableness of the position); Brief for Appellees in Davis v. County School Bd. of Prince Edward Cty., O. T. 1952, No. 3, p. 17 (“Virginia has established segregation in certain fields as a part of her public policy to prevent violence and reduce resentment. The result, in the view of an overwhelming Virginia majority, has been to improve the relationship between the different races“); id., at 25 (“If segregation be stricken down, the
“Indeed, if our history has taught us anything, it has taught us to beware of elites bearing racial theories.” Parents Involved, 551 U. S., at 780-781 (THOMAS, J., concurring). We cannot now blink reality to pretend, as the dissents urge, that affirmative action should be legally permissible merely because the experts assure us that it is “good” for black students. Though I do not doubt the sincerity of my dissenting colleagues’ beliefs, experts and elites have been wrong before—and they may prove to be wrong again. In part for this reason, the
C
Even taking the desire to help on its face, what initially seems like aid may in reality be a burden, including for the very people it seeks to assist. Take, for example, the college admissions policies here. “Affirmative action” policies do nothing to increase the overall number of blacks and Hispanics able to access a college education. Rather, those racial policies simply redistribute individuals among institutions of higher learning, placing some into more competitive institutions than they otherwise would have attended. See T. Sowell, Affirmative Action Around the World 145-146 (2004). In doing so, those policies sort at least some blacks and Hispanics into environments where they are less likely to succeed academically relative to their peers. Ibid. The resulting mismatch places “many blacks and Hispanics who likely would have excelled at less elite schools . . . in a position where underperformance is all but inevitable because they are less academically prepared than the white and Asian students with whom they must compete.” Fisher I, 570 U. S., at 332 (THOMAS, J., concurring).
It is self-evident why that is so. As anyone who has labored over an algebra textbook has undoubtedly discovered, academic advancement results from hard work and practice, not mere declaration. Simply treating students as though their grades put them at the top of their high school classes does nothing to enhance the performance level of those students or otherwise prepare them for competitive college environments. In fact, studies suggest that large racial preferences for black and Hispanic applicants have led to a disproportionately
These policies may harm even those who succeed academically. I have long believed that large racial preferences in college admissions “stamp [blacks and Hispanics] with a badge of inferiority.” Adarand, 515 U. S., at 241 (opinion of THOMAS, J.). They thus “tain[t] the accomplishments of all those who are admitted as a result of racial discrimination” as well as “all those who are the same race as those admitted as a result of racial discrimination” because “no one can distinguish those students from the ones whose race played a role in their admission.” Fisher I, 570 U. S., at 333 (opinion of THOMAS, J.). Consequently, “[w]hen blacks” and, now, Hispanics “take positions in the highest places of government, industry, or academia, it is an open question . . . whether their skin color played a part in their advancement.” Grutter, 539 U. S., at 373 (THOMAS, J., concurring). “The question itself is the stigma—because either racial discrimination did play a role, in which case the person may be deemed ‘otherwise unqualified,’ or it did not, in which case asking the question itself unfairly marks those . . . who would succeed without discrimination.” Ibid.
Yet, in the face of those problems, it seems increasingly clear that universities are focused on “aesthetic” solutions unlikely to help deserving members of minority groups. In fact, universities’ affirmative action programs are a particularly poor use of such resources. To start, these programs are overinclusive, providing the same admissions bump to a wealthy black applicant given every advantage in life as to a black applicant from a poor family with seemingly insurmountable barriers to overcome. In doing so, the programs may wind up helping the most well-off members of minority races without meaningfully assisting those who struggle with real hardship. Simultaneously, the programs risk
D
Finally, it is not even theoretically possible to “help” a certain racial group without causing harm to members of other racial groups. “It should be obvious that every racial classification helps, in a narrow sense, some races and hurts others.” Adarand, 515 U. S., at 241, n. * (opinion of THOMAS, J.). And, even purportedly benign race-based discrimination has secondary effects on members of other races. The antisubordination view thus has never guided the Court‘s analysis because “whether a law relying upon racial taxonomy is ‘benign’ or ‘malign’ either turns on ‘whose ox is gored’ or on distinctions found only in the eye of the beholder.” Ibid. (citations and some internal quotation marks omitted). Courts are not suited to the impossible task of determining which racially discriminatory programs are helping which members of which races—and whether those benefits outweigh the burdens thrust onto other racial groups.
As the Court‘s opinion today explains, the zero-sum nature of college admissions—where students compete for a finite number of seats in each school‘s entering class—aptly demonstrates the point. Ante, at 27.9 Petitioner here represents Asian Americans who allege that, at the margins, Asian applicants were denied admission because of their race. Yet, Asian Americans can hardly be described as the beneficiaries of historical racial advantages. To the contrary, our Nation‘s first immigration ban targeted the Chinese, in part, based on “worker resentment of the low wage rates accepted by Chinese workers.” U. S. Commission on Civil Rights, Civil Rights Issues Facing Asian Americans in the 1990s, p. 3 (1992) (Civil Rights Issues); Act of May 6, 1882, ch. 126, 22 Stat. 58-59.
In subsequent years, “strong anti-Asian sentiments in the Western States led to the adoption of many discriminatory laws at the State and local levels, similar to those aimed at blacks in the South,” and “segregation in public facilities, including schools, was quite common until after the Second World War.” Civil Rights Issues 7; see also S. Hinnershitz, A Different Shade of Justice: Asian American Civil Rights in the South 21 (2017) (explaining that while both Asians and blacks have at times fought “against similar forms of discrimination,” “[t]he issues of citizenship and
Also, following the Japanese attack on the U. S. Navy base at Pearl Harbor, Japanese Americans in the American West were evacuated and interned in relocation camps. See Exec. Order No. 9066, 3 CFR 1092 (1943). Over 120,000 were removed to camps beginning in 1942, and the last camp that held Japanese Americans did not close until 1948. National Park Service, Japanese American Life During Internment, www.nps.gov/articles/japanese-american-internment-archeology.htm. In the interim, this Court endorsed the practice. Korematsu v. United States, 323 U. S. 214 (1944).
Given the history of discrimination against Asian Americans, especially their history with segregated schools, it seems particularly incongruous to suggest that a past history of segregationist policies toward blacks should be remedied at the expense of Asian American college applicants.10 But this problem is not limited to Asian Americans; more broadly, universities’ discriminatory policies burden millions of applicants who are not rеsponsible for the racial discrimination that sullied our Nation‘s past. That is why, “[i]n the absence of special circumstances, the remedy for de jure segregation ordinarily should not include educational programs for students who were not in school (or even alive) during the period of segregation.” Jenkins, 515 U. S., at 137 (THOMAS, J., concurring). Today‘s 17-year-olds, after all, did not live through the Jim Crow era, enact or enforce segregation laws, or take any action to oppress or enslave the victims of the past. Whatever their skin color, today‘s youth simply are not responsible for instituting the segregation of the 20th century, and they do not shoulder the moral debts of their ancestors. Our Nation should not punish today‘s youth for the sins of the past.
IV
Far from advancing the cause of improved race relations in our Nation, affirmative action highlights our racial differences with pernicious effect. In fact, recent history reveals a disturbing pattern: Affirmative action policies appear to have prolonged the asserted need for racial discrimination. Parties and amici in these cases report that, in the nearly 50 years since Bakke, 438 U. S. 265, racial progress on campuses adopting affirmative action admissions policies has stagnated, including making no meaningful progress toward a colorblind goal since Grutter. See ante, at 21-22. Rather, the legacy of Grutter appears to be ever increasing and strident demands for yet more racially oriented solutions.
A
It has become clear that sorting by race does not stop at the admissions office. In
Meanwhile, these discriminatory policies risk creating new prejudices and allowing old ones to fester. I previously observed that “[t]here can be no doubt” that discriminatory affirmative action policies “injur[e] white and Asian applicants who are denied admission because of their race.” Fisher I, 570 U. S., at 331 (concurring opinion). Petitioner here clearly demonstrates this fact. Moreover, “no social science has disproved the notion that this discrimination ‘engenders attitudes of superiority or, alternatively, provokes resentment among those who believe that they have been wronged by the government‘s use of race.‘” Grutter, 539 U. S., at 373 (opinion of THOMAS, J.) (quoting Adarand, 515 U. S., at 241 (opinion of THOMAS, J.) (alterations omitted)). Applicants denied admission to certain colleges may come to believe—accurately or not—that their race was responsible for their failure to attain a life-long dream. These individuals, and others who wished for their success, may resent members of what they perceive to be favored races, believing that the successes of those individuals are unearned.
What, then, would be the endpoint of these affirmative action policies? Not racial harmony, integration, or equality under the law. Rather, these policies appear to be leading to a world in which everyone is defined by their skin color, demanding ever-increasing entitlements and preferences on that basis. Not only is that exactly the kind of factionalism that the Constitution was meant to safeguard against, see The Federalist No. 10 (J. Madison), but it is a factionalism based on ever-shifting sands.
That is because race is a social construct; we may each identify as members of particular races for any number of reasons, having to do with our skin color, our heritage, or our cultural identity. And, over time, these ephemeral, socially constructed categories have often shifted. For example, whereas universities today would group all white applicants together, white elites previously sought to exclude Jews and other white immigrant groups from higher education. In fact, it is impossible to look at an individual and know definitively his or her race; some who would consider themselves black, for example, may be quite fair skinned. Yet, university admissions policies ask individuals to identify themselves as belonging to one of only a few reductionist racial groups. With boxes for only “black,” “white,” “Hispanic,”
But, under our Constitution, race is irrelevant, as the Court acknowledges. In fact, all racial categories are little more than stereotypes, suggesting that immutable characteristics somehow conclusively determine a person‘s ideology, beliefs, and abilities. Of course, that is false. See ante, at 28-30 (noting that the Court‘s Equal Protection Clause jurisprudence forbids such stereotyping). Members of the same race do not all share the exact same experiences and viewpoints; far from it. A black person from rural Alabama surely has different experiences than a black person from Manhattan or a black first-generation immigrant from Nigeria, in the same way that a white person from rural Vermont has a different perspective than a white person from Houston, Texas. Yet, universities’ racial policies suggest that racial identity “alone constitutes the being of the race or the man.” J. Barzun, Race: A Study in Modern Superstition 114 (1937). That is the same naked racism upon which segregation itself was built. Small wonder, then, that these policies are leading to increasing racial polarization and friction. This kind of reductionist logic leads directly to the “disregard for what does not jibe with preconceived theory,” providing a “cloa[k] to conceal complexity, argumen[t] to the crown for praising or damning without the trouble of going into details“—such as details about an individual‘s ideas or unique background. Ibid. Rather than forming a more pluralistic society, these policies thus strip us of our individuality and undermine the very diversity of thought that universities purport to seek.
The solution to our Nation‘s racial problems thus cannot come from policies grounded in affirmative action or some other conception of equity. Racialism simply cannot be undone by different or more racialism. Instead, the solution announced in the second founding is incorporated in our Constitution: that we are all equal, and should be treated equally before the law without regard to our race. Only that promise can allow us to look past our differing skin colors and identities and see each other for what we truly are: individuals with unique thoughts, perspectives, and goals, but with equal dignity and equal rights under the law.
B
JUSTICE JACKSON has a different view. Rather than focusing on individuals as individuals, her dissent focuses on the historical subjugation of black Americans, invoking statistical racial gaps to argue in favor of defining and categorizing individuals by their race. As she sees things, we are all inexorably trapped in a fundamentally racist society, with the original sin of slavery and the historical subjugation of black Americans still determining our lives today. Post, at 1-26 (dissenting opinion). The panacea, she counsels, is to unquestioningly accede to the view of elite experts and reallocate society‘s riches by racial means as necessary to “level the playing field,” all as judged by racial metrics. Post, at 26. I strongly disagree.
First, as stated above, any statistical gaps between the average wealth of black and white Americans is constitutionally irrelevant. I, of course, agree that our society is not, and has never been, colorblind. Post, at 2 (JACKSON, J., dissenting); see also Plessy, 163 U. S., at 559 (Harlan, J., dissenting). People
“[I]n view of the constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved.” Ibid.
With the passage of the
Yet, JUSTICE JACKSON would replace the second Founders’ vision with an organizing principle based on race. In fact, on her view, almost all of life‘s outcomes may be unhesitatingly ascribed to race. Post, at 24-26. This is so, she writes, because of statistical disparities among different racial groups. See post, at 11-14. Even if some whites have a lower household net worth than some blacks, what matters to JUSTICE JACKSON is that the average white household has more wealth than the average black household. Post, at 11.
This lore is not and has never been true. Even in the segregated South where I grew up, individuals were not the sum of their skin color. Then as now, not all disparities are based on race; not all people are racist; and not all differences between individuals are ascribable to race. Put simply, “the fate of abstract categories of wealth statistics is not the same as the fate of a given set of flesh-and-blood human beings.” T. Sowell, Wealth, Poverty and Politics 333 (2016). Worse still, JUSTICE JACKSON uses her broad observations about statistical relationships between race and select measures of health, wealth, and well-being to label all blacks as victims. Her desire to do so is unfathomable to me. I cannot deny the great accomplishments of black Americans, including those who succeeded despite long odds.
Nor do JUSTICE JACKSON‘s statistics regarding a correlation between levels of health, wealth, and well-being between selected racial groups prove anything. Of course, none of those statistics are capable of drawing a direct causal link between race—rather than socioeconomic status or any other factor—and individual outcomes. So JUSTICE JACKSON supplies the link herself: the legacy of slavery and the nature of inherited wealth. This, she claims, locks blacks into a seemingly perpetual inferior caste. Such a view is irrational; it is an insult to individual achievement and cancerous to young minds seeking to push through barriers, rather than consign themselves to permanent victimhood. If an applicant has less financial means (because of generational inheritance or otherwise), then surely a university may take that into account. If an applicant has medical struggles or a family member with medical concerns, a university may consider that too.
Accordingly, JUSTICE JACKSON‘s race-infused world view falls flat at each step. Individuals are the sum of their unique experiences, challenges, and accomplishments. What matters is not the barriers they face, but how they choose to confront them. And their race is not to blame for everything—good or bad—that happens in their lives. A contrary, myopic world view based on individuals’ skin color to the total exclusion of their personal choices is nothing short of racial determinism.
JUSTICE JACKSON then builds from her faulty premise to call for action, arguing that courts should defer to “experts” and allow institutions to discriminate on the basis of race. Make no mistake: Her dissent is not a vanguard of the in-nocent and helpless. It is instead a call to empower privileged elites, who will “tell us [what] is required to level the playing field” among castes and classifications that they alone can divine. Post, at 26; see also post, at 5-7 (GORSUCH, J., concurring) (explaining the arbitrariness of these classifications). Then, after siloing us all into racial castes and pitting those castes against each other, the dissent somehow believes that we will be able—at some undefined point—to “march forward together” into some utopian vision. Post, at 26 (opinion of JACKSON, J.). Social movements that invoke these sorts of rallying cries, historically, have ended disastrously.
Unsurprisingly, this tried-and-failed system defies both law and reason. Start with the obvious: If social reorganization in the name of equality may be justified by the mere fact of statistical disparities among racial groups, then that reorganization must continue until these disparities are fully eliminated, regardless of the reasons for the disparities and the cost of their elimination. If blacks fail a test at higher rates than their white counterparts (regardless of whether the reason for the disparity has anything at all to do with race), the only solution will be race-focused measures. If those measures were to result in blacks failing at yet higher rates, the only solution would be to double down. In fact, there would seem to be no logical limit to what the government may do to level the racial playing field—outright wealth transfers, quota systems, and racial preferences would all seem permissible. In such a system, it would not matter how many innocents suffer race-based injuries; all that would matter is reaching the race-based goal.
Worse, the classifications that JUSTICE JACKSON draws are themselves race-based stereotypes. She focuses on two hypothetical applicants, John and James, competing for admission to UNC. John is a white, seventh-generation legacy at the school, while James is black and would be the
first in his family to attend UNC. Post, at 3. JUSTICE JACKSON argues that race-conscious admission programs are necessary to adequately compare the two applicants. As an initial matter, it is not clear why James‘s race is the only factor that could encourage UNC to admit him; his status as a first-generation college applicant seems to contextualize his application. But, setting that aside, why is it that John should be judged based on the actions of his great-great-great-grandparents? And what would JUSTICE JACKSON say to John when deeming him not as worthy of admission: Some statistically significant number of white people had advantages in college admissions seven generations
Nor should we accept that John or James represent all members of their respective races. All racial groups are heterogeneous, and blacks are no exception—encompassing northerners and southerners, rich and poor, and recent immigrants and descendants of slaves. See, e.g., T. Sowell, Ethnic America 220 (1981) (noting that the great success of West Indian immigrants to the United States—disproportionate among blacks more broadly—“seriously undermines the proposition that color is a fatal handicap in the American economy”). Eschewing the complexity that comes with individuality may make for an uncomplicated narrative, but lumping people together and judging them based on assumed inherited or ancestral traits is nothing but stereotyping.11
To further illustrate, let‘s expand the applicant pool beyond John and James. Consider Jack, a black applicant and the son of a multimillionaire industrialist. In a world of race-based preferences, James’ seat could very well go to Jack rather than John—both are black, after all. And what about members of the numerous other racial and ethnic groups in our Nation? What about Anne, the child of Chinese immigrants? Jacob, the grandchild of Holocaust survivors who escaped to this Nation with nothing and faced discrimination upon arrival? Or Thomas, the great-grandchild of Irish immigrants escaping famine? While articulating her black and white world (literally), JUSTICE JACKSON ignores the experiences of other immigrant groups (like Asians, see supra, at 43–44) and white communities that have faced historic barriers.
Though JUSTICE JACKSON seems to think that her race-based thеory can somehow benefit everyone, it is an immutable fact that “every time the government uses racial criteria to ‘bring the races together,’ someone gets excluded, and the person excluded suffers an injury solely because of his or her race.” Parents Involved, 551 U.S., at 759 (THOMAS, J., concurring) (citation omitted). Indeed, JUSTICE JACKSON seems to have no response—no explanation at all—for the people who will shoulder that burden. How, for example, would JUSTICE JACKSON explain the need for race-based preferences to the Chinese student who has worked hard his whole life, only to be denied college admission in part because of his skin color? If such a burden would seem difficult to impose on a bright-eyed young person, that‘s because it should be. History has taught us to abhor theories that call for elites to pick racial winners and losers in the name of sociological experimentation.
Nor is it clear what another few generations of race-conscious college admissions may be expected to accomplish. Even today, affirmative action programs that offer an admissions boost to black and Hispanic students discriminate against those who identify themselves as members of other races that do not receive such preferential treatment. Must others in the future make sacrifices to relevel the playing field for this new phase of racial subordination? And then, out of whose lives should the debt owed to those further victims be repaid? This vision of meeting social racism with government-imposed racism is thus self-defeating, resulting in a never-ending cycle of victimization. There is no reason to
C
Universities’ recent experiences confirm the efficacy of a colorblind rule. To start, universities prohibited from engaging in racial discrimination by state law continue to enroll racially diverse classes by race-neutral means. For example, the University of California purportedly recently admitted its “most diverse undergraduate class ever,” despite California‘s ban on racial preferences. T. Watanabe, UC Admits Largest, Most Diverse Class Ever, But It Was Harder To Get Accepted, L. A. Times, July 20, 2021, p. A1. Similarly, the University of Michigan‘s 2021 incoming class was “among the university‘s most racially and ethnically diverse classes, with 37% of first-year students identifying as persons of color.” S. Dodge, Largest Ever Student Body at University of Michigan This Fall, Officials Say, MLive.com (Oct. 22, 2021), https://www.mlive.com/news/ann-arbor/2021/10/largest-ever-student-body-at-university-of-michigan-this-fall-officials-say.html. In fact, at least one set of studies suggests that, “when we consider the higher education system as a whole, it is clear that the vast majority of schools would be as racially integrated, or more racially integrated, under a system of no preferences than under a system of large preferences.” Brief for Richard Sander as Amicus Curiae 26. Race-neutral policies may thus achieve the same benefits of racial harmony and equality without any of the burdens and strife generated by affirmative action policies.
In fact, meritocratic systems have long refuted bigoted misperceptions of what black students can accomplish. I have always viewed “higher education‘s purpose as imparting knowledge and skills to students, rather than a communal, rubber-stamp, credentialing process.” Grutter, 539 U.S., at 371–372 (opinion concurring in part and dissenting in part). And, I continue to strongly believe (and have never doubted) that “blacks can achieve in every avenue of American life without the meddling of university administrators.” Id., at 350. Meritocratic systems, with objective grading scales, are critical to that belief. Such scales have always been a great equalizer—offering a metric for achievement that bigotry could not alter. Racial preferences take away this benefit, eliminating the very metric by which those who have the most to prove can clearly demonstrate their accomplishments—both to themselves and to others.
Schools’ successes, like students’ grades, also provide objective proof of ability. Historically Black Colleges and Universities (HBCUs) do not have a large amount of racial diversity, but they demonstrate a marked ability to improve the lives of their students. To this day, they have proved “to be extremely effective in educating Black students, particularly in STEM,” where “HBCUs represent seven of the top eight institutions that graduate the highest number of Black undergraduate students who go on to earn [science and engineering] doctorates.” W. Wondwossen, The Science Behind HBCU Success, Nat. Science Foundation (Sept. 24, 2020), https://beta.nsf.gov/science-matters/science-behind-hbcu-success. “HBCUs have produced 40% of all Black engineers.” Presidential Proclamation No. 10451, 87 Fed. Reg. 57567 (2022). And, they “account for 80% of Black judges, 50% of Black doctors, and 50% of Black lawyers.” M. Hammond, L.
Why, then, would this Court need to allow other universities to racially discriminate? Not for the betterment of those black students, it would seem. The hard work of HBCUs and their students demonstrate that “black schools can function as the center and symbol of black communities, and provide examples of independent black leadership, success, and achievement.” Jenkins, 515 U.S., at 122 (THOMAS, J., concurring) (citing Fordice, 505 U.S., at 748 (THOMAS, J., concurring)). And, because race-conscious college admissions are plainly not necessary to serve even the interests of blacks, there is no justification to compel such programs more broadly. See Parents Involved, 551 U.S., at 765 (THOMAS, J., concurring).
*
*
*
The great failure of this country was slavery and its progeny. And, the tragic failure of this Court was its misinterpretation of the Reconstruction Amendments, as Justice Harlan predicted in Plessy. We should not repeat this mistake merely because we think, as our predecessors thought, that the present arrangements are superior to the Constitution.
The Court‘s opinion rightly makes clear that Grutter is, for all intents and purposes, overruled. And, it sees the universities’ admissions policies for what they are: rudderless, race-based preferences designed to ensure a particular racial mix in their entering classes. Those policies fly in the face of our colorblind Constitution and our Nation‘s equality ideal. In short, they are plainly—and boldly—unconstitutional. See Brown II, 349 U.S., at 298 (noting that the Brown case one year earlier had “declare[d] the fundamental principle that racial discrimination in public education is unconstitutional”).
While I am painfully aware of the social and economic ravages which have befallen my race and all who suffer discrimination, I hold out enduring hope that this country
JUSTICE GORSUCH, with whom JUSTICE THOMAS joins, concurring.
For many students, an acceptance letter from Harvard or the University of North Carolina is a ticket to a brighter future. Tens of thousands of applicants compete for a small number of coveted spots. For some time, both universities have decided which applicants to admit or reject based in part on race. Today, the Court holds that the Equal Protection Clause of the
I
“[F]ew pieces of federal legislation rank in significance with the
A
When a party seeks relief under a statute, our task is to apply the law‘s terms as a reasonable reader would have understood them at the time Congress enacted them. “After all, only the words on the page constitute the law adopted by Congress and approved by the President.” Bostock, 590 U.S., at (slip op., at 4).
The key phrases in
What does the statute‘s second critical phrase—“on the ground of”—mean? Again, the answer is uncomplicated: It means “because of.” See, e.g., Webster‘s New World Dictionary 640 (1960) (“because of”); Webster‘s Third New International Dictionary, at 1002 (defining “grounds” as “a logical condition, physical
Now put these pieces back together and a clear rule emerges.
If this exposition of
B
Applying
1
Start with how Harvard and UNC use race. Like many colleges and universities, those schools invite interested students to complete the Common Application. As part of that process, the trial records show, applicants are prompted to tick one or more boxes to explain “how you identify yourself.” 4 App. in No. 21–707, p. 1732. The available choices are American Indian or Alaska Native; Asian; Black or African American; Native Hawaiian or Other Pacific Islander; Hispanic or Latino; or White. Applicants can write in further details if they choose. Ibid.; see also 397 F. Supp. 3d 126, 137 (Mass. 2019); 567 F. Supp. 3d 580, 596 (MDNC 2021).
Where do these boxes come from? Bureaucrats. A federal interagency commission devised this scheme of classifications in the 1970s to facilitate data collection. See D. Bernstein, The Modern American Law of Race, 94 S. Cal. L. Rev. 171, 196–202 (2021); see also 43 Fed. Reg. 19269 (1978). That commission acted “without any input from anthropologists, sociologists, ethnologists, or other experts.” Brief for David E. Bernstein as Amicus Curiae 3 (Bernstein Amicus Brief). Recognizing the limitations of their work, federal regulators cautioned that their classifications “should not be interpreted as being scientific or anthropological in nature, nor should they be viewed as determinants of eligibility for participation in any Federal program.” 43 Fed. Reg. 19269 (emphasis added). Despite that warning, others eventually used this classification system for that very purpose—to “sor[t] out winners and losers in a process that, by the end of the century, would grant preference[s] in jobs... and university admissions.” H. Graham, The Origins of Official Minority Designation, in The New Race Question: How the Census Counts Multiracial Individuals 289 (J. Perlmann & M. Waters eds. 2002).
These classifications rest on incoherent stereotypes. Take the “Asian” category. It sweeps into one pile East Asians (e.g., Chinese, Korean, Japanese) and South Asians (e.g., Indian, Pakistani, Bangladeshi), even though together they constitute about 60% of the world‘s population. Bernstein Amicus Brief 2, 5. This agglomeration of so many peoples paves over countless differences in “language,” “culture,” and historical experience. Id., at 5–6. It does so even though few would suggest that all such persons share “similar backgrounds and similar ideas and experiences.” Fisher v. University of Tex. at Austin, 579 U.S. 365, 414 (2016) (ALITO, J., dissenting). Consider, as well, the development of a separate category for “Native Hawaiian or Other Pacific Islander.” It seems federal officials disaggregated these groups from the “Asian” category only in the 1990s and only “in response to political lobbying.” Bernstein Amicus Brief 9–10. And even that category contains its curiosities. It appears, for example, that Filipino Americans remain classified as “Asian” rather than “Other Pacific Islander.” See 4 App. in No. 21–707, at 1732.
The remaining classifications depend just as much on irrational stereotypes. The “Hispanic” category covers those whose ancestral language is Spanish, Basque, or
If anything, attempts to divide us all up into a handful of groups have become only more incoherent with time. American families have become increasingly multicultural, a fact that has led to unseemly disputes about whether someone is really a member of a certain racial or ethnic group. There are decisions denying Hispanic status to someone of Italian-Argentine descent, Marinelli Constr. Corp. v. New York, 200 App. Div. 2d 294, 296–297, 613 N.Y.S.2d 1000, 1002 (1994), as well as someone with one Mexican grandparent, Major Concrete Constr., Inc. v. Erie County, 134 App. Div. 2d 872, 873, 521 N.Y.S.2d 959, 960 (1987). Yet there are also decisions granting Hispanic status to a Sephardic Jew whose ancestors fled Spain centuries ago, In re Rothschild-Lynn Legal & Fin. Servs., SBA No. 499, 1995 WL 542398, *2–*4 (Apr. 12, 1995), and bestowing a “sort of Hispanic” status on a person with one Cuban grandparent, Bernstein, 94 S. Cal. L. Rev., at 232 (discussing In re Kist Corp., 99 F. C. C. 2d 173, 193 (1984)).
Given all this, is it any surprise that members of certain groups sometimes try to conceal their race or ethnicity? Or that a cottage industry has sprung up to help college applicants do so? We are told, for example, that one effect of lumping so many people of so many disparate backgrounds into the “Asian” category is that many colleges consider “Asians” to be “overrepresented” in their admission pools. Brief for Asian American Coalition for Education et al. as Amici Curiae 12–14, 18–19. Paid advisors, in turn, tell high school students of Asian descent to downplay their heritage to maximize their odds of admission. “‘We will make them appear less Asian when they apply,’” one promises. Id., at 16. “‘If you‘re given an option, don‘t attach a photograph to your application,’” another instructs. Ibid.1 It is difficult to imagine those who receive this advice would find comfort in a bald (and mistaken) assurance that “race-conscious admissions benefit... the Asian American community,” post, at 60 (SOTOMAYOR, J., dissenting). See 397 F. Supp. 3d, at 178 (district court finding that “overall” Harvard‘s race-conscious admissions policy “results in fewer Asian American[s]” being admitted). And it is hard not to wonder whether those left paying the steepest price are those least able to afford it—children of families with no chance of hiring
2
Just as there is no question Harvard and UNC consider race in their admissions processes, there is no question both schools intentionally treat some applicants worse than others because of their race. Both schools frequently choose to award a “tip” or a “plus” to applicants from certain racial groups but not others. These tips or plusses are just what they sound like—“factors that might tip an applicant into [an] admitted class.” 980 F. 3d 157, 170 (CA1 2020). And in a process where applicants compete for a limited pool of spots, “[a] tip for one race” necessarily works as “a penalty against other races.” Brief for Economists as Amici Curiae 20. As the trial court in the Harvard case put it: “Race conscious admissions will always penalize to some extent the groups that are not being advantaged by the process.” 397 F. Supp. 3d, at 202–203.
Consider how this plays out at Harvard. In a given year, the university‘s undergraduate program may receive 60,000 applications for roughly 1,600 spots. Tr. of Oral Arg. in No. 20–1199, p. 60. Admissions officers read each application and rate students across several categories: academic, extracurricular, athletic, school support, personal, and overall. 980 F. 3d, at 167. Harvard says its admissions officers “should not” consider race or ethnicity when assigning the “personal” rating. Id., at 169 (internal quotation marks omitted). But Harvard did not make this instruction explicit until after SFFA filed this suit. Ibid. And, in any event, Harvard concedes that its admissions officers “can and do take an applicant‘s race into account when assigning an overall rating.” Ibid. (emphasis added). At that stage, the lower courts found, applicants of certain races may receive a “tip” in their favor. Ibid.
The next step in the process is committee review. Regional subcommittees may consider an applicant‘s race when deciding whether to recommend admission. Id., at 169–170. So, too, may the full admissions committee. Ibid. As the Court explains, that latter committee “discusses the relative breakdown of applicants by race.” Ante, at 2–3. And “if at some point in the admissions process it appears that a group is notably underrepresented or has suffered a dramatic drop off relative to the prior year, the [committee] may decide to give additional attention to applications from students within that group.” 397 F. Supp. 3d, at 146.
The last step is “lopping,” where the admissions committee trims the list of “prospective admits” before settling on a final class. Id., at 144 (internal quotation marks omitted). At this stage, again, the committee considers the “characteristics of the admitted class,” including its “racial composition.” Ibid. Once more, too, the committee may consider each applicant‘s race in deciding whom to “lop off.” Ibid.
All told, the district court made a number of findings about Harvard‘s use of race-based tips. For example: “[T]he tip[s] given for race impac[t] who among the highly qualified students in the applicant pool will be selected for admission.” Id., at 178. “At least 10% of Harvard‘s admitted class... would most likely not be admitted
Things work similarly at UNC. In a typical year, about 44,000 applicants vie for 4,200 spots. 567 F. Supp. 3d, at 595. Admissions officers read each application and rate prospective students along eight dimensions: academic programming, academic performance, standardized tests, extracurriculars, special talents, essays, background, and personal. Id., at 600. The district court found that “UNC‘s admissions policies mandate that race is taken into consideration” in this process as a “‘plus’ facto[r].” Id., at 594–595. It is a plus that is “sometimes” awarded to “underrepresented minority” or “URM” candidates—a group UNC defines to include “‘those students identifying themselves as African American or [B]lack; American Indian or Alaska Native; or Hispanic, Latino, or Latina,’” but not Asian or white students. Id., at 591–592, n. 7, 601.
At UNC, the admissions officers’ decisions to admit or deny are “‘provisionally final.’” Ante, at 4 (opinion for the Court). The decisions become truly final only after a committee approves or rejects them. 567 F. Supp. 3d, at 599. That committee may consider an applicant‘s race too. Id., at 607. In the end, the district court found that “race plays a role”—perhaps even “a determinative role”—in the decision to admit or deny some “URM students.” Id., at 634; see also id., at 662 (“race may tip the scale”). Nor is this an accident. As at Harvard, officials at UNC have made a “deliberate decision” to employ race-conscious admissions practices. Id., at 588–589.
While the district courts’ findings tell the full story, one can also get a glimpse from aggregate statistics. Consider the chart in the Court‘s opinion collecting Harvard‘s data for the period 2009 to 2018. Ante, at 31. The racial composition of each incoming class remained steady over that time—remarkably so. The proportion of African Americans hovered between 10% and 12%; the proportion of Hispanics between 8% and 12%; and the proportion of Asian Americans between 17% and 20%. Ibid. Might this merely reflect the demographics of the school‘s applicant pool? Cf. post, at 35 (opinion of SOTOMAYOR, J.). Perhaps—at least assuming the applicant pool looks much the same each year and the school rather mechanically admits applicants based on objective criteria. But the possibility that it instead betrays the school‘s persistent focus on numbers of this race and numbers of that race is entirely consistent with the findings recounted above. See, e.g., 397 F. Supp. 3d, at 146 (“if at some point in the admissions process it appears that a group is notably underrepresented or has suffered a dramatic drop off relative to the prior year, the [committee] may decide to give additional attention to applications from students within that group”); cf. ante, at 31–32, n. 7 (opinion for the Court).
C
Throughout this litigation, the parties have spent less time contesting these facts than debating other matters.
The parties also debate the reasons both schools consult race. SFFA observes that, in the 1920s, Harvard began moving away from “test scores” and toward “plac[ing] greater emphasis on character, fitness, and other subjective criteria.” Id., at 12–13 (internal quotation marks omitted). Harvard made this move, SFFA asserts, because President A. Lawrence Lowell and other university leaders had become “alarmed by the growing number of Jewish students who were testing in,” and they sought some way to cap the number of Jewish students without “‘stat[ing] frankly’” that they were “‘directly excluding all [Jews] beyond a certain percentage.’” Id., at 12; see also 3 App. in No. 20–1199, pp. 1131–1133. SFFA contends that Harvard‘s current “holistic” approach to admissions works similarly to disguise the school‘s efforts to assemble classes with a particular racial composition—and, in particular, to limit the number of Asian Americans it admits. Brief for Petitioner 12–14, 25–32. For its part, Harvard expresses regret for its past practices while denying that they resemble its current ones. Tr. of Oral Arg. in No. 20–1199, at 51. And both schools insist that their student bodies would lack sufficient diversity without race-conscious admissions. Brief for Respondent in No. 20–1199, pp. 52–54; Brief for University Respondents in No. 21–707, pp. 54–59.
When it comes to defining and measuring diversity, the parties spar too. SFFA observes that the racial categories the universities employ in the name of diversity do not begin to reflect the differences that exist within each group. See Part I–B–1, supra. Instead, they lump together white and Asian students from privileged backgrounds with “Jewish, Irish, Polish, or other ‘white’ ethnic groups whose ancestors faced discrimination” and “descendants of those Japanese-American citizens interned during World War II.” Ante, at 45, n. 10 (THOMAS, J., concurring). Even putting all that aside, SFFA stresses that neither Harvard nor UNC is willing to quantify how much racial and ethnic diversity they think sufficient. And, SFFA contends, the universities may not wish to do so because their stated goal implies a desire to admit some fixed number (or quota) of students from each racial group. See Brief for Petitioner 77, 80; Tr. of Oral Arg. in No. 21–707, p. 180. Besides, SFFA asks, if it is diversity the schools are after, why do they exhibit so little interest in other (non-racial) markers of it? See Brief for Petitioner 78, 83–86. While Harvard professes interest in socioeconomic diversity, for example, SFFA points to trial testimony that there are “23 times as many rich kids on campus as poor kids.” 2 App. in No. 20–1199, p. 756.3
disadvantaged applicants just half of the tip it gives re-cruited athletes; and (2) eliminated tips for the children of donors, alumni, and faculty. Brief for Petitioner 33-34, 81; see 2 App. in No. 20–1199, at 763-765, 774–775. Doing these two things would barely affect the academic credentials of each incoming class. Brief for Petitioner 33–34. And it would not require Harvard to end tips for recruited athletes, who as a group are much weaker academically than non-athletes.5
At trial, however, Harvard resisted this proposal. Its preferences for the children of donors, alumni, and faculty are no help to applicants who cannot boast of their parents’ good fortune or trips to the alumni tent all their lives. While race-neutral on their face, too, these preferences undoubtedly benefit white and wealthy applicants the most. See 980 F. 3d, at 171. Still, Harvard stands by them. See Brief for Respondent in No. 20–1199, at 52-54; Tr. of Oral Arg. in No. 21–1199, at 48–49. As a result, athletes and the children of donors, alumni, and faculty—groups that together “make up less than 5% of applicants to Harvard“—constitute “around 30% of the applicants admitted each year.” 980 F. 3d, at 171.
To be sure, the parties’ debates raise some hard-to-answer questions. Just how many admissions decisions turn on race? And what really motivates the universities’ race-conscious admissions policies and their refusal to modify other preferential practices? Fortunately,
D
The principal dissent contends that this understanding of
Rather than engage with the statutory text or our precedent in Bostock, the principal dissent seeks to sow confusion about the facts. It insists that all applicants to Harvard and UNC are “eligible” to receive a race-based tip. Post, at 32, n. 27 (opinion of SOTOMAYOR, J.); cf. post, at 17 (JACKSON, J., dissenting). But the question in these cases is not who could hypothetically receive a race-based tip. It is who actually receives one. And on that score the lower courts left no doubt. The district court in the Harvard case found that the school‘s admissions policy “cannot . . . be considered facially neutral from a
Nor could anyone doubt that these cases are about intentional discrimination just because Harvard in particular “‘does not explicitly prioritize any particular racial group over any other.‘” Post, at 32, n. 27 (opinion of SOTOMAYOR, J.) (emphasis
II
So far, we have seen that
A
Bakke concerned admissions to the medical school at the University of California,
As important as these conclusions were some of the interpretive moves made along the way. Justice Powell (writing only for himself) and Justice Brennan (writing for himself and three others) argued that
Justice Stevens (also writing for himself and three others) took an altogether different approach. He began by noting the Court‘s “settled practice” of “avoid[ing] the decision of a constitutional issue if a case can be fairly decided on a statutory ground.” Id., at 411. He then turned to the “broad prohibition” of
In the years following Bakke, this Court hewed to Justice Powell‘s and Justice Brennan‘s shared premise that
And what a confused body of constitutional law followed. For years, this Court has said that the Equal Protection Clause requires any consideration of race to satisfy “strict scrutiny,” meaning it must be “narrowly tailored to further compelling governmental interests.” Grutter, 539 U. S., at 326 (internal quotation marks omitted). Outside the context of higher education, “our precedents have identified only two” interests that meet this demanding standard: “remediating specific, identified instances of past discrimination that violated the Constitution or a statute,” and “avoiding imminent and serious risks to human safety in prisons.”
Within higher education, however, an entirely distinct set of rules emerged. Following Bakke, this Court declared that judges may simply “defer” to a school‘s assertion that “diversity is essential” to its “educational mission.” Grutter, 539 U. S., at 328. Not all schools, though—elementary and secondary schools apparently do not qualify for this deference. See Parents Involved in Community Schools v. Seattle School Dist. No. 1, 551 U. S. 701, 724–725 (2007). Only colleges and universities, the Court explained, “occupy a special niche in our constitutional tradition.” Grutter, 539 U. S., at 329. Yet even they (wielding their “special niche” authority) cannot simply assert an interest in diversity and discriminate as they please. Fisher, 579 U. S., at 381. Instead, they may consider race only as a “plus” factor for the purpose of “attaining a critical mass of underrepresented minority students” or “a diverse student body.” Grutter, 539 U. S., at 335-336 (internal quotation marks omitted). At the same time, the Court cautioned, this practice “must have a logical end point.” Id., at 342. And in the meantime, “outright racial balancing” and “quota system[s]” remain “patently unconstitutional.” Id., at 330, 334. Nor may a college or university ever provide “mechanical, predetermined diversity bonuses.” Id., at 337 (internal quotation marks omitted). Only a “tip” or “plus” is constitutionally tolerable, and only for a limited time. Id., at 338–339, 341.
If you cannot follow all these twists and turns, you are not alone. See, e.g., Fisher, 579 U. S., at 401-437 (ALITO, J., dissenting); Grutter, 539 U. S., at 346-349 (Scalia, J., joined by THOMAS, J., concurring in part and dissenting in part); 1 App. in No. 21–707, pp. 401–402 (testimony from UNC administrator: “[M]y understanding of the term ‘critical mass’ is that it‘s a . . . I‘m trying to decide if it‘s an analogy or a metaphor[.] I think it‘s an analogy. . . . I‘m not even sure we would know what it is.“); 3 App. in No. 20–1199, at 1137–1138 (similar testimony from a Harvard administrator). If the Court‘s post-Bakke higher-education precedents ever made sense, they are by now incoherent.
Recognizing as much, the Court today cuts through the kudzu. It ends university exceptionalism and returns this Court to the traditional rule that the Equal Protection Clause forbids the use of race in distinguishing between persons unless strict scrutiny‘s demanding standards can be met. In that way, today‘s decision wakes the echoes of Justice John Marshall Harlan: “The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved.” Plessy v. Ferguson, 163 U. S. 537, 559 (1896) (dissenting opinion).
B
If Bakke led to errors in interpreting the Equal Protection Clause, its first mistake was to take us there. These cases arise under
Put the two provisions side by side.
Consider just some of the obvious differences. The Equal Protection Clause operates on States. It does not purport to regulate the conduct of private parties. By contrast,
In other respects, however, the relative scope of the two provisions is inverted. The Equal Protection Clause addresses all manner of distinctions between persons and this Court has held that it implies different degrees of judicial scrutiny for different kinds of classifications. So, for example, courts apply strict scrutiny for classifications based on race, color, and national origin; intermediate scrutiny for classifications based on sex; and rational-basis review for classifications based on more prosaic grounds. See, e.g., Fisher, 579 U. S., at 376; Richmond v. J. A. Croson Co., 488 U. S. 469, 493–495 (1989) (plurality opinion); United States v. Virginia, 518 U. S. 515, 555–556 (1996); Board of Trustees of Univ. of Ala. v. Garrett, 531 U. S. 356, 366-367 (2001). By contrast,
In truth, neither Justice Powell‘s nor Justice Brennan‘s opinion in Bakke focused on the text of
The moves made in Bakke were not statutory interpretation. They were judicial improvisation. Under our Constitution, judges have never been entitled to disregard the plain terms of a valid congressional enactment basеd on surmise about unenacted legislative intentions. Instead, it has always been this Court‘s duty “to give effect, if possible, to every clause and word of a statute,” Montclair v. Ramsdell, 107 U. S. 147, 152 (1883), and of the Constitution itself, see Knowlton v. Moore, 178 U. S. 41, 87 (1900). In this
Today, the Court corrects course in its reading of the Equal Protection Clause. With that, courts should now also correct course in their treatment of
*
In the aftermath of the Civil War, Congress took vital steps toward realizing the promise of equality under the law. As important as those initial efforts were, much work remained to be done—and much remains today. But by any measure, the
JUSTICE KAVANAUGH, concurring.
I join the Court‘s opinion in full. I add this concurring opinion to further explain why the Court‘s decision today is consistent with and follows from the Court‘s equal protection precedents, including the Court‘s precedents on race-based affirmative action in higher education.
Ratified in 1868 in the wake of the Civil War, the Equal Protection Clause of the
Under strict scrutiny, racial classifications are constitutionally prohibited unless they are narrowly tailored to further a compelling governmental interest. Grutter, 539 U. S., at 326–327. Narrow tailoring requires courts to examine, among other things, whether a racial classification is “necessary“—in other words, whether race-neutral alternatives could adequately achieve the governmental interest. Id., at 327, 339–340; Richmond v. J. A. Croson Co., 488 U. S. 469, 507 (1989).
Importantly, even if a racial classification is otherwise narrowly tailored to further a compelling governmental interest, a “deviation from the norm of equal treatment of all racial and ethnic groups” must be “a temporary matter” or stated otherwise,
In 1978, five Members of this Court held that race-based affirmative action in higher education did not violate the Equal Protection Clause or
In 2003, 25 years after Bakke, five Members of this Court again held that race-based affirmative action in higher education did not violate the Equal Protection Clause or
- Justice O‘Connor‘s opinion for the Court stated: “We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.” Ibid.
- JUSTICE THOMAS expressly concurred in “the Court‘s holding that racial discrimination in higher education admissions will be illegal in 25 years.” Id., at 351 (opinion concurring in part and dissenting in part).
- JUSTICE THOMAS, joined here by Justice Scalia, reiterated “the Court‘s holding” that race-based affirmative action in higher education “will be unconstitutional in 25 years” and “that in 25 years the practices of the Law School will be illegal,” while also stating that “they are, for the reasons I have given, illegal now.” Id., at 375-376.
- Justice Kennedy referred to “the Court‘s pronouncement that race-conscious admissions programs will be unnecessary 25 years from now.” Id., at 394 (dissenting opinion).
- Justice Ginsburg, joined by Justice Breyer, acknowledged the Court‘s 25-year limit but questioned it, writing that “one may hope, but not firmly forecast, that over the next generation‘s span, progress toward nondiscrimination and genuinely equal opportunity will make it safe to sunset affirmative action.” Id., at 346 (concurring opinion).
In allowing race-based affirmative action in higher education for another generation—and only for another generation—the Court in Grutter took into account competing considerations. The Court recognized the barriers that some minority applicants to universities still faced as of 2003, notwithstanding the progress made since Bakke. See Grutter, 539 U. S., at 343. The Court stressed, however, that “there are serious problems of justice connected with the idea of preference
The Grutter Court also emphasized the equal protection principle that racial classifications, even when otherwise permissible, must be a “‘temporary matter,‘” and “must be limited in time.” Id., at 342 (quoting Croson, 488 U. S., at 510 (plurality opinion of O‘Connor, J.)). The requirement of a time limit “reflects that racial classifications, however compelling their goals, are potentially so dangerous that they may be employed no more broadly than the interest demands. Enshrining a permanent justification for racial preferences would offend this fundamental equal protection principle.” Grutter, 539 U. S., at 342.
Importantly, the Grutter Court saw “no reason to exempt race-conscious admissions programs from the requirement that all governmental use of race must have a logical end point.” Ibid. The Court reasoned that the “requirement that all race-conscious admissions programs have a termination point assures all citizens that the deviation from the norm of equal treatment of all racial and ethnic groups is a temporary matter, a measure taken in the service of the goal of equality itself.” Ibid. (internal quotation marks and alteration omitted). The Court therefore concluded that race-based affirmative action programs in higher education, like other racial classifications, must be “limited in time.” Ibid.
The Grutter Court‘s conclusion that race-based affirmative action in higher education must be limited in time followed not only from fundamental equal protection principles, but also from this Court‘s equal protection precedents applying those principles. Under those precedents, racial classifications may not continue indefinitely. For example, in the elementary and secondary school context after Brown v. Board of Education, 347 U. S. 483 (1954), the Court authorized race-based student assignments for several decades—but not indefinitely into the future. See, e.g., Board of Ed. of Oklahoma City Public Schools v. Dowell, 498 U. S. 237, 247–248 (1991); Pasadena City Bd. of Ed. v. Spangler, 427 U. S. 424, 433-434, 436 (1976); Swann v. Charlotte-Mecklenburg Bd. of Ed., 402 U. S. 1, 31-32 (1971); cf. McDaniel v. Barresi, 402 U. S. 39, 41 (1971).
In those decisions, this Court ruled that the race-based “injunctions entered in school desegregation cases” could not “operate in perpetuity.” Dowell, 498 U. S., at 248. Consistent with those decisions, the Grutter Court ruled that race-based affirmative action in higher education likewise could not operate in perpetuity.
As of 2003, when Grutter was decided, many race-based affirmative action programs in higher education had been operating for about 25 to 35 years. Pointing to the Court‘s precedents requiring that racial classifications be “temporary,” Croson, 488 U. S., at 510 (plurality opinion of O‘Connor, J.), the petitioner in Grutter, joined by the United States, argued that race-based affirmative action in higher education could continue no longer. See Brief for Petitioner 21-22, 30-31, 33, 42, Brief for United States 26-27, in Grutter v. Bollinger, O. T. 2002, No. 02-241.
The Grutter Court rejected those arguments for ending race-based affirmative
Harvard and North Carolina would prefer that the Court now ignore or discard Grutter‘s 25-year limit on race-based affirmative action in higher education, or treat it as a mere aspiration. But the 25-year limit constituted an important part of Justice O‘Connor‘s nuanced opinion for the Court in Grutter. Indeed, four of the separate opinions in Grutter discussed the majority opinion‘s 25-year limit, which belies any suggestion that the Court‘s reference to it was insignificant or not carefully considered.
In short, the Court in Grutter expressly recognized the serious issues raised by racial classifications—particularly permanent or long-term racial classifications. And the Court “assure[d] all citizens” throughout America that “the deviation from the norm of equal treatment” in higher education could continue for another generation, and only for another generation. Ibid. (internal quotation marks omitted).
A generation has now passed since Grutter, and about 50 years have gone by since the era of Bakke and DeFunis v. Odegaard, 416 U. S. 312 (1974), when race-based affirmative action programs in higher education largely began. In light of the Constitution‘s text, history, and precedent, the Court‘s decision today appropriately respects and abides by Grutter‘s explicit temporal limit on the use of race-based affirmative action in higher education.1
JUSTICE SOTOMAYOR, JUSTICE KAGAN, and JUSTICE JACKSON disagree with the Court‘s decision. I respect their views. They thoroughly recount the horrific history of slavery and Jim Crow in America, cf. Bakke, 438 U. S., at 395-402 (opinion of Marshall, J.), as well as the continuing effects of that history on African Americans today. And they are of course correct that for the last five decades, Bakke and Grutter have allowed narrowly tailored race-based affirmative action in higher education.
But I respectfully part ways with my dissenting colleagues on the question of whether, under this Court‘s precedents, race-based affirmative action in higher education may extend indefinitely into the future. The dissents suggest that the answer is yes. But this Court‘s precedents make clear that the answer is no. See Grutter, 539 U. S., at 342-343; Dowell, 498 U. S., at 247-248; Croson, 488 U. S., at 510 (plurality opinion of O‘Connor, J.).
To reiterate: For about 50 years, many institutions of higher education have employed race-based affirmative action programs.
To be clear, although progress has been made since Bakke and Grutter, racial discrimination still occurs and the effects of past racial discrimination still persist. Federal and state civil rights laws serve to deter and provide remedies for current acts of racial discrimination. And governments and universities still “can, of course, act to undo the effects of past discrimination in many permissible ways that do not involve classification by race.” Croson, 488 U. S., at 526 (Scalia, J., concurring in judgment) (internal quotation marks omitted); see id., at 509 (plurality opinion of O‘Connor, J.) (“the city has at its disposal a whole array of race-neutral devices to increase the accessibility of city contracting opportunities to small entrepreneurs of all races“); ante, at 39–40; Brief for Petitioner 80–86; Reply Brief in No. 20–1199, pp. 25-26; Reply Brief in No. 21–707, pp. 23-26.
In sum, the Court‘s opinion today is consistent with and follows from the Court‘s equal protection precedents, and I join the Court‘s opinion in full.
JUSTICE SOTOMAYOR, with whom JUSTICE KAGAN and JUSTICE JACKSON join,* dissenting.
The Equal Protection Clause of the
harm inflicted by segregation and the “importance of education to our democratic society.” Id., at 492-495. For 45 years, the Court extended Brown‘s transformative legacy to the context of higher education, allowing colleges and universities to consider race in a limited way and for the limited purpose of promoting the important benefits of racial diversity. This limited use of race has helped equalize educational opportunities for all students of every race and background and has improved racial diversity on college campuses. Although progress has been slow and imperfect, race-conscious college admissions policies have advanced the Constitution‘s guarantee of equality and have promoted Brown‘s vision of a Nation with more inclusive schools.
Today, this Court stands in the way and rolls back decades of precedent and momentous
I
A
Equal educational opportunity is a prerequisite to achieving racial equality in our Nation. From its founding, the United States was a new experiment in a republican form of government where democratic participation and the capacity to engage in self-rule were vital. At the same time, American society was structured around the profitable institution that was slavery, which the original Constitution protected. The Constitution initially limited the power of Congress to restrict the slave trade,
With time, and at the tremendous cost of the Civil War, abolition came. More than two centuries after the first African enslaved persons were forcibly brought to our shores, Congress adopted the
The fight for equal educational opportunity, however, was a key driver. Literacy was an “instrument of resistance and liberation.” Self-Taught 8. Education “provided the means to write a pass to freedom” and “to learn of abolitionist activities.” Id., at 7. It allowed enslaved Black people “to disturb the power relations between master and slave,” which “fused their desire for literacy with their desire for freedom.” Ibid. Put simply, “[t]he very feeling of inferiority which slavery forced upon [Black people] fathered an intense desire to rise out of their condition by means of education.” W. E. B. Du Bois, Black Reconstruction in America 1860-1880, p. 638 (1935); see J. Anderson, The Education of Blacks in the South 1860-1935, p. 7 (1988). Black Americans thus insisted, in the words of Frederick Douglass, “that in a country governed by the people, like ours, education of the youth of all classes is vital to its welfare, prosperity, and to its existence.” Address to the People of the United States (1883), in 4 P. Foner, The Life and Writings of Frederick Douglass 386 (1955). Black people‘s yearning for freеdom of thought, and
Yet emancipation marked the beginning, not the end, of that era. Abolition alone could not repair centuries of racial subjugation. Following the
Moreover, the criminal punishment exception in the
Congress thus went further and embarked on months of deliberation about additional Reconstruction laws. Those efforts included the appointment of a Committee, the Joint Committee on Reconstruction, “to inquire into the condition of the Confederate States.” Report of the Joint Committee on Reconstruction, S. Rep. No. 112, 39th Cong., 1st Sess., 1 (1866) (hereinafter Joint Comm. Rep.). Among other things, the Committee‘s Report to Congress documented the “deep-seated prejudice” against emancipated Black people in the Southern States and the lack of a “general disposition to place the colored race, constituting at least two-fifths of the population, upon terms even of civil equality.” Id., at 11. In light of its findings, the Committee proposed amending the Constitution to secure the equality of “rights, civil and political.” Id., at 7.
Congress acted on that recommendation and adopted the
To promote this goal, Congress enshrined a broad guarantee of equality in the Equal Protection Clause of the Amendment. That Clause commands that “[n]o State shall . . . deny to any person
Simultaneously with the passage of the
Black people were the targeted beneficiaries of the Bureau‘s programs, especially when it came to investments in education in the wake of the Civil War. Each year surrounding the passage of the
Indeed, contemporaries understood that the Freedmen‘s Bureau Act benefited Black people. Supporters defended the law by stressing its race-conscious approach. See, e.g., Cong. Globe 632 (statement of Rep. Moulton) (“[T]he true object of this bill is the amelioration of the condition of the colored people“); Joint Comm. Rep. 11 (reporting that “the Union men of the south” declared “with one voice” that the Bureau‘s efforts “protect[ed] the colored people“). Opponents argued that the Act
Congress also debated and passed the Civil Rights Act of 1866 contemporaneously with the
Congress similarly appropriated federal dollars explicitly and solely for the benefit of racial minorities. For example, it appropriated money for “‘the relief of destitute colored women and children,‘” without regard to prior enslavement. Act of July 28, 1866, 14 Stat. 317. Several times during and after the passage of the
B
The Reconstruction era
In a powerful dissent, Justice Harlan explained in Plessy that the Louisiana law at issue, which authorized segregation in railway carriages, perpetuated a “caste” system. 163 U.S., at 559-560. Although the State argued that the law “prescribe[d] a rule applicable alike to white and colored citizens,” all knew that the law‘s purpose was not “to exclude white persons from railroad cars occupied by blacks,” but “to exclude colored people from coaches occupied by or assigned to white persons.” Id., at 557. That is, the law “proceed[ed] on the ground that colored citizens are so inferior and degraded that they cannot be allowed to sit in public coaches occupied by white citizens.” Id., at 560. Although “[t]he white race deems itself to be the dominant race . . . in prestige, in achievements, in education, in wealth, and in power,” Justice Harlan explained, there is “no superior, dominant, ruling class of citizens” in the eyes of the law. Id., at 559. In that context, Justice Harlan thus announced his view that “[o]ur constitution is color-blind.” Ibid.
It was not until half a century later, in Brown, that the Court honored the guarantee of equality in the Equal Protection Clause and Justice Harlan‘s vision of a Constitution that “neither knows nor tolerates classes among citizens.” Ibid. Considering the “effect[s] of segregation” and the role of education “in the light of its full development and its present place in American life throughout the Nation,” Brown overruled Plessy. 347 U.S., at 492-495. The Brown Court held that “[s]eparate educational facilities are inherently unequal,” and that such racial segregation deprives Black students “of the equal protection of the laws guaranteed by the
Brown was a race-conscious decision that emphasized the importance of education in our society. Central to the Court‘s holding was the recognition that, as Justice Harlan emphasized in Plessy, segregation perpetuates a caste system wherein Black children receive inferior educational opportunities “solely because of their race,” denoting “inferiority as to their status in the community.” 347 U.S., at 494, and n. 10. Moreover, because education is “the very foundation of good citizenship,” segregation in public education harms “our democratic society” more broadly as well. Id., at 493. In light of the harmful effects of entrenched racial subordination on racial minorities and American democracy, Brown recognized the constitutional necessity of a racially integrated system of schools where education is “available to all on equal terms.” Ibid.
The desegregation cases that followed Brown confirm that the ultimate goal of that seminal decision was to achieve a system of integrated schools that ensured racial equality of opportunity, not to impose a formalistic rule of race-blindness. In Green v. School Bd. of New Kent Cty., 391 U.S. 430 (1968), for example, the Court held that the New Kent County School Board‘s “freedom of choice” plan, which allegedly allowed “every student, regardless of race, ‘freely’ [to] choose the school he [would] attend,” was insufficient to effectuate “the command of [Brown].” Id., at 437, 441-442. That command, the Court explained, was that schools dismantle “well-entrenched dual systems” and transition “to a unitary, nonracial system of public education.” Id., at 435-436. That the board “opened the doors of the former ‘white’ school to [Black] children and the [‘Black‘] school to white children” on a race-blind basis was not enough. Id., at 437. Passively eliminating race classifications did not suffice when de facto segregation persisted. Id., at 440-442 (noting that 85% of Black children in the school system were still attending an all-Black school). Instead, the board was “clearly charged with the affirmative duty to take whatever steps might be necessary to convert to a unitary system in which racial discrimination would be eliminated root and branch.” Id., at 437-438. Affirmative steps, this Court held, are constitutionally necessary when mere formal neutrality cannot achieve Brown‘s promise of racial equality. See Green, 391 U.S., at 440-442; see also North Carolina Bd. of Ed. v. Swann, 402 U.S. 43, 45-46 (1971) (holding that North Carolina statute that forbade the use of race in school busing “exploits an apparently neutral form to control school assignment plans by directing that they be ‘colorblind‘; that requirement, against the background of segregation, would render illusory the promise of Brown“); Dayton Bd. of Ed. v. Brinkman, 443 U.S. 526, 538 (1979) (school board “had to do more than abandon its prior discriminatory purpose“; it “had an affirmative responsibility” to integrate); Keyes v. School Dist. No. 1, Denver, 413 U.S. 189, 200 (1973) (“[T]he State automatically assumes an affirmative duty” under Brown to eliminate
In so holding, this Court‘s post-Brown decisions rejected arguments advanced by opponents of integration suggesting that “restor[ing] race as a criterion in the operation of the public schools” was at odds with “the Brown decisions.” Brief for Respondents in Green v. School Bd. of New Kent Cty., O. T. 1967, No. 695, p. 6 (Green Brief). Those opponents argued that Brown only required the admission of Black students “to public schools on a racially nondiscriminatory basis.” Id., at 11 (emphasis deleted). Relying on Justice Harlan‘s dissent in Plessy, they argued that the use of race “is improper” because the “Constitution is colorblind.” Green Brief 6, n. 6 (quoting Plessy, 163 U.S., at 559 (Harlan, J., dissenting)). They also incorrectly claimed that their views aligned with those of the Brown litigators, arguing that the Brown plaintiffs “understood” that Brown‘s “mandate” was colorblindness. Green Brief 17. This Court rejected that characterization of “the thrust of Brown.” Green, 391 U.S., at 437. It made clear that indifference to race “is not an end in itself” under that watershed decision. Id., at 440. The ultimate goal is racial equality of opportunity.
Those rejected arguments mirror the Court‘s opinion today. The Court claims that Brown requires that students be admitted “on a racially nondiscriminatory basis.” Ante, at 13. It distorts the dissent in Plessy to advance a colorblindness theory. Ante, at 38-39; see also ante, at 22 (GORSUCH, J., concurring) (“[T]oday‘s decision wakes the echoes of Justice John Marshall Harlan [in Plessy]“); ante, at 3 (THOMAS, J., concurring) (same). The Court also invokes the Brown litigators, relying on what the Brown “plaintiffs had argued.” Ante, at 12; ante, at 35-36, 39, n. 7 (opinion of THOMAS, J.).
If there was a Member of this Court who understood the Brown litigation, it was Justice Thurgood Marshall, who “led the litigation campaign” to dismantle segregation as a civil rights lawyer and “rejected the hollow, race-ignorant conception of equal protection” endorsed by the Court‘s ruling today. Brief for NAACP Legal Defense and Educational Fund, Inc., et al. as Amici Curiae 9. Justice Marshall joined the Bakke plurality and “applaud[ed] the judgment of the Court that a university may consider race in its admissions process.” 438 U.S., at 400. In fact, Justice Marshall‘s view was that Bakke‘s holding should have been even more protective of race-conscious college admissions programs in light of the remedial purpose of the
Two decades after Brown, in Bakke, a plurality of the Court held that “the attainment of a diverse student body” is a “compelling” and “constitutionally permissible goal for an institution of higher education.” 438 U.S., at 311-315. Race could be considered in the college admissions process in pursuit of this goal, the plurality explained, if it is one factor of many in an applicant‘s file, and each applicant receives individualized review as part of a holistic admissions process. Id., at 316-318.
Since Bakke, the Court has reaffirmed numerous times the constitutionality of limited race-conscious college admissions. First, in Grutter v. Bollinger, 539 U.S. 306 (2003), a majority of the Court endorsed the Bakke plurality‘s “view that student body diversity is a compelling state interest that can justify the use of race in university admissions,” 539 U.S., at 325, and held that race may be used in a narrowly tailored manner to achieve this interest, id., at 333-344; see also Gratz v. Bollinger, 539 U.S. 244, 268 (2003) (“for the reasons set forth [the same day] in Grutter,” rejecting petitioners’ arguments that race can only be considered in college admissions “to remedy identified discrimination” and that diversity is “‘too open-ended, ill-defined, and indefinite to constitute a compelling interest‘“).
Later, in the Fisher litigation, the Court twice reaffirmed that a limited use of race in college admissions is constitutionally permissible if it satisfies strict scrutiny. In Fisher v. University of Texas at Austin, 570 U.S. 297 (2013) (Fisher I), seven Members of the Court concluded that the use of race in college admissions comports with the
Bakke, Grutter, and Fisher are an extension of Brown‘s legacy. Those decisions recognize that “‘experience lend[s] support to the view that the contribution of diversity is substantial.‘” Grutter, 539 U.S., at 324 (quoting Bakke, 438 U.S., at 313). Racially integrated schools improve cross-racial understanding, “break down racial stereotypes,” and ensure that students obtain “the skills needed in today‘s increasingly global marketplace . . . through exposure to widely diverse people, cultures, ideas, and viewpoints.” 539 U.S., at 330. More broadly, inclusive institutions that are “visibly open to talented and qualified individuals of every race and ethnicity” instill public confidence in the “legitimacy” and “integrity” of those institutions and the diverse set of graduates that they cultivate. Id., at 332. That is particularly true in the context of higher education, where colleges and universities play a critical role in “maintaining the fabric of society” and serve as “the training ground for a large number of our Nation‘s leaders.” Id., at 331-332. It is thus an objective of the highest order, a “compelling interest” indeed, that universities pursue the benefits of racial diversity and ensure that “the diffusion of knowledge and opportunity” is available to students of all races. Id., at 328-333.
This compelling interest in student body diversity is grounded not only in the Court‘s equal protection jurisprudence but
In short, for more than four decades, it has been this Court‘s settled law that the Equal Protection Clause of the
D
Today, the Court concludes that indifference to race is the only constitutionally permissible means to achieve racial equality in college admissions. That interpretation of the
1
After more than a century of government policies enforcing racial segregation by law, society remains highly segregated. About half of all Latino and Black students attend a racially homogeneous school with at least 75% minority student enrollment.4 The share of intensely segregated minority schools (i.e., schools that enroll 90% to 100% racial minorities) has sharply increased.5
Moreover, underrepresented minority students are more likely to live in poverty and attend schools with a high concentration of poverty.7 When combined with residential segregation and school funding systems that rely heavily on local property taxes, this leads to racial minority students attending schools with fewer resources. See San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1, 72-86 (1973) (Marshall, J., dissenting) (noting school funding disparities that result from local property taxation).8 In turn, underrepresented minorities are more likely to attend schools with less qualified teachers, less challenging curricula, lower standardized test scores, and fewer extracurricular activities and advanced placement courses.9 It is thus unsurprising that there are achievement gaps along racial lines, even after controlling for income differences.10
Systemic inequities disadvantaging underrepresented racial minorities exist beyond school resources. Students of color, particularly Black students, are disproportionately disciplined or suspended, interrupting their academic progress and increasing their risk of involvement with the criminal justice system.11 Underrepresented minorities are less likely to have parents with a postsecondary education who may be familiar with the college application process.12 Further, low-income children of color are less likely to attend preschool and other early childhood education programs that increase educational attainment.13 All of these
interlocked factors
In North Carolina, the home of UNC, racial inequality is deeply entrenched in K-12 education. State courts have consistently found that the State does not provide underrepresented racial minorities equal access to educational opportunities, and that racial disparities in public schooling have increased in recent years, in violation of the State Constitution. See, e.g., Hoke Cty. Bd. of Ed. v. State, 2020 WL 13310241, *6, *13 (N. C. Super. Ct., Jan. 21, 2020); Hoke Cty. Bd. of Ed. v. State, 382 N. C. 386, 388-390, 879 S. E. 2d 193, 197-198 (2022).
These opportunity gaps “result in fewer students from underrepresented backgrounds even applying to” college, particularly elite universities. Brief for Massachusetts Institute of Technology et al. as Amici Curiae 32. “Because talent lives everywhere, but opportunity does not, there are undoubtedly talented students with great academic potential who have simply not had the opportunity to attain the traditional indicia of merit that provide a competitive edge in the admissions process.” Brief for Harvard Student and Alumni Organizations as Amici Curiae 16. Consistent with this reality, Latino and Black students are less likely to enroll in institutions of higher education than their white peers.14
Given the central role that education plays in breaking the cycle of racial inequality, these structural barriers reinforce other forms of inequality in communities of color. See E. Wilson, Monopolizing Whiteness, 134 Harv. L. Rev. 2382, 2416 (2021) (“[E]ducational opportunities . . . allow for social mobility, better life outcomes, and the ability to participate equally in the social and economic life of the democracy“). Stark racial disparities exist, for example, in unemployment rates,15 income levels,16 wealth and homeownership,17 and healthcare access.18 See also Schuette v. BAMN, 572 U.S. 291, 380-381 (2014) (SOTOMAYOR, J., dissenting) (noting the “persistent racial inequality in society“); Gratz, 539 U.S., at 299-301 (Ginsburg, J., dissenting) (cataloging racial disparities in employment, poverty, healthcare, housing, consumer transactions, and education).
Put simply, society remains “inherently unequal.” Brown, 347 U.S., at 495. Racial inequality runs deep to this very day. That is particularly true in education, the “‘most vital civic institution for the preservation of a democratic system of government.‘” Plyler v. Doe, 457 U.S. 202, 221, 223 (1982). As I have explained before, only with eyes open to this reality can the Court “carry out the guarantee of equal
2
Both UNC and Harvard have sordid legacies of racial exclusion. Because “[c]ontext matters” when reviewing race-conscious college admissions programs, Grutter, 539 U.S.,
at 327, this reality informs the exigency of respondents’ current admissions policies and their racial diversity goals.
i
For much of its history, UNC was a bastion of white supremacy. Its leadership included “slaveholders, the leaders of the Ku Klux Klan, the central figures in the white supremacy campaigns of 1898 and 1900, and many of the State‘s most ardent defenders of Jim Crow and race-based Social Darwinism in the twentieth century.” 3 App. 1680. The university excluded all people of color from its faculty and student body, glorified the institution of slavery, enforced its own Jim Crow regulations, and punished any dissent from racial orthodoxy. Id., at 1681–1683. It resisted racial integration after this Court‘s decision in Brown, and was forced to integrate by court order in 1955. 3 App. 1685. It took almost 10 more years for the first Black woman to enroll at the university in 1963. See Karen L. Parker Collection, 1963–1966, UNC Wilson Special Collections Library. Even then, the university admitted only a handful of underrepresented racial minorities, and those students suffered constant harassment, humiliation, and isolation. 3 App. 1685. UNC officials openly resisted racial integration well into the 1980s, years after the youngest Member of this Court was born.19 Id., at 1688–1690. During that period,
Black students faced racial epithets and stereotypes, received hate mail, and encountered Ku Klux Klan rallies on campus. 2 id., at 781–784; 3 id., at 1689.
To this day, UNC‘s deep-seated legacy of racial subjugation continues to manifest itself in student life. Buildings on campus still bear the names of members of the Ku Klux Klan and other white supremacist leaders. Id., at 1683. Students of color also continue to experience racial harassment, isolation, and tokenism.20 Plus, the student body remains predominantly white: approximately 72% of UNC students identify as white, while only 8% identify as Black. Id., at 1647. These numbers do not reflect the diversity of the State, particularly Black North Carolinians, who make up 22% of the population. Id., at 1648.
UNC is not alone. Harvard, like other Ivy League universities in our country, “stood beside church and state as the third pillar of a civilization built on bondage.” C. Wilder, Ebony & Ivy: Race, Slavery, and the Troubled History of America‘s Universities 11 (2013). From Harvard‘s founding, slavery and racial subordination were integral parts of the institution‘s funding, intellectual production, and campus life. Harvard and its donors had extensive financial ties to, and profited from, the slave trade, the labor of enslaved people, and slavery-related investments. As Harvard now recognizes, the accumulation of this wealth was “vital to the University‘s growth” and establishment as an elite, national institution. Harvard & the Legacy of Slavery, Report by the President and Fellows of Harvard College 7 (2022) (Harvard Report). Harvard suppressed anti-slavery views, and enslaved persons “served Harvard presidents and professors and fed and cared for Harvard students” on campus. Id., at 7, 15.
Exclusion and discrimination continued to be a part of campus life well into the 20th century. Harvard‘s leadership and prominent professors openly promoted ““race science,” racist eugenics, and other theories rooted in racial hierarchy. Id., at 11. Activities to advance these theories “took place on campus,” including “intrusive physical examinations” and “photographing of unclothed” students. Ibid. The university also “prized the admission of academically able Anglo-Saxon students from elite backgrounds—including wealthy white sons of the South.” Id., at 44. By contrast, an average of three Black students enrolled at Harvard each year during the five decades between 1890 and 1940. Id., at 45. Those Black students who managed to enroll at Harvard “excelled academically, earning equal or better academic records than most white students,” but faced the challenges of the deeply rooted legacy of slavery and racism on campus. Ibid. Meanwhile, a few women of color attended Radcliffe College, a separate and overwhelmingly white “women‘s annex” where racial minorities were denied campus housing and scholarships. Id., at 51. Women of color at Radcliffe were taught by Harvard professors, but “women did not receive Harvard degrees until 1963.” Ibid.; see also S. Bradley, Upending the Ivory Tower: Civil Rights, Black Power, and the Ivy League 17 (2018) (noting that the historical discussion of racial integration at the Ivy League “is necessarily male-centric,” given the historical exclusion of women of color from these institutions).
Today, benefactors with ties to slavery and white supremacy continue to be memorialized across campus through “statues, buildings, professorships, student houses, and the like.” Harvard Report 11. Black and Latino applicants account for only 20% of domestic applicants to Harvard each year. App. to Pet. for Cert. in No. 20–1199, p. 112. “Even those students of color who beat the odds and earn an offer of admission” continue to experience isolation and alienation on campus. Brief for 25 Harvard Student and Alumni Organizations as Amici Curiae 30–31; 2 App. 823, 961. For years, the university has reported that inequities on campus remain. See, e.g., 4 App. 1564–1601. For example, Harvard has reported that “far too many black students at Harvard experience feelings of isolation and marginalization,” 3 id., at 1308, and that “student survey data show[ed] that only half of Harvard undergraduates believe that the housing system fosters exchanges between students of different backgrounds,” id., at 1309.
*
*
*
II
The Court today stands in the way of respondents’ commendable undertaking and entrenches racial inequality in higher education. The majority opinion does so by turning a blind eye to these truths and overruling decades of precedent, “content for now to disguise” its ruling as an application of “established law and move on.” Kennedy, 597 U. S., ___ (SOTOMAYOR, J., dissenting) (slip op., at 29). As JUSTICE THOMAS puts it, “Grutter is, for all intents and purposes, overruled.” Ante, at 58.
It is a disturbing feature of today‘s decision that the Court does not even attempt to make the extraordinary showing required by stare decisis. The Court simply moves the goalposts, upsetting settled expectations and throwing admissions programs nationwide into turmoil. In the end, however, it is clear why the Court is forced to change the rules of the game to reach its desired outcome: Under a faithful application of the Court‘s settled legal framework, Harvard and UNC‘s admissions programs are constitutional and comply with Title VI of the Civil Rights Act of 1964,
A
Answering the question whether Harvard‘s and UNC‘s policies survive strict scrutiny under settled law is straightforward, both because of the procedural posture
These cases arrived at this Court after two lengthy trials. Harvard and UNC introduced dozens of fact witnesses, expert testimony, and doсumentary evidence in support of their admissions programs. Brief for Petitioner 20, 40. SFFA, by contrast, did not introduce a single fact witness and relied on the testimony of two experts. Ibid.
After making detailed findings of fact and conclusions of law, the District Courts entered judgment in favor of Harvard and UNC. See 397 F. Supp. 3d 126, 133–206 (Mass. 2019) (Harvard I); 567 F. Supp. 3d 580, 588–667 (MDNC 2021) (UNC). The First Circuit affirmed in the Harvard case, finding “no error” in the District Court‘s thorough opinion. 980 F. 3d 157, 204 (2020) (Harvard II). SFFA then filed petitions for a writ of certiorari in both cases, which the Court granted. 595 U. S. ___ (2022).23
The Court granted certiorari on three questions: (1) whether the Court should overrule Bakke, Grutter, and Fisher; or, alternatively, (2) whether UNC‘s admissions program is narrowly tailored, and (3) whether Harvard‘s admissions program is narrowly tailored. See Brief for Petitioner in No. 20–1199, p. i; Brief for Respondent in No. 20–1199, p. i; Brief for University Respondents in No. 21–707, p. i. Answering the last two questions, which call for application of settled law to the facts of these cases, is simple: Deferring to the lower courts’ careful findings of fact and credibility determinations, Harvard‘s and UNC‘s policies are narrowly tailored.
B
1
As to narrow tailoring, the only issue SFFA raises in the UNC case is that the university cannot use race in its admissions process because race-neutral alternatives would promote UNC‘s diversity objectives. That issue is so easily resolved in favor of UNC that SFFA devoted only three pages to it at the end of its 87-page brief. Brief for Petitioner 83-86.
The use of race is narrowly tailored unless “workable” and “available” race-neutral approaches exist, meaning race-neutral alternatives promote the institution‘s diversity goals and do so at ““tolerable administrative expense.’ ” Fisher I, 570 U. S., at 312 (quoting Wygant v. Jackson Bd. of Ed., 476 U. S. 267, 280, n. 6 (1986) (plurality opinion)). Narrow tailoring does not mean perfect tailoring. The Court‘s precedents make clear that “[n]arrow tailoring does not require exhaustion of every conceivable race-neutral alternative.” Grutter, 539 U. S., at 339. “Nor does it require a university to choose between maintaining a reputation for excellence or fulfilling a commitment to provide educational opportunities to members of all racial groups.” Ibid.
As the District Court found after considering extensive expert testimony, SFFA‘s
2
Harvard‘s admissions program is also narrowly tailored under settled law. SFFA argues that Harvard‘s program is not narrowly tailored because the university “has workable race-neutral alternatives,” “does not use race as a mere plus,” and “engages in racial balancing.” Brief for Petitioner 75-83. As the First Circuit concluded, there was “no error” in the District Court‘s findings on any of these issues. Harvard II, 980 F. 3d, at 204
Like UNC, Harvard has already implemented many of SFFA‘s proposals, such as increasing recruitment efforts and financial aid for low-income students. Id., at 193. Also like UNC, Harvard “carefully considered” other race-neutral ways to achieve its diversity goals, but none of them are “workable.” Id., at 193–194. SFFA‘s argument before this Court is that Harvard should adopt a plan designed by SFFA‘s expert for purposes of trial, which increases preferences for low-income applicants and eliminates the use of race and legacy preferences. Id., at 193; Brief for Petitioner 81. Under SFFA‘s model, however, Black representation would plummet by about 32%, and the admitted share of applicants with high academic ratings would decrease, as would the share with high extracurricular and athletic ratings. 980 F. 3d, at 194. SFFA‘s proposal, echoed by JUSTICE GORSUCH, ante, at 14-15, requires Harvard to “make sacrifices on almost every dimension important to its admissions process,” 980 F. 3d, at 194, and forces it “to choose between a diverse student body and a reputation for academic excellence,” Fisher II, 579 U. S., at 385. Neither this Court‘s precedents nor common sense impose that type of burden on colleges and universities.
The courts below also properly rejected SFFA‘s argument that Harvard does not use race in the limited way this Court‘s precedents allow. The Court has explained that a university can consider a student‘s race in its admissions process so long as that use is “contextual and does not operate as a mechanical plus factor.” Id., at 375. The Court has also repeatedly held that race, when considered as one factor of many in the context of holistic review, “can make a difference to whether an application is accepted or rejected.” Ibid. After all, race-conscious admissions seek to improve racial diversity. Race cannot, however, be ““decisive’ for virtually every minimally qualified underrepresented minority applicant.” Gratz, 539 U. S., at 272 (quoting Bakke, 438 U. S., at 317).
That is precisely how Harvard‘s program operates. In recent years, Harvard has received about 35,000 applications for a class with about 1,600 seats. 980 F. 3d, at 165. The admissions process is exceedingly competitive; it involves six different application components. Those components include interviews with alumni and admissions officers, as well as consideration of a whole range of information, such as grades, test scores, recommendation letters, and personal essays, by several committees. Id., at 165–166. Consistent with that “individualized, holistic review process,” admissions officers may, but need not, consider a student‘s self-reported racial identity when assigning overall ratings. Id., at 166, 169, 180. Even after so many layers of competitive review, Harvard typically ends up with about 2,000 tentative admits, more students than the 1,600 or so that the university can admit. Id., at 170. To choose among those highly qualified candidates, Harvard considers “plus factors,” which can help “tip an applicant into Harvard‘s admitted class.” Id., at 170, 191. To diversify its class, Harvard awards “tips” for a variety of reasons, including geographic factors, socioeconomic status, ethnicity, and race. Ibid.
There is “no evidence of any mechanical use of tips.” Id., at 180. Consistent with the Court‘s precedents, Harvard properly “considers race as part of a holistic review process,” “values all types of diversity,” “does not consider race exclusively,” and “does not award a fixed amount of points to applicants because of their race.” Id., at
The courts below correctly rejected SFFA‘s view that Harvard‘s use of race is unconstitutional because it impacts overall Hispanic and Black student representation by 45%. See Brief for Petitioner 79. That 45% figure shows that eliminating the use of race in admissions “would reduce African American representation ... from 14% to 6% and Hispanic representation from 14% to 9%.” Harvard II, 980 F. 3d, at 180, 191. Such impact of Harvard‘s limited use of race on the makeup of the class is less than this Court has previously upheld as narrowly tailored. In Grutter, for example, eliminating the use of race would have reduced the underrepresented minority population by 72%, a much greater effect. 539 U. S., at 320. And in Fisher II, the use of race helped increase Hispanic representation from 11% to 16.9% (a 54% increase) and African-American representation from 3.5% to 6.8% (a 94% increase). 579 U. S., at 384.28
Finally, the courts below correctly concluded that Harvard complies with this Court‘s repeated admonition that colleges
Similarly, Harvard‘s use of “one-pagers” containing “a snapshot of various demographic characteristics of Harvard‘s applicant pool” during the admissions review process is perfectly consistent with this Court‘s precedents. Id., at 170-171, 189. Consultation of these reports, with no “specific number firmly in mind,” “does not transform [Harvard‘s] program into a quota.” Grutter, 539 U. S., at 335-336. Rather, Harvard‘s ongoing review complies with the Court‘s command that universities periodically review the necessity of the use of race in their admissions programs. Id., at 342; Fisher II, 579 U. S., at 388.
The Court ignores these careful findings and concludes that Harvard engages in racial balancing because its “focus on numbers is obvious.” Ante, at 31. Because SFFA failed to offer an expert and to prove its claim below, the majority is forced to reconstruct the record and conduct its own factual analysis. It thus relies on a single chart from SFFA‘s brief that truncates relevant data in the record. Compare ibid. (citing Brief for Petitioner in No. 20–1199, p. 23) with 4 App. in No. 20–1199, p. 1770. That chart cannot displace the careful factfinding by the District Court, which the First Circuit upheld on appeal under clear error review. See Harvard II, 980 F. 3d, at 180–182, 188–189.
In any event, the chart is misleading and ignores “the broader context” of the underlying data that it purports to summarize. Id., at 188. As the First Circuit concluded, what the data actually show is that admissions have increased for all racial minorities, including Asian American students, whose admissions numbers have “increased roughly five-fold since 1980 and roughly two-fold since 1990.” Id., at 180, 188. The data also show that the racial shares of admitted applicants fluctuate more than the corresponding racial shares of total applicants, which is “the opposite of what one would expect if Harvard imposed a quota.” Id., at 188. Even looking at the Court‘s truncated period for the classes of 2009 to 2018, “the same pattern holds.” Ibid. The fact that Harvard‘s racial shares of admitted applicants “varies relatively little in absolute terms for [those classes] is unsurprising and reflects the fact that the racial makeup of Harvard‘s applicant pool also varies very little over this period.” Id., at 188–189. Thus, properly understood, the data show that Harvard “does not utilize quotas and does not engage in racial balancing.” Id., at 189.29
The Court concludes that Harvard‘s and UNC‘s policies are unconstitutional because they serve objectives that are insufficiently measurable, employ racial categories that are imprecise and overbroad, rely on racial stereotypes and disadvantage nonminority groups, and do not have an end point. Ante, at 21-34, 39. In reaching this conclusion, the Court claims those supposed issues with respondents’ programs render the programs insufficiently “narrow” under the strict scrutiny framework that the Court‘s precedents command. Ante, at 22. In reality, however, “the Court today cuts through the kudzu” and overrules its “higher-education precedents” following Bakke. Ante, at 22 (GORSUCH, J., concurring).
There is no better evidence that the Court is overruling the Court‘s precedents than those precedents themselves. “Every one of the arguments made by the majority can be found in the dissenting opinions filed in [the] cases” the majority now overrules. Payne v. Tennessee, 501 U. S. 808, 846 (1991) (Marshall, J., dissenting); see, e.g., Grutter, 539 U. S., at 354 (THOMAS, J., concurring in part and dissenting in part) (“Unlike the majority, I seek to define with precision the interest being asserted”); Fisher II, 579 U. S., at 389 (THOMAS, J., dissenting) (race-conscious admissions programs “res[t] on pernicious assumptions about race”); id., at 403 (ALITO, J., joined by ROBERTS, C. J., and THOMAS, J., dissenting) (diversity interests “are laudable goals, but they are not concrete or precise“); id., at 413 (race-conscious college admissions plan “discriminates against Asian-American students“); id., at 414 (race-conscious admissions plan is unconstitutional because it “does not specify what it means to be ‘African-American,’ ‘Hispanic,’ ‘Asian American,’ ‘Native American,’ or ‘White”); id., at 419 (race-conscious college admissions policies rest on “pernicious stereotype[s]“).
Lost arguments are not grounds to overrule a case. When proponents of those arguments, greater now in number on the Court, return to fight old battles anew, it betrays an unrestrained disregard for precedent. It fosters the People‘s suspicions that “bedrock principles are founded . . . in the proclivities of individuals” on this Court, not in the law, and it degrades “the integrity of our constitutional system of government.” Vasquez v. Hillery, 474 U. S. 254, 265 (1986). Nowhere is the damage greater than in cases like these that touch upon matters of representation and institutional legitimacy.
The Court offers no justification, much less “a ‘special justification,” for its costly endeavor. Dobbs v. Jackson Women‘s Health Organization, 597 U. S. ___ (2022) (joint opinion of BREYER, SOTOMAYOR, and KAGAN, JJ., dissenting) (slip op., at 31) (quoting Gamble v. United States, 587 U. S. ___, ___ (2019) (slip op., at 11)). Nor could it. There is no basis for overruling Bakke, Grutter, and Fisher. The Court‘s precedents were correctly decided, the opinion today is not workable and creates serious equal protection problems, important reliance interests favor respondents, and there are no legal or factual developments favoring the Court‘s reckless course. See 597 U. S., at ___ (joint opinion of BREYER, SOTOMAYOR, and KAGAN, JJ., dissenting) (slip op., at 31); id., at ___-___ (KAVANAUGH, J., concurring) (slip op., at 6-7). At bottom, the six unelected members of today‘s majority upend the status quo based on their policy preferences about what race in America should be like, but is not, and their preferences for a veneer of colorblindness in a society where race has always mattered and continues to matter in fact and in law.
A
1
A limited use of race in college admissions is consistent with the
Tellingly, in sharp contrast with today‘s decision, the Court has allowed the use of race when that use burdens minority populations. In United States v. Brignoni-Ponce,
422 U. S. 873 (1975), for example, the Court held that it is unconstitutional for border patrol agents to rely on a person‘s skin color as “a single factor” to justify a traffic stop based on reasonable suspicion, but it remarked that “Mexican appearance” could be “a relevant factor” out of many to justify such a stop “at the border and its functional equivalents.” Id., at 884–887; see also id., at 882 (recognizing that “the border” includes entire metropolitan areas such as San Diego, El Paso, and the South Texas Rio Grande Valley).31 The Court thus facilitated racial profiling of Latinos as a law enforcement tool and did not adopt a race-blind rule. The Court later extended this reasoning to border patrol agents selectively referring motorists for secondary
The result of today‘s decision is that a person‘s skin color may play a role in assessing individualized suspicion, but it cannot play a role in assessing that person‘s individualized contributions to a diverse learning environment. That indefensible reading of the Constitution is not grounded in law and subverts the
2
The majority does not dispute that some uses of race are constitutionally permissible. See ante, at 15. Indeed, it agrees that a limited use of race is permissible in some college admissions programs. In a footnote, the Court exempts military academies from its ruling in light of “the potentially distinct interests” they may present. Ante, at 22, n. 4.
To the extent the Court suggests national security interests are “distinct,” those interests cannot explain the Court‘s narrow exemption, as national security interests are also implicated at civilian universities. See infra, at 64–65. The Court also attempts to justify its carveout based on the fact that “[n]o military academy is a party to these cases.” Ante, at 22, n. 4. Yet the same can be said of many other institutions that are not parties here, including the religious universities supporting respondents, which the Court does not similarly exempt from its sweeping opinion. See Brief for Georgetown University et al. as Amici Curiae 18-29 (Georgetown Brief) (Catholic colleges and universities noting that they rely on the use of race in their holistic admissions to further not just their academic goals, but also their religious missions); see also Harvard II, 980 F. 3d, at 187, n. 24 (“[S]chools that consider race are diverse on numerous dimensions, including in terms of religious affiliation, location, size, and courses of study offered“). The Court‘s carveout only highlights the arbitrariness of its decision and further proves that the
The concurring opinions also agree that the Constitution tolerates some racial classifications. JUSTICE GORSUCH agrees with the majority‘s conclusion that racial classifications are constitutionally permissible if they advance a compelling interest in a narrowly tailored way. Ante, at 23. JUSTICE KAVANAUGH, too, agrees that the Constitution permits the use of race if it survives strict scrutiny. Ante, at 2.32 JUSTICE THOMAS offers an “originalist defense of the
colorblind Constitution,” but his historical analysis leads to the inevitable conclusion that the Constitution is not, in fact, colorblind. Ante, at 2. Like the majority opinion, JUSTICE THOMAS agrees that race can be used to remedy past discrimination and “to equalize treatment against a concrete baseline of government-imposed inequality.” Ante,
In the end, when the Court speaks of a “colorblind” Constitution, it cannot really mean it, for it is faced with a body of law that recognizes that race-conscious measures are permissible under the Equal Protection Clause. Instead, what the Court actually lands on is an understanding of the Constitution that is “colorblind” sometimes, when the Court so chooses. Behind those choices lie the Court‘s own value judgments about what type of interests are sufficiently compelling to justify race-conscious measures.
Overruling decades of precedent, today‘s newly constituted Court singles out the limited use of race in holistic college admissions. It strikes at the heart of Bakke, Grutter, and Fisher by holding that racial diversity is an “inescapably imponderable” objective that cannot justify race-conscious affirmative action, ante, at 24, even though respondents’ objectives simply “mirror the ‘compelling interest’ this Court
has approved” many times in the past. Fisher II, 579 U. S., at 382; see, e.g., UNC, 567 F. Supp. 3d, at 598 (“the [university‘s admissions policy] repeatedly cites Supreme Court precedent as guideposts“).33 At bottom, without any new factual or legal justification, the Court overrides its longstanding holding that diversity in higher education is of compelling value.
To avoid public accountability for its choice, the Court seeks cover behind a unique measurability requirement of its own creation. None of this Court‘s precedents, however, requires that a compelling interest meet some threshold level of precision to be deemed sufficiently compelling. In fact, this Court has recognized as compelling plenty of interests that are equally or more amorphous, including the “intangible” interest in preserving “public confidence in judicial integrity,” an interest that “does not easily reduce to precise definition.” Williams-Yulee v. Florida Bar, 575 U. S. 433, 447, 454 (2015) (ROBERTS, C. J., for the Court); see also, e.g., Ramirez v. Collier, 595 U. S. ___ (2022) (ROBERTS, C. J., for the Court) (slip op., at 18) (“[M]aintaining solemnity and decorum in the execution chamber” is a “compelling” interest); United States v. Alvarez, 567 U. S. 709, 725 (2012) (plurality opinion) (“[P]rotecting the integrity of the Medal of Honor” is a “compelling interes[t]“); Sable Communications of Cal., Inc. v. FCC, 492 U. S. 115, 126 (1989) (“[P]rotecting the physical and psychological well-being of minors” is a “compelling interest“). Thus, although the Members of this majority pay lip service to respondents’ “commendable”
The majority offers no response to any of this. Instead, it attacks a straw man, arguing that the Court‘s cases recognize that remedying the effects of “societal discrimination” does not constitute a compelling interest. Ante, at 34-35. Yet as the majority acknowledges, while Bakke rejected that interest as insufficiently compelling, it upheld a limited use of race in college admissions to promote the educational benefits that flow from diversity. 438 U. S., at 311-315. It is that narrower interest, which the Court has reaffirmed numerous times since Bakke and as recently as 2016 in Fisher II, see supra, at 14-15, that the Court overrules today.
B
The Court‘s precedents authorizing a limited use of race in college admissions are not just workable—they have been working. Lower courts have consistently applied them without issue, as exemplified by the opinions below and SFFA‘s and the Court‘s inability to identify any split of authority. Today, the Court replaces this settled framework with a set of novel restraints that create troubling equal protection problems and share one common purpose: to make it impossible to use race in a holistic way in college admissions, where it is much needed.
1
The Court argues that Harvard‘s and UNC‘s programs must end because they unfairly disadvantage some racial groups. According to the Court, college admissions are a “zero-sum” game and respondents’ use of race unfairly “advantages” underrepresented minority students “at the expense of” other students. Ante, at 27.
That is not the role race plays in holistic admissions. Consistent with the Court‘s precedents, respondents’ holistic review policies consider race in a very limited way. Race is only one factor out of many. That type of system allows Harvard and UNC to assemble a diverse class on a multitude of dimensions. Respondents’ policies allow them to select students with various unique attributes, including talented athletes, artists, scientists, and musicians. They also allow respondents to assemble a class with diverse viewpoints, including students who have different political ideologies and academic interests, who have struggled with different types of disabilities, who are from various socioeconomic backgrounds, who understand different ways of life in various parts of the country, and—yes—students who self-identify with various racial backgrounds and who can offer different perspectives because of that identity.
That type of multidimensional system benefits all students. In fact, racial groups that are not underrepresented tend to benefit disproportionately from such a system. Harvard‘s holistic system, for example, provides points to applicants who qualify as “ALDC,” meaning “athletes, legacy applicants, applicants on the Dean‘s Interest List [primarily relatives of donors], and children of faculty or staff.” Harvard II, 980 F. 3d, at 171 (noting also that “SFFA does not challenge the admission of this large group“). ALDC applicants are predominantly white: Around 67.8% are white, 11.4% are Asian American, 6% are Black, and 5.6% are Latino. Ibid. By contrast, only 40.3% of non-ALDC applicants are white, 28.3% are Asian American, 11% are
The majority‘s true objection appears to be that a limited use of race in college admissions does, in fact, achieve what it is designed to achieve: It helps equalize opportunity and advances respondents’ objectives by increasing the number of underrepresented racial minorities on college campuses, particularly Black and Latino students. This is unacceptable, the Court says, because racial groups that are not underrepresented “would be admitted in greater numbers” without these policies. Ante, at 28. Reduced to its simplest terms, the Court‘s conclusion is that an increase in the representation of racial minorities at institutions of higher learning that were historically reserved for white Americans is an unfair and repugnant outcome that offends the Equal Protection Clause. It provides a license to discriminate against white Americans, the Court says, which requires the courts and state actors to “pic[k] the right races to benefit.” Ante, at 38.
Nothing in the
There is no question that minority students will bear the burden of today‘s decision. Students of color testified at trial that racial self-identification was an important component of their application because without it they would not be able to present a full version of themselves. For example, Rimel Mwamba, a Black UNC alumna, testified that it was “really important” that UNC see who she is “holistically and how the color of [her] skin and the texture of [her] hair impacted [her] upbringing.” 2 App. in No. 21-707, p. 1033. Itzel Vasquez-Rodriguez, who identifies as Mexican-American of Cora descent, testified that her ethnoracial identity is a “core piece” of who she is and has impacted “every experience” she has had, such that she could not explain her “potential contributions to Harvard without any reference” to it. 2 App. in No. 20-1199, at 906, 908. Sally Chen, a Harvard alumna who identifies as Chinese American, explained that being the child of Chinese immigrants was “really fundamental to explaining who” she is. Id., at 968-969. Thang Diep, a Harvard alumnus, testified that his Vietnamese identity was “such a big part” of himself that he needed to discuss it in his application. Id., at 949. And Sarah Cole, a Black Harvard alumna, emphasized that “[t]o try to not see [her] race is to try to not see [her] simply because there is no part of [her] experience, no part of [her] journey, no part of [her] life that has been untouched by [her] race.” Id., at 932.
In a single paragraph at the end of its lengthy opinion, the Court suggests that “nothing” in today‘s opinion prohibits universities from considering a student‘s essay that explains “how race affected [that student‘s] life.” Ante, at 39. This supposed recognition that universities can, in some situations, consider race in application essays is nothing but an attempt to put lipstick on a pig. The Court‘s opinion circumscribes universities’ ability to consider race in any form by meticulously gutting respondents’ asserted diversity interests. See supra, at 41-43. Yet, because the Court cannot escape the inevitable truth that race matters in students’ lives, it announces a false promise to save face and appear attuned to reality. No one is fooled.
Further, the Court‘s demand that a student‘s discussion of racial self-identification be tied to individual qualities, such as “courage,” “leadership,” “unique ability,” and “determination,” only serves to perpetuate the false narrative that Harvard and UNC currently provide “preferences on the basis of race alone.” Ante, at 28-29, 39; see also ante, at 28, n. 6 (claiming without support that “race alone . . . explains the admissions decisions for hundreds if not thousands of applicants“). The Court‘s precedents already require that universities take race into account holistically, in a limited way, and based on the type of “individualized” and “flexible” assessment that the Court purports to favor. Grutter, 539 U. S., at 334; see Brief for Students and Alumni of Harvard College as Amici Curiae 15-17 (Harvard College Brief) (describing how
In the end, the Court merely imposes its preferred college application format on the Nation, not acting as a court of law applying precedent but taking on the role of college administrators to decide what is better for society. The Court‘s course reflects its inability to recognize that racial identity informs some students’ viewpoints and experiences in unique ways. The Court goes as far as to claim that Bakke‘s recognition that Black Americans can offer different perspectives than white people amounts to a “stereotype.” Ante, at 29.
It is not a stereotype to acknowledge the basic truth that young people‘s experiences are shaded by a societal structure where race matters. Acknowledging that there is something special about a student of color who graduates valedictorian from a predominantly white school is not a stereotype. Nor is it a stereotype to acknowledge that race imposes certain burdens on students of color that it does not impose on white students. “For generations, black and brown parents have given their children ‘the talk‘—instructing them never to run down the street; always keep your hands where they can be seen; do not even think of talking back to a stranger—all out of fear of how an officer with a gun will react to them.” Utah v. Strieff, 579 U. S. 232, 254 (2016) (SOTOMAYOR, J., dissenting). Those conversations occur regardless of socioeconomic background or any other aspect of a student‘s self-identification. They occur because of race. As Andrew Brennen, a UNC alumnus, testified, “running down the neighborhood . . . people don‘t see [him] as someone that is relatively affluent; they see [him] as a black man.” 2 App. in No. 21-707, at 951-952.
The absence of racial diversity, by contrast, actually contributes to stereotyping. “[D]iminishing the force of such stereotypes is both a crucial part of [respondents‘] mission, and one that [they] cannot accomplish with only token numbers of minority students.” Grutter, 539 U. S., at 333. When there is an increase in underrepresented minority students on campus, “racial stereotypes lose their force” because diversity allows students to “learn there is no ‘minority viewpoint’ but rather a variety of viewpoints among minority students.” Id., at 319-320. By preventing respondents from achieving their diversity objectives, it is the Court‘s opinion that facilitates stereotyping on American college campuses.
To be clear, today‘s decision leaves intact holistic college admissions and recruitment efforts that seek to enroll diverse classes without using racial classifications. Universities should continue to use those tools as best they can to recruit and admit students from different backgrounds based on all the other factors the Court‘s opinion does not, and cannot, touch. Colleges and universities can continue to consider socioeconomic diversity and to recruit and enroll students who are first-generation college applicants or who speak multiple languages, for example. Those factors are not “interchangeable” with race. UNC, 567 F. Supp. 3d, at 643; see, e.g., 2 App. in No. 21-707, at 975-976 (Laura Ornelas, a UNC alumna, testifying that her Latina identity, socioeconomic status,
The Court today also does not adopt SFFA‘s suggestion that college admissions should be a function of academic metrics alone. Using class rank or standardized test scores as the only admissions criteria would severely undermine multidimensional diversity in higher education. Such a system “would exclude the star athlete or musician whose grades suffered because of daily practices and training. It would exclude a talented young biologist who struggled to maintain above-average grades in humanities classes. And it would exclude a student whose freshman-year grades were poor because of a family crisis but who got herself back on track in her last three years of school, only to find herself just outside of the top decile of her class.” Fisher II, 579 U. S., at 386. A myopic focus on academic ratings “does not lead to a diverse student body.” Ibid.35
2
As noted above, this Court suggests that the use of race in college admissions is unworkable because respondents’ objectives are not sufficiently “measurable,” “focused,” “concrete,” and “coherent.” Ante, at 23, 26, 39. How much more precision is required or how universities are supposed to meet the Court‘s measurability requirement, the Court‘s opinion does not say. That is exactly the point. The Court is not interested in crafting a workable framework that promotes racial diversity on college campuses. Instead, it announces a requirement designed to ensure all race-conscious plans fail. Any increased level of precision runs the risk of violating the Court‘s admonition that colleges and universities operate their race-conscious admissions policies with no “‘specified percentage[s]‘” and no “specific number[s] firmly in mind.” Grutter, 539 U. S., at 324, 335. Thus, the majority‘s holding puts schools in an untenable position. It creates a legal framework where race-conscious plans must be measured with precision but also must not be measured with precision. That holding is not meant to infuse clarity into the strict scrutiny framework; it is designed to render
3
The Court also holds that Harvard‘s and UNC‘s race-conscious programs are unconstitutional because they rely on racial categories that are “imprecise,” “opaque,” and “arbitrary.” Ante, at 25. To start, the racial categories that the Court finds troubling resemble those used across the Federal Government for data collection, compliance reporting, and program administration purposes, including, for example, by the U. S. Census Bureau. See, e.g., 62 Fed. Reg. 58786-58790 (1997). Surely, not all “federal grant-in-aid benefits, drafting of legislation, urban and regional planning, business planning, and academic and social studies” that flow from census data collection, Department of Commerce v. New York, 588 U. S. ___ (2019) (slip op., at 2), are constitutionally suspect.
The majority presumes that it knows better and appoints itself as an expert on data collection methods, calling for a higher level of granularity to fix a supposed problem of overinclusiveness and underinclusiveness. Yet it does not identify a single instance where respondents’ methodology has prevented any student from reporting their race with the level of detail they preferred. The record shows that it is up to students to choose whether to identify as one, multiple, or none of these categories. See Harvard I, 397 F. Supp. 3d, at 137; UNC, 567 F. Supp. 3d, at 596. To the extent students need to convey additional information, students can select subcategories or provide more detail in their personal statements or essays. See Harvard I, 397 F. Supp. 3d, at 137. Students often do so. See, e.g., 2 App. in No. 20-1199, at 906-907 (student respondent discussing her Latina identity on her application); id., at 949 (student respondent testifying he “wrote about [his] Vietnamese identity on [his] application“). Notwithstanding this Court‘s confusion about racial self-identification, neither students nor universities are confused. There is no evidence that the racial categories that respondents use are unworkable.36
4
Cherry-picking language from Grutter, the Court also holds that Harvard‘s and UNC‘s race-conscious programs are unconstitutional because they do not have a specific expiration date. Ante, at 30-34. This new durational requirement is also not grounded in law, facts, or common
Yet this Court suggests that everyone, including the Court itself, has been misreading Grutter for 20 years. Grutter, according to the majority, requires that universities identify a specific “end point” for the use of race. Ante, at 33. JUSTICE KAVANAUGH, for his part, suggests that Grutter itself automatically expires in 25 years, after either “the college class of 2028” or “the college class of 2032.” Ante, at 7, n. 1. A faithful reading of this Court‘s precedents reveals that Grutter held nothing of the sort.
True, Grutter referred to “25 years,” but that arbitrary number simply reflected the time that had elapsed since the Court “first approved the use of race” in college admissions in Bakke. Grutter, 539 U. S., at 343. It is also true that Grutter remarked that “race-conscious admissions policies must be limited in time,” but it did not do so in a vacuum, as the Court suggests. Id., at 342. Rather than impose a fixed expiration date, the Court tasked universities with the responsibility of periodically assessing whether their race-conscious programs “are still necessary.” Ibid. Grutter offered as examples sunset provisions, periodic reviews, and experimenting with “race-neutral alternatives as they develop.” Ibid. That is precisely how this Court has previously interpreted Grutter‘s command. See Fisher II, 579 U. S., at 388 (“It is the University‘s ongoing obligation to engage in constant deliberation and continued reflection regarding its admissions policies“).
Grutter‘s requirement that universities engage in periodic reviews so the use of race can end “as soon as practicable” is well grounded in the need to ensure that race is “employed no more broadly than the interest demands.” 539 U. S., at 343. That is, it is grounded in strict scrutiny. By contrast, the Court‘s holding is based on the fiction that racial inequality has a predictable cutoff date. Equality is an ongoing project in a society where racial inequality persists. See supra, at 17-25. A temporal requirement that rests on the fantasy that racial inequality will end at a predictable hour is illogical and unworkable. There is a sound reason why this Court‘s precedents have never imposed the majority‘s strict deadline: Institutions cannot predict the future. Speculating about a day when consideration of race will become unnecessary is arbitrary at best and frivolous at worst. There is no constitutional duty to engage in that type of shallow guesswork.37
Harvard and UNC engage in the ongoing review that the Court‘s precedents demand. They “use [their] data to scrutinize
5
JUSTICE THOMAS, for his part, offers a multitude of arguments for why race-conscious college admissions policies supposedly “burden” racial minorities. Ante, at 39. None of them has any merit.
He first renews his argument that the use of race in holistic admissions leads to the “inevitable” “underperformance” by Black and Latino students at elite universities “because they are less academically prepared than the white and Asian students with whom they must compete.” Fisher I, 570 U. S., at 332 (concurring opinion). JUSTICE THOMAS speaks only for himself. The Court previously declined to adopt this so-called “mismatch” hypothesis for good reason: It was debunked long ago. The decades-old “studies” advanced by the handful of authors upon whom JUSTICE THOMAS relies, ante, at 40-41, have “major methodological flaws,” are based on unreliable data, and do not “meet the basic tenets of rigorous social science research.” Brief for Empirical Scholars as Amici Curiae 3, 9-25. By contrast, “[m]any social scientists have studied the impact of elite educational institutions on student outcomes, and have found, among other things, that attending a more selective school is associated with higher graduation rates and higher earnings for [underrepresented minority] students—conclusions directly contrary to mismatch.” Id., at 7-9 (collecting studies). This extensive body of research is supported by the most obvious data point available to this institution today: The three Justices of color on this Court graduated from elite universities and law schools with race-conscious admissions programs, and achieved successful legal careers, despite having different educational backgrounds than their peers. A discredited hypothesis that the Court previously rejected is no reason to overrule precedent.
JUSTICE THOMAS claims that the weight of this evidence is overcome by a single more recent article published in 2016. Ante, at 41, n. 8. That article, however, explains that studies supporting the mismatch hypothesis “yield misleading conclusions,” “overstate the amount of mismatch,” “preclude one from drawing any concrete conclusions,” and rely on methodologically flawed assumptions that “lea[d] to an upwardly-biased estimate of mismatch.” P. Arcidiacono & M. Lovenheim, Affirmative Action and the Quality-Fit Trade-off, 54 J. Econ. Lit. 3, 17, 20 (2016); see id., at 6 (“economists should be very
Citing nothing but his own long-held belief, JUSTICE THOMAS also equates affirmative action in higher education with segregation, arguing that “racial preferences in college admissions ‘stamp [Black and Latino students] with a badge of inferiority.‘” Ante, at 41 (quoting Adarand, 515 U. S., at 241 (THOMAS, J., concurring in part and concurring in judgment)). Studies disprove this sentiment, which echoes “tropes of stigma” that “were employed to oppose Reconstruction policies.” A. Onwuachi-Willig, E. Houh, & M. Campbell, Cracking the Egg: Which Came First—Stigma or Affirmative Action? 96 Cal. L. Rev. 1299, 1323 (2008); see, e.g., id., at 1343-1344 (study of seven law schools showing that stigma results from “racial stereotypes that have attached historically to different groups, regardless of affirmative action‘s existence“). Indeed, equating state-sponsored segregation with race-conscious admissions policies that promote racial integration trivializes the harms of segregation and offends Brown‘s transformative legacy. School segregation “has a detrimental effect” on Black students by “denoting the inferiority” of “their status in the community” and by “‘depriv[ing] them of some of the benefits they would receive in a racial[ly] integrated school system.‘” 347 U. S., at 494. In sharp contrast, race-conscious college admissions ensure that higher education is “visibly open to” and “inclusive of talented and qualified individuals of every race and ethnicity.” Grutter, 539 U. S., at 332. These two uses of race are not created equal. They are not “equally objectionable.” Id., at 327.
Relatedly, JUSTICE THOMAS suggests that race-conscious college admissions policies harm racial minorities by increasing affinity-based activities on college campuses. Ante, at 46. Not only is there no evidence of a causal connection between the use of race in college admissions and the supposed rise of those activities, but JUSTICE THOMAS points to no evidence that affinity groups cause any harm. Affinity-based activities actually help racial minorities improve their visibility on college campuses and “decreas[e] racial stigma and vulnerability to stereotypes” caused by “conditions of racial isolation” and “tokenization.” U. Jayakumar, Why Are All Black Students Still Sitting Together in the Proverbial College Cafeteria?, Higher Education Research Institute at UCLA (Oct. 2015); see also Brief for Respondent-Students in No. 21-707, p. 42 (collecting student testimony demonstrating that “affinity groups beget important academic and social benefits” for racial minorities); 4 App. in No. 20-1199, at 1591 (Harvard Working Group on Diversity and Inclusion Report) (noting that concerns “that culturally specific spaces or affinity-themed housing will isolate” student minorities are misguided because those spaces allow students “to come together . . . to deal with intellectual, emotional, and social challenges“).
Citing no evidence, JUSTICE THOMAS also suggests that race-conscious admissions programs discriminate against Asian American students. Ante, at 43-44. It is true that SFFA “allege[d]” that Harvard discriminates against Asian American students. Ante, at 43. Specifically, SFFA argued that Harvard discriminates against Asian American applicants vis-à-vis white applicants through the use of the personal rating, an allegedly “highly subjective” component of the admissions process that is “susceptible to stereotyping and bias.” Harvard II, 980 F. 3d, at 196; see Brief for
To begin, this part of SFFA‘s discrimination claim does not even fall under the strict scrutiny framework in Grutter and its progeny, which concerns the use of racial classifications. The personal rating is a facially race-neutral component of Harvard‘s admissions policy.38 Therefore, even assuming for the sake of argument that Harvard engages in racial discrimination through the personal rating, there is no connection between that rating and the remedy that SFFA sought and that the majority grants today: ending the limited use of race in the entire admissions process. In any event, after assessing the credibility of fact witnesses and considering extensive documentary evidence and expert testimony, the courts below found “no discrimination against Asian Americans.” Harvard II, 980 F. 3d, at 195, n. 34, 202; see id., at 195-204.
There is no question that the Asian American community continues to struggle against potent and dehumanizing stereotypes in our society. It is precisely because racial discrimination persists in our society, however, that the use of race in college admissions to achieve racially diverse classes is critical to improving cross-racial understanding and breaking down racial stereotypes. See supra, at 16. Indeed, the record shows that some Asian American applicants are actually “advantaged by Harvard‘s use of race,” Harvard II, 980 F. 3d, at 191, and “eliminating consideration of race would significantly disadvantage at least some Asian American applicants,” Harvard I, 397 F. Supp. 3d, at 194. Race-conscious holistic admissions that contextualize the racial identity of each individual allow Asian American applicants “who would be less likely to be admitted without a comprehensive understanding of their background” to explain “the value of their unique background, heritage, and perspective.” Id., at 195. Because the Asian American community is not a monolith, race-conscious holistic admissions allow colleges and universities to “consider the vast differences within [that] community.” AALDEF Brief 4-14. Harvard‘s application files show that race-conscious holistic admissions allow Harvard to “valu[e] the diversity of Asian American applicants’ experiences.” Harvard College Brief 23.
Moreover, the admission rates of Asian Americans at institutions with race-conscious admissions policies, including at Harvard, have “been steadily increasing for decades.” Harvard II, 980 F. 3d, at 198.39 By contrast, Asian American enrollment declined at elite universities that are prohibited by state law from considering race. See AALDEF Brief 27; Brief for 25 Diverse, California-Focused Bar Associations et al. as Amici Curiae 19-20, 23. At bottom, race-conscious admissions benefit all students, including racial minorities. That includes the Asian American community.
Finally, JUSTICE THOMAS belies reality by suggesting that “experts and elites”
C
In its “radical claim to power,” the Court does not even acknowledge the important reliance interests that this Court‘s precedents have generated. Dobbs, 597 U. S., at ___ (dissenting opinion) (slip op., at 53). Significant rights and expectations will be affected by today‘s decision nonetheless. Those interests supply “added force” in favor of stare decisis. Hilton v. South Carolina Public Railways Comm‘n, 502 U. S. 197, 202 (1991).
Students of all backgrounds have formed settled expectations that universities with race-conscious policies “will provide diverse, cross-cultural experiences that will better prepare them to excel in our increasingly diverse world.” Brief for Respondent-Students in No. 21-707, at 45; see Harvard College Brief 6-11 (collecting student testimony).
Respondents and other colleges and universities with race-conscious admissions programs similarly have concrete reliance interests because they have spent significant resources in an effort to comply with this Court‘s precedents. “Universities have designed courses that draw on the benefits of a diverse student body,” “hired faculty whose research is enriched by the diversity of the student body,” and “promoted their learning environments to prospective students who have enrolled based on the understanding that they could obtain the benefits of diversity of all kinds.” Brief for Respondent in No. 20-1199, at 40-41 (internal
quotation marks omitted). Universities also have “expended vast financial and other resources” in “training thousands of application readers on how to faithfully apply this Court‘s guardrails on the use of race in admissions.” Brief for University Respondents in No. 21–707, p. 44. Yet today‘s decision abruptly forces them “to fundamentally alter their admissions practices.” Id., at 45; see also Brief for Massachusetts Institute of Technology et al. as Amici Curiae 25-26; Brief for Amherst College et al. as Amici Curiae 23-25 (Amherst Brief). As toThe Court‘s failure to weigh these reliance interests “is a stunning indictment of its decision.” Dobbs, 597 U. S., at ___ (dissenting opinion) (slip op., at 55).
IV
The use of race in college admissions has had profound consequences by increasing the enrollment of underrepresented minorities on college campuses. This Court presupposes that segregation is a sin of the past and that race-conscious college admissions have played no role in the progress society has made. The fact that affirmative action in higher education “has worked and is continuing to work” is no reason to abandon the practice today. Shelby County v. Holder, 570 U. S. 529, 590 (2013) (Ginsburg, J., dissenting) (“[It] is like throwing away your umbrella in a rainstorm because you are not getting wet“).
After California amended its State Constitution to prohibit race-conscious college admissions in 1996, for example, “freshmen enrollees from underrepresented minority groups dropped precipitously” in California public universities. Brief for President and Chancellors of the University of California as Amici Curiae 4, 9, 11-13. The decline was particularly devastating at California‘s most selective campuses, where the rates of admission of underrepresented groups “dropped by 50% or more.” Id., at 4, 12. At the University of California, Berkeley, a top public university not just in California but also nationally, the percentage of Black students in the freshman class dropped from 6.32% in 1995 to 3.37% in 1998. Id., at 12–13. Latino representation similarly dropped from 15.57% to 7.28% during that period at Berkeley, even though Latinos represented 31% of California public high school graduates. Id., at 13. To this day, the student population at California universities still “reflect[s] a persistent inability to increase opportunities” for all racial groups. Id., at 23. For example, as of 2019, the proportion of Black freshmen at Berkeley was 2.76%, well below the pre-constitutional amendment level in 1996, which was 6.32%. Ibid. Latinos composed about 15% of freshmen students at Berkeley in 2019, despite making up 52% of all California public high school graduates. Id., at 24; see also Brief for University of Michigan as Amici Curiae 21-24 (noting similar trends at the University of Michigan from 2006, the last admissions cycle before Michigan‘s ban on race-conscious admissions took effect, through present); id., at 24-25 (explaining that the university‘s “experience is largely consistent with other schools that do not consider race as a factor in admissions,” including, for example, the University of Oklahoma‘s most prestigious campus).
The costly result of today‘s decision harms not just respondents and students but also our institutions and democratic society more broadly. Dozens of amici from nearly every sector of society agree that the absence of race-conscious college admissions will decrease the pipeline of racially diverse college graduates to crucial professions. Those amici include the United States, which emphasizes the need for diversity in the Nation‘s military, see United States Brief 12-18, and in the federal workforce more generally, id., at 19-20 (discussing various federal agencies, including the Federal Bureau of Investigation and the Office of the Director of National Intelligence). The United States explains that “the Nation‘s military strength and readiness depend on a pipeline of officers who are both highly qualified and racially diverse—and who have been educated in diverse environments that prepare them to lead increasingly diverse forces.” Id., at 12. That is true not just at the military service academies but “at civilian universities, including Harvard, that host Reserve Officers’ Training
Indeed, history teaches that racial diversity is a national security imperative. During the Vietnam War, for example, lack of racial diversity “threatened the integrity and perfor- mance of the Nation‘s military” because it fueled “perceptions of racial/ethnic minorities serving as ‘cannon fodder’ for white military leaders.” Military Leadership Diversity Comm‘n, From Representation to Inclusion: Diversity Leadership for the 21st-Century Military xvi, 15 (2011); see also, e.g., R. Stillman, Racial Unrest in the Military: The Challenge and the Response, 34 Pub. Admin. Rev. 221, 221-222 (1974) (discussing other examples of racial unrest). Based on “lessons from decades of battlefield experience,” it has been the “longstanding military judgment” across administrations that racial diversity “is essential to achieving a mission-ready” military and to ensuring the Nation‘s “ability to compete, deter, and win in today‘s increasingly complex global security environment.” United States Brief 13 (internal quotation marks omitted). The majority recognizes the compelling need for diversity in the military and the national security implications at stake, see ante, at 22, n. 4, but it ends race-conscious college admissions at civilian universities implicating those interests anyway.
Amici also tell the Court that race-conscious college admissions are critical for providing equitable and effective public services. State and local governments require public servants educated in diverse environments who can “identify, understand, and respond to perspectives” in “our increasingly diverse communities.” Brief for Southern Governors as Amici Curiae 5-8 (Southern Governors Brief). Likewise, increasing the number of students from underrepresented backgrounds who join “the ranks of medical professionals” improves “healthcare access аnd health outcomes in medically underserved communities.” Brief for Massachusetts et al. as Amici Curiae 10; see Brief for Association of American Medical Colleges et al. as Amici Curiae 5 (noting also that all physicians become better practitioners when they learn in a racially diverse environment). So too, greater diversity within the teacher workforce improves student academic achievement in primary public schools. Brief for Massachusetts et al. as Amici Curiae 15-17; see Brief for American Federation of Teachers as Amicus Curiae 8 (“[T]here are few professions with broader social impact than teaching“). A diverse pipeline of college graduates also ensures a diverse legal profession, which demonstrates that “the justice system serves the public in a fair and inclusive manner.” Brief for American Bar Association as Amicus Curiae 18; see also Brief for Law Firm Antiracism Alliance as Amicus Curiae 1, 6 (more than 300 law firms in all 50 States supporting race-conscious college admissions in light of the “influence and power” that lawyers wield “in the American system of government“).
Examples of other industries and professions that benefit from race-conscious college admissions abound. American businesses emphasize that a diverse workforce improves business performance, better serves a diverse consumer marketplace, and strengthens the overall American economy. Brief for Major American Business Enterprises as Amici Curiae 5–27. A
Today‘s decision further entrenches racial inequality by making these pipelines to leadership roles less diverse. A college degree, particularly from an elite institution, carries with it the benefit of powerful networks and the opportunity for socioeconomic mobility. Admission to college is therefore often the entry ticket to top jobs in workplaces where important decisions are made. The overwhelming majority of Members of Congress have a college degree.40 So do most business leaders.41 Indeed, many state and local leaders in North Carolina attended college in the UNC system. See Southern Governors Brief 8. More than half of judges on the North Carolina Supreme Court and Court of Appeals graduated from the UNC system, for example, and nearly a third of the Governor‘s cabinet attended UNC. Ibid. A less diverse pipeline to these top jobs accumulates wealth and power unequally across racial lines, exacerbating racial disparities in a society that already dispenses prestige and privilege based on race.
The Court ignores the dangerous consequences of an America where its leadership does not reflect the diversity of the People. A system of government that visibly lacks a path to leadership open to every race cannot withstand scrutiny “in the eyes of the citizenry.” Grutter, 539 U. S., at 332. “[G]ross disparity in representation” leads the public to wonder whether they can ever belong in our Nation‘s institutions, including this one, and whether those institutions work for them. Tr. of Oral Arg. in No. 21–707, p. 171 (“The Court is going to hear from 27 advocates in this sitting of the oral argument calendar, and two are women, even though women today are 50 percent or more of law school graduates. And I think it would be reasonable for a woman to look at that and wonder, is that a path that‘s open to me, to be a Supreme Court advocate?” (remarks of Solicitor General Elizabeth Prelogar)).42
By ending race-conscious college admissions, this Court closes the door of opportunity that the Court‘s precedents helped open to young students of every race. It creates a leadership pipeline that is less diverse than our increasingly diverse society,
* * *
True equality of educational opportunity in racially diverse schools is an essential component of the fabric of our democratic society. It is an interest of the highest order and a foundational requirement for the promotion of equal protection under the law. Brown recognized that passive race neutrality was inadequate to achieve the constitutional guarantee of racial equality in a Nation where the effects of segregation persist. In a society where race continues to matter, there is no constitutional requirement that institutions attempting to remedy their legacies of racial exclusion must operate with a blindfold.
Today, this Court overrules decades of precedent and imposes a superficial rule of race blindness on the Nation. The devastating impact of this decision cannot be overstated. The majority‘s vision of race neutrality will entrench racial segregation in higher education because racial inequality will persist so long as it is ignored.
Notwithstanding this Court‘s actions, however, society‘s progress toward equality cannot be permanently halted. Diversity is now a fundamental American value, housed in our varied and multicultural American community that only continues to grow. The pursuit of racial diversity will go on. Although the Court has stripped out almost all uses of race in college admissions, universities can and should continue to use all available tools to meet society‘s needs for diversity in education. Despite the Court‘s unjustified exercise of power, the opinion today will serve only to highlight the Court‘s own impotence in the face of an America whose cries for equality resound. As has been the case before in the history of American democracy, “the arc of the moral universe” will bend toward racial justice despite the Court‘s efforts today to impede its progress. Martin Luther King “Our God is Marching On!” Speech (Mar. 25, 1965).
JACKSON, J., dissenting
SUPREME COURT OF THE UNITED STATES
Nos. 20-1199 and 21-707
STUDENTS FOR FAIR ADMISSIONS, INC., PETITIONER
20-1199 v.
PRESIDENT AND FELLOWS OF HARVARD COLLEGE
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
STUDENTS FOR FAIR ADMISSIONS, INC., PETITIONER
21-707 v.
UNIVERSITY OF NORTH CAROLINA, ET AL.
ON WRIT OF CERTIORARI BEFORE JUDGMENT TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
[June 29, 2023]
JUSTICE JACKSON, with whom JUSTICE SOTOMAYOR and JUSTICE KAGAN join, dissenting.*
Gulf-sized race-based gaps exist with respect to the health, wealth, and well-being of American citizens. They were created in the distant past, but have indisputably been passed down to the present day through the generations. Every moment these gaps persist is a moment in which this great country falls short of actualizing one of its foundational principles—the “self-evident” truth that all of us are created equal. Yet, today, the Court determines that holistic admissions programs like the one that the University of North Carolina (UNC) has operated, consistent with Grutter v. Bollinger, 539 U. S. 306 (2003), are a problem with respect to achievement of that aspiration, rather than a viable solution (as has long been evident to historians, sociologists, and policymakers alike).
JUSTICE SOTOMAYOR has persuasively established that nothing in the
This contention blinks both history and reality in ways too numerous to count. But the response is simple: Our country has never been colorblind. Given the lengthy history of state-sponsored race-based preferences in America, to say that anyone is now victimized if a college considers whether that legacy of discrimination has unequally advantaged its applicants fails to acknowledge the well-documented “intergenerational transmission of inequality” that still plagues our citizenry.1
It is that inequality that admissions programs such as UNC‘s help to address, to the benefit of us all. Because the majority‘s judgment stunts that progress without any basis in law, history, logic, or justice, I dissent.
I
A
Imagine two college applicants from North Carolina, John and James. Both trace their family‘s North Carolina roots to the year of UNC‘s founding in 1789. Both love their State and want great things for its people. Both want to honor their family‘s legacy by attending the State‘s flagship educational institution. John, however, would be the seventh generation to graduate from UNC. He is White. James would be the first; he is Black. Does the race of these applicants properly play a role in UNC‘s holistic merits-based admissions process?
To answer that question, “a page of history is worth a volume of logic.” New York Trust Co. v. Eisner, 256 U. S. 345, 349 (1921). Many chapters of America‘s history appear necessary, given the opinions that my colleagues in the majority have issued in this case.
Justice Thurgood Marshall recounted the genesis:
“Three hundred and fifty years ago, the Negro was dragged to this country in chains to be sold into slavery. Uprooted from his homeland and thrust into bondage for forced labor, the slave was deprived of all legal rights. It was unlawful to teach him to read; he could be sold away from his family and friends at the whim of his master; and killing or maiming him was not a crime. The system of slavery brutalized and dehumanized both master and slave.” Regents of Univ. of Cal. v. Bakke, 438 U. S. 265, 387–388 (1978).
Slavery should have been (and was to many) self-evidently dissonant with our avowed founding principles. When the time came to resolve that dissonance, eleven States chose slavery. With the Union‘s survival at stake, Frederick Douglass noted, Black Americans in the South “were almost the only reliable friends the nation had,” and “but for their help . . . the Rebels might have succeeded in breaking up the Union.”2 After the war, Senator John Sherman defended the proposed
To uphold that promise, the Framers repudiated this Court‘s holding in Dred Scott v. Sandford, 19 How. 393 (1857), by crafting Reconstruction Amendments (and associated legislation) that transformed our Constitution and society.4 Even after this Second Founding—when the need to right historical wrongs should have been clear beyond cavil—opponents insisted that vindicating equality in this manner slighted White Americans. So, when the Reconstruction Congress passed a bill to secure all citizens “the same [civil] right[s]” as “enjoyed by white citizens,” 14 Stat. 27, President Andrew Johnson vetoed it because it “discrimina- t[ed] . . . in favor of the negro.”5
That attitude, and the Nation‘s associated retreat from Reconstruction, made prophesy out of Congressman Thaddeus Stevens‘s fear that “those States will all . . . keep up this discrimination, and crush to death the hated freedmen.”6 And this Court facilitated that retrenchment. Not just in Plessy v. Ferguson, 163 U. S. 537 (1896), but “in almost every instance, the Court chose to restrict the scope of the second founding.”7 Thus, thirteen years pre-Plessy, in the Civil Rights Cases, 109 U. S. 3 (1883), our predecessors on this Court invalidated Congress‘s attempt to enforce the Reconstruction Amendments via the Civil Rights Act of 1875, lecturing that “there must be some stage . . . when [Black Americans] tak[e] the rank of a mere citizen, and ceas[e] to be the special favorite of the laws.” Id., at 25. But Justice Harlan knew better. He responded: “What the nation, through Congress, has sought to accomplish in reference to [Black people] is—what had already been done in every State of the Union for the white race—to secure and protect rights belonging to them as freemen and citizens; nothing more.” Id., at 61 (dissenting opinion).
Justice Harlan dissented alone. And the betrayal that this Court enabled had concrete effects. Enslaved Black people had built great wealth, but only for enslavers.9 No surprise, then, that freedmen leapt at the chance to control their own labor and to build their own financial security.10 Still, White southerners often “simply refused to sell land to blacks,” even when not
Sharecropping is but one example of race-linked obstacles that the law (and private parties) laid down to hinder the progress and prosperity of Black people. Vagrancy laws criminalized free Black men who failed to work for White landlords.14 Many States barred freedmen from hunting or fishing to ensure that they could not live without entering de facto reenslavement as sharecroppers.15 A cornucopia of laws (e.g., banning hitchhiking, prohibiting encouraging a laborer to leave his employer, and penalizing those who prompted Black southerners to migrate northward) ensured that Black people could not freely seek better lives elsewhere.16 And when statutes did not ensure compliance, state-sanctioned (and private) violence did.17
Thus emerged Jim Crow—a system that was, as much as anything else, a comprehensive scheme of economic exploitation to replace the Black Codes, which themselves had replaced slavery‘s form of comprehensive economic exploitation.18 Meanwhile, as Jim Crow ossified, the Federal Government was “giving away land” on the western frontier, and with it “the opportunity for upward mobility and a more secure future,” over the 1862 Homestead Act‘s three-quarter-century tenure.19 Black people were exceedingly unlikely to be allowed to share in those benefits, which by one calculation may have advantaged approximately 46 million Americans living today.20
Despite these barriers, Black people persisted. Their so-called Great Migration northward accelerated during and after the First World War.21 Like clockwork, American cities responded with racially exclusionary zoning (and similar policies).22 As a result, Black migrants had to pay disproportionately high prices for disproportionately subpar housing.23 Nor did migration
Federal and State Governments’ selective intervention further exacerbated the disparities. Consider, for example, the federal Home Owners’ Loan Corporation (HOLC), created in 1933.26 HOLC purchased mortgages threatened with foreclosure and issued new, amortized mortgages in their place.27 Not only did this mean that recipients of these mortgages could gain equity while paying off the loan, successful full payment would make the recipient a home-owner.28 Ostensibly to identify (and avoid) the riskiest recipients, the HOLC “created color-coded maps of every metropolitan area in the nation.”29 Green meant safe; red meant risky. And, regardless of class, every neighborhood with Black people earned the red designation.30
Similarly, consider the Federal Housing Administration (FHA), created in 1934, which insured highly desirable bank mortgages. Eligibility for this insurance required an FHA appraisal of the property to ensure a low default risk.31 But, nationwide, it was FHA‘s established policy to provide “no guarantees for mortgages to African Americans, or to whites who might lease to African Americans,” irrespective of creditworthiness.32 No surprise, then, that “[b]etween 1934 and 1968, 98 percent of FHA loans went to white Americans,” with whole cities (ones that had a disproportionately large number of Black people due to housing segregation) sometimes being deemed ineligible for FHA intervention on racial grounds.33 The Veterans Administration operated similarly.34
One more example: the Federal Home Loan Bank Board “chartered, insured, and regulated savings and loan associations from the early years of the New Deal.”35 But it did “not oppose the denial of mortgages to African Americans until 1961” (and even then opposed discrimination ineffectively).36
The upshot of all this is that, due to government policy choices, “[i]n the suburban-shaping years between 1930 and 1960, fewer than one percent of all mortgages in the nation were issued to African Americans.”37 Thus, based on their race, Black people were “[l]ocked out of the greatest
For present purposes, it is significant that, in so excluding Black people, government policies affirmatively operated—one could say, affirmatively acted—to dole out preferences to those who, if nothing else, were not Black. Those past preferences carried forward and are reinforced today by (among other things) the benefits that flow to homeowners and to the holders of other forms of capital that are hard to obtain unless one already has assets.39
This discussion of how the existing gaps were formed is merely illustrative, not exhaustive. I will pass over Congress‘s repeated crafting of family-, worker-, and retiree-protective legislation to channel benefits to White people, thereby excluding Black Americans from what was otherwise “a revolution in the status of most working Americans.”40 I will also skip how the G. I. Bill‘s “creation of . . . middle-class America” (by giving $95 billion to veterans and their families between 1944 and 1971) was “deliberately designed to accommodate Jim Crow.”41 So, too, will I bypass how Black people were prevented from partaking in the consumer credit market—a market that helped White people who could access it build and protect wealth.42 Nor will time and space permit my elaborating how local officials’ racial hostility meant that even those benefits that Black people could formally obtain were unequally distributed along racial lines.43 And I could not possibly discuss every way in which, in light of this history, facially race-blind policies still work race-based harms today (e.g., racially disparate tax-system treatment; the disproportionate location of toxic-waste facilities in Black communities; or the deliberate action of governments at all levels in designing interstate highways to bisect and segregate Black urban communities).44
The point is this: Given our history, the origin of persistent race-linked gaps should be no mystery. It has never been a deficiency of Black Americans’ desire or ability to, in Frederick Douglass‘s words, “stand on [their] own legs.”45 Rather, it was always simply what Justice Harlan recognized 140 years ago—the persistent and pernicious denial of “what had already been done in every State of the Union for the white race.” Civil Rights Cases, 109 U. S., at 61 (dissenting opinion).
B
History speaks. In some form, it can be heard forever. The race-based gaps that first developed centuries ago are echoes from the past that still exist today. By all accounts, they are still stark.
Start with wealth and income. Just four years ago, in 2019, Black families’ median
These financial gaps are unsurprising in light of the link between home ownership and wealth. Today, as was true 50 years ago, Black home ownership trails White home ownership by approximately 25 percentage points.51 Moreover, Black Americans’ homes (relative to White Americans‘) constitute a greater percentage of household wealth, yet tend to be worth less, are subject to higher effective property taxes, and generally lost more value in the Great Recession.52
From those markers of social and financial unwellness flow others. In most state flagship higher educational institutions, the percentage of Black undergraduates is lower than the percentage of Black high school graduates in that State.53 Black Americans in their late twenties are about half as likely as their White counterparts to have college degrees.54 And because lower family income and wealth force students to borrow more, those Black students who do graduate college find themselves four years out with about $50,000 in student debt—nearly twice as much as their White compatriots.55
As for postsecondary professional arenas, despite being about 13% of the population, Black people make up only about 5% of lawyers.56 Such disparity also appears in the business realm: Of the roughly 1,800 chief executive officers to have appeared on the well-known Fortune 500 list, fewer than 25 have been Black (as of
than White-owned small businesses, partly due to the disproportionate denial of the forgivable loans needed to survive the economic downturn.58
Health gaps track financial ones. When tested, Black children have blood lead levels that are twice the rate of White children—“irreversible” contamination working irremediable harm on developing brains.59 Black (and Latino) children with heart conditions are more likely to die than their White counterparts.60 Race-linked mortality-rate disparity has also persisted, and is highest among infants.61
So, too, for adults: Black men are twice as likely to die from prostate cancer as White men and have lower 5-year cancer survival rates.62 Uterine cancer has spiked in recent years among all women—but has spiked highest for Black women, who die of uterine cancer at nearly twice the rate of “any other racial or ethnic group.”63 Black mothers are up to four times more likely than White mothers to die as a result of childbirth.64 And COVID killed Black Americans at higher rates than White Americans.65
“Across the board, Black Americans experience the highest rates of obesity, hypertension, maternal mortality, infant mortality, stroke, and asthma.”66 These and other disparities—the predictable result of opportunity disparities—lead to at least 50,000 excess deaths a year for Black Americans vis-à-vis White Americans.67 That is 80 million excess years of life lost from just 1999 through 2020.68
Amici tell us that “race-linked health inequities pervad[e] nearly every index of human health” resulting “in an overall reduced life expectancy for racial and ethnic minorities that cannot be explained by genetics.”69 Meanwhile—tying health and wealth together—while she lays dying, the typical Black American “pay[s] more for medical care and incur[s] more medical debt.”70
C
We return to John and James now, with history in hand. It is hardly John‘s fault that he is the seventh generation to graduate from UNC. UNC should permit him to honor that legacy. Neither, however, was it James‘s (or his family‘s) fault that he would be the first. And UNC ought to be able to consider why.
These stories are not every student‘s story. But they are many students’ stories. To demand that colleges ignore race in today‘s admissions practices—and thus disregard the fact that racial disparities may have mattered for where some applicants find themselves today—is not only an affront to the dignity of those students for whom race matters.75 It also condemns our society to never escape the past that explains how and why race matters to the very concept of who “merits” admission.
Permitting (not requiring) colleges like UNC to assess merit fully, without blinders on, plainly advances (not thwarts) the
II
Recognizing all this, UNC has developed a holistic review process to evaluate applicants for admission. Students must submit standardized test scores and other conventional information.76 But applicants are not required to submit demographic information like gender and race.77 UNC considers whatever information each applicant submits using a nonexhaustive list of 40 criteria grouped into eight categories: “academic performance, academic program, standardized testing, extracurricular activity, special talent, essay criteria, background, and personal criteria.”78
Drawing on those 40 criteria, a UNC staff member evaluating John and James would consider, with respect to each, his “engagement outside the classroom; persistence of commitment; demonstrated capacity
So where does race come in? According to UNC‘s admissions-policy document, reviewers may also consider “the race or ethnicity of any student” (if that information is provided) in light of UNC‘s interest in diversity.81 And, yes, “the race or ethnicity of any student may—or may not—receive a ‘plus’ in the evaluation process depending on the in-dividual circumstances revealed in the student‘s application.”82 Stephen Farmer, the head of UNC‘s Office of Undergraduate Admissions, confirmed at trial (under oath) that UNC‘s admissions process operates in this fashion.83
Thus, to be crystal clear: Every student who chooses to disclose his or her race is eligible for such a race-linked plus, just as any student who chooses to disclose his or her unusual interests can be credited for what those interests might add to UNC. The record supports no intimation to the contrary. Eligibility is just that; a plus is never automatically awarded, never considered in numerical terms, and never automatically results in an offer of admission.84 There are no race-based quotas in UNC‘s holistic review process.85 In fact, during the admissions cycle, the school prevents anyone who knows the overall racial makeup of the admitted-student pool from reading any applications.86
More than that, every applicant is also eligible for a diversity-linked plus (beyond race) more generally.87 And, notably, UNC understands diversity broadly, including “socioeconomic status, first-generation college status . . . political beliefs, religious beliefs . . . diversity of thoughts, experiences, ideas, and talents.”88
A plus, by its nature, can certainly matter to an admissions case. But make no mistake: When an applicant chooses to disclose his or her race, UNC treats that aspect of identity on par with other aspects of applicants’ identity that affect who they are (just like, say, where one grew up, or medical challenges one has faced).89
UNC does not do all this to provide handouts to either John or James. It does this to ascertain who among its tens of thousands of applicants has the capacity to take full advantage of the opportunity to attend, and contribute to, this prestigious institution, and thus merits admission.92 And UNC has concluded that ferreting this out requires understanding the full person, which means taking seriously not just SAT scores or whether the applicant plays the trumpet, but also any way in which the applicant‘s race-linked experience bears on his capacity and merit. In this way, UNC is able to value what it means for James, whose ancestors received no race-based advantages, to make himself competitive for admission to a flagship school nevertheless. Moreover, recognizing this aspect of James‘s story does not preclude UNC from valuing John‘s legacy or any obstacles that his story reflects.
So, to repeat: UNC‘s program permits, but does not require, admissions officers to value both John‘s and James‘s love for their State, their high schools’ rigor, and whether either has overcome obstacles that are indicative of their “persistence of commitment.”93 It permits, but does not require, them to value John‘s identity as a child of UNC alumni (or, perhaps, if things had turned out differently, as a first-generation White student from Appalachia whose family struggled to make ends meet during the Great Recession). And it permits, but does not require, them to value James‘s race—not in the abstract, but as an element of who he is, no less than his love for his State, his high school courses, and the obstacles he has overcome.
Understood properly, then, what SFFA caricatures as an unfair race-based preference cashes out, in a holistic system, to a personalized assessment of the advantages and disadvantages that every applicant might have received by accident of birth
Furthermore, and importantly, the fact that UNC‘s holistic process ensures a full accounting makes it far from clear that any particular applicant of color will finish ahead of any particular nonminority applicant. For example, as the District Court found, a higher percentage of the most academically excellent in-state Black candidates (as SFFA‘s expert defined academic excellence) were denied admission than similarly qualified White and Asian American applicants.94 That, if nothing else, is indicative of a genuinely holistic process: it is evidence that, both in theory and in practice, UNC recognizes that race—like any other aspect of a person—may bear on where both John and James start the admissions relay, but will not fully determine whether either eventually crosses the finish line.
III
A
The majority seems to think that race blindness solves the problem of race-based disadvantage. But the irony is that requiring colleges to ignore the initial race-linked opportunity gap between applicants like John and James will inevitably widen that gap, not narrow it. It will delay the day that every American has an equal opportunity to thrive, regardless of race.
SFFA similarly asks us to consider how much longer UNC will be able to justify considering race in its admissions process. Whatever the answer to that question was yesterday, today‘s decision will undoubtedly extend the duration of our country‘s need for such race consciousness, because the justification for admissions programs that account for race is inseparable from the race-linked gaps in health, wealth, and well-being that still exist in our society (the closure of which today‘s decision will forestall).
To be sure, while the gaps are stubborn and pernicious, Black people, and other minorities, have generally been doing better.95
Accordingly, while there are many perversities of today‘s judgment, the majority‘s failure to recognize that programs like UNC‘s carry with them the seeds of their own destruction is surely one of them. The ultimate goal of recognizing James‘s full story and (potentially) admitting him to UNC is to give him the necessary tools to contribute to closing the equity gaps discussed in Part I, supra, so that he, his progeny—and therefore all Americans—can compete without race mattering in the future. That intergenerational project is undeniably a worthy one.
In addition, and notably, thаt end is not fully achieved just because James is admitted. Schools properly care about preventing racial isolation on campus because research shows that it matters for students’ ability to learn and succeed while in college if they live and work with at least some other people who look like them and are likely to have similar experiences related to that shared characteristic.96 Equally critical, UNC‘s program ensures that students who don‘t share the same stories (like John and James) will interact in classes and on campus, and will thereby come to understand each other‘s stories, which amici tell us improves cognitive abilities and critical-thinking skills, reduces prejudice, and better prepares students for postgraduate life.97
Beyond campus, the diversity that UNC pursues for the betterment of its students and society is not a trendy slogan. It saves lives. For marginalized communities in North Carolina, it is critically important that UNC and other area institutions produce highly educated professionals of color. Research shows that Black physicians are more likely to accurately assess Black patients’ pain tolerance and treat them accordingly (including, for example, prescribing them appropriate amounts of pain medication).98 For high-risk Black newborns, having a Black physician more than doubles the likelihood that the baby will live, and not die.99 Studies also confirm what common sense counsels: Closing wealth disparities through programs like UNC‘s—which, beyond diversifying the medical profession, open doors to every sort of opportunity—helps address the aforementioned health disparities (in the long run) as well.100
Do not miss the point that ensuring a diverse student body in higher education helps everyone, not just those who, due to
Thus, we should be celebrating the fact that UNC, once a stronghold of Jim Crow, has now come to understand this. The flagship educational institution of a former Confederate State has embraced its constitutional obligation to afford genuine equal protection to applicants, and, by extension, to the broader polity that its students will serve after graduation. Surely that is progress for a university that once engaged in the kind of patently offensive race-dominated admissions process that the majority decries.
With its holistic review process, UNC now treats race as merely one aspect of an applicant‘s life, when race played a totalizing, all-encompassing, and singularly determinative role for applicants like James for most of this country‘s history: No matter what else was true about him, being Black meant he had no shot at getting in (the ultimate race-linked uneven playing field). Holistic programs like UNC‘s reflect the reality that Black students have only relatively recently been permitted to get into the admissions game at all. Such programs also reflect universities’ clear-eyed optimism that, one day, race will no longer matter.
So much upside. Universal benefits ensue from holistic admissions programs that allow consideration of all factors material to merit (including race), and that thereby facilitate diverse student populations. Once trained, those UNC students who have thrived in the university‘s diverse learning environment are well equipped to make lasting contributions in a variety of realms and with a variety of colleagues, which, in turn, will steadily decrease the salience of race for future generations. Fortunately, UNC and other institutions of higher learning are already on this beneficial path. In fact, all that they have needed to continue moving this country forward (toward full achievement of our Nation‘s founding promises) is for this Court to get out of the way and let them do their jobs. To our great detriment, the majority cannot bring itself to do so.
B
The overarching reason the majority gives for becoming an impediment to racial progress—that its own conception of the
With let-them-eat-cake obliviousness, today, the majority pulls the ripcord and announces “colorblindness for all” by legal fiat. But deeming race irrelevant in law does not make it so in life. And having so detached itself from this country‘s actual past and present experiences, the Court has now been lured into interfering with the crucial work that UNC and other institutions of higher learning are doing to solve America‘s real-world problems.
No one benefits from ignorance. Although formal race-linked legal barriers are gone, race still matters to the lived experiences of all Americans in innumerable ways, and today‘s ruling makes things worse, not better. The best that can be said of the majority‘s perspective is that it proceeds (ostrich-like) from the hope that preventing consideration of race will end racism. But if that is its motivation, the majority proceeds in vain. If the colleges of this country are required to ignore a thing that matters, it will not just go away. It will take longer for racism to leave us. And, ultimately, ignoring race just makes it matter more.103
The only way out of this morass—for all of us—is to stare at racial disparity unblinkingly, and then do what evidence and experts tell us is required to level the playing field and march forward together, collectively striving to achieve true equality for all Americans. It is no small irony that the judgment the majority hands down today will forestall the end of race-based disparities in this country, making the colorblind world the majority wistfully touts much more difficult to accomplish.
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As the Civil War neared its conclusion, General William T. Sherman and Secretary of War Edwin Stanton convened a meeting of Black leaders in Savannah, Georgia. During the meeting, someone asked Garrison Frazier, the group‘s spokesperson, what “freedom” meant to him. He answered, “placing us where we could reap the fruit of our own labor, and take care of ourselves . . . to have land, and turn it and till it by our own labor.”104
Today‘s gaps exist because that freedom was denied far longer than it was ever
Viewed from this perspective, beleaguered admissions programs such as UNC‘s are not pursuing a patently unfair, ends-justified ideal of a multiracial democracy at all. Instead, they are engaged in an earnest effort to secure a more functional one. The admissions rubrics they have constructed now recognize that an individual‘s “merit“—his ability to succeed in an institute of higher learning and ultimately contribute something to our society—cannot be fully determined without understanding that individual in full. There are no special favorites here.
UNC has thus built a review process that more accurately assesses merit than most of the admissions programs that have existed since this country‘s founding. Moreover, in so doing, universities like UNC create pathways to upward mobility for long excluded and historically disempowered racial groups. Our Nation‘s history more than justifies this course of action. And our present reality indisputably establishes that such programs are still needed for the general public good—because after centuries of state-sanctioned (and enacted) race discrimination, the aforementioned intergenerational race-based gaps in health, wealth, and well-being stubbornly persist.
Rather than leaving well enough alone, today, the majority is having none of it. Turning back the clock (to a time before the legal arguments and evidence establishing the soundness of UNC‘s holistic admissions approach existed), the Court indulges those who either do not know our Nation‘s history or long to repeat it. Simply put, the race-blind admissions stance the Court mandates from this day forward is unmoored from critical real-life circumstances. Thus, the Court‘s meddling not only arrests the noble generational project that America‘s universities are attempting, it also launches, in effect, a dismally misinformed sociological experiment.
Time will reveal the results. Yet the Court‘s own missteps are now both eternally memorialized and excruciatingly plain. For one thing—based, apparently, on nothing more than Justice Powell‘s initial say so—it drastically discounts the primary reason that the racial-diversity objectives it excoriates are needed, consigning race-related historical happenings to the Court‘s own analytical dustbin. Also, by latching onto arbitrary timelines and professing insecurity about missing metrics, the Court sidesteps unrefuted proof of the compelling benefits of holistic admissions programs that factor in race (hard to do, for there is plenty), simply proceeding as if no such evidence exists. Then, ultimately, the Court surges to vindicate equality, but Don Quixote style—pitifully perceiving itself as the sole vanguard of legal high ground when, in reality, its perspective is not constitutionally compelled and will hamper the best judgments of our world-class educational institutions about who they need to bring onto their campuses right now to benefit every American, no matter their race.105