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 Sotomayor, with whom Justice Kagan and
Justice Jackson join,[
1]*
dissenting.
The Equal Protection Clause of the Fourteenth
Amendment enshrines a guarantee of racial equality. The Court long
ago concluded that this guarantee can be enforced through
race-conscious means in a society that is not, and has never been,
colorblind. In
Brown v
. Board of Education,
347 U.S.
483 (1954), the Court recognized the constitutional necessity
of racially integrated schools in light 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 progress. It holds that
race can no longer be used in a limited way in college admissions
to achieve such critical benefits. In so holding, the Court cements
a superficial rule of colorblindness as a constitutional principle
in an endemically segregated society where race has always mattered
and continues to matter. The Court subverts the constitutional
guarantee of equal protection by further entrenching racial
inequality in education, the very foundation of our democratic
government and pluralistic society. Because the Court’s
opinion is not grounded in law or fact and contravenes the vision
of equality embodied in the Fourteenth Amendment, I dissent.
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, Art. I, §9, cl. 1, accorded
Southern States additional electoral power by counting three-fifths
of their enslaved population in apportioning congressional seats,
§2, cl. 3, and gave enslavers the right to retrieve
enslaved people who escaped to free States, Art. IV, §2,
cl. 3. Because a foundational pillar of slavery was the racist
notion that Black people are a subordinate class with intellectual
inferiority, Southern States sought to ensure slavery’s
longevity by prohibiting the education of Black people, whether
enslaved or free. See H. Williams, Self-Taught: African American
Education in Slavery and Freedom 7, 203–213 (2005)
(Self-Taught). Thus, from this Nation’s birth, the freedom to
learn was neither colorblind nor equal.
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 Thirteenth Amendment to the Constitution,
which abolished “slavery” and “involuntary
servitude, except as a punishment for crime.” §1.
“Like all great historical transformations,”
emancipation was a movement, “not a single event” owed
to any single individual, institution, or political party. E.
Foner, The Second Founding 21, 51–54 (2019) (The Second
Founding).
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 freedom of thought,
and for a more perfect Union with educational opportunity for all,
played a crucial role during the Reconstruction era.
Yet emancipation marked the beginning, not the
end, of that era. Abolition alone could not repair centuries of
racial subjugation. Following the Thirteenth Amendment’s
ratification, the Southern States replaced slavery with “a
system of ‘laws which imposed upon [Black people] onerous
disabilities and burdens, and curtailed their rights in the pursuit
of life, liberty, and property to such an extent that their freedom
was of little value.’ ”
Regents of Univ. of
Cal. v.
Bakke,
438 U.S.
265, 390 (1978) (opinion of Marshall, J.) (quoting
Slaughter-House Cases, 16 Wall. 36, 70 (1873)). Those
so-called “Black Codes” discriminated against Black
people on the basis of race, regardless of whether they had been
previously enslaved. See,
e.g., 1866 N. C. Sess. Laws
pp. 99, 102.
Moreover, the criminal punishment exception in
the Thirteenth Amendment facilitated the creation of a new system
of forced labor in the South. Southern States expanded their
criminal laws, which in turn “permitted involuntary servitude
as a punishment” for convicted Black persons. D. Blackmon,
Slavery by Another Name: The Re-Enslavement of Black Americans From
the Civil War to World War II, pp. 7, 53 (2009) (Slavery by Another
Name). States required, for example, that Black people “sign
a labor contract to work for a white employer or face prosecution
for vagrancy.” The Second Founding 48. State laws then forced
Black convicted persons to labor in “plantations, mines, and
industries in the South.”
Id., at 50. This system of
free forced labor provided tremendous benefits to Southern whites
and was designed to intimidate, subjugate, and control newly
emancipated Black people. See Slavery by Another Name 5–6,
53
. The Thirteenth Amendment, without more, failed to
equalize society.
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 Fourteenth Amendment. Proponents of the Amendment
declared that one of its key goals was to “protec[t] the
black man in his fundamental rights as a citizen with the same
shield which it throws over the white man.” Cong. Globe, 39th
Cong., 1st Sess., 2766 (1866) (Cong. Globe) (statement of Sen.
Howard). That is, the Amendment sought “to secure to a race
recently emancipated, a race that through many generations [was]
held in slavery, all the civil rights that the superior race
enjoy.”
Plessy v.
Ferguson,
163
U.S. 537, 555–556 (1896) (Harlan, J., dissenting)
(internal quotation marks omitted).
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 within its jurisdiction the
equal protection of the laws.” Amdt. 14, §1. Congress
chose its words carefully, opting for expansive language that
focused on equal protection and rejecting “proposals that
would have made the Constitution explicitly color-blind.” A.
Kull, The Color-Blind Constitution 69 (1992); see also,
e.g., Cong. Globe 1287 (rejecting proposed language
providing that “no State . . . shall
. . . recognize any distinction between citizens
. . . on account of race or color”). This choice
makes it clear that the Fourteenth Amendment does not impose a
blanket ban on race-conscious policies.
Simultaneously with the passage of the
Fourteenth Amendment, Congress enacted a number of race-conscious
laws to fulfill the Amendment’s promise of equality, leaving
no doubt that the Equal Protection Clause permits consideration of
race to achieve its goal. One such law was the Freedmen’s
Bureau Act, enacted in 1865 and then expanded in 1866, which
established a federal agency to provide certain benefits to
refugees and newly emancipated freedmen. See Act of Mar. 3, 1865,
ch. 90, 13Stat. 507; Act of July 16, 1866, ch. 200, 14Stat.
173. For the Bureau, education “was the foundation upon which
all efforts to assist the freedmen rested.” E. Foner,
Reconstruction: America’s Unfinished Revolution
1863–1877, p. 144 (1988). Consistent with that view, the
Bureau provided essential “funding for black education during
Reconstruction.”
Id., at 97.
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 Fourteenth Amendment, the Bureau “educated
approximately 100,000 students, nearly all of them black,”
and regardless of “degree of past disadvantage.” E.
Schnapper, Affirmative Action and the Legislative History of the
Fourteenth Amendment, 71 Va. L. Rev. 753, 781 (1985). The
Bureau also provided land and funding to establish some of our
Nation’s Historically Black Colleges and Universities
(HBCUs).
Ibid.; see also Brief for HBCU Leaders et al. as
Amici Curiae 13 (HBCU Brief ). In 1867, for example,
the Bureau provided Howard University tens of thousands of dollars
to buy property and construct its campus in our Nation’s
capital. 2 O. Howard, Autobiography 397–401 (1907). Howard
University was designed to provide “special opportunities for
a higher education to the newly enfranchised of the south,”
but it was available to all Black people, “whatever may have
been their previous condition.” Bureau Refugees, Freedmen and
Abandoned Lands, Sixth Semi-Annual Report on Schools for Freedmen
60 (July 1, 1868).[
2] The
Bureau also “expended a total of $407,752.21 on black
colleges, and only $3,000 on white colleges” from 1867 to
1870. Schnapper, 71 Va. L. Rev., at 798, n. 149.
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 created harmful racial classifications that favored
Black people and disfavored white Americans. See,
e.g.,
Cong. Globe 397 (statement of Sen. Willey) (the Act makes “a
distinction on account of color between the two races”), 544
(statement of Rep. Taylor) (the Act is “legislation for a
particular class of the blacks to the exclusion of all
whites”), App. to Cong. Globe, 39th Cong., 1st Sess.,
69–70 (statement of Rep. Rousseau) (“You raise a spirit
of antagonism between the black race and the white race in our
country, and the law-abiding will be powerless to control
it”). President Andrew Johnson vetoed the bill on the basis
that it provided benefits “to a particular class of
citizens,” 6 Messages and Papers of the Presidents
1789–1897, p. 425 (J. Richardson ed. 1897) (Messages
& Papers) (A. Johnson to House of Rep. July 16, 1866), but
Congress overrode his veto. Cong. Globe 3849–3850. Thus,
rejecting those opponents’ objections, the same
Reconstruction Congress that passed the Fourteenth Amendment
eschewed the concept of colorblindness as sufficient to remedy
inequality in education.
Congress also debated and passed the Civil
Rights Act of 1866 contemporaneously with the Fourteenth Amendment.
The goal of that Act was to eradicate the Black Codes enacted by
Southern States following ratification of the Thirteenth Amendment.
See
id., at 474. Because the Black Codes focused on race,
not just slavery-related status, the Civil Rights Act explicitly
recognized that white citizens enjoyed certain rights that
non-white citizens did not. Section 1 of the Act provided that all
persons “of every race and color . . . shall have
the same right[s]” as those “enjoyed by white
citizens.” Act of Apr. 9, 1866, 14Stat. 27. Similarly,
Section 2 established criminal penalties for subjecting racial
minorities to “different punishment . . . by reason
of . . . color or race, than is prescribed for the
punishment of white persons.”
Ibid. In other words,
the Act was not colorblind. By using white citizens as a benchmark,
the law classified by race and took account of the privileges
enjoyed only by white people. As he did with the Freedmen’s
Bureau Act, President Johnson vetoed the Civil Rights Act in part
because he viewed it as providing Black citizens with special
treatment. See Messages and Papers 408, 413 (the Act is designed
“to afford discriminating protection to colored
persons,” and its “distinction of race and color
. . . operate[s] in favor of the colored and against the
white race”). Again, Congress overrode his veto. Cong. Globe
1861. In fact, Congress reenacted race-conscious language in the
Civil Rights Act of 1870, two years after ratification of the
Fourteenth Amendment, see Act of May 31, 1870, §16, 16Stat.
144, where it remains today, see 42 U. S. C.
§§1981(a) and 1982 (Rev. Stat. §§1972,
1978).
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, 14Stat.
317. Several times during and after the passage of the Fourteenth
Amendment, Congress also made special appropriations and adopted
special protections for the bounty and prize money owed to
“colored soldiers and sailors” of the Union Army.
14Stat. 357, Res. No. 46, June 15, 1866; Act of Mar. 3, 1869, ch.
122, 15Stat. 301; Act of Mar. 3, 1873, 17Stat. 528. In doing so, it
rebuffed objections to these measures as “class
legislation” “applicable to colored people and not
. . . to the white people.” Cong. Globe, 40th
Cong., 1st Sess., 79 (1867) (statement of Sen. Grimes). This
history makes it “inconceivable” that race-conscious
college admissions are unconstitutional.
Bakke, 438
U. S., at 398 (opinion of Marshall, J.).[
3]
B
The Reconstruction era marked a
transformational point in the history of American democracy. Its
vision of equal opportunity leading to an equal society “was
short-lived,” however, “with the assistance of this
Court.”
Id., at 391. In a series of decisions, the
Court “sharply curtailed” the “substantive
protections” of the Reconstruction Amendments and the Civil
Rights Acts.
Id., at 391–392 (collecting cases). That
endeavor culminated with the Court’s shameful decision in
Plessy v.
Ferguson,
163 U.S.
537 (1896), which established that “equality of
treatment” exists “when the races are provided
substantially equal facilities, even though these facilities be
separate.”
Brown, 347 U. S., at 488. Therefore,
with this Court’s approval, government-enforced segregation
and its concomitant destruction of equal opportunity became the
constitutional norm and infected every sector of our society, from
bathrooms to military units and, crucially, schools. See
Bakke, 438 U. S., at 393–394 (opinion of
Marshall, J.); see also generally R. Rothstein, The Color of Law
17–176 (2017) (discussing various federal policies that
promoted racial segregation).
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 Fourteenth Amendment.”
Id., at 494–495. The
Court thus ordered segregated schools to transition to a racially
integrated system of public education “with all deliberate
speed,” “ordering the immediate admission of [Black
children] to schools previously attended only by white
children.”
Brown v.
Board of Education,
349 U.S.
294, 301 (1955).
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 the
vestiges of segregation).[
4]
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 Fourteenth Amendment and the legacy of
racial inequality in our society. See
id., at 396–402
(arguing that “a class-based remedy” should be
constitutionally permissible in light of the hundreds of
“years of class-based discrimination against [Black
Americans]”). The Court’s recharacterization of
Brown is nothing but revisionist history and an affront to
the legendary life of Justice Marshall, a great jurist who was a
champion of true equal opportunity, not rhetorical flourishes about
colorblindness.
C
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 Fourteenth Amendment if it “is narrowly tailored to
obtain the educational benefits of diversity.”
Id., at
314, 337. Several years later, in
Fisher v.
University of
Texas at Austin, 579 U.S. 365, 376 (2016) (
Fisher II),
the Court upheld the admissions program at the University of Texas
under this framework.
Id., at 380–388.
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 also in principles of “academic
freedom,” which “ ‘long [have] been viewed
as a special concern of the First Amendment.’ ”
Id., at 324 (quoting
Bakke, 438 U. S., at 312).
In light of “the important purpose of public education and
the expansive freedoms of speech and thought associated with the
university environment,” this Court’s precedents
recognize the imperative nature of diverse student bodies on
American college campuses. 539 U. S., at 329. Consistent with
the First Amendment, student body diversity allows universities to
promote “th[e] robust exchange of ideas which discovers truth
out of a multitude of tongues [rather] than through any kind of
authoritative selection. ”
Bakke, 438 U. S.,
at 312 (internal quotation marks omitted). Indeed, as the Court
recently reaffirmed in another school case, “learning how to
tolerate diverse expressive activities has always been ‘part
of learning how to live in a pluralistic
society’ ” under our constitutional tradition.
Kennedy v.
Bremerton School Dist., 597 U. S.
___, ___ (2022) (slip op., at 29); cf.
Khorrami v.
Arizona, 598 U. S. ___, ___ (2022) (Gorsuch, J.,
dissenting from denial of certiorari) (slip op., at 8) (collecting
research showing that larger juries are more likely to be racially
diverse and “deliberate longer, recall information better,
and pay greater attention to dissenting voices”).
In short, for more than four decades, it has
been this Court’s settled law that the Equal Protection
Clause of the Fourteenth Amendment authorizes a limited use of race
in college admissions in service of the educational benefits that
flow from a diverse student body. From
Brown to
Fisher, this Court’s cases have sought to equalize
educational opportunity in a society structured by racial
segregation and to advance the Fourteenth Amendment’s vision
of an America where racially integrated schools guarantee students
of all races the equal protection of the laws.
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
Fourteenth Amendment is not only contrary to precedent and the
entire teachings of our history, see
supra, at 2–17,
but is also grounded in the illusion that racial inequality was a
problem of a different generation. Entrenched racial inequality
remains a reality today. That is true for society writ large and,
more specifically, for Harvard and the University of North Carolina
(UNC), two institutions with a long history of racial exclusion.
Ignoring race will not equalize a society that is racially unequal.
What was true in the 1860s, and again in 1954, is true today:
Equality requires acknowledgment of inequality.
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.[
5] The
share of intensely segregated minority schools (
i.e.,
schools that enroll 90% to 100% racial minorities) has sharply
increased.[
6] To this day, the
U. S. Department of Justice continues to enter into
desegregation decrees with schools that have failed to
“eliminat[e] the vestiges of
de jure
segregation.” [
7]
Moreover, underrepresented minority students are
more likely to live in poverty and attend schools with a high
concentration of poverty.[
8]
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).[
9] 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.[
10] It is thus unsurprising that there are achievement
gaps along racial lines, even after controlling for income
differences.[
11]
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.[
12]
Underrepresented minorities are less likely to have parents with a
postsecondary education who may be familiar with the college
application process.[
13]
Further, low-income children of color are less likely to attend
preschool and other early childhood education programs that
increase educational attainment.[
14] All of these interlocked factors place
underrepresented minorities multiple steps behind the starting line
in the race for college admissions.
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.[
15]
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,[
16]
income levels,[
17] wealth
and homeownership,[
18] and
healthcare access.[
19] 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 protection.”
Schuette, 572
U. S., at 381 (dissenting opinion).
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.[
20]
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.[
21]
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.
ii
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 antislavery 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.
* * *
These may be uncomfortable truths to some, but
they are truths nonetheless. “Institutions can and do
change,” however, as societal and legal changes force them
“to live up to [their] highest ideals.” Harvard Report
56. It is against this historical backdrop that Harvard and UNC
have reckoned with their past and its lingering effects.
Acknowledging the reality that race has always mattered and
continues to matter, these universities have established
institutional goals of diversity and inclusion. Consistent with
equal protection principles and this Court’s settled law,
their policies use race in a limited way with the goal of
recruiting, admitting, and enrolling underrepresented racial
minorities to pursue the well-documented benefits of racial
integration in education.
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., at ___ (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, 42 U. S. C.
§2000d
et seq.[
22]
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 of these
cases and because of the narrow scope of the issues presented by
petitioner Students for Fair Admissions, Inc. (SFFA).[
23]
These cases arrived at this Court after two
lengthy trials. Harvard and UNC introduced dozens of fact
witnesses, expert testimony, and documentary 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).[
24]
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 proposed race-neutral
alternatives do not meet those criteria.
UNC, 567
F. Supp. 3d, at 648. All of SFFA’s proposals are
methodologically flawed because they rest on
“ ‘terribly unrealistic’ ”
assumptions about the applicant pools.
Id., at
643–645, 647. For example, as to one set of proposals,
SFFA’s expert “unrealistically assumed” that
“all of the top students in the candidate pools he use[d]
would apply, be admitted, and enroll.”
Id., at 647. In
addition, some of SFFA’s proposals force UNC to
“abandon its holistic approach” to college admissions,
id., at 643–645, n. 43, a result “in deep
tension with the goal of educational diversity as this
Court’s cases have defined it,”
Fisher II, 579
U. S., at 386–387. Others are “largely
impractical—not to mention unprecedented—in higher
education.” 567 F. Supp. 3d, at 647. SFFA’s
proposed top percentage plans,[
25] for example, are based on a made-up and complicated
admissions index that requires UNC to “access . . .
real-time data for all high school students.”
Ibid.
UNC is then supposed to use that index, which “would change
every time any student took a standardized test,” to rank
students based on grades and test scores.
Ibid. One of
SFFA’s top percentage plans would even “nearly erase
the Native American incoming class” at UNC.
Id., at
646. The courts below correctly concluded that UNC is not required
to adopt SFFA’s unrealistic proposals to satisfy strict
scrutiny.[
26]
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.[
27]
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
190.[
28] Indeed,
Harvard’s admissions process is so competitive and the use of
race is so limited and flexible that, as “SFFA’s own
expert’s analysis” showed, “Harvard rejects more
than two-thirds of Hispanic applicants and slightly less than half
of all African-American applicants who are among the top 10% most
academically promising applicants.”
Id., at 191.
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.[
29]
Finally, the courts below correctly concluded
that Harvard complies with this Court’s repeated admonition
that colleges and universities cannot define their diversity
interest “as ‘some specified percentage of a particular
group merely because of its race or ethnic
origin.’ ”
Fisher I, 570 U. S., at 311
(quoting
Bakke, 438 U. S., at 307). Harvard does not
specify its diversity objectives in terms of racial quotas, and
“SFFA did not offer expert testimony to support its racial
balancing claim.”
Harvard II, 980 F. 3d, at 180,
186–187. Harvard’s statistical evidence, by contrast,
showed that the admitted classes across racial groups varied
considerably year to year, a pattern “inconsistent with the
imposition of a racial quota or racial balancing.”
Harvard
I, 397 F. Supp. 3d, at 176–177; see
Harvard
II, 980 F. 3d, at 180, 188–189.
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.[
30]
III
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 Fourteenth Amendment and this Court’s
broader equal protection jurisprudence. The text and history of the
Fourteenth Amendment make clear that the Equal Protection Clause
permits race-conscious measures. See
supra, at 2–9.
Consistent with that view, the Court has explicitly held that
“race-based action” is sometimes “within
constitutional constraints.”
Adarand Constructors,
Inc. v.
Peña,
515 U.S.
200, 237 (1995). The Court has thus upheld the use of race in a
variety of contexts. See,
e.g.,
Parents Involved in
Community Schools v.
Seattle School Dist. No. 1,
551 U.S.
701, 737 (2007) (“[T]he obligation to disestablish a
school system segregated by law can include race-conscious
remedies—whether or not a court had issued an order to that
effect”);
Johnson v.
California,
543 U.S.
499, 512 (2005) (use of race permissible to further
prison’s interest in
“ ‘security’ ” and
“ ‘discipline’ ”);
Cooper
v.
Harris, 581 U.S. 285, 291–293 (2017) (use of race
permissible when drawing voting districts in some
circumstances).[
31]
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).[
32] 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 inspection at a checkpoint, concluding that
“even if it be assumed that such referrals are made largely
on the basis of apparent Mexican ancestry, [there is] no
constitutional violation.”
United States v
.
Martinez-Fuerte,
428 U.S.
543, 562–563 (1976) (footnote omitted).
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 Fourteenth
Amendment’s guarantee of equal protection.
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 Fourteenth Amendment does not categorically
prohibit the use of race in college admissions.
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
.[
33] 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, at
18–21. He also argues that race can be used if it satisfies
strict scrutiny more broadly, and he considers compelling interests
those that prevent anarchy, curb violence, and segregate prisoners.
Ante, at 26. Thus, although Justice Thomas at times suggests
that the Constitution only permits “directly remedial”
measures that benefit “identified victims of
discrimination,”
ante, at 20, he agrees that the
Constitution tolerates a much wider range of race-conscious
measures.
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”).[
34] 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” and
“worthy” racial diversity goals,
ante, at
23–24, they make a clear value judgment today: Racial
integration in higher education is not sufficiently important to
them. “Today, the proclivities of individuals rule.”
Dobbs, 597 U. S., at ___ (dissenting opinion) (slip
op., at 6).
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 Black, and
12.6% are Latino.
Ibid. Although “ALDC applicants make
up less than 5% of applicants to Harvard,” they constitute
“around 30% of the applicants admitted each year.”
Ibid. Similarly, because of achievement gaps that result
from entrenched racial inequality in K–12 education, see
infra, at 18–21, a heavy emphasis on grades and
standardized test scores disproportionately disadvantages
underrepresented racial minorities. Stated simply, race is one
small piece of a much larger admissions puzzle where most of the
pieces disfavor underrepresented racial minorities. That is
precisely why underrepresented racial minorities remain
underrepresented. The Court’s suggestion that an
already advantaged racial group is “disadvantaged”
because of a limited use of race is a myth.
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 Fourteenth Amendment or its
history supports the Court’s shocking proposition, which
echoes arguments made by opponents of Reconstruction-era laws and
this Court’s decision in
Brown.
Supra, at
2–17. In a society where opportunity is dispensed along
racial lines, racial equality cannot be achieved without making
room for underrepresented groups that for far too long were denied
admission through the force of law, including at Harvard and UNC.
Quite the opposite: A racially integrated vision of society, in
which institutions reflect all sectors of the American public and
where “the sons of former slaves and the sons of former slave
owners [are] able to sit down together at the table of
brotherhood,” is precisely what the Equal Protection Clause
commands. Martin Luther King “I Have a Dream” Speech
(Aug. 28, 1963). It is “essential if the dream of one Nation,
indivisible, is to be realized.”
Grutter, 539
U. S., at 332.[
35]
By singling out race, the Court imposes a
special burden on racial minorities for whom race is a crucial
component of their identity. Holistic admissions require
“truly individualized consideration” of the whole
person.
Id., at 334. Yet, “by foreclosing racial
considerations, colorblindness denies those who racially
self-identify the full expression of their identity” and
treats “racial identity as inferior” among all
“other forms of social identity.” E. Boddie, The
Indignities of Colorblindness, 64 UCLA L. Rev. Discourse, 64,
67 (2016). The Court’s approach thus turns the Fourteenth
Amendment’s equal protection guarantee on its head and
creates an equal protection problem of its own.
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 the dozens of application files in the
record “uniformly show that, in line with Harvard’s
‘whole-person’ admissions philosophy, Harvard’s
admissions officers engage in a highly nuanced assessment of each
applicant’s background and qualifications”). After
extensive discovery and two lengthy trials, neither SFFA nor the
majority can point to a single example of an underrepresented
racial minority who was admitted to Harvard or UNC on the basis of
“race alone.”
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, and
first-generation college status are all important but different
“parts to getting a full picture” of who she is and how
she “see[s] the world”). At SFFA’s own urging,
those efforts remain constitutionally permissible. See Brief for
Petitioner 81–86 (emphasizing “race-neutral”
alternatives that Harvard and UNC should implement, such as those
that focus on socioeconomic and geographic diversity, percentage
plans, plans that increase community college transfers, and plans
that develop partnerships with disadvantaged high schools); see
also
ante, at 51, 53, 55–56 (Thomas, J., concurring)
(arguing universities can consider “[r]ace-neutral
policies” similar to those adopted in States such as
California and Michigan, and that universities can consider
“status as a first-generation college applicant,”
“financial means,” and “generational inheritance
or otherwise”);
ante, at 8 (Kavanaugh, J., concurring)
(citing SFFA’s briefs and concluding that universities can
use “race-neutral” means);
ante, at 14,
n. 4 (Gorsuch, J., concurring) (“recount[ing] what SFFA
has argued every step of the way” as to “race-neutral
tools”).
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.[
36]
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 strict scrutiny
“ ‘fatal in fact.’ ”
Id.,
at 326 (quoting
Adarand Constructors,
Inc., 515
U. S., at 237). Indeed, the Court gives the game away when it
holds that, to the extent respondents are actually measuring their
diversity objectives with any level of specificity (for example,
with a “focus on numbers” or specific “numerical
commitment”), their plans are unconstitutional.
Ante,
at 30–31; see also
ante, at 29 (Thomas, J.,
concurring) (“I highly doubt any [university] will be able
to” show a “measurable state interest”).
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.[
37]
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 sense.
Grutter simply announced a general
“expect[ation]” that “the use of racial
preferences [would] no longer be necessary” in the future.
539 U. S., at 343. As even SFFA acknowledges, those remarks
were nothing but aspirational statements by the
Grutter
Court. Tr. of Oral Arg. in No. 21–707, p. 56.
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 vaccum, 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
.[
38]
Harvard and UNC engage in the ongoing review
that the Court’s precedents demand. They “use [their]
data to scrutinize the fairness of [their] admissions program[s];
to assess whether changing demographics have undermined the need
for a race-conscious policy; and to identify the effects, both
positive and negative, of the affirmative-action measures [they]
dee[m] necessary.”
Fisher II, 579 U. S., at 388.
The Court holds, however, that respondents’ attention to
numbers amounts to unconstitutional racial balancing.
Ante,
at 30–32. But “ ‘[s]ome attention to
numbers’ ” is both necessary and permissible.
Grutter, 539 U. S., at 336 (quoting
Bakke, 438
U. S., at 323). Universities cannot blindly operate their
limited race-conscious programs without regard for any quantitative
information. “Increasing minority enrollment [is]
instrumental to th[e] educational benefits” that respondents
seek to achieve,
Fisher II, 579 U. S., at 381, and
statistics, data, and numbers “have some value as a gauge of
[respondents’] ability to enroll students who can offer
underrepresented perspectives.”
Id., at 383–384.
By removing universities’ ability to assess the success of
their programs, the Court obstructs these institutions’
ability to meet their diversity goals.
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
skeptical of the mismatch hypothesis”). Notably, this
refutation of the mismatch theory was coauthored by one of
SFFA’s experts, as Justice Thomas seems to recognize.
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 Professors of Economics as
Amici Curiae
24. It is also true, however, that there was a lengthy trial to
test those allegations, which SFFA lost. Justice Thomas points to
no legal or factual error below, precisely because there is
none.
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.[
39] 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.[
40] 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” with views similar
to those “that motivated
Dred Scott and
Plessy” are the ones who support race conscious
admissions.
Ante, at 39. The plethora of young students of
color who testified in favor of race-consciousness proves
otherwise. See
supra, at 46–47; see also
infra,
at 64–67 (discussing numerous
amici from many sectors
of society supporting respondents’ policies). Not a single
student—let alone any racial minority—affected by the
Court’s decision testified in favor of SFFA in these
cases.
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 to Title VI in particular, colleges and
universities have relied on
Grutter for decades in accepting
federal funds. See Brief for United States as
Amicus Curiae
in No. 20–1199, p. 25 (United States Brief );
Georgetown Brief 16.
The 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”).
Experience teaches that the consequences of
today’s decision will be destructive. The two lengthy trials
below simply confirmed what we already knew: Superficial
colorblindness in a society that systematically segregates
opportunity will cause a sharp decline in the rates at which
underrepresented minority students enroll in our Nation’s
colleges and universities, turning the clock back and undoing the
slow yet significant progress already achieved. See
Schuette, 572 U. S., at 384–390 (Sotomayor, J.,
dissenting) (collecting statistics from States that have banned the
use of race in college admissions); see also Amherst Brief 13
(noting that eliminating the use of race in college admissions will
take Black student enrollment at elite universities back to levels
this country saw in the early 1960s).
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
Amicus 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 Corps (ROTC) programs
and educate students who go on to become officers.”
Ibid. Top former military leaders agree. See Brief for Adm.
Charles S. Abbot et al. as
Amici Curiae 3 (noting that
in
amici’s “professional judgment, the status
quo—which permits service academies and civilian universities
to consider racial diversity as one factor among many in their
admissions practices—is essential to the continued vitality
of the U. S. military”).
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 performance 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 and 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
diverse pipeline of college graduates also improves research by
reducing bias and increasing group collaboration. Brief for
Individual Scientists as
Amici Curiae 13–14. It
creates a more equitable and inclusive media industry that
communicates diverse viewpoints and perspectives. Brief for
Multicultural Media, Telecom and Internet Council, Inc.,
et al. as
Amici Curiae 6. It also drives innovation in
an increasingly global science and technology industry. Brief for
Applied Materials, Inc., et al. as
Amici Curiae
11–20.
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.[
41] So do most business leaders.[
42] 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)).[
43]
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, reserving “positions of influence,
affluence, and prestige in America” for a predominantly white
pool of college graduates.
Bakke, 438 U. S., at 401
(opinion of Marshall, J.). At its core, today’s decision
exacerbates segregation and diminishes the inclusivity of our
Nation’s institutions in service of superficial neutrality
that promotes indifference to inequality and ignores the reality of
race.
* * *
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).