Students for Fair Admissions, Inc. v. President and Fellows of Harvard College

(Slip Opinion) OCTOBER TERM, 2022 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
STUDENTS FOR FAIR ADMISSIONS, INC. v.
PRESIDENT AND FELLOWS OF HARVARD COLLEGE
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE FIRST CIRCUIT
No. 20–1199. Argued October 31, 2022—Decided June 29, 2023*
Harvard College and the University of North Carolina (UNC) are two of
the oldest institutions of higher learning in the United States. Every
year, tens of thousands of students apply to each school; many fewer
are admitted. Both Harvard and UNC employ a highly selective ad-
missions process to make their decisions. Admission to each school can
depend on a student’s grades, recommendation letters, or extracurric-
ular involvement. It can also depend on their race. The question pre-
sented is whether the admissions systems used by Harvard College
and UNC are lawful under the Equal Protection Clause of the Four-
teenth Amendment.
At Harvard, each application for admission is initially screened by a
“first reader,” who assigns a numerical score in each of six categories:
academic, extracurricular, athletic, school support, personal, and over-
all. For the “overall” category—a composite of the five other ratings—
a first reader can and does consider the applicant’s race. Harvard’s
admissions subcommittees then review all applications from a partic-
ular geographic area. These regional subcommittees make recommen-
dations to the full admissions committee, and they take an applicant’s
race into account. When the 40-member full admissions committee
begins its deliberations, it discusses the relative breakdown of appli-
cants by race. The goal of the process, according to Harvard’s director
of admissions, is ensuring there is no “dramatic drop-off” in minority
admissions from the prior class. An applicant receiving a majority of
——————
* Together with No. 21–707, Students for Fair Admissions, Inc. v. Uni-
versity of North Carolina et al., on certiorari before judgment to the
United States Court of Appeals for the Fourth Circuit.
2 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
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the full committee’s votes is tentatively accepted for admission. At the
end of this process, the racial composition of the tentative applicant
pool is disclosed to the committee. The last stage of Harvard’s admis-
sions process, called the “lop,” winnows the list of tentatively admitted
students to arrive at the final class. Applicants that Harvard consid-
ers cutting at this stage are placed on the “lop list,” which contains
only four pieces of information: legacy status, recruited athlete status,
financial aid eligibility, and race. In the Harvard admissions process,
“race is a determinative tip for” a significant percentage “of all admit-
ted African American and Hispanic applicants.”
UNC has a similar admissions process. Every application is re-
viewed first by an admissions office reader, who assigns a numerical
rating to each of several categories. Readers are required to consider
the applicant’s race as a factor in their review. Readers then make a
written recommendation on each assigned application, and they may
provide an applicant a substantial “plus” depending on the applicant’s
race. At this stage, most recommendations are provisionally final. A
committee of experienced staff members then conducts a “school group
review” of every initial decision made by a reader and either approves
or rejects the recommendation. In making those decisions, the com-
mittee may consider the applicant’s race.
Petitioner, Students for Fair Admissions (SFFA), is a nonprofit or-
ganization whose stated purpose is “to defend human and civil rights
secured by law, including the right of individuals to equal protection
under the law.” SFFA filed separate lawsuits against Harvard and
UNC, arguing that their race-based admissions programs violate, re-
spectively, Title VI of the Civil Rights Act of 1964 and the Equal Pro-
tection Clause of the Fourteenth Amendment. After separate bench
trials, both admissions programs were found permissible under the
Equal Protection Clause and this Court’s precedents. In the Harvard
case, the First Circuit affirmed, and this Court granted certiorari. In
the UNC case, this Court granted certiorari before judgment.
Held: Harvard’s and UNC’s admissions programs violate the Equal Pro-
tection Clause of the Fourteenth Amendment. Pp. 6–40.
(a) Because SFFA complies with the standing requirements for or-
ganizational plaintiffs articulated by this Court in Hunt v. Washington
State Apple Advertising Comm’n, 432 U. S. 333, SFFA’s obligations un-
der Article III are satisfied, and this Court has jurisdiction to consider
the merits of SFFA’s claims.
The Court rejects UNC’s argument that SFFA lacks standing be-
cause it is not a “genuine” membership organization. An organiza-
tional plaintiff can satisfy Article III jurisdiction in two ways, one of
which is to assert “standing solely as the representative of its mem-
Cite as: 600 U. S. ____ (2023) 3
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bers,” Warth v. Seldin, 422 U. S. 490, 511, an approach known as rep-
resentational or organizational standing. To invoke it, an organization
must satisfy the three-part test in Hunt. Respondents do not suggest
that SFFA fails Hunt’s test for organizational standing. They argue
instead that SFFA cannot invoke organizational standing at all be-
cause SFFA was not a genuine membership organization at the time
it filed suit. Respondents maintain that, under Hunt, a group qualifies
as a genuine membership organization only if it is controlled and
funded by its members. In Hunt, this Court determined that a state
agency with no traditional members could still qualify as a genuine
membership organization in substance because the agency repre-
sented the interests of individuals and otherwise satisfied Hunt’s
three-part test for organizational standing. See 432 U. S., at 342.
Hunt’s “indicia of membership” analysis, however, has no applicability
here. As the courts below found, SFFA is indisputably a voluntary
membership organization with identifiable members who support its
mission and whom SFFA represents in good faith. SFFA is thus enti-
tled to rely on the organizational standing doctrine as articulated in
Hunt. Pp. 6–9.
(b) Proposed by Congress and ratified by the States in the wake of
the Civil War, the Fourteenth Amendment provides that no State shall
“deny to any person . . . the equal protection of the laws.” Proponents
of the Equal Protection Clause described its “foundation[al] principle”
as “not permit[ing] any distinctions of law based on race or color.” Any
“law which operates upon one man,” they maintained, should “operate
equally upon all.” Accordingly, as this Court’s early decisions inter-
preting the Equal Protection Clause explained, the Fourteenth
Amendment guaranteed “that the law in the States shall be the same
for the black as for the white; that all persons, whether colored or
white, shall stand equal before the laws of the States.”
Despite the early recognition of the broad sweep of the Equal Pro-
tection Clause, the Court—alongside the country—quickly failed to
live up to the Clause’s core commitments. For almost a century after
the Civil War, state-mandated segregation was in many parts of the
Nation a regrettable norm. This Court played its own role in that ig-
noble history, allowing in Plessy v. Ferguson the separate but equal
regime that would come to deface much of America. 163 U. S. 537.
After Plessy, “American courts . . . labored with the doctrine [of sep-
arate but equal] for over half a century.” Brown v. Board of Education,
347 U. S. 483, 491. Some cases in this period attempted to curtail the
perniciousness of the doctrine by emphasizing that it required States
to provide black students educational opportunities equal to—even if
formally separate from—those enjoyed by white students. See, e.g.,
Missouri ex rel. Gaines v. Canada, 305 U. S. 337, 349–350. But the
4 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
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inherent folly of that approach—of trying to derive equality from ine-
quality—soon became apparent. As the Court subsequently recog-
nized, even racial distinctions that were argued to have no palpable
effect worked to subordinate the afflicted students. See, e.g., McLau-
rin v. Oklahoma State Regents for Higher Ed., 339 U. S. 637, 640–642.
By 1950, the inevitable truth of the Fourteenth Amendment had thus
begun to reemerge: Separate cannot be equal.
The culmination of this approach came finally in Brown v. Board of
Education, 347 U. S. 483. There, the Court overturned the separate
but equal regime established in Plessy and began on the path of inval-
idating all de jure racial discrimination by the States and Federal Gov-
ernment. The conclusion reached by the Brown Court was unmistak-
ably clear: the right to a public education “must be made available to
all on equal terms.” 347 U. S., at 493. The Court reiterated that rule
just one year later, holding that “full compliance” with Brown required
schools to admit students “on a racially nondiscriminatory basis.”
Brown v. Board of Education, 349 U. S. 294, 300–301.
In the years that followed, Brown’s “fundamental principle that ra-
cial discrimination in public education is unconstitutional,” id., at 298,
reached other areas of life—for example, state and local laws requiring
segregation in busing, Gayle v. Browder, 352 U. S. 903 (per curiam);
racial segregation in the enjoyment of public beaches and bathhouses
Mayor and City Council of Baltimore v. Dawson, 350 U. S. 877 (per cu-
riam); and antimiscegenation laws, Loving v. Virginia, 388 U. S. 1.
These decisions, and others like them, reflect the “core purpose” of the
Equal Protection Clause: “do[ing] away with all governmentally im-
posed discrimination based on race.” Palmore v. Sidoti, 466 U. S. 429,
432.
Eliminating racial discrimination means eliminating all of it. Ac-
cordingly, the Court has held that the Equal Protection Clause applies
“without regard to any differences of race, of color, or of nationality”—
it is “universal in [its] application.” Yick Wo v. Hopkins, 118 U. S. 356,
369. For “[t]he guarantee of equal protection cannot mean one thing
when applied to one individual and something else when applied to a
person of another color.” Regents of Univ. of Cal. v. Bakke, 438 U. S.
265, 289–290.
Any exceptions to the Equal Protection Clause’s guarantee must
survive a daunting two-step examination known as “strict scrutiny,”
Adarand Constructors, Inc. v. Peña, 515 U. S. 200, 227, which asks
first whether the racial classification is used to “further compelling
governmental interests,” Grutter v. Bollinger, 539 U. S. 306, 326, and
second whether the government’s use of race is “narrowly tailored,”
i.e., “necessary,” to achieve that interest, Fisher v. University of Tex. at
Austin, 570 U. S. 297, 311–312. Acceptance of race-based state action
Cite as: 600 U. S. ____ (2023) 5
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is rare for a reason: “[d]istinctions between citizens solely because of
their ancestry are by their very nature odious to a free people whose
institutions are founded upon the doctrine of equality.” Rice v. Cay-
etano, 528 U. S. 495, 517. Pp. 9–16.
(c) This Court first considered whether a university may make race-
based admissions decisions in Bakke, 438 U. S. 265. In a deeply splin-
tered decision that produced six different opinions, Justice Powell’s
opinion for himself alone would eventually come to “serv[e] as the
touchstone for constitutional analysis of race-conscious admissions
policies.” Grutter, 539 U. S., at 323. After rejecting three of the Uni-
versity’s four justifications as not sufficiently compelling, Justice Pow-
ell turned to its last interest asserted to be compelling—obtaining the
educational benefits that flow from a racially diverse student body.
Justice Powell found that interest to be “a constitutionally permissible
goal for an institution of higher education,” which was entitled as a
matter of academic freedom “to make its own judgments as to . . . the
selection of its student body.” 438 U. S., at 311–312. But a university’s
freedom was not unlimited—“[r]acial and ethnic distinctions of any
sort are inherently suspect,” Justice Powell explained, and antipathy
toward them was deeply “rooted in our Nation’s constitutional and de-
mographic history.” Id., at 291. Accordingly, a university could not
employ a two-track quota system with a specific number of seats re-
served for individuals from a preferred ethnic group. Id., at 315. Nei-
ther still could a university use race to foreclose an individual from all
consideration. Id., at 318. Race could only operate as “a ‘plus’ in a
particular applicant’s file,” and even then it had to be weighed in a
manner “flexible enough to consider all pertinent elements of diversity
in light of the particular qualifications of each applicant.” Id., at 317.
Pp. 16–19.
(d) For years following Bakke, lower courts struggled to determine
whether Justice Powell’s decision was “binding precedent.” Grutter,
539 U. S., at 325. Then, in Grutter v. Bollinger, the Court for the first
time “endorse[d] Justice Powell’s view that student body diversity is a
compelling state interest that can justify the use of race in university
admissions.” Ibid. The Grutter majority’s analysis tracked Justice
Powell’s in many respects, including its insistence on limits on how
universities may consider race in their admissions programs. Those
limits, Grutter explained, were intended to guard against two dangers
that all race-based government action portends. The first is the risk
that the use of race will devolve into “illegitimate . . . stereotyp[ing].”
Richmond v. J. A. Croson Co., 488 U. S. 469, 493 (plurality opinion).
Admissions programs could thus not operate on the “belief that minor-
ity students always (or even consistently) express some characteristic
minority viewpoint on any issue.” Grutter, 539 U. S., at 333 (internal
6 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
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quotation marks omitted). The second risk is that race would be used
not as a plus, but as a negative—to discriminate against those racial
groups that were not the beneficiaries of the race-based preference. A
university’s use of race, accordingly, could not occur in a manner that
“unduly harm[ed] nonminority applicants.” Id., at 341.
To manage these concerns, Grutter imposed one final limit on race-
based admissions programs: At some point, the Court held, they must
end. Id., at 342. Recognizing that “[e]nshrining a permanent justifi-
cation for racial preferences would offend” the Constitution’s unambig-
uous guarantee of equal protection, the Court expressed its expecta-
tion that, in 25 years, “the use of racial preferences will no longer be
necessary to further the interest approved today.” Id., at 343. Pp. 19–
21.
(e) Twenty years have passed since Grutter, with no end to race-
based college admissions in sight. But the Court has permitted race-
based college admissions only within the confines of narrow re-
strictions: such admissions programs must comply with strict scrutiny,
may never use race as a stereotype or negative, and must—at some
point—end. Respondents’ admissions systems fail each of these crite-
ria and must therefore be invalidated under the Equal Protection
Clause of the Fourteenth Amendment. Pp. 21–34.
(1) Respondents fail to operate their race-based admissions pro-
grams in a manner that is “sufficiently measurable to permit judicial
[review]” under the rubric of strict scrutiny. Fisher v. University of
Tex. at Austin, 579 U. S. 365, 381. First, the interests that respondents
view as compelling cannot be subjected to meaningful judicial review.
Those interests include training future leaders, acquiring new
knowledge based on diverse outlooks, promoting a robust marketplace
of ideas, and preparing engaged and productive citizens. While these
are commendable goals, they are not sufficiently coherent for purposes
of strict scrutiny. It is unclear how courts are supposed to measure
any of these goals, or if they could, to know when they have been
reached so that racial preferences can end. The elusiveness of respond-
ents’ asserted goals is further illustrated by comparing them to recog-
nized compelling interests. For example, courts can discern whether
the temporary racial segregation of inmates will prevent harm to those
in the prison, see Johnson v. California, 543 U. S. 499, 512–513, but
the question whether a particular mix of minority students produces
“engaged and productive citizens” or effectively “train[s] future lead-
ers” is standardless.
Second, respondents’ admissions programs fail to articulate a mean-
ingful connection between the means they employ and the goals they
pursue. To achieve the educational benefits of diversity, respondents
measure the racial composition of their classes using racial categories
Cite as: 600 U. S. ____ (2023) 7
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that are plainly overbroad (expressing, for example, no concern
whether South Asian or East Asian students are adequately repre-
sented as “Asian”); arbitrary or undefined (the use of the category “His-
panic”); or underinclusive (no category at all for Middle Eastern stu-
dents). The unclear connection between the goals that respondents
seek and the means they employ preclude courts from meaningfully
scrutinizing respondents’ admissions programs.
The universities’ main response to these criticisms is “trust us.”
They assert that universities are owed deference when using race to
benefit some applicants but not others. While this Court has recog-
nized a “tradition of giving a degree of deference to a university’s aca-
demic decisions,” it has made clear that deference must exist “within
constitutionally prescribed limits.” Grutter, 539 U. S., at 328. Re-
spondents have failed to present an exceedingly persuasive justifica-
tion for separating students on the basis of race that is measurable
and concrete enough to permit judicial review, as the Equal Protection
Clause requires. Pp. 22–26.
(2) Respondents’ race-based admissions systems also fail to com-
ply with the Equal Protection Clause’s twin commands that race may
never be used as a “negative” and that it may not operate as a stereo-
type. The First Circuit found that Harvard’s consideration of race has
resulted in fewer admissions of Asian-American students. Respond-
ents’ assertion that race is never a negative factor in their admissions
programs cannot withstand scrutiny. College admissions are zero-
sum, and a benefit provided to some applicants but not to others nec-
essarily advantages the former at the expense of the latter.
Respondents admissions programs are infirm for a second reason as
well: They require stereotyping—the very thing Grutter foreswore.
When a university admits students “on the basis of race, it engages in
the offensive and demeaning assumption that [students] of a particu-
lar race, because of their race, think alike.” Miller v. Johnson, 515
U. S. 900, 911–912. Such stereotyping is contrary to the “core purpose”
of the Equal Protection Clause. Palmore, 466 U. S., at 432. Pp. 26–
29.
(3) Respondents’ admissions programs also lack a “logical end
point” as Grutter required. 539 U. S., at 342. Respondents suggest
that the end of race-based admissions programs will occur once mean-
ingful representation and diversity are achieved on college campuses.
Such measures of success amount to little more than comparing the
racial breakdown of the incoming class and comparing it to some other
metric, such as the racial makeup of the previous incoming class or the
population in general, to see whether some proportional goal has been
reached. The problem with this approach is well established:
“[O]utright racial balancing” is “patently unconstitutional.” Fisher,
8 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
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570 U. S., at 311. Respondents’ second proffered end point—when stu-
dents receive the educational benefits of diversity—fares no better. As
explained, it is unclear how a court is supposed to determine if or when
such goals would be adequately met. Third, respondents suggest the
25-year expectation in Grutter means that race-based preferences
must be allowed to continue until at least 2028. The Court’s statement
in Grutter, however, reflected only that Court’s expectation that race-
based preferences would, by 2028, be unnecessary in the context of ra-
cial diversity on college campuses. Finally, respondents argue that the
frequent reviews they conduct to determine whether racial preferences
are still necessary obviates the need for an end point. But Grutter
never suggested that periodic review can make unconstitutional con-
duct constitutional. Pp. 29–34.
(f) Because Harvard’s and UNC’s admissions programs lack suffi-
ciently focused and measurable objectives warranting the use of race,
unavoidably employ race in a negative manner, involve racial stereo-
typing, and lack meaningful end points, those admissions programs
cannot be reconciled with the guarantees of the Equal Protection
Clause. At the same time, nothing prohibits universities from consid-
ering an applicant’s discussion of how race affected the applicant’s life,
so long as that discussion is concretely tied to a quality of character or
unique ability that the particular applicant can contribute to the uni-
versity. Many universities have for too long wrongly concluded that
the touchstone of an individual’s identity is not challenges bested,
skills built, or lessons learned, but the color of their skin. This Nation’s
constitutional history does not tolerate that choice. Pp. 39–40.
No. 20–1199, 980 F. 3d 157; No. 21–707, 567 F. Supp. 3d 580, reversed.
ROBERTS, C. J., delivered the opinion of the Court, in which THOMAS,
ALITO, GORSUCH, KAVANAUGH, and BARRETT, JJ., joined. THOMAS, J.,
filed a concurring opinion. GORSUCH, J., filed a concurring opinion, in
which THOMAS, J., joined. KAVANAUGH, J., filed a concurring opinion.
SOTOMAYOR, J., filed a dissenting opinion, in which KAGAN, J., joined, and
in which JACKSON, J., joined as it applies to No. 21–707. JACKSON, J.,
filed a dissenting opinion in No. 21–707, in which SOTOMAYOR and KA-
GAN, JJ., joined. JACKSON, J., took no part in the consideration or deci-
sion of the case in No. 20–1199.
Cite as: 600 U. S. ____ (2023) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
United States Reports. Readers are requested to notify the Reporter of
Decisions, Supreme Court of the United States, Washington, D. C. 20543,
pio@supremecourt.gov, of any typographical or other formal errors.
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]
CHIEF JUSTICE ROBERTS delivered the opinion of the
Court.
In these cases we consider whether the admissions sys-
tems used by Harvard College and the University of North
Carolina, two of the oldest institutions of higher learning in
the United States, are lawful under the Equal Protection
Clause of the Fourteenth Amendment.
I
A
Founded in 1636, Harvard College has one of the most
2 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
Opinion of the Court
selective application processes in the country. Over 60,000
people applied to the school last year; fewer than 2,000 were
admitted. Gaining admission to Harvard is thus no easy
feat. It can depend on having excellent grades, glowing rec-
ommendation letters, or overcoming significant adversity.
See 980 F. 3d 157, 166–169 (CA1 2020). It can also depend
on your race.
The admissions process at Harvard works as follows.
Every application is initially screened by a “first reader,”
who assigns scores in six categories: academic, extracurric-
ular, athletic, school support, personal, and overall. Ibid.
A rating of “1” is the best; a rating of “6” the worst. Ibid. In
the academic category, for example, a “1” signifies “near-
perfect standardized test scores and grades”; in the extra-
curricular category, it indicates “truly unusual achieve-
ment”; and in the personal category, it denotes “outstand-
ing” attributes like maturity, integrity, leadership,
kindness, and courage. Id., at 167–168. A score of “1” on
the overall rating—a composite of the five other ratings—
“signifies an exceptional candidate with >90% chance of ad-
mission.” Id., at 169 (internal quotation marks omitted). In
assigning the overall rating, the first readers “can and do
take an applicant’s race into account.” Ibid.
Once the first read process is complete, Harvard convenes
admissions subcommittees. Ibid. Each subcommittee
meets for three to five days and evaluates all applicants
from a particular geographic area. Ibid. The subcommit-
tees are responsible for making recommendations to the full
admissions committee. Id., at 169–170. The subcommit-
tees can and do take an applicant’s race into account when
making their recommendations. Id., at 170.
The next step of the Harvard process is the full committee
meeting. The committee has 40 members, and its discus-
sion centers around the applicants who have been recom-
mended by the regional subcommittees. Ibid. At the begin-
ning of the meeting, the committee discusses the relative
Cite as: 600 U. S. ____ (2023) 3
Opinion of the Court
breakdown of applicants by race. The “goal,” according to
Harvard’s director of admissions, “is to make sure that
[Harvard does] not hav[e] a dramatic drop-off ” in minority
admissions from the prior class. 2 App. in No. 20–1199,
pp. 744, 747–748. Each applicant considered by the full
committee is discussed one by one, and every member of the
committee must vote on admission. 980 F. 3d, at 170. Only
when an applicant secures a majority of the full committee’s
votes is he or she tentatively accepted for admission. Ibid.
At the end of the full committee meeting, the racial compo-
sition of the pool of tentatively admitted students is dis-
closed to the committee. Ibid.; 2 App. in No. 20–1199, at
861.
The final stage of Harvard’s process is called the “lop,”
during which the list of tentatively admitted students is
winnowed further to arrive at the final class. Any appli-
cants that Harvard considers cutting at this stage are
placed on a “lop list,” which contains only four pieces of
information: legacy status, recruited athlete status,
financial aid eligibility, and race. 980 F. 3d, at 170. The
full committee decides as a group which students to lop.
397 F. Supp. 3d 126, 144 (Mass. 2019). In doing so, the com-
mittee can and does take race into account. Ibid. Once the
lop process is complete, Harvard’s admitted class is set.
Ibid. In the Harvard admissions process, “race is a deter-
minative tip for” a significant percentage “of all admitted
African American and Hispanic applicants.” Id., at 178.
B
Founded shortly after the Constitution was ratified,
the University of North Carolina (UNC) prides itself on be-
ing the “nation’s first public university.” 567 F. Supp.
3d 580, 588 (MDNC 2021). Like Harvard, UNC’s “admis-
sions process is highly selective”: In a typical year, the
school “receives approximately 43,500 applications for
4 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
Opinion of the Court
its freshman class of 4,200.” Id., at 595.
Every application the University receives is initially re-
viewed by one of approximately 40 admissions office read-
ers, each of whom reviews roughly five applications per
hour. Id., at 596, 598. Readers are required to consider
“[r]ace and ethnicity . . . as one factor” in their review. Id.,
at 597 (internal quotation marks omitted). Other factors
include academic performance and rigor, standardized test-
ing results, extracurricular involvement, essay quality, per-
sonal factors, and student background. Id., at 600. Readers
are responsible for providing numerical ratings for the aca-
demic, extracurricular, personal, and essay categories.
Ibid. During the years at issue in this litigation, un-
derrepresented minority students were “more likely to
score [highly] on their personal ratings than their white and
Asian American peers,” but were more likely to be “rated
lower by UNC readers on their academic program, aca-
demic performance, . . . extracurricular activities,” and es-
says. Id., at 616–617.
After assessing an applicant’s materials along these
lines, the reader “formulates an opinion about whether the
student should be offered admission” and then “writes a
comment defending his or her recommended decision.” Id.,
at 598 (internal quotation marks omitted). In making that
decision, readers may offer students a “plus” based on their
race, which “may be significant in an individual case.” Id.,
at 601 (internal quotation marks omitted). The admissions
decisions made by the first readers are, in most cases, “pro-
visionally final.” Students for Fair Admissions, Inc. v. Uni-
versity of N. C. at Chapel Hill, No. 1:14–cv–954 (MDNC,
Nov. 9, 2020), ECF Doc. 225, p. 7, ¶52.
Following the first read process, “applications then go to
a process called ‘school group review’ . . . where a committee
composed of experienced staff members reviews every [ini-
tial] decision.” 567 F. Supp. 3d, at 599. The review com-
mittee receives a report on each student which contains,
Cite as: 600 U. S. ____ (2023) 5
Opinion of the Court
among other things, their “class rank, GPA, and test scores;
the ratings assigned to them by their initial readers; and
their status as residents, legacies, or special recruits.” Ibid.
(footnote omitted). The review committee either approves
or rejects each admission recommendation made by the first
reader, after which the admissions decisions are finalized.
Ibid. In making those decisions, the review committee may
also consider the applicant’s race. Id., at 607; 2 App. in
No. 21–707, p. 407.1
C
Petitioner, Students for Fair Admissions (SFFA), is a
——————
1 JUSTICE JACKSON attempts to minimize the role that race plays in
UNC’s admissions process by noting that, from 2016–2021, the school
accepted a lower “percentage of the most academically excellent in-state
Black candidates”—that is, 65 out of 67 such applicants (97.01%)—than
it did similarly situated Asian applicants—that is, 1118 out of 1139 such
applicants (98.16%). Post, at 20 (dissenting opinion); see also 3 App. in
No. 21–707, pp. 1078–1080. It is not clear how the rejection of just two
black applicants over five years could be “indicative of a genuinely holis-
tic [admissions] process,” as JUSTICE JACKSON contends. Post, at 20–21.
And indeed it cannot be, as the overall acceptance rates of academically
excellent applicants to UNC illustrates full well. According to SFFA’s
expert, over 80% of all black applicants in the top academic decile were
admitted to UNC, while under 70% of white and Asian applicants in that
decile were admitted. 3 App. in No. 21–707, at 1078–1083. In the second
highest academic decile, the disparity is even starker: 83% of black ap-
plicants were admitted, while 58% of white applicants and 47% of Asian
applicants were admitted. Ibid. And in the third highest decile, 77% of
black applicants were admitted, compared to 48% of white applicants
and 34% of Asian applicants. Ibid. The dissent does not dispute the
accuracy of these figures. See post, at 20, n. 94 (opinion of JACKSON, J.).
And its contention that white and Asian students “receive a diversity
plus” in UNC’s race-based admissions system blinks reality. Post, at 18.
The same is true at Harvard. See Brief for Petitioner 24 (“[A]n African
American [student] in [the fourth lowest academic] decile has a higher
chance of admission (12.8%) than an Asian American in the top decile
(12.7%).” (emphasis added)); see also 4 App. in No. 20–1199, p. 1793
(black applicants in the top four academic deciles are between four and
ten times more likely to be admitted to Harvard than Asian applicants
in those deciles).
6 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
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Opinion of the Court
nonprofit organization founded in 2014 whose purpose is “to
defend human and civil rights secured by law, including the
right of individuals to equal protection under the law.” 980
F. 3d, at 164 (internal quotation marks omitted). In No-
vember 2014, SFFA filed separate lawsuits against Har-
vard College and the University of North Carolina, arguing
that their race-based admissions programs violated, respec-
tively, Title VI of the Civil Rights Act of 1964, 78 Stat. 252,
42 U. S. C. §2000d et seq., and the Equal Protection Clause
of the Fourteenth Amendment.2 See 397 F. Supp. 3d, at
131–132; 567 F. Supp. 3d, at 585–586. The District Courts
in both cases held bench trials to evaluate SFFA’s claims.
See 980 F. 3d, at 179; 567 F. Supp. 3d, at 588. Trial in the
Harvard case lasted 15 days and included testimony from
30 witnesses, after which the Court concluded that Har-
vard’s admissions program comported with our precedents
on the use of race in college admissions. See 397
F. Supp. 3d, at 132, 183. The First Circuit affirmed that
determination. See 980 F. 3d, at 204. Similarly, in the
UNC case, the District Court concluded after an eight-day
trial that UNC’s admissions program was permissible un-
der the Equal Protection Clause. 567 F. Supp. 3d, at 588,
666.
We granted certiorari in the Harvard case and certiorari
before judgment in the UNC case. 595 U. S. ___ (2022).
——————
2 Title VI provides that “[n]o person in the United States shall, on the
ground of race, color, or national origin, be excluded from participation
in, be denied the benefits of, or be subjected to discrimination under any
program or activity receiving Federal financial assistance.” 42 U. S. C.
§2000d. “We have explained that discrimination that violates the Equal
Protection Clause of the Fourteenth Amendment committed by an insti-
tution that accepts federal funds also constitutes a violation of Title VI.”
Gratz v. Bollinger, 539 U. S. 244, 276, n. 23 (2003). Although JUSTICE
GORSUCH questions that proposition, no party asks us to reconsider it.
We accordingly evaluate Harvard’s admissions program under the stand-
ards of the Equal Protection Clause itself.
Cite as: 600 U. S. ____ (2023) 7
Opinion of the Court
II
Before turning to the merits, we must assure ourselves of
our jurisdiction. See Summers v. Earth Island Institute,
555 U. S. 488, 499 (2009). UNC argues that SFFA lacks
standing to bring its claims because it is not a “genuine”
membership organization. Brief for University Respond-
ents in No. 21–707, pp. 23–26. Every court to have consid-
ered this argument has rejected it, and so do we. See Stu-
dents for Fair Admissions, Inc. v. University of Tex. at
Austin, 37 F. 4th 1078, 1084–1086, and n. 8 (CA5 2022) (col-
lecting cases).
Article III of the Constitution limits “[t]he judicial power
of the United States” to “cases” or “controversies,” ensuring
that federal courts act only “as a necessity in the determi-
nation of real, earnest and vital” disputes. Muskrat v.
United States, 219 U. S. 346, 351, 359 (1911) (internal quo-
tation marks omitted). “To state a case or controversy un-
der Article III, a plaintiff must establish standing.” Arizona
Christian School Tuition Organization v. Winn, 563 U. S.
125, 133 (2011). That, in turn, requires a plaintiff to
demonstrate that it has “(1) suffered an injury in fact,
(2) that is fairly traceable to the challenged conduct of the
defendant, and (3) that is likely to be redressed by a favor-
able judicial decision.” Spokeo, Inc. v. Robins, 578 U. S.
330, 338 (2016).
In cases like these, where the plaintiff is an organization,
the standing requirements of Article III can be satisfied in
two ways. Either the organization can claim that it suffered
an injury in its own right or, alternatively, it can assert
“standing solely as the representative of its members.”
Warth v. Seldin, 422 U. S. 490, 511 (1975). The latter ap-
proach is known as representational or organizational
standing. Ibid.; Summers, 555 U. S., at 497–498. To invoke
it, an organization must demonstrate that “(a) its members
would otherwise have standing to sue in their own right;
8 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
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Opinion of the Court
(b) the interests it seeks to protect are germane to the or-
ganization’s purpose; and (c) neither the claim asserted nor
the relief requested requires the participation of individual
members in the lawsuit.” Hunt v. Washington State Apple
Advertising Comm’n, 432 U. S. 333, 343 (1977).
Respondents do not contest that SFFA satisfies the three-
part test for organizational standing articulated in Hunt,
and like the courts below, we find no basis in the record to
conclude otherwise. See 980 F. 3d, at 182–184; 397
F. Supp. 3d, at 183–184; No. 1:14–cv–954 (MDNC, Sept. 29,
2018), App. D to Pet. for Cert. in No. 21–707, pp. 237–245
(2018 DC Opinion). Respondents instead argue that SFFA
was not a “genuine ‘membership organization’ ” when it
filed suit, and thus that it could not invoke the doctrine of
organizational standing in the first place. Brief for Univer-
sity Respondents in No. 21–707, at 24. According to re-
spondents, our decision in Hunt established that groups
qualify as genuine membership organizations only if they
are controlled and funded by their members. And because
SFFA’s members did neither at the time this litigation com-
menced, respondents’ argument goes, SFFA could not rep-
resent its members for purposes of Article III standing.
Brief for University Respondents in No. 21–707, at 24 (cit-
ing Hunt, 432 U. S., at 343).
Hunt involved the Washington State Apple Advertising
Commission, a state agency whose purpose was to protect
the local apple industry. The Commission brought suit
challenging a North Carolina statute that imposed a label-
ing requirement on containers of apples sold in that State.
The Commission argued that it had standing to challenge
the requirement on behalf of Washington’s apple industry.
See id., at 336–341. We recognized, however, that as a state
agency, “the Commission [wa]s not a traditional voluntary
membership organization . . . , for it ha[d] no members at
all.” Id., at 342. As a result, we could not easily apply the
three-part test for organizational standing, which asks
Cite as: 600 U. S. ____ (2023) 9
Opinion of the Court
whether an organization’s members have standing. We
nevertheless concluded that the Commission had standing
because the apple growers and dealers it represented were
effectively members of the Commission. Id., at 344. The
growers and dealers “alone elect[ed] the members of the
Commission,” “alone . . . serve[d] on the Commission,” and
“alone finance[d] its activities”—they possessed, in other
words, “all of the indicia of membership.” Ibid. The Com-
mission was therefore a genuine membership organization
in substance, if not in form. And it was “clearly” entitled to
rely on the doctrine of organizational standing under the
three-part test recounted above. Id., at 343.
The indicia of membership analysis employed in Hunt
has no applicability in these cases. Here, SFFA is indisput-
ably a voluntary membership organization with identifiable
members—it is not, as in Hunt, a state agency that conced-
edly has no members. See 2018 DC Opinion 241–242. As
the First Circuit in the Harvard litigation observed, at the
time SFFA filed suit, it was “a validly incorporated 501(c)(3)
nonprofit with forty-seven members who joined voluntarily
to support its mission.” 980 F. 3d, at 184. Meanwhile in
the UNC litigation, SFFA represented four members in par-
ticular—high school graduates who were denied admission
to UNC. See 2018 DC Opinion 234. Those members filed
declarations with the District Court stating “that they have
voluntarily joined SFFA; they support its mission; they re-
ceive updates about the status of the case from SFFA’s
President; and they have had the opportunity to have input
and direction on SFFA’s case.” Id., at 234–235 (internal
quotation marks omitted). Where, as here, an organization
has identified members and represents them in good faith,
our cases do not require further scrutiny into how the or-
ganization operates. Because SFFA complies with the
standing requirements demanded of organizational plain-
tiffs in Hunt, its obligations under Article III are satisfied.
10 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
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Opinion of the Court
III
A
In the wake of the Civil War, Congress proposed and the
States ratified the Fourteenth Amendment, providing that
no State shall “deny to any person . . . the equal protection
of the laws.” Amdt. 14, §1. To its proponents, the Equal
Protection Clause represented a “foundation[al] princi-
ple”—“the absolute equality of all citizens of the United
States politically and civilly before their own laws.” Cong.
Globe, 39th Cong., 1st Sess., 431 (1866) (statement of Rep.
Bingham) (Cong. Globe). The Constitution, they were de-
termined, “should not permit any distinctions of law based
on race or color,” Supp. Brief for United States on Reargu-
ment in Brown v. Board of Education, O. T. 1953, No. 1 etc.,
p. 41 (detailing the history of the adoption of the Equal Pro-
tection Clause), because any “law which operates upon one
man [should] operate equally upon all,” Cong. Globe 2459
(statement of Rep. Stevens). As soon-to-be President James
Garfield observed, the Fourteenth Amendment would hold
“over every American citizen, without regard to color, the
protecting shield of law.” Id., at 2462. And in doing so, said
Senator Jacob Howard of Michigan, the Amendment would
give “to the humblest, the poorest, the most despised of the
race the same rights and the same protection before the law
as it gives to the most powerful, the most wealthy, or the
most haughty.” Id., at 2766. For “[w]ithout this principle
of equal justice,” Howard continued, “there is no republican
government and none that is really worth maintaining.”
Ibid.
At first, this Court embraced the transcendent aims of
the Equal Protection Clause. “What is this,” we said of the
Clause in 1880, “but declaring that the law in the States
shall be the same for the black as for the white; that all
persons, whether colored or white, shall stand equal before
the laws of the States?” Strauder v. West Virginia, 100 U. S.
303, 307–309. “[T]he broad and benign provisions of the
Cite as: 600 U. S. ____ (2023) 11
Opinion of the Court
Fourteenth Amendment” apply “to all persons,” we unani-
mously declared six years later; it is “hostility to . . . race
and nationality” “which in the eye of the law is not justi-
fied.” Yick Wo v. Hopkins, 118 U. S. 356, 368–369, 373–374
(1886); see also id., at 368 (applying the Clause to “aliens
and subjects of the Emperor of China”); Truax v. Raich, 239
U. S. 33, 36 (1915) (“a native of Austria”); semble Strauder,
100 U. S., at 308–309 (“Celtic Irishmen”) (dictum).
Despite our early recognition of the broad sweep of the
Equal Protection Clause, this Court—alongside the coun-
try—quickly failed to live up to the Clause’s core commit-
ments. For almost a century after the Civil War, state-
mandated segregation was in many parts of the Nation a
regrettable norm. This Court played its own role in that
ignoble history, allowing in Plessy v. Ferguson the separate
but equal regime that would come to deface much of Amer-
ica. 163 U. S. 537 (1896). The aspirations of the framers of
the Equal Protection Clause, “[v]irtually strangled in
[their] infancy,” would remain for too long only that—aspi-
rations. J. Tussman & J. tenBroek, The Equal Protection
of the Laws, 37 Cal. L. Rev. 341, 381 (1949).
After Plessy, “American courts . . . labored with the doc-
trine [of separate but equal] for over half a century.” Brown
v. Board of Education, 347 U. S. 483, 491 (1954). Some
cases in this period attempted to curtail the perniciousness
of the doctrine by emphasizing that it required States to
provide black students educational opportunities equal to—
even if formally separate from—those enjoyed by white stu-
dents. See, e.g., Missouri ex rel. Gaines v. Canada, 305 U. S.
337, 349–350 (1938) (“The admissibility of laws separating
the races in the enjoyment of privileges afforded by the
State rests wholly upon the equality of the privileges which
the laws give to the separated groups . . . .”). But the inher-
ent folly of that approach—of trying to derive equality from
inequality—soon became apparent. As the Court subse-
12 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
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Opinion of the Court
quently recognized, even racial distinctions that were ar-
gued to have no palpable effect worked to subordinate the
afflicted students. See, e.g., McLaurin v. Oklahoma State
Regents for Higher Ed., 339 U. S. 637, 640–642 (1950) (“It
is said that the separations imposed by the State in this
case are in form merely nominal. . . . But they signify that
the State . . . sets [petitioner] apart from the other stu-
dents.”). By 1950, the inevitable truth of the Fourteenth
Amendment had thus begun to reemerge: Separate cannot
be equal.
The culmination of this approach came finally in Brown
v. Board of Education. In that seminal decision, we over-
turned Plessy for good and set firmly on the path of invali-
dating all de jure racial discrimination by the States and
Federal Government. 347 U. S., at 494–495. Brown con-
cerned the permissibility of racial segregation in public
schools. The school district maintained that such segrega-
tion was lawful because the schools provided to black stu-
dents and white students were of roughly the same quality.
But we held such segregation impermissible “even though
the physical facilities and other ‘tangible’ factors may be
equal.” Id., at 493 (emphasis added). The mere act of sep-
arating “children . . . because of their race,” we explained,
itself “generate[d] a feeling of inferiority.” Id., at 494.
The conclusion reached by the Brown Court was thus un-
mistakably clear: the right to a public education “must be
made available to all on equal terms.” Id., at 493. As the
plaintiffs had argued, “no State has any authority under the
equal-protection clause of the Fourteenth Amendment to
use race as a factor in affording educational opportunities
among its citizens.” Tr. of Oral Arg. in Brown I, O. T. 1952,
No. 8, p. 7 (Robert L. Carter, Dec. 9, 1952); see also Supp.
Brief for Appellants on Reargument in Nos. 1, 2, and 4, and
for Respondents in No. 10, in Brown v. Board of Education,
O. T. 1953, p. 65 (“That the Constitution is color blind is our
Cite as: 600 U. S. ____ (2023) 13
Opinion of the Court
dedicated belief.”); post, at 39, n. 7 (THOMAS, J., concur-
ring). The Court reiterated that rule just one year later,
holding that “full compliance” with Brown required schools
to admit students “on a racially nondiscriminatory basis.”
Brown v. Board of Education, 349 U. S. 294, 300–301
(1955). The time for making distinctions based on race had
passed. Brown, the Court observed, “declar[ed] the funda-
mental principle that racial discrimination in public educa-
tion is unconstitutional.” Id., at 298.
So too in other areas of life. Immediately after Brown, we
began routinely affirming lower court decisions that invali-
dated all manner of race-based state action. In Gayle v.
Browder, for example, we summarily affirmed a decision in-
validating state and local laws that required segregation in
busing. 352 U. S. 903 (1956) (per curiam). As the lower
court explained, “[t]he equal protection clause requires
equality of treatment before the law for all persons without
regard to race or color.” Browder v. Gayle, 142 F. Supp. 707,
715 (MD Ala. 1956). And in Mayor and City Council of Bal-
timore v. Dawson, we summarily affirmed a decision strik-
ing down racial segregation at public beaches and bath-
houses maintained by the State of Maryland and the city of
Baltimore. 350 U. S. 877 (1955) (per curiam). “It is obvious
that racial segregation in recreational activities can no
longer be sustained,” the lower court observed. Dawson v.
Mayor and City Council of Baltimore, 220 F. 2d 386, 387
(CA4 1955) (per curiam). “[T]he ideal of equality before the
law which characterizes our institutions” demanded as
much. Ibid.
In the decades that followed, this Court continued to vin-
dicate the Constitution’s pledge of racial equality. Laws di-
viding parks and golf courses; neighborhoods and busi-
nesses; buses and trains; schools and juries were undone,
all by a transformative promise “stemming from our Amer-
ican ideal of fairness”: “ ‘the Constitution . . . forbids . . . dis-
crimination by the General Government, or by the States,
14 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
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Opinion of the Court
against any citizen because of his race.’ ” Bolling v. Sharpe,
347 U. S. 497, 499 (1954) (quoting Gibson v. Mississippi,
162 U. S. 565, 591 (1896) (Harlan, J., for the Court)). As we
recounted in striking down the State of Virginia’s ban on
interracial marriage 13 years after Brown, the Fourteenth
Amendment “proscri[bes] . . . all invidious racial discrimi-
nations.” Loving v. Virginia, 388 U. S. 1, 8 (1967). Our
cases had thus “consistently denied the constitutionality of
measures which restrict the rights of citizens on account of
race.” Id., at 11–12; see also Yick Wo, 118 U. S., at 373–375
(commercial property); Shelley v. Kraemer, 334 U. S. 1(1948) (housing covenants); Hernandez v. Texas, 347 U. S.
475 (1954) (composition of juries); Dawson, 350 U. S., at 877(beaches and bathhouses); Holmes v. Atlanta, 350 U. S. 879(1955) (per curiam) (golf courses); Browder, 352 U. S., at
903 (busing); New Orleans City Park Improvement Assn. v.
Detiege, 358 U. S. 54 (1958) (per curiam) (public parks); Bai-
ley v. Patterson, 369 U. S. 31 (1962) (per curiam) (transpor-
tation facilities); Swann v. Charlotte-Mecklenburg Bd. of
Ed., 402 U. S. 1 (1971) (education); Batson v. Kentucky, 476
U. S. 79 (1986) (peremptory jury strikes).
These decisions reflect the “core purpose” of the Equal
Protection Clause: “do[ing] away with all governmentally
imposed discrimination based on race.” Palmore v. Sidoti,
466 U. S. 429, 432 (1984) (footnote omitted). We have rec-
ognized that repeatedly. “The clear and central purpose of
the Fourteenth Amendment was to eliminate all official
state sources of invidious racial discrimination in the
States.” Loving, 388 U. S., at 10; see also Washington v.
Davis, 426 U. S. 229, 239 (1976) (“The central purpose of
the Equal Protection Clause of the Fourteenth Amendment
is the prevention of official conduct discriminating on the
basis of race.”); McLaughlin v. Florida, 379 U. S. 184, 192
(1964) (“[T]he historical fact [is] that the central purpose of
the Fourteenth Amendment was to eliminate racial dis-
crimination.”).
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Opinion of the Court
Eliminating racial discrimination means eliminating all
of it. And the Equal Protection Clause, we have accordingly
held, applies “without regard to any differences of race, of
color, or of nationality”—it is “universal in [its] application.”
Yick Wo, 118 U. S., at 369. For “[t]he guarantee of equal
protection cannot mean one thing when applied to one indi-
vidual and something else when applied to a person of an-
other color.” Regents of Univ. of Cal. v. Bakke, 438 U. S.
265, 289–290 (1978) (opinion of Powell, J.). “If both are not
accorded the same protection, then it is not equal.” Id., at
290.
Any exception to the Constitution’s demand for equal pro-
tection must survive a daunting two-step examination
known in our cases as “strict scrutiny.” Adarand Construc-
tors, Inc. v. Peña, 515 U. S. 200, 227 (1995). Under that
standard we ask, first, whether the racial classification is
used to “further compelling governmental interests.” Grut-
ter v. Bollinger, 539 U. S. 306, 326 (2003). Second, if so, we
ask whether the government’s use of race is “narrowly tai-
lored”—meaning “necessary”—to achieve that interest.
Fisher v. University of Tex. at Austin, 570 U. S. 297, 311–
312 (2013) (Fisher I ) (internal quotation marks omitted).
Outside the circumstances of these cases, our precedents
have identified only two compelling interests that permit
resort to race-based government action. One is remediating
specific, identified instances of past discrimination that vi-
olated the Constitution or a statute. See, e.g., Parents In-
volved in Community Schools v. Seattle School Dist. No. 1,
551 U. S. 701, 720 (2007); Shaw v. Hunt, 517 U. S. 899,
909–910 (1996); post, at 19–20, 30–31 (opinion of THOMAS,
J.). The second is avoiding imminent and serious risks to
human safety in prisons, such as a race riot. See Johnson
v. California, 543 U. S. 499, 512–513 (2005).3
——————
3 The first time we determined that a governmental racial classifica-
tion satisfied “the most rigid scrutiny” was 10 years before Brown v.
16 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
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Our acceptance of race-based state action has been rare
for a reason. “Distinctions between citizens solely because
of their ancestry are by their very nature odious to a free
people whose institutions are founded upon the doctrine of
equality.” Rice v. Cayetano, 528 U. S. 495, 517 (2000) (quot-
ing Hirabayashi v. United States, 320 U. S. 81, 100 (1943)).
That principle cannot be overridden except in the most ex-
traordinary case.
B
These cases involve whether a university may make ad-
missions decisions that turn on an applicant’s race. Our
Court first considered that issue in Regents of University of
California v. Bakke, which involved a set-aside admissions
program used by the University of California, Davis, medi-
cal school. 438 U. S., at 272–276. Each year, the school
held 16 of its 100 seats open for members of certain minor-
ity groups, who were reviewed on a special admissions track
separate from those in the main admissions pool. Id., at
——————
Board of Education, 347 U. S. 483 (1954), in the infamous case Kore-
matsu v. United States, 323 U. S. 214, 216 (1944). There, the Court up-
held the internment of “all persons of Japanese ancestry in prescribed
West Coast . . . areas” during World War II because “the military urgency
of the situation demanded” it. Id., at 217, 223. We have since overruled
Korematsu, recognizing that it was “gravely wrong the day it was de-
cided.” Trump v. Hawaii, 585 U. S. ___, ___ (2018) (slip op., at 38). The
Court’s decision in Korematsu nevertheless “demonstrates vividly that
even the most rigid scrutiny can sometimes fail to detect an illegitimate
racial classification” and that “[a]ny retreat from the most searching ju-
dicial inquiry can only increase the risk of another such error occurring
in the future.” Adarand Constructors, Inc. v. Peña, 515 U. S. 200, 236
(1995) (internal quotation marks omitted).
The principal dissent, for its part, claims that the Court has also per-
mitted “the use of race when that use burdens minority populations.”
Post, at 38–39 (opinion of SOTOMAYOR, J.). In support of that claim, the
dissent cites two cases that have nothing to do with the Equal Protection
Clause. See ibid. (citing United States v. Brignoni-Ponce, 422 U. S. 873(1975) (Fourth Amendment case), and United States v. Martinez-Fuerte,
428 U. S. 543 (1976) (another Fourth Amendment case)).
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272–275. The plaintiff, Allan Bakke, was denied admission
two years in a row, despite the admission of minority appli-
cants with lower grade point averages and MCAT scores.
Id., at 276–277. Bakke subsequently sued the school, argu-
ing that its set-aside program violated the Equal Protection
Clause.
In a deeply splintered decision that produced six different
opinions—none of which commanded a majority of the
Court—we ultimately ruled in part in favor of the school
and in part in favor of Bakke. Justice Powell announced
the Court’s judgment, and his opinion—though written for
himself alone—would eventually come to “serv[e] as the
touchstone for constitutional analysis of race-conscious ad-
missions policies.” Grutter, 539 U. S., at 323.
Justice Powell began by finding three of the school’s four
justifications for its policy not sufficiently compelling. The
school’s first justification of “reducing the historic deficit of
traditionally disfavored minorities in medical schools,” he
wrote, was akin to “[p]referring members of any one group
for no reason other than race or ethnic origin.” Bakke, 438
U. S., at 306–307 (internal quotation marks omitted). Yet
that was “discrimination for its own sake,” which “the Con-
stitution forbids.” Id., at 307 (citing, inter alia, Loving, 388
U. S., at 11). Justice Powell next observed that the goal of
“remedying . . . the effects of ‘societal discrimination’ ” was
also insufficient because it was “an amorphous concept of
injury that may be ageless in its reach into the past.”
Bakke, 438 U. S., at 307. Finally, Justice Powell found
there was “virtually no evidence in the record indicating
that [the school’s] special admissions program” would, as
the school had argued, increase the number of doctors work-
ing in underserved areas. Id., at 310.
Justice Powell then turned to the school’s last interest as-
serted to be compelling—obtaining the educational benefits
that flow from a racially diverse student body. That inter-
est, in his view, was “a constitutionally permissible goal for
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Opinion of the Court
an institution of higher education.” Id., at 311–312. And
that was so, he opined, because a university was entitled as
a matter of academic freedom “to make its own judgments
as to . . . the selection of its student body.” Id., at 312.
But a university’s freedom was not unlimited. “Racial
and ethnic distinctions of any sort are inherently suspect,”
Justice Powell explained, and antipathy toward them was
deeply “rooted in our Nation’s constitutional and demo-
graphic history.” Id., at 291. A university could not employ
a quota system, for example, reserving “a specified number
of seats in each class for individuals from the preferred eth-
nic groups.” Id., at 315. Nor could it impose a “multitrack
program with a prescribed number of seats set aside for
each identifiable category of applicants.” Ibid. And neither
still could it use race to foreclose an individual “from all
consideration . . . simply because he was not the right
color.” Id., at 318.
The role of race had to be cabined. It could operate only
as “a ‘plus’ in a particular applicant’s file.” Id., at 317. And
even then, race was to be weighed in a manner “flexible
enough to consider all pertinent elements of diversity in
light of the particular qualifications of each applicant.”
Ibid. Justice Powell derived this approach from what he
called the “illuminating example” of the admissions system
then used by Harvard College. Id., at 316. Under that sys-
tem, as described by Harvard in a brief it had filed with the
Court, “the race of an applicant may tip the balance in his
favor just as geographic origin or a life [experience] may tip
the balance in other candidates’ cases.” Ibid. (internal quo-
tation marks omitted). Harvard continued: “A farm boy
from Idaho can bring something to Harvard College that a
Bostonian cannot offer. Similarly, a black student can usu-
ally bring something that a white person cannot offer.”
Ibid. (internal quotation marks omitted). The result, Har-
vard proclaimed, was that “race has been”—and should
be—“a factor in some admission decisions.” Ibid. (internal
Cite as: 600 U. S. ____ (2023) 19
Opinion of the Court
quotation marks omitted).
No other Member of the Court joined Justice Powell’s
opinion. Four Justices instead would have held that the
government may use race for the purpose of “remedying the
effects of past societal discrimination.” Id., at 362 (joint
opinion of Brennan, White, Marshall, and Blackmun, JJ.,
concurring in judgment in part and dissenting in part).
Four other Justices, meanwhile, would have struck down
the Davis program as violative of Title VI. In their view, it
“seem[ed] clear that the proponents of Title VI assumed
that the Constitution itself required a colorblind standard
on the part of government.” Id., at 416 (Stevens, J., joined
by Burger, C. J., and Stewart and Rehnquist, JJ., concur-
ring in judgment in part and dissenting in part). The Davis
program therefore flatly contravened a core “principle im-
bedded in the constitutional and moral understanding of
the times”: the prohibition against “racial discrimination.”
Id., at 418, n. 21 (internal quotation marks omitted).
C
In the years that followed our “fractured decision in
Bakke,” lower courts “struggled to discern whether Justice
Powell’s” opinion constituted “binding precedent.” Grutter,
539 U. S., at 325. We accordingly took up the matter again
in 2003, in the case Grutter v. Bollinger, which concerned
the admissions system used by the University of Michigan
law school. Id., at 311. There, in another sharply divided
decision, the Court for the first time “endorse[d] Justice
Powell’s view that student body diversity is a compelling
state interest that can justify the use of race in university
admissions.” Id., at 325.
The Court’s analysis tracked Justice Powell’s in many re-
spects. As for compelling interest, the Court held that “[t]he
Law School’s educational judgment that such diversity is
essential to its educational mission is one to which we de-
fer.” Id., at 328. In achieving that goal, however, the Court
20 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
Opinion of the Court
made clear—just as Justice Powell had—that the law
school was limited in the means that it could pursue. The
school could not “establish quotas for members of certain
racial groups or put members of those groups on separate
admissions tracks.” Id., at 334. Neither could it “insulate
applicants who belong to certain racial or ethnic groups
from the competition for admission.” Ibid. Nor still could
it desire “some specified percentage of a particular group
merely because of its race or ethnic origin.” Id., at 329–330
(quoting Bakke, 438 U. S., at 307 (opinion of Powell, J.)).
These limits, Grutter explained, were intended to guard
against two dangers that all race-based government action
portends. The first is the risk that the use of race will de-
volve into “illegitimate . . . stereotyp[ing].” Richmond v. J.
A. Croson Co., 488 U. S. 469, 493 (1989) (plurality opinion).
Universities were thus not permitted to operate their ad-
missions programs on the “belief that minority students al-
ways (or even consistently) express some characteristic mi-
nority viewpoint on any issue.” Grutter, 539 U. S., at 333(internal quotation marks omitted). The second risk is that
race would be used not as a plus, but as a negative—to dis-
criminate against those racial groups that were not the ben-
eficiaries of the race-based preference. A university’s use of
race, accordingly, could not occur in a manner that “unduly
harm[ed] nonminority applicants.” Id., at 341.
But even with these constraints in place, Grutter ex-
pressed marked discomfort with the use of race in college
admissions. The Court stressed the fundamental principle
that “there are serious problems of justice connected with
the idea of [racial] preference itself.” Ibid. (quoting Bakke,
438 U. S., at 298 (opinion of Powell, J.)). It observed that
all “racial classifications, however compelling their goals,”
were “dangerous.” Grutter, 539 U. S., at 342. And it cau-
tioned that all “race-based governmental action” should “re-
mai[n] subject to continuing oversight to assure that it will
Cite as: 600 U. S. ____ (2023) 21
Opinion of the Court
work the least harm possible to other innocent persons com-
peting for the benefit.” Id., at 341 (internal quotation
marks omitted).
To manage these concerns, Grutter imposed one final
limit on race-based admissions programs. At some point,
the Court held, they must end. Id., at 342. This require-
ment was critical, and Grutter emphasized it repeatedly.
“[A]ll race-conscious admissions programs [must] have a
termination point”; they “must have reasonable durational
limits”; they “must be limited in time”; they must have
“sunset provisions”; they “must have a logical end point”;
their “deviation from the norm of equal treatment” must be
“a temporary matter.” Ibid. (internal quotation marks
omitted). The importance of an end point was not just a
matter of repetition. It was the reason the Court was will-
ing to dispense temporarily with the Constitution’s unam-
biguous guarantee of equal protection. The Court recog-
nized as much: “[e]nshrining a permanent justification for
racial preferences,” the Court explained, “would offend this
fundamental equal protection principle.” Ibid.; see also id.,
at 342–343 (quoting N. Nathanson & C. Bartnik, The Con-
stitutionality of Preferential Treatment for Minority Appli-
cants to Professional Schools, 58 Chi. Bar Rec. 282, 293
(May–June 1977), for the proposition that “[i]t would be a
sad day indeed, were America to become a quota-ridden so-
ciety, with each identifiable minority assigned proportional
representation in every desirable walk of life”).
Grutter thus concluded with the following caution: “It has
been 25 years since Justice Powell first approved the use of
race to further an interest in student body diversity in the
context of public higher education. . . . We expect that 25
years from now, the use of racial preferences will no longer
be necessary to further the interest approved today.” 539
U. S., at 343.
22 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
Opinion of the Court
IV
Twenty years later, no end is in sight. “Harvard’s view
about when [race-based admissions will end] doesn’t have a
date on it.” Tr. of Oral Arg. in No. 20–1199, p. 85; Brief for
Respondent in No. 20–1199, p. 52. Neither does UNC’s.
567 F. Supp. 3d, at 612. Yet both insist that the use of race
in their admissions programs must continue.
But we have permitted race-based admissions only
within the confines of narrow restrictions. University pro-
grams must comply with strict scrutiny, they may never use
race as a stereotype or negative, and—at some point—they
must end. Respondents’ admissions systems—however
well intentioned and implemented in good faith—fail each
of these criteria. They must therefore be invalidated under
the Equal Protection Clause of the Fourteenth Amend-
ment.4
A
Because “[r]acial discrimination [is] invidious in all con-
texts,” Edmonson v. Leesville Concrete Co., 500 U. S. 614,
619 (1991), we have required that universities operate their
race-based admissions programs in a manner that is “suffi-
ciently measurable to permit judicial [review]” under the
rubric of strict scrutiny, Fisher v. University of Tex. at Aus-
tin, 579 U. S. 365, 381 (2016) (Fisher II). “Classifying and
assigning” students based on their race “requires more than
. . . an amorphous end to justify it.” Parents Involved, 551
U. S., at 735.
Respondents have fallen short of satisfying that burden.
——————
4 The United States as amicus curiae contends that race-based admis-
sions programs further compelling interests at our Nation’s military
academies. No military academy is a party to these cases, however, and
none of the courts below addressed the propriety of race-based admis-
sions systems in that context. This opinion also does not address the
issue, in light of the potentially distinct interests that military academies
may present.
Cite as: 600 U. S. ____ (2023) 23
Opinion of the Court
First, the interests they view as compelling cannot be sub-
jected to meaningful judicial review. Harvard identifies the
following educational benefits that it is pursuing: (1) “train-
ing future leaders in the public and private sectors”; (2) pre-
paring graduates to “adapt to an increasingly pluralistic so-
ciety”; (3) “better educating its students through diversity”;
and (4) “producing new knowledge stemming from diverse
outlooks.” 980 F. 3d, at 173–174. UNC points to similar
benefits, namely, “(1) promoting the robust exchange of
ideas; (2) broadening and refining understanding; (3) fos-
tering innovation and problem-solving; (4) preparing en-
gaged and productive citizens and leaders; [and] (5) en-
hancing appreciation, respect, and empathy, cross-racial
understanding, and breaking down stereotypes.” 567
F. Supp. 3d, at 656.
Although these are commendable goals, they are not suf-
ficiently coherent for purposes of strict scrutiny. At the out-
set, it is unclear how courts are supposed to measure any of
these goals. How is a court to know whether leaders have
been adequately “train[ed]”; whether the exchange of ideas
is “robust”; or whether “new knowledge” is being developed?
Ibid.; 980 F. 3d, at 173–174. Even if these goals could some-
how be measured, moreover, how is a court to know when
they have been reached, and when the perilous remedy of
racial preferences may cease? There is no particular point
at which there exists sufficient “innovation and problem-
solving,” or students who are appropriately “engaged and
productive.” 567 F. Supp. 3d, at 656. Finally, the question
in this context is not one of no diversity or of some: it is a
question of degree. How many fewer leaders Harvard
would create without racial preferences, or how much
poorer the education at Harvard would be, are inquiries no
court could resolve.
Comparing respondents’ asserted goals to interests we
have recognized as compelling further illustrates their elu-
sive nature. In the context of racial violence in a prison, for
24 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
Opinion of the Court
example, courts can ask whether temporary racial segrega-
tion of inmates will prevent harm to those in the prison.
See Johnson, 543 U. S., at 512–513. When it comes to work-
place discrimination, courts can ask whether a race-based
benefit makes members of the discriminated class “whole
for [the] injuries [they] suffered.” Franks v. Bowman
Transp. Co., 424 U. S. 747, 763 (1976) (internal quotation
marks omitted). And in school segregation cases, courts can
determine whether any race-based remedial action pro-
duces a distribution of students “compar[able] to what it
would have been in the absence of such constitutional vio-
lations.” Dayton Bd. of Ed. v. Brinkman, 433 U. S. 406, 420
(1977).
Nothing like that is possible when it comes to evaluating
the interests respondents assert here. Unlike discerning
whether a prisoner will be injured or whether an employee
should receive backpay, the question whether a particular
mix of minority students produces “engaged and productive
citizens,” sufficiently “enhance[s] appreciation, respect, and
empathy,” or effectively “train[s] future leaders” is stand-
ardless. 567 F. Supp. 3d, at 656; 980 F. 3d, at 173–174. The
interests that respondents seek, though plainly worthy, are
inescapably imponderable.
Second, respondents’ admissions programs fail to articu-
late a meaningful connection between the means they em-
ploy and the goals they pursue. To achieve the educational
benefits of diversity, UNC works to avoid the underrepre-
sentation of minority groups, 567 F. Supp. 3d, at 591–592,
and n. 7, while Harvard likewise “guard[s ] against inad-
vertent drop-offs in representation” of certain minority
groups from year to year, Brief for Respondent in No. 20–
1199, at 16. To accomplish both of those goals, in turn, the
universities measure the racial composition of their classes
using the following categories: (1) Asian; (2) Native Hawai-
ian or Pacific Islander; (3) Hispanic; (4) White; (5) African-
American; and (6) Native American. See, e.g., 397
Cite as: 600 U. S. ____ (2023) 25
Opinion of the Court
F. Supp. 3d, at 137, 178; 3 App. in No. 20–1199, at 1278,
1280–1283; 3 App. in No. 21–707, at 1234–1241. It is far
from evident, though, how assigning students to these ra-
cial categories and making admissions decisions based on
them furthers the educational benefits that the universities
claim to pursue.
For starters, the categories are themselves imprecise in
many ways. Some of them are plainly overbroad: by group-
ing together all Asian students, for instance, respondents
are apparently uninterested in whether South Asian or
East Asian students are adequately represented, so long as
there is enough of one to compensate for a lack of the other.
Meanwhile other racial categories, such as “Hispanic,” are
arbitrary or undefined. See, e.g., M. Lopez, J. Krogstad, &
J. Passel, Pew Research Center, Who is Hispanic? (Sept. 15,
2022) (referencing the “long history of changing labels [and]
shifting categories . . . reflect[ing] evolving cultural norms
about what it means to be Hispanic or Latino in the U. S.
today”). And still other categories are underinclusive.
When asked at oral argument “how are applicants from
Middle Eastern countries classified, [such as] Jordan, Iraq,
Iran, [and] Egypt,” UNC’s counsel responded, “[I] do not
know the answer to that question.” Tr. of Oral Arg. in
No. 21–707, p. 107; cf. post, at 6–7 (GORSUCH, J., concur-
ring) (detailing the “incoherent” and “irrational stereo-
types” that these racial categories further).
Indeed, the use of these opaque racial categories under-
mines, instead of promotes, respondents’ goals. By focusing
on underrepresentation, respondents would apparently
prefer a class with 15% of students from Mexico over a class
with 10% of students from several Latin American coun-
tries, simply because the former contains more Hispanic
students than the latter. Yet “[i]t is hard to understand
how a plan that could allow these results can be viewed as
being concerned with achieving enrollment that is ‘broadly
26 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
Opinion of the Court
diverse.’ ” Parents Involved, 551 U. S., at 724 (quoting Grut-
ter, 539 U. S., at 329). And given the mismatch between the
means respondents employ and the goals they seek, it is es-
pecially hard to understand how courts are supposed to
scrutinize the admissions programs that respondents use.
The universities’ main response to these criticisms is, es-
sentially, “trust us.” None of the questions recited above
need answering, they say, because universities are “owed
deference” when using race to benefit some applicants but
not others. Brief for University Respondents in No. 21–707,
at 39 (internal quotation marks omitted). It is true that our
cases have recognized a “tradition of giving a degree of def-
erence to a university’s academic decisions.” Grutter, 539
U. S., at 328. But we have been unmistakably clear that
any deference must exist “within constitutionally pre-
scribed limits,” ibid., and that “deference does not imply
abandonment or abdication of judicial review,” Miller–El v.
Cockrell, 537 U. S. 322, 340 (2003). Universities may define
their missions as they see fit. The Constitution defines
ours. Courts may not license separating students on the
basis of race without an exceedingly persuasive justification
that is measurable and concrete enough to permit judicial
review. As this Court has repeatedly reaffirmed, “[r]acial
classifications are simply too pernicious to permit any but
the most exact connection between justification and classi-
fication.” Gratz v. Bollinger, 539 U. S. 244, 270 (2003) (in-
ternal quotation marks omitted). The programs at issue
here do not satisfy that standard.5
——————
5 For that reason, one dissent candidly advocates abandoning the de-
mands of strict scrutiny. See post, at 24, 26–28 (opinion of JACKSON, J.)
(arguing the Court must “get out of the way,” “leav[e] well enough alone,”
and defer to universities and “experts” in determining who should be dis-
criminated against). An opinion professing fidelity to history (to say
nothing of the law) should surely see the folly in that approach.
Cite as: 600 U. S. ____ (2023) 27
Opinion of the Court
B
The race-based admissions systems that respondents em-
ploy also fail to comply with the twin commands of the
Equal Protection Clause that race may never be used as a
“negative” and that it may not operate as a stereotype.
First, our cases have stressed that an individual’s race
may never be used against him in the admissions process.
Here, however, the First Circuit found that Harvard’s con-
sideration of race has led to an 11.1% decrease in the num-
ber of Asian-Americans admitted to Harvard. 980 F. 3d, at
170, n. 29. And the District Court observed that Harvard’s
“policy of considering applicants’ race . . . overall results in
fewer Asian American and white students being admitted.”
397 F. Supp. 3d, at 178.
Respondents nonetheless contend that an individual’s
race is never a negative factor in their admissions pro-
grams, but that assertion cannot withstand scrutiny. Har-
vard, for example, draws an analogy between race and
other factors it considers in admission. “[W]hile admissions
officers may give a preference to applicants likely to excel
in the Harvard-Radcliffe Orchestra,” Harvard explains,
“that does not mean it is a ‘negative’ not to excel at a musi-
cal instrument.” Brief for Respondent in No. 20–1199, at
51. But on Harvard’s logic, while it gives preferences to ap-
plicants with high grades and test scores, “that does not
mean it is a ‘negative’ ” to be a student with lower grades
and lower test scores. Ibid. This understanding of the ad-
missions process is hard to take seriously. College admis-
sions are zero-sum. A benefit provided to some applicants
but not to others necessarily advantages the former group
at the expense of the latter.
Respondents also suggest that race is not a negative fac-
tor because it does not impact many admissions decisions.
See id., at 49; Brief for University Respondents in No. 21–
707, at 2. Yet, at the same time, respondents also maintain
that the demographics of their admitted classes would
28 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
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Opinion of the Court
meaningfully change if race-based admissions were aban-
doned. And they acknowledge that race is determinative
for at least some—if not many—of the students they admit.
See, e.g., Tr. of Oral Arg. in No. 20–1199, at 67; 567
F. Supp. 3d, at 633. How else but “negative” can race be
described if, in its absence, members of some racial groups
would be admitted in greater numbers than they otherwise
would have been? The “[e]qual protection of the laws is not
achieved through indiscriminate imposition of inequali-
ties.” Shelley, 334 U. S., at 22.6
Respondents’ admissions programs are infirm for a sec-
ond reason as well. We have long held that universities
may not operate their admissions programs on the “belief
that minority students always (or even consistently) ex-
press some characteristic minority viewpoint on any issue.”
Grutter, 539 U. S., at 333 (internal quotation marks omit-
ted). That requirement is found throughout our Equal Pro-
tection Clause jurisprudence more generally. See, e.g.,
Schuette v. BAMN, 572 U. S. 291, 308 (2014) (plurality
opinion) (“In cautioning against ‘impermissible racial stere-
otypes,’ this Court has rejected the assumption that ‘mem-
bers of the same racial group—regardless of their age, edu-
cation, economic status, or the community in which they
live—think alike . . . .’ ” (quoting Shaw v. Reno, 509 U. S.
——————
6 JUSTICE JACKSON contends that race does not play a “determinative
role for applicants” to UNC. Post, at 24. But even the principal dissent
acknowledges that race—and race alone—explains the admissions deci-
sions for hundreds if not thousands of applicants to UNC each year. Post,
at 33, n. 28 (opinion of SOTOMAYOR, J.); see also Students for Fair Admis-
sions, Inc. v. University of N. C. at Chapel Hill, No. 1:14–cv–954 (MDNC,
Dec. 21, 2020), ECF Doc. 233, at 23–27 (UNC expert testifying that race
explains 1.2% of in state and 5.1% of out of state admissions decisions);
3 App. in No. 21–707, at 1069 (observing that UNC evaluated 57,225 in
state applicants and 105,632 out of state applicants from 2016–2021).
The suggestion by the principal dissent that our analysis relies on extra-
record materials, see post, at 29–30, n. 25 (opinion of SOTOMAYOR, J.), is
simply mistaken.
Cite as: 600 U. S. ____ (2023) 29
Opinion of the Court
630, 647 (1993))).
Yet by accepting race-based admissions programs in
which some students may obtain preferences on the basis
of race alone, respondents’ programs tolerate the very thing
that Grutter foreswore: stereotyping. The point of respond-
ents’ admissions programs is that there is an inherent ben-
efit in race qua race—in race for race’s sake. Respondents
admit as much. Harvard’s admissions process rests on the
pernicious stereotype that “a black student can usually
bring something that a white person cannot offer.” Bakke,
438 U. S., at 316 (opinion of Powell, J.) (internal quotation
marks omitted); see also Tr. of Oral Arg. in No. 20–1199, at
92. UNC is much the same. It argues that race in itself
“says [something] about who you are.” Tr. of Oral Arg. in
No. 21–707, at 97; see also id., at 96 (analogizing being of a
certain race to being from a rural area).
We have time and again forcefully rejected the notion
that government actors may intentionally allocate prefer-
ence to those “who may have little in common with one an-
other but the color of their skin.” Shaw, 509 U. S., at 647.
The entire point of the Equal Protection Clause is that
treating someone differently because of their skin color is
not like treating them differently because they are from a
city or from a suburb, or because they play the violin poorly
or well.
“One of the principal reasons race is treated as a forbid-
den classification is that it demeans the dignity and worth
of a person to be judged by ancestry instead of by his or her
own merit and essential qualities.” Rice, 528 U. S., at 517.
But when a university admits students “on the basis of race,
it engages in the offensive and demeaning assumption that
[students] of a particular race, because of their race, think
alike,” Miller v. Johnson, 515 U. S. 900, 911–912 (1995) (in-
ternal quotation marks omitted)—at the very least alike in
the sense of being different from nonminority students. In
30 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
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Opinion of the Court
doing so, the university furthers “stereotypes that treat in-
dividuals as the product of their race, evaluating their
thoughts and efforts—their very worth as citizens—accord-
ing to a criterion barred to the Government by history and
the Constitution.” Id., at 912 (internal quotation marks
omitted). Such stereotyping can only “cause[] continued
hurt and injury,” Edmonson, 500 U. S., at 631, contrary as
it is to the “core purpose” of the Equal Protection Clause,
Palmore, 466 U. S., at 432.
C
If all this were not enough, respondents’ admissions pro-
grams also lack a “logical end point.” Grutter, 539 U. S., at
342.
Respondents and the Government first suggest that re-
spondents’ race-based admissions programs will end when,
in their absence, there is “meaningful representation and
meaningful diversity” on college campuses. Tr. of Oral Arg.
in No. 21–707, at 167. The metric of meaningful represen-
tation, respondents assert, does not involve any “strict nu-
merical benchmark,” id., at 86; or “precise number or per-
centage,” id., at 167; or “specified percentage,” Brief for
Respondent in No. 20–1199, at 38 (internal quotation
marks omitted). So what does it involve?
Numbers all the same. At Harvard, each full committee
meeting begins with a discussion of “how the breakdown of
the class compares to the prior year in terms of racial iden-
tities.” 397 F. Supp. 3d, at 146. And “if at some point in the
admissions process it appears that a group is notably un-
derrepresented or has suffered a dramatic drop off relative
to the prior year, the Admissions Committee may decide to
give additional attention to applications from students
within that group.” Ibid.; see also id., at 147 (District Court
finding that Harvard uses race to “trac[k] how each class is
shaping up relative to previous years with an eye towards
achieving a level of racial diversity”); 2 App. in No. 20–1199,
Cite as: 600 U. S. ____ (2023) 31
Opinion of the Court
at 821–822.
The results of the Harvard admissions process reflect this
numerical commitment. For the admitted classes of 2009
to 2018, black students represented a tight band of 10.0%–
11.7% of the admitted pool. The same theme held true for
other minority groups:
Brief for Petitioner in No. 20–1199 etc., p. 23. Harvard’s
focus on numbers is obvious.7
——————
7 The principal dissent claims that “[t]he fact that Harvard’s racial
shares of admitted applicants varies relatively little . . . is unsurprising
and reflects the fact that the racial makeup of Harvard’s applicant pool
also varies very little over this period.” Post, at 35 (opinion of
SOTOMAYOR, J.) (internal quotation marks omitted). But that is exactly
the point: Harvard must use precise racial preferences year in and year
out to maintain the unyielding demographic composition of its class. The
dissent is thus left to attack the numbers themselves, arguing they were
“handpicked” “from a truncated period.” Ibid., n. 29 (opinion of
SOTOMAYOR, J.). As supposed proof, the dissent notes that the share of
32 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
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Opinion of the Court
UNC’s admissions program operates similarly. The Uni-
versity frames the challenge it faces as “the admission and
enrollment of underrepresented minorities,” Brief for Uni-
versity Respondents in No. 21–707, at 7, a metric that turns
solely on whether a group’s “percentage enrollment within
the undergraduate student body is lower than their per-
centage within the general population in North Carolina,”
567 F. Supp. 3d, at 591, n. 7; see also Tr. of Oral Arg. in
No. 21–707, at 79. The University “has not yet fully
achieved its diversity-related educational goals,” it ex-
plains, in part due to its failure to obtain closer to propor-
tional representation. Brief for University Respondents in
No. 21–707, at 7; see also 567 F. Supp. 3d, at 594.
The problem with these approaches is well established.
“[O]utright racial balancing” is “patently unconstitutional.”
Fisher I, 570 U. S., at 311 (internal quotation marks omit-
ted). That is so, we have repeatedly explained, because “[a]t
the heart of the Constitution’s guarantee of equal protection
lies the simple command that the Government must treat
citizens as individuals, not as simply components of a ra-
cial, religious, sexual or national class.” Miller, 515 U. S.,
at 911 (internal quotation marks omitted). By promising to
terminate their use of race only when some rough percent-
age of various racial groups is admitted, respondents turn
that principle on its head. Their admissions programs “ef-
fectively assure[ ] that race will always be relevant . . . and
that the ultimate goal of eliminating” race as a criterion
“will never be achieved.” Croson, 488 U. S., at 495 (internal
——————
Asian students at Harvard varied significantly from 1980 to 1994—a 14-
year period that ended nearly three decades ago. 4 App. in No. 20–1199,
at 1770. But the relevance of that observation—handpicked and trun-
cated as it is—is lost on us. And the dissent does not and cannot dispute
that the share of black and Hispanic students at Harvard—“the primary
beneficiaries” of its race-based admissions policy—has remained con-
sistent for decades. 397 F. Supp. 3d, at 178; 4 App. in No. 20–1199, at
1770. For all the talk of holistic and contextual judgments, the racial
preferences at issue here in fact operate like clockwork.
Cite as: 600 U. S. ____ (2023) 33
Opinion of the Court
quotation marks omitted).
Respondents’ second proffered end point fares no better.
Respondents assert that universities will no longer need to
engage in race-based admissions when, in their absence,
students nevertheless receive the educational benefits of di-
versity. But as we have already explained, it is not clear
how a court is supposed to determine when stereotypes
have broken down or “productive citizens and leaders” have
been created. 567 F. Supp. 3d, at 656. Nor is there any way
to know whether those goals would adequately be met in
the absence of a race-based admissions program. As UNC
itself acknowledges, these “qualitative standard[s]” are
“difficult to measure.” Tr. of Oral Arg. in No. 21–707, at 78;
but see Fisher II, 579 U. S., at 381 (requiring race-based
admissions programs to operate in a manner that is “suffi-
ciently measurable”).
Third, respondents suggest that race-based preferences
must be allowed to continue for at least five more years,
based on the Court’s statement in Grutter that it “ex-
pect[ed] that 25 years from now, the use of racial prefer-
ences will no longer be necessary.” 539 U. S., at 343. The
25-year mark articulated in Grutter, however, reflected
only that Court’s view that race-based preferences would,
by 2028, be unnecessary to ensure a requisite level of racial
diversity on college campuses. Ibid. That expectation was
oversold. Neither Harvard nor UNC believes that race-
based admissions will in fact be unnecessary in five years,
and both universities thus expect to continue using race as
a criterion well beyond the time limit that Grutter sug-
gested. See Tr. of Oral Arg. in No. 20–1199, at 84–85; Tr.
of Oral Arg. in No. 21–707, at 85–86. Indeed, the high
school applicants that Harvard and UNC will evaluate this
fall using their race-based admissions systems are expected
to graduate in 2028—25 years after Grutter was decided.
Finally, respondents argue that their programs need not
have an end point at all because they frequently review
34 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
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Opinion of the Court
them to determine whether they remain necessary. See
Brief for Respondent in No. 20–1199, at 52; Brief for Uni-
versity Respondents in No. 21–707, at 58–59. Respondents
point to language in Grutter that, they contend, permits
“the durational requirement [to] be met” with “periodic re-
views to determine whether racial preferences are still nec-
essary to achieve student body diversity.” 539 U. S., at 342.
But Grutter never suggested that periodic review could
make unconstitutional conduct constitutional. To the con-
trary, the Court made clear that race-based admissions pro-
grams eventually had to end—despite whatever periodic re-
view universities conducted. Ibid.; see also supra, at 18.
Here, however, Harvard concedes that its race-based ad-
missions program has no end point. Brief for Respondent
in No. 20–1199, at 52 (Harvard “has not set a sunset date”
for its program (internal quotation marks omitted)). And it
acknowledges that the way it thinks about the use of race
in its admissions process “is the same now as it was” nearly
50 years ago. Tr. of Oral Arg. in No. 20–1199, at 91. UNC’s
race-based admissions program is likewise not set to expire
any time soon—nor, indeed, any time at all. The University
admits that it “has not set forth a proposed time period in
which it believes it can end all race-conscious admissions
practices.” 567 F. Supp. 3d, at 612. And UNC suggests that
it might soon use race to a greater extent than it currently
does. See Brief for University Respondents in No. 21–707,
at 57. In short, there is no reason to believe that respond-
ents will—even acting in good faith—comply with the Equal
Protection Clause any time soon.
V
The dissenting opinions resist these conclusions. They
would instead uphold respondents’ admissions programs
based on their view that the Fourteenth Amendment per-
mits state actors to remedy the effects of societal discrimi-
nation through explicitly race-based measures. Although
Cite as: 600 U. S. ____ (2023) 35
Opinion of the Court
both opinions are thorough and thoughtful in many re-
spects, this Court has long rejected their core thesis.
The dissents’ interpretation of the Equal Protection
Clause is not new. In Bakke, four Justices would have per-
mitted race-based admissions programs to remedy the ef-
fects of societal discrimination. 438 U. S., at 362 (joint opin-
ion of Brennan, White, Marshall, and Blackmun, JJ.,
concurring in judgment in part and dissenting in part). But
that minority view was just that—a minority view. Justice
Powell, who provided the fifth vote and controlling opinion
in Bakke, firmly rejected the notion that societal discrimi-
nation constituted a compelling interest. Such an interest
presents “an amorphous concept of injury that may be age-
less in its reach into the past,” he explained. Id., at 307. It
cannot “justify a [racial] classification that imposes disad-
vantages upon persons . . . who bear no responsibility for
whatever harm the beneficiaries of the [race-based] admis-
sions program are thought to have suffered.” Id., at 310.
The Court soon adopted Justice Powell’s analysis as its
own. In the years after Bakke, the Court repeatedly held
that ameliorating societal discrimination does not consti-
tute a compelling interest that justifies race-based state ac-
tion. “[A]n effort to alleviate the effects of societal discrim-
ination is not a compelling interest,” we said plainly in
Hunt, a 1996 case about the Voting Rights Act. 517 U. S.,
at 909–910. We reached the same conclusion in Croson, a
case that concerned a preferential government contracting
program. Permitting “past societal discrimination” to
“serve as the basis for rigid racial preferences would be to
open the door to competing claims for ‘remedial relief ’ for
every disadvantaged group.” 488 U. S., at 505. Opening
that door would shutter another—“[t]he dream of a Nation
of equal citizens . . . would be lost,” we observed, “in a mo-
saic of shifting preferences based on inherently unmeasur-
able claims of past wrongs.” Id., at 505–506. “[S]uch a re-
sult would be contrary to both the letter and spirit of a
36 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
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Opinion of the Court
constitutional provision whose central command is equal-
ity.” Id., at 506.
The dissents here do not acknowledge any of this. They
fail to cite Hunt. They fail to cite Croson. They fail to men-
tion that the entirety of their analysis of the Equal Protec-
tion Clause—the statistics, the cases, the history—has been
considered and rejected before. There is a reason the prin-
cipal dissent must invoke Justice Marshall’s partial dissent
in Bakke nearly a dozen times while mentioning Justice
Powell’s controlling opinion barely once (JUSTICE
JACKSON’s opinion ignores Justice Powell altogether). For
what one dissent denigrates as “rhetorical flourishes about
colorblindness,” post, at 14 (opinion of SOTOMAYOR, J.), are
in fact the proud pronouncements of cases like Loving and
Yick Wo, like Shelley and Bolling—they are defining state-
ments of law. We understand the dissents want that law to
be different. They are entitled to that desire. But they
surely cannot claim the mantle of stare decisis while pursu-
ing it.8
The dissents are no more faithful to our precedent on
race-based admissions. To hear the principal dissent tell it,
Grutter blessed such programs indefinitely, until “racial in-
equality will end.” Post, at 54 (opinion of SOTOMAYOR, J.).
But Grutter did no such thing. It emphasized—not once or
twice, but at least six separate times—that race-based ad-
——————
8 Perhaps recognizing as much, the principal dissent at one point at-
tempts to press a different remedial rationale altogether, stating that
both respondents “have sordid legacies of racial exclusion.” Post, at 21
(opinion of SOTOMAYOR, J.). Such institutions should perhaps be the very
last ones to be allowed to make race-based decisions, let alone be ac-
corded deference in doing so. In any event, neither university defends
its admissions system as a remedy for past discrimination—their own or
anyone else’s. See Tr. of Oral Arg. in No. 21–707, at 90 (“[W]e’re not
pursuing any sort of remedial justification for our policy.”). Nor has any
decision of ours permitted a remedial justification for race-based college
admissions. Cf. Bakke, 438 U. S., at 307 (opinion of Powell, J.).
Cite as: 600 U. S. ____ (2023) 37
Opinion of the Court
missions programs “must have reasonable durational lim-
its” and that their “deviation from the norm of equal treat-
ment” must be “a temporary matter.” 539 U. S., at 342. The
Court also disclaimed “[e]nshrining a permanent justifica-
tion for racial preferences.” Ibid. Yet the justification for
race-based admissions that the dissent latches on to is just
that—unceasing.
The principal dissent’s reliance on Fisher II is similarly
mistaken. There, by a 4-to-3 vote, the Court upheld a “sui
generis” race-based admissions program used by the Uni-
versity of Texas, 579 U. S., at 377, whose “goal” it was to
enroll a “critical mass” of certain minority students, Fisher
I, 570 U. S., at 297. But neither Harvard nor UNC claims
to be using the critical mass concept—indeed, the universi-
ties admit they do not even know what it means. See 1 App.
in No. 21–707, at 402 (“[N]o one has directed anybody to
achieve a critical mass, and I’m not even sure we would
know what it is.” (testimony of UNC administrator)); 3 App.
in No. 20–1199, at 1137–1138 (similar testimony from Har-
vard administrator).
Fisher II also recognized the “enduring challenge” that
race-based admissions systems place on “the constitutional
promise of equal treatment.” 579 U. S., at 388. The Court
thus reaffirmed the “continuing obligation” of universities
“to satisfy the burden of strict scrutiny.” Id., at 379. To
drive the point home, Fisher II limited itself just as Grutter
had—in duration. The Court stressed that its decision did
“not necessarily mean the University may rely on the same
policy” going forward. 579 U. S., at 388 (emphasis added);
see also Fisher I, 570 U. S., at 313 (recognizing that “Grut-
ter . . . approved the plan at issue upon concluding that it
. . . was limited in time”). And the Court openly acknowl-
38 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
Opinion of the Court
edged that its decision offered limited “prospective guid-
ance.” Fisher II, 579 U. S., at 379.9
The principal dissent wrenches our case law from its con-
text, going to lengths to ignore the parts of that law it does
not like. The serious reservations that Bakke, Grutter, and
Fisher had about racial preferences go unrecognized. The
unambiguous requirements of the Equal Protection
Clause—“the most rigid,” “searching” scrutiny it entails—
go without note. Fisher I, 570 U. S., at 310. And the re-
peated demands that race-based admissions programs
must end go overlooked—contorted, worse still, into a de-
mand that such programs never stop.
Most troubling of all is what the dissent must make these
omissions to defend: a judiciary that picks winners and los-
ers based on the color of their skin. While the dissent would
certainly not permit university programs that discrimi-
nated against black and Latino applicants, it is perfectly
willing to let the programs here continue. In its view, this
Court is supposed to tell state actors when they have picked
the right races to benefit. Separate but equal is “inherently
unequal,” said Brown. 347 U. S., at 495 (emphasis added).
It depends, says the dissent.
——————
9 The principal dissent rebukes the Court for not considering ade-
quately the reliance interests respondents and other universities had in
Grutter. But as we have explained, Grutter itself limited the reliance
that could be placed upon it by insisting, over and over again, that race-
based admissions programs be limited in time. See supra, at 20. Grutter
indeed went so far as to suggest a specific period of reliance—25 years—
precluding the indefinite reliance interests that the dissent articulates.
Cf. post, at 2–4 (KAVANAUGH, J., concurring). Those interests are, more-
over, vastly overstated on their own terms. Three out of every five Amer-
ican universities do not consider race in their admissions decisions. See
Brief for Respondent in No. 20–1199, p. 40. And several States—includ-
ing some of the most populous (California, Florida, and Michigan)—have
prohibited race-based admissions outright. See Brief for Oklahoma et al.
as Amici Curiae 9, n. 6.
Cite as: 600 U. S. ____ (2023) 39
Opinion of the Court
That is a remarkable view of the judicial role—remarka-
bly wrong. Lost in the false pretense of judicial humility
that the dissent espouses is a claim to power so radical, so
destructive, that it required a Second Founding to undo.
“Justice Harlan knew better,” one of the dissents decrees.
Post, at 5 (opinion of JACKSON, J.). Indeed he did:
“[I]n view of the Constitution, in the eye of the law,
there is in this country no superior, dominant, ruling
class of citizens. There is no caste here. Our Constitu-
tion is color-blind, and neither knows nor tolerates clas-
ses among citizens.” Plessy, 163 U. S., at 559 (Harlan,
J., dissenting).
VI
For the reasons provided above, the Harvard and UNC
admissions programs cannot be reconciled with the guaran-
tees of the Equal Protection Clause. Both programs lack
sufficiently focused and measurable objectives warranting
the use of race, unavoidably employ race in a negative man-
ner, involve racial stereotyping, and lack meaningful end
points. We have never permitted admissions programs to
work in that way, and we will not do so today.
At the same time, as all parties agree, nothing in this
opinion should be construed as prohibiting universities
from considering an applicant’s discussion of how race af-
fected his or her life, be it through discrimination, inspira-
tion, or otherwise. See, e.g., 4 App. in No. 21–707, at 1725–
1726, 1741; Tr. of Oral Arg. in No. 20–1199, at 10. But,
despite the dissent’s assertion to the contrary, universities
may not simply establish through application essays or
other means the regime we hold unlawful today. (A dissent-
ing opinion is generally not the best source of legal advice
on how to comply with the majority opinion.) “[W]hat can-
not be done directly cannot be done indirectly. The Consti-
tution deals with substance, not shadows,” and the prohibi-
tion against racial discrimination is “levelled at the thing,
40 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
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Opinion of the Court
not the name.” Cummings v. Missouri, 4 Wall. 277, 325
(1867). A benefit to a student who overcame racial discrim-
ination, for example, must be tied to that student’s courage
and determination. Or a benefit to a student whose herit-
age or culture motivated him or her to assume a leadership
role or attain a particular goal must be tied to that student’s
unique ability to contribute to the university. In other
words, the student must be treated based on his or her ex-
periences as an individual—not on the basis of race.
Many universities have for too long done just the oppo-
site. And in doing so, they have concluded, wrongly, that
the touchstone of an individual’s identity is not challenges
bested, skills built, or lessons learned but the color of their
skin. Our constitutional history does not tolerate that
choice.
The judgments of the Court of Appeals for the First Cir-
cuit and of the District Court for the Middle District of
North Carolina are reversed.
It is so ordered.
JUSTICE JACKSON took no part in the consideration or de-
cision of the case in No. 20–1199.
Cite as: 600 U. S. ____ (2023) 1
THOMAS, J., concurring
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 THOMAS, concurring.
In the wake of the Civil War, the country focused its at-
tention on restoring the Union and establishing the legal
status of newly freed slaves. The Constitution was
amended to abolish slavery and proclaim that all persons
born in the United States are citizens, entitled to the privi-
leges or immunities of citizenship and the equal protection
of the laws. Amdts. 13, 14. Because of that second found-
ing, “[o]ur Constitution is color-blind, and neither knows
nor tolerates classes among citizens.” Plessy v. Ferguson,
163 U. S. 537, 559 (1896) (Harlan, J., dissenting).
This Court’s commitment to that equality principle has
ebbed and flowed over time. After forsaking the principle
for decades, offering a judicial imprimatur to segregation
2 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
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THOMAS, J., concurring
and ushering in the Jim Crow era, the Court finally cor-
rected course in Brown v. Board of Education, 347 U. S. 483(1954), announcing that primary schools must either deseg-
regate with all deliberate speed or else close their doors.
See also Brown v. Board of Education, 349 U. S. 294 (1955)
(Brown II ). It then pulled back in Grutter v. Bollinger, 539
U. S. 306 (2003), permitting universities to discriminate
based on race in their admissions process (though only tem-
porarily) in order to achieve alleged “educational benefits of
diversity.” Id., at 319. Yet, the Constitution continues to
embody a simple truth: Two discriminatory wrongs cannot
make a right.
I wrote separately in Grutter, explaining that the use of
race in higher education admissions decisions—regardless
of whether intended to help or to hurt—violates the Four-
teenth Amendment. Id., at 351 (opinion concurring in part
and dissenting in part). In the decades since, I have repeat-
edly stated that Grutter was wrongly decided and should be
overruled. Fisher v. University of Tex. at Austin, 570 U. S.
297, 315, 328 (2013) (concurring opinion) (Fisher I ); Fisher
v. University of Tex. at Austin, 579 U. S. 365, 389 (2016)
(dissenting opinion). Today, and despite a lengthy interreg-
num, the Constitution prevails.
Because the Court today applies genuine strict scrutiny
to the race-conscious admissions policies employed at Har-
vard and the University of North Carolina (UNC) and finds
that they fail that searching review, I join the majority
opinion in full. I write separately to offer an originalist de-
fense of the colorblind Constitution; to explain further the
flaws of the Court’s Grutter jurisprudence; to clarify that all
forms of discrimination based on race—including so-called
affirmative action—are prohibited under the Constitution;
and to emphasize the pernicious effects of all such discrim-
ination.
Cite as: 600 U. S. ____ (2023) 3
THOMAS, J., concurring
I
In the 1860s, Congress proposed and the States ratified
the Thirteenth and Fourteenth Amendments. And, with
the authority conferred by these Amendments, Congress
passed two landmark Civil Rights Acts. Throughout the
debates on each of these measures, their proponents repeat-
edly affirmed their view of equal citizenship and the racial
equality that flows from it. In fact, they held this principle
so deeply that their crowning accomplishment—the Four-
teenth Amendment—ensures racial equality with no tex-
tual reference to race whatsoever. The history of these
measures’ enactment renders their motivating principle as
clear as their text: All citizens of the United States, regard-
less of skin color, are equal before the law.
I do not contend that all of the individuals who put forth
and ratified the Fourteenth Amendment universally be-
lieved this to be true. Some Members of the proposing Con-
gress, for example, opposed the Amendment. And, the his-
torical record—particularly with respect to the debates on
ratification in the States—is sparse. Nonetheless, substan-
tial evidence suggests that the Fourteenth Amendment was
passed to “establis[h] the broad constitutional principle of
full and complete equality of all persons under the law,” for-
bidding “all legal distinctions based on race or color.” Supp.
Brief for United States on Reargument in Brown v. Board
of Education, O. T. 1953, No. 1 etc., p. 115 (U. S. Brown
Reargument Brief ).
This was Justice Harlan’s view in his lone dissent in
Plessy, where he observed that “[o]ur Constitution is color-
blind.” 163 U. S., at 559. It was the view of the Court in
Brown, which rejected “ ‘any authority . . . to use race as a
factor in affording educational opportunities.’ ” Parents In-
volved in Community Schools v. Seattle School Dist. No. 1,
551 U. S. 701, 747 (2007). And, it is the view adopted in the
Court’s opinion today, requiring “the absolute equality of all
citizens” under the law. Ante, at 10 (internal quotation
4 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
THOMAS, J., concurring
marks omitted).
A
In its 1864 election platform, the Republican Party
pledged to amend the Constitution to accomplish the “utter
and complete extirpation” of slavery from “the soil of the
Republic.” 2 A. Schlesinger, History of U. S. Political Par-
ties 1860–1910, p. 1303 (1973). After their landslide vic-
tory, Republicans quickly moved to make good on that
promise. Congress proposed what would become the Thir-
teenth Amendment to the States in January 1865, and it
was ratified as part of the Constitution later that year. The
new Amendment stated that “[n]either slavery nor involun-
tary servitude . . . shall exist” in the United States “except
as a punishment for crime whereof the party shall have
been duly convicted.” §1. It thus not only prohibited States
from themselves enslaving persons, but also obligated them
to end enslavement by private individuals within their bor-
ders. Its Framers viewed the text broadly, arguing that it
“allowed Congress to legislate not merely against slavery
itself, but against all the badges and relics of a slave sys-
tem.” A. Amar, America’s Constitution: A Biography 362
(2005) (internal quotation marks omitted). The Amend-
ment also authorized “Congress . . . to enforce” its terms “by
appropriate legislation”—authority not granted in any
prior Amendment. §2. Proponents believed this enforce-
ment clause permitted legislative measures designed to ac-
complish the Amendment’s broader goal of equality for the
freedmen.
It quickly became clear, however, that further amend-
ment would be necessary to safeguard that goal. Soon after
the Thirteenth Amendment’s adoption, the reconstructed
Southern States began to enact “Black Codes,” which cir-
cumscribed the newly won freedoms of blacks. The Black
Code of Mississippi, for example, “imposed all sorts of disa-
bilities” on blacks, “including limiting their freedom of
Cite as: 600 U. S. ____ (2023) 5
THOMAS, J., concurring
movement and barring them from following certain occupa-
tions, owning firearms, serving on juries, testifying in cases
involving whites, or voting.” E. Foner, The Second Found-
ing 48 (2019).
Congress responded with the landmark Civil Rights Act
of 1866, 14 Stat. 27, in an attempt to pre-empt the Black
Codes. The 1866 Act promised such a sweeping form of
equality that it would lead many to say that it exceeded the
scope of Congress’ authority under the Thirteenth Amend-
ment. As enacted, it stated:
“Be it enacted by the Senate and House of Represent-
atives of the United States of America in Congress as-
sembled, That all persons born in the United States
and not subject to any foreign power, excluding Indians
not taxed, are hereby declared to be citizens of the
United States; and such citizens, of every race and
color, without regard to any previous condition of slav-
ery or involuntary servitude, except as a punishment
for crime whereof the party shall have been duly con-
victed, shall have the same right, in every State and
Territory in the United States, to make and enforce
contracts, to sue, be parties, and give evidence, to in-
herit, purchase, lease, sell, hold, and convey real and
personal property, and to full and equal benefit of all
laws and proceedings for the security of person and
property, as is enjoyed by white citizens, and shall be
subject to like punishment, pains, and penalties, and to
none other, any law, statute, ordinance, regulation, or
custom, to the contrary notwithstanding.”
The text of the provision left no doubt as to its aim: All per-
sons born in the United States were equal citizens entitled
to the same rights and subject to the same penalties as
white citizens in the categories enumerated. See M.
McConnell, Originalism and the Desegregation Decisions,
81 Va. L. Rev. 947, 958 (1995) (“Note that the bill neither
6 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
THOMAS, J., concurring
forbade racial discrimination generally nor did it guarantee
particular rights to all persons. Rather, it required an
equality in certain specific rights”). And, while the 1866 Act
used the rights of “white citizens” as a benchmark, its rule
was decidedly colorblind, safeguarding legal equality for all
citizens “of every race and color” and providing the same
rights to all.
The 1866 Act’s evolution further highlights its rule of
equality. To start, Dred Scott v. Sandford, 19 How. 393(1857), had previously held that blacks “were not regarded
as a portion of the people or citizens of the Government”
and “had no rights which the white man was bound to re-
spect.” Id., at 407, 411. The Act, however, would effectively
overrule Dred Scott and ensure the equality that had been
promised to blacks. But the Act went further still. On Jan-
uary 29, 1866, Senator Lyman Trumbull, the bill’s principal
sponsor in the Senate, proposed text stating that “all per-
sons of African descent born in the United States are hereby
declared to be citizens.” Cong. Globe, 39th Cong., 1st Sess.,
474. The following day, Trumbull revised his proposal, re-
moving the reference to “African descent” and declaring
more broadly that “all persons born in the United States,
and not subject to any foreign Power,” are “citizens of the
United States.” Id., at 498.
“In the years before the Fourteenth Amendment’s adop-
tion, jurists and legislators often connected citizenship with
equality,” where “the absence or presence of one entailed
the absence or presence of the other.” United States v.
Vaello Madero, 596 U. S. ___, ___ (2022) (THOMAS, J., con-
curring) (slip op., at 6). The addition of a citizenship guar-
antee thus evidenced an intent to broaden the provision, ex-
tending beyond recently freed blacks and incorporating a
more general view of equality for all Americans. Indeed,
the drafters later included a specific carveout for “Indians
not taxed,” demonstrating the breadth of the bill’s other-
Cite as: 600 U. S. ____ (2023) 7
THOMAS, J., concurring
wise general citizenship language. 14 Stat. 27.1 As Trum-
bull explained, the provision created a bond between all
Americans; “any statute which is not equal to all, and which
deprives any citizen of civil rights which are secured to
other citizens,” was “an unjust encroachment upon his lib-
erty” and a “badge of servitude” prohibited by the Constitu-
tion. Cong. Globe, 39th Cong., 1st Sess., at 474 (emphasis
added).
Trumbull and most of the Act’s other supporters identi-
fied the Thirteenth Amendment as a principal source of con-
stitutional authority for the Act’s nondiscrimination provi-
sions. See, e.g., id., at 475 (statement of Sen. Trumbull);
id., at 1152 (statement of Rep. Thayer); id., at 503–504
(statement of Sen. Howard). In particular, they explained
that the Thirteenth Amendment allowed Congress not
merely to legislate against slavery itself, but also to counter
measures “which depriv[e] any citizen of civil rights which
are secured to other citizens.” Id., at 474.
But opponents argued that Congress’ authority did not
sweep so broadly. President Andrew Johnson, for example,
contended that Congress lacked authority to pass the meas-
ure, seizing on the breadth of the citizenship text and em-
phasizing state authority over matters of state citizenship.
See S. Doc. No. 31, 39th Cong., 1st Sess., 1, 6 (1866) (John-
son veto message). Consequently, “doubts about the consti-
tutional authority conferred by that measure led supporters
to supplement their Thirteenth Amendment arguments
with other sources of constitutional authority.” R. Wil-
liams, Originalism and the Other Desegregation Decision,
99 Va. L. Rev. 493, 532–533 (2013) (describing appeals to
the naturalization power and the inherent power to protect
——————
1 In fact, Indians would not be considered citizens until several decades
later. Indian Citizenship Act of 1924, ch. 233, 43 Stat. 253 (declaring
that all Indians born in the United States are citizens).
8 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
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THOMAS, J., concurring
the rights of citizens). As debates continued, it became in-
creasingly apparent that safeguarding the 1866 Act, includ-
ing its promise of black citizenship and the equal rights that
citizenship entailed, would require further submission to
the people of the United States in the form of a proposed
constitutional amendment. See, e.g., Cong. Globe, 39th
Cong., 1st Sess., at 498 (statement of Sen. Van Winkle).
B
Critically, many of those who believed that Congress
lacked the authority to enact the 1866 Act also supported
the principle of racial equality. So, almost immediately fol-
lowing the ratification of the Thirteenth Amendment, sev-
eral proposals for further amendments were submitted in
Congress. One such proposal, approved by the Joint Com-
mittee on Reconstruction and then submitted to the House
of Representatives on February 26, 1866, would have de-
clared that “[t]he Congress shall have power to make all
laws which shall be necessary and proper to secure to the
citizens of each State all privileges and immunities of citi-
zens in the several States, and to all persons in the several
States equal protection in the rights of life, liberty, and
property.” Id., at 1033–1034. Representative John Bing-
ham, its drafter, was among those who believed Congress
lacked the power to enact the 1866 Act. See id., at 1291.
Specifically, he believed the “very letter of the Constitution”
already required equality, but the enforcement of that re-
quirement “is of the reserved powers of the States.” Cong.
Globe, 39th Cong., 1st Sess., at 1034, 1291 (statement of
Rep. Bingham). His proposed constitutional amendment
accordingly would provide a clear constitutional basis for
the 1866 Act and ensure that future Congresses would be
unable to repeal it. See W. Nelson, The Fourteenth Amend-
ment 48–49 (1988).
Discussion of Bingham’s initial draft was later postponed
in the House, but the Joint Committee on Reconstruction
Cite as: 600 U. S. ____ (2023) 9
THOMAS, J., concurring
continued its work. See 2 K. Lash, The Reconstruction
Amendments 8 (2021). In April, Representative Thaddeus
Stevens proposed to the Joint Committee an amendment
that began, “[n]o discrimination shall be made by any State
nor by the United States as to the civil rights of persons
because of race, color, or previous condition of servitude.”
S. Doc. No. 711, 63d Cong., 1st Sess., 31–32 (1915) (reprint-
ing the Journal of the Joint Committee on Reconstruction
for the Thirty-Ninth Congress). Stevens’ proposal was later
revised to read as follows: “ ‘No State shall make or enforce
any law which shall abridge the privileges or immunities of
citizens of the United States; nor shall any State deprive
any person of life, liberty, or property without due process
of law, nor deny to any person within its jurisdiction the
equal protection of the laws.’ ” Id., at 39. This revised text
was submitted to the full House on April 30, 1866. Cong.
Globe, 39th Cong., 1st Sess., at 2286–2287. Like the even-
tual first section of the Fourteenth Amendment, this pro-
posal embodied the familiar Privileges or Immunities, Due
Process, and Equal Protection Clauses. And, importantly,
it also featured an enforcement clause—with text borrowed
from the Thirteenth Amendment—conferring upon Con-
gress the power to enforce its provisions. Ibid.
Stevens explained that the draft was intended to “allo[w]
Congress to correct the unjust legislation of the States, so
far that the law which operates upon one man shall operate
equally upon all.” Id., at 2459. Moreover, Stevens’ later
statements indicate that he did not believe there was a dif-
ference “in substance between the new proposal and” ear-
lier measures calling for impartial and equal treatment
without regard to race. U. S. Brown Reargument Brief 44
(noting a distinction only with respect to a suffrage provi-
sion). And, Bingham argued that the need for the proposed
text was “one of the lessons that have been taught . . . by
the history of the past four years of terrific conflict” during
the Civil War. Cong. Globe, 39th Cong., 1st Sess., at 2542.
10 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
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THOMAS, J., concurring
The proposal passed the House by a vote of 128 to 37. Id.,
at 2545.
Senator Jacob Howard introduced the proposed Amend-
ment in the Senate, powerfully asking, “Ought not the time
to be now passed when one measure of justice is to be meted
out to a member of one caste while another and a different
measure is meted out to the member of another caste, both
castes being alike citizens of the United States, both bound
to obey the same laws, to sustain the burdens of the same
Government, and both equally responsible to justice and to
God for the deeds done in the body?” Id., at 2766. In keep-
ing with this view, he proposed an introductory sentence,
declaring that “ ‘all persons born in the United States, and
subject to the jurisdiction thereof, are citizens of the United
States and of the States wherein they reside.’ ” Id., at 2869.
This text, the Citizenship Clause, was the final missing el-
ement of what would ultimately become §1 of the Four-
teenth Amendment. Howard’s draft for the proposed citi-
zenship text was modeled on the Civil Rights Act of 1866’s
text, and he suggested the alternative language to “re-
mov[e] all doubt as to what persons are or are not citizens
of the United States,” a question which had “long been a
great desideratum in the jurisprudence and legislation of
this country.” Id., at 2890. He further characterized the
addition as “simply declaratory of what I regard as the law
of the land already.” Ibid.
The proposal was approved in the Senate by a vote of 33
to 11. Id., at 3042. The House then reconciled differences
between the two measures, approving the Senate’s changes
by a vote of 120 to 32. See id., at 3149. And, in June 1866,
the amendment was submitted to the States for their con-
sideration and ratification. Two years later, it was ratified
by the requisite number of States and became the Four-
teenth Amendment to the United States Constitution. See
15 Stat. 706–707; id., at 709–711. Its opening words in-
stilled in our Nation’s Constitution a new birth of freedom:
Cite as: 600 U. S. ____ (2023) 11
THOMAS, J., concurring
“All persons born or naturalized in the United States,
and subject to the jurisdiction thereof, are citizens of
the United States and of the State wherein they reside.
No State shall make or enforce any law which shall
abridge the privileges or immunities of citizens of the
United States; nor shall any State deprive any person
of life, liberty, or property, without due process of law;
nor deny to any person within its jurisdiction the equal
protection of the laws.” §1.
As enacted, the text of the Fourteenth Amendment pro-
vides a firm statement of equality before the law. It begins
by guaranteeing citizenship status, invoking the
“longstanding political and legal tradition that closely asso-
ciated the status of citizenship with the entitlement to legal
equality.” Vaello Madero, 596 U. S., at ___ (THOMAS, J.,
concurring) (slip op., at 6) (internal quotation marks omit-
ted). It then confirms that States may not “abridge the
rights of national citizenship, including whatever civil
equality is guaranteed to ‘citizens’ under the Citizenship
Clause.” Id., at ___, n. 3 (slip op., at 13, n. 3). Finally, it
pledges that even noncitizens must be treated equally “as
individuals, and not as members of racial, ethnic, or reli-
gious groups.” Missouri v. Jenkins, 515 U. S. 70, 120–121
(1995) (THOMAS, J., concurring).
The drafters and ratifiers of the Fourteenth Amendment
focused on this broad equality idea, offering surprisingly lit-
tle explanation of which term was intended to accomplish
which part of the Amendment’s overall goal. “The available
materials . . . show,” however, “that there were widespread
expressions of a general understanding of the broad scope
of the Amendment similar to that abundantly demon-
strated in the Congressional debates, namely, that the first
section of the Amendment would establish the full constitu-
tional right of all persons to equality before the law and
would prohibit legal distinctions based on race or color.”
12 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
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THOMAS, J., concurring
U. S. Brown Reargument Brief 65 (citation omitted). For
example, the Pennsylvania debate suggests that the Four-
teenth Amendment was understood to make the law “what
justice is represented to be, blind” to the “color of [one’s]
skin.” App. to Pa. Leg. Record XLVIII (1867) (Rep. Mann).
The most commonly held view today—consistent with the
rationale repeatedly invoked during the congressional de-
bates, see, e.g., Cong. Globe, 39th Cong., 1st Sess., at 2458–
2469—is that the Amendment was designed to remove any
doubts regarding Congress’ authority to enact the Civil
Rights Act of 1866 and to establish a nondiscrimination rule
that could not be repealed by future Congresses. See, e.g.,
J. Harrison, Reconstructing the Privileges or Immunities
Clause, 101 Yale L. J. 1385, 1388 (1992) (noting that the
“primary purpose” of the Fourteenth Amendment “was to
mandate certain rules of racial equality, especially those
contained in Section 1 of the Civil Rights Act of 1866”).2 The
Amendment’s phrasing supports this view, and there does
not appear to have been any argument to the contrary pre-
dating Brown.
Consistent with the Civil Rights Act of 1866’s aim, the
Amendment definitively overruled Chief Justice Taney’s
opinion in Dred Scott that blacks “were not regarded as a
portion of the people or citizens of the Government” and
“had no rights which the white man was bound to respect.”
19 How., at 407, 411. And, like the 1866 Act, the Amend-
ment also clarified that American citizenship conferred
——————
2 There is “some support” in the history of enactment for at least “four
interpretations of the first section of the proposed amendment, and in
particular of its Privileges [or] Immunities Clause: it would authorize
Congress to enforce the Privileges and Immunities Clause of Article IV;
it would forbid discrimination between citizens with respect to funda-
mental rights; it would establish a set of basic rights that all citizens
must enjoy; and it would make the Bill of Rights applicable to the states.”
D. Currie, The Reconstruction Congress, 75 U. Chi. L. Rev. 383, 406
(2008) (citing sources). Notably, those four interpretations are all color-
blind.
Cite as: 600 U. S. ____ (2023) 13
THOMAS, J., concurring
rights not just against the Federal Government but also the
government of the citizen’s State of residence. Unlike the
Civil Rights Act, however, the Amendment employed a
wholly race-neutral text, extending privileges or immuni-
ties to all “citizens”—even if its practical effect was to pro-
vide all citizens with the same privileges then enjoyed by
whites. That citizenship guarantee was often linked with
the concept of equality. Vaello Madero, 596 U. S., at ___
(THOMAS, J., concurring) (slip op., at 10). Combining the
citizenship guarantee with the Privileges or Immunities
Clause and the Equal Protection Clause, the Fourteenth
Amendment ensures protection for all equal citizens of the
Nation without regard to race. Put succinctly, “[o]ur Con-
stitution is color-blind.” Plessy, 163 U. S., at 559 (Harlan,
J., dissenting).
C
In the period closely following the Fourteenth Amend-
ment’s ratification, Congress passed several statutes de-
signed to enforce its terms, eliminating government-based
Black Codes—systems of government-imposed segrega-
tion—and criminalizing racially motivated violence. The
marquee legislation was the Civil Rights Act of 1875, ch.
114, 18 Stat. 335–337, and the justifications offered by pro-
ponents of that measure are further evidence for the color-
blind view of the Fourteenth Amendment.
The Civil Rights Act of 1875 sought to counteract the sys-
tems of racial segregation that had arisen in the wake of
the Reconstruction era. Advocates of so-called separate-
but-equal systems, which allowed segregated facilities for
blacks and whites, had argued that laws permitting or re-
quiring such segregation treated members of both races
precisely alike: Blacks could not attend a white school, but
symmetrically, whites could not attend a black school. See
Plessy, 163 U. S., at 544 (arguing that, in light of the social
14 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
THOMAS, J., concurring
circumstances at the time, racial segregation did not “nec-
essarily imply the inferiority of either race to the other”).
Congress was not persuaded. Supporters of the soon-to-be
1875 Act successfully countered that symmetrical re-
strictions did not constitute equality, and they did so on
colorblind terms.
For example, they asserted that “free government de-
mands the abolition of all distinctions founded on color and
race.” 2 Cong. Rec. 4083 (1874). And, they submitted that
“[t]he time has come when all distinctions that grew out of
slavery ought to disappear.” Cong. Globe, 42d Cong., 2d
Sess., 3193 (1872) (“[A]s long as you have distinctions and
discriminations between white and black in the enjoyment
of legal rights and privileges[,] you will have discontent and
parties divided between black and white”). Leading Repub-
lican Senator Charles Sumner compellingly argued that
“any rule excluding a man on account of his color is an in-
dignity, an insult, and a wrong.” Id., at 242; see also ibid.
(“I insist that by the law of the land all persons without dis-
tinction of color shall be equal before the law”). Far from
conceding that segregation would be perceived as inoffen-
sive if race roles were reversed, he declared that “[t]his is
plain oppression, which you . . . would feel keenly were it
directed against you or your child.” Id., at 384. He went on
to paraphrase the English common-law rule to which he
subscribed: “[The law] makes no discrimination on account
of color.” Id., at 385.
Others echoed this view. Representative John Lynch de-
clared that “[t]he duty of the law-maker is to know no race,
no color, no religion, no nationality, except to prevent dis-
tinctions on any of these grounds, so far as the law is con-
cerned.” 3 Cong. Rec. 945 (1875). Senator John Sherman
believed that the route to peace was to “[w]ipe out all legal
discriminations between white and black [and] make no
distinction between black and white.” Cong. Globe, 42d
Cong., 2d Sess., at 3193. And, Senator Henry Wilson
Cite as: 600 U. S. ____ (2023) 15
THOMAS, J., concurring
sought to “make illegal all distinctions on account of color”
because “there should be no distinction recognized by the
laws of the land.” Id., at 819; see also 3 Cong. Rec., at 956
(statement of Rep. Cain) (“[M]en [are] formed of God
equally . . . . The civil-rights bill simply declares this: that
there shall be no discriminations between citizens of this
land so far as the laws of the land are concerned”). The view
of the Legislature was clear: The Constitution “neither
knows nor tolerates classes among citizens.” Plessy, 163
U. S., at 559 (Harlan, J., dissenting).
D
The earliest Supreme Court opinions to interpret the
Fourteenth Amendment did so in colorblind terms. Their
statements characterizing the Amendment evidence its
commitment to equal rights for all citizens, regardless of
the color of their skin. See ante, at 10–11.
In the Slaughter-House Cases, 16 Wall. 36 (1873), the
Court identified the “pervading purpose” of the Reconstruc-
tion Amendments as “the freedom of the slave race, the se-
curity and firm establishment of that freedom, and the pro-
tection of the newly-made freeman and citizen from the
oppressions of those who had formerly exercised unlimited
dominion over him.” Id., at 67–72. Yet, the Court quickly
acknowledged that the language of the Amendments did
not suggest “that no one else but the negro can share in this
protection.” Id., at 72. Rather, “[i]f Mexican peonage or the
Chinese coolie labor system shall develop slavery of the
Mexican or Chinese race within our territory, [the Thir-
teenth Amendment] may safely be trusted to make it void.”
Ibid. And, similarly, “if other rights are assailed by the
States which properly and necessarily fall within the pro-
tection of these articles, that protection will apply, though
the party interested may not be of African descent.” Ibid.16 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
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THOMAS, J., concurring
The Court thus made clear that the Fourteenth Amend-
ment’s equality guarantee applied to members of all races,
including Asian Americans, ensuring all citizens equal
treatment under law.
Seven years later, the Court relied on the Slaughter-
House view to conclude that “[t]he words of the [Fourteenth
A]mendment . . . contain a necessary implication of a posi-
tive immunity, or right, most valuable to the colored race,—
the right to exemption from unfriendly legislation against
them distinctively as colored.” Strauder v. West Virginia,
100 U. S. 303, 307–308 (1880). The Court thus found that
the Fourteenth Amendment banned “expres[s]” racial clas-
sifications, no matter the race affected, because these clas-
sifications are “a stimulant to . . . race prejudice.” Id., at
308. See also ante, at 10–11. Similar statements appeared
in other cases decided around that time. See Virginia v.
Rives, 100 U. S. 313, 318 (1880) (“The plain object of these
statutes [enacted to enforce the Fourteenth Amendment],
as of the Constitution which authorized them, was to place
the colored race, in respect of civil rights, upon a level with
whites. They made the rights and responsibilities, civil and
criminal, of the two races exactly the same”); Ex parte Vir-
ginia, 100 U. S. 339, 344–345 (1880) (“One great purpose of
[the Thirteenth and Fourteenth Amendments] was to raise
the colored race from that condition of inferiority and servi-
tude in which most of them had previously stood, into per-
fect equality of civil rights with all other persons within the
jurisdiction of the States”).
This Court’s view of the Fourteenth Amendment reached
its nadir in Plessy, infamously concluding that the Four-
teenth Amendment “could not have been intended to abol-
ish distinctions based upon color, or to enforce social, as dis-
tinguished from political equality, or a commingling of the
two races upon terms unsatisfactory to either.” 163 U. S.,
at 544. That holding stood in sharp contrast to the Court’s
earlier embrace of the Fourteenth Amendment’s equality
Cite as: 600 U. S. ____ (2023) 17
THOMAS, J., concurring
ideal, as Justice Harlan emphasized in dissent: The Recon-
struction Amendments had aimed to remove “the race line
from our systems of governments.” Id., at 563. For Justice
Harlan, the Constitution was colorblind and categorically
rejected laws designed to protect “a dominant race—a supe-
rior class of citizens,” while imposing a “badge of servitude”
on others. Id., at 560–562.
History has vindicated Justice Harlan’s view, and this
Court recently acknowledged that Plessy should have been
overruled immediately because it “betrayed our commit-
ment to ‘equality before the law.’ ” Dobbs v. Jackson
Women’s Health Organization, 597 U. S. ___, ___ (2022)
(slip op., at 44). Nonetheless, and despite Justice Harlan’s
efforts, the era of state-sanctioned segregation persisted for
more than a half century.
E
Despite the extensive evidence favoring the colorblind
view, as detailed above, it appears increasingly in vogue to
embrace an “antisubordination” view of the Fourteenth
Amendment: that the Amendment forbids only laws that
hurt, but not help, blacks. Such a theory lacks any basis in
the original meaning of the Fourteenth Amendment. Re-
spondents cite a smattering of federal and state statutes
passed during the years surrounding the ratification of the
Fourteenth Amendment. And, JUSTICE SOTOMAYOR’s dis-
sent argues that several of these statutes evidence the rat-
ifiers’ understanding that the Equal Protection Clause “per-
mits consideration of race to achieve its goal.” Post, at 6.
Upon examination, however, it is clear that these statutes
are fully consistent with the colorblind view.
Start with the 1865 Freedmen’s Bureau Act. That Act
established the Freedmen’s Bureau to issue “provisions,
clothing, and fuel . . . needful for the immediate and tempo-
rary shelter and supply of destitute and suffering refugees
and freedmen and their wives and children” and the setting
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AND FELLOWS OF HARVARD COLLEGE
THOMAS, J., concurring
“apart, for the use of loyal refugees and freedmen,” aban-
doned, confiscated, or purchased lands, and assigning “to
every male citizen, whether refugee or freedman, . . . not
more than forty acres of such land.” Ch. 90, §§2, 4, 13 Stat.
507. The 1866 Freedmen’s Bureau Act then expanded upon
the prior year’s law, authorizing the Bureau to care for all
loyal refugees and freedmen. Ch. 200, 14 Stat. 173–174.
Importantly, however, the Acts applied to freedmen (and
refugees), a formally race-neutral category, not blacks writ
large. And, because “not all blacks in the United States
were former slaves,” “ ‘freedman’ ” was a decidedly under-
inclusive proxy for race. M. Rappaport, Originalism and
the Colorblind Constitution, 89 Notre Dame L. Rev. 71, 98
(2013) (Rappaport). Moreover, the Freedmen’s Bureau
served newly freed slaves alongside white refugees. P.
Moreno, Racial Classifications and Reconstruction Legisla-
tion, 61 J. So. Hist. 271, 276–277 (1995); R. Barnett & E.
Bernick, The Original Meaning of the Fourteenth Amend-
ment 119 (2021). And, advocates of the law explicitly dis-
claimed any view rooted in modern conceptions of antisub-
ordination. To the contrary, they explicitly clarified that
the equality sought by the law was not one in which all men
shall be “six feet high”; rather, it strove to ensure that freed-
men enjoy “equal rights before the law” such that “each man
shall have the right to pursue in his own way life, liberty,
and happiness.” Cong. Globe, 39th Cong., 1st Sess., at 322,
342.
Several additional federal laws cited by respondents ap-
pear to classify based on race, rather than previous condi-
tion of servitude. For example, an 1866 law adopted special
rules and procedures for the payment of “colored” service-
men in the Union Army to agents who helped them secure
bounties, pensions, and other payments that they were due.
14 Stat. 367–368. At the time, however, Congress believed
that many “black servicemen were significantly overpaying
for these agents’ services in part because [the servicemen]
Cite as: 600 U. S. ____ (2023) 19
THOMAS, J., concurring
did not understand how the payment system operated.”
Rappaport 110; see also S. Siegel, The Federal Govern-
ment’s Power To Enact Color-Conscious Laws: An Original-
ist Inquiry, 92 Nw. U. L. Rev. 477, 561 (1998). Thus, while
this legislation appears to have provided a discrete race-
based benefit, its aim—to prohibit race-based exploita-
tion—may not have been possible at the time without using
a racial screen. In other words, the statute’s racial classifi-
cations may well have survived strict scrutiny. See Rap-
paport 111–112. Another law, passed in 1867, provided
funds for “freedmen or destitute colored people” in the Dis-
trict of Columbia. Res. of Mar. 16, 1867, No. 4, 15 Stat. 20.
However, when a prior version of this law targeting only
blacks was criticized for being racially discriminatory, “it
was defended on the grounds that there were various places
in the city where former slaves . . . lived in densely popu-
lated shantytowns.” Rappaport 104–105 (citing Cong.
Globe, 39th Cong., 1st Sess., at 1507). Congress thus may
have enacted the measure not because of race, but rather to
address a special problem in shantytowns in the District
where blacks lived.
These laws—even if targeting race as such—likely were
also constitutionally permissible examples of Government
action “undo[ing] the effects of past discrimination in [a
way] that do[es] not involve classification by race,” even
though they had “a racially disproportionate impact.” Rich-
mond v. J. A. Croson Co., 488 U. S. 469, 526 (1989) (Scalia,
J., concurring in judgment) (internal quotation marks omit-
ted). The government can plainly remedy a race-based in-
jury that it has inflicted—though such remedies must be
meant to further a colorblind government, not perpetuate
racial consciousness. See id., at 505 (majority opinion). In
that way, “[r]ace-based government measures during the
1860’s and 1870’s to remedy state-enforced slavery were . . .
not inconsistent with the colorblind Constitution.” Parents
Involved, 551 U. S., at 772, n. 19 (THOMAS, J., concurring).
20 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
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THOMAS, J., concurring
Moreover, the very same Congress passed both these laws
and the unambiguously worded Civil Rights Act of 1866
that clearly prohibited discrimination on the basis of race.3
And, as noted above, the proponents of these laws explicitly
sought equal rights without regard to race while disavow-
ing any antisubordination view.
JUSTICE SOTOMAYOR argues otherwise, pointing to “a
number of race-conscious” federal laws passed around the
time of the Fourteenth Amendment’s enactment. Post, at 6
(dissenting opinion). She identifies the Freedmen’s Bureau
Act of 1865, already discussed above, as one such law, but
she admits that the programs did not benefit blacks exclu-
sively. She also does not dispute that legislation targeting
the needs of newly freed blacks in 1865 could be understood
as directly remedial. Even today, nothing prevents the
States from according an admissions preference to identi-
fied victims of discrimination. See Croson, 488 U. S., at 526(opinion of Scalia, J.) (“While most of the beneficiaries
might be black, neither the beneficiaries nor those disad-
vantaged by the preference would be identified on the basis
of their race” (emphasis in original)); see also ante, at 39.
JUSTICE SOTOMAYOR points also to the Civil Rights Act of
1866, which as discussed above, mandated that all citizens
have the same rights as those “enjoyed by white citizens.”
14 Stat. 27. But these references to the station of white
citizens do not refute the view that the Fourteenth Amend-
ment is colorblind. Rather, they specify that, in meeting
the Amendment’s goal of equal citizenship, States must
level up. The Act did not single out a group of citizens for
——————
3 UNC asserts that the Freedmen’s Bureau gave money to Berea Col-
lege at a time when the school sought to achieve a 50–50 ratio of black to
white students. Brief for University Respondents in No. 21–707, p. 32.
But, evidence suggests that, at the relevant time, Berea conducted its
admissions without distinction by race. S. Wilson, Berea College: An Il-
lustrated History 2 (2006) (quoting Berea’s first president’s statement
that the school “would welcome ‘all races of men, without distinction’ ”).
Cite as: 600 U. S. ____ (2023) 21
THOMAS, J., concurring
special treatment—rather, all citizens were meant to be
treated the same as those who, at the time, had the full
rights of citizenship. Other provisions of the 1866 Act rein-
force this view, providing for equality in civil rights. See
Rappaport 97. Most notably, §14 stated that the basic civil
rights of citizenship shall be secured “without respect to
race or color.” 14 Stat. 176–177. And, §8 required that
funds from land sales must be used to support schools
“without distinction of color or race, . . . in the parishes of ”
the area where the land had been sold. Id., at 175.
In addition to these federal laws, Harvard also points to
two state laws: a South Carolina statute that placed the
burden of proof on the defendant when a “colored or black”
plaintiff claimed a violation, 1870 S. C. Acts pp. 387–388,
and Kentucky legislation that authorized a county superin-
tendent to aid “negro paupers” in Mercer County, 1871 Ky.
Acts pp. 273–274. Even if these statutes provided race-
based benefits, they do not support respondents’ and
JUSTICE SOTOMAYOR’s view that the Fourteenth Amend-
ment was contemporaneously understood to permit differ-
ential treatment based on race, prohibiting only caste leg-
islation while authorizing antisubordination measures.
Cf., e.g., O. Fiss, Groups and the Equal Protection Clause,
5 Philos. & Pub. Aff. 107, 147 (1976) (articulating the anti-
subordination view); R. Siegel, Equality Talk: Antisubordi-
nation and Anticlassification Values in Constitutional
Struggles Over Brown, 117 Harv. L. Rev. 1470, 1473, n. 8
(2004) (collecting scholarship). At most, these laws would
support the kinds of discrete remedial measures that our
precedents have permitted.
If services had been given only to white persons up to the
Fourteenth Amendment’s adoption, then providing those
same services only to previously excluded black persons
would work to equalize treatment against a concrete base-
line of government-imposed inequality. It thus may have
been the case that Kentucky’s county-specific, race-based
22 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
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THOMAS, J., concurring
public aid law was necessary because that particular county
was not providing certain services to local poor blacks. Sim-
ilarly, South Carolina’s burden-shifting framework (where
the substantive rule being applied remained notably race
neutral) may have been necessary to streamline litigation
around the most commonly litigated type of case: a lawsuit
seeking to remedy discrimination against a member of the
large population of recently freed black Americans. See
1870 S. C. Acts, at 386 (documenting “persist[ent]” racial
discrimination by state-licensed entities).
Most importantly, however, there was a wide range of
federal and state statutes enacted at the time of the Four-
teenth Amendment’s adoption and during the period there-
after that explicitly sought to discriminate against blacks
on the basis of race or a proxy for race. See Rappaport 113–
115. These laws, hallmarks of the race-conscious Jim Crow
era, are precisely the sort of enactments that the Framers
of the Fourteenth Amendment sought to eradicate. Yet,
proponents of an antisubordination view necessarily do not
take those laws as evidence of the Fourteenth Amendment’s
true meaning. And rightly so. Neither those laws, nor a
small number of laws that appear to target blacks for pre-
ferred treatment, displace the equality vision reflected in
the history of the Fourteenth Amendment’s enactment.
This is particularly true in light of the clear equality re-
quirements present in the Fourteenth Amendment’s text.
See New York State Rifle & Pistol Assn., Inc. v. Bruen, 597
U. S. ___, ___–___ (2022) (slip op., at 26–27) (noting that
text controls over inconsistent postratification history).
II
Properly understood, our precedents have largely ad-
hered to the Fourteenth Amendment’s demand for color-
blind laws.4 That is why, for example, courts “must subject
——————
4 The Court has remarked that Title VI is coextensive with the Equal
Protection Clause. See Gratz v. Bollinger, 539 U. S. 244, 276, n. 23
Cite as: 600 U. S. ____ (2023) 23
THOMAS, J., concurring
all racial classifications to the strictest of scrutiny.” Jen-
kins, 515 U. S., at 121 (THOMAS, J., concurring); see also
ante, at 15, n. 4 (emphasizing the consequences of an insuf-
ficiently searching inquiry). And, in case after case, we
have employed strict scrutiny vigorously to reject various
forms of racial discrimination as unconstitutional. See
Fisher I, 570 U. S., at 317–318 (THOMAS, J., concurring).
The Court today rightly upholds that tradition and
acknowledges the consequences that have flowed from
Grutter’s contrary approach.
Three aspects of today’s decision warrant comment: First,
to satisfy strict scrutiny, universities must be able to estab-
lish an actual link between racial discrimination and edu-
cational benefits. Second, those engaged in racial discrimi-
nation do not deserve deference with respect to their
reasons for discriminating. Third, attempts to remedy past
governmental discrimination must be closely tailored to ad-
dress that particular past governmental discrimination.
A
To satisfy strict scrutiny, universities must be able to es-
tablish a compelling reason to racially discriminate. Grut-
ter recognized “only one” interest sufficiently compelling to
justify race-conscious admissions programs: the “educa-
tional benefits of a diverse student body.” 539 U. S., at 328,
——————
(2003) (“We have explained that discrimination that violates the Equal
Protection Clause of the Fourteenth Amendment committed by an insti-
tution that accepts federal funds also constitutes a violation of Title VI”);
Regents of Univ. of Cal. v. Bakke, 438 U. S. 265, 287 (1978) (opinion of
Powell, J.) (“Title VI . . . proscribe[s] only those racial classifications that
would violate the Equal Protection Clause”). As JUSTICE GORSUCH points
out, the language of Title VI makes no allowance for racial considerations
in university admissions. See post, at 2–3 (concurring opinion). Though
I continue to adhere to my view in Bostock v. Clayton County, 590 U. S.
___, ___–___ (2020) (ALITO, J., dissenting) (slip op., at 1–54), I agree with
JUSTICE GORSUCH’s concurrence in this case. The plain text of Title VI
reinforces the colorblind view of the Fourteenth Amendment.
24 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
THOMAS, J., concurring
333. Expanding on this theme, Harvard and UNC have of-
fered a grab bag of interests to justify their programs, span-
ning from “ ‘training future leaders in the public and private
sectors’ ” to “ ‘enhancing appreciation, respect, and empa-
thy,’ ” with references to “ ‘better educating [their] students
through diversity’ ” in between. Ante, at 22–23. The Court
today finds that each of these interests are too vague and
immeasurable to suffice, ibid., and I agree.
Even in Grutter, the Court failed to clearly define “the ed-
ucational benefits of a diverse student body.” 539 U. S., at
333. Thus, in the years since Grutter, I have sought to un-
derstand exactly how racial diversity yields educational
benefits. With nearly 50 years to develop their arguments,
neither Harvard nor UNC—two of the foremost research in-
stitutions in the world—nor any of their amici can explain
that critical link.
Harvard, for example, offers a report finding that mean-
ingful representation of racial minorities promotes several
goals. Only one of those goals—“producing new knowledge
stemming from diverse outlooks,” 980 F. 3d 157, 174 (CA1
2020)—bears any possible relationship to educational ben-
efits. Yet, it too is extremely vague and offers no indication
that, for example, student test scores increased as a result
of Harvard’s efforts toward racial diversity.
More fundamentally, it is not clear how racial diversity,
as opposed to other forms of diversity, uniquely and inde-
pendently advances Harvard’s goal. This is particularly
true because Harvard blinds itself to other forms of appli-
cant diversity, such as religion. See 2 App. in No. 20–1199,
pp. 734–743. It may be the case that exposure to different
perspectives and thoughts can foster debate, sharpen young
minds, and hone students’ reasoning skills. But, it is not
clear how diversity with respect to race, qua race, furthers
this goal. Two white students, one from rural Appalachia
and one from a wealthy San Francisco suburb, may well
Cite as: 600 U. S. ____ (2023) 25
THOMAS, J., concurring
have more diverse outlooks on this metric than two stu-
dents from Manhattan’s Upper East Side attending its most
elite schools, one of whom is white and other of whom is
black. If Harvard cannot even explain the link between ra-
cial diversity and education, then surely its interest in ra-
cial diversity cannot be compelling enough to overcome the
constitutional limits on race consciousness.
UNC fares no better. It asserts, for example, an interest
in training students to “live together in a diverse society.”
Brief for University Respondents in No. 21–707, p. 39. This
may well be important to a university experience, but it is
a social goal, not an educational one. See Grutter, 539 U. S.,
at 347–348 (Scalia, J., concurring in part and dissenting in
part) (criticizing similar rationales as divorced from educa-
tional goals). And, again, UNC offers no reason why seek-
ing a diverse society would not be equally supported by ad-
mitting individuals with diverse perspectives and
backgrounds, rather than varying skin pigmentation.
Nor have amici pointed to any concrete and quantifiable
educational benefits of racial diversity. The United States
focuses on alleged civic benefits, including “increasing tol-
erance and decreasing racial prejudice.” Brief for United
States as Amicus Curiae 21–22. Yet, when it comes to edu-
cational benefits, the Government offers only one study
purportedly showing that “college diversity experiences are
significantly and positively related to cognitive develop-
ment” and that “interpersonal interactions with racial di-
versity are the most strongly related to cognitive develop-
ment.” N. Bowman, College Diversity Experiences and
Cognitive Development: A Meta-Analysis, 80 Rev. Educ.
Research 4, 20 (2010). Here again, the link is, at best, ten-
uous, unspecific, and stereotypical. Other amici assert that
diversity (generally) fosters the even-more nebulous values
of “creativity” and “innovation,” particularly in graduates’
future workplaces. See, e.g., Brief for Major American Busi-
26 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
THOMAS, J., concurring
ness Enterprises as Amici Curiae 7–9; Brief for Massachu-
setts Institute of Technology et al. as Amici Curiae 16–17
(describing experience at IBM). Yet, none of those asser-
tions deals exclusively with racial diversity—as opposed to
cultural or ideological diversity. And, none of those amici
demonstrate measurable or concrete benefits that have re-
sulted from universities’ race-conscious admissions pro-
grams.
Of course, even if these universities had shown that ra-
cial diversity yielded any concrete or measurable benefits,
they would still face a very high bar to show that their in-
terest is compelling. To survive strict scrutiny, any such
benefits would have to outweigh the tremendous harm in-
flicted by sorting individuals on the basis of race. See
Cooper v. Aaron, 358 U. S. 1, 16 (1958) (following Brown,
“law and order are not here to be preserved by depriving the
Negro children of their constitutional rights”). As the
Court’s opinions in these cases make clear, all racial stere-
otypes harm and demean individuals. That is why “only
those measures the State must take to provide a bulwark
against anarchy, or to prevent violence, will constitute a
pressing public necessity” sufficient to satisfy strict scru-
tiny today. Grutter, 539 U. S., at 353 (opinion of THOMAS,
J.) (internal quotations marks omitted). Cf. Lee v. Wash-
ington, 390 U. S. 333, 334 (1968) (Black, J., concurring)
(protecting prisoners from violence might justify narrowly
tailored discrimination); Croson, 488 U. S., at 521 (opinion
of Scalia, J.) (“At least where state or local action is at issue,
only a social emergency rising to the level of imminent dan-
ger to life and limb . . . can justify [racial discrimination]”).
For this reason, “just as the alleged educational benefits of
segregation were insufficient to justify racial discrimina-
tion [in the 1950s], see Brown v. Board of Education, the
alleged educational benefits of diversity cannot justify ra-
cial discrimination today.” Fisher I, 570 U. S., at 320(THOMAS, J., concurring) (citation omitted).
Cite as: 600 U. S. ____ (2023) 27
THOMAS, J., concurring
B
The Court also correctly refuses to defer to the universi-
ties’ own assessments that the alleged benefits of race-
conscious admissions programs are compelling. It instead
demands that the “interests [universities] view as compel-
ling” must be capable of being “subjected to meaningful ju-
dicial review.” Ante, at 22. In other words, a court must be
able to measure the goals asserted and determine when
they have been reached. Ante, at 22–24. The Court’s opin-
ion today further insists that universities must be able to
“articulate a meaningful connection between the means
they employ and the goals they pursue.” Ante, at 24. Again,
I agree. Universities’ self-proclaimed righteousness does
not afford them license to discriminate on the basis of race.
In fact, it is error for a court to defer to the views of an
alleged discriminator while assessing claims of racial dis-
crimination. See Grutter, 539 U. S., at 362–364 (opinion of
THOMAS, J.); see also Fisher I, 570 U. S., at 318–319
(THOMAS, J., concurring); United States v. Virginia, 518
U. S. 515, 551, n. 19 (1996) (refusing to defer to the Virginia
Military Institute’s judgment that the changes necessary to
accommodate the admission of women would be too great
and characterizing the necessary changes as “managea-
ble”). We would not offer such deference in any other con-
text. In employment discrimination lawsuits under Title
VII of the Civil Rights Act, for example, courts require only
a minimal prima facie showing by a complainant before
shifting the burden onto the shoulders of the alleged-
discriminator employer. See McDonnell Douglas Corp. v.
Green, 411 U. S. 792, 803–805 (1973). And, Congress has
passed numerous laws—such as the Civil Rights Act of
1875—under its authority to enforce the Fourteenth
Amendment, each designed to counter discrimination and
each relying on courts to bring a skeptical eye to alleged
discriminators.
This judicial skepticism is vital. History has repeatedly
28 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
THOMAS, J., concurring
shown that purportedly benign discrimination may be per-
nicious, and discriminators may go to great lengths to hide
and perpetuate their unlawful conduct. Take, for example,
the university respondents here. Harvard’s “holistic” ad-
missions policy began in the 1920s when it was developed
to exclude Jews. See M. Synnott, The Half-Opened Door:
Discrimination and Admission at Harvard, Yale, and
Princeton, 1900–1970, pp. 58–59, 61, 69, 73–74 (2010).
Based on de facto quotas that Harvard quietly imple-
mented, the proportion of Jews in Harvard’s freshman class
declined from 28% as late as 1925 to just 12% by 1933. J.
Karabel, The Chosen: The Hidden History of Admission and
Exclusion at Harvard, Yale, and Princeton 172 (2005). Dur-
ing this same period, Harvard played a prominent role in
the eugenics movement. According to then-President Ab-
bott Lawrence Lowell, excluding Jews from Harvard would
help maintain admissions opportunities for Gentiles and
perpetuate the purity of the Brahmin race—New England’s
white, Protestant upper crust. See D. Okrent, The Guarded
Gate 309, and n. * (2019).
UNC also has a checkered history, dating back to its time
as a segregated university. It admitted its first black un-
dergraduate students in 1955—but only after being ordered
to do so by a court, following a long legal battle in which
UNC sought to keep its segregated status. Even then, UNC
did not turn on a dime: The first three black students ad-
mitted as undergraduates enrolled at UNC but ultimately
earned their bachelor’s degrees elsewhere. See M. Beaure-
gard, Column: The Desegregation of UNC, The Daily Tar
Heel, Feb. 16, 2022. To the extent past is prologue, the uni-
versity respondents’ histories hardly recommend them as
trustworthy arbiters of whether racial discrimination is
necessary to achieve educational goals.
Of course, none of this should matter in any event; courts
have an independent duty to interpret and uphold the Con-
stitution that no university’s claimed interest may override.
Cite as: 600 U. S. ____ (2023) 29
THOMAS, J., concurring
See ante, at 26, n. 5. The Court today makes clear that, in
the future, universities wishing to discriminate based on
race in admissions must articulate and justify a compelling
and measurable state interest based on concrete evidence.
Given the strictures set out by the Court, I highly doubt any
will be able to do so.
C
In an effort to salvage their patently unconstitutional
programs, the universities and their amici pivot to argue
that the Fourteenth Amendment permits the use of race to
benefit only certain racial groups—rather than applicants
writ large. Yet, this is just the latest disguise for discrimi-
nation. The sudden narrative shift is not surprising, as it
has long been apparent that “ ‘diversity [was] merely the
current rationale of convenience’ ” to support racially dis-
criminatory admissions programs. Grutter, 539 U. S., at
393 (Kennedy, J., dissenting). Under our precedents, this
new rationale is also lacking.
To start, the case for affirmative action has emphasized
a number of rationales over the years, including: (1) resti-
tution to compensate those who have been victimized by
past discrimination, (2) fostering “diversity,” (3) facilitating
“integration” and the destruction of perceived racial castes,
and (4) countering longstanding and diffuse racial preju-
dice. See R. Kennedy, For Discrimination: Race, Affirma-
tive Action, and the Law 78 (2013); see also P. Schuck, Af-
firmative Action: Past, Present, and Future, 20 Yale L. &
Pol’y Rev. 1, 22–46 (2002). Again, this Court has only rec-
ognized one interest as compelling: the educational benefits
of diversity embraced in Grutter. Yet, as the universities
define the “diversity” that they practice, it encompasses so-
cial and aesthetic goals far afield from the education-based
interest discussed in Grutter. See supra, at 23. The dis-
sents too attempt to stretch the diversity rationale, suggest-
ing that it supports broad remedial interests. See, e.g., post,
30 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
THOMAS, J., concurring
at 23, 43, 67 (opinion of SOTOMAYOR, J.) (noting that UNC’s
black admissions percentages “do not reflect the diversity
of the State”; equating the diversity interest under the
Court’s precedents with a goal of “integration in higher ed-
ucation” more broadly; and warning of “the dangerous con-
sequences of an America where its leadership does not re-
flect the diversity of the People”); post, at 23 (opinion of
JACKSON, J.) (explaining that diversity programs close
wealth gaps). But language—particularly the language of
controlling opinions of this Court—is not so elastic. See J.
Pieper, Abuse of Language—Abuse of Power 23 (L. Krauth
transl. 1992) (explaining that propaganda, “in contradiction
to the nature of language, intends not to communicate but
to manipulate” and becomes an “[i]nstrument of power”
(emphasis deleted)).
The Court refuses to engage in this lexicographic drift,
seeing these arguments for what they are: a remedial ra-
tionale in disguise. See ante, at 34–35. As the Court points
out, the interest for which respondents advocate has been
presented to and rejected by this Court many times before.
In Regents of University of California v. Bakke, 438 U. S.
265 (1978), the University of California made clear its ra-
tionale for the quota system it had established: It wished to
“counteract effects of generations of pervasive discrimina-
tion” against certain minority groups. Brief for Petitioner,
O. T. 1977, No. 76–811, p. 2. But, the Court rejected this
distinctly remedial rationale, with Justice Powell adopting
in its place the familiar “diversity” interest that appeared
later in Grutter. See Bakke, 438 U. S., at 306 (plurality
opinion). The Court similarly did not adopt the broad re-
medial rationale in Grutter; and it rejects it again today.
Newly and often minted theories cannot be said to be com-
manded by our precedents.
Indeed, our precedents have repeatedly and soundly dis-
tinguished between programs designed to compensate vic-
Cite as: 600 U. S. ____ (2023) 31
THOMAS, J., concurring
tims of past governmental discrimination from so-called be-
nign race-conscious measures, such as affirmative action.
Croson, 488 U. S., at 504–505; Adarand Constructors, Inc.
v. Peña, 515 U. S. 200, 226–227 (1995). To enforce that dis-
tinction, our precedents explicitly require that any attempt
to compensate victims of past governmental discrimination
must be concrete and traceable to the de jure segregated
system, which must have some discrete and continuing dis-
criminatory effect that warrants a present remedy. See
United States v. Fordice, 505 U. S. 717, 731 (1992). Today’s
opinion for the Court reaffirms the need for such a close re-
medial fit, hewing to the same line we have consistently
drawn. Ante, at 24–25.
Without such guardrails, the Fourteenth Amendment
would become self-defeating, promising a Nation based on
the equality ideal but yielding a quota- and caste-ridden so-
ciety steeped in race-based discrimination. Even Grutter
itself could not tolerate this outcome. It accordingly im-
posed a time limit for its race-based regime, observing that
“ ‘a core purpose of the Fourteenth Amendment was to do
away with all governmentally imposed discrimination
based on race.’ ” 539 U. S., at 341–342 (quoting Palmore v.
Sidoti, 466 U. S. 429, 432 (1984); alterations omitted).
The Court today enforces those limits. And rightly so. As
noted above, both Harvard and UNC have a history of racial
discrimination. But, neither have even attempted to ex-
plain how their current racially discriminatory programs
are even remotely traceable to their past discriminatory
conduct. Nor could they; the current race-conscious admis-
sions programs take no account of ancestry and, at least for
Harvard, likely have the effect of discriminating against
some of the very same ethnic groups against which Harvard
previously discriminated (i.e., Jews and those who are not
part of the white elite). All the while, Harvard and UNC
ask us to blind ourselves to the burdens imposed on the mil-
lions of innocent applicants denied admission because of
32 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
THOMAS, J., concurring
their membership in a currently disfavored race.
The Constitution neither commands nor permits such a
result. “Purchased at the price of immeasurable human
suffering,” the Fourteenth Amendment recognizes that
classifications based on race lead to ruinous consequences
for individuals and the Nation. Adarand Constructors, Inc.,
515 U. S., at 240 (THOMAS, J., concurring in part and con-
curring in judgment). Consequently, “all” racial classifica-
tions are “inherently suspect,” id., at 223–224 (majority
opinion) (emphasis added; internal quotation marks omit-
ted), and must be subjected to the searching inquiry con-
ducted by the Court, ante, at 21–34.
III
Both experience and logic have vindicated the Constitu-
tion’s colorblind rule and confirmed that the universities’
new narrative cannot stand. Despite the Court’s hope in
Grutter that universities would voluntarily end their race-
conscious programs and further the goal of racial equality,
the opposite appears increasingly true. Harvard and UNC
now forthrightly state that they racially discriminate when
it comes to admitting students, arguing that such discrimi-
nation is consistent with this Court’s precedents. And they,
along with today’s dissenters, defend that discrimination as
good. More broadly, it is becoming increasingly clear that
discrimination on the basis of race—often packaged as “af-
firmative action” or “equity” programs—are based on the
benighted notion “that it is possible to tell when discrimi-
nation helps, rather than hurts, racial minorities.” Fisher
I, 570 U. S., at 328 (THOMAS, J., concurring).
We cannot be guided by those who would desire less in
our Constitution, or by those who would desire more. “The
Constitution abhors classifications based on race, not only
because those classifications can harm favored races or are
based on illegitimate motives, but also because every time
the government places citizens on racial registers and
Cite as: 600 U. S. ____ (2023) 33
THOMAS, J., concurring
makes race relevant to the provision of burdens or benefits,
it demeans us all.” Grutter, 539 U. S., at 353 (opinion of
THOMAS, J.).
A
The Constitution’s colorblind rule reflects one of the core
principles upon which our Nation was founded: that “all
men are created equal.” Those words featured prominently
in our Declaration of Independence and were inspired by a
rich tradition of political thinkers, from Locke to Montes-
quieu, who considered equality to be the foundation of a just
government. See, e.g., J. Locke, Second Treatise of Civil
Government 48 (J. Gough ed. 1948); T. Hobbes, Leviathan
98 (M. Oakeshott ed. 1962); 1 B. Montesquieu, The Spirit of
Laws 121 (T. Nugent transl., J. Prichard ed. 1914). Several
Constitutions enacted by the newly independent States at
the founding reflected this principle. For example, the Vir-
ginia Bill of Rights of 1776 explicitly affirmed “[t]hat all
men are by nature equally free and independent, and have
certain inherent rights.” Ch. 1, §1. The State Constitutions
of Massachusetts, Pennsylvania, and New Hampshire
adopted similar language. Pa. Const., Art. I (1776), in 2
Federal and State Constitutions 1541 (P. Poore ed. 1877);
Mass. Const., Art. I (1780), in 1 id., at 957; N. H. Const.,
Art. I (1784), in 2 id., at 1280.5 And, prominent Founders
——————
5 In fact, the Massachusetts Supreme Court in 1783 declared that slav-
ery was abolished in Massachusetts by virtue of the newly enacted Con-
stitution’s provision of equality under the law. See The Quock Walker
Case, in 1 H. Commager, Documents of American History 110 (9th ed.
1973) (Cushing, C. J.) (“[W]hatever sentiments have formerly prevailed
in this particular or slid in upon us by the example of others, a different
idea has taken place with the people of America, more favorable to the
natural rights of mankind, and to that natural, innate desire of Lib-
erty . . . . And upon this ground our Constitution of Government . . . sets
out with declaring that all men are born free and equal . . . and in short
is totally repugnant to the idea of being born slaves”).
34 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
THOMAS, J., concurring
publicly mused about the need for equality as the founda-
tion for government. E.g., 1 Cong. Register 430 (T. Lloyd
ed. 1789) (Madison, J.); 1 Letters and Other Writings of
James Madison 164 (J. Lippincott ed. 1867); N. Webster,
The Revolution in France, in 2 Political Sermons of the
Founding Era, 1730–1805, pp. 1236–1299 (1998). As Jef-
ferson declared in his first inaugural address, “the minority
possess their equal rights, which equal law must protect.”
First Inaugural Address (Mar. 4, 1801), in 8 The Writings
of Thomas Jefferson 4 (Washington ed. 1854).
Our Nation did not initially live up to the equality prin-
ciple. The institution of slavery persisted for nearly a cen-
tury, and the United States Constitution itself included sev-
eral provisions acknowledging the practice. The period
leading up to our second founding brought these flaws into
bold relief and encouraged the Nation to finally make good
on the equality promise. As Lincoln recognized, the prom-
ise of equality extended to all people—including immi-
grants and blacks whose ancestors had taken no part in the
original founding. See Speech at Chicago, Ill. (July 10,
1858), in 2 The Collected Works of Abraham Lincoln 488–
489, 499 (R. Basler ed. 1953). Thus, in Lincoln’s view, “ ‘the
natural rights enumerated in the Declaration of Independ-
ence’ ” extended to blacks as his “‘equal,’” and “‘the equal of
every living man.’ ” The Lincoln-Douglas Debates 285 (H.
Holzer ed. 1993).
As discussed above, the Fourteenth Amendment reflected
that vision, affirming that equality and racial discrimina-
tion cannot coexist. Under that Amendment, the color of a
person’s skin is irrelevant to that individual’s equal status
as a citizen of this Nation. To treat him differently on the
basis of such a legally irrelevant trait is therefore a devia-
tion from the equality principle and a constitutional injury.
Of course, even the promise of the second founding took
time to materialize. Seeking to perpetuate a segregationist
Cite as: 600 U. S. ____ (2023) 35
THOMAS, J., concurring
system in the wake of the Fourteenth Amendment’s ratifi-
cation, proponents urged a “separate but equal” regime.
They met with initial success, ossifying the segregationist
view for over a half century. As this Court said in Plessy:
“A statute which implies merely a legal distinction
between the white and colored races—a distinction
which is founded in the color of the two races, and
which must always exist so long as white men are dis-
tinguished from the other race by color—has no ten-
dency to destroy the legal equality of the two races, or
reestablish a state of involuntary servitude.” 163 U. S.,
at 543.
Such a statement, of course, is precisely antithetical to the
notion that all men, regardless of the color of their skin, are
born equal and must be treated equally under the law.
Only one Member of the Court adhered to the equality prin-
ciple; Justice Harlan, standing alone in dissent, wrote: “Our
constitution is color-blind, and neither knows nor tolerates
classes among citizens. In respect of civil rights, all citizens
are equal before the law.” Id., at 559. Though Justice Har-
lan rightly predicted that Plessy would, “in time, prove to
be quite as pernicious as the decision made . . . in the Dred
Scott case,” the Plessy rule persisted for over a half century.
Ibid. While it remained in force, Jim Crow laws prohibiting
blacks from entering or utilizing public facilities such as
schools, libraries, restaurants, and theaters sprang up
across the South.
This Court rightly reversed course in Brown v. Board of
Education. The Brown appellants—those challenging seg-
regated schools—embraced the equality principle, arguing
that “[a] racial criterion is a constitutional irrelevance, and
is not saved from condemnation even though dictated by a
sincere desire to avoid the possibility of violence or race fric-
tion.” Brief for Appellants in Brown v. Board of Education,
36 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
THOMAS, J., concurring
O. T. 1952, No. 1, p. 7 (citation omitted).6 Embracing that
view, the Court held that “in the field of public education
the doctrine of ‘separate but equal’ has no place” and
“[s]eparate educational facilities are inherently unequal.”
Brown, 347 U. S., at 493, 495. Importantly, in reaching this
conclusion, Brown did not rely on the particular qualities of
the Kansas schools. The mere separation of students on the
basis of race—the “segregation complained of,” id., at 495
(emphasis added)—constituted a constitutional injury. See
ante, at 12 (“Separate cannot be equal”).
Just a few years later, the Court’s application of Brown
made explicit what was already forcefully implied: “[O]ur
decisions have foreclosed any possible contention that . . . a
statute or regulation” fostering segregation in public facili-
ties “may stand consistently with the Fourteenth Amend-
ment.” Turner v. Memphis, 369 U. S. 350, 353 (1962) (per
curiam); cf. A. Blaustein & C. Ferguson, Desegregation and
the Law: The Meaning and Effect of the School Segregation
Cases 145 (rev. 2d ed. 1962) (arguing that the Court in
Brown had “adopt[ed] a constitutional standard” declaring
“that all classification by race is unconstitutional per se”).
Today, our precedents place this principle beyond ques-
tion. In assessing racial segregation during a race-
motivated prison riot, for example, this Court applied strict
scrutiny without requiring an allegation of unequal treat-
ment among the segregated facilities. Johnson v. Califor-
nia, 543 U. S. 499, 505–506 (2005). The Court today reaf-
firms the rule, stating that, following Brown, “[t]he time for
——————
6 Briefing in a case consolidated with Brown stated the colorblind posi-
tion forthrightly: Classifications “[b]ased [s]olely on [r]ace or [c]olor” “can
never be” constitutional. Juris. Statement in Briggs v. Elliott, O. T. 1951,
No. 273, pp. 20–21, 25, 29; see also Juris. Statement in Davis v. County
School Bd. of Prince Edward Cty., O. T. 1952, No. 191, p. 8 (“Indeed, we
take the unqualified position that the Fourteenth Amendment has to-
tally stripped the state of power to make race and color the basis for gov-
ernmental action. . . . For this reason alone, we submit, the state sepa-
rate school laws in this case must fall”).
Cite as: 600 U. S. ____ (2023) 37
THOMAS, J., concurring
making distinctions based on race had passed.” Ante, at 13.
“What was wrong” when the Court decided Brown “in 1954
cannot be right today.” Parents Involved, 551 U. S., at 778(THOMAS, J., concurring). Rather, we must adhere to the
promise of equality under the law declared by the Declara-
tion of Independence and codified by the Fourteenth
Amendment.
B
Respondents and the dissents argue that the universities’
race-conscious admissions programs ought to be permitted
because they accomplish positive social goals. I would have
thought that history had by now taught a “greater humil-
ity” when attempting to “distinguish good from harmful
uses of racial criteria.” Id., at 742 (plurality opinion). From
the Black Codes, to discriminatory and destructive social
welfare programs, to discrimination by individual govern-
ment actors, bigotry has reared its ugly head time and
again. Anyone who today thinks that some form of racial
discrimination will prove “helpful” should thus tread cau-
tiously, lest racial discriminators succeed (as they once did)
in using such language to disguise more invidious motives.
Arguments for the benefits of race-based solutions have
proved pernicious in segregationist circles. Segregated uni-
versities once argued that race-based discrimination was
needed “to preserve harmony and peace and at the same
time furnish equal education to both groups.” Brief for Re-
spondents in Sweatt v. Painter, O. T. 1949, No. 44, p. 94; see
also id., at 79 (“ ‘[T]he mores of racial relationships are such
as to rule out, for the present at least, any possibility of ad-
mitting white persons and Negroes to the same institu-
tions’ ”). And, parties consistently attempted to convince
the Court that the time was not right to disrupt segrega-
tionist systems. See Brief for Appellees in McLaurin v. Ok-
lahoma State Regents for Higher Ed., O. T. 1949, No. 34,
p. 12 (claiming that a holding rejecting separate but equal
38 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
THOMAS, J., concurring
would “necessarily result . . . [i]n the abandoning of many
of the state’s existing educational establishments” and the
“crowding of other such establishments”); Brief for State of
Kansas on Reargument in Brown v. Board of Education,
O. T. 1953, No. 1, p. 56 (“We grant that segregation may not
be the ethical or political ideal. At the same time we recog-
nize that practical considerations may prevent realization
of the ideal”); Tr. of Oral Arg. in Davis v. School Bd. of
Prince Edward Cty., O. T. 1954, No. 3, p. 208 (“We are up
against the proposition: What does the Negro profit if he
procures an immediate detailed decree from this Court now
and then impairs or mars or destroys the public school sys-
tem in Prince Edward County”). Litigants have even gone
so far as to offer straight-faced arguments that segregation
has practical benefits. Brief for Respondents in Sweatt v.
Painter, at 77–78 (requesting deference to a state law, ob-
serving that “ ‘the necessity for such separation [of the
races] still exists in the interest of public welfare, safety,
harmony, health, and recreation . . .’ ” and remarking on the
reasonableness of the position); Brief for Appellees in Davis
v. County School Bd. of Prince Edward Cty., O. T. 1952, No.
3, p. 17 (“Virginia has established segregation in certain
fields as a part of her public policy to prevent violence and
reduce resentment. The result, in the view of an over-
whelming Virginia majority, has been to improve the rela-
tionship between the different races”); id., at 25 (“If segre-
gation be stricken down, the general welfare will be
definitely harmed . . . there would be more friction devel-
oped” (internal quotation marks omitted)). In fact, slave-
holders once “argued that slavery was a ‘positive good’ that
civilized blacks and elevated them in every dimension of
life,” and “segregationists similarly asserted that segrega-
tion was not only benign, but good for black students.”
Fisher I, 570 U. S., at 328–329 (THOMAS, J., concurring).
“Indeed, if our history has taught us anything, it has
Cite as: 600 U. S. ____ (2023) 39
THOMAS, J., concurring
taught us to beware of elites bearing racial theories.” Par-
ents Involved, 551 U. S., at 780–781 (THOMAS, J., concur-
ring). We cannot now blink reality to pretend, as the dis-
sents urge, that affirmative action should be legally
permissible merely because the experts assure us that it is
“good” for black students. Though I do not doubt the sin-
cerity of my dissenting colleagues’ beliefs, experts and elites
have been wrong before—and they may prove to be wrong
again. In part for this reason, the Fourteenth Amendment
outlaws government-sanctioned racial discrimination of all
types. The stakes are simply too high to gamble.7 Then, as
now, the views that motivated Dred Scott and Plessy have
not been confined to the past, and we must remain ever vig-
ilant against all forms of racial discrimination.
C
Even taking the desire to help on its face, what initially
seems like aid may in reality be a burden, including for the
very people it seeks to assist. Take, for example, the college
admissions policies here. “Affirmative action” policies do
nothing to increase the overall number of blacks and His-
panics able to access a college education. Rather, those ra-
cial policies simply redistribute individuals among institu-
tions of higher learning, placing some into more competitive
institutions than they otherwise would have attended. See
——————
7 Indeed, the lawyers who litigated Brown were unwilling to take this
bet, insisting on a colorblind legal rule. See, e.g., Supp. Brief for Appel-
lants on Reargument in Nos. 1, 2, and 4, and for Respondents in No. 10,
in Brown v. Board of Education, O. T. 1953, p. 65 (“That the Constitution
is color blind is our dedicated belief ”); Brief for Appellants in Brown v.
Board of Education, O. T. 1952, No. 1, p. 5 (“The Fourteenth Amendment
precludes a state from imposing distinctions or classifications based
upon race and color alone”). In fact, Justice Marshall viewed Justice
Harlan’s Plessy dissent as “a ‘Bible’ to which he turned during his most
depressed moments”; no opinion “buoyed Marshall more in his pre-
Brown days.” In Memoriam: Honorable Thurgood Marshall, Proceedings
of the Bar and Officers of the Supreme Court of the United States, p. X
(1993) (remarks of Judge Motley).
40 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
THOMAS, J., concurring
T. Sowell, Affirmative Action Around the World 145–146
(2004). In doing so, those policies sort at least some blacks
and Hispanics into environments where they are less likely
to succeed academically relative to their peers. Ibid. The
resulting mismatch places “many blacks and Hispanics who
likely would have excelled at less elite schools . . . in a posi-
tion where underperformance is all but inevitable because
they are less academically prepared than the white and
Asian students with whom they must compete.” Fisher I,
570 U. S., at 332 (THOMAS, J., concurring).
It is self-evident why that is so. As anyone who has
labored over an algebra textbook has undoubtedly discov-
ered, academic advancement results from hard work and
practice, not mere declaration. Simply treating students as
though their grades put them at the top of their high school
classes does nothing to enhance the performance level of
those students or otherwise prepare them for competitive
college environments. In fact, studies suggest that large
racial preferences for black and Hispanic applicants have
led to a disproportionately large share of those students re-
ceiving mediocre or poor grades once they arrive in compet-
itive collegiate environments. See, e.g., R. Sander, A Sys-
temic Analysis of Affirmative Action in American Law
Schools, 57 Stan. L. Rev. 367, 371–372 (2004); see also R.
Sander & R. Steinbuch, Mismatch and Bar Passage: A
School-Specific Analysis (Oct. 6, 2017), https://ssrn.com/
abstract=3054208. Take science, technology, engineering,
and mathematics (STEM) fields, for example. Those stu-
dents who receive a large admissions preference are more
likely to drop out of STEM fields than similarly situated
students who did not receive such a preference. F. Smith &
J. McArdle, Ethnic and Gender Differences in Science
Graduation at Selective Colleges With Implications for Ad-
mission Policy and College Choice, 45 Research in Higher
Ed. 353 (2004). “Even if most minority students are able to
meet the normal standards at the ‘average’ range of colleges
Cite as: 600 U. S. ____ (2023) 41
THOMAS, J., concurring
and universities, the systematic mismatching of minority
students begun at the top can mean that such students are
generally overmatched throughout all levels of higher edu-
cation.” T. Sowell, Race and Culture 176–177 (1994).8
These policies may harm even those who succeed academ-
ically. I have long believed that large racial preferences in
college admissions “stamp [blacks and Hispanics] with a
badge of inferiority.” Adarand, 515 U. S., at 241 (opinion of
THOMAS, J.). They thus “tain[t] the accomplishments of all
those who are admitted as a result of racial discrimination”
as well as “all those who are the same race as those admit-
ted as a result of racial discrimination” because “no one can
distinguish those students from the ones whose race played
a role in their admission.” Fisher I, 570 U. S., at 333 (opin-
ion of THOMAS, J.). Consequently, “[w]hen blacks” and,
now, Hispanics “take positions in the highest places of gov-
ernment, industry, or academia, it is an open question . . .
whether their skin color played a part in their advance-
ment.” Grutter, 539 U. S., at 373 (THOMAS, J., concurring).
“The question itself is the stigma—because either racial dis-
crimination did play a role, in which case the person may
be deemed ‘otherwise unqualified,’ or it did not, in which
case asking the question itself unfairly marks those . . . who
would succeed without discrimination.” Ibid.——————
8 JUSTICE SOTOMAYOR rejects this mismatch theory as “debunked long
ago,” citing an amicus brief. Post, at 56. But, in 2016, the Journal of
Economic Literature published a review of mismatch literature—coau-
thored by a critic and a defender of affirmative action—which concluded
that the evidence for mismatch was “fairly convincing.” P. Arcidiacono
& M. Lovenheim, Affirmative Action and the Quality-Fit Tradeoff, 54 J.
Econ. Lit. 3, 20 (Arcidiacono & Lovenheim). And, of course, if universi-
ties wish to refute the mismatch theory, they need only release the data
necessary to test its accuracy. See Brief for Richard Sander as Amicus
Curiae 16–19 (noting that universities have been unwilling to provide
the necessary data concerning student admissions and outcomes); ac-
cord, Arcidiacono & Lovenheim 20 (“Our hope is that better datasets soon
will become available”).
42 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
THOMAS, J., concurring
Yet, in the face of those problems, it seems increasingly
clear that universities are focused on “aesthetic” solutions
unlikely to help deserving members of minority groups. In
fact, universities’ affirmative action programs are a partic-
ularly poor use of such resources. To start, these programs
are overinclusive, providing the same admissions bump to
a wealthy black applicant given every advantage in life as
to a black applicant from a poor family with seemingly in-
surmountable barriers to overcome. In doing so, the pro-
grams may wind up helping the most well-off members of
minority races without meaningfully assisting those who
struggle with real hardship. Simultaneously, the programs
risk continuing to ignore the academic underperformance
of “the purported ‘beneficiaries’ ” of racial preferences and
the racial stigma that those preferences generate. Grutter,
539 U. S., at 371 (opinion of THOMAS, J.). Rather than per-
forming their academic mission, universities thus may
“see[k] only a facade—it is sufficient that the class looks
right, even if it does not perform right.” Id., at 372.
D
Finally, it is not even theoretically possible to “help” a
certain racial group without causing harm to members of
other racial groups. “It should be obvious that every racial
classification helps, in a narrow sense, some races and
hurts others.” Adarand, 515 U. S., at 241, n. * (opinion of
THOMAS, J.). And, even purportedly benign race-based dis-
crimination has secondary effects on members of other
races. The antisubordination view thus has never guided
the Court’s analysis because “whether a law relying upon
racial taxonomy is ‘benign’ or ‘malign’ either turns on
‘whose ox is gored’ or on distinctions found only in the eye
of the beholder.” Ibid. (citations and some internal quota-
tion marks omitted). Courts are not suited to the impossi-
ble task of determining which racially discriminatory pro-
grams are helping which members of which races—and
Cite as: 600 U. S. ____ (2023) 43
THOMAS, J., concurring
whether those benefits outweigh the burdens thrust onto
other racial groups.
As the Court’s opinion today explains, the zero-sum na-
ture of college admissions—where students compete for a
finite number of seats in each school’s entering class—aptly
demonstrates the point. Ante, at 27.9 Petitioner here rep-
resents Asian Americans who allege that, at the margins,
Asian applicants were denied admission because of their
race. Yet, Asian Americans can hardly be described as the
beneficiaries of historical racial advantages. To the con-
trary, our Nation’s first immigration ban targeted the Chi-
nese, in part, based on “worker resentment of the low wage
rates accepted by Chinese workers.” U. S. Commission on
Civil Rights, Civil Rights Issues Facing Asian Americans in
the 1990s, p. 3 (1992) (Civil Rights Issues); Act of May 6,
1882, ch. 126, 22 Stat. 58–59.
In subsequent years, “strong anti-Asian sentiments in
the Western States led to the adoption of many discrimina-
tory laws at the State and local levels, similar to those
aimed at blacks in the South,” and “segregation in public
facilities, including schools, was quite common until after
the Second World War.” Civil Rights Issues 7; see also S.
Hinnershitz, A Different Shade of Justice: Asian American
——————
9 JUSTICE SOTOMAYOR apparently believes that race-conscious admis-
sion programs can somehow increase the chances that members of cer-
tain races (blacks and Hispanics) are admitted without decreasing the
chances of admission for members of other races (Asians). See post, at
58–59. This simply defies mathematics. In a zero-sum game like college
admissions, any sorting mechanism that takes race into account in any
way, see post, at 27 (opinion of JACKSON, J.) (defending such a system),
has discriminated based on race to the benefit of some races and the det-
riment of others. And, the universities here admit that race is determi-
native in at least some of their admissions decisions. See, e.g., Tr. of Oral
Arg. in No. 20–1199, at 67; 567 F. Supp. 3d 580, 633 (MDNC 2021); see
also 397 F. Supp. 3d 126, 178 (Mass. 2019) (noting that, for Harvard,
“race is a determinative tip for” a significant percentage “of all admitted
African American and Hispanic applicants”); ante, at 5, n. 1 (describing
the role that race plays in the universities’ admissions processes).
44 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
THOMAS, J., concurring
Civil Rights in the South 21 (2017) (explaining that while
both Asians and blacks have at times fought “against simi-
lar forms of discrimination,” “[t]he issues of citizenship and
immigrant status often defined Asian American battles for
civil rights and separated them from African American le-
gal battles”). Indeed, this Court even sanctioned this seg-
regation—in the context of schools, no less. In Gong Lum
v. Rice, 275 U. S. 78, 81–82, 85–87 (1927), the Court held
that a 9-year-old Chinese-American girl could be denied en-
try to a “white” school because she was “a member of the
Mongolian or yellow race.”
Also, following the Japanese attack on the U. S. Navy
base at Pearl Harbor, Japanese Americans in the American
West were evacuated and interned in relocation camps. See
Exec. Order No. 9066, 3 CFR 1092 (1943). Over 120,000
were removed to camps beginning in 1942, and the last
camp that held Japanese Americans did not close until
1948. National Park Service, Japanese American Life Dur-
ing Internment, www.nps.gov/articles/japanese-american-
internment-archeology.htm. In the interim, this Court en-
dorsed the practice. Korematsu v. United States, 323 U. S.
214 (1944).
Given the history of discrimination against Asian Ameri-
cans, especially their history with segregated schools, it
seems particularly incongruous to suggest that a past his-
tory of segregationist policies toward blacks should be rem-
edied at the expense of Asian American college applicants.10
But this problem is not limited to Asian Americans; more
——————
10 Even beyond Asian Americans, it is abundantly clear that the uni-
versity respondents’ racial categories are vastly oversimplistic, as the
opinion of the Court and JUSTICE GORSUCH’s concurrence make clear. See
ante, at 24–25; post, at 5–7 (opinion of GORSUCH, J.). Their “affirmative
action” programs do not help Jewish, Irish, Polish, or other “white”
ethnic groups whose ancestors faced discrimination upon arrival in
America, any more than they help the descendants of those Japanese-
American citizens interned during World War II.
Cite as: 600 U. S. ____ (2023) 45
THOMAS, J., concurring
broadly, universities’ discriminatory policies burden mil-
lions of applicants who are not responsible for the racial dis-
crimination that sullied our Nation’s past. That is why,
“[i]n the absence of special circumstances, the remedy for
de jure segregation ordinarily should not include educa-
tional programs for students who were not in school (or
even alive) during the period of segregation.” Jenkins, 515
U. S., at 137 (THOMAS, J., concurring). Today’s 17-year-
olds, after all, did not live through the Jim Crow era, enact
or enforce segregation laws, or take any action to oppress or
enslave the victims of the past. Whatever their skin color,
today’s youth simply are not responsible for instituting the
segregation of the 20th century, and they do not shoulder
the moral debts of their ancestors. Our Nation should not
punish today’s youth for the sins of the past.
IV
Far from advancing the cause of improved race relations
in our Nation, affirmative action highlights our racial dif-
ferences with pernicious effect. In fact, recent history re-
veals a disturbing pattern: Affirmative action policies ap-
pear to have prolonged the asserted need for racial
discrimination. Parties and amici in these cases report
that, in the nearly 50 years since Bakke, 438 U. S. 265, ra-
cial progress on campuses adopting affirmative action ad-
missions policies has stagnated, including making no mean-
ingful progress toward a colorblind goal since Grutter. See
ante, at 21–22. Rather, the legacy of Grutter appears to be
ever increasing and strident demands for yet more racially
oriented solutions.
A
It has become clear that sorting by race does not stop at
the admissions office. In his Grutter opinion, Justice Scalia
criticized universities for “talk[ing] of multiculturalism and
46 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
THOMAS, J., concurring
racial diversity,” but supporting “tribalism and racial seg-
regation on their campuses,” including through “minority
only student organizations, separate minority housing op-
portunities, separate minority student centers, even sepa-
rate minority-only graduation ceremonies.” 539 U. S., at
349 (opinion concurring in part and dissenting in part).
This trend has hardly abated with time, and today, such
programs are commonplace. See Brief for Gail Heriot et al.
as Amici Curiae 9. In fact, a recent study considering 173
schools found that 43% of colleges offered segregated hous-
ing to students of different races, 46% offered segregated
orientation programs, and 72% sponsored segregated grad-
uation ceremonies. D. Pierre & P. Wood, Neo-Segregation
at Yale 16–17 (2019); see also D. Pierre, Demands for Seg-
regated Housing at Williams College Are Not News, Nat.
Rev., May 8, 2019. In addition to contradicting the univer-
sities’ claims regarding the need for interracial interaction,
see Brief for National Association of Scholars as Amicus Cu-
riae 4–12, these trends increasingly encourage our Nation’s
youth to view racial differences as important and segrega-
tion as routine.
Meanwhile, these discriminatory policies risk creating
new prejudices and allowing old ones to fester. I previously
observed that “[t]here can be no doubt” that discriminatory
affirmative action policies “injur[e] white and Asian appli-
cants who are denied admission because of their race.”
Fisher I, 570 U. S., at 331 (concurring opinion). Petitioner
here clearly demonstrates this fact. Moreover, “no social
science has disproved the notion that this discrimination
‘engenders attitudes of superiority or, alternatively, pro-
vokes resentment among those who believe that they have
been wronged by the government’s use of race.’ ” Grutter,
539 U. S., at 373 (opinion of THOMAS, J.) (quoting Adarand,
515 U. S., at 241 (opinion of THOMAS, J.) (alterations omit-
ted)). Applicants denied admission to certain colleges may
Cite as: 600 U. S. ____ (2023) 47
THOMAS, J., concurring
come to believe—accurately or not—that their race was re-
sponsible for their failure to attain a life-long dream. These
individuals, and others who wished for their success, may
resent members of what they perceive to be favored races,
believing that the successes of those individuals are un-
earned.
What, then, would be the endpoint of these affirmative
action policies? Not racial harmony, integration, or equal-
ity under the law. Rather, these policies appear to be lead-
ing to a world in which everyone is defined by their skin
color, demanding ever-increasing entitlements and prefer-
ences on that basis. Not only is that exactly the kind of fac-
tionalism that the Constitution was meant to safeguard
against, see The Federalist No. 10 (J. Madison), but it is a
factionalism based on ever-shifting sands.
That is because race is a social construct; we may each
identify as members of particular races for any number of
reasons, having to do with our skin color, our heritage, or
our cultural identity. And, over time, these ephemeral, so-
cially constructed categories have often shifted. For exam-
ple, whereas universities today would group all white ap-
plicants together, white elites previously sought to exclude
Jews and other white immigrant groups from higher edu-
cation. In fact, it is impossible to look at an individual and
know definitively his or her race; some who would consider
themselves black, for example, may be quite fair skinned.
Yet, university admissions policies ask individuals to iden-
tify themselves as belonging to one of only a few reduction-
ist racial groups. With boxes for only “black,” “white,” “His-
panic,” “Asian,” or the ambiguous “other,” how is a Middle
Eastern person to choose? Someone from the Philippines?
See post, at 5–7 (GORSUCH, J., concurring). Whichever
choice he makes (in the event he chooses to report a race at
all), the form silos him into an artificial category. Worse, it
sends a clear signal that the category matters.
But, under our Constitution, race is irrelevant, as the
48 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
THOMAS, J., concurring
Court acknowledges. In fact, all racial categories are little
more than stereotypes, suggesting that immutable charac-
teristics somehow conclusively determine a person’s ideol-
ogy, beliefs, and abilities. Of course, that is false. See ante,
at 28–30 (noting that the Court’s Equal Protection Clause
jurisprudence forbids such stereotyping). Members of the
same race do not all share the exact same experiences and
viewpoints; far from it. A black person from rural Alabama
surely has different experiences than a black person from
Manhattan or a black first-generation immigrant from Ni-
geria, in the same way that a white person from rural Ver-
mont has a different perspective than a white person from
Houston, Texas. Yet, universities’ racial policies suggest
that racial identity “alone constitutes the being of the race
or the man.” J. Barzun, Race: A Study in Modern Supersti-
tion 114 (1937). That is the same naked racism upon which
segregation itself was built. Small wonder, then, that these
policies are leading to increasing racial polarization and
friction. This kind of reductionist logic leads directly to the
“disregard for what does not jibe with preconceived theory,”
providing a “cloa[k] to conceal complexity, argumen[t] to the
crown for praising or damning without the trouble of going
into details”—such as details about an individual’s ideas or
unique background. Ibid. Rather than forming a more plu-
ralistic society, these policies thus strip us of our individu-
ality and undermine the very diversity of thought that uni-
versities purport to seek.
The solution to our Nation’s racial problems thus cannot
come from policies grounded in affirmative action or some
other conception of equity. Racialism simply cannot be un-
done by different or more racialism. Instead, the solution
announced in the second founding is incorporated in our
Constitution: that we are all equal, and should be treated
equally before the law without regard to our race. Only that
promise can allow us to look past our differing skin colors
Cite as: 600 U. S. ____ (2023) 49
THOMAS, J., concurring
and identities and see each other for what we truly are: in-
dividuals with unique thoughts, perspectives, and goals,
but with equal dignity and equal rights under the law.
B
JUSTICE JACKSON has a different view. Rather than fo-
cusing on individuals as individuals, her dissent focuses on
the historical subjugation of black Americans, invoking sta-
tistical racial gaps to argue in favor of defining and catego-
rizing individuals by their race. As she sees things, we are
all inexorably trapped in a fundamentally racist society,
with the original sin of slavery and the historical subjuga-
tion of black Americans still determining our lives today.
Post, at 1–26 (dissenting opinion). The panacea, she coun-
sels, is to unquestioningly accede to the view of elite experts
and reallocate society’s riches by racial means as necessary
to “level the playing field,” all as judged by racial metrics.
Post, at 26. I strongly disagree.
First, as stated above, any statistical gaps between the
average wealth of black and white Americans is constitu-
tionally irrelevant. I, of course, agree that our society is
not, and has never been, colorblind. Post, at 2 (JACKSON,
J., dissenting); see also Plessy, 163 U. S., at 559 (Harlan, J.,
dissenting). People discriminate against one another for a
whole host of reasons. But, under the Fourteenth Amend-
ment, the law must disregard all racial distinctions:
“[I]n view of the constitution, in the eye of the law,
there is in this country no superior, dominant, ruling
class of citizens. There is no caste here. Our constitu-
tion is color-blind, and neither knows nor tolerates clas-
ses among citizens. In respect of civil rights, all citi-
zens are equal before the law. The humblest is the peer
of the most powerful. The law regards man as man,
and takes no account of his surroundings or of his color
when his civil rights as guaranteed by the supreme law
of the land are involved.” Ibid.50 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
THOMAS, J., concurring
With the passage of the Fourteenth Amendment, the peo-
ple of our Nation proclaimed that the law may not sort citi-
zens based on race. It is this principle that the Framers of
the Fourteenth Amendment adopted in the wake of the
Civil War to fulfill the promise of equality under the law.
And it is this principle that has guaranteed a Nation of
equal citizens the privileges or immunities of citizenship
and the equal protection of the laws. To now dismiss it as
“two-dimensional flatness,” post, at 25 (JACKSON, J., dis-
senting), is to abdicate a sacred trust to ensure that our
“honored dead . . . shall not have died in vain.” A. Lincoln,
Gettysburg Address (1863).
Yet, JUSTICE JACKSON would replace the second Found-
ers’ vision with an organizing principle based on race. In
fact, on her view, almost all of life’s outcomes may be un-
hesitatingly ascribed to race. Post, at 24–26. This is so, she
writes, because of statistical disparities among different ra-
cial groups. See post, at 11–14. Even if some whites have a
lower household net worth than some blacks, what matters
to JUSTICE JACKSON is that the average white household
has more wealth than the average black household. Post,
at 11.
This lore is not and has never been true. Even in the seg-
regated South where I grew up, individuals were not the
sum of their skin color. Then as now, not all disparities are
based on race; not all people are racist; and not all differ-
ences between individuals are ascribable to race. Put
simply, “the fate of abstract categories of wealth statistics
is not the same as the fate of a given set of flesh-and-blood
human beings.” T. Sowell, Wealth, Poverty and Politics 333
(2016). Worse still, JUSTICE JACKSON uses her broad obser-
vations about statistical relationships between race and se-
lect measures of health, wealth, and well-being to label all
blacks as victims. Her desire to do so is unfathomable to
me. I cannot deny the great accomplishments of black
Americans, including those who succeeded despite long
Cite as: 600 U. S. ____ (2023) 51
THOMAS, J., concurring
odds.
Nor do JUSTICE JACKSON’s statistics regarding a correla-
tion between levels of health, wealth, and well-being be-
tween selected racial groups prove anything. Of course,
none of those statistics are capable of drawing a direct
causal link between race—rather than socioeconomic status
or any other factor—and individual outcomes. So JUSTICE
JACKSON supplies the link herself: the legacy of slavery and
the nature of inherited wealth. This, she claims, locks
blacks into a seemingly perpetual inferior caste. Such a
view is irrational; it is an insult to individual achievement
and cancerous to young minds seeking to push through bar-
riers, rather than consign themselves to permanent victim-
hood. If an applicant has less financial means (because of
generational inheritance or otherwise), then surely a uni-
versity may take that into account. If an applicant has
medical struggles or a family member with medical con-
cerns, a university may consider that too. What it cannot
do is use the applicant’s skin color as a heuristic, assuming
that because the applicant checks the box for “black” he
therefore conforms to the university’s monolithic and reduc-
tionist view of an abstract, average black person.
Accordingly, JUSTICE JACKSON’s race-infused world view
falls flat at each step. Individuals are the sum of their
unique experiences, challenges, and accomplishments.
What matters is not the barriers they face, but how they
choose to confront them. And their race is not to blame for
everything—good or bad—that happens in their lives. A
contrary, myopic world view based on individuals’ skin color
to the total exclusion of their personal choices is nothing
short of racial determinism.
JUSTICE JACKSON then builds from her faulty premise to
call for action, arguing that courts should defer to “experts”
and allow institutions to discriminate on the basis of race.
Make no mistake: Her dissent is not a vanguard of the in-
52 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
THOMAS, J., concurring
nocent and helpless. It is instead a call to empower privi-
leged elites, who will “tell us [what] is required to level the
playing field” among castes and classifications that they
alone can divine. Post, at 26; see also post, at 5–7
(GORSUCH, J., concurring) (explaining the arbitrariness of
these classifications). Then, after siloing us all into racial
castes and pitting those castes against each other, the dis-
sent somehow believes that we will be able—at some unde-
fined point—to “march forward together” into some utopian
vision. Post, at 26 (opinion of JACKSON, J.). Social move-
ments that invoke these sorts of rallying cries, historically,
have ended disastrously.
Unsurprisingly, this tried-and-failed system defies both
law and reason. Start with the obvious: If social reorgani-
zation in the name of equality may be justified by the mere
fact of statistical disparities among racial groups, then that
reorganization must continue until these disparities are
fully eliminated, regardless of the reasons for the dispari-
ties and the cost of their elimination. If blacks fail a test at
higher rates than their white counterparts (regardless of
whether the reason for the disparity has anything at all to
do with race), the only solution will be race-focused
measures. If those measures were to result in blacks failing
at yet higher rates, the only solution would be to double
down. In fact, there would seem to be no logical limit to
what the government may do to level the racial playing
field—outright wealth transfers, quota systems, and racial
preferences would all seem permissible. In such a system,
it would not matter how many innocents suffer race-based
injuries; all that would matter is reaching the race-based
goal.
Worse, the classifications that JUSTICE JACKSON draws
are themselves race-based stereotypes. She focuses on two
hypothetical applicants, John and James, competing for ad-
mission to UNC. John is a white, seventh-generation leg-
acy at the school, while James is black and would be the
Cite as: 600 U. S. ____ (2023) 53
THOMAS, J., concurring
first in his family to attend UNC. Post, at 3. JUSTICE
JACKSON argues that race-conscious admission programs
are necessary to adequately compare the two applicants. As
an initial matter, it is not clear why James’s race is the only
factor that could encourage UNC to admit him; his status
as a first-generation college applicant seems to contextual-
ize his application. But, setting that aside, why is it that
John should be judged based on the actions of his great-
great-great-grandparents? And what would JUSTICE
JACKSON say to John when deeming him not as worthy of
admission: Some statistically significant number of white
people had advantages in college admissions seven genera-
tions ago, and you have inherited their incurable sin?
Nor should we accept that John or James represent all
members of their respective races. All racial groups are het-
erogeneous, and blacks are no exception—encompassing
northerners and southerners, rich and poor, and recent im-
migrants and descendants of slaves. See, e.g., T. Sowell,
Ethnic America 220 (1981) (noting that the great success of
West Indian immigrants to the United States—dispropor-
tionate among blacks more broadly—“seriously undermines
the proposition that color is a fatal handicap in the Ameri-
can economy”). Eschewing the complexity that comes with
individuality may make for an uncomplicated narrative,
but lumping people together and judging them based on as-
sumed inherited or ancestral traits is nothing but stereo-
typing.11
To further illustrate, let’s expand the applicant pool be-
yond John and James. Consider Jack, a black applicant and
the son of a multimillionaire industrialist. In a world of
race-based preferences, James’ seat could very well go to
——————
11 Again, universities may offer admissions preferences to students
from disadvantaged backgrounds, and they need not withhold those pref-
erences from students who happen to be members of racial minorities.
Universities may not, however, assume that all members of certain racial
minorities are disadvantaged.
54 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
THOMAS, J., concurring
Jack rather than John—both are black, after all. And what
about members of the numerous other racial and ethnic
groups in our Nation? What about Anne, the child of Chi-
nese immigrants? Jacob, the grandchild of Holocaust sur-
vivors who escaped to this Nation with nothing and faced
discrimination upon arrival? Or Thomas, the great-
grandchild of Irish immigrants escaping famine? While ar-
ticulating her black and white world (literally), JUSTICE
JACKSON ignores the experiences of other immigrant
groups (like Asians, see supra, at 43–44) and white commu-
nities that have faced historic barriers.
Though JUSTICE JACKSON seems to think that her race-
based theory can somehow benefit everyone, it is an immu-
table fact that “every time the government uses racial
criteria to ‘bring the races together,’ someone gets excluded,
and the person excluded suffers an injury solely because of
his or her race.” Parents Involved, 551 U. S., at 759(THOMAS, J., concurring) (citation omitted). Indeed,
JUSTICE JACKSON seems to have no response—no explana-
tion at all—for the people who will shoulder that burden.
How, for example, would JUSTICE JACKSON explain the
need for race-based preferences to the Chinese student who
has worked hard his whole life, only to be denied college
admission in part because of his skin color? If such a bur-
den would seem difficult to impose on a bright-eyed young
person, that’s because it should be. History has taught us
to abhor theories that call for elites to pick racial winners
and losers in the name of sociological experimentation.
Nor is it clear what another few generations of race-
conscious college admissions may be expected to accom-
plish. Even today, affirmative action programs that offer
an admissions boost to black and Hispanic students dis-
criminate against those who identify themselves as mem-
bers of other races that do not receive such preferential
treatment. Must others in the future make sacrifices to re-
Cite as: 600 U. S. ____ (2023) 55
THOMAS, J., concurring
level the playing field for this new phase of racial subordi-
nation? And then, out of whose lives should the debt owed
to those further victims be repaid? This vision of meeting
social racism with government-imposed racism is thus self-
defeating, resulting in a never-ending cycle of victimization.
There is no reason to continue down that path. In the wake
of the Civil War, the Framers of the Fourteenth Amend-
ment charted a way out: a colorblind Constitution that re-
quires the government to, at long last, put aside its citizens’
skin color and focus on their individual achievements.
C
Universities’ recent experiences confirm the efficacy of a
colorblind rule. To start, universities prohibited from en-
gaging in racial discrimination by state law continue to en-
roll racially diverse classes by race-neutral means. For ex-
ample, the University of California purportedly recently
admitted its “most diverse undergraduate class ever,” de-
spite California’s ban on racial preferences. T. Watanabe,
UC Admits Largest, Most Diverse Class Ever, But It Was
Harder To Get Accepted, L. A. Times, July 20, 2021, p. A1.
Similarly, the University of Michigan’s 2021 incoming class
was “among the university’s most racially and ethnically di-
verse classes, with 37% of first-year students identifying as
persons of color.” S. Dodge, Largest Ever Student Body at
University of Michigan This Fall, Officials Say, MLive.com
(Oct. 22, 2021), https://www.mlive.com/news/ann-arbor/
2021/10/largest-ever-student-body-at-university-of-michigan-
this-fall-officials-say.html. In fact, at least one set of stud-
ies suggests that, “when we consider the higher education
system as a whole, it is clear that the vast majority of
schools would be as racially integrated, or more racially in-
tegrated, under a system of no preferences than under a
system of large preferences.” Brief for Richard Sander as
Amicus Curiae 26. Race-neutral policies may thus achieve
the same benefits of racial harmony and equality without
56 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
THOMAS, J., concurring
any of the burdens and strife generated by affirmative ac-
tion policies.
In fact, meritocratic systems have long refuted bigoted
misperceptions of what black students can accomplish. I
have always viewed “higher education’s purpose as impart-
ing knowledge and skills to students, rather than a commu-
nal, rubber-stamp, credentialing process.” Grutter, 539
U. S., at 371–372 (opinion concurring in part and dissenting
in part). And, I continue to strongly believe (and have never
doubted) that “blacks can achieve in every avenue of Amer-
ican life without the meddling of university administra-
tors.” Id., at 350. Meritocratic systems, with objective
grading scales, are critical to that belief. Such scales have
always been a great equalizer—offering a metric for
achievement that bigotry could not alter. Racial prefer-
ences take away this benefit, eliminating the very metric by
which those who have the most to prove can clearly demon-
strate their accomplishments—both to themselves and to
others.
Schools’ successes, like students’ grades, also provide ob-
jective proof of ability. Historically Black Colleges and Uni-
versities (HBCUs) do not have a large amount of racial di-
versity, but they demonstrate a marked ability to improve
the lives of their students. To this day, they have proved
“to be extremely effective in educating Black students, par-
ticularly in STEM,” where “HBCUs represent seven of the
top eight institutions that graduate the highest number of
Black undergraduate students who go on to earn [science
and engineering] doctorates.” W. Wondwossen, The Science
Behind HBCU Success, Nat. Science Foundation (Sept. 24,
2020), https://beta.nsf.gov/science-matters/science-behind-
hbcu-success. “HBCUs have produced 40% of all Black en-
gineers.” Presidential Proclamation No. 10451, 87 Fed.
Reg. 57567 (2022). And, they “account for 80% of Black
judges, 50% of Black doctors, and 50% of Black lawyers.”
Cite as: 600 U. S. ____ (2023) 57
THOMAS, J., concurring
M. Hammond, L. Owens, & B. Gulko, Social Mobility Out-
comes for HBCU Alumni, United Negro College Fund 4
(2021) (Hammond), https://cdn.uncf.org/wp-content/uploads/
Social-Mobility-Report-FINAL.pdf; see also 87 Fed. Reg.
57567 (placing the percentage of black doctors even higher,
at 70%). In fact, Xavier University, an HBCU with only a
small percentage of white students, has had better success
at helping its low-income students move into the middle
class than Harvard has. See Hammond 14; see also Brief
for Oklahoma et al. as Amici Curiae 18. And, each of the
top 10 HBCUs have a success rate above the national aver-
age. Hammond 14.12
Why, then, would this Court need to allow other univer-
sities to racially discriminate? Not for the betterment of
those black students, it would seem. The hard work of
HBCUs and their students demonstrate that “black schools
can function as the center and symbol of black communities,
and provide examples of independent black leadership, suc-
cess, and achievement.” Jenkins, 515 U. S., at 122
——————
12 Such black achievement in “racially isolated” environments is nei-
ther new nor isolated to higher education. See T. Sowell, Education: As-
sumptions Versus History 7–38 (1986). As I have previously observed,
in the years preceding Brown, the “most prominent example of an exem-
plary black school was Dunbar High School,” America’s first public high
school for black students. Parents Involved in Community Schools v. Se-
attle School Dist. No. 1, 551 U. S. 701, 763 (2007) (concurring opinion).
Known for its academics, the school attracted black students from across
the Washington, D. C., area. “[I]n the period 1918–1923, Dunbar gradu-
ates earned fifteen degrees from Ivy League colleges, and ten degrees
from Amherst, Williams, and Wesleyan.” Sowell, Education: Assump-
tions Versus History, at 29. Dunbar produced the first black General in
the U. S. Army, the first black Federal Court Judge, and the first black
Presidential Cabinet member. A. Stewart, First Class: The Legacy of
Dunbar 2 (2013). Indeed, efforts towards racial integration ultimately
precipitated the school’s decline. When the D. C. schools moved to a
neighborhood-based admissions model, Dunbar was no longer able to
maintain its prior admissions policies—and “[m]ore than 80 years of
quality education came to an abrupt end.” T. Sowell, Wealth, Poverty
and Politics 194 (2016).
58 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
THOMAS, J., concurring
(THOMAS, J., concurring) (citing Fordice, 505 U. S., at 748(THOMAS, J., concurring)). And, because race-conscious col-
lege admissions are plainly not necessary to serve even the
interests of blacks, there is no justification to compel such
programs more broadly. See Parents Involved, 551 U. S., at
765 (THOMAS, J., concurring).
* * *
The great failure of this country was slavery and its prog-
eny. And, the tragic failure of this Court was its misinter-
pretation of the Reconstruction Amendments, as Justice
Harlan predicted in Plessy. We should not repeat this mis-
take merely because we think, as our predecessors thought,
that the present arrangements are superior to the Consti-
tution.
The Court’s opinion rightly makes clear that Grutter is,
for all intents and purposes, overruled. And, it sees the uni-
versities’ admissions policies for what they are: rudderless,
race-based preferences designed to ensure a particular ra-
cial mix in their entering classes. Those policies fly in the
face of our colorblind Constitution and our Nation’s equality
ideal. In short, they are plainly—and boldly—unconstitu-
tional. See Brown II, 349 U. S., at 298 (noting that the
Brown case one year earlier had “declare[d] the fundamen-
tal principle that racial discrimination in public education
is unconstitutional”).
While I am painfully aware of the social and economic
ravages which have befallen my race and all who suffer dis-
crimination, I hold out enduring hope that this country will
live up to its principles so clearly enunciated in the Decla-
ration of Independence and the Constitution of the United
States: that all men are created equal, are equal citizens,
and must be treated equally before the law.
Cite as: 600 U. S. ____ (2023) 1
GORSUCH, J., concurring
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 GORSUCH, with whom JUSTICE THOMAS joins,
concurring.
For many students, an acceptance letter from Harvard or
the University of North Carolina is a ticket to a brighter
future. Tens of thousands of applicants compete for a small
number of coveted spots. For some time, both universities
have decided which applicants to admit or reject based in
part on race. Today, the Court holds that the Equal Protec-
tion Clause of the Fourteenth Amendment does not tolerate
this practice. I write to emphasize that Title VI of the Civil
Rights Act of 1964 does not either.
I
“[F]ew pieces of federal legislation rank in significance
2 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
GORSUCH, J., concurring
with the Civil Rights Act of 1964.” Bostock v. Clayton
County, 590 U. S. ___, ___ (2020) (slip op., at 2). Title VI of
that law contains terms as powerful as they are easy to un-
derstand: “No person in the United States shall, on the
ground of race, color, or national origin, be excluded from
participation in, be denied the benefits of, or be subjected to
discrimination under any program or activity receiving
Federal financial assistance.” 42 U. S. C. §2000d. The mes-
sage for these cases is unmistakable. Students for Fair Ad-
missions (SFFA) brought claims against Harvard and UNC
under Title VI. That law applies to both institutions, as
they elect to receive millions of dollars of federal assistance
annually. And the trial records reveal that both schools
routinely discriminate on the basis of race when choosing
new students—exactly what the law forbids.
A
When a party seeks relief under a statute, our task is to
apply the law’s terms as a reasonable reader would have
understood them at the time Congress enacted them. “Af-
ter all, only the words on the page constitute the law
adopted by Congress and approved by the President.” Bos-
tock, 590 U. S., at ___ (slip op., at 4).
The key phrases in Title VI at issue here are “subjected
to discrimination” and “on the ground of.” Begin with the
first. To “discriminate” against a person meant in 1964
what it means today: to “trea[t] that individual worse than
others who are similarly situated.” Id., at ___ (slip op., at
7); see also Webster’s New International Dictionary 745 (2d
ed. 1954) (“[t]o make a distinction” or “[t]o make a difference
in treatment or favor (of one as compared with others)”);
Webster’s Third New International Dictionary 648 (1961)
(“to make a difference in treatment or favor on a class or
categorical basis”). The provision of Title VI before us, this
Court has also held, “prohibits only intentional discrimina-
tion.” Alexander v. Sandoval, 532 U. S. 275, 280 (2001).
Cite as: 600 U. S. ____ (2023) 3
GORSUCH, J., concurring
From this, we can safely say that Title VI forbids a recipient
of federal funds from intentionally treating one person
worse than another similarly situated person on the ground
of race, color, or national origin.
What does the statute’s second critical phrase—“on the
ground of ”—mean? Again, the answer is uncomplicated: It
means “because of.” See, e.g., Webster’s New World Dic-
tionary 640 (1960) (“because of ”); Webster’s Third New In-
ternational Dictionary, at 1002 (defining “grounds” as “a
logical condition, physical cause, or metaphysical basis”).
“Because of ” is a familiar phrase in the law, one we often
apply in cases arising under the Civil Rights Act of 1964,
and one that we usually understand to invoke “the ‘simple’
and ‘traditional’ standard of but-for causation.” Bostock,
590 U. S., at ___ (slip op., at 5) (quoting University of Tex.
Southwestern Medical Center v. Nassar, 570 U. S. 338, 346,
360 (2013); some internal quotation marks omitted). The
but-for-causation standard is a “sweeping” one too. Bos-
tock, 590 U. S., at ___ (slip op., at 5). A defendant’s actions
need not be the primary or proximate cause of the plaintiff ’s
injury to qualify. Nor may a defendant avoid liability “just
by citing some other factor that contributed to” the plain-
tiff ’s loss. Id., at ___ (slip op., at 6). All that matters is that
the plaintiff ’s injury would not have happened but for the
defendant’s conduct. Ibid.
Now put these pieces back together and a clear rule
emerges. Title VI prohibits a recipient of federal funds from
intentionally treating one person worse than another simi-
larly situated person because of his race, color, or national
origin. It does not matter if the recipient can point to “some
other . . . factor” that contributed to its decision to disfavor
that individual. Id., at ___–___ (slip op., at 14–15). It does
not matter if the recipient discriminates in order to advance
some further benign “intention” or “motivation.” Id., at ___
(slip op., at 13); see also Automobile Workers v. Johnson
Controls, Inc., 499 U. S. 187, 199 (1991) (“the absence of a
4 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
GORSUCH, J., concurring
malevolent motive does not convert a facially discrimina-
tory policy into a neutral policy with a discriminatory ef-
fect” or “alter [its] intentionally discriminatory character”).
Nor does it matter if the recipient discriminates against an
individual member of a protected class with the idea that
doing so might “favor” the interests of that “class” as a
whole or otherwise “promot[e] equality at the group level.”
Bostock, 590 U. S., at ___, ___ (slip op., at 13, 15). Title VI
prohibits a recipient of federal funds from intentionally
treating any individual worse even in part because of his
race, color, or national origin and without regard to any
other reason or motive the recipient might assert. Without
question, Congress in 1964 could have taken the law in var-
ious directions. But to safeguard the civil rights of all
Americans, Congress chose a simple and profound rule.
One holding that a recipient of federal funds may never dis-
criminate based on race, color, or national origin—period.
If this exposition of Title VI sounds familiar, it should.
Just next door, in Title VII, Congress made it “unlawful . . .
for an employer . . . to discriminate against any individ-
ual . . . because of such individual’s race, color, religion, sex,
or national origin.” §2000e–2(a)(1). Appreciating the
breadth of this provision, just three years ago this Court
read its essentially identical terms the same way. See Bos-
tock, 590 U. S., at ___–___ (slip op., at 4–9). This Court has
long recognized, too, that when Congress uses the same
terms in the same statute, we should presume they “have
the same meaning.” IBP, Inc. v. Alvarez, 546 U. S. 21, 34
(2005). And that presumption surely makes sense here, for
as Justice Stevens recognized years ago, “[b]oth Title VI
and Title VII” codify a categorical rule of “individual equal-
ity, without regard to race.” Regents of Univ. of Cal. v.
Bakke, 438 U. S. 265, 416, n. 19 (1978) (opinion concurring
in judgment in part and dissenting in part) (emphasis de-
leted).
Cite as: 600 U. S. ____ (2023) 5
GORSUCH, J., concurring
B
Applying Title VI to the cases now before us, the result is
plain. The parties debate certain details of Harvard’s and
UNC’s admissions practices. But no one disputes that both
universities operate “program[s] or activit[ies] receiving
Federal financial assistance.” §2000d. No one questions
that both institutions consult race when making their ad-
missions decisions. And no one can doubt that both schools
intentionally treat some applicants worse than others at
least in part because of their race.
1
Start with how Harvard and UNC use race. Like many
colleges and universities, those schools invite interested
students to complete the Common Application. As part of
that process, the trial records show, applicants are
prompted to tick one or more boxes to explain “how you
identify yourself.” 4 App. in No. 21–707, p. 1732. The avail-
able choices are American Indian or Alaska Native; Asian;
Black or African American; Native Hawaiian or Other Pa-
cific Islander; Hispanic or Latino; or White. Applicants can
write in further details if they choose. Ibid.; see also 397
F. Supp. 3d 126, 137 (Mass. 2019); 567 F. Supp. 3d 580, 596
(MDNC 2021).
Where do these boxes come from? Bureaucrats. A federal
interagency commission devised this scheme of classifica-
tions in the 1970s to facilitate data collection. See D. Bern-
stein, The Modern American Law of Race, 94 S. Cal. L. Rev.
171, 196–202 (2021); see also 43 Fed. Reg. 19269 (1978).
That commission acted “without any input from anthropol-
ogists, sociologists, ethnologists, or other experts.” Brief for
David E. Bernstein as Amicus Curiae 3 (Bernstein Amicus
Brief ). Recognizing the limitations of their work, federal
regulators cautioned that their classifications “should not
be interpreted as being scientific or anthropological in na-
ture, nor should they be viewed as determinants of eligibility
6 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
GORSUCH, J., concurring
for participation in any Federal program.” 43 Fed. Reg.
19269 (emphasis added). Despite that warning, others
eventually used this classification system for that very pur-
pose—to “sor[t] out winners and losers in a process that, by
the end of the century, would grant preference[s] in jobs . . .
and university admissions.” H. Graham, The Origins of Of-
ficial Minority Designation, in The New Race Question:
How the Census Counts Multiracial Individuals 289
(J. Perlmann & M. Waters eds. 2002).
These classifications rest on incoherent stereotypes.
Take the “Asian” category. It sweeps into one pile East
Asians (e.g., Chinese, Korean, Japanese) and South Asians
(e.g., Indian, Pakistani, Bangladeshi), even though together
they constitute about 60% of the world’s population. Bern-
stein Amicus Brief 2, 5. This agglomeration of so many peo-
ples paves over countless differences in “language,” “cul-
ture,” and historical experience. Id., at 5–6. It does so even
though few would suggest that all such persons share “sim-
ilar backgrounds and similar ideas and experiences.”
Fisher v. University of Tex. at Austin, 579 U. S. 365, 414
(2016) (ALITO, J., dissenting). Consider, as well, the devel-
opment of a separate category for “Native Hawaiian or
Other Pacific Islander.” It seems federal officials disaggre-
gated these groups from the “Asian” category only in the
1990s and only “in response to political lobbying.” Bern-
stein Amicus Brief 9–10. And even that category contains
its curiosities. It appears, for example, that Filipino Amer-
icans remain classified as “Asian” rather than “Other Pa-
cific Islander.” See 4 App. in No. 21–707, at 1732.
The remaining classifications depend just as much on ir-
rational stereotypes. The “Hispanic” category covers those
whose ancestral language is Spanish, Basque, or Catalan—
but it also covers individuals of Mayan, Mixtec, or Zapotec
descent who do not speak any of those languages and whose
ancestry does not trace to the Iberian Peninsula but bears
deep ties to the Americas. See Bernstein Amicus Brief 10–
Cite as: 600 U. S. ____ (2023) 7
GORSUCH, J., concurring
11. The “White” category sweeps in anyone from “Europe,
Asia west of India, and North Africa.” Id., at 14. That in-
cludes those of Welsh, Norwegian, Greek, Italian, Moroc-
can, Lebanese, Turkish, or Iranian descent. It embraces an
Iraqi or Ukrainian refugee as much as a member of the Brit-
ish royal family. Meanwhile, “Black or African American”
covers everyone from a descendant of enslaved persons who
grew up poor in the rural South, to a first-generation child
of wealthy Nigerian immigrants, to a Black-identifying ap-
plicant with multiracial ancestry whose family lives in a
typical American suburb. See id., at 15–16.
If anything, attempts to divide us all up into a handful of
groups have become only more incoherent with time. Amer-
ican families have become increasingly multicultural, a fact
that has led to unseemly disputes about whether someone
is really a member of a certain racial or ethnic group. There
are decisions denying Hispanic status to someone of Italian-
Argentine descent, Marinelli Constr. Corp. v. New York,
200 App. Div. 2d 294, 296–297, 613 N. Y. S. 2d 1000, 1002
(1994), as well as someone with one Mexican grandparent,
Major Concrete Constr., Inc. v. Erie County, 134 App. Div.
2d 872, 873, 521 N. Y. S. 2d 959, 960 (1987). Yet there are
also decisions granting Hispanic status to a Sephardic Jew
whose ancestors fled Spain centuries ago, In re Rothschild-
Lynn Legal & Fin. Servs., SBA No. 499, 1995 WL 542398,
*2–*4 (Apr. 12, 1995), and bestowing a “sort of Hispanic”
status on a person with one Cuban grandparent, Bernstein,
94 S. Cal. L. Rev., at 232 (discussing In re Kist Corp., 99
F. C. C. 2d 173, 193 (1984)).
Given all this, is it any surprise that members of certain
groups sometimes try to conceal their race or ethnicity? Or
that a cottage industry has sprung up to help college appli-
cants do so? We are told, for example, that one effect of
lumping so many people of so many disparate backgrounds
into the “Asian” category is that many colleges consider
“Asians” to be “overrepresented” in their admission pools.
8 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
GORSUCH, J., concurring
Brief for Asian American Coalition for Education et al. as
Amici Curiae 12–14, 18–19. Paid advisors, in turn, tell high
school students of Asian descent to downplay their heritage
to maximize their odds of admission. “ ‘We will make them
appear less Asian when they apply,’ ” one promises. Id., at
16. “ ‘If you’re given an option, don’t attach a photograph to
your application,’ ” another instructs. Ibid.1 It is difficult
to imagine those who receive this advice would find comfort
in a bald (and mistaken) assurance that “race-conscious ad-
missions benefit . . . the Asian American community,” post,
at 60 (SOTOMAYOR, J., dissenting). See 397 F. Supp. 3d, at
178 (district court finding that “overall” Harvard’s race-con-
scious admissions policy “results in fewer Asian Ameri-
can[s]” being admitted). And it is hard not to wonder
whether those left paying the steepest price are those least
able to afford it—children of families with no chance of hir-
ing the kind of consultants who know how to play this
game.2
2
Just as there is no question Harvard and UNC consider
race in their admissions processes, there is no question both
schools intentionally treat some applicants worse than oth-
ers because of their race. Both schools frequently choose to
——————
1 See also A. Qin, Aiming for an Ivy and Trying to Seem ‘Less Asian,’
N. Y. Times, Dec. 3, 2022, p. A18, col. 1 (“[T]he rumor that students can
appear ‘too Asian’ has hardened into a kind of received wisdom within
many Asian American communities,” and “college admissions consult-
ants [have] spoke[n] about trying to steer their Asian American clients
away from so-called typically Asian activities such as Chinese language
school, piano and Indian classical instruments.”).
2 Though the matter did not receive much attention in the proceedings
below, it appears that the Common Application has evolved in recent
years to allow applicants to choose among more options to describe their
backgrounds. The decisions below do not disclose how much Harvard or
UNC made use of this further information (or whether they make use of
it now). But neither does it make a difference. Title VI no more tolerates
discrimination based on 60 racial categories than it does 6.
Cite as: 600 U. S. ____ (2023) 9
GORSUCH, J., concurring
award a “tip” or a “plus” to applicants from certain racial
groups but not others. These tips or plusses are just what
they sound like—“factors that might tip an applicant into
[an] admitted class.” 980 F. 3d 157, 170 (CA1 2020). And
in a process where applicants compete for a limited pool of
spots, “[a] tip for one race” necessarily works as “a penalty
against other races.” Brief for Economists as Amici Curiae
20. As the trial court in the Harvard case put it: “Race
conscious admissions will always penalize to some extent
the groups that are not being advantaged by the process.”
397 F. Supp. 3d, at 202–203.
Consider how this plays out at Harvard. In a given year,
the university’s undergraduate program may receive
60,000 applications for roughly 1,600 spots. Tr. of Oral Arg.
in No. 20–1199, p. 60. Admissions officers read each appli-
cation and rate students across several categories: aca-
demic, extracurricular, athletic, school support, personal,
and overall. 980 F. 3d, at 167. Harvard says its admissions
officers “should not” consider race or ethnicity when assign-
ing the “personal” rating. Id., at 169 (internal quotation
marks omitted). But Harvard did not make this instruction
explicit until after SFFA filed this suit. Ibid. And, in any
event, Harvard concedes that its admissions officers “can
and do take an applicant’s race into account when assigning
an overall rating.” Ibid. (emphasis added). At that stage,
the lower courts found, applicants of certain races may re-
ceive a “tip” in their favor. Ibid.
The next step in the process is committee review. Re-
gional subcommittees may consider an applicant’s race
when deciding whether to recommend admission. Id., at
169–170. So, too, may the full admissions committee. Ibid.
As the Court explains, that latter committee “discusses the
relative breakdown of applicants by race.” Ante, at 2–3.
And “if at some point in the admissions process it appears
that a group is notably underrepresented or has suffered a
dramatic drop off relative to the prior year, the [committee]
10 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
GORSUCH, J., concurring
may decide to give additional attention to applications from
students within that group.” 397 F. Supp. 3d, at 146.
The last step is “lopping,” where the admissions commit-
tee trims the list of “prospective admits” before settling on
a final class. Id., at 144 (internal quotation marks omitted).
At this stage, again, the committee considers the “charac-
teristics of the admitted class,” including its “racial compo-
sition.” Ibid. Once more, too, the committee may consider
each applicant’s race in deciding whom to “lop off.” Ibid.
All told, the district court made a number of findings
about Harvard’s use of race-based tips. For example:
“[T]he tip[s] given for race impac[t] who among the highly-
qualified students in the applicant pool will be selected for
admission.” Id., at 178. “At least 10% of Harvard’s admit-
ted class . . . would most likely not be admitted in the ab-
sence of Harvard’s race-conscious admissions process.”
Ibid. Race-based tips are “determinative” in securing favor-
able decisions for a significant percentage of “African Amer-
ican and Hispanic applicants,” the “primary beneficiaries”
of this system. Ibid. There are clear losers too. “[W]hite
and Asian American applicants are unlikely to receive a
meaningful race-based tip,” id., at 190, n. 56, and “overall”
the school’s race-based practices “resul[t] in fewer Asian
American and white students being admitted,” id., at 178.
For these reasons and others still, the district court con-
cluded that “Harvard’s admissions process is not facially
neutral” with respect to race. Id., at 189–190; see also id.,
at 190, n. 56 (“The policy cannot . . . be considered facially
neutral from a Title VI perspective.”).
Things work similarly at UNC. In a typical year, about
44,000 applicants vie for 4,200 spots. 567 F. Supp. 3d, at
595. Admissions officers read each application and rate
prospective students along eight dimensions: academic pro-
gramming, academic performance, standardized tests, ex-
tracurriculars, special talents, essays, background, and
personal. Id., at 600. The district court found that “UNC’s
Cite as: 600 U. S. ____ (2023) 11
GORSUCH, J., concurring
admissions policies mandate that race is taken into consid-
eration” in this process as a “ ‘plus’ facto[r].” Id., at 594–
595. It is a plus that is “sometimes” awarded to “un-
derrepresented minority” or “URM” candidates—a group
UNC defines to include “ ‘those students identifying them-
selves as African American or [B]lack; American Indian or
Alaska Native; or Hispanic, Latino, or Latina,’ ” but not
Asian or white students. Id., at 591–592, n. 7, 601.
At UNC, the admissions officers’ decisions to admit or
deny are “ ‘provisionally final.’ ” Ante, at 4 (opinion for the
Court). The decisions become truly final only after a com-
mittee approves or rejects them. 567 F. Supp. 3d, at 599.
That committee may consider an applicant’s race too. Id.,
at 607. In the end, the district court found that “race plays
a role”—perhaps even “a determinative role”—in the deci-
sion to admit or deny some “URM students.” Id., at 634; see
also id., at 662 (“race may tip the scale”). Nor is this an
accident. As at Harvard, officials at UNC have made a “de-
liberate decision” to employ race-conscious admissions
practices. Id., at 588–589.
While the district courts’ findings tell the full story, one
can also get a glimpse from aggregate statistics. Consider
the chart in the Court’s opinion collecting Harvard’s data
for the period 2009 to 2018. Ante, at 31. The racial compo-
sition of each incoming class remained steady over that
time—remarkably so. The proportion of African Americans
hovered between 10% and 12%; the proportion of Hispanics
between 8% and 12%; and the proportion of Asian Ameri-
cans between 17% and 20%. Ibid. Might this merely reflect
the demographics of the school’s applicant pool? Cf. post, at
35 (opinion of SOTOMAYOR, J.). Perhaps—at least assuming
the applicant pool looks much the same each year and the
school rather mechanically admits applicants based on ob-
jective criteria. But the possibility that it instead betrays
the school’s persistent focus on numbers of this race and
numbers of that race is entirely consistent with the findings
12 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
GORSUCH, J., concurring
recounted above. See, e.g., 397 F. Supp. 3d, at 146 (“if at
some point in the admissions process it appears that a
group is notably underrepresented or has suffered a dra-
matic drop off relative to the prior year, the [committee]
may decide to give additional attention to applications from
students within that group”); cf. ante, at 31–32, n. 7 (opin-
ion for the Court).
C
Throughout this litigation, the parties have spent less
time contesting these facts than debating other matters.
For example, the parties debate how much of a role race
plays in admissions at Harvard and UNC. Both schools in-
sist that they consider race as just one of many factors when
making admissions decisions in their self-described “holis-
tic” review of each applicant. SFFA responds with trial ev-
idence showing that, whatever label the universities use to
describe their processes, they intentionally consult race
and, by design, their race-based tips and plusses benefit ap-
plicants of certain groups to the detriment of others. See
Brief for Petitioner 20–35, 40–45.
The parties also debate the reasons both schools consult
race. SFFA observes that, in the 1920s, Harvard began
moving away from “test scores” and toward “plac[ing]
greater emphasis on character, fitness, and other subjective
criteria.” Id., at 12–13 (internal quotation marks omitted).
Harvard made this move, SFFA asserts, because President
A. Lawrence Lowell and other university leaders had be-
come “alarmed by the growing number of Jewish students
who were testing in,” and they sought some way to cap the
number of Jewish students without “ ‘stat[ing] frankly’ ”
that they were “ ‘directly excluding all [Jews] beyond a cer-
tain percentage.’ ” Id., at 12; see also 3 App. in No. 20–1199,
pp. 1131–1133. SFFA contends that Harvard’s current “ho-
listic” approach to admissions works similarly to disguise
Cite as: 600 U. S. ____ (2023) 13
GORSUCH, J., concurring
the school’s efforts to assemble classes with a particular ra-
cial composition—and, in particular, to limit the number of
Asian Americans it admits. Brief for Petitioner 12–14, 25–
32. For its part, Harvard expresses regret for its past prac-
tices while denying that they resemble its current ones. Tr.
of Oral Arg. in No. 20–1199, at 51. And both schools insist
that their student bodies would lack sufficient diversity
without race-conscious admissions. Brief for Respondent in
No. 20–1199, pp. 52–54; Brief for University Respondents
in No. 21–707, pp. 54–59.
When it comes to defining and measuring diversity, the
parties spar too. SFFA observes that the racial categories
the universities employ in the name of diversity do not
begin to reflect the differences that exist within each group.
See Part I–B–1, supra. Instead, they lump together white
and Asian students from privileged backgrounds with “Jew-
ish, Irish, Polish, or other ‘white’ ethnic groups whose an-
cestors faced discrimination” and “descendants of those
Japanese-American citizens interned during World War II.”
Ante, at 45, n. 10 (THOMAS, J., concurring). Even putting
all that aside, SFFA stresses that neither Harvard nor
UNC is willing to quantify how much racial and ethnic di-
versity they think sufficient. And, SFFA contends, the uni-
versities may not wish to do so because their stated goal
implies a desire to admit some fixed number (or quota) of
students from each racial group. See Brief for Petitioner
77, 80; Tr. of Oral Arg. in No. 21–707, p. 180. Besides, SFFA
asks, if it is diversity the schools are after, why do they ex-
hibit so little interest in other (non-racial) markers of it?
See Brief for Petitioner 78, 83–86. While Harvard professes
interest in socioeconomic diversity, for example, SFFA
points to trial testimony that there are “23 times as many
rich kids on campus as poor kids.” 2 App. in No. 20–1199,
14 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
GORSUCH, J., concurring
p. 756.3
Even beyond all this, the parties debate the availability
of alternatives. SFFA contends that both Harvard and
UNC could obtain significant racial diversity without re-
sorting to race-based admissions practices. Many other
universities across the country, SFFA points out, have
sought to do just that by reducing legacy preferences, in-
creasing financial aid, and the like. Brief for Petitioner 85–
86; see also Brief for Oklahoma et al. as Amici Curiae 9–
19.4 As part of its affirmative case, SFFA also submitted
evidence that Harvard could nearly replicate the current
racial composition of its student body without resorting to
race-based practices if it: (1) provided socioeconomically
——————
3 See also E. Bazelon, Why Is Affirmative Action in Peril? One Man’s
Decision, N. Y. Times Magazine, Feb. 15, 2023, p. 41 (“In the Ivy League,
children whose parents are in the top 1 percent of the income distribution
are 77 times as likely to attend as those whose parents are in the bottom
20 percent of the income bracket.”); ibid. (“[A] common critique . . . is that
schools have made a bargain with economic elites of all races, with the
exception of Asian Americans, who are underrepresented compared with
their level of academic achievement.”).
4 The principal dissent chides me for “reach[ing] beyond the factfinding
below” by acknowledging SFFA’s argument that other universities have
employed various race-neutral tools. Post, at 29–30, n. 25 (opinion of
SOTOMAYOR, J.). Contrary to the dissent’s suggestion, however, I do not
purport to find facts about those practices; all I do here is recount what
SFFA has argued every step of the way. See, e.g., Brief for Petitioner 55,
66–67; 1 App. in No. 20–1199, pp. 415–416, 440; 2 App. in No. 21–707,
pp. 551–552. Nor, of course, is it somehow remarkable to acknowledge
the parties’ arguments. The principal dissent itself recites SFFA’s argu-
ments about Harvard’s and other universities’ practices too. See, e.g.,
post, at 30–31, 50 (opinion of SOTOMAYOR, J.). In truth, it is the dissent
that reaches beyond the factfinding below when it argues from studies
recited in a dissenting opinion in a different case decided almost a decade
ago. Post, at 29–30, n. 25 (opinion of SOTOMAYOR, J.); see also post, at
18–21 (opinion of SOTOMAYOR, J.) (further venturing beyond the trial rec-
ords to discuss data about employment, income, wealth, home owner-
ship, and healthcare).
Cite as: 600 U. S. ____ (2023) 15
GORSUCH, J., concurring
disadvantaged applicants just half of the tip it gives re-
cruited athletes; and (2) eliminated tips for the children of
donors, alumni, and faculty. Brief for Petitioner 33–34, 81;
see 2 App. in No. 20–1199, at 763–765, 774–775. Doing
these two things would barely affect the academic creden-
tials of each incoming class. Brief for Petitioner 33–34. And
it would not require Harvard to end tips for recruited ath-
letes, who as a group are much weaker academically than
non-athletes.5
At trial, however, Harvard resisted this proposal. Its
preferences for the children of donors, alumni, and faculty
are no help to applicants who cannot boast of their parents’
good fortune or trips to the alumni tent all their lives.
While race-neutral on their face, too, these preferences un-
doubtedly benefit white and wealthy applicants the most.
See 980 F. 3d, at 171. Still, Harvard stands by them. See
Brief for Respondent in No. 20–1199, at 52–54; Tr. of Oral
Arg. in No. 21–1199, at 48–49. As a result, athletes and the
children of donors, alumni, and faculty—groups that to-
gether “make up less than 5% of applicants to Harvard”—
constitute “around 30% of the applicants admitted each
year.” 980 F. 3d, at 171.
To be sure, the parties’ debates raise some hard-to-an-
swer questions. Just how many admissions decisions turn
on race? And what really motivates the universities’ race-
conscious admissions policies and their refusal to modify
other preferential practices? Fortunately, Title VI does not
require an answer to any of these questions. It does not ask
——————
5 See Brief for Defense of Freedom Institute for Policy Studies as Ami-
cus Curiae 11 (recruited athletes make up less than 1% of Harvard’s ap-
plicant pool but represent more than 10% of the admitted class); P. Arci-
diacono, J. Kinsler, & T. Ransom, Legacy and Athlete Preferences at
Harvard, 40 J. Lab. Econ. 133, 141, n. 17 (2021) (recruited athletes were
the only applicants admitted with the lowest possible academic rating
and 79% of recruited athletes with the next lowest rating were admitted
compared to 0.02% of other applicants with the same rating).
16 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
GORSUCH, J., concurring
how much a recipient of federal funds discriminates. It does
not scrutinize a recipient’s reasons or motives for discrimi-
nating. Instead, the law prohibits covered institutions from
intentionally treating any individual worse even in part be-
cause of race. So yes, of course, the universities consider
many non-racial factors in their admissions processes too.
And perhaps they mean well when they favor certain can-
didates over others based on the color of their skin. But
even if all that is true, their conduct violates Title VI just
the same. See Part I–A, supra; see also Bostock, 590 U. S.,
at ___, ___–___ (slip op., at 6, 12–15).
D
The principal dissent contends that this understanding of
Title VI is contrary to precedent. Post, at 26–27, n. 21 (opin-
ion of SOTOMAYOR, J.). But the dissent does not dispute
that everything said here about the meaning of Title VI
tracks this Court’s precedent in Bostock interpreting mate-
rially identical language in Title VII. That raises two ques-
tions: Do the dissenters think Bostock wrongly decided? Or
do they read the same words in neighboring provisions of
the same statute—enacted at the same time by the same
Congress—to mean different things? Apparently, the fed-
eral government takes the latter view. The Solicitor Gen-
eral insists that there is “ambiguity in the term ‘discrimi-
nation’ ” in Title VI but no ambiguity in the term
“discriminate” in Title VII. Tr. of Oral Arg. in No. 21–707,
at 164. Respectfully, I do not see it. The words of the Civil
Rights Act of 1964 are not like mood rings; they do not
change their message from one moment to the next.
Rather than engage with the statutory text or our prece-
dent in Bostock, the principal dissent seeks to sow confusion
about the facts. It insists that all applicants to Harvard
and UNC are “eligible” to receive a race-based tip. Post, at
32, n. 27 (opinion of SOTOMAYOR, J.); cf. post, at 17
(JACKSON, J., dissenting). But the question in these cases
Cite as: 600 U. S. ____ (2023) 17
GORSUCH, J., concurring
is not who could hypothetically receive a race-based tip. It
is who actually receives one. And on that score the lower
courts left no doubt. The district court in the Harvard case
found that the school’s admissions policy “cannot . . . be con-
sidered facially neutral from a Title VI perspective given
that admissions officers provide [race-based] tips to African
American and Hispanic applicants, while white and Asian
American applicants are unlikely to receive a meaningful
race-based tip.” 397 F. Supp. 3d, at 190, n. 56; see also id.,
at 189–190 (“Harvard’s admissions process is not facially
neutral.”). Likewise, the district court in the UNC case
found that admissions officers “sometimes” award race-
based plusses to URM candidates—a category that excludes
Asian American and white students. 567 F. Supp. 3d, at
591–592, n. 7, 601.6
Nor could anyone doubt that these cases are about inten-
tional discrimination just because Harvard in particular
“ ‘does not explicitly prioritize any particular racial group
over any other.’ ” Post, at 32, n. 27 (opinion of SOTOMAYOR,
J.) (emphasis added). Forget for a moment the universities’
concessions about how they deliberately consult race when
deciding whom to admit. See supra, at 12–13.7 Look past
——————
6 The principal dissent suggests “some Asian American applicants are
actually advantaged by Harvard’s use of race.” Post, at 60 (opinion of
SOTOMAYOR, J.) (internal quotation marks omitted). What is the dissent’s
basis for that claim? The district court’s finding that “considering appli-
cants’ race may improve the admission chances of some Asian Americans
who connect their racial identities with particularly compelling narra-
tives.” 397 F. Supp. 3d, at 178 (emphasis added). The dissent neglects
to mention those key qualifications. Worse, it ignores completely the dis-
trict court’s further finding that “overall” Harvard’s race-conscious ad-
missions policy “results in fewer Asian American[s] . . . being admitted.”
Ibid. (emphasis added). So much for affording the district court’s “careful
factfinding” the “deference it [is] owe[d].” Post, at 29–30, n. 25 (opinion
of SOTOMAYOR, J.).
7 See also, e.g., Tr. of Oral Arg. in No. 20–1199, at 67, 84, 91; Tr. of Oral
Arg. in No. 21–707, at 70–71, 81, 84, 91–92, 110.
18 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
GORSUCH, J., concurring
the lower courts’ findings recounted above about how the
universities intentionally give tips to students of some races
and not others. See supra, at 8–12, 16–17. Put to the side
telling evidence that came out in discovery.8 Ignore, too,
our many precedents holding that it does not matter how a
defendant “label[s]” its practices, Bostock, 590 U. S., at ___
(slip op., at 14); that intentional discrimination between in-
dividuals is unlawful whether “motivated by a wish to
achieve classwide equality” or any other purpose, id., at ___
(slip op., at 13); and that “the absence of a malevolent mo-
tive does not convert a facially discriminatory policy into a
neutral policy with a [merely] discriminatory effect,” John-
son Controls, 499 U. S., at 199. Consider just the dissents
in these cases. From start to finish and over the course of
nearly 100 pages, they defend the universities’ purposeful
discrimination between applicants based on race. “[N]eu-
trality,” they insist, is not enough. Post, at 12, 68 (opinion
of SOTOMAYOR, J.); cf. post, at 21 (opinion of JACKSON, J.).
“[T]he use of race,” they stress, “is critical.” Post, at 59–60
(opinion of SOTOMAYOR, J.); see id., at 2, 33, 39, 43–45; cf.
post, at 2, 26 (opinion of JACKSON, J.). Plainly, Harvard and
UNC choose to treat some students worse than others in
part because of race. To suggest otherwise—or to cling to
the fact that the schools do not always say the quiet part
aloud—is to deny reality.9
——————
8 Messages among UNC admissions officers included statements such
as these: “[P]erfect 2400 SAT All 5 on AP one B in 11th [grade].”
“Brown?!” “Heck no. Asian.” “Of course. Still impressive.”; “If it[’]s
brown and above a 1300 [SAT] put them in for [the] merit/Excel [schol-
arship].”; “I just opened a brown girl who’s an 810 [SAT].”; “I’m going
through this trouble because this is a bi-racial (black/white) male.”;
“[S]tellar academics for a Native Amer[ican]/African Amer[ican] kid.” 3
App. in No. 21–707, pp. 1242–1251.
9 Left with no reply on the statute or its application to the facts, the
principal dissent suggests that it violates “principles of party presenta-
tion” and abandons “judicial restraint” even to look at the text of Title VI.
Cite as: 600 U. S. ____ (2023) 19
GORSUCH, J., concurring
II
So far, we have seen that Title VI prohibits a recipient of
federal funds from discriminating against individuals even
in part because of race. We have seen, too, that Harvard
and UNC do just what the law forbids. One might wonder,
then, why the parties have devoted years and fortunes liti-
gating other matters, like how much the universities dis-
criminate and why they do so. The answer lies in Bakke.
A
Bakke concerned admissions to the medical school at the
University of California, Davis. That school set aside a cer-
tain number of spots in each class for minority applicants.
See 438 U. S., at 272–276 (opinion of Powell, J.). Allan
Bakke argued that the school’s policy violated Title VI and
the Equal Protection Clause of the Fourteenth Amendment.
Id., at 270. The Court agreed with Mr. Bakke. In a frac-
tured decision that yielded six opinions, a majority of the
Court held that the school’s set-aside system went too far.
At the same time, however, a different coalition of five Jus-
tices ventured beyond the facts of the case to suggest that,
in other circumstances not at issue, universities may some-
times permissibly use race in their admissions processes.
See ante, at 16–19 (opinion for the Court).
As important as these conclusions were some of the inter-
pretive moves made along the way. Justice Powell (writing
only for himself ) and Justice Brennan (writing for himself
——————
Post, at 26–27, n. 21 (opinion of SOTOMAYOR, J.). It is a bewildering sug-
gestion. SFFA sued Harvard and UNC under Title VI. And when a party
seeks relief under a statute, our task is to apply the law’s terms as a
reasonable reader would have understood them when Congress enacted
them. Bostock v. Clayton County, 590 U. S. ___, ___ (2020) (slip op., at
4). To be sure, parties are free to frame their arguments. But they are
not free to stipulate to a statute’s meaning and no party may “waiv[e]”
the proper interpretation of the law by “fail[ing] to invoke it.” EEOC v.
FLRA, 476 U. S. 19, 23 (1986) (per curiam) (internal quotation marks
omitted); see also Young v. United States, 315 U. S. 257, 258–259 (1942).
20 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
GORSUCH, J., concurring
and three others) argued that Title VI is coterminous with
the Equal Protection Clause. Put differently, they read Ti-
tle VI to prohibit recipients of federal funds from doing
whatever the Equal Protection Clause prohibits States from
doing. Justice Powell and Justice Brennan then proceeded
to evaluate racial preferences in higher education directly
under the Equal Protection Clause. From there, however,
their paths diverged. Justice Powell thought some racial
preferences might be permissible but that the admissions
program at issue violated the promise of equal protection.
438 U. S., at 315–320. Justice Brennan would have given a
wider berth to racial preferences and allowed the chal-
lenged program to proceed. Id., at 355–379.
Justice Stevens (also writing for himself and three oth-
ers) took an altogether different approach. He began by
noting the Court’s “settled practice” of “avoid[ing] the deci-
sion of a constitutional issue if a case can be fairly decided
on a statutory ground.” Id., at 411. He then turned to the
“broad prohibition” of Title VI, id., at 413, and summarized
his views this way: “The University . . . excluded Bakke
from participation in its program of medical education be-
cause of his race. The University also acknowledges that it
was, and still is, receiving federal financial assistance. The
plain language of the statute therefore requires” finding a
Title VI violation. Id., at 412 (footnote omitted).
In the years following Bakke, this Court hewed to Justice
Powell’s and Justice Brennan’s shared premise that Title
VI and the Equal Protection Clause mean the same thing.
See Gratz v. Bollinger, 539 U. S. 244, 276, n. 23 (2003);
Grutter v. Bollinger, 539 U. S. 306, 343 (2003). Justice Ste-
vens’s statute-focused approach receded from view. As a
result, for over four decades, every case about racial prefer-
ences in school admissions under Title VI has turned into a
case about the meaning of the Fourteenth Amendment.
And what a confused body of constitutional law followed.
For years, this Court has said that the Equal Protection
Cite as: 600 U. S. ____ (2023) 21
GORSUCH, J., concurring
Clause requires any consideration of race to satisfy “strict
scrutiny,” meaning it must be “narrowly tailored to further
compelling governmental interests.” Grutter, 539 U. S., at
326 (internal quotation marks omitted). Outside the con-
text of higher education, “our precedents have identified
only two” interests that meet this demanding standard:
“remediating specific, identified instances of past discrimi-
nation that violated the Constitution or a statute,” and
“avoiding imminent and serious risks to human safety in
prisons.” Ante, at 15 (opinion for the Court).
Within higher education, however, an entirely distinct
set of rules emerged. Following Bakke, this Court declared
that judges may simply “defer” to a school’s assertion that
“diversity is essential” to its “educational mission.” Grutter,
539 U. S., at 328. Not all schools, though—elementary and
secondary schools apparently do not qualify for this defer-
ence. See Parents Involved in Community Schools v. Seattle
School Dist. No. 1, 551 U. S. 701, 724–725 (2007). Only col-
leges and universities, the Court explained, “occupy a spe-
cial niche in our constitutional tradition.” Grutter, 539
U. S., at 329. Yet even they (wielding their “special niche”
authority) cannot simply assert an interest in diversity and
discriminate as they please. Fisher, 579 U. S., at 381. In-
stead, they may consider race only as a “plus” factor for the
purpose of “attaining a critical mass of underrepresented
minority students” or “a diverse student body.” Grutter,
539 U. S., at 335–336 (internal quotation marks omitted).
At the same time, the Court cautioned, this practice “must
have a logical end point.” Id., at 342. And in the meantime,
“outright racial balancing” and “quota system[s]” remain
“patently unconstitutional.” Id., at 330, 334. Nor may a
college or university ever provide “mechanical, predeter-
mined diversity bonuses.” Id., at 337 (internal quotation
marks omitted). Only a “tip” or “plus” is constitutionally
tolerable, and only for a limited time. Id., at 338–339, 341.
If you cannot follow all these twists and turns, you are
22 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
GORSUCH, J., concurring
not alone. See, e.g., Fisher, 579 U. S., at 401–437 (ALITO,
J., dissenting); Grutter, 539 U. S., at 346–349 (Scalia, J.,
joined by THOMAS, J., concurring in part and dissenting in
part); 1 App. in No. 21–707, pp. 401–402 (testimony from
UNC administrator: “[M]y understanding of the term ‘crit-
ical mass’ is that it’s a . . . I’m trying to decide if it’s an anal-
ogy or a metaphor[.] I think it’s an analogy. . . . I’m not
even sure we would know what it is.”); 3 App. in No. 20–
1199, at 1137–1138 (similar testimony from a Harvard ad-
ministrator). If the Court’s post-Bakke higher-education
precedents ever made sense, they are by now incoherent.
Recognizing as much, the Court today cuts through the
kudzu. It ends university exceptionalism and returns this
Court to the traditional rule that the Equal Protection
Clause forbids the use of race in distinguishing between
persons unless strict scrutiny’s demanding standards can
be met. In that way, today’s decision wakes the echoes of
Justice John Marshall Harlan: “The law regards man as
man, and takes no account of his surroundings or of his
color when his civil rights as guaranteed by the supreme
law of the land are involved.” Plessy v. Ferguson, 163 U. S.
537, 559 (1896) (dissenting opinion).
B
If Bakke led to errors in interpreting the Equal Protection
Clause, its first mistake was to take us there. These cases
arise under Title VI and that statute is “more than a simple
paraphrasing” of the Equal Protection Clause. 438 U. S., at
416 (opinion of Stevens, J.). Title VI has “independent
force, with language and emphasis in addition to that found
in the Constitution.” Ibid. That law deserves our respect
and its terms provide us with all the direction we need.
Put the two provisions side by side. Title VI says: “No
person in the United States shall, on the ground of race,
color, or national origin, be excluded from participation in,
be denied the benefits of, or be subjected to discrimination
Cite as: 600 U. S. ____ (2023) 23
GORSUCH, J., concurring
under any program or activity receiving Federal financial
assistance.” §2000d. The Equal Protection Clause reads:
“No State shall . . . deny to any person within its jurisdic-
tion the equal protection of the laws.” Amdt. 14, §1. That
such differently worded provisions should mean the same
thing is implausible on its face.
Consider just some of the obvious differences. The Equal
Protection Clause operates on States. It does not purport
to regulate the conduct of private parties. By contrast, Title
VI applies to recipients of federal funds—covering not just
many state actors, but many private actors too. In this way,
Title VI reaches entities and organizations that the Equal
Protection Clause does not.
In other respects, however, the relative scope of the two
provisions is inverted. The Equal Protection Clause ad-
dresses all manner of distinctions between persons and this
Court has held that it implies different degrees of judicial
scrutiny for different kinds of classifications. So, for exam-
ple, courts apply strict scrutiny for classifications based on
race, color, and national origin; intermediate scrutiny for
classifications based on sex; and rational-basis review for
classifications based on more prosaic grounds. See, e.g.,
Fisher, 579 U. S., at 376; Richmond v. J. A. Croson Co., 488
U. S. 469, 493–495 (1989) (plurality opinion); United States
v. Virginia, 518 U. S. 515, 555–556 (1996); Board of Trus-
tees of Univ. of Ala. v. Garrett, 531 U. S. 356, 366–367
(2001). By contrast, Title VI targets only certain classifica-
tions—those based on race, color, or national origin. And
that law does not direct courts to subject these classifica-
tions to one degree of scrutiny or another. Instead, as we
have seen, its rule is as uncomplicated as it is momentous.
Under Title VI, it is always unlawful to discriminate among
persons even in part because of race, color, or national
origin.
In truth, neither Justice Powell’s nor Justice Brennan’s
opinion in Bakke focused on the text of Title VI. Instead,
24 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
GORSUCH, J., concurring
both leapt almost immediately to its “voluminous legisla-
tive history,” from which they proceeded to divine an im-
plicit “congressional intent” to link the statute with the
Equal Protection Clause. 438 U. S., at 284–285 (opinion of
Powell, J.); id., at 328–336 ( joint opinion of Brennan,
White, Marshall, and Blackmun, JJ.). Along the way, as
Justice Stevens documented, both opinions did more than a
little cherry-picking from the legislative record. See id., at
413–417. Justice Brennan went so far as to declare that
“any claim that the use of racial criteria is barred by the
plain language of the statute must fail in light of the reme-
dial purpose of Title VI and its legislative history.” Id., at
340. And once liberated from the statute’s firm rule against
discrimination based on race, both opinions proceeded to
devise their own and very different arrangements in the
name of the Equal Protection Clause.
The moves made in Bakke were not statutory interpreta-
tion. They were judicial improvisation. Under our Consti-
tution, judges have never been entitled to disregard the
plain terms of a valid congressional enactment based on
surmise about unenacted legislative intentions. Instead, it
has always been this Court’s duty “to give effect, if possible,
to every clause and word of a statute,” Montclair v.
Ramsdell, 107 U. S. 147, 152 (1883), and of the Constitution
itself, see Knowlton v. Moore, 178 U. S. 41, 87 (1900). In
this country, “[o]nly the written word is the law, and all per-
sons are entitled to its benefit.” Bostock, 590 U. S., at ___
(slip op., at 2). When judges disregard these principles and
enforce rules “inspired only by extratextual sources and
[their] own imaginations,” they usurp a lawmaking func-
tion “reserved for the people’s representatives.” Id., at ___
(slip op., at 4).
Today, the Court corrects course in its reading of the
Equal Protection Clause. With that, courts should now also
correct course in their treatment of Title VI. For years, they
Cite as: 600 U. S. ____ (2023) 25
GORSUCH, J., concurring
have read a solo opinion in Bakke like a statute while read-
ing Title VI as a mere suggestion. A proper respect for the
law demands the opposite. Title VI bears independent force
beyond the Equal Protection Clause. Nothing in it grants
special deference to university administrators. Nothing in
it endorses racial discrimination to any degree or for any
purpose. Title VI is more consequential than that.
*
In the aftermath of the Civil War, Congress took vital
steps toward realizing the promise of equality under the
law. As important as those initial efforts were, much work
remained to be done—and much remains today. But by any
measure, the Civil Rights Act of 1964 stands as a landmark
on this journey and one of the Nation’s great triumphs. We
have no right to make a blank sheet of any of its provisions.
And when we look to the clear and powerful command Con-
gress set forth in that law, these cases all but resolve them-
selves. Under Title VI, it is never permissible “ ‘to say “yes”
to one person . . . but to say “no” to another person’ ” even in
part “ ‘because of the color of his skin.’ ” Bakke, 438 U. S.,
at 418 (opinion of Stevens, J.).
Cite as: 600 U. S. ____ (2023) 1
KAVANAUGH, J., concurring
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 KAVANAUGH, concurring.
I join the Court’s opinion in full. I add this concurring
opinion to further explain why the Court’s decision today is
consistent with and follows from the Court’s equal
protection precedents, including the Court’s precedents on
race-based affirmative action in higher education.
Ratified in 1868 in the wake of the Civil War, the Equal
Protection Clause of the Fourteenth Amendment provides:
“No State shall . . . deny to any person within its jurisdiction
the equal protection of the laws.” U. S. Const., Amdt. 14,
§1. In accord with the Fourteenth Amendment’s text and
history, this Court considers all racial classifications to be
constitutionally suspect. See Grutter v. Bollinger, 539 U. S.
306, 326 (2003); Strauder v. West Virginia, 100 U. S. 303,
2 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
KAVANAUGH, J., concurring
306–308 (1880). As a result, the Court has long held that
racial classifications by the government, including race-
based affirmative action programs, are subject to strict
judicial scrutiny.
Under strict scrutiny, racial classifications are
constitutionally prohibited unless they are narrowly
tailored to further a compelling governmental interest.
Grutter, 539 U. S., at 326–327. Narrow tailoring requires
courts to examine, among other things, whether a racial
classification is “necessary”—in other words, whether race-
neutral alternatives could adequately achieve the
governmental interest. Id., at 327, 339–340; Richmond v.
J. A. Croson Co., 488 U. S. 469, 507 (1989).
Importantly, even if a racial classification is otherwise
narrowly tailored to further a compelling governmental
interest, a “deviation from the norm of equal treatment of
all racial and ethnic groups” must be “a temporary
matter”—or stated otherwise, must be “limited in time.”
Id., at 510 (plurality opinion of O’Connor, J.); Grutter, 539
U. S., at 342.
In 1978, five Members of this Court held that race-based
affirmative action in higher education did not violate the
Equal Protection Clause or Title VI of the Civil Rights Act,
so long as universities used race only as a factor in
admissions decisions and did not employ quotas. See
Regents of Univ. of Cal. v. Bakke, 438 U. S. 265, 325–326
(1978) (joint opinion of Brennan, White, Marshall, and
Blackmun, JJ.); id., at 287, 315–320 (opinion of Powell, J.).
One Member of the Court’s five-Justice majority, Justice
Blackmun, added that race-based affirmative action should
exist only as a temporary measure. He expressed hope that
such programs would be “unnecessary” and a “relic of the
past” by 1988—within 10 years “at the most,” in his words—
although he doubted that the goal could be achieved by
then. Id., at 403 (opinion of Blackmun, J.).
In 2003, 25 years after Bakke, five Members of this Court
Cite as: 600 U. S. ____ (2023) 3
KAVANAUGH, J., concurring
again held that race-based affirmative action in higher
education did not violate the Equal Protection Clause or
Title VI. Grutter, 539 U. S., at 343. This time, however, the
Court also specifically indicated—despite the reservations
of Justice Ginsburg and Justice Breyer—that race-based
affirmative action in higher education would not be
constitutionally justified after another 25 years, at least
absent something not “expect[ed].” Ibid. And various
Members of the Court wrote separate opinions explicitly
referencing the Court’s 25-year limit.
 Justice O’Connor’s opinion for the Court stated: “We
expect that 25 years from now, the use of racial
preferences will no longer be necessary to further
the interest approved today.” Ibid. JUSTICE THOMAS expressly concurred in “the Court’s
holding that racial discrimination in higher
education admissions will be illegal in 25 years.” Id.,
at 351 (opinion concurring in part and dissenting in
part).
 JUSTICE THOMAS, joined here by Justice Scalia,
reiterated “the Court’s holding” that race-based
affirmative action in higher education “will be
unconstitutional in 25 years” and “that in 25 years
the practices of the Law School will be illegal,” while
also stating that “they are, for the reasons I have
given, illegal now.” Id., at 375–376.
 Justice Kennedy referred to “the Court’s
pronouncement that race-conscious admissions
programs will be unnecessary 25 years from now.”
Id., at 394 (dissenting opinion).
 Justice Ginsburg, joined by Justice Breyer,
acknowledged the Court’s 25-year limit but
questioned it, writing that “one may hope, but not
firmly forecast, that over the next generation’s span,
progress toward nondiscrimination and genuinely
4 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
KAVANAUGH, J., concurring
equal opportunity will make it safe to sunset
affirmative action.” Id., at 346 (concurring opinion).
In allowing race-based affirmative action in higher
education for another generation—and only for another
generation—the Court in Grutter took into account
competing considerations. The Court recognized the
barriers that some minority applicants to universities still
faced as of 2003, notwithstanding the progress made since
Bakke. See Grutter, 539 U. S., at 343. The Court stressed,
however, that “there are serious problems of justice
connected with the idea of preference itself.” Id., at 341(internal quotation marks omitted). And the Court added
that a “core purpose of the Fourteenth Amendment was to
do away with all governmentally imposed discrimination
based on race.” Ibid. (internal quotation marks omitted).
The Grutter Court also emphasized the equal protection
principle that racial classifications, even when otherwise
permissible, must be a “ ‘temporary matter,’ ” and “must be
limited in time.” Id., at 342 (quoting Croson, 488 U. S., at
510 (plurality opinion of O’Connor, J.)). The requirement of
a time limit “reflects that racial classifications, however
compelling their goals, are potentially so dangerous that
they may be employed no more broadly than the interest
demands. Enshrining a permanent justification for racial
preferences would offend this fundamental equal protection
principle.” Grutter, 539 U. S., at 342.
Importantly, the Grutter Court saw “no reason to exempt
race-conscious admissions programs from the requirement
that all governmental use of race must have a logical end
point.” Ibid. The Court reasoned that the “requirement
that all race-conscious admissions programs have a
termination point assures all citizens that the deviation
from the norm of equal treatment of all racial and ethnic
groups is a temporary matter, a measure taken in the
service of the goal of equality itself.” Ibid. (internal
Cite as: 600 U. S. ____ (2023) 5
KAVANAUGH, J., concurring
quotation marks and alteration omitted). The Court
therefore concluded that race-based affirmative action
programs in higher education, like other racial
classifications, must be “limited in time.” Ibid.
The Grutter Court’s conclusion that race-based
affirmative action in higher education must be limited in
time followed not only from fundamental equal protection
principles, but also from this Court’s equal protection
precedents applying those principles. Under those
precedents, racial classifications may not continue
indefinitely. For example, in the elementary and secondary
school context after Brown v. Board of Education, 347 U. S.
483 (1954), the Court authorized race-based student
assignments for several decades—but not indefinitely into
the future. See, e.g., Board of Ed. of Oklahoma City Public
Schools v. Dowell, 498 U. S. 237, 247–248 (1991); Pasadena
City Bd. of Ed. v. Spangler, 427 U. S. 424, 433–434, 436
(1976); Swann v. Charlotte-Mecklenburg Bd. of Ed., 402
U. S. 1, 31–32 (1971); cf. McDaniel v. Barresi, 402 U. S. 39,
41 (1971).
In those decisions, this Court ruled that the race-based
“injunctions entered in school desegregation cases” could
not “operate in perpetuity.” Dowell, 498 U. S., at 248.
Consistent with those decisions, the Grutter Court ruled
that race-based affirmative action in higher education
likewise could not operate in perpetuity.
As of 2003, when Grutter was decided, many race-based
affirmative action programs in higher education had been
operating for about 25 to 35 years. Pointing to the Court’s
precedents requiring that racial classifications be
“temporary,” Croson, 488 U. S., at 510 (plurality opinion of
O’Connor, J.), the petitioner in Grutter, joined by the United
States, argued that race-based affirmative action in higher
education could continue no longer. See Brief for Petitioner
21–22, 30–31, 33, 42, Brief for United States 26–27, in
Grutter v. Bollinger, O. T. 2002, No. 02–241.
6 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
KAVANAUGH, J., concurring
The Grutter Court rejected those arguments for ending
race-based affirmative action in higher education in 2003.
But in doing so, the Court struck a careful balance. The
Court ruled that narrowly tailored race-based affirmative
action in higher education could continue for another
generation. But the Court also explicitly rejected any
“permanent justification for racial preferences,” and
therefore ruled that race-based affirmative action in higher
education could continue only for another generation. 539
U. S., at 342–343.
Harvard and North Carolina would prefer that the Court
now ignore or discard Grutter’s 25-year limit on race-based
affirmative action in higher education, or treat it as a mere
aspiration. But the 25-year limit constituted an important
part of Justice O’Connor’s nuanced opinion for the Court in
Grutter. Indeed, four of the separate opinions in Grutter
discussed the majority opinion’s 25-year limit, which belies
any suggestion that the Court’s reference to it was
insignificant or not carefully considered.
In short, the Court in Grutter expressly recognized the
serious issues raised by racial classifications—particularly
permanent or long-term racial classifications. And the
Court “assure[d] all citizens” throughout America that “the
deviation from the norm of equal treatment” in higher
education could continue for another generation, and only
for another generation. Ibid. (internal quotation marks
omitted).
A generation has now passed since Grutter, and about 50
years have gone by since the era of Bakke and DeFunis v.
Odegaard, 416 U. S. 312 (1974), when race-based
affirmative action programs in higher education largely
began. In light of the Constitution’s text, history, and
precedent, the Court’s decision today appropriately
respects and abides by Grutter’s explicit temporal limit on
the use of race-based affirmative action in higher
Cite as: 600 U. S. ____ (2023) 7
KAVANAUGH, J., concurring
education.1
JUSTICE SOTOMAYOR, JUSTICE KAGAN, and JUSTICE
JACKSON disagree with the Court’s decision. I respect their
views. They thoroughly recount the horrific history of
slavery and Jim Crow in America, cf. Bakke, 438 U. S., at395–402 (opinion of Marshall, J.), as well as the continuing
effects of that history on African Americans today. And
they are of course correct that for the last five decades,
Bakke and Grutter have allowed narrowly tailored race-
based affirmative action in higher education.
But I respectfully part ways with my dissenting
colleagues on the question of whether, under this Court’s
precedents, race-based affirmative action in higher
education may extend indefinitely into the future. The
dissents suggest that the answer is yes. But this Court’s
precedents make clear that the answer is no. See Grutter,
539 U. S., at 342–343; Dowell, 498 U. S., at 247–248;
Croson, 488 U. S., at 510 (plurality opinion of O’Connor, J.).
To reiterate: For about 50 years, many institutions of
higher education have employed race-based affirmative
action programs. In the abstract, it might have been
debatable how long those race-based admissions programs
could continue under the “temporary matter”/“limited in
time” equal protection principle recognized and applied by
this Court. Grutter, 539 U. S., at 342 (internal quotation
marks omitted); cf. Dowell, 498 U. S., at 247–248. But in
2003, the Grutter Court applied that temporal equal
——————
1 The Court’s decision will first apply to the admissions process for the
college class of 2028, which is the next class to be admitted. Some might
have debated how to calculate Grutter’s 25-year period—whether it ends
with admissions for the college class of 2028 or instead for the college
class of 2032. But neither Harvard nor North Carolina argued that
Grutter’s 25-year period ends with the class of 2032 rather than the class
of 2028. Indeed, notwithstanding the 25-year limit set forth in Grutter,
neither university embraced any temporal limit on race-based
affirmative action in higher education, or identified any end date for its
continued use of race in admissions. Ante, at 30–34.
8 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
KAVANAUGH, J., concurring
protection principle and resolved the debate: The Court
declared that race-based affirmative action in higher
education could continue for another generation, and only
for another generation, at least absent something
unexpected. Grutter, 539 U. S., at 343. As I have explained,
the Court’s pronouncement of a 25-year period—as both an
extension of and an outer limit to race-based affirmative
action in higher education—formed an important part of
the carefully constructed Grutter decision. I would abide by
that temporal limit rather than discarding it, as today’s
dissents would do.
To be clear, although progress has been made since Bakke
and Grutter, racial discrimination still occurs and the
effects of past racial discrimination still persist. Federal
and state civil rights laws serve to deter and provide
remedies for current acts of racial discrimination. And
governments and universities still “can, of course, act to
undo the effects of past discrimination in many permissible
ways that do not involve classification by race.” Croson, 488
U. S., at 526 (Scalia, J., concurring in judgment) (internal
quotation marks omitted); see id., at 509 (plurality opinion
of O’Connor, J.) (“the city has at its disposal a whole array
of race-neutral devices to increase the accessibility of city
contracting opportunities to small entrepreneurs of all
races”); ante, at 39–40; Brief for Petitioner 80–86; Reply
Brief in No. 20–1199, pp. 25–26; Reply Brief in No. 21–707,
pp. 23–26.
In sum, the Court’s opinion today is consistent with and
follows from the Court’s equal protection precedents, and I
join the Court’s opinion in full.
Cite as: 600 U. S. ____ (2023) 1
SOTOMAYOR, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
Nos. 20–1199 and 21–707
_________________
STUDENTS FOR FAIR ADMISSIONS, INC.,
PETITIONER
20–1199 v.
PRESIDENT AND FELLOWS OF
HARVARD COLLEGE
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIRST CIRCUIT
STUDENTS FOR FAIR ADMISSIONS, INC.,
PETITIONER
21–707 v.
UNIVERSITY OF NORTH CAROLINA, ET AL.
ON WRIT OF CERTIORARI BEFORE JUDGMENT TO THE UNITED
STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
[June 29, 2023]
JUSTICE SOTOMAYOR, with whom JUSTICE KAGAN and
JUSTICE JACKSON join,* dissenting.
The Equal Protection Clause of the Fourteenth Amend-
ment 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 constitu-
tional necessity of racially integrated schools in light of the
——————
*JUSTICE JACKSON did not participate in the consideration or decision
of the case in No. 20–1199 and joins this opinion only as it applies to the
case in No. 21–707.
2 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
SOTOMAYOR, J., dissenting
harm inflicted by segregation and the “importance of edu-
cation 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 uni-
versities to consider race in a limited way and for the lim-
ited purpose of promoting the important benefits of racial
diversity. This limited use of race has helped equalize edu-
cational 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 dec-
ades of precedent and momentous progress. It holds that
race can no longer be used in a limited way in college ad-
missions to achieve such critical benefits. In so holding, the
Court cements a superficial rule of colorblindness as a con-
stitutional 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 edu-
cation, 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 equal-
ity embodied in the Fourteenth Amendment, I dissent.
I
A
Equal educational opportunity is a prerequisite to achiev-
ing 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 ca-
pacity to engage in self-rule were vital. At the same time,
American society was structured around the profitable in-
stitution that was slavery, which the original Constitution
Cite as: 600 U. S. ____ (2023) 3
SOTOMAYOR, J., dissenting
protected. The Constitution initially limited the power of
Congress to restrict the slave trade, Art. I, §9, cl. 1, ac-
corded Southern States additional electoral power by count-
ing 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 Af-
rican enslaved persons were forcibly brought to our shores,
Congress adopted the Thirteenth Amendment to the Con-
stitution, which abolished “slavery” and “involuntary servi-
tude, except as a punishment for crime.” §1. “Like all great
historical transformations,” emancipation was a move-
ment, “not a single event” owed to any single individual, in-
stitution, 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 abolition-
ist 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 in-
tense desire to rise out of their condition by means of edu-
cation.” W. E. B. Du Bois, Black Reconstruction in America
4 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
SOTOMAYOR, J., dissenting
1860–1880, p. 638 (1935); see J. Anderson, The Education
of Blacks in the South 1860–1935, p. 7 (1988). Black Amer-
icans thus insisted, in the words of Frederick Douglass,
“that in a country governed by the people, like ours, educa-
tion of the youth of all classes is vital to its welfare, pros-
perity, 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 rati-
fication, the Southern States replaced slavery with “a sys-
tem 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 ex-
panded their criminal laws, which in turn “permitted invol-
untary servitude as a punishment” for convicted Black per-
sons. 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 la-
bor contract to work for a white employer or face prosecu-
tion for vagrancy.” The Second Founding 48. State laws
Cite as: 600 U. S. ____ (2023) 5
SOTOMAYOR, J., dissenting
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 South-
ern whites and was designed to intimidate, subjugate, and
control newly emancipated Black people. See Slavery by
Another Name 5–6, 53. The Thirteenth Amendment, with-
out 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 peo-
ple in the Southern States and the lack of a “general dispo-
sition 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 guar-
antee of equality in the Equal Protection Clause of the
6 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
SOTOMAYOR, J., dissenting
Amendment. That Clause commands that “[n]o State shall
. . . deny to any person within its jurisdiction the equal pro-
tection 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 citi-
zens . . . 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, leav-
ing 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 ex-
panded in 1866, which established a federal agency to pro-
vide certain benefits to refugees and newly emancipated
freedmen. See Act of Mar. 3, 1865, ch. 90, 13 Stat. 507; Act
of July 16, 1866, ch. 200, 14 Stat. 173. For the Bureau, ed-
ucation “was the foundation upon which all efforts to assist
the freedmen rested.” E. Foner, Reconstruction: America’s
Unfinished Revolution 1863–1877, p. 144 (1988). Con-
sistent with that view, the Bureau provided essential “fund-
ing for black education during Reconstruction.” Id., at 97.
Black people were the targeted beneficiaries of the Bu-
reau’s programs, especially when it came to investments in
education in the wake of the Civil War. Each year sur-
rounding the passage of the Fourteenth Amendment, the
Bureau “educated approximately 100,000 students, nearly
all of them black,” and regardless of “degree of past disad-
vantage.” E. Schnapper, Affirmative Action and the Legis-
lative History of the Fourteenth Amendment, 71 Va. L. Rev.
Cite as: 600 U. S. ____ (2023) 7
SOTOMAYOR, J., dissenting
753, 781 (1985). The Bureau also provided land and fund-
ing to establish some of our Nation’s Historically Black Col-
leges 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, Autobiog-
raphy 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 con-
dition.” Bureau Refugees, Freedmen and Abandoned
Lands, Sixth Semi-Annual Report on Schools for Freedmen
60 (July 1, 1868).1 The Bureau also “expended a total of
$407,752.21 on black colleges, and only $3,000 on white col-
leges” 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”). Oppo-
nents argued that the Act created harmful racial classifica-
tions that favored Black people and disfavored white Amer-
icans. 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
——————
1 As JUSTICE THOMAS acknowledges, the HBCUs, including Howard
University, account for a high proportion of Black college graduates.
Ante, at 56–57 (concurring opinion). That reality cannot be divorced from
the history of anti-Black discrimination that gave rise to the HBCUs and
the targeted work of the Freedmen’s Bureau to help Black people obtain
a higher education. See HBCU Brief 13–15.
8 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
SOTOMAYOR, J., dissenting
“legislation for a particular class of the blacks to the exclu-
sion 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 Con-
gress 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 en-
acted by Southern States following ratification of the Thir-
teenth 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 en-
joyed 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, 14 Stat. 27. Similarly,
Section 2 established criminal penalties for subjecting ra-
cial 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 be-
cause he viewed it as providing Black citizens with special
treatment. See Messages and Papers 408, 413 (the Act is
Cite as: 600 U. S. ____ (2023) 9
SOTOMAYOR, J., dissenting
designed “to afford discriminating protection to colored per-
sons,” 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, Con-
gress 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, 16 Stat. 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 enslave-
ment. Act of July 28, 1866, 14 Stat. 317. Several times
during and after the passage of the Fourteenth Amend-
ment, 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.
14 Stat. 357, Res. No. 46, June 15, 1866; Act of Mar. 3, 1869,
ch. 122, 15 Stat. 301; Act of Mar. 3, 1873, 17 Stat. 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 “incon-
ceivable” that race-conscious college admissions are uncon-
stitutional. Bakke, 438 U. S., at 398 (opinion of Marshall,
J.).2
——————
2 By the time the Fourteenth Amendment was ratified by the States in
1868, “education had become a right of state citizenship in the constitu-
tion of every readmitted state,” including in North Carolina. D. Black,
The Fundamental Right to Education, 94 Notre Dame L. Rev. 1059, 1089
(2019); see also Brief for Black Women Scholars as Amici Curiae 9 (“The
herculean efforts of Black reformers, activists, and lawmakers during the
Reconstruction Era forever transformed State constitutional law; today,
thanks to the impact of their work, every State constitution contains lan-
guage guaranteeing the right to public education”).
10 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
SOTOMAYOR, J., dissenting
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 “sub-
stantive protections” of the Reconstruction Amendments
and the Civil Rights Acts. Id., at 391–392 (collecting cases).
That endeavor culminated with the Court’s shameful deci-
sion in Plessy v. Ferguson, 163 U. S. 537 (1896), which es-
tablished 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 in-
fected every sector of our society, from bathrooms to mili-
tary units and, crucially, schools. See Bakke, 438 U. S., at393–394 (opinion of Marshall, J.); see also generally R.
Rothstein, The Color of Law 17–176 (2017) (discussing var-
ious federal policies that promoted racial segregation).
In a powerful dissent, Justice Harlan explained in Plessy
that the Louisiana law at issue, which authorized segrega-
tion 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 cit-
izens,” 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 as-
signed to white persons.” Id., at 557. That is, the law “pro-
ceed[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,
Cite as: 600 U. S. ____ (2023) 11
SOTOMAYOR, J., dissenting
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 Pro-
tection 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 pre-
sent 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 chil-
dren] to schools previously attended only by white chil-
dren.” 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 sys-
tem wherein Black children receive inferior educational op-
portunities “solely because of their race,” denoting “inferi-
ority as to their status in the community.” 347 U. S., at 494,
and n. 10. Moreover, because education is “the very foun-
dation 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 democ-
racy, Brown recognized the constitutional necessity of a ra-
cially integrated system of schools where education is
“available to all on equal terms.” Ibid.
12 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
SOTOMAYOR, J., dissenting
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 in-
sufficient 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 educa-
tion.” 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 classi-
fications 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). In-
stead, 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 neu-
tral form to control school assignment plans by directing
that they be ‘colorblind’; that requirement, against the
background of segregation, would render illusory the prom-
ise of Brown”); Dayton Bd. of Ed. v. Brinkman, 443 U. S.
526, 538 (1979) (school board “had to do more than abandon
Cite as: 600 U. S. ____ (2023) 13
SOTOMAYOR, J., dissenting
its prior discriminatory purpose”; it “had an affirmative re-
sponsibility” to integrate); Keyes v. School Dist. No. 1, Den-
ver, 413 U. S. 189, 200 (1973) (“[T]he State automatically
assumes an affirmative duty” under Brown to eliminate the
vestiges of segregation).3
In so holding, this Court’s post-Brown decisions rejected
arguments advanced by opponents of integration suggest-
ing 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 oppo-
nents argued that Brown only required the admission of
Black students “to public schools on a racially nondiscrimi-
natory 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 color-
blind.’ ” 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, ar-
guing 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 oppor-
tunity.
Those rejected arguments mirror the Court’s opinion to-
day. The Court claims that Brown requires that students
——————
3 The majority suggests that “it required a Second Founding to undo”
programs that help ensure racial integration and therefore greater
equality in education. Ante, at 38. At the risk of stating the blindingly
obvious, and as Brown recognized, the Fourteenth Amendment was in-
tended to undo the effects of a world where laws systematically subordi-
nated Black people and created a racial caste system. Cf. Dred Scott v.
Sandford, 19 How. 393, 405 (1857). Brown and its progeny recognized
the need to take affirmative, race-conscious steps to eliminate that sys-
tem.
14 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
SOTOMAYOR, J., dissenting
be admitted “ ‘on a racially nondiscriminatory basis.’ ” Ante,
at 13. It distorts the dissent in Plessy to advance a color-
blindness 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 in-
vokes 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 rul-
ing 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 pro-
tective 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 Ameri-
cans]”). 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
Cite as: 600 U. S. ____ (2023) 15
SOTOMAYOR, J., dissenting
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 re-
ceives 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 ad-
missions. First, in Grutter v. Bollinger, 539 U. S. 306(2003), a majority of the Court endorsed the Bakke plural-
ity’s “view that student body diversity is a compelling state
interest that can justify the use of race in university admis-
sions,” 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 con-
sidered in college admissions “to remedy identified discrim-
ination” 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 constitu-
tionally 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 educa-
tional 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 sub-
stantial.’ ” Grutter, 539 U. S., at 324 (quoting Bakke, 438
16 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
SOTOMAYOR, J., dissenting
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 in-
creasingly 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 “legiti-
macy” 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 in-
terest” indeed, that universities pursue the benefits of ra-
cial 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 jurispru-
dence 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 associ-
ated with the university environment,” this Court’s prece-
dents recognize the imperative nature of diverse student
bodies on American college campuses. 539 U. S., at 329.
Consistent with the First Amendment, student body diver-
sity 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 omit-
ted). Indeed, as the Court recently reaffirmed in another
Cite as: 600 U. S. ____ (2023) 17
SOTOMAYOR, J., dissenting
school case, “learning how to tolerate diverse expressive ac-
tivities 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 dis-
senting 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 educa-
tional opportunity in a society structured by racial segrega-
tion 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 Uni-
versity 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 re-
quires acknowledgment of inequality.
18 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
SOTOMAYOR, J., dissenting
1
After more than a century of government policies enforc-
ing racial segregation by law, society remains highly segre-
gated. About half of all Latino and Black students attend a
racially homogeneous school with at least 75% minority stu-
dent enrollment.4 The share of intensely segregated minor-
ity schools (i.e., schools that enroll 90% to 100% racial mi-
norities) has sharply increased.5 To this day, the U. S.
Department of Justice continues to enter into desegregation
decrees with schools that have failed to “eliminat[e] the ves-
tiges of de jure segregation.” 6
Moreover, underrepresented minority students are
more likely to live in poverty and attend schools with a
high concentration of poverty.7 When combined with resi-
dential 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 fund-
ing disparities that result from local property taxation).8 In
——————
4 See GAO, Report to the Chairman, Committee on Education and La-
bor, House of Representatives, K–12 Education: Student Population Has
Significantly Diversified, but Many Schools Remain Divided Along Ra-
cial, Ethnic, and Economic Lines 13 (GAO–22–104737, June 2022) (here-
inafter GAO Report).
5 G. Orfield, E. Frankenberg, & J. Ayscue, Harming Our Common Fu-
ture: America’s Segregated Schools 65 Years After Brown 21 (2019).
6 E.g., Bennett v. Madison Cty. Bd. of Ed., No. 5:63–CV–613 (ND Ala.,
July 5, 2022), ECF Doc. 199, p. 19; id., at 6 (requiring school district to
ensure “the participation of black students” in advanced courses).
7 GAO Report 6, 13 (noting that 80% of predominantly Black and La-
tino schools have at least 75% of their students eligible for free or
reduced-price lunch—a proxy for poverty).
8 See also L. Clark, Barbed Wire Fences: The Structural Violence of
Education Law, 89 U. Chi. L. Rev. 499, 502, 512–517 (2022); Albert
Shanker Institute, B. Baker, M. DiCarlo, & P. Greene, Segregation and
Cite as: 600 U. S. ____ (2023) 19
SOTOMAYOR, J., dissenting
turn, underrepresented minorities are more likely to attend
schools with less qualified teachers, less challenging curric-
ula, lower standardized test scores, and fewer extracurric-
ular activities and advanced placement courses.9 It is thus
unsurprising that there are achievement gaps along racial
lines, even after controlling for income differences.10
Systemic inequities disadvantaging underrepresented
racial minorities exist beyond school resources. Students of
color, particularly Black students, are disproportionately
disciplined or suspended, interrupting their academic pro-
gress and increasing their risk of involvement with the
criminal justice system.11 Underrepresented minorities are
less likely to have parents with a postsecondary education
who may be familiar with the college application process.12
Further, low-income children of color are less likely to at-
tend preschool and other early childhood education pro-
grams that increase educational attainment.13 All of these
——————
School Funding: How Housing Discrimination Reproduces Unequal Op-
portunity 17–19 (Apr. 2022).
9 See Brief for 25 Harvard Student and Alumni Organizations as Amici
Curiae 6–15 (collecting sources).
10 GAO Report 7; see also Brief for Council of the Great City Schools as
Amicus Curiae 11–14 (collecting sources).
11 See J. Okonofua & J. Eberhardt, Two Strikes: Race and the Disci-
plining of Young Students, 26 Psychol. Sci. 617 (2015) (a national survey
showed that “Black students are more than three times as likely to be
suspended or expelled as their White peers”); Brief for Youth Advocates
and Experts on Educational Access as Amici Curiae 14–15 (describing
investigation in North Carolina of a public school district, which found
that Black students were 6.1 times more likely to be suspended than
white students).
12 See, e.g., Dept. of Education, National Center for Education Statis-
tics, Digest of Education Statistics (2021) (Table 104.70) (showing that
59% of white students and 78% of Asian students have a parent with a
bachelor’s degree or higher, while the same is true for only 25% of Latino
students and 33% of Black students).
13 R. Crosnoe, K. Purtell, P. Davis-Kean, A. Ansari, & A. Benner, The
Selection of Children From Low-Income Families into Preschool, 52 J.
20 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
SOTOMAYOR, J., dissenting
interlocked factors place underrepresented minorities mul-
tiple 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 un-
derrepresented racial minorities equal access to educa-
tional 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 In-
stitute of Technology et al. as Amici Curiae 32. “Because
talent lives everywhere, but opportunity does not, there are
undoubtedly talented students with great academic poten-
tial 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 en-
roll in institutions of higher education than their white
peers.14
Given the central role that education plays in breaking
the cycle of racial inequality, these structural barriers rein-
force other forms of inequality in communities of color. See
E. Wilson, Monopolizing Whiteness, 134 Harv. L. Rev.
——————
Developmental Psychology 11 (2016); A. Kenly & A. Klein, Early Child-
hood Experiences of Black Children in a Diverse Midwestern Suburb, 24
J. African American Studies 130, 136 (2020).
14 Dept. of Education, National Center for Education, Institute of Edu-
cational Science, The Condition of Education 2022, p. 24 (2020) (fig. 16).
Cite as: 600 U. S. ____ (2023) 21
SOTOMAYOR, J., dissenting
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 de-
mocracy”). Stark racial disparities exist, for example, in
unemployment rates,15 income levels,16 wealth and home-
ownership,17 and healthcare access.18 See also Schuette v.
BAMN, 572 U. S. 291, 380–381 (2014) (SOTOMAYOR, J., dis-
senting) (noting the “persistent racial inequality in soci-
ety”); Gratz, 539 U. S., at 299–301 (Ginsburg, J., dissenting)
(cataloging racial disparities in employment, poverty,
healthcare, housing, consumer transactions, and educa-
tion).
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 demo-
cratic 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 ex-
clusion. Because “[c]ontext matters” when reviewing race-
conscious college admissions programs, Grutter, 539 U. S.,
——————
15 ProQuest Statistical Abstract of the United States: 2023, p. 402 (Ta-
ble 622) (noting Black and Latino adults are more likely to be unem-
ployed).
16 Id., at 173 (Table 259).
17 A. McCargo & J. Choi, Closing the Gaps: Building Black Wealth
Through Homeownership (2020) (fig. 1).
18 Dept. of Commerce, Census Bureau, Health Insurance Coverage in
the United States: 2021, p. 9 (fig. 5); id., at 29 (Table C–1), https://www.
census.gov/library/publications/2022/demo/p60-278.html (noting racial
minorities, particularly Latinos, are less likely to have health insurance
coverage).
22 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
SOTOMAYOR, J., dissenting
at 327, this reality informs the exigency of respondents’ cur-
rent admissions policies and their racial diversity goals.
i
For much of its history, UNC was a bastion of white su-
premacy. Its leadership included “slaveholders, the leaders
of the Ku Klux Klan, the central figures in the white su-
premacy 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, en-
forced its own Jim Crow regulations, and punished any dis-
sent 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 Col-
lection, 1963–1966, UNC Wilson Special Collections Li-
brary. Even then, the university admitted only a handful
of underrepresented racial minorities, and those students
suffered constant harassment, humiliation, and isolation. 3
App. 1685. UNC officials openly resisted racial integration
well into the 1980s, years after the youngest Member of this
Court was born.19 Id., at 1688–1690. During that period,
——————
19 In 1979, prompted by lawsuits filed by civil rights lawyers under Ti-
tle VI, the U. S. Department of Health, Education, and Welfare “revoked
UNC’s federal funding for its continued noncompliance” with Brown. 3
App. 1688; see Adams v. Richardson, 351 F. Supp. 636, 637 (DC 1972);
Adams v. Califano, 430 F. Supp. 118, 121 (DC 1977). North Carolina
sued the Federal Government in response, and North Carolina Senator
Jesse Helms introduced legislation to block federal desegregation efforts.
3 App. 1688. UNC praised those actions by North Carolina public offi-
cials. Ibid. The litigation ended in 1981, after the Reagan administra-
tion settled with the State. See North Carolina v. Department of Educa-
tion, No. 79–217–CIV–5 (EDNC, July 17, 1981) (Consent Decree).
Cite as: 600 U. S. ____ (2023) 23
SOTOMAYOR, J., dissenting
Black students faced racial epithets and stereotypes, re-
ceived 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 subjuga-
tion 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 harass-
ment, isolation, and tokenism.20 Plus, the student body re-
mains 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 uni-
versities in our country, “stood beside church and state as
the third pillar of a civilization built on bondage.” C. Wil-
der, Ebony & Ivy: Race, Slavery, and the Troubled History
of America’s Universities 11 (2013). From Harvard’s found-
ing, slavery and racial subordination were integral parts of
the institution’s funding, intellectual production, and cam-
pus life. Harvard and its donors had extensive financial
ties to, and profited from, the slave trade, the labor of en-
slaved people, and slavery-related investments. As Har-
vard now recognizes, the accumulation of this wealth was
“vital to the University’s growth” and establishment as an
——————
20 See 1 App. 20–21 (campus climate survey showing inter alia that “91
percent of students heard insensitive or disparaging racial remarks
made by other students”); 2 id., at 1037 (Black student testifying that a
white student called him “the N word” and, on a separate occasion at a
fraternity party, he was “told that no slaves were allowed in”); id., at 955
(student testifying that he was “the only African American student in the
class,” which discouraged him from speaking up about racially salient
issues); id., at 762–763 (student describing that being “the only Latina”
made it “hard to speak up” and made her feel “foreign” and “an outsider”).
24 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
SOTOMAYOR, J., dissenting
elite, national institution. Harvard & the Legacy of Slav-
ery, Report by the President and Fellows of Harvard Col-
lege 7 (2022) (Harvard Report). Harvard suppressed anti-
slavery views, and enslaved persons “served Harvard
presidents and professors and fed and cared for Harvard
students” on campus. Id., at 7, 15.
Exclusion and discrimination continued to be a part of
campus life well into the 20th century. Harvard’s leader-
ship and prominent professors openly promoted “ ‘race sci-
ence,’ ” racist eugenics, and other theories rooted in racial
hierarchy. Id., at 11. Activities to advance these theories
“took place on campus,” including “intrusive physical exam-
inations” and “photographing of unclothed” students. Ibid.
The university also “prized the admission of academically
able Anglo-Saxon students from elite backgrounds—includ-
ing wealthy white sons of the South.” Id., at 44. By con-
trast, an average of three Black students enrolled at Har-
vard 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 overwhelm-
ingly 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 profes-
sors, 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 his-
torical exclusion of women of color from these institutions).
Today, benefactors with ties to slavery and white suprem-
acy continue to be memorialized across campus through
“statues, buildings, professorships, student houses, and the
Cite as: 600 U. S. ____ (2023) 25
SOTOMAYOR, J., dissenting
like.” Harvard Report 11. Black and Latino applicants ac-
count 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 aliena-
tion 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 cam-
pus remain. See, e.g., 4 App. 1564–1601. For example, Har-
vard has reported that “far too many black students at Har-
vard 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 hous-
ing 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,” how-
ever, 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 reck-
oned with their past and its lingering effects. Acknowledg-
ing the reality that race has always mattered and continues
to matter, these universities have established institutional
goals of diversity and inclusion. Consistent with equal pro-
tection principles and this Court’s settled law, their policies
use race in a limited way with the goal of recruiting, admit-
ting, 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’ com-
mendable undertaking and entrenches racial inequality in
higher education. The majority opinion does so by turning
26 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
SOTOMAYOR, J., dissenting
a blind eye to these truths and overruling decades of prece-
dent, “content for now to disguise” its ruling as an applica-
tion 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 pur-
poses, 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 constitu-
tional and comply with Title VI of the Civil Rights Act of
1964, 42 U. S. C. §2000d et seq.21
——————
21 The same standard that applies under the Equal Protection Clause
guides the Court’s review under Title VI, as the majority correctly recog-
nizes. See ante, at 6, n. 2; see also Regents of Univ. of Cal. v. Bakke, 438
U. S. 265, 325 (1978) (Brennan, J., concurring). JUSTICE GORSUCH argues
that “Title VI bears independent force” and holds universities to an even
higher standard than the Equal Protection Clause. Ante, at 25. Because
no party advances JUSTICE GORSUCH’s argument, see ante, at 6, n. 2, the
Court properly declines to address it under basic principles of party
presentation. See United States v. Sineneng-Smith, 590 U. S. ___, ___
(2020) (slip op., at 3). Indeed, JUSTICE GORSUCH’s approach calls for even
more judicial restraint. If petitioner could prevail under JUSTICE
GORSUCH’s statutory analysis, there would be no reason for this Court to
reach the constitutional question. See Escambia County v. McMillan,
466 U. S. 48, 51 (1984) (per curiam). In a statutory case, moreover, stare
decisis carries “enhanced force,” as it would be up to Congress to “correct
any mistake it sees” with “our interpretive decisions.” Kimble v. Marvel
Entertainment, LLC, 576 U. S. 446, 456 (2015). JUSTICE
GORSUCH wonders why the dissent, like the majority, does not “engage”
with his statutory arguments. Ante, at 16. The answer is simple: This
Court plays “the role of neutral arbiter of matters the parties present.”
Greenlaw v. United States, 554 U. S. 237, 243 (2008). Petitioner made a
Cite as: 600 U. S. ____ (2023) 27
SOTOMAYOR, J., dissenting
A
Answering the question whether Harvard’s and UNC’s
policies survive strict scrutiny under settled law is straight-
forward, both because of the procedural posture of these
cases and because of the narrow scope of the issues pre-
sented by petitioner Students for Fair Admissions, Inc.
(SFFA).22
These cases arrived at this Court after two lengthy trials.
Harvard and UNC introduced dozens of fact witnesses, ex-
pert 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 Har-
vard and UNC. See 397 F. Supp. 3d 126, 133–206 (Mass.
2019) (Harvard I ); 567 F. Supp. 3d 580, 588–667 (MDNC
2021) (UNC). The First Circuit affirmed in the Harvard
case, finding “no error” in the District Court’s thorough
opinion. 980 F. 3d 157, 204 (2020) (Harvard II ). SFFA then
filed petitions for a writ of certiorari in both cases, which
the Court granted. 595 U. S. ___ (2022).23
The Court granted certiorari on three questions: (1)
whether the Court should overrule Bakke, Grutter, and
——————
strategic litigation choice, and in our adversarial system, it is not up to
this Court to come up with “wrongs to right” on behalf of litigants. Id., at
244 (internal quotation marks omitted).
22 SFFA is a 501(c)(3) nonprofit organization founded after this Court’s
decision in Fisher I, 570 U. S. 297 (2013). App. to Pet. for Cert. in No.
20–1199, p. 10. Its original board of directors had three self-appointed
members: Edward Blum, Abigail Fisher (the plaintiff in Fisher), and
Richard Fisher. See ibid.23 Bypassing the Fourth Circuit’s opportunity to review the District
Court’s opinion in the UNC case, SFFA sought certiorari before judg-
ment, urging that, “[p]aired with Harvard,” the UNC case would “allow
the Court to resolve the ongoing validity of race-based admissions under
both Title VI and the Constitution.” Pet. for Cert. in No. 21–707, p. 27.
28 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
SOTOMAYOR, J., dissenting
Fisher; or, alternatively, (2) whether UNC’s admissions pro-
gram is narrowly tailored, and (3) whether Harvard’s ad-
missions program is narrowly tailored. See Brief for Peti-
tioner 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 appli-
cation 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 ad-
missions 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 Peti-
tioner 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 diver-
sity 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 alterna-
tives do not meet those criteria. UNC, 567 F. Supp. 3d,
Cite as: 600 U. S. ____ (2023) 29
SOTOMAYOR, J., dissenting
at 648. All of SFFA’s proposals are methodologically
flawed because they rest on “ ‘terribly unrealistic’ ” assump-
tions about the applicant pools. Id., at 643–645, 647. For
example, as to one set of proposals, SFFA’s expert “unreal-
istically assumed” that “all of the top students in the candi-
date 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 admis-
sions, 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 pro-
posed top percentage plans,24 for example, are based on a
made-up and complicated admissions index that requires
UNC to “access . . . real-time data for all high school stu-
dents.” Ibid. UNC is then supposed to use that index,
which “would change every time any student took a stand-
ardized 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.25
——————
24 Generally speaking, top percentage plans seek to enroll a percentage
of the graduating high school students with the highest academic cre-
dentials. See, e.g., Fisher II, 579 U. S., at 373 (describing the University
of Texas’ Top Ten Percent Plan).
25 SFFA and JUSTICE GORSUCH reach beyond the factfinding below and
argue that universities in States that have banned the use of race in col-
lege admissions have achieved racial diversity through efforts such as
increasing socioeconomic preferences, so UNC could do the same. Brief
for Petitioner 85–86; ante, at 14. Data from those States disprove that
theory. Institutions in those States experienced “ ‘an immediate and pre-
cipitous decline in the rates at which underrepresented-minority stu-
dents applied . . . were admitted . . . and enrolled.’ ” Schuette v. BAMN,
30 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
SOTOMAYOR, J., dissenting
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 Peti-
tioner 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 204.26
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 prefer-
ences for low-income applicants and eliminates the use of
race and legacy preferences. Id., at 193; Brief for Petitioner
——————
572 U. S. 291, 384–390 (2014) (SOTOMAYOR, J., dissenting); see infra, at
63–64. In addition, UNC “already engages” in race-neutral efforts fo-
cused on socioeconomic status, including providing “exceptional levels of
financial aid” and “increased and targeted recruiting.” UNC, 567
F. Supp. 3d, at 665.
JUSTICE GORSUCH argues that he is simply “recount[ing] what SFFA
has argued.” Ante, at 14, n. 4. That is precisely the point: SFFA’s argu-
ments were not credited by the court below. “[W]e are a court of review,
not of first view.” Cutter v. Wilkinson, 544 U. S. 709, 718, n. 7 (2005).
JUSTICE GORSUCH also suggests it is inappropriate for the dissent to re-
spond to the majority by relying on materials beyond the findings of fact
below. Ante, at 14, n. 4. There would be no need for the dissent to do
that if the majority stuck to reviewing the District Court’s careful fact-
finding with the deference it owes to the trial court. Because the majority
has made a different choice, the dissent responds.
26 SFFA also argues that Harvard discriminates against Asian Ameri-
can students. Brief for Petitioner 72–75. As explained below, this claim
does not fit under Grutter’s strict scrutiny framework, and the courts be-
low did not err in rejecting that claim. See infra, at 59–60.
Cite as: 600 U. S. ____ (2023) 31
SOTOMAYOR, J., dissenting
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 rat-
ings. 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 op-
erate 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 re-
jected.” Ibid. After all, race-conscious admissions seek to
improve racial diversity. Race cannot, however, be “‘deci-
sive’ 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 re-
cent 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 in-
clude interviews with alumni and admissions officers, as
well as consideration of a whole range of information, such
as grades, test scores, recommendation letters, and per-
sonal essays, by several committees. Id., at 165–166. Con-
sistent with that “individualized, holistic review process,”
32 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
SOTOMAYOR, J., dissenting
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 compet-
itive 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 ad-
mitted class.” Id., at 170, 191. To diversify its class, Har-
vard awards “tips” for a variety of reasons, including geo-
graphic 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 pro-
cess,” “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 190.27 Indeed,
Harvard’s admissions process is so competitive and the use
of race is so limited and flexible that, as “SFFA’s own ex-
pert’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 Har-
vard’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
——————
27 JUSTICE GORSUCH suggests that only “applicants of certain races may
receive a ‘tip’ in their favor.” Ante, at 9. To the extent JUSTICE GORSUCH
means that some races are not eligible to receive a tip based on their
race, there is no evidence in the record to support this statement. Har-
vard “does not explicitly prioritize any particular racial group over any
other and permits its admissions officers to evaluate the racial and eth-
nic identity of every student in the context of his or her background and
circumstances.” Harvard I, 397 F. Supp. 3d 126, 190, n. 56 (Mass. 2019).
Cite as: 600 U. S. ____ (2023) 33
SOTOMAYOR, J., dissenting
eliminating the use of race in admissions “would reduce Af-
rican American representation . . . from 14% to 6% and His-
panic 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 ex-
ample, 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 represen-
tation from 3.5% to 6.8% (a 94% increase). 579 U. S., at
384.28
——————
28 Relying on a single footnote in the First Circuit’s opinion, the Court
claims that Harvard’s program is unconstitutional because it “has led to
an 11.1% decrease in the number of Asian-Americans admitted to Har-
vard.” Ante, at 27. The Court of Appeals, however, merely noted that
the United States, at the time represented by a different administration,
argued that “absent the consideration of race, [Asian American] repre-
sentation would increase from 24% to 27%,” an 11% increase. Harvard
II, 980 F. 3d, at 191, n. 29. Taking those calculations as correct, the
Court of Appeals recognized that such an impact from the use of race on
the overall makeup of the class is consistent with the impact that this
Court’s precedents have tolerated. Ibid.
The Court also notes that “race is determinative for at least some—if
not many—of the students” admitted at UNC. Ante, at 27. The District
Court in the UNC case found that “race plays a role in a very small per-
centage of decisions: 1.2% for in-state students and 5.1% for out-of-state
students.” 567 F. Supp. 3d 580, 634 (MDNC 2021). The limited use of
race at UNC thus has a smaller effect than at Harvard and is also con-
sistent with the Court’s precedents. In addition, contrary to the major-
ity’s suggestion, such effect does not prove that “race alone . . . explains
the admissions decisions for hundreds if not thousands of applicants to
UNC each year.” Ante, at 28, n. 6. As the District Court found, UNC
(like Harvard) “engages a highly individualized, holistic review of each
applicant’s file, which considers race flexibly as a ‘plus factor’ as one
among many factors in its individualized consideration of each and every
applicant.” 567 F. Supp. 3d, at 662; see id., at 658 (finding that UNC
“rewards different kinds of diversity, and evaluates a candidate within
34 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
SOTOMAYOR, J., dissenting
Finally, the courts below correctly concluded that Har-
vard complies with this Court’s repeated admonition that
colleges and universities cannot define their diversity inter-
est “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 var-
ied considerably year to year, a pattern “inconsistent with
the imposition of a racial quota or racial balancing.” Har-
vard 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 Har-
vard’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 “spe-
cific number firmly in mind,” “does not transform [Har-
vard’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
——————
the context of their lived experience”); id., at 659 (“The parties stipulated,
and the evidence shows, that readers evaluate applicants by taking into
consideration dozens of criteria,” and even SFFA’s expert “concede[d]
that the University’s admissions process is individualized and holistic”).
Stated simply, race is not “a defining feature of any individual applica-
tion.” Id., at 662; see also infra, at 48.
Cite as: 600 U. S. ____ (2023) 35
SOTOMAYOR, J., dissenting
is forced to reconstruct the record and conduct its own fac-
tual 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 Har-
vard 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 in-
creased 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 cor-
responding 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 ad-
mitted applicants “varies relatively little in absolute terms
for [those classes] is unsurprising and reflects the fact that
the racial makeup of Harvard’s applicant pool also varies
very little over this period.” Id., at 188–189. Thus, properly
understood, the data show that Harvard “does not utilize
quotas and does not engage in racial balancing.” Id., at
189.29
——————
29 The majority does not dispute that it has handpicked data from a
truncated period, ignoring the broader context of that data and what the
data reflect. Instead, the majority insists that its selected data prove
that Harvard’s “precise racial preferences” “operate like clockwork.”
Ante, at 31–32, n. 7. The Court’s conclusion that such racial preferences
must be responsible for an “unyielding demographic composition of [the]
36 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
SOTOMAYOR, J., dissenting
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’ pro-
grams render the programs insufficiently “narrow” under
the strict scrutiny framework that the Court’s precedents
command. Ante, at 22. In reality, however, “the Court to-
day 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 ma-
jority 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 preci-
sion the interest being asserted”); Fisher II, 579 U. S., at
389 (THOMAS, J., dissenting) (race-conscious admissions
——————
class,” ibid., misunderstands basic principles of statistics. A number of
factors (most notably, the demographic composition of the applicant pool)
affect the demographic composition of the entering class. Assume, for
example, that Harvard admitted students based solely on standardized
test scores. If test scores followed a normal distribution (even with dif-
ferent averages by race) and were relatively constant over time, and if
the racial shares of total applicants were also relatively constant over
time, one would expect the same “unyielding demographic composition
of [the] class.” Ibid. That would be true even though, under that hypo-
thetical scenario, Harvard does not consider race in admissions at all. In
other words, the Court’s inference that precise racial preferences must
be the cause of relatively constant racial shares of admitted students is
specious.
Cite as: 600 U. S. ____ (2023) 37
SOTOMAYOR, J., dissenting
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 “perni-
cious 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 Peo-
ple’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 insti-
tutional legitimacy.
The Court offers no justification, much less “a ‘special jus-
tification,’ ” for its costly endeavor. Dobbs v. Jackson
Women’s Health Organization, 597 U. S. ___, ___ (2022)
(joint opinion of BREYER, SOTOMAYOR, and KAGAN, JJ., dis-
senting) (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
38 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
SOTOMAYOR, J., dissenting
op., at 6–7). At bottom, the six unelected members of to-
day’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 ex-
plicitly 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 disestab-
lish 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 inter-
est 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).30
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,
——————
30 In the context of policies that “benefit rather than burden the minor-
ity,” the Court has adhered to a strict scrutiny framework despite multi-
ple Members of this Court urging that “the mandate of the Equal Protec-
tion Clause” favors applying a less exacting standard of review. Schuette,
572 U. S., at 373–374 (SOTOMAYOR, J., dissenting) (collecting cases).
Cite as: 600 U. S. ____ (2023) 39
SOTOMAYOR, J., dissenting
422 U. S. 873 (1975), for example, the Court held that it is
unconstitutional for border patrol agents to rely on a per-
son’s skin color as “a single factor” to justify a traffic stop
based on reasonable suspicion, but it remarked that “Mexi-
can appearance” could be “a relevant factor” out of many to
justify such a stop “at the border and its functional equiva-
lents.” Id., at 884–887; see also id., at 882 (recognizing that
“the border” includes entire metropolitan areas such as San
Diego, El Paso, and the South Texas Rio Grande Valley).31
The Court thus facilitated racial profiling of Latinos as a
law enforcement tool and did not adopt a race-blind rule.
The Court later extended this reasoning to border patrol
agents selectively referring motorists for secondary inspec-
tion at a checkpoint, concluding that “even if it be assumed
that such referrals are made largely on the basis of appar-
ent 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 in-
defensible 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 col-
lege admissions programs. In a footnote, the Court exempts
military academies from its ruling in light of “the poten-
tially distinct interests” they may present. Ante, at 22, n. 4.
——————
31 The Court’s “dictum” that Mexican appearance can be one of many
factors rested on now-outdated quantitative premises. United States v.
Montero-Camargo, 208 F. 3d 1122, 1132 (CA9 2000).
40 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
SOTOMAYOR, J., dissenting
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 institu-
tions that are not parties here, including the religious uni-
versities 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 not-
ing that they rely on the use of race in their holistic admis-
sions 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, loca-
tion, size, and courses of study offered”). The Court’s carve-
out only highlights the arbitrariness of its decision and fur-
ther 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 classifica-
tions are constitutionally permissible if they advance a com-
pelling interest in a narrowly tailored way. Ante, at 23.
JUSTICE KAVANAUGH, too, agrees that the Constitution per-
mits the use of race if it survives strict scrutiny. Ante, at
2.32 JUSTICE THOMAS offers an “originalist defense of the
——————
32 JUSTICE KAVANAUGH agrees that the effects from the legacy of slav-
ery and Jim Crow continue today, citing Justice Marshall’s opinion in
Bakke. Ante, at 7 (citing 438 U. S., at 395–402). As explained above,
Justice Marshall’s view was that Bakke covered only a portion of the
Fourteenth Amendment’s sweeping reach, such that the Court’s higher
education precedents must be expanded, not constricted. See 438 U. S.,
Cite as: 600 U. S. ____ (2023) 41
SOTOMAYOR, J., dissenting
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 per-
mits “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” Con-
stitution, 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 com-
pelling to justify race-conscious measures.
Overruling decades of precedent, today’s newly consti-
tuted 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 “inescapa-
bly imponderable” objective that cannot justify race-conscious
affirmative action, ante, at 24, even though respondents’ ob-
jectives simply “mirror the ‘compelling interest’ this Court
——————
at 395–402 (opinion dissenting in part). Justice Marshall’s reading of
the Fourteenth Amendment does not support JUSTICE KAVANAUGH’S and
the majority’s opinions.
42 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
SOTOMAYOR, J., dissenting
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 [univer-
sity’s admissions policy] repeatedly cites Supreme Court
precedent as guideposts”).33 At bottom, without any new
factual or legal justification, the Court overrides its
longstanding holding that diversity in higher education is
of compelling value.
To avoid public accountability for its choice, the Court
seeks cover behind a unique measurability requirement of
its own creation. None of this Court’s precedents, however,
requires that a compelling interest meet some threshold
level of precision to be deemed sufficiently compelling. In
fact, this Court has recognized as compelling plenty of in-
terests that are equally or more amorphous, including the
“intangible” interest in preserving “public confidence in ju-
dicial 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]aintain-
ing 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 integ-
rity of the Medal of Honor” is a “compelling interes[t]”); Sa-
ble 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
——————
33 There is no dispute that respondents’ compelling diversity objectives
are “substantial, long-standing, and well documented.” UNC, 567
F. Supp. 3d, at 655; Harvard II, 980 F. 3d, at 186–187. SFFA did not
dispute below that respondents have a compelling interest in diversity.
See id., at 185; Harvard I, 397 F. Supp. 3d, at 133; Tr. of Oral Arg. in No.
21–707, p. 121. And its expert agreed that valuable educational benefits
flow from diversity, including richer and deeper learning, reduced bias,
and more creative problem solving. 2 App. in No. 21–707, p. 546. SFFA’s
counsel also emphatically disclaimed the issue at trial. 2 App. in No. 20–
1199, p. 548 (“Diversity and its benefits are not on trial here”).
Cite as: 600 U. S. ____ (2023) 43
SOTOMAYOR, J., dissenting
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 in-
tegration 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 recog-
nize 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 lim-
ited use of race in college admissions to promote the educa-
tional benefits that flow from diversity. 438 U. S., at 311–
315. It is that narrower interest, which the Court has reaf-
firmed 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 au-
thority. 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 “ad-
44 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
SOTOMAYOR, J., dissenting
vantages” underrepresented minority students “at the ex-
pense of ” other students. Ante, at 27.
That is not the role race plays in holistic admissions.
Consistent with the Court’s precedents, respondents’ holis-
tic 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 multi-
tude of dimensions. Respondents’ policies allow them to se-
lect students with various unique attributes, including tal-
ented athletes, artists, scientists, and musicians. They also
allow respondents to assemble a class with diverse view-
points, including students who have different political ide-
ologies and academic interests, who have struggled with
different types of disabilities, who are from various socioec-
onomic 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 stu-
dents. In fact, racial groups that are not underrepresented
tend to benefit disproportionately from such a system. Har-
vard’s holistic system, for example, provides points to appli-
cants who qualify as “ALDC,” meaning “athletes, legacy ap-
plicants, applicants on the Dean’s Interest List [primarily
relatives of donors], and children of faculty or staff.” Har-
vard II, 980 F. 3d, at 171 (noting also that “SFFA does not
challenge the admission of this large group”). ALDC appli-
cants are predominantly white: Around 67.8% are white,
11.4% are Asian American, 6% are Black, and 5.6% are La-
tino. 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 en-
trenched racial inequality in K–12 education, see infra, at
Cite as: 600 U. S. ____ (2023) 45
SOTOMAYOR, J., dissenting
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 pre-
cisely why underrepresented racial minorities remain un-
derrepresented. The Court’s suggestion that an already ad-
vantaged racial group is “disadvantaged” because of a
limited use of race is a myth.
The majority’s true objection appears to be that a lim-
ited 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 in-
crease in the representation of racial minorities at institu-
tions 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 sup-
ports the Court’s shocking proposition, which echoes argu-
ments 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 un-
derrepresented groups that for far too long were denied ad-
mission through the force of law, including at Harvard and
UNC. Quite the opposite: A racially integrated vision of so-
46 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
SOTOMAYOR, J., dissenting
ciety, in which institutions reflect all sectors of the Ameri-
can 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 332.34
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 individu-
alized 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
——————
34 The Court suggests that promoting the Fourteenth Amendment’s vi-
sion of equality is a “radical” claim of judicial power and the equivalent
of “pick[ing] winners and losers based on the color of their skin.” Ante,
at 38. The law sometimes requires consideration of race to achieve racial
equality. Just like drawing district lines that comply with the Voting
Rights Act may require consideration of race along with other demo-
graphic factors, achieving racial diversity in higher education requires
consideration of race along with “age, economic status, religious and po-
litical persuasion, and a variety of other demographic factors.” Shaw v.
Reno, 509 U. S. 630, 646 (1993) (“[R]ace consciousness does not lead in-
evitably to impermissible race discrimination”). Moreover, in ordering
the admission of Black children to all-white schools “with all deliberate
speed” in Brown v. Board of Education, 349 U. S. 294, 301 (1955), this
Court did not decide that the Black children should receive an “ad-
vantag[e] . . . at the expense of” white children. Ante, at 27. It simply
enforced the Equal Protection Clause by leveling the playing field.
Cite as: 600 U. S. ____ (2023) 47
SOTOMAYOR, J., dissenting
trial that racial self-identification was an important com-
ponent of their application because without it they would
not be able to present a full version of themselves. For ex-
ample, Rimel Mwamba, a Black UNC alumna, testified that
it was “really important” that UNC see who she is “holisti-
cally 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 ex-
plain 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 Ameri-
can, 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 prohib-
its universities from considering a student’s essay that ex-
plains “how race affected [that student’s] life.” Ante, at 39.
This supposed recognition that universities can, in some sit-
uations, consider race in application essays is nothing but
an attempt to put lipstick on a pig. The Court’s opinion cir-
cumscribes universities’ ability to consider race in any form
by meticulously gutting respondents’ asserted diversity in-
terests. 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
48 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
SOTOMAYOR, J., dissenting
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 “de-
termination,” 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 thou-
sands of applicants”). The Court’s precedents already re-
quire 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 Har-
vard’s ‘whole-person’ admissions philosophy, Harvard’s ad-
missions officers engage in a highly nuanced assessment of
each applicant’s background and qualifications”). After ex-
tensive discovery and two lengthy trials, neither SFFA nor
the majority can point to a single example of an underrepre-
sented 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 ad-
ministrators 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 differ-
ent perspectives than white people amounts to a “stereo-
type.” Ante, at 29.
It is not a stereotype to acknowledge the basic truth that
Cite as: 600 U. S. ____ (2023) 49
SOTOMAYOR, J., dissenting
young people’s experiences are shaded by a societal struc-
ture 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’—in-
structing 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 conver-
sations occur regardless of socioeconomic background or
any other aspect of a student’s self-identification. They oc-
cur 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 con-
tributes 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 num-
bers 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” be-
cause diversity allows students to “learn there is no ‘minor-
ity viewpoint’ but rather a variety of viewpoints among mi-
nority students.” Id., at 319–320. By preventing
respondents from achieving their diversity objectives, it is
the Court’s opinion that facilitates stereotyping on Ameri-
can college campuses.
To be clear, today’s decision leaves intact holistic college
admissions and recruitment efforts that seek to enroll di-
verse classes without using racial classifications. Universi-
ties should continue to use those tools as best they can to
50 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
SOTOMAYOR, J., dissenting
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 Or-
nelas, 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 pic-
ture” 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 part-
nerships with disadvantaged high schools); see also ante, at
51, 53, 55–56 (THOMAS, J., concurring) (arguing universi-
ties 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 in-
heritance or otherwise”); ante, at 8 (KAVANAUGH, J., concur-
ring) (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
Cite as: 600 U. S. ____ (2023) 51
SOTOMAYOR, J., dissenting
would exclude a talented young biologist who struggled to
maintain above-average grades in humanities classes. And
it would exclude a student whose freshman-year grades
were poor because of a family crisis but who got herself back
on track in her last three years of school, only to find herself
just outside of the top decile of her class.” Fisher II, 579
U. S., at 386. A myopic focus on academic ratings “does not
lead to a diverse student body.” Ibid.35
2
As noted above, this Court suggests that the use of race
in college admissions is unworkable because respondents’
objectives are not sufficiently “measurable,” “focused,” “con-
crete,” 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 pro-
motes racial diversity on college campuses. Instead, it an-
nounces 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 univer-
sities 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
——————
35 Today’s decision is likely to generate a plethora of litigation by dis-
appointed college applicants who think their credentials and personal
qualities should have secured them admission. By inviting those chal-
lenges, the Court’s opinion promotes chaos and incentivizes universities
to convert their admissions programs into inflexible systems focused on
mechanical factors, which will harm all students.
52 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
SOTOMAYOR, J., dissenting
Constructors, Inc., 515 U. S., at 237). Indeed, the Court
gives the game away when it holds that, to the extent re-
spondents 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 “ar-
bitrary.” Ante, at 25. To start, the racial categories that
the Court finds troubling resemble those used across the
Federal Government for data collection, compliance report-
ing, 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 stud-
ies’ ” 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, mul-
tiple, 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, stu-
dents can select subcategories or provide more detail in
Cite as: 600 U. S. ____ (2023) 53
SOTOMAYOR, J., dissenting
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 evi-
dence that the racial categories that respondents use are
unworkable.36
4
Cherry-picking language from Grutter, the Court also
holds that Harvard’s and UNC’s race-conscious programs
are unconstitutional because they do not have a specific ex-
piration date. Ante, at 30–34. This new durational require-
ment 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 neces-
sary” 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.
——————
36 The Court suggests that the term “Asian American” was developed
by respondents because they are “uninterested” in whether Asian Amer-
ican students “are adequately represented.” Ante, at 25; see also ante, at
5 (GORSUCH, J., concurring) (suggesting that “[b]ureaucrats” devised a
system that grouped all Asian Americans into a single racial category).
That argument offends the history of that term. “The term ‘Asian Amer-
ican’ was coined in the late 1960s by Asian American activists—mostly
college students—to unify Asian ethnic groups that shared common ex-
periences of race-based violence and discrimination and to advocate for
civil rights and visibility.” Brief for Asian American Legal Defense and
Education Fund et al. as Amici Curiae 9 (AALDEF Brief ).
54 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
SOTOMAYOR, J., dissenting
Grutter, according to the majority, requires that universi-
ties 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 previ-
ously 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 re-
garding its admissions policies”).
Grutter’s requirement that universities engage in peri-
odic reviews so the use of race can end “as soon as practica-
ble” is well grounded in the need to ensure that race is “em-
ployed 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 ra-
cial 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
Cite as: 600 U. S. ____ (2023) 55
SOTOMAYOR, J., dissenting
why this Court’s precedents have never imposed the major-
ity’s strict deadline: Institutions cannot predict the future.
Speculating about a day when consideration of race will be-
come unnecessary is arbitrary at best and frivolous at
worst. There is no constitutional duty to engage in that
type of shallow guesswork.37
Harvard and UNC engage in the ongoing review that the
Court’s precedents demand. They “use [their] data to scru-
tinize the fairness of [their] admissions program[s]; to as-
sess 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 (quot-
ing Bakke, 438 U. S., at 323). Universities cannot blindly
operate their limited race-conscious programs without re-
gard for any quantitative information. “Increasing minor-
ity enrollment [is] instrumental to th[e] educational bene-
fits” that respondents seek to achieve, Fisher II, 579 U. S.,
at 381, and statistics, data, and numbers “have some value
——————
37 JUSTICE KAVANAUGH’s reading, in particular, is quite puzzling. Un-
like the majority, which concludes that respondents’ programs should
have an end point, JUSTICE KAVANAUGH suggests that Grutter itself has
an expiration date. He agrees that racial inequality persists, ante, at 7–
8, but at the same time suggests that race-conscious affirmative action
was only necessary in “another generation,” ante, at 4. He attempts to
analogize expiration dates of court-ordered injunctions in desegregation
cases, ante, at 5, but an expiring injunction does not eliminate the un-
derlying constitutional principle. His musings about different college
classes, ante, at 7, n. 1, are also entirely beside the point. Nothing in
Grutter’s analysis turned on whether someone was applying for the class
of 2028 or 2032. That reading of Grutter trivializes the Court’s precedent
by reducing it to an exercise in managing academic calendars. Grutter
is no such thing.
56 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
SOTOMAYOR, J., dissenting
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’ abil-
ity to meet their diversity goals.
5
JUSTICE THOMAS, for his part, offers a multitude of argu-
ments 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 ho-
listic admissions leads to the “inevitable” “underperfor-
mance” 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 de-
clined 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 meth-
odological 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 se-
lective school is associated with higher graduation rates
and higher earnings for [underrepresented minority] stu-
dents—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-
Cite as: 600 U. S. ____ (2023) 57
SOTOMAYOR, J., dissenting
conscious admissions programs, and achieved successful le-
gal careers, despite having different educational back-
grounds than their peers. A discredited hypothesis that the
Court previously rejected is no reason to overrule prece-
dent.
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 mislead-
ing conclusions,” “overstate the amount of mismatch,” “pre-
clude 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 hy-
pothesis”). 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 ech-
oes “tropes of stigma” that “were employed to oppose Recon-
struction 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 his-
torically 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
58 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
SOTOMAYOR, J., dissenting
Brown’s transformative legacy. School segregation “has a
detrimental effect” on Black students by “denoting the infe-
riority” of “their status in the community” and by
“ ‘depriv[ing] them of some of the benefits they would re-
ceive 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 “inclu-
sive 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 objection-
able.” Id., at 327.
Relatedly, JUSTICE THOMAS suggests that race-conscious
college admissions policies harm racial minorities by in-
creasing affinity-based activities on college campuses.
Ante, at 46. Not only is there no evidence of a causal con-
nection 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 im-
prove their visibility on college campuses and “decreas[e]
racial stigma and vulnerability to stereotypes” caused by
“conditions of racial isolation” and “tokenization.” U. Jaya-
kumar, Why Are All Black Students Still Sitting Together
in the Proverbial College Cafeteria?, Higher Education Re-
search Institute at UCLA (Oct. 2015); see also Brief for Re-
spondent-Students in No. 21–707, p. 42 (collecting student
testimony demonstrating that “affinity groups beget im-
portant 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 in-
tellectual, emotional, and social challenges”).
Citing no evidence, JUSTICE THOMAS also suggests that
race-conscious admissions programs discriminate against
Cite as: 600 U. S. ____ (2023) 59
SOTOMAYOR, J., dissenting
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 appli-
cants vis-à-vis white applicants through the use of the per-
sonal 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 Pro-
fessors of Economics as Amici Curiae 24. It is also true,
however, that there was a lengthy trial to test those allega-
tions, 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 classifica-
tions. The personal rating is a facially race-neutral compo-
nent of Harvard’s admissions policy.38 Therefore, even as-
suming 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 ex-
pert 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 ste-
reotypes in our society. It is precisely because racial dis-
crimination persists in our society, however, that the use of
——————
38 Before 2018, Harvard’s admissions procedures were silent on the use
of race in connection with the personal rating. Harvard II, 980 F. 3d, at
169. Harvard later modified its instructions to say explicitly that “ ‘an
applicant’s race or ethnicity should not be considered in assigning the
personal rating.’ ” Ibid.
60 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
SOTOMAYOR, J., dissenting
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 Amer-
ican 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 compre-
hensive understanding of their background” to explain “the
value of their unique background, heritage, and perspec-
tive.” 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 admis-
sions allow Harvard to “valu[e ] the diversity of Asian Amer-
ican applicants’ experiences.” Harvard College Brief 23.
Moreover, the admission rates of Asian Americans at in-
stitutions with race-conscious admissions policies, includ-
ing at Harvard, have “been steadily increasing for decades.”
Harvard II, 980 F. 3d, at 198.39 By contrast, Asian Ameri-
can enrollment declined at elite universities that are pro-
hibited by state law from considering race. See AALDEF
Brief 27; Brief for 25 Diverse, California-Focused Bar As-
sociations 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
——————
39 At Harvard, “Asian American applicants are accepted at the same
rate as other applicants and now make up more than 20% of Harvard’s
admitted classes,” even though “only about 6% of the United States pop-
ulation is Asian American.” Harvard I, 397 F. Supp. 3d, at 203.
Cite as: 600 U. S. ____ (2023) 61
SOTOMAYOR, J., dissenting
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 nonethe-
less. 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 expecta-
tions 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 con-
crete reliance interests because they have spent significant
resources in an effort to comply with this Court’s prece-
dents. “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
62 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
SOTOMAYOR, J., dissenting
quotation marks omitted). Universities also have “ex-
pended 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 al-
ter their admissions practices.” Id., at 45; see also Brief for
Massachusetts Institute of Technology et al. as Amici Cu-
riae 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 ac-
cepting federal funds. See Brief for United States as Ami-
cus 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 underrepre-
sented minorities on college campuses. This Court presup-
poses 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., dissent-
ing) (“[It] is like throwing away your umbrella in a rain-
storm because you are not getting wet”).
Experience teaches that the consequences of today’s deci-
sion will be destructive. The two lengthy trials below
simply confirmed what we already knew: Superficial color-
blindness in a society that systematically segregates oppor-
tunity will cause a sharp decline in the rates at which un-
derrepresented minority students enroll in our Nation’s
Cite as: 600 U. S. ____ (2023) 63
SOTOMAYOR, J., dissenting
colleges and universities, turning the clock back and undo-
ing 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 admis-
sions will take Black student enrollment at elite universi-
ties back to levels this country saw in the early 1960s).
After California amended its State Constitution to pro-
hibit race-conscious college admissions in 1996, for exam-
ple, “freshmen enrollees from underrepresented minority
groups dropped precipitously” in California public universi-
ties. 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 cam-
puses, where the rates of admission of underrepresented
groups “dropped by 50% or more.” Id., at 4, 12. At the Uni-
versity 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 representa-
tion 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 opportuni-
ties” 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 mak-
ing up 52% of all California public high school graduates.
Id., at 24; see also Brief for University of Michigan as Ami-
cus 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,
64 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
SOTOMAYOR, J., dissenting
through present); id., at 24–25 (explaining that the univer-
sity’s “experience is largely consistent with other schools
that do not consider race as a factor in admissions,” includ-
ing, for example, the University of Oklahoma’s most pres-
tigious campus).
The costly result of today’s decision harms not just re-
spondents and students but also our institutions and dem-
ocratic 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 di-
verse 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 Direc-
tor 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 di-
verse 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 be-
come 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 univer-
sities 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 perfor-
Cite as: 600 U. S. ____ (2023) 65
SOTOMAYOR, J., dissenting
mance of the Nation’s military” because it fueled “percep-
tions 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 ad-
ministrations 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 recog-
nizes 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 civil-
ian universities implicating those interests anyway.
Amici also tell the Court that race-conscious college ad-
missions are critical for providing equitable and effective
public services. State and local governments require public
servants educated in diverse environments who can “iden-
tify, understand, and respond to perspectives” in “our in-
creasingly diverse communities.” Brief for Southern Gov-
ernors as Amici Curiae 5–8 (Southern Governors Brief ).
Likewise, increasing the number of students from un-
derrepresented backgrounds who join “the ranks of medical
professionals” improves “healthcare access and health out-
comes in medically underserved communities.” Brief for
Massachusetts et al. as Amici Curiae 10; see Brief for Asso-
ciation of American Medical Colleges et al. as Amici Curiae
5 (noting also that all physicians become better practition-
ers when they learn in a racially diverse environment). So
too, greater diversity within the teacher workforce im-
proves student academic achievement in primary public
66 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
SOTOMAYOR, J., dissenting
schools. Brief for Massachusetts et al. as Amici Curiae 15–
17; see Brief for American Federation of Teachers as Ami-
cus Curiae 8 (“[T]here are few professions with broader so-
cial 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 Asso-
ciation 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 law-
yers 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 econ-
omy. 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 inclu-
sive 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 there-
fore often the entry ticket to top jobs in workplaces where
important decisions are made. The overwhelming majority
Cite as: 600 U. S. ____ (2023) 67
SOTOMAYOR, J., dissenting
of Members of Congress have a college degree.40 So do most
business leaders.41 Indeed, many state and local leaders in
North Carolina attended college in the UNC system. See
Southern Governors Brief 8. More than half of judges on
the North Carolina Supreme Court and Court of Appeals
graduated from the UNC system, for example, and nearly a
third of the Governor’s cabinet attended UNC. Ibid. A less
diverse pipeline to these top jobs accumulates wealth and
power unequally across racial lines, exacerbating racial dis-
parities 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 in-
stitutions, including this one, and whether those institu-
tions work for them. Tr. of Oral Arg. in No. 21–707, p. 171
(“The Court is going to hear from 27 advocates in this sit-
ting 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 Solic-
itor General Elizabeth Prelogar)).42
——————
40 K. Schaeffer, Pew Research Center, The Changing Face of Congress
in 8 Charts (Feb. 7, 2023).
41 See J. Martelli & P. Abels, The Education of a Leader: Educational
Credentials and Other Characteristics of Chief Executive Officers, J. of
Educ. for Bus. 216 (2010); see also J. Moody, Where the Top Fortune 500
CEOs Attended College, U. S. News & World Report (June 16, 2021).
42 Racial inequality in the pipeline to this institution, too, will deepen.
See J. Fogel, M. Hoopes, & G. Liu, Law Clerk Selection and Diversity:
Insights From Fifty Sitting Judges of the Federal Courts of Appeals 7–8
68 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
SOTOMAYOR, J., dissenting
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 increas-
ingly diverse society, reserving “positions of influence, af-
fluence, 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 pro-
motes indifference to inequality and ignores the reality of
race.
* * *
True equality of educational opportunity in racially di-
verse 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 pro-
tection 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 institu-
tions attempting to remedy their legacies of racial exclusion
must operate with a blindfold.
Today, this Court overrules decades of precedent and im-
poses 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
——————
(2022) (noting that from 2005 to 2017, 85% of Supreme Court law clerks
were white, 9% were Asian American, 4% were Black, and 1.5% were
Latino, and about half of all clerks during that period graduated from
two law schools: Harvard and Yale); Brief for American Bar Association
as Amicus Curiae 25 (noting that more than 85% of lawyers, more than
70% of Article III judges, and more than 80% of state judges in the United
States are white, even though white people represent about 60% of the
population).
Cite as: 600 U. S. ____ (2023) 69
SOTOMAYOR, J., dissenting
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 ex-
ercise of power, the opinion today will serve only to high-
light the Court’s own impotence in the face of an America
whose cries for equality resound. As has been the case be-
fore 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).
Cite as: 600 U. S. ____ (2023) 1
JACKSON, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
Nos. 20–1199 and 21–707
_________________
STUDENTS FOR FAIR ADMISSIONS, INC.,
PETITIONER
20–1199 v.
PRESIDENT AND FELLOWS OF
HARVARD COLLEGE
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIRST CIRCUIT
STUDENTS FOR FAIR ADMISSIONS, INC.,
PETITIONER
21–707 v.
UNIVERSITY OF NORTH CAROLINA, ET AL.
ON WRIT OF CERTIORARI BEFORE JUDGMENT TO THE UNITED
STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
[June 29, 2023]
JUSTICE JACKSON, with whom JUSTICE SOTOMAYOR and
JUSTICE KAGAN join, dissenting.*
Gulf-sized race-based gaps exist with respect to the
health, wealth, and well-being of American citizens. They
were created in the distant past, but have indisputably
been passed down to the present day through the genera-
tions. Every moment these gaps persist is a moment in
which this great country falls short of actualizing one of its
foundational principles—the “self-evident” truth that all of
us are created equal. Yet, today, the Court determines that
——————
*JUSTICE JACKSON did not participate in the consideration or decision
of the case in No. 20–1199, and issues this opinion with respect to the
case in No. 21–707.
2 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
JACKSON, J., dissenting
holistic admissions programs like the one that the Univer-
sity of North Carolina (UNC) has operated, consistent with
Grutter v. Bollinger, 539 U. S. 306 (2003), are a problem
with respect to achievement of that aspiration, rather than
a viable solution (as has long been evident to historians, so-
ciologists, and policymakers alike).
JUSTICE SOTOMAYOR has persuasively established that
nothing in the Constitution or Title VI prohibits institu-
tions from taking race into account to ensure the racial di-
versity of admits in higher education. I join her opinion
without qualification. I write separately to expound upon
the universal benefits of considering race in this context, in
response to a suggestion that has permeated this legal ac-
tion from the start. Students for Fair Admissions (SFFA)
has maintained, both subtly and overtly, that it is unfair for
a college’s admissions process to consider race as one factor
in a holistic review of its applicants. See, e.g., Tr. of Oral
Arg. 19.
This contention blinks both history and reality in ways
too numerous to count. But the response is simple: Our
country has never been colorblind. Given the lengthy his-
tory of state-sponsored race-based preferences in America,
to say that anyone is now victimized if a college considers
whether that legacy of discrimination has unequally ad-
vantaged its applicants fails to acknowledge the well-
documented “intergenerational transmission of inequality”
that still plagues our citizenry.1
It is that inequality that admissions programs such as
UNC’s help to address, to the benefit of us all. Because the
majority’s judgment stunts that progress without any basis
in law, history, logic, or justice, I dissent.
——————
1 M. Oliver & T. Shapiro, Black Wealth/White Wealth: A New Perspec-
tive on Racial Inequality 128 (1997) (Oliver & Shapiro) (emphasis de-
leted).
Cite as: 600 U. S. ____ (2023) 3
JACKSON, J., dissenting
I
A
Imagine two college applicants from North Carolina,
John and James. Both trace their family’s North Carolina
roots to the year of UNC’s founding in 1789. Both love their
State and want great things for its people. Both want to
honor their family’s legacy by attending the State’s flagship
educational institution. John, however, would be the sev-
enth generation to graduate from UNC. He is White.
James would be the first; he is Black. Does the race of these
applicants properly play a role in UNC’s holistic merits-
based admissions process?
To answer that question, “a page of history is worth a vol-
ume of logic.” New York Trust Co. v. Eisner, 256 U. S. 345,
349 (1921). Many chapters of America’s history appear nec-
essary, given the opinions that my colleagues in the major-
ity have issued in this case.
Justice Thurgood Marshall recounted the genesis:
“Three hundred and fifty years ago, the Negro was
dragged to this country in chains to be sold into slavery.
Uprooted from his homeland and thrust into bondage
for forced labor, the slave was deprived of all legal
rights. It was unlawful to teach him to read; he could
be sold away from his family and friends at the whim
of his master; and killing or maiming him was not a
crime. The system of slavery brutalized and dehuman-
ized both master and slave.” Regents of Univ. of Cal. v.
Bakke, 438 U. S. 265, 387–388 (1978).
Slavery should have been (and was to many) self-
evidently dissonant with our avowed founding principles.
When the time came to resolve that dissonance, eleven
States chose slavery. With the Union’s survival at stake,
Frederick Douglass noted, Black Americans in the South
“were almost the only reliable friends the nation had,” and
“but for their help . . . the Rebels might have succeeded in
4 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
JACKSON, J., dissenting
breaking up the Union.”2 After the war, Senator John Sher-
man defended the proposed Fourteenth Amendment in a
manner that encapsulated our Reconstruction Framers’
highest sentiments: “We are bound by every obligation, by
[Black Americans’] service on the battlefield, by their he-
roes who are buried in our cause, by their patriotism in the
hours that tried our country, we are bound to protect them
and all their natural rights.”3
To uphold that promise, the Framers repudiated this
Court’s holding in Dred Scott v. Sandford, 19 How. 393(1857), by crafting Reconstruction Amendments (and asso-
ciated legislation) that transformed our Constitution and
society.4 Even after this Second Founding—when the need
to right historical wrongs should have been clear beyond
cavil—opponents insisted that vindicating equality in this
manner slighted White Americans. So, when the Recon-
struction Congress passed a bill to secure all citizens “the
same [civil] right[s]” as “enjoyed by white citizens,” 14 Stat.
27, President Andrew Johnson vetoed it because it “discrim-
inat[ed] . . . in favor of the negro.”5
That attitude, and the Nation’s associated retreat from
Reconstruction, made prophesy out of Congressman Thad-
deus Stevens’s fear that “those States will all . . . keep up
——————
2 An Appeal to Congress for Impartial Suffrage, Atlantic Monthly (Jan.
1867), in 2 The Reconstruction Amendments: The Essential Documents
324 (K. Lash ed. 2021) (Lash).
3 Speech of Sen. John Sherman (Sept. 28, 1866) (Sherman), in id., at
276; see also W. Du Bois, Black Reconstruction in America 162 (1998)
(Du Bois).
4 See Sherman 276; M. Curtis, No State Shall Abridge: The Fourteenth
Amendment and the Bill of Rights 48, 71–75, 91, 173 (1986).
5 Message Accompanying Veto of the Civil Rights Bill (Mar. 27, 1866),
in Lash 145.
Cite as: 600 U. S. ____ (2023) 5
JACKSON, J., dissenting
this discrimination, and crush to death the hated freed-
men.”6 And this Court facilitated that retrenchment.7 Not
just in Plessy v. Ferguson, 163 U. S. 537 (1896), but “in al-
most every instance, the Court chose to restrict the scope of
the second founding.”8 Thus, thirteen years pre-Plessy, in
the Civil Rights Cases, 109 U. S. 3 (1883), our predecessors
on this Court invalidated Congress’s attempt to enforce the
Reconstruction Amendments via the Civil Rights Act of
1875, lecturing that “there must be some stage . . . when
[Black Americans] tak[e] the rank of a mere citizen, and
ceas[e] to be the special favorite of the laws.” Id., at 25. But
Justice Harlan knew better. He responded: “What the na-
tion, through Congress, has sought to accomplish in refer-
ence to [Black people] is—what had already been done in
every State of the Union for the white race—to secure and
protect rights belonging to them as freemen and citizens;
nothing more.” Id., at 61 (dissenting opinion).
Justice Harlan dissented alone. And the betrayal that
this Court enabled had concrete effects. Enslaved Black
people had built great wealth, but only for enslavers.9 No
surprise, then, that freedmen leapt at the chance to control
their own labor and to build their own financial security.10
Still, White southerners often “simply refused to sell land
to blacks,” even when not selling was economically foolish.11
To bolster private exclusion, States sometimes passed laws
forbidding such sales.12 The inability to build wealth
——————
6 Speech Introducing the [Fourteenth] Amendment (May 8, 1866), in
id., at 159; see Du Bois 670–710.
7 E. Foner, The Second Founding 125–167 (2019) (Foner).
8 Id., at 128.
9 M. Baradaran, The Color of Money: Black Banks and the Racial
Wealth Gap 9–11 (2017) (Baradaran).
10 Foner 179; see also Baradaran 15–16; I. Wilkerson, The Warmth of
Other Suns: The Epic Story of America’s Great Migration 37 (2010)
(Wilkerson).
11 Baradaran 18.
12 Ibid.
6 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
JACKSON, J., dissenting
through that most American of means forced Black people
into sharecropping roles, where they somehow always
tended to find themselves in debt to the landowner when
the growing season closed, with no hope of recourse against
the ever-present cooking of the books.13
Sharecropping is but one example of race-linked obstacles
that the law (and private parties) laid down to hinder the
progress and prosperity of Black people. Vagrancy laws
criminalized free Black men who failed to work for White
landlords.14 Many States barred freedmen from hunting or
fishing to ensure that they could not live without entering
de facto reenslavement as sharecroppers.15 A cornucopia of
laws (e.g., banning hitchhiking, prohibiting encouraging a
laborer to leave his employer, and penalizing those who
prompted Black southerners to migrate northward) en-
sured that Black people could not freely seek better lives
elsewhere.16 And when statutes did not ensure compliance,
state-sanctioned (and private) violence did.17
Thus emerged Jim Crow—a system that was, as much as
anything else, a comprehensive scheme of economic exploi-
tation to replace the Black Codes, which themselves had re-
placed slavery’s form of comprehensive economic exploita-
tion.18 Meanwhile, as Jim Crow ossified, the Federal
——————
13 R. Rothstein, The Color of Law: A Forgotten History of How Our Gov-
ernment Segregated America 154 (2017) (Rothstein); Baradaran 33–34;
Wilkerson 53–55.
14 Baradaran 20–21; Du Bois 173–179, 694–696, 698–699; R. Goluboff,
The Thirteenth Amendment and the Lost Origins of Civil Rights, 50
Duke L. J. 1609, 1656–1659 (2001) (Goluboff ); Wilkerson 152 (noting
persistence of this practice “well into the 1940s”).
15 Baradaran 20.
16 Goluboff 1656–1659 (recounting presence of these practices well into
the 20th century); Wilkerson 162–163.
17 Rothstein 154.
18 C. Black, The Lawfulness of the Segregation Decisions, 69 Yale L. J.
421, 424 (1960); Foner 47–48; Du Bois 179, 696; Baradaran 38–39.
Cite as: 600 U. S. ____ (2023) 7
JACKSON, J., dissenting
Government was “giving away land” on the western fron-
tier, and with it “the opportunity for upward mobility and a
more secure future,” over the 1862 Homestead Act’s three-
quarter-century tenure.19 Black people were exceedingly
unlikely to be allowed to share in those benefits, which by
one calculation may have advantaged approximately 46
million Americans living today.20
Despite these barriers, Black people persisted. Their so-
called Great Migration northward accelerated during and
after the First World War.21 Like clockwork, American cit-
ies responded with racially exclusionary zoning (and simi-
lar policies).22 As a result, Black migrants had to pay dis-
proportionately high prices for disproportionately subpar
housing.23 Nor did migration make it more likely for Black
people to access home ownership, as banks would not lend
to Black people, and in the rare cases banks would fund
home loans, exorbitant interest rates were charged.24 With
Black people still locked out of the Homestead Act givea-
way, it is no surprise that, when the Great Depression ar-
rived, race-based wealth, health, and opportunity gaps
were the norm.25
Federal and State Governments’ selective intervention
further exacerbated the disparities. Consider, for example,
——————
19 T. Shanks, The Homestead Act: A Major Asset-Building Policy in
American History, in Inclusion in the American Dream: Assets, Poverty,
and Public Policy 23–25 (M. Sherraden ed. 2005) (Shanks); see also Bara-
daran 18.
20 Shanks 32–37; Oliver & Shapiro 37–38.
21 Wilkerson 8–10; Rothstein 155.
22 Id., at 43–50; Baradaran 90–92.
23 Ibid.; Rothstein 172–173; Wilkerson 269–271.
24 Baradaran 90.
25 I. Katznelson, When Affirmative Action Was White: An Untold His-
tory of Racial Inequality in Twentieth-Century America 29–35 (2005)
(Katznelson).
8 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
JACKSON, J., dissenting
the federal Home Owners’ Loan Corporation (HOLC), cre-
ated in 1933.26 HOLC purchased mortgages threatened
with foreclosure and issued new, amortized mortgages in
their place.27 Not only did this mean that recipients of these
mortgages could gain equity while paying off the loan, suc-
cessful full payment would make the recipient a home-
owner.28 Ostensibly to identify (and avoid) the riskiest re-
cipients, the HOLC “created color-coded maps of every
metropolitan area in the nation.”29 Green meant safe; red
meant risky. And, regardless of class, every neighborhood
with Black people earned the red designation.30
Similarly, consider the Federal Housing Administration
(FHA), created in 1934, which insured highly desirable
bank mortgages. Eligibility for this insurance required an
FHA appraisal of the property to ensure a low default risk.31
But, nationwide, it was FHA’s established policy to provide
“no guarantees for mortgages to African Americans, or to
whites who might lease to African Americans,” irrespective
of creditworthiness.32 No surprise, then, that “[b]etween
1934 and 1968, 98 percent of FHA loans went to white
Americans,” with whole cities (ones that had a dispropor-
tionately large number of Black people due to housing seg-
regation) sometimes being deemed ineligible for FHA inter-
vention on racial grounds.33 The Veterans Administration
operated similarly.34
One more example: the Federal Home Loan Bank Board
——————
26 D. Massey & N. Denton, American Apartheid: Segregation and the
Making of the Underclass 51–53 (1993); Oliver & Shapiro 16–18.
27 Rothstein 63.
28 Id., at 63–64.
29 Id., at 64; see Oliver & Shapiro 16–18; Baradaran 105.
30 Rothstein 64.
31 Ibid.
32 Id., at 67.
33 Baradaran 108; see Rothstein 69–75.
34 Id., at 9, 13, 70.
Cite as: 600 U. S. ____ (2023) 9
JACKSON, J., dissenting
“chartered, insured, and regulated savings and loan associ-
ations from the early years of the New Deal.”35 But it did
“not oppose the denial of mortgages to African Americans
until 1961” (and even then opposed discrimination ineffec-
tively).36
The upshot of all this is that, due to government policy
choices, “[i]n the suburban-shaping years between 1930 and
1960, fewer than one percent of all mortgages in the nation
were issued to African Americans.”37 Thus, based on their
race, Black people were “[l]ocked out of the greatest mass-
based opportunity for wealth accumulation in American
history.”38
For present purposes, it is significant that, in so exclud-
ing Black people, government policies affirmatively oper-
ated—one could say, affirmatively acted—to dole out pref-
erences to those who, if nothing else, were not Black. Those
past preferences carried forward and are reinforced today
by (among other things) the benefits that flow to homeown-
ers and to the holders of other forms of capital that are hard
to obtain unless one already has assets.39
This discussion of how the existing gaps were formed is
merely illustrative, not exhaustive. I will pass over Con-
gress’s repeated crafting of family-, worker-, and retiree-
protective legislation to channel benefits to White people,
thereby excluding Black Americans from what was other-
wise “a revolution in the status of most working Ameri-
cans.”40 I will also skip how the G. I. Bill’s “creation of . . .
——————
35 Id., at 108.
36 Ibid.
37 R. Schragger, The Limits of Localism, 100 Mich. L. Rev. 371, 411,
n. 144 (2001); see also Rothstein 182–183.
38 Oliver & Shapiro 18.
39 Id., at 43–44; Baradaran 109, 253–254; A. Dickerson, Shining a
Bright Light on the Color of Wealth, 120 Mich. L. Rev. 1085, 1100 (2022)
(Dickerson).
40 Katznelson 53; see id., at 22, 29, 42–48, 53–61; Rothstein 31, 155–
156.
10 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
JACKSON, J., dissenting
middle-class America” (by giving $95 billion to veterans and
their families between 1944 and 1971) was “deliberately de-
signed to accommodate Jim Crow.”41 So, too, will I bypass
how Black people were prevented from partaking in the
consumer credit market—a market that helped White peo-
ple who could access it build and protect wealth.42 Nor will
time and space permit my elaborating how local officials’
racial hostility meant that even those benefits that Black
people could formally obtain were unequally distributed
along racial lines.43 And I could not possibly discuss every
way in which, in light of this history, facially race-blind pol-
icies still work race-based harms today (e.g., racially dispar-
ate tax-system treatment; the disproportionate location of
toxic-waste facilities in Black communities; or the deliber-
ate action of governments at all levels in designing inter-
state highways to bisect and segregate Black urban commu-
nities).44
The point is this: Given our history, the origin of persis-
tent race-linked gaps should be no mystery. It has never
been a deficiency of Black Americans’ desire or ability to, in
Frederick Douglass’s words, “stand on [their] own legs.”45
Rather, it was always simply what Justice Harlan recog-
nized 140 years ago—the persistent and pernicious denial
of “what had already been done in every State of the Union
for the white race.” Civil Rights Cases, 109 U. S., at 61 (dis-
senting opinion).
——————
41 Katznelson 113–114; see id., at 113–141; see also, e.g., id., at 139–
140 (Black veterans, North and South, were routinely denied loans that
White veterans received); Rothstein 167.
42 Baradaran 112–113.
43 Katznelson 22–23; Rothstein 167.
44 Id., at 54–56, 65, 127–131, 217; Stanford Institute for Economic Pol-
icy Research, Measuring and Mitigating Disparities in Tax Audits 1–7
(2023); Dickerson 1096–1097.
45 What the Black Man Wants: An Address Delivered in Boston, Mas-
sachusetts, on 26 January 1865, in 4 The Frederick Douglass Papers 68
(J. Blassingame & J. McKivigan eds. 1991).
Cite as: 600 U. S. ____ (2023) 11
JACKSON, J., dissenting
B
History speaks. In some form, it can be heard forever.
The race-based gaps that first developed centuries ago are
echoes from the past that still exist today. By all accounts,
they are still stark.
Start with wealth and income. Just four years ago, in
2019, Black families’ median wealth was approximately
$24,000.46 For White families, that number was approxi-
mately eight times as much (about $188,000).47 These
wealth disparities “exis[t] at every income and education
level,” so, “[o]n average, white families with college degrees
have over $300,000 more wealth than black families with
college degrees.”48 This disparity has also accelerated over
time—from a roughly $40,000 gap between White and
Black household median net worth in 1993 to a roughly
$135,000 gap in 2019.49 Median income numbers from 2019
tell the same story: $76,057 for White households, $98,174
for Asian households, $56,113 for Latino households, and
$45,438 for Black households.50
These financial gaps are unsurprising in light of the link
——————
46 Dickerson 1086 (citing data from 2019 Federal Reserve Survey of
Consumer Finances); see also Rothstein 184 (reporting, in 2017, even
lower median-wealth number of $11,000).
47 Dickerson 1086; see also Rothstein 184 (reporting even larger rela-
tive gap in 2017 of $134,000 to $11,000).
48 Baradaran 249; see also Dickerson 1089–1090; Oliver & Shapiro 94–
95, 100–101, 110–111, 197.
49 See Brief for National Academy of Education as Amicus Curiae 14–
15 (citing U. S. Census Bureau statistics).
50 Id., at 14 (citing U. S. Census Bureau statistics); Rothstein 184 (re-
porting similarly stark White/Black income gap numbers in 2017). Early
returns suggest that the COVID–19 pandemic exacerbated these dispar-
ities. See E. Derenoncourt, C. Kim, M. Kuhn, & M. Schularick, Wealth
of Two Nations: The U. S. Racial Wealth Gap, 1860–2020, p. 22 (Fed.
Reserve Bank of Minneapolis, Opportunity & Inclusive Growth Inst.,
Working Paper No. 59, June 2022) (Wealth of Two Nations); L. Bollinger
& G. Stone, A Legacy of Discrimination: The Essential Constitutionality
of Affirmative Action 103 (2023) (Bollinger & Stone).
12 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
JACKSON, J., dissenting
between home ownership and wealth. Today, as was true
50 years ago, Black home ownership trails White home
ownership by approximately 25 percentage points.51 More-
over, Black Americans’ homes (relative to White Ameri-
cans’) constitute a greater percentage of household wealth,
yet tend to be worth less, are subject to higher effective
property taxes, and generally lost more value in the Great
Recession.52
From those markers of social and financial unwellness
flow others. In most state flagship higher educational in-
stitutions, the percentage of Black undergraduates is lower
than the percentage of Black high school graduates in that
State.53 Black Americans in their late twenties are about
half as likely as their White counterparts to have college
degrees.54 And because lower family income and wealth
force students to borrow more, those Black students who do
graduate college find themselves four years out with about
$50,000 in student debt—nearly twice as much as their
White compatriots.55
As for postsecondary professional arenas, despite being
about 13% of the population, Black people make up only
about 5% of lawyers.56 Such disparity also appears in the
business realm: Of the roughly 1,800 chief executive officers
to have appeared on the well-known Fortune 500 list, fewer
than 25 have been Black (as of 2022, only six are Black).57
Furthermore, as the COVID–19 pandemic raged, Black-
owned small businesses failed at dramatically higher rates
——————
51 Id., at 87; Wealth of Two Nations 77–79.
52 Id., at 78, 89; Bollinger & Stone 94–95; Dickerson 1101.
53 Bollinger & Stone 99–100.
54 Id., at 99, and n. 58.
55 Dickerson 1088; Bollinger & Stone 100, and n. 63.
56 ABA, Profile of the Legal Profession 33 (2020).
57 Bollinger & Stone 106; Brief for HR Policy Association as Amicus
Curiae 18–19.
Cite as: 600 U. S. ____ (2023) 13
JACKSON, J., dissenting
than White-owned small businesses, partly due to the dis-
proportionate denial of the forgivable loans needed to sur-
vive the economic downturn.58
Health gaps track financial ones. When tested, Black
children have blood lead levels that are twice the rate of
White children—“irreversible” contamination working irre-
mediable harm on developing brains.59 Black (and Latino)
children with heart conditions are more likely to die than
their White counterparts.60 Race-linked mortality-rate dis-
parity has also persisted, and is highest among infants.61
So, too, for adults: Black men are twice as likely to die
from prostate cancer as White men and have lower 5-year
cancer survival rates.62 Uterine cancer has spiked in recent
years among all women—but has spiked highest for Black
women, who die of uterine cancer at nearly twice the rate
of “any other racial or ethnic group.”63 Black mothers are
up to four times more likely than White mothers to die as a
result of childbirth.64 And COVID killed Black Americans
at higher rates than White Americans.65
“Across the board, Black Americans experience the high-
est rates of obesity, hypertension, maternal mortality, in-
fant mortality, stroke, and asthma.”66 These and other dis-
parities—the predictable result of opportunity disparities—
——————
58 Dickerson 1102.
59 Rothstein 230.
60 Brief for Association of American Medical Colleges et al. as Amici
Curiae 8 (AMC Brief ).
61 C. Caraballo et al., Excess Mortality and Years of Potential Life Lost
Among the Black Population in the U. S., 1999–2020, 329 JAMA 1662,
1663, 1667 (May 16, 2023) (Caraballo).
62 Bollinger & Stone 101.
63 S. Whetstone et al., Health Disparities in Uterine Cancer: Report
From the Uterine Cancer Evidence Review Conference, 139 Obstetrics &
Gynecology 645, 647–648 (2022).
64 AMC Brief 8–9.
65 Bollinger & Stone 101; Caraballo 1663–1665, 1668.
66 Bollinger & Stone 101 (footnotes omitted).
14 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
JACKSON, J., dissenting
lead to at least 50,000 excess deaths a year for Black Amer-
icans vis-à-vis White Americans.67 That is 80 million excess
years of life lost from just 1999 through 2020.68
Amici tell us that “race-linked health inequities pervad[e]
nearly every index of human health” resulting “in an overall
reduced life expectancy for racial and ethnic minorities that
cannot be explained by genetics.”69 Meanwhile—tying
health and wealth together—while she lays dying, the typ-
ical Black American “pay[s] more for medical care and in-
cur[s] more medical debt.”70
C
We return to John and James now, with history in hand.
It is hardly John’s fault that he is the seventh generation to
graduate from UNC. UNC should permit him to honor that
legacy. Neither, however, was it James’s (or his family’s)
fault that he would be the first. And UNC ought to be able
to consider why.
Most likely, seven generations ago, when John’s family
was building its knowledge base and wealth potential on
the university’s campus, James’s family was enslaved and
laboring in North Carolina’s fields. Six generations ago, the
North Carolina “Redeemers” aimed to nullify the results of
the Civil War through terror and violence, marauding in
hopes of excluding all who looked like James from equal cit-
izenship.71 Five generations ago, the North Carolina Red
Shirts finished the job.72 Four (and three) generations ago,
Jim Crow was so entrenched in the State of North Carolina
——————
67 Caraballo 1667.
68 Ibid.
69 AMC Brief 9.
70 Bollinger & Stone 100.
71 See Report on the Alleged Outrages in the Southern States, S. Rep.
No. 1, 42d Cong., 1st Sess., I–XXXII (1871).
72 See D. Tokaji, Realizing the Right To Vote: The Story of Thornburg
v. Gingles, in Election Law Stories 133–139 (J. Douglas & E. Mazo eds.
2016); see Foner xxii.
Cite as: 600 U. S. ____ (2023) 15
JACKSON, J., dissenting
that UNC “enforced its own Jim Crow regulations.”73 Two
generations ago, North Carolina’s Governor still railed
against “ ‘integration for integration’s sake’ ”—and UNC
Black enrollment was minuscule.74 So, at bare minimum,
one generation ago, James’s family was six generations be-
hind because of their race, making John’s six generations
ahead.
These stories are not every student’s story. But they are
many students’ stories. To demand that colleges ignore
race in today’s admissions practices—and thus disregard
the fact that racial disparities may have mattered for where
some applicants find themselves today—is not only an af-
front to the dignity of those students for whom race mat-
ters.75 It also condemns our society to never escape the past
that explains how and why race matters to the very concept
of who “merits” admission.
Permitting (not requiring) colleges like UNC to assess
merit fully, without blinders on, plainly advances (not
thwarts) the Fourteenth Amendment’s core promise. UNC
considers race as one of many factors in order to best assess
the entire unique import of John’s and James’s individual
lives and inheritances on an equal basis. Doing so involves
acknowledging (not ignoring) the seven generations’ worth
of historical privileges and disadvantages that each of these
applicants was born with when his own life’s journey
started a mere 18 years ago.
II
Recognizing all this, UNC has developed a holistic review
process to evaluate applicants for admission. Students
——————
73 3 App. 1683.
74 Id., at 1687–1688.
75 See O. James, Valuing Identity, 102 Minn. L. Rev. 127, 162 (2017);
P. Karlan & D. Levinson, Why Voting Is Different, 84 Cal. L. Rev. 1201,
1217 (1996).
16 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
JACKSON, J., dissenting
must submit standardized test scores and other conven-
tional information.76 But applicants are not required to
submit demographic information like gender and race.77
UNC considers whatever information each applicant sub-
mits using a nonexhaustive list of 40 criteria grouped into
eight categories: “academic performance, academic pro-
gram, standardized testing, extracurricular activity, spe-
cial talent, essay criteria, background, and personal crite-
ria.”78
Drawing on those 40 criteria, a UNC staff member eval-
uating John and James would consider, with respect to
each, his “engagement outside the classroom; persistence of
commitment; demonstrated capacity for leadership; contri-
butions to family, school, and community; work history;
[and his] unique or unusual interests.”79 Relevant, too,
would be his “relative advantage or disadvantage, as indi-
cated by family income level, education history of family
members, impact of parents/guardians in the home, or for-
mal education environment; experience of growing up in ru-
ral or center-city locations; [and his] status as child or step-
child of Carolina alumni.”80 The list goes on. The process
is holistic, through and through.
So where does race come in? According to UNC’s
admissions-policy document, reviewers may also consider
“the race or ethnicity of any student” (if that information is
provided) in light of UNC’s interest in diversity.81 And, yes,
“the race or ethnicity of any student may—or may not—re-
ceive a ‘plus’ in the evaluation process depending on the in-
——————
76 567 F. Supp. 3d 580, 595 (MDNC 2021).
77 Id., at 596; 1 App. 348; Decl. of J. Rosenberg in No. 1:14–cv–954
(MDNC, Jan. 18, 2019), ECF Doc. 154–7, ¶10 (Rosenberg).
78 1 App. 350; see also 3 id., at 1414–1415.
79 Id., at 1414.
80 Id., at 1415.
81 Id., at 1416; see also 2 id., at 706; Rosenberg ¶22.
Cite as: 600 U. S. ____ (2023) 17
JACKSON, J., dissenting
dividual circumstances revealed in the student’s applica-
tion.”82 Stephen Farmer, the head of UNC’s Office of Un-
dergraduate Admissions, confirmed at trial (under oath)
that UNC’s admissions process operates in this fashion.83
Thus, to be crystal clear: Every student who chooses to
disclose his or her race is eligible for such a race-linked plus,
just as any student who chooses to disclose his or her unu-
sual interests can be credited for what those interests might
add to UNC. The record supports no intimation to the con-
trary. Eligibility is just that; a plus is never automatically
awarded, never considered in numerical terms, and never
automatically results in an offer of admission.84 There are
no race-based quotas in UNC’s holistic review process.85 In
fact, during the admissions cycle, the school prevents any-
one who knows the overall racial makeup of the admitted-
student pool from reading any applications.86
More than that, every applicant is also eligible for a
diversity-linked plus (beyond race) more generally.87 And,
notably, UNC understands diversity broadly, including “so-
cioeconomic status, first-generation college status . . . polit-
ical beliefs, religious beliefs . . . diversity of thoughts, expe-
riences, ideas, and talents.”88
——————
82 3 App. 1416 (emphasis added); see also 2 id., at 631–639.
83 567 F. Supp. 3d, at 591, 595; 2 App. 638 (Farmer, when asked how
race could “b[e] a potential plus” for “students other than underrepre-
sented minority students,” pointing to a North Carolinian applicant,
originally from Vietnam, who identified as “Asian and Montagnard”); id.,
at 639 (Farmer stating that “the whole of [that student’s] background
was appealing to us when we evaluated her applicatio[n],” and noting
how her “story reveals sometimes how hard it is to separate race out from
other things that we know about a student. That was integral to that
student’s story. It was part of our understanding of her, and it played a
role in our deciding to admit her”).
84 3 id., at 1416; Rosenberg ¶25.
85 2 App. 631.
86 Id., at 636–637, 713.
87 3 id., at 1416; 2 id., at 699–700.
88 Id., at 699; see also Rosenberg ¶24.
18 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
JACKSON, J., dissenting
A plus, by its nature, can certainly matter to an admis-
sions case. But make no mistake: When an applicant
chooses to disclose his or her race, UNC treats that aspect
of identity on par with other aspects of applicants’ identity
that affect who they are (just like, say, where one grew up,
or medical challenges one has faced).89 And race is consid-
ered alongside any other factor that sheds light on what at-
tributes applicants will bring to the campus and whether
they are likely to excel once there.90 A reader of today’s ma-
jority opinion could be forgiven for misunderstanding how
UNC’s program really works, or for missing that, under
UNC’s holistic review process, a White student could re-
ceive a diversity plus while a Black student might not.91
UNC does not do all this to provide handouts to either
John or James. It does this to ascertain who among its tens
——————
89 2 App. 706, 708; 3 id., at 1415–1416.
90 2 id., at 706, 708; 3 id., at 1415–1416.
91 A reader might miss this because the majority does not bother to
drill down on how UNC’s holistic admissions process operates. Perhaps
that explains its failure to apprehend (by reviewing the evidence pre-
sented at trial) that everyone, no matter their race, is eligible for a
diversity-linked plus. Compare ante, at 5, and n. 1, with 3 App. 1416,
and supra, at 17. The majority also repeatedly mischaracterizes UNC’s
holistic admissions-review process as a “race-based admissions system,”
and insists that UNC’s program involves “separating students on the ba-
sis of race” and “pick[ing only certain] races to benefit.” Ante, at 5, and
n. 1, 26, 38. These claims would be concerning if they had any basis in
the record. The majority appears to have misunderstood (or categorically
rejected) the established fact that UNC treats race as merely one of the
many aspects of an applicant that, in the real world, matter to under-
standing the whole person. Moreover, its holistic review process involves
reviewing a wide variety of personal criteria, not just race. Every appli-
cant competes against thousands of other applicants, each of whom has
personal qualities that are taken into account and that other applicants
do not—and could not—have. Thus, the elimination of the race-linked
plus would still leave SFFA’s members competing against thousands of
other applicants to UNC, each of whom has potentially plus-conferring
qualities that a given SFFA member does not.
Cite as: 600 U. S. ____ (2023) 19
JACKSON, J., dissenting
of thousands of applicants has the capacity to take full ad-
vantage of the opportunity to attend, and contribute to, this
prestigious institution, and thus merits admission.92 And
UNC has concluded that ferreting this out requires under-
standing the full person, which means taking seriously not
just SAT scores or whether the applicant plays the trumpet,
but also any way in which the applicant’s race-linked expe-
rience bears on his capacity and merit. In this way, UNC
is able to value what it means for James, whose ancestors
received no race-based advantages, to make himself com-
petitive for admission to a flagship school nevertheless.
Moreover, recognizing this aspect of James’s story does not
preclude UNC from valuing John’s legacy or any obstacles
that his story reflects.
So, to repeat: UNC’s program permits, but does not re-
quire, admissions officers to value both John’s and James’s
love for their State, their high schools’ rigor, and whether
either has overcome obstacles that are indicative of their
“persistence of commitment.”93 It permits, but does not re-
quire, them to value John’s identity as a child of UNC
alumni (or, perhaps, if things had turned out differently, as
a first-generation White student from Appalachia whose
family struggled to make ends meet during the Great Re-
cession). And it permits, but does not require, them to value
James’s race—not in the abstract, but as an element of who
he is, no less than his love for his State, his high school
courses, and the obstacles he has overcome.
Understood properly, then, what SFFA caricatures as an
unfair race-based preference cashes out, in a holistic sys-
tem, to a personalized assessment of the advantages and
disadvantages that every applicant might have received by
accident of birth plus all that has happened to them since.
It ensures a full accounting of everything that bears on the
——————
92 See 3 App. 1409, 1414, 1416.
93 Id., at 1414–1415.
20 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
JACKSON, J., dissenting
individual’s resilience and likelihood of enhancing the UNC
campus. It also forecasts his potential for entering the
wider world upon graduation and making a meaningful
contribution to the larger, collective, societal goal that the
Equal Protection Clause embodies (its guarantee that the
United States of America offers genuinely equal treatment
to every person, regardless of race).
Furthermore, and importantly, the fact that UNC’s holis-
tic process ensures a full accounting makes it far from clear
that any particular applicant of color will finish ahead of
any particular nonminority applicant. For example, as the
District Court found, a higher percentage of the most aca-
demically excellent in-state Black candidates (as SFFA’s
expert defined academic excellence) were denied admission
than similarly qualified White and Asian American appli-
cants.94 That, if nothing else, is indicative of a genuinely
——————
94 See 567 F. Supp. 3d, at 617, 619; 3 App. 1078–1080. The majority
cannot deny this factual finding. Instead, it conducts its own back-of-
the-envelope calculations (its numbers appear nowhere in the District
Court’s opinion) regarding “the overall acceptance rates of academically
excellent applicants to UNC,” in an effort to trivialize the District Court’s
conclusion. Ante, at 5, n. 1. I am inclined to stick with the District
Court’s findings over the majority’s unauthenticated calculations. Even
when the majority’s ad hoc statistical analysis is taken at face value, it
hardly supports what the majority wishes to intimate: that Black stu-
dents are being admitted based on UNC’s myopic focus on “race—and
race alone.” Ante, at 28, n. 6. As the District Court observed, if these
Black students “were largely defined in the admissions process by their
race, one would expect to find that every” such student “demonstrating
academic excellence . . . would be admitted.” 567 F. Supp. 3d, at 619 (em-
phasis added). Contrary to the majority’s narrative, “race does not even
act as a tipping point for some students with otherwise exceptional qual-
ifications.” Ibid. Moreover, as the District Court also found, UNC does
not even use the bespoke “academic excellence” metric that SFFA’s ex-
pert “ ‘invented’ ” for this litigation. Id., at 617, 619; see also id., at 624–
625. The majority’s calculations of overall acceptance rates by race on
that metric bear scant relationship to, and thus are no indictment of, how
UNC’s admissions process actually works (a recurring theme in its opin-
ion).
Cite as: 600 U. S. ____ (2023) 21
JACKSON, J., dissenting
holistic process; it is evidence that, both in theory and in
practice, UNC recognizes that race—like any other aspect
of a person—may bear on where both John and James start
the admissions relay, but will not fully determine whether
either eventually crosses the finish line.
III
A
The majority seems to think that race blindness solves
the problem of race-based disadvantage. But the irony is
that requiring colleges to ignore the initial race-linked op-
portunity gap between applicants like John and James will
inevitably widen that gap, not narrow it. It will delay the
day that every American has an equal opportunity to
thrive, regardless of race.
SFFA similarly asks us to consider how much longer
UNC will be able to justify considering race in its admis-
sions process. Whatever the answer to that question was
yesterday, today’s decision will undoubtedly extend the du-
ration of our country’s need for such race consciousness, be-
cause the justification for admissions programs that ac-
count for race is inseparable from the race-linked gaps in
health, wealth, and well-being that still exist in our society
(the closure of which today’s decision will forestall).
To be sure, while the gaps are stubborn and pernicious,
Black people, and other minorities, have generally been do-
ing better.95 But those improvements have only been made
possible because institutions like UNC have been willing to
grapple forthrightly with the burdens of history. SFFA’s
complaint about the “indefinite” use of race-conscious ad-
missions programs, then, is a non sequitur. These pro-
grams respond to deep-rooted, objectively measurable prob-
lems; their definite end will be when we succeed, together,
in solving those problems.
——————
95 See Bollinger & Stone 86, 103.
22 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
JACKSON, J., dissenting
Accordingly, while there are many perversities of today’s
judgment, the majority’s failure to recognize that programs
like UNC’s carry with them the seeds of their own destruc-
tion is surely one of them. The ultimate goal of recognizing
James’s full story and (potentially) admitting him to UNC
is to give him the necessary tools to contribute to closing the
equity gaps discussed in Part I, supra, so that he, his prog-
eny—and therefore all Americans—can compete without
race mattering in the future. That intergenerational pro-
ject is undeniably a worthy one.
In addition, and notably, that end is not fully achieved
just because James is admitted. Schools properly care
about preventing racial isolation on campus because re-
search shows that it matters for students’ ability to learn
and succeed while in college if they live and work with at
least some other people who look like them and are likely
to have similar experiences related to that shared charac-
teristic.96 Equally critical, UNC’s program ensures that
students who don’t share the same stories (like John and
James) will interact in classes and on campus, and will
thereby come to understand each other’s stories, which
amici tell us improves cognitive abilities and critical-
thinking skills, reduces prejudice, and better prepares stu-
dents for postgraduate life.97
Beyond campus, the diversity that UNC pursues for the
betterment of its students and society is not a trendy slo-
gan. It saves lives. For marginalized communities in North
Carolina, it is critically important that UNC and other area
institutions produce highly educated professionals of color.
Research shows that Black physicians are more likely to ac-
curately assess Black patients’ pain tolerance and treat
——————
96 See, e.g., Brief for University of Michigan as Amicus Curiae 6, 24;
Brief for President and Chancellors of University of California as Amici
Curiae 20–29; Brief for American Psychological Association et al. as
Amici Curiae 14–16, 21–23 (APA Brief ).
97 Id., at 14–20, 23–27.
Cite as: 600 U. S. ____ (2023) 23
JACKSON, J., dissenting
them accordingly (including, for example, prescribing them
appropriate amounts of pain medication).98 For high-risk
Black newborns, having a Black physician more than dou-
bles the likelihood that the baby will live, and not die.99
Studies also confirm what common sense counsels: Closing
wealth disparities through programs like UNC’s—which,
beyond diversifying the medical profession, open doors to
every sort of opportunity—helps address the aforemen-
tioned health disparities (in the long run) as well.100
Do not miss the point that ensuring a diverse student
body in higher education helps everyone, not just those who,
due to their race, have directly inherited distinct disad-
vantages with respect to their health, wealth, and well-
being. Amici explain that students of every race will come
to have a greater appreciation and understanding of civic
virtue, democratic values, and our country’s commitment to
equality.101 The larger economy benefits, too: When it
comes down to the brass tacks of dollars and cents, ensuring
diversity will, if permitted to work, help save hundreds of
billions of dollars annually (by conservative estimates).102
Thus, we should be celebrating the fact that UNC, once a
stronghold of Jim Crow, has now come to understand this.
——————
98 AMC Brief 4, 14; see also Brief for American Federation of Teachers
as Amicus Curiae 10 (AFT Brief ) (collecting further studies on the “tan-
gible benefits” of patients’ access to doctors who look like them).
99 AMC Brief 4.
100 National Research Council, New Horizons in Health: An Integrative
Approach 100–111 (2001); Pollack et al., Should Health Studies Measure
Wealth? A Systematic Review, 33 Am. J. Preventative Med. 250, 252,
261–263 (2007); see also Part I–B, supra.
101 See APA Brief 14–20, 23–27 (collecting studies); AFT Brief 11–12
(same); Brief for National School Boards Association et al. as Amici Cu-
riae 6–11 (same); see also 567 F. Supp. 3d, at 592–593, 655–656 (factual
findings in this case with respect to these benefits).
102 LaVeist et al., The Economic Burden of Racial, Ethnic, and Educa-
tional Health Inequities in the U. S., 329 JAMA 1682, 1683–1684, 1689,
1691 (May 16, 2023).
24 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
JACKSON, J., dissenting
The flagship educational institution of a former Confeder-
ate State has embraced its constitutional obligation to af-
ford genuine equal protection to applicants, and, by exten-
sion, to the broader polity that its students will serve after
graduation. Surely that is progress for a university that
once engaged in the kind of patently offensive race-
dominated admissions process that the majority decries.
With its holistic review process, UNC now treats race as
merely one aspect of an applicant’s life, when race played a
totalizing, all-encompassing, and singularly determinative
role for applicants like James for most of this country’s his-
tory: No matter what else was true about him, being Black
meant he had no shot at getting in (the ultimate race-linked
uneven playing field). Holistic programs like UNC’s reflect
the reality that Black students have only relatively recently
been permitted to get into the admissions game at all. Such
programs also reflect universities’ clear-eyed optimism
that, one day, race will no longer matter.
So much upside. Universal benefits ensue from holistic
admissions programs that allow consideration of all factors
material to merit (including race), and that thereby facili-
tate diverse student populations. Once trained, those UNC
students who have thrived in the university’s diverse learn-
ing environment are well equipped to make lasting contri-
butions in a variety of realms and with a variety of col-
leagues, which, in turn, will steadily decrease the salience
of race for future generations. Fortunately, UNC and other
institutions of higher learning are already on this beneficial
path. In fact, all that they have needed to continue moving
this country forward (toward full achievement of our Na-
tion’s founding promises) is for this Court to get out of the
way and let them do their jobs. To our great detriment, the
majority cannot bring itself to do so.
B
The overarching reason the majority gives for becoming
Cite as: 600 U. S. ____ (2023) 25
JACKSON, J., dissenting
an impediment to racial progress—that its own conception
of the Fourteenth Amendment’s Equal Protection Clause
leaves it no other option—has a wholly self-referential, two-
dimensional flatness. The majority and concurring opin-
ions rehearse this Court’s idealistic vision of racial equality,
from Brown forward, with appropriate lament for past in-
discretions. See, e.g., ante, at 11. But the race-linked gaps
that the law (aided by this Court) previously founded and
fostered—which indisputably define our present reality—
are strangely absent and do not seem to matter.
With let-them-eat-cake obliviousness, today, the majority
pulls the ripcord and announces “colorblindness for all” by
legal fiat. But deeming race irrelevant in law does not
make it so in life. And having so detached itself from this
country’s actual past and present experiences, the Court
has now been lured into interfering with the crucial work
that UNC and other institutions of higher learning are do-
ing to solve America’s real-world problems.
No one benefits from ignorance. Although formal race-
linked legal barriers are gone, race still matters to the lived
experiences of all Americans in innumerable ways, and to-
day’s ruling makes things worse, not better. The best that
can be said of the majority’s perspective is that it proceeds
(ostrich-like) from the hope that preventing consideration
of race will end racism. But if that is its motivation, the
majority proceeds in vain. If the colleges of this country are
required to ignore a thing that matters, it will not just go
away. It will take longer for racism to leave us. And, ulti-
mately, ignoring race just makes it matter more.103
——————
103 JUSTICE THOMAS’s prolonged attack, ante, at 49–55 (concurring opin-
ion), responds to a dissent I did not write in order to assail an admissions
program that is not the one UNC has crafted. He does not dispute any
historical or present fact about the origins and continued existence of
race-based disparity (nor could he), yet is somehow persuaded that these
realities have no bearing on a fair assessment of “individual achieve-
26 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
JACKSON, J., dissenting
The only way out of this morass—for all of us—is to stare
at racial disparity unblinkingly, and then do what evidence
and experts tell us is required to level the playing field and
march forward together, collectively striving to achieve true
equality for all Americans. It is no small irony that the
judgment the majority hands down today will forestall the
end of race-based disparities in this country, making the
colorblind world the majority wistfully touts much more dif-
ficult to accomplish.
* * *
As the Civil War neared its conclusion, General William
T. Sherman and Secretary of War Edwin Stanton convened
a meeting of Black leaders in Savannah, Georgia. During
the meeting, someone asked Garrison Frazier, the group’s
spokesperson, what “freedom” meant to him. He answered,
“ ‘placing us where we could reap the fruit of our own labor,
and take care of ourselves . . . to have land, and turn it and
——————
ment,” ante, at 51. JUSTICE THOMAS’s opinion also demonstrates an ob-
session with race consciousness that far outstrips my or UNC’s holistic
understanding that race can be a factor that affects applicants’ unique
life experiences. How else can one explain his detection of “an organizing
principle based on race,” a claim that our society is “fundamentally rac-
ist,” and a desire for Black “victimhood” or racial “silo[s],” ante, at 49–52,
in this dissent’s approval of an admissions program that advances all
Americans’ shared pursuit of true equality by treating race “on par with”
other aspects of identity, supra, at 18? JUSTICE THOMAS ignites too many
more straw men to list, or fully extinguish, here. The takeaway is that
those who demand that no one think about race (a classic pink-elephant
paradox) refuse to see, much less solve for, the elephant in the room—
the race-linked disparities that continue to impede achievement of our
great Nation’s full potential. Worse still, by insisting that obvious truths
be ignored, they prevent our problem-solving institutions from directly
addressing the real import and impact of “social racism” and
“government-imposed racism,” ante, at 55 (THOMAS, J., concurring),
thereby deterring our collective progression toward becoming a society
where race no longer matters.
Cite as: 600 U. S. ____ (2023) 27
JACKSON, J., dissenting
till it by our own labor.’ ”104
Today’s gaps exist because that freedom was denied far
longer than it was ever afforded. Therefore, as JUSTICE
SOTOMAYOR correctly and amply explains, UNC’s holistic
review program pursues a righteous end—legitimate “ ‘be-
cause it is defined by the Constitution itself. The end is the
maintenance of freedom.’ ” Jones v. Alfred H. Mayer Co.,
392 U. S. 409, 443–444 (1968) (quoting Cong. Globe, 39th
Cong., 1st Sess., 1118 (1866) (Rep. Wilson)).
Viewed from this perspective, beleaguered admissions
programs such as UNC’s are not pursuing a patently unfair,
ends-justified ideal of a multiracial democracy at all. In-
stead, they are engaged in an earnest effort to secure a more
functional one. The admissions rubrics they have con-
structed now recognize that an individual’s “merit”—his
ability to succeed in an institute of higher learning and ul-
timately contribute something to our society—cannot be
fully determined without understanding that individual in
full. There are no special favorites here.
UNC has thus built a review process that more accurately
assesses merit than most of the admissions programs that
have existed since this country’s founding. Moreover, in so
doing, universities like UNC create pathways to upward
mobility for long excluded and historically disempowered
racial groups. Our Nation’s history more than justifies this
course of action. And our present reality indisputably
establishes that such programs are still needed—for the
general public good—because after centuries of state-
sanctioned (and enacted) race discrimination, the afore-
mentioned intergenerational race-based gaps in health,
wealth, and well-being stubbornly persist.
Rather than leaving well enough alone, today, the major-
ity is having none of it. Turning back the clock (to a time
before the legal arguments and evidence establishing the
——————
104 Foner 179.
28 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
JACKSON, J., dissenting
soundness of UNC’s holistic admissions approach existed),
the Court indulges those who either do not know our Na-
tion’s history or long to repeat it. Simply put, the race-blind
admissions stance the Court mandates from this day for-
ward is unmoored from critical real-life circumstances.
Thus, the Court’s meddling not only arrests the noble gen-
erational project that America’s universities are attempt-
ing, it also launches, in effect, a dismally misinformed soci-
ological experiment.
Time will reveal the results. Yet the Court’s own mis-
steps are now both eternally memorialized and excruciat-
ingly plain. For one thing—based, apparently, on nothing
more than Justice Powell’s initial say so—it drastically dis-
counts the primary reason that the racial-diversity objec-
tives it excoriates are needed, consigning race-related his-
torical happenings to the Court’s own analytical dustbin.
Also, by latching onto arbitrary timelines and professing in-
security about missing metrics, the Court sidesteps unre-
futed proof of the compelling benefits of holistic admissions
programs that factor in race (hard to do, for there is plenty),
simply proceeding as if no such evidence exists. Then, ulti-
mately, the Court surges to vindicate equality, but Don
Quixote style—pitifully perceiving itself as the sole van-
guard of legal high ground when, in reality, its perspective
is not constitutionally compelled and will hamper the best
judgments of our world-class educational institutions about
who they need to bring onto their campuses right now to
benefit every American, no matter their race.105
——————
105 JUSTICE SOTOMAYOR has fully explained why the majority’s analysis
is legally erroneous and how UNC’s holistic review program is entirely
consistent with the Fourteenth Amendment. My goal here has been to
highlight the interests at stake and to show that holistic admissions pro-
grams that factor in race are warranted, just, and universally beneficial.
All told, the Court’s myopic misunderstanding of what the Constitution
permits will impede what experts and evidence tell us is required (as a
matter of social science) to solve for pernicious race-based inequities that
are themselves rooted in the persistent denial of equal protection. “[T]he
Cite as: 600 U. S. ____ (2023) 29
JACKSON, J., dissenting
The Court has come to rest on the bottom-line conclusion
that racial diversity in higher education is only worth po-
tentially preserving insofar as it might be needed to prepare
Black Americans and other underrepresented minorities
for success in the bunker, not the boardroom (a particularly
awkward place to land, in light of the history the majority
opts to ignore).106 It would be deeply unfortunate if the
Equal Protection Clause actually demanded this perverse,
ahistorical, and counterproductive outcome. To impose this
result in that Clause’s name when it requires no such thing,
and to thereby obstruct our collective progress toward the
full realization of the Clause’s promise, is truly a tragedy
for us all.
——————
potential consequences of the [majority’s] approach, as measured against
the Constitution’s objectives . . . provides further reason to believe that
the [majority’s] approach is legally unsound.” Parents Involved in Com-
munity Schools v. Seattle School Dist. No. 1, 551 U. S. 701, 858 (2007)
(Breyer, J., dissenting). I fear that the Court’s folly brings our Nation to
the brink of coming “full circle” once again. Regents of Univ. of Cal. v.
Bakke, 438 U. S. 265, 402 (1978) (opinion of Marshall, J.).
106 Compare ante, at 22, n. 4, with ante, at 22–30, and supra, at 3–4,
and nn. 2–3.