Opinion · Supreme Court of the United States
Students for Fair Admissions, Inc. v. President and Fellows of Harvard College
600 U.S. 181
- Type
- Opinion
- Court
- Supreme Court of the United States
- Jurisdiction
- Federal
- Date
- 2023-06-29
- Topic
- general
holding that an organization had standing “when it filed suit” where it “identified” individual harmed members but did not provide their names | ruling in favor of an organization with associational standing that race-based affirmative action programs in college admissions processes violated the Fourteenth Amendment to the United States Constitution | applying strict scrutiny to gov- ernment actions that treat people differently “on the basis of race” | ratifying the First Circuit’s finding that “at the time SFFA filed suit, it was a ‘validly incorporated 501(c)(3 | explaining race-based stereotyping “can only cause continued hurt and injury” (quoting Edmonson v. Leesville Concrete Co., Inc., 500 U.S. 614, 631 (1991) (internal quotations and alterations omitted)) | noting “SFFA satisfies the three-part test for organizational standing” from Hunt, and “[b]ecause SFFA complies with the standing requirements demanded of organizational plaintiffs in Hunt, its obligations under Article III are satisfied” | An opinion that concurs only in the result “is generally not the best source of legal advice on how to comply with the majority opinion.” | “[T]he Constitution . . . forbids . . . discrimination by the General Government, or by the States, against any citizen because of 94 USCA4 Appeal: 22-1721 Doc: 130 Filed: 04/29/2024 Pg: 95 of 147 his [protected trait].” (quoting Bolling v. Sharpe, 347 U.S. 497, 499 (1954)) | “[T]he Constitution . . . forbids . . . discrimination by the General Government, or by the States, against any citizen because of 94 USCA4 Appeal: 22-1927 Doc: 119 Filed: 04/29/2024 Pg: 95 of 147 his [protected trait].” (quoting Bolling v. Sharpe, 347 U.S. 497, 499 (1954))
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PRELIMINARY PRINT
Volume 600 U. S. Part 1
Pages 181–411
OFFICIAL REPORTS
OF
THE SUPREME COURT
June 29, 2023
Page Proof Pending Publication
REBECCA A. WOMELDORF
reporter of decisions
NOTICE: This preliminary print is subject to formal revision before
the bound volume is published. Users 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.
OCTOBER TERM, 2022 181
Syllabus
STUDENTS FOR FAIR ADMISSIONS, INC. v.
PRESIDENT AND FELLOWS OF
HARVARD COLLEGE
certiorari to the united states court of appeals for
the rst 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 admis-
sions process to make their decisions. Admission to each school can
depend on a student's grades, recommendation letters, or extracurricu-
lar 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 Fourteenth
Amendment.
At Harvard, each application for admission is initially screened by a
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“frst reader,” who assigns a numerical score in each of six categories:
academic, extracurricular, athletic, school support, personal, and overall.
For the “overall” category—a composite of the fve other ratings—a frst
reader can and does consider the applicant's race. Harvard's admissions
subcommittees then review all applications from a particular geographic
area. These regional subcommittees make recommendations to the full
admissions committee, and they take an applicant's race into account.
When the 40-member full admissions committee begins its deliberations,
it discusses the relative breakdown of applicants by race. The goal of
the process, according to Harvard's director of admissions, is ensuring
there is no “dramatic drop-off” in minority admissions from the prior
class. An applicant receiving a majority of the full committee's votes
is tentatively accepted for admission. At the end of this process, the
racial composition of the tentative applicant pool is disclosed to the com-
mittee. The last stage of Harvard's admissions process, called the
“lop,” winnows the list of tentatively admitted students to arrive at the
fnal class. Applicants that Harvard considers cutting at this stage are
placed on the “lop list,” which contains only four pieces of information:
*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.
182 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
Syllabus
legacy status, recruited athlete status, fnancial aid eligibility, and race.
In the Harvard admissions process, “race is a determinative tip for” a
signifcant percentage “of all admitted African American and Hispanic
applicants.”
UNC has a similar admissions process. Every application is re-
viewed frst by an admissions offce 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 fnal. 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 commit-
tee may consider the applicant's race.
Petitioner, Students for Fair Admissions (SFFA), is a nonproft orga-
nization whose stated purpose is “to defend human and civil rights se-
cured by law, including the right of individuals to equal protection under
the law.” SFFA fled separate lawsuits against Harvard and UNC, ar-
guing that their race-based admissions programs violate, respectively,
Page Proof Pending Publication
Title VI of the Civil Rights Act of 1964 and the Equal Protection Clause
of the Fourteenth Amendment. After separate bench trials, both ad-
missions programs were found permissible under the Equal Protection
Clause and this Court's precedents. In the Harvard case, the First Cir-
cuit affrmed, 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 Protec-
tion Clause of the Fourteenth Amendment. Pp. 198–231.
(a) Because SFFA complies with the standing requirements for orga-
nizational plaintiffs articulated by this Court in Hunt v. Washington
State Apple Advertising Comm'n,
432 U. S. 333
, SFFA's obligations
under Article III are satisfed, and this Court has jurisdiction to con-
sider the merits of SFFA's claims.
The Court rejects UNC's argument that SFFA lacks standing because
it is not a “genuine” membership organization. An organizational plain-
tiff can satisfy Article III jurisdiction in two ways, one of which is to
assert “standing solely as the representative of its members,” Warth v.
Seldin,
422 U. S. 490, 511
, an approach known as representational or
organizational standing. To invoke it, an organization must satisfy the
three-part test in Hunt. Respondents do not suggest that SFFA fails
Hunt's test for organizational standing. They argue instead that SFFA
cannot invoke organizational standing at all because SFFA was not a
Cite as:
600 U. S. 181
(2023) 183
Syllabus
genuine membership organization at the time it fled suit. Respondents
maintain that, under Hunt, a group qualifes as a genuine membership
organization only if it is controlled and funded by its members. In
Hunt, this Court determined that a state agency with no traditional
members could still qualify as a genuine membership organization in
substance because the agency represented the interests of individuals
and otherwise satisfed Hunt's three-part test for organizational stand-
ing. 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 identifable
members who support its mission and whom SFFA represents in good
faith. SFFA is thus entitled to rely on the organizational standing doc-
trine as articulated in Hunt. Pp. 198–201.
(b) Proposed by Congress and ratifed 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 Amend-
Page Proof Pending Publication
ment 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 Protec-
tion Clause, the Court—alongside the country—quickly failed to live up
to the Clause's core commitments. For almost a century after the Civil
War, state-mandated segregation was in many parts of the Nation a
regrettable norm. This Court played its own role in that ignoble his-
tory, 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 sepa-
rate but equal] for over half a century.” Brown v. Board of Education,
347 U. S. 483, 491
. Some cases in this period attempted to curtail the perniciousness of the doctrine by emphasizing that it required States to provide black students educational opportunities equal to—even if formally separate from—those enjoyed by white students. See, e. g., Missouri ex rel. Gaines v. Canada,305 U. S. 337
, 349–350. But the inherent folly of that approach—of trying to derive equality from in- equality—soon became apparent. As the Court subsequently recog- nized, even racial distinctions that were argued to have no palpable effect worked to subordinate the afficted students. See, e. g., McLaurin v. Oklahoma State Regents for Higher Ed.,339 U. S. 637
,
184 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
Syllabus
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 fnally 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 invali- dating 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 racial
discrimination in public education is unconstitutional,”
id., at 298
, reached other areas of life—for example, state and local laws requiring segregation in busing, Gayle v. Browder,352 U. S. 903
(per curiam); racial segregation in the enjoyment of public beaches and bathhouses, Mayor and City Council of Baltimore v. Dawson,350 U. S. 877
(per cu- riam); and antimiscegenation laws, Loving v. Virginia,388 U. S. 1
. These decisions, and others like them, refect the “core purpose” of the Equal Protection Clause: “do[ing] away with all governmentally Page Proof Pending Publication imposed discrimination based on race.” Palmore v. Sidoti,466 U. S. 429, 432
.
Eliminating racial discrimination means eliminating all of it. Accord-
ingly, the Court has held that the Equal Protection Clause applies “with-
out 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 (opinion of Powell, J.).
Any exceptions to the Equal Protection Clause's guarantee must sur-
vive a daunting two-step examination known as “strict scrutiny,” Ada-
rand Constructors, Inc. v. Peña,
515 U. S. 200, 227
, which asks frst whether the racial classifcation is used to “further compelling govern- mental interests,” Grutter v. Bollinger,539 U. S. 306, 326
, and second whether the government's use of race is “narrowly tailored,” i. e., “nec- essary,” to achieve that interest, Fisher v. University of Tex. at Austin,570 U. S. 297
, 311–312. Acceptance of race-based state action is rare for a reason: “[d]istinctions between citizens solely because of their an- cestry are by their very nature odious to a free people whose institu- tions are founded upon the doctrine of equality.” Rice v. Cayetano,528 U. S. 495, 517
. Pp. 201–208.
Cite as:
600 U. S. 181
(2023) 185
Syllabus
(c) This Court frst 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 opin- ion for himself alone would eventually come to “serv[e] as the touchstone for constitutional analysis of race-conscious admissions policies.” Grut- ter,539 U. S., at 323
. After rejecting three of the University's four
justifcations as not suffciently compelling, Justice Powell turned to its
last interest asserted to be compelling—obtaining the educational bene-
fts that fow 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 free-
dom “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 un-
limited—“[r]acial and ethnic distinctions of any sort are inherently sus-
pect,” Justice Powell explained, and antipathy toward them was deeply
“rooted in our Nation's constitutional and demographic history.” Id., at
291. Accordingly, a university could not employ a two-track quota sys-
tem with a specifc number of seats reserved for individuals from a pre-
ferred ethnic group. Id., at 315. Neither still could a university use
race to foreclose an individual from all consideration. Id., at 318. Race
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could only operate as “a `plus' in a particular applicant's fle,” and even
then it had to be weighed in a manner “fexible enough to consider all
pertinent elements of diversity in light of the particular qualifcations
of each applicant.” Id., at 317. Pp. 208–210.
(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 frst 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 uni- versities 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 frst is the risk that the use of race will devolve into “illegitimate . . . stereotyp[ing].” Rich- mond v. J. A. Croson Co.,488 U. S. 469, 493
(plurality opinion). Admis- sions programs could thus not operate on the “belief that minority stu- dents always (or even consistently) express some characteristic minority viewpoint on any issue.” Grutter,539 U. S., at 333
(internal quotation
marks omitted). The second risk is that race would be used not as a
plus, but as a negative—to discriminate against those racial groups that
were not the benefciaries of the race-based preference. A university's
186 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
Syllabus
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 fnal limit on race-
based admissions programs: At some point, the Court held, they must
end.
Id., at 342
. Recognizing that “[e]nshrining a permanent justif- cation for racial preferences would offend” the Constitution's unambigu- ous guarantee of equal protection, the Court expressed its expectation that, in 25 years, “the use of racial preferences will no longer be neces- sary to further the interest approved today.”Id., at 343
. Pp. 211–213.
(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 confnes of narrow restrictions: such
admissions programs must comply with strict scrutiny, may never use
race as a stereotype or negative, and must—at some point—end. Re-
spondents' admissions systems fail each of these criteria and must there-
fore be invalidated under the Equal Protection Clause of the Fourteenth
Amendment. Pp. 213–225.
(1) Respondents fail to operate their race-based admissions pro-
grams in a manner that is “suffciently 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 Page Proof Pending Publication view as compelling cannot be subjected to meaningful judicial review. Those interests include training future leaders, acquiring new knowl- edge based on diverse outlooks, promoting a robust marketplace of ideas, and preparing engaged and productive citizens. While these are commendable goals, they are not suffciently coherent for purposes of strict scrutiny. It is unclear how courts are supposed to measure any of these goals, or if they could, to know when they have been reached so that racial preferences can end. The elusiveness of respondents' as- serted goals is further illustrated by comparing them to recognized com- pelling interests. For example, courts can discern whether the tempo- rary racial segregation of inmates will prevent harm to those in the prison, see Johnson v. California,543 U. S. 499
, 512–513, but the ques-
tion whether a particular mix of minority students produces “engaged
and productive citizens” or effectively “ train[s] future leaders” is
standardless.
Second, respondents' admissions programs fail to articulate a mean-
ingful connection between the means they employ and the goals they
pursue. To achieve the educational benefts of diversity, respondents
measure the racial composition of their classes using racial categories
that are plainly overbroad (expressing, for example, no concern whether
South Asian or East Asian students are adequately represented as
“Asian”); arbitrary or undefned (the use of the category “Hispanic”); or
Cite as:
600 U. S. 181
(2023) 187
Syllabus
underinclusive (no category at all for Middle Eastern students). The
unclear connection between the goals that respondents seek and the
means they employ preclude courts from meaningfully scrutinizing re-
spondents' admissions programs.
The universities' main response to these criticisms is “trust us.”
They assert that universities are owed deference when using race to
beneft 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 justifcation
for separating students on the basis of race that is measurable and con-
crete enough to permit judicial review, as the Equal Protection Clause
requires. Pp. 214–218.
(2) Respondents' race-based admissions systems also fail to comply
with the Equal Protection Clause's twin commands that race may never
be used as a “negative” and that it may not operate as a stereotype.
The First Circuit found that Harvard's consideration of race has resulted
in fewer admissions of Asian-American students. Respondents' asser-
tion that race is never a negative factor in their admissions programs
cannot withstand scrutiny. College admissions are zero-sum, and a
Page Proof Pending Publication
beneft provided to some applicants but not to others necessarily advan-
tages the former at the expense of the latter.
Respondents' admissions programs are infrm for a second reason as
well: They require stereotyping—the very thing Grutter foreswore.
When a university admits students “on the basis of race, it engages in
the offensive and demeaning assumption that [students] of a particular
race, because of their race, think alike.” Miller v. Johnson,
515 U. S. 900
, 911–912. Such stereotyping is contrary to the “core purpose” of the Equal Protection Clause. Palmore,466 U. S., at 432
. Pp. 218–221.
(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 ra- cial 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]ut- right racial balancing” is “patently unconstitutional.” Fisher,570 U. S., at 311
. Respondents' second proffered end point—when students re-
ceive the educational benefts of diversity—fares no better. As ex-
plained, it is unclear how a court is supposed to determine if or when
188 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
Syllabus
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, refected 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 conduct
constitutional. Pp. 221–225.
(f) Because Harvard's and UNC's admissions programs lack suff-
ciently focused and measurable objectives warranting the use of race,
unavoidably employ race in a negative manner, involve racial stereotyp-
ing, 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 considering an appli-
cant'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 university. Many
universities have for too long wrongly concluded that the touchstone of
an individual's identity is not challenges bested, skills built, or lessons
Page Proof Pending Publication
learned, but the color of their skin. This Nation's constitutional history
does not tolerate that choice. Pp. 230–231.
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.,
fled a concurring opinion, post, p. 231. Gorsuch, J., fled a concurring
opinion, in which Thomas, J., joined, post, p. 287. Kavanaugh, J., fled a
concurring opinion, post, p. 311. Sotomayor, J., fled a dissenting opinion,
in which Kagan, J., joined, and in which Jackson, J., joined as it applies
to No. 21–707, post, p. 318. Jackson, J., fled a dissenting opinion in
No. 21–707, in which Sotomayor and Kagan, JJ., joined, post, p. 384.
Jackson, J., took no part in the consideration or decision of the case in
No. 20–1199.
Cameron T. Norris argued the cause for petitioner in No.
20–1199. With him on the briefs were William S. Conso-
voy, Thomas R. McCarthy, J. Michael Connolly, Bryan
Weir, James F. Hasson, Adam K. Mortara, Patrick Straw-
bridge, and Alan M. Ruley. Mr. Strawbridge argued the
Cite as:
600 U. S. 181
(2023) 189
Counsel
cause for petitioner in No. 21–707. With him on the briefs
were Messrs. Consovoy, McCarthy, Connolly, Norris, Weir,
Hasson, Mortara, and Ruley.
Seth P. Waxman argued the cause for respondent in No.
20–1199. With him on the briefs were Catherine M. A. Car-
roll, Claire H. Chung, Debo P. Adegbile, Rishita Apsani,
William F. Lee, Felicia H. Ellsworth, Hannah E. Gelbort,
Diane E. Lopez, and Ara B. Gershengorn. Ryan Y. Park,
Solicitor General of North Carolina, argued the cause for uni-
versity respondents in No. 21–707. With him on the brief
were Joshua H. Stein, Attorney General of North Carolina,
Nicholas S. Brod, Sarah G. Boyce, and James W. Doggett,
Deputy Solicitors General, Sripriya Narasimhan, Deputy
General Counsel, Stephanie A. Brennan and Tamika L. Hen-
derson, Special Deputy Attorneys General, Patrick Fitzger-
ald, Amy Van Gelder, and Lara Flath. David G. Hinojosa
argued the cause for student respondents Cecilia Polanco
et al. in No. 21–707. With him on the brief were Damon T.
Page Proof Pending Publication
Hewitt, Jon Greenbaum, Reed N. Colfax, Soohyun Choi, and
Gemma Donofrio.
Solicitor General Prelogar argued the cause for the United
States as amicus curiae urging affrmance in both cases.
With her on the brief were Acting Principal Deputy Assist-
ant Attorney General Smith, Deputy Solicitor General Flet-
cher, Masha G. Hansford, Nicolas Y. Riley, Elizabeth Parr
Hecker, Jonathan E. Meyer, and Samuel R. Bagenstos.*
*Briefs of amici curiae urging reversal in both cases were fled for the
State of Oklahoma et al. by John O'Connor, Attorney General of Okla-
homa, and Mithun Mansinghani, Solicitor General, and by the Attorneys
General for their respective jurisdictions as follows: Steve Marshall of
Alabama, Mark Brnovich of Arizona, Leslie Rutledge of Arkansas, Ashley
Moody of Florida, Chris Carr of Georgia, Derek Schmidt of Kansas, Daniel
Cameron of Kentucky, Jeff Landry of Louisiana, Lynn Fitch of Mississippi,
Eric Schmitt of Missouri, Austin Knudsen of Montana, Doug Peterson of
Nebraska, Drew H. Wrigley of North Dakota, Dave Yost of Ohio, Alan
Wilson of South Carolina, Sean D. Reyes of Utah, Jason S. Miyares of
190 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
Opinion of the Court
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
Virginia, and Patrick Morrisey of West Virginia; for the State of Texas
by Ken Paxton, Attorney General of Texas, Judd E. Stone II, Solicitor
General, Lanora C. Pettit, Principal Deputy Solicitor General, Rance
Craft, Assistant Solicitor General, and Brent Webster, First Assistant At-
torney General; for the American Center for Law and Justice et al. by Jay
Alan Sekulow, Stuart J. Roth, Jordan A. Sekulow, Colby M. May, and
Walter M. Weber; for the Californians for Equal Rights Foundation by
Daniel I. Morenoff; for the Defense of Freedom Institute for Policy Stud-
ies by John C. Sullivan; for Economists by C. Boyden Gray, R. Trent
McCotter, and Jonathan Berry; for the Hamilton Lincoln Law Institute
et al. by Theodore H. Frank, Anna St. John, and Ilya Shapiro, pro se; for
the Louis D. Brandeis Center for Human Rights Under Law et al. by
Jonathan A. Vogel; for the National Association of Scholars by Dennis J.
Saffran; for the Pacifc Legal Foundation et al. by Joshua P. Thompson,
Anastasia P. Boden, Wencong Fa, and Alison Somin; for Project 21 by
Page Proof Pending Publication
David H. Thompson, Peter A. Patterson, John D. Ohlendorf, and Megan
M. Wold; for United States Senators et al. by R. Shawn Gunnarson;
and for Mark Keith Robinson et al. by Thomas Brejcha and B. Tyler
Brooks. A brief of amicus curiae urging vacatur in both cases was fled
for F. Andrew Hessick by Richard A. Simpson and Mr. Hessick, pro se.
Briefs of amici curiae urging reversal in No. 20–1199 were fled for
the America First Legal Foundation by Jonathan F. Mitchell and Gene
P. Hamilton; and for the for the Foundation Against Intolerance & Racism
by Mary E. Keane. A brief of amici curiae urging vacatur was fled for
Fiona A. Harrison by Alan B. Morrison in No. 20–1199.
Briefs of amici curiae urging affrmance in both cases were fled for the
Commonwealth of Massachusetts et al. by Maura Healey, Attorney Gen-
eral of Massachusetts, Elizabeth N. Dewar, State Solicitor, and Ann E.
Lynch and David Ureña, Assistant Attorneys General, by Karl A. Racine,
Attorney General of the District of Columbia, by Matthew J. Platkin, Act-
ing Attorney General of New Jersey, and by the Attorneys General for
their respective States as follows: Rob Bonta of California, Philip J.
Weiser of Colorado, William Tong of Connecticut, Kathleen Jennings of
Delaware, Holly T. Shikada of Hawaii, Kwame Raoul of Illinois, Aaron
M. Frey of Maine, Brian E. Frosh of Maryland, Keith Ellison of Minne-
sota, Aaron D. Ford of Nevada, Hector Balderas of New Mexico, Letitia
James of New York, Ellen F. Rosenblum of Oregon, Josh Shapiro of Penn-
Cite as:
600 U. S. 181
(2023) 191
Opinion of the Court
Carolina, two of the oldest institutions of higher learning in
the United States, are lawful under the Equal Protection
Clause of the Fourteenth Amendment.
sylvania, Peter F. Neronha of Rhode Island, Robert W. Ferguson of Wash-
ington, and Joshua L. Kaul of Wisconsin; for Admissions and Testing Pro-
fessionals by Daniel D. Doyle; for the American Bar Association by
Reginald M. Turner, Jr., Loretta Lynch, Sidney Rosdeitcher, Jaren Jan-
ghorbani, Jennifer H. Wu, Josephine Young, and Johan E. Tatoy; for the
American Civil Liberties Union et al. by Sarah Hinger, Jennesa Calvo-
Friedman, ReNika Moore, David D. Cole, Matthew R. Segal, and Kristi
L. Graunke; for the American Council on Education et al. by Jessica L.
Ellsworth, Madelyn F. Wessel, and Johannah Walker; for the American
Educational Research Association et al. by Angelo N. Ancheta; for the
American Federation of Teachers by Kevin K. Russell, Rhonda Weingar-
ten, and David J. Strom; for the American G. I. Forum et al. by Elizabeth
A. Ritvo, Joshua P. Dunn, Lourdes M. Rosado, and Francisca Fajana; for
the American Psychological Association et al. by Melissa Arbus Sherry,
Deanne M. Ottaviano, and Nathalie Gilfoyle; for Amherst College et al.
by Mark D. Harris and John E. Roberts; for Applied Materials, Inc., et al.
Page Proof Pending Publication
by Mark S. Davies, Thomas M. Bondy, Katherine M. Kopp, E. Joshua
Rosenkranz, and Darren S. Teshima; for the Asian American Legal De-
fense and Education Fund et al. by Dean Richlin, Madeleine K. Rodri-
guez, and Bethany Li; for Asian Americans Advancing Justice et al. by
Roberto A. Rivera-Soto, Michael R. McDonald, Niyati Shah, Eri Andri-
ola, Winifred Kao, and Laboni Hoq; for the Association of American Medi-
cal Colleges et al. by Jonathan S. Franklin, Peter B. Siegal, Heather J.
Alarcon, and Frank R. Trinity; for Black Women Law Scholars by Ray-
mond P. Tolentino and Joshua Matz; for Brown University et al. by Mat-
thew S. Hellman, Ishan K. Bhabha, and Lauren J. Hartz; for the Constitu-
tional Accountability Center by Elizabeth B. Wydra, Brianne J. Gorod,
and David H. Gans; for the Council of the Great City Schools by John W.
Borkowski, Aleksandra O. Rushing, and Julie Wright Halbert; for Deans
of U. S. Law Schools by David B. Oppenheimer; for Faith Organizations
by Corrine Irish and Keith Bradley; for Georgetown University et al. by
Crystal Nix-Hines, Kathleen M. Sullivan, and Justin T. Reinheimer; for
HBCU Leaders et al. by Laurel Pyke Malson and Amanda Shafer Ber-
man; for the HR Policy Association by G. Roger King and Jacquelyn L.
Thompson; for the Law Firm Antiracism Alliance by Stephen R. McAllis-
ter and Simon A. Steel; for Legal Scholars Defending Race-Conscious Ad-
missions by Vinay Harpalani; for Major American Business Enterprises
by Michael R. Dreeben, Heather Welles, Melissa C. Cassel, and Ruthanne
192 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
Opinion of the Court
I
A
Founded in 1636, Harvard College has one of the most se-
lective application processes in the country. Over 60,000
M. Deutsch; for the Massachusetts Institute of Technology et al. by Doug-
las Hallward-Driemeier, Debra L. Zumwalt, and Dahlia Fetouh; for the
Multicultural Media, Telecom and Internet Council, Inc., et al. by Emily
Kanstroom Musgrave, Susan Finegan, and Tara M. Corvo; for the Na-
tional Academy of Education by Yelena Konanova, Caitlin J. Halligan,
and Amy I. Berman; for the National Asian Pacifc American Bar Associa-
tion et al. by Daniel H. Bromberg, Albert Giang, Rachana Pathak, and
Navdeep Singh; for the National Association of Basketball Coaches et al.
by Jaime A. Santos; for the National Black Law Students Association by
Deborah N. Archer and Vincent M. Southerland; for the National Educa-
tion Association et al. by Alice O'Brien, Jason Walta, and Nicole G.
Berner; for the National School Boards Association et al. by Pratik A.
Shah, Aileen M. McGrath, Francisco M. Negrón, Jr., and Sonja H.
Trainor; for the National Women's Law Center et al. by Richard C. Smith,
Page Proof Pending Publication
Meredith Riley, Patrick Ashby, Menaka Nayar, Fatima Goss Graves,
Emily Martin, and Sunu P. Chandy; for the President of the University
of California et al. by Ginger D. Anders, Donald B. Verrilli, Jr., Charles
F. Robinson, and Allison M. Day; for Professors of History and Law by
Kathleen Hartnett, Adam S. Gershenson, and Kristen A. Johnson; for
Southern Governors by Charles L. McCloud and Matthew J. Greer; for
United States Senators et al. by Robert A. Long, Jr., and Eric Chung; for
the University of Michigan by John P. Elwood, Stephen K. Wirth, and
Timothy G. Lynch; for the Washington Bar Association et al. by Upnit K.
Bhatti, Max Carter-Oberstone, and Daniel A. Rubens; for Youth Advo-
cates et al. by Kelly M. Dermody and Miriam Rollin; for Charles S. Abbot
et al. by Michael M. Purpura, Joe R. Reeder, Robert P. Charrow, and
Elliot H. Scherker; for Deborah Cohen et al. by Mark A. Packman; for
Robert C. “Bobby” Scott et al. by Brigida Benitez and Christopher A.
Suarez; and for 25 Diverse, California-Focused Bar Associations et al. by
Mark R. Yohalem and Eva Paterson.
Briefs of amici curiae urging affrmance in No. 20–1199 were fled for
the Anti-Defamation League by Samuel P. Groner and Steven M. Free-
man; for Professors of Economics by Derek T. Ho, Bradley E. Oppenhei-
mer, and Minsuk Han; for Students of Harvard College et al. by Elisabeth
S. Theodore, John A. Freedman, Nancy L. Perkins, Sally L. Pei, Damon
Hewitt, Jon Greenbaum, David G. Hinojosa, and Mses. Shah and Andri-
Cite as:
600 U. S. 181
(2023) 193
Opinion of the Court
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 signifcant adversity.
ola; for 25 Harvard Student Organizations et al. by Jin Hee Lee, Mi-
chaele N. Turnage Young, Jennifer A. Holmes, Janai S. Nelson, Samuel
Spital, Rachel M. Kleinman, and Cara McClellan; and for 1,241 Social
Scientists et al. by Daniel Woofter, Erica Oleszczuk Evans, and Liliana
M. Garces.
Briefs of amici curiae urging affrmance in No. 21–707 were fled for the
NAACP Legal Defense and Educational Fund, Inc., et al. by Ms. Nelson,
Mr. Spital, Alexsis M. Johnson, Mr. Lee, and Amber M. Koonce; and for
1,246 American Social Science Researchers et al. by Caroline E. Reynolds,
David A. Reiser, and William J. Murphy.
Briefs of amici curiae were fled in both cases for the American Associa-
tion for Access, Equity and Diversity et al. by Marilynn L. Schuyler; for
the Asian American Coalition for Education et al. by Gordon M. Fauth,
Jr.; for the Claremont Institute's Center for Constitutional Jurisprudence
by John C. Eastman and Anthony T. Caso; for the College Board et al. by
Page Proof Pending Publication
Michael A. Brown, Timothy P. Harkness, David Y. Livshiz, and Scott A.
Eisman; for Empirical Scholars by Susan Baker Manning; for Former
Federal Offcials of the U. S. Dept. of Education's Offce for Civil Rights
by William E. Trachman; for Freedom X by Mitchell Keiter and William
J. Becker, Jr.; for Human Rights Advocates et al. by Constance de la Vega
and Neil A. F. Popović; for Individual Scientists by Ashley Lee Hogewood
III, David R. Fine, and Andrew C. Glass; for Judicial Watch, Inc., et al.
by H. Christopher Coates; for the Legal Insurrection Foundation by Wil-
liam A. Jacobson; for the Liberty Justice Center et al. by Daniel R. Suhr;
for the LONANG Institute by Kerry Lee Morgan and Randall A. Pen-
tiuk; for Parents Defending Education by Christopher E. Mills; for Speech
First by Bradley A. Benbrook and Stephen M. Duvernay; for Veterans for
Fairness by Gene C. Schaerr, Erik S. Jaffe, H. Christopher Bartolomucci,
Hannah C. Smith, Kathryn E. Tarbert, and Claude M. McQuarrie III; for
David E. Bernstein by Cory R. Liu; for David Boyle by Mr. Boyle, pro se;
for Gail Heriot et al. by Peter N. Kirsanow and Ms. Heriot, both pro se;
for Ann M. Killenbeck et al. by Stuart Taylor, Jr.; for Former Attorney
General Edwin Meese III by Edward M. Wenger; and for Richard Sander
by Mr. Taylor. Briefs of amici curiae were fled in No. 20–1199 for the
Jewish Coalition for Religious Liberty by Kristen K. Waggoner, John J.
Bursch, David A. Cortman, and Erin Morrow Hawley; and for the South-
eastern Legal Foundation by Kimberly S. Hermann.
194 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
Opinion of the Court
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 “frst reader,” who assigns scores in six categories: academic, extracurricu- lar, 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” signifes “near- perfect standardized test scores and grades”; in the extra- curricular category, it indicates “truly unusual achievement”; and in the personal category, it denotes “outstanding” attrib- utes like maturity, integrity, leadership, kindness, and cour- age.Id.,
at 167–168. A score of “1” on the overall rating— a composite of the fve other ratings—“signifes an excep- tional candidate with >90% chance of admission.”Id., at 169
(internal quotation marks omitted). In assigning the over- all rating, the frst readers “can and do take an applicant's Page Proof Pending Publication race into account.”Ibid.
Once the frst read process is complete, Harvard convenes admissions subcommittees.Ibid.
Each subcommittee meets for three to fve days and evaluates all applicants from a particular geographic area.Ibid.
The subcommittees are responsible for making recommendations to the full ad- missions committee.Id.,
at 169–170. The subcommittees can and do take an applicant's race into account when making their recommendations.Id., at 170
. The next step of the Harvard process is the full committee meeting. The committee has 40 members, and its discussion centers around the applicants who have been recommended by the regional subcommittees.Ibid.
At the beginning of
the meeting, the committee discusses the relative 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
Cite as:
600 U. S. 181
(2023) 195
Opinion of the Court
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 composition of the pool of tentatively admitted students is disclosed to the committee. Ibid.; 2 App. in No. 20–1199, at 861. The fnal stage of Harvard's process is called the “lop,” during which the list of tentatively admitted students is win- nowed further to arrive at the fnal class. Any applicants that Harvard considers cutting at this stage are placed on a “lop list,” which contains only four pieces of information: leg- acy status, recruited athlete status, fnancial aid eligibility, and race.980 F. 3d, at 170
. The full committee decides as a group which students to lop.397 F. Supp. 3d 126
, 144 (Mass. 2019). In doing so, the committee can and does take race into account.Ibid.
Once the lop process is complete, Harvard's admitted class is set.Ibid.
In the Harvard ad-
Page Proof Pending Publication
missions process, “race is a determinative tip for” a signif-
cant percentage “of all admitted African American and His-
panic applicants.” Id., at 178.
B
Founded just nine months after the Constitution was rati-
fed, the University of North Carolina (UNC) prides itself on
being the “nation's frst public university.”
567 F. Supp. 3d 580
, 588 (MDNC 2021). Like Harvard, UNC's “admissions process is highly selective”: In a typical year, the school “re- ceives approximately 43,500 applications for its freshman class of 4,200.”Id., at 595
. Every application the University receives is initially re- viewed by one of approximately 40 admissions offce readers, each of whom reviews roughly fve 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
196 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
Opinion of the Court
academic performance and rigor, standardized testing re-
sults, extracurricular involvement, essay quality, personal
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, underrepre- sented minority students were “more likely to score [highly] on their personal ratings than their white and Asian American peers,” but were more likely to be “rated lower by UNC readers on their academic program, academic perform- ance, . . . extracurricular activities,” and essays.Id.,
at 616–617. After assessing an applicant's materials along these lines, the reader “formulates an opinion about whether the student should be offered admission” and then “writes a comment defending his or her recommended decision.”Id., at 598
(in- ternal quotation marks omitted). In making that decision, Page Proof Pending Publication readers may offer students a “plus” based on their race, which “may be signifcant in an individual case.”Id., at 601
(internal quotation marks omitted). The admissions deci-
sions made by the frst readers are, in most cases, “provision-
ally fnal.” 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 frst 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,
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 frst
reader, after which the admissions decisions are fnalized.
Ibid. In making those decisions, the review committee may
Cite as:
600 U. S. 181
(2023) 197
Opinion of the Court
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 non-
proft organization founded in 2014 whose purpose is “to de-
fend 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 Novem-
ber 2014, SFFA fled separate lawsuits against Harvard Col-
lege and the University of North Carolina, arguing that their
1
Justice Jackson attempts to minimize the role that race plays in
UNC's admissions process by noting that, from 2016–2021, the school ac-
cepted 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 ap-
plicants (98.16%). Post, at 402 (dissenting opinion); see also 3 App. in No.
21–707, pp. 1078–1080. It is not clear how the rejection of just two black
Page Proof Pending Publication
applicants over fve years could be “indicative of a genuinely holistic [ad-
missions] process,” as Justice Jackson contends. Post, at 403. And in-
deed 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 applicants 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
fgures. See post, at 402–403, n. 94 (opinion of Jackson, J). And its con-
tention that white and Asian students “receive a diversity plus” in UNC's
race-based admissions system blinks reality. Post, at 400.
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).
198 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
Opinion of the Court
race-based admissions programs violated, respectively, 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 Four- teenth 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. See980 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 Harvard'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 affrmed that determination. See980 F. 3d, at 204
. Similarly, in the UNC case, the District Court con-
cluded after an eight-day trial that UNC's admissions pro-
gram was permissible under 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).
Page Proof Pending Publication
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-
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 benefts of, or be subjected to discrimination under any
program or activity receiving Federal fnancial assistance.” 42 U. S. C.
§ 2000d. “We have explained that discrimination that violates the Equal
Protection Clause of the Fourteenth Amendment committed by an institu-
tion 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. 181
(2023) 199
Opinion of the Court
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 determina- tion of real, earnest and vital” disputes. Muskrat v. United States,219 U. S. 346, 351, 359
(1911) (internal quotation marks omitted). “To state a case or controversy under Arti- cle III, a plaintiff must establish standing.” Arizona Chris- tian School Tuition Organization v. Winn,563 U. S. 125
, 133 (2011). That, in turn, requires a plaintiff to demonstrate that it has “(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Spokeo, Inc. v. Robins,578 U. S. 330, 338
(2016). Page Proof Pending Publication In cases like these, where the plaintiff is an organization, the standing requirements of Article III can be satisfed 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 stand- ing. Ibid.; Summers, 555 U. S., at 497–498. To invoke it, an organization must demonstrate that “(a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organiza- tion's purpose; and (c) neither the claim asserted nor the re- lief requested requires the participation of individual mem- bers in the lawsuit.” Hunt v. Washington State Apple Advertising Comm'n,432 U. S. 333, 343
(1977). Respondents do not contest that SFFA satisfes the three- part test for organizational standing articulated in Hunt, and like the courts below, we fnd no basis in the record to con- clude otherwise. See 980 F. 3d, at 182–184;397 F. Supp. 3d, 200
STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
Opinion of the Court
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 Opin-
ion). Respondents instead argue that SFFA was not a “gen-
uine `membership organization' ” when it fled suit, and thus
that it could not invoke the doctrine of organizational stand-
ing in the frst place. Brief for University Respondents in
No. 21–707, at 24. According to respondents, 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 commenced, respondents' argument goes,
SFFA could not represent its members for purposes of Arti-
cle III standing. Brief for University Respondents in No.
21–707, at 24 (citing 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 chal- Page Proof Pending Publication lenging a North Carolina statute that imposed a labeling re- quirement on containers of apples sold in that State. The Commission argued that it had standing to challenge the re- quirement on behalf of Washington's apple industry. Seeid.,
at 336–341. We recognized, however, that as a state agency, “the Commission [wa]s not a traditional voluntary membership organization . . . , for it ha[d] no members at all.”Id., at 342
. As a result, we could not easily apply the three-part test for organizational standing, which asks whether an organization's members have standing. We nev- ertheless concluded that the Commission had standing be- cause the apple growers and dealers it represented were ef- fectively 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 fnance[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
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600 U. S. 181
(2023) 201
Opinion of the Court
rely on the doctrine of organizational standing under the
three-part test recounted above. Id., at 343.
The indicia of membership analysis employed in Hunt has
no applicability in these cases. Here, SFFA is indisputably
a voluntary membership organization with identifable mem-
bers—it is not, as in Hunt, a state agency that concededly
has no members. See 2018 DC Opinion 241–242. As the
First Circuit in the Harvard litigation observed, at the time
SFFA fled suit, it was “a validly incorporated 501(c)(3) non-
proft 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 particu- lar—high school graduates who were denied admission to UNC. See 2018 DC Opinion 234. Those members fled dec- larations with the District Court stating “that they have vol- untarily joined SFFA; they support its mission; they receive updates about the status of the case from SFFA's President; and they have had the opportunity to have input and direc- Page Proof Pending Publication tion on SFFA's case.”Id.,
at 234–235 (internal quotation
marks omitted). Where, as here, an organization has identi-
fed members and represents them in good faith, our cases
do not require further scrutiny into how the organization
operates. Because SFFA complies with the standing re-
quirements demanded of organizational plaintiffs in Hunt, its
obligations under Article III are satisfed.
III
A
In the wake of the Civil War, Congress proposed and the
States ratifed 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] principle”—
“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)
202 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
Opinion of the Court
(Cong. Globe). The Constitution, they were determined,
“should not permit any distinctions of law 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. 41
(detailing the history of the adoption of the Equal Protection
Clause), because any “law which operates upon one man
[should] operate equally upon all,” Cong. Globe 2459 (state-
ment of Rep. Stevens). As soon-to-be President James Gar-
feld observed, the Fourteenth Amendment would hold “over
every American citizen, without regard to color, the protect-
ing shield of law.” Id., at 2462. And in doing so, said Sena-
tor 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
Page Proof Pending Publication
government and none that is really worth maintaining.”
Ibid.
At frst, 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 (1880). “[T]he broad and benign provisions of the 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 justifed.” Yick Wo v. Hopkins,118 U. S. 356
, 368–369, 373–374 (1886); see alsoid., at 368
(applying the Clause to “aliens and sub- jects 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-
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600 U. S. 181
(2023) 203
Opinion of the Court
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
America.
163 U. S. 537
(1896). The aspirations of the fram- ers of the Equal Protection Clause, “[v]irtually strangled in [their] infancy,” would remain for too long only that—aspira- tions. 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 perni- ciousness of the doctrine by emphasizing that it required States to provide black students educational opportunities Page Proof Pending Publication equal to—even if formally separate from—those enjoyed by white students. See, e. g., Missouri ex rel. Gaines v. Can- ada,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 inherent folly of that approach—of trying to derive equal- ity from inequality—soon became apparent. As the Court subsequently recognized, even racial distinctions that were ar- gued to have no palpable effect worked to subordinate the af- ficted students. See, e. g., McLaurin v. Oklahoma State Re- gents 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 students.”). By 1950,
the inevitable truth of the Fourteenth Amendment had thus
begun to reemerge: Separate cannot be equal.
The culmination of this approach came fnally in Brown v.
Board of Education. In that seminal decision, we over-
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turned Plessy for good and set frmly 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 sepa-
rating “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
Page Proof Pending Publication
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
dedicated belief.”); post, at 268, n. 7 (Thomas, J., concurring).
The Court reiterated that rule just one year later, holding
that “full compliance” with Brown required schools to admit
students “on a racially nondiscriminatory basis.” Brown v.
Board of Education,
349 U. S. 294
, 300–301 (1955). The time for making distinctions based on race had passed. Brown, the Court observed, “declar[ed] the fundamental principle that racial discrimination in public education is un- constitutional.”Id., at 298
.
So too in other areas of life. Immediately after Brown,
we began routinely affrming lower court decisions that in-
validated all manner of race-based state action. In Gayle
v. Browder, for example, we summarily affrmed a decision
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invalidating 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 Baltimore v. Dawson, we summarily affrmed a decision striking 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). “[I]t is obvi- ous 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 vindi- Page Proof Pending Publication cate the Constitution's pledge of racial equality. Laws di- viding parks and golf courses; neighborhoods and businesses; buses and trains; schools and juries were undone, all by a transformative promise “stemming from our American ideal of fairness”: “ `the Constitution . . . forbids . . . discrimination by the General Government, or by the States, against any citizen because of his race.' ” Bolling v. Sharpe,347 U. S. 497, 499
(1954) (quoting Gibson v. Mississippi,162 U. S. 565, 591
(1896) (Harlan, J., for the Court)). As we recounted in striking down the Commonwealth of Virginia's ban on inter- racial marriage 13 years after Brown, the Fourteenth Amendment “proscri[bes] . . . all invidious racial discrimina- tions.” Loving v. Virginia,388 U. S. 1, 8
(1967). Our cases had thus “consistently denied the constitutionality of meas- ures which restrict the rights of citizens on account of race.”Id.,
at 11–12; see also Yick Wo, 118 U. S., at 373–375 (commer- cial property); Shelley v. Kraemer,334 U. S. 1
(1948) (housing covenants); Hernandez v. Texas,347 U. S. 475
(1954) (composi- tion of juries); Dawson,350 U. S., at 877
(beaches and bath-
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houses); Holmes v. Atlanta,
350 U. S. 879
(1955) (per curiam) (golf courses); Browder,352 U. S., at 903
(busing); New Or- leans City Park Improvement Assn. v. Detiege,358 U. S. 54
(1958) (per curiam) (public parks); Bailey v. Patterson,369 U. S. 31
(1962) (per curiam) (transportation 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 refect 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 recog- nized that repeatedly. “The clear and central purpose of the Fourteenth Amendment was to eliminate all offcial 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 Pro- tection Clause of the Fourteenth Amendment is the preven- Page Proof Pending Publication tion of offcial conduct discriminating on the basis of race.”); McLaughlin v. Florida,379 U. S. 184, 192
(1964) (“[T]he his- torical fact [is] that the central purpose of the Fourteenth Amendment was to eliminate racial discrimination.”). 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 ac- corded the same protection, then it is not equal.”Id., at 290
. Any exception to the Constitution's demand for equal protection must survive a daunting two-step examination known in our cases as “strict scrutiny.” Adarand Construc- tors, Inc. v. Peña,515 U. S. 200, 227
(1995). Under that
standard we ask, frst, whether the racial classifcation
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is used to “further compelling governmental interests.”
Grutter v. Bollinger,
539 U. S. 306, 326
(2003). Second, if so, we ask whether the government's use of race is “nar- rowly tailored”—meaning “necessary”—to achieve that in- terest. 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 identifed only two compelling interests that permit re- sort to race-based government action. One is remediating specifc, identifed instances of past discrimination that vio- lated 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 248–249, 259–260 (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. Cali- fornia,543 U. S. 499
, 512–513 (2005).3
Page
3
Proof Pending Publication
The frst time we determined that a governmental racial classifcation
satisfed “the most rigid scrutiny” was 10 years before Brown v. Board of
Education,
347 U. S. 483
(1954), in the infamous case Korematsu v. United States,323 U. S. 214, 216
(1944). There, the Court upheld the internment of “all persons of Japanese ancestry in prescribed West Coast . . . areas” during World War II because “the military urgency of the situation de- manded” it.Id., at 217, 223
. We have since overruled Korematsu, rec- ognizing that it was “gravely wrong the day it was decided.” Trump v. Hawaii, 585 U. S. –––, ––– (2018). The Court's decision in Korematsu nevertheless “demonstrates vividly that even the most rigid scrutiny can sometimes fail to detect an illegitimate racial classifcation” and that “[a]ny retreat from the most searching judicial inquiry can only increase the risk of another such error occurring in the future.” Adarand Con- structors, 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 permit- ted “the use of race when that use burdens minority populations.” Post, at 354–355 (opinion of Sotomayor, J.). In support of that claim, the dis- sent cites two cases that have nothing to do with the Equal Protection Clause. Seeibid.
(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)).
208 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 admis-
sions decisions that turn on an applicant's race. Our Court
frst considered that issue in Regents of University of Cali-
fornia v. Bakke, which involved a set-aside admissions pro-
gram used by the University of California, Davis, medical
school. 438 U. S., at 272–276. Each year, the school held 16
of its 100 seats open for members of certain minority groups,
who were reviewed on a special admissions track separate
Page Proof Pending Publication
from those in the main admissions pool.
Id.,
at 272–275. The plaintiff, Allan Bakke, was denied admission two years in a row, despite the admission of minority applicants with lower grade point averages and MCAT scores.Id.,
at 276– 277. Bakke subsequently sued the school, arguing 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 fnding three of the school's four
justifcations for its policy not suffciently compelling. The
school's frst justifcation of “reducing the historic defcit of
traditionally disfavored minorities in medical schools,” he
wrote, was akin to “[p]referring members of any one group
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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 insuffcient because it was “an amorphous concept of in- jury that may be ageless in its reach into the past.” Bakke,438 U. S., at 307
. Finally, Justice Powell found there was “virtually no evidence in the record indicating that [the school's] special admissions program” would, as the school had argued, increase the number of doctors working in un- derserved areas.Id., at 310
. Justice Powell then turned to the school's last interest as- serted to be compelling—obtaining the educational benefts that fow from a racially diverse student body. That inter- est, in his view, was “a constitutionally permissible goal for Page Proof Pending Publication 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 em- ploy a quota system, for example, reserving “a specifed num- ber of seats in each class for individuals from the preferred ethnic groups.”Id., at 315
. Nor could it impose a “multi- track program with a prescribed number of seats set aside for each identifable 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 fle.”Id., at 317
. And
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even then, race was to be weighed in a manner “fexible
enough to consider all pertinent elements of diversity in light
of the particular qualifcations of each applicant.”
Ibid.
Justice Powell derived this approach from what he called the “illuminating example” of the admissions system then used by Harvard College.Id., at 316
. Under that system, as de- scribed by Harvard in a brief it had fled 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 bal- ance in other candidates' cases.”Ibid.
(internal quotation marks omitted). Harvard continued: “A farm boy from Idaho can bring something to Harvard College that a Bosto- nian cannot offer. Similarly, a black student can usually bring something that a white person cannot offer.”Ibid.
(internal quotation marks omitted). The result, Harvard proclaimed, was that “race has been”—and should be—“a factor in some admission decisions.”Ibid.
(internal quota- Page Proof Pending Publication tion 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., con-
curring in judgment in part and dissenting in part). Four
other Justices, meanwhile, would have struck down the
Davis program as violative of Title VI. In their view, it
“seem[ed] clear that the proponents of Title VI assumed that
the Constitution itself required a colorblind standard on the
part of government.” Id., at 416 (Stevens, J., joined by
Burger, C. J., and Stewart and Rehnquist, JJ., concurring in
judgment in part and dissenting in part). The Davis pro-
gram therefore fatly contravened a core “principle imbedded
in the constitutional and moral understanding of the times”:
the prohibition against “racial discrimination.” Id., at 418,
n. 21 (internal quotation marks omitted).
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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 frst 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 defer.”Id., at 328
. In achieving that goal, however, the Page Proof Pending Publication 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 de- sire “some specifed percentage of a particular group merely because of its race or ethnic origin.”Id.,
at 329–330 (quot- ing 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 frst 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 admis-
sions programs on the “belief that minority students always
(or even consistently) express some characteristic minority
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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 discrimi- nate against those racial groups that were not the benefci- aries 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 classifcations, however compelling their goals,” were “dangerous.” Grutter,539 U. S., at 342
. And it cautioned that all “race-based governmental action” should “remai[n] subject to continuing oversight to assure that it will work the Page Proof Pending Publication least harm possible to other innocent persons competing for the beneft.”Id., at 341
(internal quotation marks omitted). To manage these concerns, Grutter imposed one fnal limit on race-based admissions programs. At some point, the Court held, they must end.Id., at 342
. This requirement was critical, and Grutter emphasized it repeatedly. “[A]ll race-conscious admissions programs [must] have a termina- tion point”; they “must have reasonable durational limits”; they “must be limited in time”; they must have “sunset pro- visions”; they “must have a logical end point”; their “devia- tion from the norm of equal treatment” must be “a tempo- rary matter.”Ibid.
(internal quotation marks omitted). The importance of an end point was not just a matter of repetition. It was the reason the Court was willing to dispense temporarily with the Constitution's unambigu- ous guarantee of equal protection. The Court recognized as much: “[e]nshrining a permanent justifcation for racial preferences,” the Court explained, “would offend this funda- mental equal protection principle.” Ibid.; see alsoid.,
at
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342–343 (quoting N. Nathanson & C. Bartnik, The Constitu-
tionality of Preferential Treatment for Minority Applicants
to Professional Schools, 58 Chi. Bar Rec. 282, 293 (May–June
1977), for the proposition that “[i]t would be a sad day in-
deed, were America to become a quota-ridden society, with
each identifable minority assigned proportional representa-
tion in every desirable walk of life”).
Grutter thus concluded with the following caution: “It has
been 25 years since Justice Powell frst 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.
IV
Twenty years later, no end is in sight. “Harvard's view
about when [race-based admissions will end] doesn't have a
Page Proof Pending Publication
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 confnes of narrow restrictions. University programs
must comply with strict scrutiny, they may never use race
as a stereotype or negative, and—at some point—they must
end. Respondents' admissions systems—however well in-
tentioned and implemented in good faith—fail each of these
criteria. They must therefore be invalidated under the
Equal Protection Clause of the Fourteenth Amendment.4
4
The United States as amicus curiae contends that race-based admis-
sions programs further compelling interests at our Nation's military acad-
emies. No military academy is a party to these cases, however, and none
of the courts below addressed the propriety of race-based admissions sys-
tems in that context. This opinion also does not address the issue, in light
of the potentially distinct interests that military academies may present.
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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 “suff- ciently measurable to permit judicial [review]” under the ru- bric of strict scrutiny, Fisher v. University of Tex. at Austin,579 U. S. 365, 381
(2016) (Fisher II). “Classifying and as- signing” students based on their race “requires more than . . . an amorphous end to justify it.” Parents Involved,551 U. S., at 735
.
Respondents have fallen short of satisfying that burden.
First, the interests they view as compelling cannot be sub-
jected to meaningful judicial review. Harvard identifes the
following educational benefts 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 soci-
Page Proof Pending Publication
ety”; (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
benefts, namely, “(1) promoting the robust exchange of ideas;
(2) broadening and refning understanding; (3) fostering inno-
vation and problem-solving; (4) preparing engaged and pro-
ductive citizens and leaders; [and] (5) enhancing appreciation,
respect, and empathy, cross-racial understanding, and break-
ing down stereotypes.” 567 F. Supp. 3d, at 656.
Although these are commendable goals, they are not suff-
ciently 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
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at which there exists suffcient “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
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
beneft makes members of the discriminated class “whole for
[the] injuries [they] suffered.” Franks v. Bowman Transp.
Page Proof Pending Publication
Co.,
424 U. S. 747, 763
(1976) (internal quotation marks omit- ted). And in school segregation cases, courts can determine whether any race-based remedial action produces a distribu- tion of students “compar[able] to what it would have been in the absence of such constitutional violations.” Dayton Bd. of Ed. v. Brinkman,433 U. S. 406, 420
(1977).
Nothing like that is possible when it comes to evaluating
the interests respondents assert here. Unlike discerning
whether a prisoner will be injured or whether an employee
should receive backpay, the question whether a particular
mix of minority students produces “engaged and productive
citizens,” suffciently “enhance[s] appreciation, respect, and
empathy,” or effectively “train[s] future leaders” is standard-
less. 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
216 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
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benefts of diversity, UNC works to avoid the underrepresen-
tation of minority groups, 567 F. Supp. 3d, at 591–592, and
n. 7, while Harvard likewise “guard[s] against inadvertent
drop-offs in representation” of certain minority groups from
year to year, Brief for Respondent in No. 20–1199, at 16.
To accomplish both of those goals, in turn, the universities
measure the racial composition of their classes using the fol-
lowing categories: (1) Asian; (2) Native Hawaiian or Pacifc
Islander; (3) Hispanic; (4) White; (5) African-American; and
(6) Native American. See, e. g., 397 F. Supp. 3d, at 137, 178;
3 App. in No. 20–1199, at 1278, 1280–1283; 3 App. in No. 21–
707, at 1234–1241. It is far from evident, though, how as-
signing students to these racial categories and making ad-
missions decisions based on them furthers the educational
benefts that the universities claim to pursue.
For starters, the categories are themselves imprecise in
many ways. Some of them are plainly overbroad: by group-
Page Proof Pending Publication
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 undefned. 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 . . . refect[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 Mid-
dle Eastern countries classifed, [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 291–292 (Gorsuch, J., concurring) (detail-
ing the “incoherent” and “irrational stereotypes” that these
racial categories further).
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Opinion of the Court
Indeed, the use of these opaque racial categories under-
mines, instead of promotes, respondents' goals. By focusing
on underrepresentation, respondents would apparently pre-
fer a class with 15% of students from Mexico over a class
with 10% of students from several Latin American countries,
simply because the former contains more Hispanic students
than the latter. Yet “[i]t is hard to understand how a plan
that could allow these results can be viewed as being con-
cerned with achieving enrollment that is `broadly diverse.' ”
Parents Involved,
551 U. S., at 724
(quoting Grutter,539 U. S., at 329
). And given the mismatch between the means respondents employ and the goals they seek, it is especially hard to understand how courts are supposed to scrutinize the admissions programs that respondents use. The universities' main response to these criticisms is, es- sentially, “trust us.” None of the questions recited above need answering, they say, because universities are “owed Page Proof Pending Publication deference” when using race to beneft 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 prescribed lim- its,” 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 defne their missions as they see ft. The Constitution defnes ours. Courts may not license separating students on the basis of race without an exceedingly persuasive justifcation that is measurable and concrete enough to permit judicial review. As this Court has repeatedly reaffrmed, “[r]acial classifcations are simply too pernicious to permit any but the most exact con- nection between justifcation and classifcation.” Gratz v. Bollinger,539 U. S. 244, 270
(2003) (internal quotation marks
218 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
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omitted). The programs at issue here do not satisfy that
standard.5
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 “nega-
tive” 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 consider-
ation of race has led to an 11.1% decrease in the number of
Asian-Americans admitted to Harvard.
980 F. 3d, at 170, n. 29
. And the District Court observed that Harvard's “pol-
icy 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
Page Proof Pending Publication
is never a negative factor in their admissions programs, but
that assertion cannot withstand scrutiny. Harvard, for ex-
ample, draws an analogy between race and other factors it
considers in admission. “[W]hile admissions offcers may
give a preference to applicants likely to excel in the Harvard-
Radcliffe Orchestra,” Harvard explains, “that does not mean
it is a `negative' not to excel at a musical instrument.” Brief
for Respondent in No. 20–1199, at 51. But on Harvard's
logic, while it gives preferences to applicants with high
grades and test scores, “that does not mean it is a `negative' ”
to be a student with lower grades and lower test scores.
Ibid. This understanding of the admissions process is hard
to take seriously. College admissions are zero-sum. A ben-
5
For that reason, one dissent candidly advocates abandoning the de-
mands of strict scrutiny. See post, at 407–410 (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 fdelity to history (to say
nothing of the law) should surely see the folly in that approach.
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600 U. S. 181
(2023) 219
Opinion of the Court
eft provided to some applicants but not to others necessarily
advantages the former group at the expense of the latter.
Respondents also suggest that race is not a negative factor
because it does not impact many admissions decisions. See
id., at 49; Brief for University Respondents in No. 21–707,
at 2. Yet, at the same time, respondents also maintain that
the demographics of their admitted classes would meaning-
fully change if race-based admissions were abandoned. And
they acknowledge that race is determinative for at least
some—if not many—of the students they admit. See, e. g.,
Tr. of Oral Arg. in No. 20–1199, at 67; 567 F. Supp. 3d, at
633. How else but “negative” can race be described if, in its
absence, members of some racial groups would be admitted
in greater numbers than they otherwise would have been?
The “[e]qual protection of the laws is not achieved through
indiscriminate imposition of inequalities.” Shelley,
334 U. S., at 22
.6 Respondents' admissions programs are infrm for a second Page Proof Pending Publication reason as well. We have long held that universities may not operate their admissions programs on the “belief that minor- ity students always (or even consistently) express some char- acteristic minority viewpoint on any issue.” Grutter,539 U. S., at 333
(internal quotation marks omitted). That re-
quirement is found throughout our Equal Protection Clause
6
Justice Jackson contends that race does not play a “determinative
role for applicants” to UNC. Post, at 406. 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 349, 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 sug-
gestion by the principal dissent that our analysis relies on extra-record
materials, see post, at 345–346, n. 25 (opinion of Sotomayor, J.), is sim-
ply mistaken.
220 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
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jurisprudence more generally. See, e. g., Schuette v. BAMN,
572 U. S. 291, 308
(2014) (plurality opinion) (“In cautioning against `impermissible racial stereotypes,' this Court has re- jected the assumption that `members of the same racial group—regardless of their age, education, economic status, or the community in which they live—think alike . . . .' ” (quoting Shaw v. Reno,509 U. S. 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 respondents' admissions programs is that there is an inherent beneft in race qua race—in race for race's sake. Respondents admit as much. Harvard's admissions process rests on the perni- cious 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 Page Proof Pending Publication 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 preference to those “who may have little in common with one another but the color of their skin.” Shaw,509 U. S., at 647
. The entire point of the 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 sub- urb, or because they play the violin poorly or well. “One of the principal reasons race is treated as a forbidden classifcation 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
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Opinion of the Court
[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 doing so, the university furthers “stereotypes that treat indi- viduals 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
.
Page Proof Pending Publication
Respondents and the Government frst 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 representa-
tion, respondents assert, does not involve any “strict numeri-
cal benchmark,” id., at 86; or “precise number or percent-
age,” id., at 167; or “specifed 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 identi-
ties.” 397 F. Supp. 3d, at 146. And “if at some point in
the admissions process it appears that a group is notably
underrepresented or has suffered a dramatic drop off relative
to the prior year, the Admissions Committee may decide
to give additional attention to applications from students
within that group.” Ibid.; see also id., at 147 (District Court
222 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
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Opinion of the Court
fnding that Harvard uses race to “track[ ] 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,
at 821–822.
The results of the Harvard admissions process refect 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:
Page Proof Pending Publication
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 re-
fects the fact that the racial makeup of Harvard's applicant pool also var-
ies very little over this period.” Post, at 351 (opinion of Sotomayor, J.)
(internal quotation marks omitted). But that is exactly the point: Har-
vard must use precise racial preferences year in and year out to maintain
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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 percent-
age 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 explains, in part due
to its failure to obtain closer to proportional 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 omitted). That is so, we have repeatedly explained, because “[a]t the heart of the Constitution's guarantee of equal protection lies Page Proof Pending Publication the simple command that the Government must treat citizens as individuals, not as simply components of a racial, religious, sexual or national class.” Miller,515 U. S., at 911
(internal
quotation marks omitted). By promising to terminate their
use of race only when some rough percentage of various ra-
cial groups is admitted, respondents turn that principle on
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 Asian students at Har-
vard varied signifcantly from 1980 to 1994—a 14-year period that ended
nearly three decades ago. 4 App. in No. 20–1199, at 1770. But the rele-
vance of that observation—handpicked and truncated 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 benefciaries” of its race-
based admissions policy—has remained consistent 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.
224 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
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its head. Their admissions programs “effectively assure[ ]
that race will always be relevant . . . and that the ultimate
goal of eliminating” race as a criterion “will never be
achieved.” Croson,
488 U. S., at 495
(internal quotation marks omitted). Respondents' second proffered end point fares no better. Respondents assert that universities will no longer need to engage in race-based admissions when, in their absence, stu- dents nevertheless receive the educational benefts of diver- sity. But as we have already explained, it is not clear how a court is supposed to determine when stereotypes have bro- ken down or “productive citizens and leaders” have been cre- ated. 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 “diffcult to measure.” Tr. of Oral Arg. in No. 21–707, at 78; but see Page Proof Pending Publication Fisher II,579 U. S., at 381
(requiring race-based admissions
programs to operate in a manner that is “sufficiently
measurable”).
Third, respondents suggest that race-based preferences
must be allowed to continue for at least fve more years,
based on the Court's statement in Grutter that it “expect[ed]
that 25 years from now, the use of racial preferences will no
longer be necessary.” 539 U. S., at 343. The 25-year mark
articulated in Grutter, however, refected only that Court's
view that race-based preferences would, by 2028, be unneces-
sary 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 fve years, and both universities
thus expect to continue using race as a criterion well beyond
the time limit that Grutter suggested. See Tr. of Oral Arg.
in No. 20–1199, at 84–85; Tr. of Oral Arg. in No. 21–707, at
85–86. Indeed, the high school applicants that Harvard and
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Opinion of the Court
UNC will evaluate this fall using their race-based admissions
systems are expected to graduate in 2028—25 years after
Grutter was decided.
Finally, respondents argue that their programs need not
have an end point at all because they frequently review them
to determine whether they remain necessary. See Brief for
Respondent in No. 20–1199, at 52; Brief for University Re-
spondents in No. 21–707, at 58–59. Respondents point
to language in Grutter that, they contend, permits “the du-
rational requirement [to] be met” with “periodic reviews
to determine whether racial preferences are still necessary
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
programs eventually had to end—despite whatever perio-
dic review universities conducted. Ibid.; see also supra,
Page Proof Pending Publication
at 209–210.
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 respondents will—even acting in good faith—comply
with the Equal Protection Clause any time soon.
226 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
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V
The dissenting opinions resist these conclusions. They
would instead uphold respondents' admissions programs
based on their view that the Fourteenth Amendment permits
state actors to remedy the effects of societal discrimination
through explicitly race-based measures. Although both
opinions are thorough and thoughtful in many respects, 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 ffth vote and controlling opinion in Bakke, frmly rejected the notion that societal discrimination Page Proof Pending Publication constituted a compelling interest. Such an interest presents “an amorphous concept of injury that may be ageless in its reach into the past,” he explained.Id., at 307
. It cannot “justify a [racial] classifcation that imposes disadvantages upon persons . . . who bear no responsibility for whatever harm the benefciaries of the [race-based] admissions pro- gram 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 constitute
a compelling interest that justifes race-based state action.
“[A]n effort to alleviate the effects of societal discrimination
is not a compelling interest,” we said plainly in Hunt, a 1996
case about the 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 disadvan-
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Opinion of the Court
taged 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 mosaic of shifting preferences based on inherently unmeasurable claims of past wrongs.”Id.,
at 505–506. “[S]uch a result would be con- trary to both the letter and spirit of a constitutional provi- sion whose central command is equality.”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
mention that the entirety of their analysis of the Equal Pro-
tection Clause—the statistics, the cases, the history—has
been considered and rejected before. There is a reason the
principal dissent must invoke Justice Marshall's partial dis-
sent 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 fourishes about colorblind-
ness,” post, at 331 (opinion of Sotomayor, J.), are in fact the
Page Proof Pending Publication
proud pronouncements of cases like Loving and Yick Wo, like
Shelley and Bolling—they are defning statements 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 pursuing 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 indefnitely, until “racial in-
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 337 (opin-
ion of Sotomayor, J.). Such institutions should perhaps be the very last
ones to be allowed to make race-based decisions, let alone be accorded
deference in doing so. In any event, neither university defends its admis-
sions 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 justifcation for our policy.”). Nor has any decision
of ours permitted a remedial justifcation for race-based college admis-
sions. Cf. Bakke,
438 U. S., at 307
(opinion of Powell, J.).
228 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
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equality will end.” Post, at 370 (opinion of Sotomayor, J.).
But Grutter did no such thing. It emphasized—not once or
twice, but at least six separate times—that race-based ad-
missions programs “must have reasonable durational limits”
and that their “deviation from the norm of equal treatment”
must be “a temporary matter.” 539 U. S., at 342. The
Court also disclaimed “[e]nshrining a permanent justifcation
for racial preferences.” Ibid. Yet the justifcation 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 Univer-
sity 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 301
. But neither Harvard nor UNC claims to be using the critical mass concept—indeed, the universities Page Proof Pending Publication admit they do not even know what it means. See 1 App. in No. 21–707, at 402 (“[N]o one has directed anybody to achieve a critical mass, and I'm not even sure we would know what it is.” (testimony of UNC administrator)); 3 App. in No. 20–1199, at 1137–1138 (similar testimony from Harvard administrator). Fisher II also recognized the “enduring challenge” that race-based admissions systems place on “the constitutional promise of equal treatment.”579 U. S., at 388
. The Court thus reaffrmed 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 that same policy” going forward.579 U. S., at 388
(emphasis added); see also Fisher I,570 U. S., at 313
(recognizing that “Grutter
. . . approved the plan at issue upon concluding that it . . .
was limited in time”). And the Court openly acknowledged
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Opinion of the Court
that its decision offered limited “prospective guidance.”
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 repeated de- mands that race-based admissions programs must end go overlooked—contorted, worse still, into a demand that such programs never stop. Most troubling of all is what the dissent defends by mak- ing these omissions: a judiciary that picks winners and losers based on the color of their skin. While the dissent would certainly not permit university programs that discriminated against black and Latino applicants, it is perfectly willing to Page Proof Pending Publication let the programs here continue. In its view, this Court is supposed to tell state actors when they have picked the right races to beneft. Separate but equal is “inherently un- equal,” said Brown.347 U. S., at 495
(emphasis added). It
depends, says the dissent.
9
The principal dissent rebukes the Court for not considering adequately
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 admis-
sions programs be limited in time. See supra, at 212. Grutter indeed
went so far as to suggest a specifc period of reliance—25 years—preclud-
ing the indefnite reliance interests that the dissent articulates. Cf. post,
at 312–313 (Kavanaugh, J., concurring). Those interests are, moreover,
vastly overstated on their own terms. Three out of every fve American
universities do not consider race in their admissions decisions. See Brief
for Respondent in No. 20–1199, p. 40. And several States—including
some of the most populous (California, Florida, and Michigan)—have pro-
hibited race-based admissions outright. See Brief for Oklahoma et al. as
Amici Curiae 9, n. 6.
230 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
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That is a remarkable view of the judicial role—remarkably
wrong. Lost in the false pretense of judicial humility that
the dissent espouses is a claim to power so radical, so de-
structive, that it required a Second Founding to undo. “Jus-
tice Harlan knew better,” one of the dissents decrees. Post,
at 388 (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
classes among citizens.” Plessy,
163 U. S., at 559
(Har-
lan, 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
suffciently focused and measurable objectives warranting
Page Proof Pending Publication
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 opin-
ion should be construed as prohibiting universities from con-
sidering an applicant's discussion of how race affected his or
her life, be it through discrimination, inspiration, or other-
wise. See, e. g., 4 App. in No. 21–707, at 1725–1726, 1741
(under seal); Students for Fair Admissions, Inc. v. Univer-
sity of N. C. at Chapel Hill, No. 1:14–cv–954 (MDNC, Feb.
5, 2021), ECF Doc. 246, pp. 14–15, ¶¶25–26 (summarizing
sealed material); 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 dissenting
opinion is generally not the best source of legal advice on
how to comply with the majority opinion.) “[W]hat cannot
be done directly cannot be done indirectly. The Constitu-
tion deals with substance, not shadows,” and the prohibition
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(2023) 231
Thomas, J., concurring
against racial discrimination is “levelled at the thing, not the
name.”Cummings v. Missouri,
4 Wall. 277, 325
(1867). A beneft to a student who overcame racial discrimination, for example, must be tied to that student's courage and determi- nation. Or a beneft to a student whose heritage 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 experiences as an indi- vidual—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. Page Proof Pending Publication It is so ordered. Justice Jackson took no part in the consideration or deci- sion of the case in No. 20–1199. Justice Thomas, concurring. In the wake of the Civil War, the country focused its atten- tion 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 privileges or im- munities of citizenship and the equal protection of the laws. Amdts. 13, 14. Because of that second founding, “[o]ur Con- stitution 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 fowed over time. After forsaking the principle
for decades, offering a judicial imprimatur to segregation
232 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
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and ushering in the Jim Crow era, the Court fnally cor-
rected course in Brown v. Board of Education,
347 U. S. 483
(1954), announcing that primary schools must either desegre- gate 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 benefts 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 Page Proof Pending Publication overruled. Fisher v. University of Tex. at Austin,570 U. S. 297, 315, 328
(2013) (Fisher I) (concurring opinion); Fisher v. University of Tex. at Austin,579 U. S. 365, 389
(2016) (dis-
senting opinion). Today, and despite a lengthy interregnum,
the Constitution prevails.
Because the Court today applies genuine strict scrutiny to
the race-conscious admissions policies employed at Harvard
and the University of North Carolina (UNC) and fnds that
they fail that searching review, I join the majority opinion
in full. I write separately to offer an originalist defense of
the colorblind Constitution; to explain further the faws of
the Court's Grutter jurisprudence; to clarify that all forms of
discrimination based on race—including so-called affrmative
action—are prohibited under the Constitution; and to empha-
size the pernicious effects of all such discrimination.
I
In the 1860s, Congress proposed and the States ratifed
the Thirteenth and Fourteenth Amendments. And, with
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the authority conferred by these Amendments, Congress
passed two landmark Civil Rights Acts. Throughout the de-
bates on each of these measures, their proponents repeatedly
affrmed their view of equal citizenship and the racial equal-
ity that fows from it. In fact, they held this principle so
deeply that their crowning accomplishment—the Fourteenth
Amendment—ensures racial equality with no textual refer-
ence to race whatsoever. The history of these measures' en-
actment renders their motivating principle as clear as their
text: All citizens of the United States, regardless of skin
color, are equal before the law.
I do not contend that all of the individuals who put forth
and ratifed the Fourteenth Amendment universally believed
this to be true. Some Members of the proposing Congress,
for example, opposed the Amendment. And, the historical
record—particularly with respect to the debates on ratifca-
tion in the States—is sparse. Nonetheless, substantial evi-
dence suggests that the Fourteenth Amendment was passed
Page Proof Pending Publication
to “establis[h] the broad constitutional principle of full and
complete equality of all persons under the law,” forbidding
“all legal distinctions based on race or color.” Supp. Brief
for United States on Reargument in Brown v. Board of Edu-
cation, O. T. 1953, No. 1 etc., p. 115 (U. S. Brown Reargu-
ment 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 Involved in Community Schools v. Seattle School Dist. No. 1,551 U. S. 701, 747
(2007). And, it is the view adopted
in the Court's opinion today, requiring “the absolute equality
of all citizens” under the law. Ante, at 201 (internal quota-
tion marks omitted).
A
In its 1864 election platform, the Republican Party
pledged to amend the Constitution to accomplish the “utter
234 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
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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 victory,
Republicans quickly moved to make good on that promise.
Congress proposed what would become the Thirteenth
Amendment to the States in January 1865, and it was ratifed
as part of the Constitution later that year. The new Amend-
ment stated that “[n]either slavery nor involuntary 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 en-
slaving persons, but also obligated them to end enslavement
by private individuals within their borders. 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 system.” A. Amar, Ameri-
ca's Constitution: A Biography 362 (2005) (internal quotation
Page Proof Pending Publication
marks omitted). The Amendment also authorized “Con-
gress . . . to enforce” its terms “by appropriate legislation”—
authority not granted in any prior Amendment. § 2. Pro-
ponents believed this enforcement clause permitted legisla-
tive measures designed to accomplish the Amendment's
broader goal of equality for the freedmen.
It quickly became clear, however, that further amendment
would be necessary to safeguard that goal. Soon after the
Thirteenth Amendment's adoption, the reconstructed South-
ern States began to enact “Black Codes,” which circum-
scribed the newly won freedoms of blacks. The Black Code
of Mississippi, for example, “imposed all sorts of disabilities”
on blacks, “including limiting their freedom of movement and
barring them from following certain occupations, owning
frearms, serving on juries, testifying in cases involving
whites, or voting.” E. Foner, The Second Founding 48
(2019).
Congress responded with the landmark Civil Rights Act
of 1866,
14 Stat. 27
, in an attempt to pre-empt the Black
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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 Repre-
sentatives of the United States of America in Congress
assembled, That all persons born in the United States
and not subject to any foreign power, excluding Indians
not taxed, are hereby declared to be citizens of the
United States; and such citizens, of every race and color,
without regard to any previous condition of slavery or
involuntary servitude, except as a punishment for crime
whereof the party shall have been duly convicted, shall
have the same right, in every State and Territory in the
United States, to make and enforce contracts, to sue, be
parties, and give evidence, to inherit, purchase, lease,
sell, hold, and convey real and personal property, and
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to full and equal beneft 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, stat-
ute, ordinance, regulation, or custom, to the contrary
notwithstanding.”
The text of the provision left no doubt as to its aim: All
persons born in the United States were equal citizens enti-
tled to the same rights and subject to the same penalties as
white citizens in the categories enumerated. See M. Mc-
Connell, Originalism and the Desegregation Decisions,
81 Va. L. Rev. 947
, 958 (1995) (“Note that the bill neither forbade
racial discrimination generally nor did it guarantee particu-
lar rights to all persons. Rather, it required an equality in
certain specifc rights”). And, while the 1866 Act used the
rights of “white citizens” as a benchmark, its rule was decid-
edly colorblind, safeguarding legal equality for all citizens
“of every race and color” and providing the same rights to all.
236 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
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The 1866 Act's evolution further highlights its rule of
equality. To start, Dred Scott v. Sandford,
19 How. 393
(1857), had previously held that blacks “were not regarded as a portion of the people or citizens of the Government” and “had no rights which the white man was bound to respect.”Id., at 407, 411
. The Act, however, would effectively over- rule Dred Scott and ensure the equality that had been prom- ised to blacks. But the Act went further still. On Janu- ary 29, 1866, Senator Lyman Trumbull, the bill's principal sponsor in the Senate, proposed text stating that “all persons of African descent born in the United States are hereby de- clared 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- Page Proof Pending Publication 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., concurring). The addition of a citizenship guarantee thus evidenced an intent to broaden the provision, extending beyond recently freed blacks and incorporating a more general view of equal- ity for all Americans. Indeed, the drafters later included a specifc carveout for “Indians not taxed,” demonstrating the breadth of the bill's otherwise general citizenship language.14 Stat. 27
.1 As Trumbull 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 en-
croachment upon his liberty” and a “badge of servitude” pro-
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).
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hibited by the Constitution. Cong. Globe, 39th Cong., 1st
Sess., at 474 (emphasis added).
Trumbull and most of the Act's other supporters identifed
the Thirteenth Amendment as a principal source of constitu-
tional authority for the Act's nondiscrimination provisions.
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 empha-
sizing state authority over matters of state citizenship. See
S. Doc. No. 31, 39th Cong., 1st Sess., 1, 6 (1866) (Johnson veto
Page Proof Pending Publication
message). Consequently, “doubts about the constitutional
authority conferred by that measure led supporters to sup-
plement their Thirteenth Amendment arguments with other
sources of constitutional authority.” R. Williams, Original-
ism 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 the rights of citi-
zens). As debates continued, it became increasingly appar-
ent that safeguarding the 1866 Act, including its promise of
black citizenship and the equal rights that citizenship en-
tailed, 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
238 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
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principle of racial equality. So, almost immediately follow-
ing the ratifcation of the Thirteenth Amendment, several
proposals for further amendments were submitted in Con-
gress. One such proposal, approved by the Joint Committee
on Reconstruction and then submitted to the House of Rep-
resentatives on February 26, 1866, would have declared 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 citizens 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 Bingham, its drafter, was
among those who believed Congress lacked the power to
enact the 1866 Act. See id., at 1291. Specifcally, he be-
lieved the “very letter of the Constitution” already required
equality, but the enforcement of that requirement “is of the
reserved powers of the States.” Id., at 1034, 1291 (state-
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ment 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 Four-
teenth Amendment 48–49 (1988).
Discussion of Bingham's initial draft was later postponed
in the House, but the Joint Committee on Reconstruction
continued its work. See 2 K. Lash, The Reconstruction
Amendments 8 (2021). In April, Representative Thaddeus
Stevens proposed to the Joint Committee an amendment that
began, “[n]o discrimination shall be made by any State nor
by the United States as to the civil rights of persons because
of race, color, or previous condition of servitude.” S. Doc.
No. 711, 63d Cong., 1st Sess., 31–32 (1915) (reprinting the
Journal of the Joint Committee on Reconstruction for the
Thirty-Ninth Congress). Stevens' proposal was later re-
vised 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
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person of life, liberty, or property without due process of
law, nor deny to any person within its jurisdiction the equal
protection of the laws.' ” Id., at 39. This revised text was
submitted to the full House on April 30, 1866. Cong. Globe,
39th Cong., 1st Sess., at 2286–2287. Like the eventual frst
section of the Fourteenth Amendment, this proposal em-
bodied 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 Congress 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” earlier
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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 provision). 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 terrifc confict” during the Civil
War. Cong. Globe, 39th Cong., 1st Sess., at 2542. The pro-
posal 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 “ `[a]ll persons born in the United States and
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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 fnal missing ele-
ment of what would ultimately become § 1 of the Fourteenth
Amendment. Howard's draft for the proposed citizenship
text was modeled on the Civil Rights Act of 1866's text, and
he suggested the alternative language to “remov[e] all doubt
as to what persons are or are not citizens of the United
States,” a question which had “long been a great desidera-
tum in the jurisprudence and legislation of this country.”
Id., at 2890. He further characterized the addition as “sim-
ply declaratory of what I regard as the law of the land al-
ready.” 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 consid-
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eration and ratifcation. Two years later, it was ratifed by
the requisite number of States and became the Fourteenth
Amendment to the United States Constitution. See 15 Stat.
706–707; id., at 709–711. Its opening words instilled in our
Nation's Constitution a new birth of freedom:
“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 pro-
tection of the laws.” § 1.
As enacted, the text of the Fourteenth Amendment pro-
vides a frm statement of equality before the law. It begins
by guaranteeing citizenship status, invoking the “longstand-
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ing political and legal tradition that closely associated the
status of citizenship with the entitlement to legal equality.”
Vaello Madero, 596 U. S., at ––– (Thomas, J., concurring) (in-
ternal quotation marks omitted). It then confrms 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. Finally, it pledges that even noncitizens must be treated equally “as individuals, and not as members of racial, ethnic, or religious groups.” Missouri v. Jenkins,515 U. S. 70
, 120–121 (1995)
(Thomas, J., concurring).
The drafters and ratifers 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
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the Amendment similar to that abundantly demonstrated in
the Congressional debates, namely, that the frst section of
the Amendment would establish the full constitutional right
of all persons to equality before the law and would prohibit
legal distinctions based on race or color.” U. S. Brown Re-
argument Brief 65 (citation omitted). For example, the
Pennsylvania debate suggests that the Fourteenth Amend-
ment was understood to make the law “what justice is repre-
sented 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 “pri-
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mary purpose” of the Fourteenth Amendment “was to man-
date certain rules of racial equality, especially those con-
tained 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 defnitively 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 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 immunities Page Proof Pending Publication to all “citizens”—even if its practical effect was to provide 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). 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 Constitution is color-blind.” Plessy,163 U. S., at 559
(Harlan, J., dissenting).
2
There is “some support” in the history of enactment for at least “four
interpretations of the frst section of the proposed amendment, and in
particular of its Privileges [or] Immunities Clause: it would authorize Con-
gress to enforce the Privileges and Immunities Clause of Article IV; it
would forbid discrimination between citizens with respect to fundamental
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 colorblind.
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C
In the period closely following the Fourteenth Amend-
ment's ratifcation, 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 justifcations offered by proponents
of that measure are further evidence for the colorblind 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 requiring
such segregation treated members of both races precisely
alike: Blacks could not attend a white school, but symmetri-
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cally, whites could not attend a black school. See Plessy,
163 U. S., at 544
(arguing that, in light of the social circum-
stances at the time, racial segregation did not “necessarily
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 restrictions 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 indignity,
an insult, and a wrong.” Id., at 242; see also ibid. (“I insist
244 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
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that by the law of the land all persons without distinction of
color shall be equal before the law”). Far from conceding
that segregation would be perceived as inoffensive if race
roles were reversed, he declared that “[t]his is plain oppres-
sion, 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 distinc-
tions on any of these grounds, so far as the law is concerned.”
3 Cong. Rec. 945 (1875). Senator John Sherman believed
that the route to peace was to “[w]ipe out all legal discrimi-
nations between white and black [and] make no distinction
between black and white.” Cong. Globe, 42d Cong., 2d
Sess., at 3193. And, Senator Henry Wilson sought to “make
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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 dis-
criminations 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
(Har-
lan, 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 com-
mitment to equal rights for all citizens, regardless of the
color of their skin. See ante, at 202.
In the Slaughter-House Cases,
16 Wall. 36
(1873), the
Court identifed the “pervading purpose” of the Reconstruc-
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tion Amendments as “the freedom of the slave race, the secu-
rity and frm 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 protec- tion of these articles, that protection will apply, though the party interested may not be of African descent.” Ibid. The Court thus made clear that the Fourteenth Amend- ment's equality guarantee applied to members of all races, Page Proof Pending Publication including Asian Americans, ensuring all citizens equal treat- ment 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 positive immunity, or right, most valuable to the colored race,—the right to exemption from unfriendly legislation against them distinctively as colored.” Strauder v. West Virginia,100 U. S. 303
, 307–308 (1880). The Court thus found that the Fourteenth Amendment banned “expres[s]” racial classifca- tions, no matter the race affected, because these classifca- tions are “a stimulant to . . . race prejudice.”Id., at 308
. See also ante, at 202. 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
246 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
Thomas, J., concurring
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 perfect equality of civil rights with all other persons within the ju- risdiction 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 abolish distinctions based upon color, or to enforce social, as distin- guished 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 ideal, as Justice Harlan emphasized in dissent: The Reconstruction Amendments had aimed to remove “the race line from our systems of governments.”Id., at 563
. For Justice Harlan, Page Proof Pending Publication the Constitution was colorblind and categorically rejected laws designed to protect “a dominant race—a superior 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 commitment
to `equality before the law.' ” Dobbs v. Jackson Women's
Health Organization, 597 U. S. –––, ––– (2022). Nonethe-
less, 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
Cite as:
600 U. S. 181
(2023) 247
Thomas, J., concurring
the original meaning of the Fourteenth Amendment. Re-
spondents cite a smattering of federal and state statutes
passed during the years surrounding the ratifcation of the
Fourteenth Amendment. And, Justice Sotomayor's dis-
sent argues that several of these statutes evidence the rati-
fers' understanding that the Equal Protection Clause “per-
mits consideration of race to achieve its goal.” Post, at 322.
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
“apart, for the use of loyal refugees and freedmen,” aban-
doned, confscated, or purchased lands, and assigning “to
every male citizen, whether refugee or freedman, . . . not
Page Proof Pending Publication
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 ref- ugees), 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 Classifcations and Reconstruction Legislation, 61 J.
So. Hist. 271, 276–277 (1995); R. Barnett & E. Bernick, The
Original Meaning of the Fourteenth Amendment 119 (2021).
And, advocates of the law explicitly disclaimed any view
rooted in modern conceptions of antisubordination. To the
contrary, they explicitly clarifed that the equality sought by
the law was not one in which all men shall be “six feet high”;
248 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
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Thomas, J., concurring
rather, it strove to ensure that freedmen 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 condition
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 signifcantly overpaying
for these agents' services in part because [the servicemen]
did not understand how the payment system operated.”
Rappaport 110; see also S. Siegel, The Federal Government's
Power To Enact Color-Conscious Laws: An Originalist In-
quiry,
92 Nw. U. L. Rev. 477
, 561 (1998). Thus, while this Page Proof Pending Publication legislation appears to have provided a discrete race-based beneft, its aim—to prohibit race-based exploitation—may not have been possible at the time without using a racial screen. In other words, the statute's racial classifcations may well have survived strict scrutiny. See Rappaport 111– 112. Another law, passed in 1867, provided funds for “freed- men or destitute colored people” in the District 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 populated 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 ac-
tion “undo[ing] the effects of past discrimination in [a way]
Cite as:
600 U. S. 181
(2023) 249
Thomas, J., concurring
that do[es] not involve classifcation by race,” even though
they had a “racially disproportionate impact.” Richmond v.
J. A. Croson Co.,
488 U. S. 469, 526
(1989) (Scalia, J., concur- ring in judgment) (internal quotation marks omitted). The government can plainly remedy a race-based injury that it has inficted—though such remedies must be meant to fur- ther a colorblind government, not perpetuate racial con- sciousness. Seeid., 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 in- consistent with the colorblind Constitution.” Parents In- volved,551 U. S., at 772, n. 19
(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 disavowing any antisubordination view. Page Proof Pending Publication 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 322 (dissenting opinion). She identifes the Freedmen's Bu- reau Act of 1865, already discussed above, as one such law, but she admits that the programs did not beneft blacks ex- clusively. She also does not dispute that legislation target- ing the needs of newly freed blacks in 1865 could be under- stood as directly remedial. Even today, nothing prevents the States from according an admissions preference to identi- fed victims of discrimination. See Croson,488 U. S., at 526
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 frst president's statement that
the school “would welcome `all races of men, without distinction' ”).
250 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
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Thomas, J., concurring
(opinion of Scalia, J.) (“While most of the benefciaries might
be black, neither the benefciaries nor those disadvantaged
by the preference would be identifed on the basis of their
race” (emphasis in original)); see also ante, at 230.
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 special
treatment—rather, all citizens were meant to be treated the
same as those who, at the time, had the full rights of citizen-
ship. Other provisions of the 1866 Act reinforce this view,
providing for equality in civil rights. See Rappaport 97.
Most notably, § 14 stated that the basic civil rights of citizen-
Page Proof Pending Publication
ship 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 bur-
den 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 superintend-
ent to aid “negro paupers” in Mercer County, 1871 Ky. Acts
pp. 273–274. Even if these statutes provided race-based
benefts, they do not support respondents' and Justice So-
tomayor's view that the Fourteenth Amendment was con-
temporaneously understood to permit differential treatment
based on race, prohibiting only caste legislation while author-
izing antisubordination measures. Cf., e. g., O. Fiss, Groups
and the Equal Protection Clause, 5 Philos. & Pub. Aff.
107, 147 (1976) (articulating the antisubordination view);
Cite as:
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(2023) 251
Thomas, J., concurring
R. Siegel, Equality Talk: Antisubordination and Anticlassif-
cation 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 re-
medial 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 baseline
of government-imposed inequality. It thus may have been
the case that Kentucky's county-specifc, race-based public
aid law was necessary because that particular county was
not providing certain services to local poor blacks. Simi-
larly, South Carolina's burden-shifting framework (where the
substantive rule being applied remained notably race neu-
tral) may have been necessary to streamline litigation
around the most commonly litigated type of case: a lawsuit
Page Proof Pending Publication
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 dis-
crimination by state-licensed entities).
Most importantly, however, there was a wide range of fed-
eral and state statutes enacted at the time of the Fourteenth
Amendment's adoption and during the period thereafter 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 pre-
cisely the sort of enactments that the Framers of the Four-
teenth 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 preferred treatment,
displace the equality vision refected in the history of the
Fourteenth Amendment's enactment. This is particularly
true in light of the clear equality requirements present in the
252 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
Thomas, J., concurring
Fourteenth Amendment's text. See New York State Rife &
Pistol Assn., Inc. v. Bruen, 597 U. S. –––, ––– – ––– (2022)
(noting that text controls over inconsistent postratifcation
history).
II
Properly understood, our precedents have largely adhered
to the Fourteenth Amendment's demand for colorblind laws.4
That is why, for example, courts “must subject all racial clas-
sifcations to the strictest of scrutiny.” Jenkins,
515 U. S., at 121
(Thomas, J., concurring); see also ante, at 207, n. 3
(emphasizing the consequences of an insuffciently searching
inquiry). And, in case after case, we have employed strict
scrutiny vigorously to reject various forms of racial discrimi-
nation as unconstitutional. See Fisher I, 570 U. S., at 317–
318 (Thomas, J., concurring). The Court today rightly up-
holds that tradition and acknowledges the consequences that
have fowed from Grutter's contrary approach.
Page Proof Pending Publication
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 educa-
tional benefts. Second, those engaged in racial discrimina-
tion do not deserve deference with respect to their reasons
for discriminating. Third, attempts to remedy past govern-
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
(2003) (“We have explained that discrimination that violates the Equal Protection Clause of the Fourteenth Amendment committed by an institution 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 classifcations that would vio-
late the Equal Protection Clause”). As Justice Gorsuch points out, the
language of Title VI makes no allowance for racial considerations in uni-
versity admissions. See post, at 288 (concurring opinion). Though I con-
tinue to adhere to my view in Bostock v. Clayton County, 590 U. S.
–––, ––– – ––– (2020) (Alito, J., dissenting), I agree with Justice Gor-
such's concurrence in this case. The plain text of Title VI reinforces the
colorblind view of the Fourteenth Amendment.
Cite as:
600 U. S. 181
(2023) 253
Thomas, J., concurring
mental discrimination must be closely tailored to address
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 suffciently compelling to
justify race-conscious admissions programs: the “educational
benefts of a diverse student body.” 539 U. S., at 328, 333.
Expanding on this theme, Harvard and UNC have offered
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] stu-
dents through diversity' ” in between. Ante, at 214. The
Court today fnds that each of these interests are too vague
and immeasurable to suffce, ibid., and I agree.
Page Proof Pending Publication
Even in Grutter, the Court failed to clearly defne “the
educational benefts of a diverse student body.” 539 U. S.,
at 333. Thus, in the years since Grutter, I have sought to
understand exactly how racial diversity yields educational
benefts. 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 fnding 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 bene-
fts. 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 independ-
ently advances Harvard's goal. This is particularly true be-
254 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
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Thomas, J., concurring
cause Harvard blinds itself to other forms of applicant diver-
sity, such as religion. See 2 App. in No. 20–1199, pp. 734–
743. It may be the case that exposure to different perspec-
tives and thoughts can foster debate, sharpen young minds,
and hone students' reasoning skills. But, it is not clear how
diversity with respect to race, qua race, furthers this goal.
Two white students, one from rural Appalachia and one from
a wealthy San Francisco suburb, may well have more diverse
outlooks on this metric than two students from Manhattan's
Upper East Side attending its most elite schools, one of
whom is white and the other of whom is black. If Harvard
cannot even explain the link between racial diversity and
education, then surely its interest in racial diversity cannot
be compelling enough to overcome the constitutional limits
on race consciousness.
UNC fares no better. It asserts, for example, an interest
in training students to “live together in a diverse society.”
Page Proof Pending Publication
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 edu-
cational goals). And, again, UNC offers no reason why
seeking a diverse society would not be equally supported by
admitting individuals with diverse perspectives and back-
grounds, rather than varying skin pigmentation.
Nor have amici pointed to any concrete and quantifable
educational benefts of racial diversity. The United States
focuses on alleged civic benefts, including “increasing toler-
ance and decreasing racial prejudice.” Brief for United
States as Amicus Curiae 21–22. Yet, when it comes to edu-
cational benefts, the Government offers only one study pur-
portedly showing that “college diversity experiences are sig-
nifcantly and positively related to cognitive development”
and that “interpersonal interactions with racial diversity are
the most strongly related to cognitive development. ”
Cite as:
600 U. S. 181
(2023) 255
Thomas, J., concurring
N. Bowman, College Diversity Experiences and Cognitive
Development: A Meta-Analysis, 80 Rev. Educ. Research 4,
20 (2010). Here again, the link is, at best, tenuous, unspe-
cifc, and stereotypical. Other amici assert that diversity
(generally) fosters the even-more nebulous values of “cre-
ativity” and “innovation,” particularly in graduates' future
workplaces. See, e. g., Brief for Major American Business
Enterprises as Amici Curiae 7–9; Brief for Massachusetts
Institute of Technology et al. as Amici Curiae 16–17 (de-
scribing experience at IBM). Yet, none of those assertions
deals exclusively with racial diversity—as opposed to cul-
tural or ideological diversity. And, none of those amici
demonstrate measurable or concrete benefts that have
resulted from universities' race-conscious admissions
programs.
Of course, even if these universities had shown that racial
diversity yielded any concrete or measurable benefts, they
Page Proof Pending Publication
would still face a very high bar to show that their interest
is compelling. To survive strict scrutiny, any such benefts
would have to outweigh the tremendous harm inficted 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 stereotypes harm and demean individuals. That is why “only those measures the State must take to provide a bulwark against anarchy, or to prevent violence, will constitute a pressing public necessity” suffcient to satisfy strict scrutiny today. Grutter,539 U. S., at 353
(opinion of Thomas, J.) (internal quotations marks omitted). Cf. Lee v. Washington,390 U. S. 333, 334
(1968) (Black, J., concurring) (protecting prisoners from violence might justify narrowly tailored discrimina- tion); Croson,488 U. S., at 521
(opinion of Scalia, J.) (“At least
where state or local action is at issue, only a social emer-
gency rising to the level of imminent danger to life and
256 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
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Thomas, J., concurring
limb . . . can justify [racial discrimination]”). For this rea-
son, “just as the alleged educational benefts of segregation
were insuffcient to justify racial discrimination [in the
1950s], see Brown v. Board of Education, the alleged educa-
tional benefts of diversity cannot justify racial discrimina-
tion today.” Fisher I,
570 U. S., at 320
(Thomas, J., concur-
ring) (citation omitted).
B
The Court also correctly refuses to defer to the universi-
ties' own assessments that the alleged benefts 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 judi-
cial review.” Ante, at 214. In other words, a court must
be able to measure the goals asserted and determine when
they have been reached. Ante, at 214–215. The Court's
opinion today further insists that universities must be able to
Page Proof Pending Publication
“articulate a meaningful connection between the means they
employ and the goals they pursue.” Ante, at 215. 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 Insti- tute's judgment that the changes necessary to accommodate the admission of women would be too great and characteriz- ing the necessary changes as “manageable”). We would not offer such deference in any other context. 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
Cite as:
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(2023) 257
Thomas, J., concurring
(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 dis-
crimination and each relying on courts to bring a skeptical
eye to alleged discriminators.
This judicial skepticism is vital. History has repeatedly
shown that purportedly benign discrimination may be perni-
cious, and discriminators may go to great lengths to hide and
perpetuate their unlawful conduct. Take, for example, the
university respondents here. Harvard's “holistic” admis-
sions policy began in the 1920s when it was developed to
exclude Jews. See M. Synnott, The Half-Opened Door: Dis-
crimination and Admission at Harvard, Yale, and Princeton,
1900–1970, pp. 58–59, 61, 69, 73–74 (2010). Based on de facto
quotas that Harvard quietly implemented, the proportion of
Jews in Harvard's freshman class declined from 28% as late
as 1925 to just 12% by 1933. J. Karabel, The Chosen: The
Page Proof Pending Publication
Hidden History of Admission and Exclusion at Harvard,
Yale, and Princeton 172 (2005). During this same period,
Harvard played a prominent role in the eugenics movement.
According to then-President Abbott Lawrence Lowell, ex-
cluding 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 frst black under-
graduate 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 frst three black students admitted
as undergraduates enrolled at UNC but ultimately earned
their bachelor's degrees elsewhere. See M. Beauregard,
Column: The Desegregation of UNC, The Daily Tar Heel,
Feb. 16, 2022. To the extent past is prologue, the university
258 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
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Thomas, J., concurring
respondents' histories hardly recommend them as trustwor-
thy 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.
See ante, at 218, 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 pro-
grams, the universities and their amici pivot to argue that
the Fourteenth Amendment permits the use of race to bene-
ft only certain racial groups—rather than applicants writ
Page Proof Pending Publication
large. Yet, this is just the latest disguise for discrimination.
The sudden narrative shift is not surprising, as it has long
been apparent that “ `diversity [was] merely the current ra-
tionale of convenience' ” to support racially discriminatory
admissions programs. Grutter,
539 U. S., at 393
(Ken- nedy, J., dissenting). Under our precedents, this new ration- ale is also lacking. To start, the case for affrmative action has emphasized a number of rationales over the years, including: (1) restitution to compensate those who have been victimized by past dis- crimination, (2) fostering “diversity,” (3) facilitating “inte- gration” and the destruction of perceived racial castes, and (4) countering longstanding and diffuse racial prejudice. See R. Kennedy, For Discrimination: Race, Affrmative Ac- tion, and the Law 78 (2013); see also P. Schuck, Affrmative Action: Past, Present, and Future,20 Yale L. & Pol'y Rev. 1
, 22–46 (2002). Again, this Court has only recognized one
interest as compelling: the educational benefts of diversity
Cite as:
600 U. S. 181
(2023) 259
Thomas, J., concurring
embraced in Grutter. Yet, as the universities defne the “di-
versity” that they practice, it encompasses social and aes-
thetic goals far afeld from the education-based interest dis-
cussed in Grutter. See supra, at 214. The dissents too
attempt to stretch the diversity rationale, suggesting that it
supports broad remedial interests. See, e. g., post, at 339,
358, 382 (opinion of Sotomayor, J.) (noting that UNC's black
admissions percentages “do not refect the diversity of the
State”; equating the diversity interest under the Court's
precedents with a goal of “integration in higher education”
more broadly; and warning of “the dangerous consequences
of an America where its leadership does not refect the diver-
sity of the People”); post, at 405 (opinion of Jackson, J.) (ex-
plaining 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 Lan-
guage—Abuse of Power 23 (L. Krauth transl. 1992) (explain-
Page Proof Pending Publication
ing that propaganda, “in contradiction to the nature of lan-
guage, 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 ration-
ale in disguise. See ante, at 226–227. 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 ration- ale 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 remedial ration-
260 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
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ale in Grutter; and it rejects it again today. Newly and
often minted theories cannot be said to be commanded by
our precedents.
Indeed, our precedents have repeatedly and soundly dis-
tinguished between programs designed to compensate vic-
tims of past governmental discrimination from so-called be-
nign race-conscious measures, such as affrmative action.
Croson, 488 U. S., at 504–505; Adarand Constructors, Inc. v.
Peña,
515 U. S. 200
, 226–227 (1995). To enforce that distinc- tion, 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 reaffrms the need for such a close re- medial ft, hewing to the same line we have consistently Page Proof Pending Publication drawn. Ante, at 215–216. 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 soci- ety steeped in race-based discrimination. Even Grutter it- self could not tolerate this outcome. It accordingly imposed 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
explain how their current racially discriminatory programs
are even remotely traceable to their past discriminatory con-
duct. Nor could they; the current race-conscious admissions
programs take no account of ancestry and, at least for Har-
vard, likely have the effect of discriminating against some of
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Thomas, J., concurring
the very same ethnic groups against which Harvard pre-
viously discriminated (i. e., Jews and those who are not part
of the white elite). All the while, Harvard and UNC ask us
to blind ourselves to the burdens imposed on the millions of
innocent applicants denied admission because of their mem-
bership in a currently disfavored race.
The Constitution neither commands nor permits such a
result. “Purchased at the price of immeasurable human suf-
fering,” the Fourteenth Amendment recognizes that classif-
cations 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 concur-
ring in judgment). Consequently, “all” racial classifcations
are “inherently suspect,” id., at 223–224 (majority opinion)
(emphasis added; internal quotation marks omitted), and
must be subjected to the searching inquiry conducted by the
Court, ante, at 213–225.
III
Page Proof Pending Publication
Both experience and logic have vindicated the Constitu-
tion's colorblind rule and confrmed 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 forth-
rightly state that they racially discriminate when it comes
to admitting students, arguing that such discrimination is
consistent with this Court's precedents. And they, along
with today's dissenters, defend that discrimination as good.
More broadly, it is becoming increasingly clear that discrimi-
nation on the basis of race—often packaged as “affrmative
action” or “equity” programs—are based on the benighted
notion “that it is possible to tell when discrimination helps,
rather than hurts, racial minorities.” Fisher I,
570 U. S., at 328
(Thomas, J., concurring).
We cannot be guided by those who would desire less in
our Constitution, or by those who would desire more. “The
262 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
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Thomas, J., concurring
Constitution abhors classifcations based on race, not only be-
cause those classifcations can harm favored races or are
based on illegitimate motives, but also because every time
the government places citizens on racial registers and makes
race relevant to the provision of burdens or benefts, it
demeans us all.” Grutter,
539 U. S., at 353
(opinion of
Thomas, J.).
A
The Constitution's colorblind rule refects one of the core
principles upon which our Nation was founded: that “all men
are created equal.” Those words featured prominently in
our Declaration of Independence and were inspired by a rich
tradition of political thinkers, from Locke to Montesquieu,
who considered equality to be the foundation of a just gov-
ernment. See, e. g., J. Locke, Second Treatise of Civil Gov-
ernment 48 (J. Gough ed. 1948); T. Hobbes, Leviathan 98 (M.
Oakeshott ed. 1962); 1 B. Montesquieu, The Spirit of Laws
Page Proof Pending Publication
121 (T. Nugent transl., J. Prichard ed. 1914). Several Con-
stitutions enacted by the newly independent States at the
founding refected this principle. For example, the Virginia
Bill of Rights of 1776 explicitly affrmed “[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 publicly mused
5
In fact, the Massachusetts Supreme Court in 1783 declared that slavery
was abolished in Massachusetts by virtue of the newly enacted Constitu-
tion'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 Liberty . . . . And
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(2023) 263
Thomas, J., concurring
about the need for equality as the foundation for govern-
ment. E. g., 1 Cong. Register 430 (T. Lloyd ed. 1789) (Madi-
son, 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 Jefferson declared in his frst
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 princi-
ple. 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 faws into
bold relief and encouraged the Nation to fnally make good
on the equality promise. As Lincoln recognized, the prom-
ise of equality extended to all people—including immigrants
Page Proof Pending Publication
and blacks whose ancestors had taken no part in the original
founding. See Speech at Chicago, Ill. (July 10, 1858), in
2 The Collected Works of Abraham Lincoln 488–489, 499
(R. Basler ed. 1953). Thus, in Lincoln's view, “ `the natural
rights enumerated in the Declaration of Independence' ” ex-
tended 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 refected
that vision, affrming that equality and racial discrimination
cannot coexist. Under that Amendment, the color of a per-
son'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 deviation from
the equality principle and a constitutional injury.
upon this ground our Constitution of Government . . . sets out with declar-
ing that all men are born free and equal . . . and in short is totally repug-
nant to the idea of being born slaves”).
264 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
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Of course, even the promise of the second founding took
time to materialize. Seeking to perpetuate a segregationist
system in the wake of the Fourteenth Amendment's ratifca-
tion, 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 be-
tween the white and colored races—a distinction which
is founded in the color of the two races, and which must
always exist so long as white men are distinguished
from the other race by color—has no tendency to de-
stroy 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 Page Proof Pending Publication one Member of the Court adhered to the equality principle; Justice Harlan, standing alone in dissent, wrote: “Our Consti- tution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law.”Id., at 559
. Though Justice Harlan rightly predicted that Plessy would, “in time, prove to be quite as pernicious as the decision made . . . in the Dred Scott case,” the Plessy rule persisted for over a half century.Ibid.
While it remained in force, Jim Crow laws prohibiting
blacks from entering or utilizing public facilities such as
schools, libraries, restaurants, and theaters sprang up across
the South.
This Court rightly reversed course in Brown v. Board of
Education. The Brown appellants—those challenging 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 sin-
cere desire to avoid the possibility of violence or race fric-
tion.” Brief for Appellants in Brown v. Board of Educa-
Cite as:
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(2023) 265
Thomas, J., concurring
tion, O. T. 1952, No. 1, p. 7 (citation omitted).6 Embracing
that view, the Court held that “in the feld of public education
the doctrine of `separate but equal' has no place” and “[s]epa-
rate educational facilities are inherently unequal.” Brown,
347 U. S., at 493, 495
. Importantly, in reaching this conclu- sion, 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 203 (“Separate cannot be equal”). Just a few years later, the Court's application of Brown made explicit what was already forcefully implied: “[O]ur de- cisions 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 Page Proof Pending Publication Cases 145 (rev. 2d ed. 1962) (arguing that the Court in Brown had “adopt[ed] a constitutional standard” declaring “that all classifcation by race is unconstitutional per se”). Today, our precedents place this principle beyond question. In assessing racial segregation during a race-motivated prison riot, for example, this Court applied strict scrutiny without requiring an allegation of unequal treatment among the segregated facilities. Johnson v. California,543 U. S. 499
, 505–506 (2005). The Court today reaffrms the rule,
stating that, following Brown, “[t]he time for making distinc-
6
Briefng in a case consolidated with Brown stated the colorblind posi-
tion forthrightly: Classifcations “[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 (“In-
deed, we take the unqualifed position that the Fourteenth Amendment
has totally stripped the state of power to make race and color the basis
for governmental action. . . . For this reason alone, we submit, the state
separate school laws in this case must fall”).
266 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
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tions based on race had passed.” Ante, at 204. “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 Declaration of Inde-
pendence and codifed 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 humility”
when attempting to “distinguish good from harmful govern-
mental uses of racial criteria.” Id., at 742 (plurality opin-
ion). From the Black Codes, to discriminatory and destruc-
tive social welfare programs, to discrimination by individual
government actors, bigotry has reared its ugly head time and
Page Proof Pending Publication
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 benefts 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 segregation-
ist systems. See Brief for Appellees in McLaurin v. Okla-
homa State Regents for Higher Ed., O. T. 1949, No. 34, p. 12
(claiming that a holding rejecting separate but equal would
“necessarily result . . . [i]n the abandoning of many of the
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600 U. S. 181
(2023) 267
Thomas, J., concurring
state's existing educational establishments” and the “crowd-
ing 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 ethi-
cal or political ideal. At the same time we recognize that
practical considerations may prevent realization of the
ideal”); Tr. of Oral Arg. in Davis v. School Bd. of Prince
Edward Cty., O. T. 1954, No. 3, p. 208 (“We are up against
the proposition: What does the Negro proft if he procures
an immediate detailed decree from this Court now and then
impairs or mars or destroys the public school system in
Prince Edward County”). Litigants have even gone so far
as to offer straight-faced arguments that segregation has
practical benefts. 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,
Page Proof Pending Publication
health, and recreation . . . ' ” and remarking on the reason-
ableness 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 felds
as a part of her public policy to prevent violence and reduce
resentment. The result, in the view of an overwhelming
Virginia majority, has been to improve the relationship be-
tween the different races”); id., at 25 (“If segregation be
stricken down, the general welfare will be defnitely harmed
. . . there would be more friction developed” (internal quota-
tion marks omitted)). In fact, slaveholders once “argued
that slavery was a `positive good' that civilized blacks and
elevated them in every dimension of life,” and “segregation-
ists similarly asserted that segregation 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
taught us to beware of elites bearing racial theories.” Par-
ents Involved, 551 U. S., at 780–781 (Thomas, J., concurring).
268 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
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We cannot now blink reality to pretend, as the dissents urge,
that affrmative action should be legally permissible merely
because the experts assure us that it is “good” for black stu-
dents. Though I do not doubt the sincerity of my dissenting
colleagues' beliefs, experts and elites have been wrong
before—and they may prove to be wrong again. In part
for this reason, the 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 confned to the past, and we must remain ever vigilant
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
Page Proof Pending Publication
admissions policies here. “Affrmative action” policies do
nothing to increase the overall number of blacks and Hispan-
ics able to access a college education. Rather, those racial
policies simply redistribute individuals among institutions of
higher learning, placing some into more competitive institu-
tions than they otherwise would have attended. See T. So-
well, Affrmative Action Around the World 145–146 (2004).
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 classifcations 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 Of-
fcers of the Supreme Court of the United States, p. X (1993) (remarks of
Judge Motley).
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In doing so, those policies sort at least some blacks and His-
panics into environments where they are less likely to suc-
ceed academically relative to their peers.
Ibid.
The re- sulting 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 la- bored over an algebra textbook has undoubtedly discovered, academic advancement results from hard work and practice, not mere declaration. Simply treating students as though their grades put them at the top of their high school classes does nothing to enhance the performance level of those stu- dents or otherwise prepare them for competitive college en- vironments. In fact, studies suggest that large racial pref- Page Proof Pending Publication erences for black and Hispanic applicants have led to a disproportionately large share of those students receiving mediocre or poor grades once they arrive in competitive col- legiate environments. See, e. g., R. Sander, A Systemic Analysis of Affrmative 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-Specifc
Analysis (Oct. 6, 2017), https://ssrn.com/abstract=3054208.
Take science, technology, engineering, and mathematics
(STEM) felds, for example. Those students who receive a
large admissions preference are more likely to drop out of
STEM felds 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 Admission 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 and universities, the system-
atic mismatching of minority students begun at the top can
270 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
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Thomas, J., concurring
mean that such students are generally overmatched through-
out all levels of higher education.” T. Sowell, Race and Cul-
ture 176–177 (1994).8
These policies may harm even those who succeed academi-
cally. I have long believed that large racial preferences in
college admissions “stamp [blacks and Hispanics] with a
badge of inferiority.” Adarand, 515 U. S., at 241 (opinion of
Thomas, J.). They thus “tain[t] the accomplishments of all
those who are admitted as a result of racial discrimination”
as well as “all those who are the same race as those admitted
as a result of racial discrimination” because “no one can dis-
tinguish those students from the ones whose race played a
role in their admission.” Fisher I, 570 U. S., at 333 (opinion
of Thomas, J.). Consequently, “[w]hen blacks” and, now,
Hispanics “take positions in the highest places of govern-
ment, industry, or academia, it is an open question . . .
whether their skin color played a part in their advancement.”
Page Proof Pending Publication
Grutter, 539 U. S., at 373 (Thomas, J., concurring). “The
question itself is the stigma—because either racial discrimi-
nation did play a role, in which case the person may be
deemed `otherwise unqualifed,' 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 371. But, in 2016, the Journal of
Economic Literature published a review of mismatch literature—coau-
thored by a critic and a defender of affrmative action—which concluded
that the evidence for mismatch was “fairly convincing.” P. Arcidiacono &
M. Lovenheim, Affrmative 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); accord, Ar-
cidiacono & Lovenheim 20 (“Our hope is that better datasets soon will
become available”).
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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' affrmative action programs are a particu-
larly 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 insur-
mountable barriers to overcome. In doing so, the programs
may wind up helping the most well-off members of minority
races without meaningfully assisting those who struggle
with real hardship. Simultaneously, the programs risk con-
tinuing to ignore the academic underperformance of “the
purported `benefciaries' ” of racial preferences and the racial
stigma that those preferences generate. Grutter, 539 U. S.,
at 371 (opinion of Thomas, J.). Rather than performing
their academic mission, universities thus may “see[k] only a
facade—it is suffcient that the class looks right, even if it
Page Proof Pending Publication
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
classifcation 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 be-
holder.” Ibid. (citations and some internal quotation marks
omitted). Courts are not suited to the impossible task of
determining which racially discriminatory programs are help-
272 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
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Thomas, J., concurring
ing which members of which races—and whether those bene-
fts outweigh the burdens thrust onto other racial groups.
As the Court's opinion today explains, the zero-sum nature
of college admissions—where students compete for a fnite
number of seats in each school's entering class—aptly demon-
strates the point. Ante, at 218–219.9 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
benefciaries of historical racial advantages. To the con-
trary, our Nation's frst 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 discriminatory
Page Proof Pending Publication
laws at the State and local levels, similar to those aimed at
blacks in the South,” and “segregation in public facilities,
including schools, was quite common until after the Second
World War.” Civil Rights Issues 7; see also S. Hinnershitz,
A Different Shade of Justice: Asian American Civil Rights
9
Justice Sotomayor apparently believes that race-conscious admission
programs can somehow increase the chances that members of certain races
(blacks and Hispanics) are admitted without decreasing the chances of
admission for members of other races (Asians). See post, at 374. This
simply defes mathematics. In a zero-sum game like college admissions,
any sorting mechanism that takes race into account, in any way, see post,
at 409 (opinion of Jackson, J.) (defending such a system)—has discrimi-
nated based on race to the beneft of some races and the detriment of
others. And, the universities here admit that race is determinative 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 also397 F. Supp. 3d 126
, 178 (Mass. 2019) (noting that, for Harvard, “race is a determinative
tip for” a signifcant percentage “of all admitted African American and
Hispanic applicants”); ante, at 197, n. 1 (describing the role that race plays
in the universities' admissions processes).
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Thomas, J., concurring
in the South 21 (2017) (explaining that while both Asians and
blacks have at times fought “against similar forms of dis-
crimination,” “[t]he issues of citizenship and immigrant sta-
tus often defned Asian American battles for civil rights and
separated them from African American legal battles”). In-
deed, this Court even sanctioned this segregation—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 entry to a “white” school because she was “a member of the Mongolian or yel- low 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. Na- Page Proof Pending Publication tional Park Service, Japanese American Life During Intern- ment, www.nps.gov/articles/japanese-american-internment- archeology.htm. In the interim, this Court endorsed the practice. Korematsu v. United States,323 U. S. 214
(1944).
Given the history of discrimination against Asian Ameri-
cans, especially their history with segregated schools, it
seems particularly incongruous to suggest that a past history
of segregationist policies toward blacks should be remedied
at the expense of Asian American college applicants.10 But
this problem is not limited to Asian Americans; more
broadly, universities' discriminatory policies burden millions
10
Even beyond Asian Americans, it is abundantly clear that the univer-
sity respondents' racial categories are vastly oversimplistic, as the opinion
of the Court and Justice Gorsuch's concurrence make clear. See ante,
at 215–216; post, at 291–293 (opinion of Gorsuch, J.). Their “affrmative
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.
274 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
Thomas, J., concurring
of applicants who are not responsible for the racial discrimi-
nation that sullied our Nation's past. That is why, “[i]n the
absence of special circumstances, the remedy for de jure
segregation ordinarily should not include educational pro-
grams for students who were not in school (or were 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 segrega-
tion of the 20th century, and they do not shoulder the moral
debts of their ancestors. Our Nation should not punish to-
day's youth for the sins of the past.
IV
Far from advancing the cause of improved race relations
in our Nation, affrmative action highlights our racial differ-
Page Proof Pending Publication
ences with pernicious effect. In fact, recent history reveals
a disturbing pattern: Affrmative action policies appear to
have prolonged the asserted need for racial discrimination.
Parties and amici in these cases report that, in the nearly 50
years since Bakke,
438 U. S. 265
, racial progress on campuses
adopting affrmative action admissions policies has stag-
nated, including making no meaningful progress toward a
colorblind goal since Grutter. See ante, at 212–213.
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 offce. In his Grutter opinion, Justice Scalia
criticized universities for “talk[ing] of multiculturalism and
racial diversity,” but supporting “tribalism and racial segre-
gation on their campuses,” including through “minority-only
Cite as:
600 U. S. 181
(2023) 275
Thomas, J., concurring
student organizations, separate minority housing oppor-
tunities, separate minority student centers, even separate
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 housing to stu-
dents of different races, 46% offered segregated orientation
programs, and 72% sponsored segregated graduation cere-
monies. D. Pierre & P. Wood, Neo-Segregation at Yale 16–
17 (2019); see also D. Pierre, Demands for Segregated Hous-
ing at Williams College Are Not News, Nat. Rev., May 8,
2019. In addition to contradicting the universities' claims
regarding the need for interracial interaction, see Brief for
National Association of Scholars as Amicus Curiae 4–12,
these trends increasingly encourage our Nation's youth to
Page Proof Pending Publication
view racial differences as important and segregation as
routine.
Meanwhile, these discriminatory policies risk creating new
prejudices and allowing old ones to fester. I previously ob-
served that “[t]here can be no doubt” that discriminatory af-
frmative action policies “injur[e] white and Asian applicants
who are denied admission because of their race.” Fisher I,
570 U. S., at 331 (concurring opinion). Petitioner here
clearly demonstrates this fact. Moreover, “no social science
has disproved the notion that this discrimination `engenders
attitudes of superiority or, alternatively, provokes resent-
ment among those who believe that they have been wronged
by the government's use of race.' ” Grutter, 539 U. S., at 373
(opinion of Thomas, J.) (quoting Adarand, 515 U. S., at 241
(opinion of Thomas, J.) (alterations omitted)). Applicants
denied admission to certain colleges may come to believe—
accurately or not—that their race was responsible for their
failure to attain a life-long dream. These individuals, and
276 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
Thomas, J., concurring
others who wished for their success, may resent members of
what they perceive to be favored races, believing that the
successes of those individuals are unearned.
What, then, would be the endpoint of these affrmative ac-
tion policies? Not racial harmony, integration, or equality
under the law. Rather, these policies appear to be leading
to a world in which everyone is defned by their skin color,
demanding ever-increasing entitlements and preferences on
that basis. Not only is that exactly the kind of factionalism
that the Constitution was meant to safeguard against, see
The Federalist No. 10 (J. Madison), but it is a factionalism
based on ever-shifting sands.
That is because race is a social construct; we may each
identify as members of particular races for any number of
reasons, having to do with our skin color, our heritage, or
our cultural identity. And, over time, these ephemeral,
socially constructed categories have often shifted. For
Page Proof Pending Publication
example, whereas universities today would group all white
applicants 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 defnitively his or her race; some who would con-
sider themselves black, for example, may be quite fair
skinned. Yet, university admissions policies ask individuals
to identify themselves as belonging to one of only a few
reductionist racial groups. With boxes for only “black,”
“white,” “Hispanic,” “Asian,” or the ambiguous “other,” how
is a Middle Eastern person to choose? Someone from the
Philippines? See post, at 291–293 (Gorsuch, J., concurring).
Whichever choice he makes (in the event he chooses to re-
port a race at all), the form silos him into an artifcial cate-
gory. Worse, it sends a clear signal that the category
matters.
But, under our Constitution, race is irrelevant, as the
Court acknowledges. In fact, all racial categories are little
more than stereotypes, suggesting that immutable charac-
Cite as:
600 U. S. 181
(2023) 277
Thomas, J., concurring
teristics somehow conclusively determine a person's ideol-
ogy, beliefs, and abilities. Of course, that is false. See ante,
at 219–221 (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 frst-generation immigrant from Nige-
ria, in the same way that a white person from rural Vermont
has a different perspective than a white person from Hous-
ton, Texas. Yet, universities' racial policies suggest that ra-
cial identity “alone constitutes the being of the race or the
man.” J. Barzun, Race: A Study in Modern Superstition 114
(1937). That is the same naked racism upon which segrega-
tion 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 “disre-
Page Proof Pending Publication
gard for what does not jibe with preconceived theory,” pro-
viding a “cloa[k] to conceal complexity, argumen[t] to the
crowd for praising or damning without the trouble of going
into details”—such as details about an individual's ideas or
unique background.
Ibid.
Rather than forming a more
pluralistic society, these policies thus strip us of our 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 affrmative 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 Con-
stitution: that we are all equal, and should be treated equally
before the law without regard to our race. Only that prom-
ise can allow us to look past our differing skin colors and
identities and see each other for what we truly are: individu-
als with unique thoughts, perspectives, and goals, but with
equal dignity and equal rights under the law.
278 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
Thomas, J., concurring
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 defning and categoriz-
ing individuals by their race. As she sees things, we are all
inexorably trapped in a fundamentally racist society, with
the original sin of slavery and the historical subjugation of
black Americans still determining our lives today. Post, at
384–408 (dissenting opinion). The panacea, she counsels, is
to unquestioningly accede to the view of elite experts and
reallocate society's riches by racial means as necessary to
“level the playing feld,” all as judged by racial metrics.
Post, at 408. I strongly disagree.
First, as stated above, any statistical gaps between the
average wealth of black and white Americans is constitution-
ally irrelevant. I, of course, agree that our society is not,
Page Proof Pending Publication
and has never been, colorblind. Post, at 385 (Jackson, J.,
dissenting); see also Plessy, 163 U. S., at 559 (Harlan, J., dis-
senting). 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
classes among citizens. In respect of civil rights, all cit-
izens are equal before the law. The humblest is the
peer of the most powerful. The law regards man as
man, and takes no account of his surroundings or of his
color when his civil rights as guaranteed by the supreme
law of the land are involved.” Ibid.
With the passage of the 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
Cite as:
600 U. S. 181
(2023) 279
Thomas, J., concurring
the Fourteenth Amendment adopted in the wake of the Civil
War to fulfll the promise of equality under the law. And
it is this principle that has guaranteed a Nation of equal citi-
zens the privileges or immunities of citizenship and the equal
protection of the laws. To now dismiss it as “two-dimensional
fatness,” post, at 407 (Jackson, J., dissenting), 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 Founders'
vision with an organizing principle based on race. In fact,
on her view, almost all of life's outcomes may be unhesitat-
ingly ascribed to race. Post, at 406–408. This is so, she
writes, because of statistical disparities among different ra-
cial groups. See post, at 393–396. Even if some whites
have a lower household net worth than some blacks, what
matters to Justice Jackson is that the average white house-
hold has more wealth than the average black household.
Page Proof Pending Publication
Post, at 393–394.
This lore is not and has never been true. Even in the
segregated South where I grew up, individuals were not the
sum of their skin color. Then as now, not all disparities are
based on race; not all people are racist; and not all differences
between individuals are ascribable to race. Put simply, “the
fate of abstract categories of wealth statistics is not the same
as the fate of a given set of fesh-and-blood human beings.”
T. Sowell, Wealth, Poverty and Politics 333 (2016). Worse
still, Justice Jackson uses her broad observations about
statistical relationships between race and select measures of
health, wealth, and well-being to label all blacks as victims.
Her desire to do so is unfathomable to me. I cannot deny
the great accomplishments of black Americans, including
those who succeeded despite long odds.
Nor do Justice Jackson's statistics regarding a 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
280 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
Thomas, J., concurring
link between race—rather than socioeconomic status or any
other factor—and individual outcomes. So Justice Jack-
son 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 can-
cerous to young minds seeking to push through barriers,
rather than consign themselves to permanent victimhood.
If an applicant has less fnancial means (because of genera-
tional inheritance or otherwise), then surely a university
may take that into account. If an applicant has medical
struggles or a family member with medical concerns, a uni-
versity 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 con-
forms to the university's monolithic and reductionist view of
an abstract, average black person.
Page Proof Pending Publication
Accordingly, Justice Jackson's race-infused world view
falls fat 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 every-
thing—good or bad—that happens in their lives. A con-
trary, 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 innocent and
helpless. It is instead a call to empower privileged elites, who
will “tell us [what] is required to level the playing feld”
among castes and classifcations that they alone can divine.
Post, at 408; see also post, at 291–293 (Gorsuch, J., concur-
ring) (explaining the arbitrariness of these classifcations).
Then, after siloing us all into racial castes and pitting those
Cite as:
600 U. S. 181
(2023) 281
Thomas, J., concurring
castes against each other, the dissent somehow believes that
we will be able—at some undefned point—to “march for-
ward together” into some utopian vision. Post, at 408 (opin-
ion of Jackson, J.). Social movements that invoke these
sorts of rallying cries, historically, have ended disastrously.
Unsurprisingly, this tried-and-failed system defes both
law and reason. Start with the obvious: If social reorganiza-
tion in the name of equality may be justifed by the mere
fact of statistical disparities among racial groups, then that
reorganization must continue until these disparities are fully
eliminated, regardless of the reasons for the disparities and
the cost of their elimination. If blacks fail a test at higher
rates than their white counterparts (regardless of whether
the reason for the disparity has anything at all to do with
race), the only solution will be race-focused measures. If
those measures were to result in blacks failing at yet higher
rates, the only solution would be to double down. In fact,
Page Proof Pending Publication
there would seem to be no logical limit to what the govern-
ment may do to level the racial playing feld—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 classifcations that Justice Jackson draws are
themselves race-based stereotypes. She focuses on two hy-
pothetical applicants, John and James, competing for admis-
sion to UNC. John is a white, seventh-generation legacy at
the school, while James is black and would be the frst in his
family to attend UNC. Post, at 385–386. Justice Jackson
argues that race-conscious admission programs are neces-
sary to adequately compare the two applicants. As an ini-
tial matter, it is not clear why James' race is the only factor
that could encourage UNC to admit him; his status as a frst-
generation college applicant seems to contextualize his appli-
cation. But, setting that aside, why is it that John should
be judged based on the actions of his great-great-great-
282 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
Thomas, J., concurring
grandparents? And what would Justice Jackson say to
John when deeming him not as worthy of admission: Some
statistically signifcant number of white people had advan-
tages in college admissions seven generations ago, and you
have inherited their incurable sin?
Nor should we accept that John or James represents all
members of their respective races. All racial groups are
heterogeneous, and blacks are no exception—encompassing
northerners and southerners, rich and poor, and recent immi-
grants and descendants of slaves. See, e. g., T. Sowell, Eth-
nic America 220 (1981) (noting that the great success of West
Indian immigrants to the United States—disproportionate
among blacks more broadly—“seriously undermines the
proposition that color is a fatal handicap in the American
economy”). Eschewing the complexity that comes with in-
dividuality may make for an uncomplicated narrative, but
lumping people together and judging them based on assumed
inherited or ancestral traits is nothing but stereotyping.11
Page Proof Pending Publication
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
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 survi-
vors who escaped to this Nation with nothing and faced dis-
crimination upon arrival? Or Thomas, the great-grandchild
of Irish immigrants escaping famine? While articulating
her black and white world (literally), Justice Jackson
ignores the experiences of other immigrant groups (like
11
Again, universities may offer admissions preferences to students from
disadvantaged backgrounds, and they need not withhold those preferences
from students who happen to be members of racial minorities. Universi-
ties may not, however, assume that all members of certain racial minori-
ties are disadvantaged.
Cite as:
600 U. S. 181
(2023) 283
Thomas, J., concurring
Asians, see supra, at 272–273) and white communities that
have faced historic barriers.
Though Justice Jackson seems to think that her race-
based theory can somehow beneft everyone, it is an immuta-
ble fact that “every time the government uses racial criteria
to `bring the races together,' someone gets excluded, and the
person excluded suffers an injury solely because of his or
her race.” Parents Involved, 551 U. S., at 759 (Thomas, J.,
concurring) (citation omitted). Indeed, Justice Jackson
seems to have no response—no explanation at all—for the
people who will shoulder that burden. How, for example,
would Justice Jackson explain the need for race-based
preferences to the Chinese student who has worked hard his
whole life, only to be denied college admission in part be-
cause of his skin color? If such a burden would seem diff-
cult to impose on a bright-eyed young person, that's because
it should be. History has taught us to abhor theories that
Page Proof Pending Publication
call for elites to pick racial winners and losers in the name
of sociological experimentation.
Nor is it clear what another few generations of race-
conscious college admissions may be expected to accomplish.
Even today, affrmative action programs that offer an admis-
sions boost to black and Hispanic students discriminate
against those who identify themselves as members of other
races that do not receive such preferential treatment. Must
others in the future make sacrifces to relevel the playing
feld for this new phase of racial subordination? And then,
out of whose lives should the debt owed to those further
victims be repaid? This vision of meeting social racism with
government-imposed racism is thus self-defeating, resulting
in a never-ending cycle of victimization. There is no reason
to continue down that path. In the wake of the Civil War,
the Framers of the Fourteenth Amendment charted a way
out: a colorblind Constitution that requires the government
to, at long last, put aside its citizens' skin color and focus on
their individual achievements.
284 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
Thomas, J., concurring
C
Universities' recent experiences confrm the effcacy of a
colorblind rule. To start, universities prohibited from en-
gaging in racial discrimination by state law continue to enroll
racially diverse classes by race-neutral means. For exam-
ple, the University of California purportedly recently ad-
mitted its “most diverse undergraduate class ever,” despite
California's ban on racial preferences. T. Watanabe, UC Ad-
mits Largest, Most Diverse Class Ever, But It Was Harder
To Get Accepted, L. A. Times, July 20, 2021, p. A1. Simi-
larly, the University of Michigan's 2021 incoming class was
“among the university's most racially and ethnically diverse
classes, with 37% of frst-year students identifying as per-
sons of color.” S. Dodge, Largest Ever Student Body at
University of Michigan This Fall, Offcials Say, MLive.com
(Oct. 22, 2021), https://www.mlive.com/news/ann-arbor/2021/
10/largest-ever-student-body-at-university-of-michigan-this-
Page Proof Pending Publication
fall-offcials-say.html. In fact, at least one set of studies sug-
gests that, “when we consider the higher education system
as a whole, it is clear that the vast majority of schools would
be as racially integrated, or more racially integrated, under
a system of no preferences than under a system of large pref-
erences.” Brief for Richard Sander as Amicus Curiae 26.
Race-neutral policies may thus achieve the same benefts of
racial harmony and equality without any of the burdens and
strife generated by affrmative action policies.
In fact, meritocratic systems have long refuted bigoted
misperceptions of what black students can accomplish. I
have always viewed “higher education's purpose as 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 Ameri-
can life without the meddling of university administrators.”
Id., at 350. Meritocratic systems, with objective grading
Cite as:
600 U. S. 181
(2023) 285
Thomas, J., concurring
scales, are critical to that belief. Such scales have always
been a great equalizer—offering a metric for achievement
that bigotry could not alter. Racial preferences take away
this beneft, eliminating the very metric by which those who
have the most to prove can clearly demonstrate their accom-
plishments—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
diversity, but they demonstrate a marked ability to improve
the lives of their students. To this day, they have proved
“to be extremely effective in graduating 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 Be-
hind HBCU Success, Nat. Science Foundation (Sept. 24,
2020), https:// beta.nsf.gov/science-matters/science-behind-
Page Proof Pending Publication
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.” M. Ham- mond, L. Owens, & B. Gulko, Social Mobility Outcomes for HBCU Alumni, United Negro College Fund 4 (2021) (Hammond), https://cdn.uncf.org/wp-content/uploads/Social- Mobility-Report-FINAL.pdf; see also87 Fed. Reg. 57567
(placing the percentage of black doctors even higher, at 70%).
In fact, Xavier University, an HBCU with only a small per-
centage of white students, has had better success at helping
its low-income students move into the middle class than Har-
vard has. See Hammond 14; see also Brief for Oklahoma et al.
as Amici Curiae 18. And, each of the top 10 HBCUs has a
success rate above the national average. Hammond 14.12
12
Such black achievement in “racially isolated” environments is neither
new nor isolated to higher education. See T. Sowell, Education: Assump-
tions Versus History 7–38 (1986). As I have previously observed, in the
286 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
Thomas, J., concurring
Why, then, would this Court need to allow other universi-
ties to racially discriminate? Not for the betterment of
those black students, it would seem. The hard work of
HBCUs and their students demonstrate that “black schools
can function as the center and symbol of black communities,
and provide examples of independent black leadership,
success, and achievement. ” Jenkins, 515 U. S., at 122
(Thomas, J., concurring) (citing Fordice, 505 U. S., at 748
(Thomas, J., concurring)). And, because race-conscious col-
lege admissions are plainly not necessary to serve even the
interests of blacks, there is no justifcation 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
Page Proof Pending Publication
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
Constitution.
years preceding Brown, the “most prominent example of an exemplary
black school was Dunbar High School,” America's frst public high school
for black students. Parents Involved in Community Schools v. Seattle
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 graduates
earned ffteen degrees from Ivy League colleges, and ten degrees from
Amherst, Williams, and Wesleyan.” Sowell, Education: Assumptions Ver-
sus History, at 29. Dunbar produced the frst black General in the U. S.
Army, the frst black Federal Court Judge, and the frst black Presidential
Cabinet member. A. Stewart, First Class: The Legacy of Dunbar 2
(2013). Indeed, efforts toward 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).
Cite as:
600 U. S. 181
(2023) 287
Gorsuch, J., concurring
The Court's opinion rightly makes clear that Grutter
is, for all intents and purposes, overruled. And, it sees the
universities' admissions policies for what they are: rudder-
less, race-based preferences designed to ensure a particular
racial mix in their entering classes. Those policies fy 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 fundamental
principle that racial discrimination in public education is
unconstitutional”).
While I am painfully aware of the social and economic rav-
ages which have befallen my race and all who suffer discrimi-
nation, I hold out enduring hope that this country will live
up to its principles so clearly enunciated in the Declaration
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.
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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 signifcance
with the Civil Rights Act of 1964.” Bostock v. Clayton
County, 590 U. S. –––, ––– (2020). Title VI of that law con-
tains terms as powerful as they are easy to understand: “No
288 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
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person in the United States shall, on the ground of race,
color, or national origin, be excluded from participation in,
be denied the benefts of, or be subjected to discrimination
under any program or activity receiving Federal fnancial
assistance.” 42 U. S. C. § 2000d. The message for these
cases is unmistakable. Students for Fair Admissions (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 un-
derstood them at the time Congress enacted them. “After
all, only the words on the page constitute the law adopted
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by Congress and approved by the President.” Bostock, 590
U. S., at –––.
The key phrases in Title VI at issue here are “subjected
to discrimination” and “on the ground of.” Begin with the
frst. 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 –––; see also
Webster's New International Dictionary 745 (2d ed. 1954)
(“[t]o make a distinction” or “[t]o make a difference in treat-
ment 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 discrimination.” Alex-
ander v. Sandoval,
532 U. S. 275, 280
(2001). From this, we
can safely say that Title VI forbids a recipient of federal
funds from intentionally treating one person worse than an-
other similarly situated person on the ground of race, color,
or national origin.
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(2023) 289
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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 (defning “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 ––– (quoting University of Tex. Southwestern Medi-
cal 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. Bostock, 590 U. S., at –––. A defendant's actions need not be the primary or proximate cause of the plaintiff 's injury to qualify. Nor may a defend- ant avoid liability “just by citing some other factor that con- Page Proof Pending Publication tributed to” the plaintiff's loss.Id.,
at –––. All that mat- ters 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 similarly situated person because of his race, color, or na- tional 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 ––– – –––. It does not mat- ter if the recipient discriminates in order to advance some further benign “intention” or “motivation.”Id.,
at –––; see also Automobile Workers v. Johnson Controls, Inc.,499 U. S. 187, 199
(1991) (“the absence of a malevolent motive does not
convert a facially discriminatory policy into a neutral policy
with a discriminatory effect” or “alter [its] intentionally dis-
criminatory 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
290 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
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of that “class” as a whole or otherwise “promot[e] equality
at the group level.” Bostock, 590 U. S., at –––, –––. 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 various 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 discriminate 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 individual . . .
because of such individual's race, color, religion, sex, or na-
tional origin.” § 2000e–2(a)(1). Appreciating the breadth
of this provision, just three years ago this Court read its
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essentially identical terms the same way. See Bostock, 590
U. S., at ––– – –––. 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 equality, without regard to race.” Re- gents 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 deleted).
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 Fed-
eral fnancial assistance.” § 2000d. No one questions that
both institutions consult race when making their admissions
decisions. And no one can doubt that both schools intention-
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Gorsuch, J., concurring
ally 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 stu-
dents 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 your-
self.” 4 App. in No. 21–707, p. 1732. The available choices
are American Indian or Alaska Native; Asian; Black or Afri-
can American; Native Hawaiian or Other Pacifc Islander;
Hispanic or Latino; or White. Applicants can write in fur-
ther 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 fed- eral interagency commission devised this scheme of classif- cations in the 1970s to facilitate data collection. See D. Page Proof Pending Publication Bernstein, The Modern American Law of Race,94 S. Cal. L. Rev. 171
, 196–202 (2021); see also43 Fed. Reg. 19269
(1978). That commission acted “without any input from anthropolo- gists, 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 classifcations “should not be interpreted as being scientifc or anthropological in nature, nor should they be viewed as determinants of eligibility for participation in any Federal program.”43 Fed. Reg. 19269
(emphasis added). Despite that warning, others eventually
used this classifcation system for that very purpose—to
“sor[t] out winners and losers in a process that, by the end
of the century, would grant preference[s] in jobs . . . and
university admissions.” H. Graham, The Origins of Offcial
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
292 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
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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
peoples 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 “similar backgrounds and similar ideas and experiences.” Fisher v. University of Tex. at Austin,579 U. S. 365, 414
(2016) (Alito, J., dissenting). Consider, as well, the devel-
opment of a separate category for “Native Hawaiian or Other
Pacifc Islander.” It seems federal offcials disaggregated
these groups from the “Asian” category only in the 1990s and
only “in response to political lobbying.” Bernstein Amicus
Brief 9–10. And even that category contains its curiosities.
It appears, for example, that Filipino Americans remain clas-
sifed as “Asian” rather than “Other Pacifc Islander.” See
Page Proof Pending Publication
4 App. in No. 21–707, at 1732.
The remaining classifcations depend just as much on irra-
tional 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–
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, Moroccan,
Lebanese, Turkish, or Iranian descent. It embraces an Iraqi
or Ukrainian refugee as much as a member of the British
royal family. Meanwhile, “Black or African American” cov-
ers everyone from a descendant of enslaved persons who
grew up poor in the rural South, to a frst-generation child
of wealthy Nigerian immigrants, to a Black-identifying appli-
cant with multiracial ancestry whose family lives in a typical
American suburb. See id., at 15–16.
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If anything, attempts to divide us all up into a handful of
groups have become only more incoherent with time.
American families have become increasingly multicultural, a
fact that has led to unseemly disputes about whether some-
one 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 grand-
parent, 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 Sephar-
dic Jew whose ancestors fed 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 His-
panic” 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)).
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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.
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 diffi-
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 consultants
294 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
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cult to imagine those who receive this advice would fnd com-
fort in a bald (and mistaken) assurance that “race-conscious
admissions beneft . . . the Asian American community,” post,
at 375–376 (Sotomayor, J., dissenting). See 397 F. Supp. 3d,
at 178 (district court fnding that “overall” Harvard's race-
conscious 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 hiring
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 others
because of their race. Both schools frequently choose to
award a “tip” or a “plus” to applicants from certain racial
Page Proof Pending Publication
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.
[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 back-
grounds. 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 discrim-
ination based on 60 racial categories than it does 6.
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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 offcers read each application
and rate students across several categories: academic, extra-
curricular, athletic, school support, personal, and overall.
980 F. 3d, at 167
. Harvard says its admissions offcers “should not” consider race or ethnicity when assigning the “personal” rating.Id., at 169
(internal quotation marks omitted). But Harvard did not make this instruction ex- plicit until after SFFA fled this suit.Ibid.
And, in any event, Harvard concedes that its admissions offcers “can and do take an applicant's race into account when assigning an overall rating.”Ibid.
(emphasis added). At that stage, the lower courts found, applicants of certain races may receive a “tip” in their favor.Ibid.
The next step in the process is committee review. Re- Page Proof Pending Publication 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 194. And “if at
some point in the admissions process it appears that a group
is notably underrepresented or has suffered a dramatic drop
off relative to the prior year, the [committee] may decide to
give additional attention to applications from students
within that group.” 397 F. Supp. 3d, at 146.
The last step is “lopping,” where the admissions committee
trims the list of “prospective admits” before settling on a
fnal class. Id., at 144 (internal quotation marks omitted).
At this stage, again, the committee considers the “character-
istics of the admitted class,” including its “racial composi-
tion.” 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 fndings about
Harvard's use of race-based tips. For example: “[T]he tip[s]
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given for race impac[t] who among the highly-qualifed stu-
dents in the applicant pool will be selected for admission.”
Id., at 178. “At least 10% of Harvard's admitted class . . .
would most likely not be admitted in the absence of Har-
vard's race-conscious admissions process.” Ibid. Race-
based tips are “determinative” in securing favorable deci-
sions for a signifcant percentage of “African American and
Hispanic applicants,” the “primary benefciaries” of this sys-
tem. 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 rea-
sons and others still, the district court concluded that “Har-
vard's admissions process is not facially neutral” with re-
spect to race. Id., at 189–190; see also id., at 190, n. 56 (“The
policy cannot . . . be considered facially neutral from a Title
Page Proof Pending Publication
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 offcers read each application and rate prospec-
tive students along eight dimensions: academic program-
ming, academic performance, standardized tests, extracurric-
ulars, special talents, essays, background, and personal. Id.,
at 600. The district court found that “UNC's admissions
policies mandate that race is taken into consideration” in this
process as a “ `plus' facto[r].” Id., at 594–595. It is a plus
that is “sometimes” awarded to “underrepresented minority”
or “URM” candidates—a group UNC defnes to include
“ `those students identifying themselves as African American
or [B]lack; American Indian or Alaska Native; or Hispanic,
Latino, or Latina,' ” but not Asian or white students. Id.,
at 591–592, n. 7, 601.
At UNC, the admissions offcers' decisions to admit or
deny are “ `provisionally fnal.' ” Ante, at 196 (opinion for
the Court). The decisions become truly fnal only after a
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committee approves or rejects them. 567 F. Supp. 3d, at
599. That committee may consider an applicant's race too.
Id., at 607. In the end, the district court found that “race
plays a role”—perhaps even “a determinative role”—in the
decision to admit or deny some “URM students.” Id., at
634; see also id., at 662 (“race may tip the scale”). Nor is
this an accident. As at Harvard, offcials at UNC have made
a “deliberate decision” to employ race-conscious admissions
practices. Id., at 588–589.
While the district courts' fndings 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 222. The racial com-
position of each incoming class remained steady over that
time—remarkably so. The proportion of African Ameri-
cans hovered between 10% and 12%; the proportion of His-
panics between 8% and 12%; and the proportion of Asian
Page Proof Pending Publication
Americans between 17% and 20%. Ibid. Might this merely
refect the demographics of the school's applicant pool? Cf.
post, at 350–351 (opinion of Sotomayor, J.). Perhaps—at
least assuming the applicant pool looks much the same each
year and the school rather mechanically admits applicants
based on objective criteria. But the possibility that it in-
stead betrays the school's persistent focus on numbers of this
race and numbers of that race is entirely consistent with the
fndings 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 stu-
dents within that group”); cf. ante, at 222–223, n. 7 (opinion
for the Court).
C
Throughout this litigation, the parties have spent less time
contesting these facts than debating other matters.
298 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
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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 “holistic”
review of each applicant. SFFA responds with trial evi-
dence showing that, whatever label the universities use to
describe their processes, they intentionally consult race and,
by design, their race-based tips and plusses beneft appli-
cants 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, ftness, 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-
Page Proof Pending Publication
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 certain
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 the
school's efforts to assemble classes with a particular racial
composition—and, in particular, to limit the number of Asian
Americans it admits. Brief for Petitioner 12–14, 25–32.
For its part, Harvard expresses regret for its past practices
while denying that they resemble its current ones. Tr. of
Oral Arg. in No. 20–1199, at 51. And both schools insist that
their student bodies would lack suffcient 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 defning and measuring diversity, the
parties spar too. SFFA observes that the racial categories
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Gorsuch, J., concurring
the universities employ in the name of diversity do not begin
to refect the differences that exist within each group. See
Part I–B–
1, supra.
Instead, they lump together white and
Asian students from privileged backgrounds with “Jewish,
Irish, Polish, or other `white' ethnic groups whose ancestors
faced discrimination” and “descendants of those Japanese-
American citizens interned during World War II.” Ante, at
273, n. 10 (Thomas, J., concurring). Even putting all that
aside, SFFA stresses that neither Harvard nor UNC is will-
ing to quantify how much racial and ethnic diversity they
think suffcient. And, SFFA contends, the universities may
not wish to do so because their stated goal implies a desire
to admit some fxed number (or quota) of students from each
racial group. See Brief for Petitioner 77, 80; Tr. of Oral Arg.
in No. 21–707, p. 180. Besides, SFFA asks, if it is diversity
the schools are after, why do they exhibit so little interest
in other (non-racial) markers of it? See Brief for Petitioner
Page Proof Pending Publication
78, 83–86. While Harvard professes interest in socioeco-
nomic 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, at 756.3
Even beyond all this, the parties debate the availability of
alternatives. SFFA contends that both Harvard and UNC
could obtain signifcant racial diversity without resorting to
race-based admissions practices. Many other universities
across the country, SFFA points out, have sought to do just
that by reducing legacy preferences, increasing fnancial aid,
and the like. Brief for Petitioner 85–86; see also Brief for
3
See also E. Bazelon, Why Is Affrmative 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.”).
300 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
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Oklahoma et al. as Amici Curiae 9–19.4 As part of its af-
frmative 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 disadvantaged applicants just
half of the tip it gives recruited athletes; and (2) eliminated
tips for the children of donors, alumni, and faculty. Brief for
Petitioner 33–34, 81; see 2 App. in No. 20–1199, at 763–765,
774–775. Doing these two things would barely affect the
academic credentials of each incoming class. Brief for Peti-
tioner 33–34. And it would not require Harvard to end tips
for recruited athletes, who as a group are much weaker aca-
demically than non-athletes.5
4
The principal dissent chides me for “reach[ing] beyond the factfnding
below” by acknowledging SFFA's argument that other universities have
employed various race-neutral tools. Post, at 345, n. 25 (opinion of Soto-
Page Proof Pending Publication
mayor, J.). Contrary to the dissent's suggestion, however, I do not pur-
port to fnd 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 arguments about
Harvard's and other universities' practices too. See, e. g., post, at 346, 365
(opinion of Sotomayor, J.). In truth, it is the dissent that reaches beyond
the factfnding below when it argues from studies recited in a dissenting
opinion in a different case decided almost a decade ago. Post, at 345, n. 25
(opinion of Sotomayor, J.); see also post, at 334–337 (opinion of Soto-
mayor, J.) (further venturing beyond the trial records to discuss data
about employment, income, wealth, home ownership, and healthcare).
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 appli-
cant pool but represent more than 10% of the admitted class); P. Arcidia-
cono, 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).
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(2023) 301
Gorsuch, J., concurring
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 beneft white and wealthy applicants the most.
See
980 F. 3d, at 171
. Still, Harvard stands by them. See Brief for Respondent in No. 20–1199, at 52–54; Tr. of Oral Arg. in No. 21–1199, at 48–49. As a result, athletes and the children of donors, alumni, and faculty—groups that together “make up less than 5% of applicants to Harvard”—constitute “around 30% of the applicants admitted each year.”980 F. 3d, at 171
.
To be sure, the parties' debates raise some hard-to-answer
questions. Just how many admissions decisions turn on
race? And what really motivates the universities' race-
conscious admissions policies and their refusal to modify
other preferential practices? Fortunately, Title VI does not
Page Proof Pending Publication
require an answer to any of these questions. It does not ask
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 candi-
dates 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
–––, ––– – –––.
D
The principal dissent contends that this understanding of
Title VI is contrary to precedent. Post, at 342, n. 21 (opinion
of Sotomayor, J.). But the dissent does not dispute that
everything said here about the meaning of Title VI tracks
302 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
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Gorsuch, J., concurring
this Court's precedent in Bostock interpreting materially
identical language in Title VII. That raises two questions:
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 Con-
gress—to mean different things? Apparently, the federal
government takes the latter view. The Solicitor General in-
sists that there is “ambiguity in the term `discrimination' ”
in Title VI but no ambiguity in the term “discriminate” in
Title VII. Tr. of Oral Arg. in No. 21–707, at 164. Respect-
fully, I do not see it. The words of the Civil Rights Act of
1964 are not like mood rings; they do not change their mes-
sage 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 348,
n. 27 (opinion of Sotomayor, J.); cf. post, at 399 (Jackson, J.,
Page Proof Pending Publication
dissenting). But the question in these cases is not who
could hypothetically receive a race-based tip. It is who ac-
tually receives one. And on that score the lower courts left
no doubt. The district court in the Harvard case found that
the school's admissions policy “cannot . . . be considered fa-
cially neutral from a Title VI perspective given that admis-
sions offcers 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 offcers “sometimes” award race-based plusses
to URM candidates—a category that excludes Asian Ameri-
can and white students. 567 F. Supp. 3d, at 591–592, n. 7,
601.6
6
The principal dissent suggests “some Asian American applicants are
actually advantaged by Harvard's use of race.” Post, at 375 (opinion of
Sotomayor, J.) (internal quotation marks omitted). What is the dissent's
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(2023) 303
Gorsuch, J., concurring
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 348, n. 27 (opinion of Sotoma-
yor, J.) (emphasis added). Forget for a moment the univer-
sities' concessions about how they deliberately consult race
when deciding whom to admit. See supra, at 298.7 Look
past the lower courts' fndings recounted above about how
the universities intentionally give tips to students of some
races and not others. See supra, at 294–297, 302. 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 –––;
that intentional discrimination between individuals is un-
lawful whether “motivated by a wish to achieve classwide
equality” or any other purpose, id., at –––; and that “the
absence of a malevolent motive does not convert a facially
Page Proof Pending Publication
discriminatory policy into a neutral policy with a [merely]
discriminatory effect,” Johnson Controls,
499 U. S., at 199
.
basis for that claim? The district court's fnding 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 qualifcations. Worse, it ignores completely the dis-
trict court's further fnding that “overall” Harvard's race-conscious admis-
sions policy “results in fewer Asian American[s] . . . being admitted.”
Ibid. (emphasis added). So much for affording the district court's “careful
factfnding” the “deference it [is] owe[d].” Post, at 345–346, 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.
8
Messages among UNC admissions offcers 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 [scholar-
ship].”; “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.”; “Stel-
lar academics for a Native Amer[ican]/African Amer[ican] kid.” 3 App. in
No. 21–707, at 1242–1251.
304 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
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Consider just the dissents in these cases. From start to fn-
ish and over the course of nearly 100 pages, they defend the
universities' purposeful discrimination between applicants
based on race. “[N]eutrality,” they insist, is not enough.
Post, at 328, 383 (opinion of Sotomayor, J.); cf. post, at 403
(opinion of Jackson, J.). “[T]he use of race,” they stress, “is
critical.” Post, at 375 (opinion of Sotomayor, J.); see id., at
318, 348–349, 355, 359–360; cf. post, at 384, 408 (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
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,
Page Proof Pending Publication
why the parties have devoted years and fortunes litigating
other matters, like how much the universities discriminate
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-
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.
Post, at 342, n. 21 (opinion of Sotomayor, J.). It is a bewildering sugges-
tion. 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). To be sure,
parties are free to frame their arguments. But they are not free to stipu-
late to a statute's meaning and no party may “waiv[e]” the proper inter-
pretation 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).
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(2023) 305
Gorsuch, J., concurring
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 fve Jus- tices ventured beyond the facts of the case to suggest that, in other circumstances not at issue, universities may sometimes permissibly use race in their admissions processes. See ante, at 208–210 (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 and three others) argued that Title VI is coterminous with the Equal Protection Clause. Put differently, they read Page Proof Pending Publication Title 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 challenged program to proceed.Id.,
at 355–379.
Justice Stevens (also writing for himself and three others)
took an altogether different approach. He began by noting
the Court's “settled practice” of “avoid[ing] the decision of a
constitutional issue if a case can be fairly decided on a statu-
tory 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 because of
306 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
Gorsuch, J., concurring
his race. The University also acknowledges that it was, and
still is, receiving federal fnancial assistance. The plain lan-
guage of the statute therefore requires” fnding 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 Stevens's statute-focused approach receded from view. As a result, for over four decades, every case about racial preferences 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 Clause requires any consideration of race to satisfy “strict scrutiny,” meaning it must be “narrowly tailored to further Page Proof Pending Publication compelling governmental interests.” Grutter,539 U. S., at 326
(internal quotation marks omitted). Outside the context of higher education, “our precedents have identifed only two” interests that meet this demanding standard: “remedi- ating specifc, identifed instances of past discrimination that violated the Constitution or a statute,” and “avoiding immi- nent and serious risks to human safety in prisons.” Ante, at 207 (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.” Grut- ter, 539 U. S., at 328. Not all schools, though—elementary and secondary schools apparently do not qualify for this def- erence. See Parents Involved in Community Schools v. Se- attle School Dist. No. 1,551 U. S. 701
, 724–725 (2007). Only
colleges and universities, the Court explained, “occupy a spe-
cial niche in our constitutional tradition.” Grutter, 539
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(2023) 307
Gorsuch, J., concurring
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 mi-
nority 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, “out-
right racial balancing” and “quota system[s]” remain “pat-
ently unconstitutional.” Id., at 330, 334. Nor may a college
or university ever provide “mechanical, predetermined di-
versity bonuses.” Id., at 337 (internal quotation marks
omitted). Only a “tip” or “plus” is constitutionally tolerable,
and only for a limited time. Id., at 338–339, 341.
If you cannot follow all these twists and turns, you are
not alone. See, e. g., Fisher, 579 U. S., at 401–437 (Alito, J.,
Page Proof Pending Publication
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, at 401–402 (testimony from UNC admin-
istrator: “[M]y understanding of the term `critical mass' is
that it's a . . . I'm trying to decide if it's an analogy or a
metaphor[.] I think it's an analogy. . . . I'm not even sure
we would know what it is.”); 3 App. in No. 20–1199, at 1137–
1138 (similar testimony from a Harvard administrator). If
the Court's post-Bakke higher-education precedents ever
made sense, they are by now incoherent.
Recognizing as much, the Court today cuts through the
kudzu. It ends university exceptionalism and returns this
Court to the traditional rule that the Equal Protection
Clause forbids the use of race in distinguishing between per-
sons unless strict scrutiny's demanding standards can be
met. In that way, today's decision wakes the echoes of Jus-
tice John Marshall Harlan: “The law regards man as man,
and takes no account of his surroundings or of his color when
308 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
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Gorsuch, J., concurring
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 frst 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 benefts of, or be subjected to discrimination
under any program or activity receiving Federal fnancial
Page Proof Pending Publication
assistance.” § 2000d. The Equal Protection Clause reads:
“No State shall . . . deny to any person within its jurisdiction
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 classifcations. So, for exam-
ple, courts apply strict scrutiny for classifcations based on
race, color, and national origin; intermediate scrutiny for
Cite as:
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(2023) 309
Gorsuch, J., concurring
classifcations based on sex; and rational-basis review for
classifcations based on more prosaic grounds. See, e. g.,
Fisher,
579 U. S., at 376
; Richmond v. J. A. Croson Co.,488 U. S. 469
, 493–495 (1989) (plurality opinion); United States v. Virginia,518 U. S. 515
, 555–556 (1996); Board of Trustees of Univ. of Ala. v. Garrett,531 U. S. 356
, 366–367 (2001). By contrast, Title VI targets only certain classifcations—those based on race, color, or national origin. And that law does not direct courts to subject these classifcations to one de- gree 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, both leapt almost immediately to its “voluminous legislative history,” from which they proceeded to divine an implicit Page Proof Pending Publication “congressional intent” to link the statute with the Equal Pro- tection 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 docu- mented, both opinions did more than a little cherry-picking from the legislative record. Seeid.,
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 remedial purpose of Title VI
and its legislative history.” Id., at 340. And once liberated
from the statute's frm 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 al-
310 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
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Gorsuch, J., concurring
ways 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 persons are enti- tled to its beneft.” Bostock, 590 U. S., at –––. When judges disregard these principles and enforce rules “inspired only by extratextual sources and [their] own imaginations,” they usurp a lawmaking function “reserved for the people's representatives.”Id.,
at –––.
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 have read a solo opinion in Bakke like a statute while
reading Title VI as a mere suggestion. A proper respect
for the law demands the opposite. Title VI bears independ-
ent force beyond the Equal Protection Clause. Nothing in
Page Proof Pending Publication
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 re-
mained 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.).
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(2023) 311
Kavanaugh, J., concurring
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
affrmative action in higher education.
Ratifed 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 classifcations to be
constitutionally suspect. See Grutter v. Bollinger,
539 U. S. 306, 326
(2003); Strauder v. West Virginia,100 U. S. 303
, 306– 308 (1880). As a result, the Court has long held that racial classifcations by the government, including race-based af- frmative action programs, are subject to strict judicial Page Proof Pending Publication scrutiny. Under strict scrutiny, racial classifcations are consti- tutionally prohibited unless they are narrowly tailored to further a compelling governmental interest. Grutter, 539 U. S., at 326–327. Narrow tailoring requires courts to ex- amine, among other things, whether a racial classifcation is “necessary”—in other words, whether race-neutral alterna- tives 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 classifcation is otherwise nar- rowly tailored to further a compelling governmental inter- est, a “deviation from the norm of equal treatment of all ra- cial and ethnic groups” must be “a temporary matter”—or stated otherwise, must be “limited in time.”Id., at 510
(plu- rality opinion of O'Connor, J.); Grutter,539 U. S., at 342
.
In 1978, fve Members of this Court held that race-based
affrmative action in higher education did not violate the
Equal Protection Clause or Title VI of the Civil Rights Act,
312 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
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Kavanaugh, J., concurring
so long as universities used race only as a factor in admis-
sions 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 fve-Justice majority, Justice Blackmun, added that race-based affrmative action should exist only as a tem- porary 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, fve Members of this Court
again held that race-based affrmative action in higher educa-
tion did not violate the Equal Protection Clause or Title VI.
Grutter, 539 U. S., at 343. This time, however, the Court
also specifcally indicated—despite the reservations of Jus-
Page Proof Pending Publication
tice Ginsburg and Justice Breyer—that race-based affrma-
tive action in higher education would not be constitutionally
justifed 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 ex-
pect that 25 years from now, the use of racial preferences
will no longer be necessary to further the interest ap-
proved today.” Ibid.
• Justice Thomas expressly concurred in “the Court's
holding that racial discrimination in higher education ad-
missions will be illegal in 25 years.” Id., at 351 (opinion
concurring in part and dissenting in part).
• Justice Thomas, joined here by Justice Scalia, reiter-
ated “the Court's holding” that race-based affrmative
action in higher education “will be unconstitutional in 25
years” and “that in 25 years the practices of the Law
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(2023) 313
Kavanaugh, J., concurring
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 unnec-
essary 25 years from now.” Id., at 394 (dissenting
opinion).
• Justice Ginsburg, joined by Justice Breyer, acknowl-
edged the Court's 25-year limit but questioned it, writ-
ing that “one may hope, but not frmly forecast, that over
the next generation's span, progress toward nondiscrimi-
nation and genuinely equal opportunity will make it safe
to sunset affrmative action.” Id., at 346 (concurring
opinion).
In allowing race-based affrmative action in higher educa-
tion for another generation—and only for another genera-
tion—the Court in Grutter took into account competing con-
Page Proof Pending Publication
siderations. The Court recognized the barriers that some
minority applicants to universities still faced as of 2003, not-
withstanding 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 governmen- tally imposed discrimination based on race.”Ibid.
(internal quotation marks omitted). The Grutter Court also emphasized the equal protection principle that racial classifcations, even when otherwise per- missible, 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 “refects that racial classifcations, however com-
pelling their goals, are potentially so dangerous that they
may be employed no more broadly than the interest de-
314 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
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Kavanaugh, J., concurring
mands. Enshrining a permanent justifcation for racial pref-
erences would offend this fundamental equal protection prin-
ciple.” 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 termina- tion point assures all citizens that the deviation from the norm of equal treatment of all racial and ethnic groups is a temporary matter, a measure taken in the service of the goal of equality itself.”Ibid.
(internal quotation marks and al- teration omitted). The Court therefore concluded that race- based affrmative action programs in higher education, like other racial classifcations, must be “limited in time.”Ibid.
The Grutter Court's conclusion that race-based affrmative action in higher education must be limited in time followed Page Proof Pending Publication not only from fundamental equal protection principles, but also from this Court's equal protection precedents applying those principles. Under those precedents, racial classifca- tions may not continue indefnitely. For example, in the ele- mentary 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 indefnitely into the future. See, e. g., Board of Ed. of Okla- homa 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
. Consist-
ent with those decisions, the Grutter Court ruled that race-
based affrmative action in higher education likewise could
not operate in perpetuity.
Cite as:
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(2023) 315
Kavanaugh, J., concurring
As of 2003, when Grutter was decided, many race-based
affrmative action programs in higher education had been op-
erating for about 25 to 35 years. Pointing to the Court's
precedents requiring that racial classifcations be “tempo-
rary,” Croson,
488 U. S., at 510
(plurality opinion of O'Con- nor, J.), the petitioner in Grutter, joined by the United States, argued that race-based affrmative action in higher education could continue no longer. See Brief for Petitioner 21–22, 30–31, 33, 42, Brief for United States 26–27, in Grutter v. Bollinger, O. T. 2002, No. 02–241. The Grutter Court rejected those arguments for ending race-based affrmative action in higher education in 2003. But in doing so, the Court struck a careful balance. The Court ruled that narrowly tailored race-based affrmative ac- tion in higher education could continue for another genera- tion. But the Court also explicitly rejected any “permanent justifcation for racial preferences,” and therefore ruled that Page Proof Pending Publication race-based affrmative action in higher education could con- tinue 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 affrmative 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 insignif- cant or not carefully considered. In short, the Court in Grutter expressly recognized the serious issues raised by racial classifcations—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 edu- cation could continue for another generation, and only for another generation.Ibid.
(internal quotation marks
omitted).
316 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
Kavanaugh, J., concurring
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 affrmative 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 Grut- ter's explicit temporal limit on the use of race-based affrma- tive action in higher education.* Justice Sotomayor, Justice Kagan, and Justice Jack- son disagree with the Court's decision. I respect their views. They thoroughly recount the horrifc history of slav- ery and Jim Crow in America, cf. Bakke, 438 U. S., at 395– 402 (opinion of Marshall, J.), as well as the continuing effects of that history on African Americans today. And they are of course correct that for the last fve decades, Bakke and Grutter have allowed narrowly tailored race-based affrma- tive action in higher education. But I respectfully part ways with my dissenting col- Page Proof Pending Publication leagues on the question of whether, under this Court's prece- dents, race-based affrmative action in higher education may extend indefnitely 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 affrmative ac-
*The Court's decision will frst 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 affrmative action
in higher education, or identifed any end date for its continued use of race
in admissions. Ante, at 221–225.
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(2023) 317
Kavanaugh, J., concurring
tion programs. In the abstract, it might have been debat-
able 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 protection princi-
ple and resolved the debate: The Court declared that race-
based affrmative 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 affrmative action in higher education—formed an important part of the carefully constructed Grutter deci- sion. I would abide by that temporal limit rather than dis- carding it, as today's dissents would do. Page Proof Pending Publication 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 classifcation by race.” Croson,488 U. S., at 526
(Scalia, J., concurring in judgment) (internal quotation marks omitted); seeid., at 509
(plurality opinion of O'Con-
nor, J.) (“the city has at its disposal a whole array of race-
neutral devices to increase the accessibility of city con-
tracting opportunities to small entrepreneurs of all races”);
ante, at 230–231; 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.
318 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
Sotomayor, J., dissenting
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 Educa-
tion,
347 U. S. 483
(1954), the Court recognized the constitu- tional necessity of racially integrated schools in light of the harm inficted by segregation and the “importance of educa- tion 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 limited
purpose of promoting the important benefts of racial diver-
sity. This limited use of race has helped equalize educa-
tional opportunities for all students of every race and back-
Page Proof Pending Publication
ground and has improved racial diversity on college
campuses. Although progress has been slow and imperfect,
race-conscious college admissions policies have advanced the
Constitution's guarantee of equality and have promoted
Brown's vision of a Nation with more inclusive schools.
Today, this Court stands in the way and rolls back decades
of precedent and momentous progress. It holds that race
can no longer be used in a limited way in college admissions
to achieve such critical benefts. In so holding, the Court
cements a superfcial rule of colorblindness as a constitu-
tional principle in an endemically segregated society where
race has always mattered and continues to matter. The
Court subverts the constitutional guarantee of equal protec-
tion by further entrenching racial inequality in education,
the very foundation of our democratic government and plu-
*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.
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600 U. S. 181
(2023) 319
Sotomayor, J., dissenting
ralistic society. Because the Court's opinion is not grounded
in law or fact and contravenes the vision of equality embod-
ied 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 capacity
to engage in self-rule were vital. At the same time, Ameri-
can society was structured around the proftable institution
that was slavery, which the original Constitution protected.
The Constitution initially limited the power of Congress to
restrict the slave trade, Art. I, § 9, cl. 1, accorded Southern
States additional electoral power by counting three-ffths
Page Proof Pending Publication
of their enslaved population in apportioning congressional
seats, § 2, cl. 3, and gave enslavers the right to retrieve en-
slaved 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 lon-
gevity 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 frst Afri-
can enslaved persons were forcibly brought to our shores,
Congress adopted the Thirteenth Amendment to the Consti-
tution, which abolished “slavery” and “involuntary servitude,
except as a punishment for crime.” § 1. “Like all great his-
torical transformations,” emancipation was a movement,
“not a single event” owed to any single individual, institu-
320 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
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Sotomayor, J., dissenting
tion, or political party. E. Foner, The Second Founding 21,
51–54 (2019) (The Second Founding).
The fght 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 inferior-
ity which slavery forced upon [Black people] fathered an in-
tense desire to rise out of their condition by means of educa-
tion.” W. E. B. Du Bois, Black Reconstruction in America
1860–1880, p. 638 (1935); see J. Anderson, The Education of
Blacks in the South 1860–1935, p. 7 (1988). Black Americans
thus insisted, in the words of Frederick Douglass, “that in a
country governed by the people, like ours, education of the
Page Proof Pending Publication
youth of all classes is vital to its welfare, prosperity, and to
its existence.” Address to the People of the United States
(1883), in 4 P. Foner, The Life and Writings of Frederick
Douglass 386 (1955). Black people's yearning for freedom
of thought, and for a more perfect Union with educational
opportunity for all, played a crucial role during the Recon-
struction 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-
fcation, the Southern States replaced slavery with “a system
of `laws which imposed upon [Black people] onerous disabili-
ties and burdens, and curtailed their rights in the pursuit of
life, liberty, and property to such an extent that their free-
dom 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
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600 U. S. 181
(2023) 321
Sotomayor, J., dissenting
the basis of race, regardless of whether they had been pre-
viously enslaved. See, e. g., 1866 N. C. Sess. Laws pp. 99, 102.
Moreover, the criminal punishment exception in the Thir-
teenth Amendment facilitated the creation of a new system
of forced labor in the South. Southern States expanded
their criminal laws, which in turn “permitted involuntary
servitude as a punishment” for convicted Black persons. D.
Blackmon, Slavery by Another Name: The Re-Enslavement
of Black Americans From the Civil War to World War II,
pp. 7, 53 (2009) (Slavery by Another Name). States re-
quired, for example, that Black people “sign a labor contract
to work for a white employer or face prosecution for va-
grancy.” The Second Founding 48. State laws then forced
Black convicted persons to labor in “plantations, mines, and
industries in the South.” Id., at 50. This system of free
forced labor provided tremendous benefts to Southern
whites and was designed to intimidate, subjugate, and con-
Page Proof Pending Publication
trol newly emancipated Black people. See Slavery by An-
other Name 5–6, 53. The Thirteenth Amendment, without
more, failed to equalize society.
Congress thus went further and embarked on months of
deliberation about additional Reconstruction laws. Those
efforts included the appointment of a Committee, the Joint
Committee on Reconstruction, “to inquire into the condition
of the Confederate States.” Report of the Joint Committee
on Reconstruction, S. Rep. No. 112, 39th Cong., 1st Sess.,
1 (1866) (hereinafter Joint Comm. Rep.). Among other
things, the Committee's Report to Congress documented the
“deep-seated prejudice” against emancipated Black people in
the Southern States and the lack of a “general disposition to
place the colored race, constituting at least two-ffths of the
population, upon terms even of civil equality.” Id., at 11.
In light of its fndings, the Committee proposed amending
the Constitution to secure the equality of “rights, civil and
political.” Id., at 7.
322 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
Sotomayor, J., dissenting
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 guaran- tee of equality in the Equal Protection Clause of the Amend- ment. That Clause commands that “[n]o State shall . . . deny to any person within its jurisdiction the equal protection of the laws.” Amdt. 14, § 1. Congress chose its words care- Page Proof Pending Publication fully, opting for expansive language that focused on equal protection and rejecting “proposals that would have made the Constitution explicitly color-blind.” A. Kull, The Color- Blind Constitution 69 (1992); see also, e. g., Cong. Globe 1287 (rejecting proposed language providing that “no State . . . shall . . . recognize any distinction between citizens . . . on account of race or color”). This choice makes it clear that the Fourteenth Amendment does not impose a blanket ban on race-conscious policies. Simultaneously with the passage of the Fourteenth Amendment, Congress enacted a number of race-conscious laws to fulfll the Amendment's promise of equality, leaving no doubt that the Equal Protection Clause permits consider- ation of race to achieve its goal. One such law was the Freedmen's Bureau Act, enacted in 1865 and then expanded in 1866, which established a federal agency to provide cer- tain benefts 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, education “was
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(2023) 323
Sotomayor, J., dissenting
the foundation upon which all efforts to assist the freedmen
rested.” E. Foner, Reconstruction: America's Unfnished
Revolution 1863–1877, p. 144 (1988). Consistent with that
view, the Bureau provided essential “funding for black edu-
cation during Reconstruction.” Id., at 97.
Black people were the targeted benefciaries 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 Bu-
reau “educated approximately 100,000 students, nearly all of
them black,” and regardless of “degree of past disadvan-
tage.” E. Schnapper, Affrmative Action and the Legisla-
tive History of the Fourteenth Amendment,
71 Va. L. Rev. 753
, 781 (1985). The Bureau also provided land and funding
to establish some of our Nation's Historically Black Colleges
and Universities (HBCUs). Ibid.; see also Brief for HBCU
Leaders et al. as Amici Curiae 13 (HBCU Brief). In 1867,
for example, the Bureau provided Howard University tens of
Page Proof Pending Publication
thousands of dollars to buy property and construct its cam-
pus in our Nation's capital. 2 O. Howard, Autobiography
397–401 (1907). Howard University was designed to pro-
vide “special opportunities for a higher education to the
newly enfranchised of the south,” but it was available to
all Black people, “whatever may have been their previous
condition.” Bureau Refugees, Freedmen and Abandoned
Lands, Sixth Semi-Annual Report on Schools for Freedmen
60 (July 1, 1868).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
781, n. 149.
1
As Justice Thomas acknowledges, the HBCUs, including Howard
University, account for a high proportion of Black college graduates.
Ante, at 285–286 (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.
324 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
Sotomayor, J., dissenting
Indeed, contemporaries understood that the Freedmen's
Bureau Act benefted 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 classifca-
tions that favored Black people and disfavored white Ameri-
cans. See, e. g., Cong. Globe 397 (statement of Sen. Willey)
(the Act makes “a distinction on account of color between
the two races”), 544 (statement of Rep. Taylor) (the Act is
“legislation for a particular class of the blacks to the 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
Page Proof Pending Publication
our country, and the law-abiding will be powerless to control
it”). President Andrew Johnson vetoed the bill on the basis
that it provided benefts “to a particular class of citizens,” 6
Messages and Papers of the Presidents 1789–1897, p. 425 (J.
Richardson ed. 1897) (Messages and Papers) (A. Johnson to
House of Rep. July 16, 1866), but Congress overrode his veto.
Cong. Globe 3849–3850. Thus, rejecting those opponents'
objections, the same Reconstruction Congress that passed
the Fourteenth Amendment eschewed the concept of color-
blindness as suffcient to remedy inequality in education.
Congress also debated and passed the Civil Rights Act of
1866 contemporaneously with the Fourteenth Amendment.
The goal of that Act was to eradicate the Black Codes
enacted by Southern States following ratifcation 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
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(2023) 325
Sotomayor, J., dissenting
color . . . shall have the same right[s]” as those “enjoyed by
white citizens.” Act of Apr. 9, 1866,
14 Stat. 27
. Similarly, § 2 established criminal penalties for subjecting racial minor- ities to “different punishment . . . by reason of . . . color or race, than is prescribed for the punishment of white per- sons.” Ibid. In other words, the Act was not colorblind. By using white citizens as a benchmark, the law classifed by race and took account of the privileges enjoyed only by white people. As he did with the Freedmen's Bureau Act, Presi- dent Johnson vetoed the Civil Rights Act in part because he viewed it as providing Black citizens with special treatment. See Messages and Papers 408, 413 (the Act is designed “to afford discriminating protection to colored persons,” and its “distinction of race and color . . . operate[s] in favor of the colored and against the white race”). Again, Congress over- rode his veto. Cong. Globe 1861. In fact, Congress reen- acted race-conscious language in the Civil Rights Act of 1870, Page Proof Pending Publication two years after ratifcation of the Fourteenth Amendment, see Act of May 31, 1870, § 16,16 Stat. 144
, where it remains today, see42 U. S. C. §§ 1981
(a) and 1982 (Rev. Stat. §§ 1972, 1978). Congress similarly appropriated federal dollars explicitly and solely for the beneft of racial minorities. For example, it appropriated money for “ `the relief of destitute colored women and children,' ” without regard to prior enslavement. Act of July 28, 1866,14 Stat. 317
. Several times during and after the passage of the Fourteenth Amendment, Congress also made special appropriations and adopted special protec- tions for the bounty and prize money owed to “colored sol- diers 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” “applica-
ble to colored people and not . . . to the white people.” Cong.
Globe, 40th Cong., 1st Sess., 79 (1867) (statement of Sen.
Grimes). This history makes it “inconceivable” that race-
326 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
Sotomayor, J., dissenting
conscious college admissions are unconstitutional. Bakke,
438 U. S., at 398
(opinion of Marshall, J.).2
B
The Reconstruction era marked a transformational point
in the history of American democracy. Its vision of equal
opportunity leading to an equal society “was short-lived,”
however, “with the assistance of this Court.”
Id., at 391
. In a series of decisions, the Court “sharply curtailed” the “substantive protections” of the Reconstruction Amend- ments and the Civil Rights Acts.Id.,
at 391–392 (collecting cases). That endeavor culminated with the Court's shame- ful decision in Plessy v. Ferguson,163 U. S. 537
(1896), which established that “equality of treatment” exists “when the races are provided substantially equal facilities, even though these facilities be separate.” Brown,347 U. S., at 488
.
Therefore, with this Court's approval, government-enforced
segregation and its concomitant destruction of equal oppor-
Page Proof Pending Publication
tunity became the constitutional norm and infected every
sector of our society, from bathrooms to military units and,
crucially, schools. See Bakke, 438 U. S., at 393–394 (opinion
of Marshall, J.); see also generally R. Rothstein, The Color of
Law 17–176 (2017) (discussing various federal policies that
promoted racial segregation).
In a powerful dissent, Justice Harlan explained in Plessy
that the Louisiana law at issue, which authorized segregation
in railway carriages, perpetuated a “caste” system. 163
U. S., at 559–560. Although the State argued that the law
2
By the time the Fourteenth Amendment was ratifed by the States in
1868, “education had become a right of state citizenship in the constitution
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 Law Scholars as Amici Curiae 9
(“The herculean efforts of Black reformers, activists, and lawmakers dur-
ing the Reconstruction Era forever transformed State constitutional law;
today, thanks to the impact of their work, [nearly] every State constitution
contains language guaranteeing the right to public education”).
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Sotomayor, J., dissenting
“prescribe[d] a rule applicable alike to white and colored citi-
zens,” all knew that the law's purpose was not “to exclude
white persons from railroad cars occupied by blacks,” but “to
exclude colored people from coaches occupied by or assigned
to white persons.” Id., at 557. That is, the law “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, dom-
inant, 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 Protec-
tion Clause and Justice Harlan's vision of a Constitution that
Page Proof Pending Publication
“neither knows nor tolerates classes among citizens.”
163 U. S., at 559
. Considering the “effect[s] of segregation” and the role of education “in the light of its full development and its present place in American life throughout the Nation,” Brown overruled Plessy. 347 U. S., at 492–495. The Brown Court held that “[s]eparate educational facilities are inher- ently unequal,” and that such racial segregation deprives Black students “of the equal protection of the laws guaranteed by the Fourteenth Amendment.”Id.,
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