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

NOTICE: This opinion is subject to
formal revision before publication in the United States Reports.
Readers are requested to notify the Reporter of Decisions, Supreme
Court of the United States, Washington, D. C. 20543,
pio@supremecourt.gov, of any typographical or other formal
errors.

															SUPREME COURT OF THE UNITED STATES

															_________________

															Nos. 20–1199 and 21–707

															_________________

															STUDENTS FOR FAIR ADMISSIONS, INC.,
PETITIONER

															20–1199 v. PRESIDENT AND FELLOWS OF HARVARD
COLLEGE

															on writ of certiorari to the united states
court of appeals for the first circuit

															STUDENTS FOR FAIR ADMISSIONS, INC.,
PETITIONER

															21–707 v. UNIVERSITY OF NORTH CAROLINA,
et al.

															on writ of certiorari before judgment to the
united states court of appeals for the fourth circuit

															[June 29, 2023]

															Chief Justice Roberts delivered the opinion of
the Court.

															In these cases we consider whether the
admissions systems used by Harvard College and the University of
North Carolina, two of the oldest institutions of higher learning
in the United States, are lawful under the Equal Protection Clause
of the Fourteenth Amendment.

															I

															A

															Founded in 1636, Harvard College has one of
the most selective application processes in the country. Over
60,000 people applied to the school last year; fewer than 2,000
were admitted. Gaining admission to Harvard is thus no easy feat.
It can depend on having excellent grades, glowing recommendation
letters, or overcoming significant adversity. See 980 F.3d 157,
166–169 (CA1 2020). It can also depend on your race.

															The admissions process at Harvard works as
follows. Every application is initially screened by a “first
reader,” who assigns scores in six categories: academic,
extracurricular, athletic, school support, personal, and overall. Ibid. A rating of “1” is the best; a rating of “6” the
worst. Ibid. In the academic category, for example, a “1”
signifies “near-perfect standardized test scores and grades”; in
the extracurricular category, it indicates “truly unusual
achievement”; and in the personal category, it denotes
“outstanding” attributes like maturity, integrity, leadership,
kindness, and courage. Id. , at 167–168. A score of “1” on
the overall rating—a composite of the five other ratings—“signifies
an exceptional candidate with >90% chance of admission.” Id. , at 169 (internal quotation marks omitted). In assigning
the overall rating, the first readers “can and do take an
applicant’s race into account.” Ibid. Once the first read process is complete, Harvard
convenes admissions subcommittees. Ibid . Each subcommittee
meets for three to five days and evaluates all applicants from a
particular geographic area. Ibid. The subcommittees are
responsible for making recommendations to the full admissions
committee. Id. , at 169–170. The subcommittees can and do
take an applicant’s race into account when making their
recommendations. Id. , at 170.

															The 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 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 final stage of Harvard’s process is called
the “lop,” during which the list of tentatively admitted students
is winnowed further to arrive at the final class. Any applicants
that Harvard considers cutting at this stage are placed on a “lop
list,” which contains only four pieces of information: legacy
status, recruited athlete status, financial aid eligibility, and
race. 980 F. 3d, at 170. The full committee decides as a group
which students to lop. 397 F. Supp. 3d 126, 144 (Mass.
2019). In doing so, the committee can and does take race into
account. Ibid. Once the lop process is complete, Harvard’s
admitted class is set. Ibid. In the Harvard admissions
process, “race is a determinative tip for” a significant percentage
“of all admitted African American and Hispanic applicants.” Id. , at 178.

															B

															Founded shortly after the Constitution was
ratified, the University of North Carolina (UNC) prides itself on
being the “nation’s first public university.” 567
F. Supp. 3d 580, 588 (MDNC 2021). Like Harvard, UNC’s
“admissions process is highly selective”: In a typical year, the
school “receives approximately 43,500 applications for its freshman
class of 4,200.” Id. , at 595.

															Every application the University receives is
initially reviewed by one of approximately 40 admissions office
readers, each of whom reviews roughly five applications per hour. Id. , at 596, 598. Readers are required to consider “[r]ace
and ethnicity . . . as one factor” in their review. Id. , at 597 (internal quotation marks omitted). Other
factors include academic performance and rigor, standardized
testing results, extracurricular involvement, essay quality,
personal factors, and student background. Id. , at 600.
Readers are responsible for providing numerical ratings for the
academic, extracurricular, personal, and essay categories. Ibid. During the years at issue in this litigation,
underrepresented minority students were “more likely to score
[highly] on their personal ratings than their white and Asian
American peers,” but were more likely to be “rated lower by UNC
readers on their academic program, academic performance,
. . . extracurricular activities,” and essays. Id. , at 616–617.

															After assessing an applicant’s materials along
these lines, the reader “formulates an opinion about whether the
student should be offered admission” and then “writes a comment
defending his or her recommended decision.” Id. , at 598
(internal quotation marks omitted). In making that decision,
readers may offer students a “plus” based on their race, which “may
be significant in an individual case.” Id. , at 601 (internal
quotation marks omitted). The admissions decisions made by the
first readers are, in most cases, “provisionally final.” Students for Fair Admissions, Inc. v. University of
N. C. at Chapel Hill , No. 1:14–cv–954 (MDNC, Nov. 9,
2020), ECF Doc. 225, p. 7, ¶52.

															Following the first read process, “applications
then go to a process called ‘school group review’ . . .
where a committee composed of experienced staff members reviews
every [initial] decision.” 567 F. Supp. 3d, at 599. The
review committee 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 first reader, after which
the admissions decisions are finalized. Ibid. In making
those decisions, the review committee may also consider the
applicant’s race. Id. , at 607; 2 App. in No. 21–707,
p. 407.[ 1 ]

															C

															Petitioner, Students for Fair Admissions
(SFFA), is a nonprofit organization founded in 2014 whose purpose
is “to defend human and civil rights secured by law, including the
right of individuals to equal protection under the law.” 980
F. 3d, at 164 (internal quotation marks omitted). In November
2014, SFFA filed separate lawsuits against Harvard College and the
University of North Carolina, arguing that their race-based
admissions programs violated, respectively, Title VI of the Civil
Rights Act of 1964, 78Stat. 252, 42 U. S. C. §2000d et
seq. , and the Equal Protection Clause of the Fourteenth
Amendment.[ 2 ] See 397
F. Supp. 3d, at 131–132; 567 F. Supp. 3d, at
585–586. The District Courts in both cases held bench trials to
evaluate SFFA’s claims. See 980 F. 3d, at 179; 567
F. Supp. 3d, at 588. Trial in the Harvard case lasted 15
days and included testimony from 30 witnesses, after which the
Court concluded that 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 affirmed that
determination. See 980 F. 3d, at 204. Similarly, in the UNC
case, the District Court concluded after an eight-day trial that
UNC’s admissions program was permissible 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).

															II

															Before turning to the merits, we must assure
ourselves of our jurisdiction. See Summers v. Earth
Island Institute , 555 U.S.
488 , 499 (2009). UNC argues that SFFA lacks standing to bring
its claims because it is not a “genuine” membership organization.
Brief for University Respondents in No. 21–707, pp. 23–26. Every
court to have considered this argument has rejected it, and so do
we. See Students for Fair Admissions, Inc. v. University
of Tex. at Austin , 37 F. 4th 1078, 1084–1086, and
n. 8 (CA5 2022) (collecting cases).

															Article III of the Constitution limits “[t]he
judicial power of the United States” to “cases” or “controversies,”
ensuring that federal courts act only “as a necessity in the
determination of real, earnest and vital” disputes. Muskrat v. United States , 219 U.S.
346 , 351, 359 (1911) (internal quotation marks omitted). “To
state a case or controversy under Article III, a plaintiff must
establish standing.” Arizona Christian School Tuition
Organization v. Winn , 563 U.S.
125 , 133 (2011). That, in turn, requires a plaintiff to
demonstrate that it has “(1) suffered an injury in fact,
(2) that is fairly traceable to the challenged conduct of the
defendant, and (3) that is likely to be redressed by a favorable
judicial decision.” Spokeo, Inc. v. Robins , 578 U.S.
330, 338 (2016).

															In cases like these, where the plaintiff is an
organization, the standing requirements of Article III can be
satisfied in two ways. Either the organization can claim that it
suffered an injury in its own right or, alternatively, it can
assert “standing solely as the representative of its members.” Warth v. Seldin , 422 U.S.
490 , 511 (1975). The latter approach is known as
representational or organizational standing. Ibid. ; Summers , 555 U. S., at 497–498. To invoke it, an
organization must demonstrate that “(a) its members would otherwise
have standing to sue in their own right; (b) the interests it
seeks to protect are germane to the organization’s purpose; and
(c) neither the claim asserted nor the relief requested
requires the participation of individual members in the lawsuit.” Hunt v. Washington State Apple Advertising Comm’n , 432 U.S.
333 , 343 (1977).

															Respondents do not contest that SFFA satisfies
the three-part test for organizational standing articulated in Hunt , and like the courts below, we find no basis in the
record to conclude otherwise. See 980 F. 3d, at 182–184; 397
F. Supp. 3d, at 183–184; No. 1:14–cv–954 (MDNC, Sept. 29,
2018), App. D to Pet. for Cert. in No. 21–707, pp. 237–245 (2018 DC
Opinion). Respondents instead argue that SFFA was not a “genuine
‘membership organization’ ” when it filed suit, and thus that
it could not invoke the doctrine of organizational standing in the
first place. Brief for 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 Article 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 challenging a
North Carolina statute that imposed a labeling requirement on
containers of apples sold in that State. The Commission argued that
it had standing to challenge the requirement on behalf of
Washington’s apple industry. See id. , at 336–341. We
recognized, however, that as a state agency, “the Commission [wa]s
not a traditional voluntary membership organization . . .
, for it ha[d] no members at all.” Id. , at 342. As a result,
we could not easily apply the three-part test for organizational
standing, which asks whether an organization’s members have
standing. We nevertheless concluded that the Commission had
standing because the apple growers and dealers it represented were effectively members of the Commission. Id. , at 344.
The growers and dealers “alone elect[ed] the members of the
Commission,” “alone . . . serve[d] on the Commission,”
and “alone finance[d] its activities”—they possessed, in other
words, “all of the indicia of membership.” Ibid. The
Commission was therefore a genuine membership organization in
substance, if not in form. And it was “clearly” entitled to rely on
the doctrine of organizational standing under the three-part test
recounted above. Id. , at 343.

															The indicia of membership analysis employed in Hunt has no applicability in these cases. Here, SFFA is indisputably a voluntary membership organization with
identifiable members—it is not, as in Hunt , a state agency
that concededly has no members. See 2018 DC Opinion 241–242. As the
First Circuit in the Harvard litigation observed, at the time SFFA
filed suit, it was “a validly incorporated 501(c)(3) nonprofit with
forty-seven members who joined voluntarily to support its mission.”
980 F. 3d, at 184. Meanwhile in the UNC litigation, SFFA
represented four members in particular—high school graduates who
were denied admission to UNC. See 2018 DC Opinion 234. Those
members filed declarations with the District Court stating “that
they have voluntarily joined SFFA; they support its mission; they
receive updates about the status of the case from SFFA’s President;
and they have had the opportunity to have input and direction on
SFFA’s case.” Id. , at 234–235 (internal quotation marks
omitted). Where, as here, an organization has identified members
and represents them in good faith, our cases do not require further
scrutiny into how the organization operates. Because SFFA complies
with the standing requirements demanded of organizational
plaintiffs in Hunt , its obligations under Article III are
satisfied.

															III

															A

															In the wake of the Civil War, Congress
proposed and the States ratified the Fourteenth Amendment,
providing that no State shall “deny to any person . . .
the equal protection of the laws.” Amdt. 14, §1. To its proponents,
the Equal Protection Clause represented a “foundation[al]
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)
(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 (statement of Rep.
Stevens). As soon-to-be President James Garfield observed, the
Fourteenth Amendment would hold “over every American citizen,
without regard to color, the protecting shield of law.” Id. ,
at 2462. And in doing so, said Senator Jacob Howard of Michigan,
the Amendment would give “to the humblest, the poorest, the most
despised of the race the same rights and the same protection before
the law as it gives to the most powerful, the most wealthy, or the
most haughty.” Id. , at 2766. For “[w]ithout this principle
of equal justice,” Howard continued, “there is no republican
government and none that is really worth maintaining.” Ibid. At first, this Court embraced the transcendent
aims of the Equal Protection Clause. “What is this,” we said of the
Clause in 1880, “but declaring that the law in the States shall be
the same for the black as for the white; that all persons, whether
colored or white, shall stand equal before the laws of the States?” Strauder v. West Virginia , 100
U.S. 303 , 307–309. “[T]he broad and benign provisions of the
Fourteenth Amendment” apply “to all persons,” we unanimously
declared six years later; it is “hostility to . . . race
and nationality” “which in the eye of the law is not justified.” Yick Wo v. Hopkins , 118 U.S.
356 , 368–369, 373–374 (1886); see also id. , at 368
(applying the Clause to “aliens and subjects of the Emperor of
China”); Truax v. Raich , 239 U.S.
33 , 36 (1915) (“a native of Austria”); semble Strauder ,
100 U. S., at 308–309 (“Celtic Irishmen”) (dictum).

															Despite our early recognition of the broad sweep
of the Equal Protection Clause, this Court—alongside the
country—quickly failed to live up to the Clause’s core commitments.
For almost a century after the Civil War, state-mandated
segregation was in many parts of the Nation a regrettable norm.
This Court played its own role in that ignoble history, allowing in Plessy v. Ferguson the separate but equal regime that
would come to deface much of America. 163 U.S.
537 (1896). The aspirations of the framers of the Equal
Protection Clause, “[v]irtually strangled in [their] infancy,”
would remain for too long only that—aspirations. J. Tussman &
J. tenBroek, The Equal Protection of the Laws, 37 Cal. L. Rev.
341, 381 (1949).

															After Plessy , “American courts
. . . labored with the doctrine [of separate but equal]
for over half a century.” Brown v. Board of
Education , 347
U.S. 483 , 491 (1954). Some cases in 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 (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 equality from
inequality—soon became apparent. As the Court subsequently
recognized, even racial distinctions that were argued to have no
palpable effect worked to subordinate the afflicted students. See, e.g. , McLaurin v. Oklahoma State Regents for
Higher Ed. , 339 U.S.
637 , 640–642 (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 finally in Brown v. Board of Education . In that seminal
decision, we overturned Plessy for good and set firmly on
the path of invalidating all de jure racial
discrimination by the States and Federal Government. 347
U. S., at 494–495. Brown concerned the permissibility
of racial segregation in public schools. The school district
maintained that such segregation was lawful because the schools
provided to black students and white students were of roughly the
same quality. But we held such segregation impermissible “ even
though the physical facilities and other ‘tangible’ factors may
be equal.” Id. , at 493 (emphasis added). The mere act of
separating “children . . . because of their race,” we
explained, itself “generate[d] a feeling of inferiority.” Id. , at 494.

															The conclusion reached by the Brown Court
was thus unmistakably clear: the right to a public education “must
be made available to all on equal terms.” Id. , at 493. As
the plaintiffs had argued, “no State has any authority under the
equal-protection clause of the Fourteenth Amendment to use race as
a factor in affording educational opportunities among its
citizens.” Tr. of Oral Arg. in Brown I , O. T. 1952, No.
8, p. 7 (Robert L. Carter, Dec. 9, 1952); see also Supp. Brief
for Appellants on Reargument in Nos. 1, 2, and 4, and for
Respondents in No. 10, in Brown v. Board of
Education , O. T. 1953, p. 65 (“That the Constitution
is color blind is our dedicated belief.”); post , at 39,
n. 7 (Thomas, J., concurring). The Court reiterated that rule
just one year later, holding that “full compliance” with Brown required schools to admit students “on a racially
nondiscriminatory basis.” Brown v. Board of
Education , 349 U.S.
294 , 300–301 (1955). The time for making distinctions based on
race had passed. Brown , the Court observed, “declar[ed] the
fundamental principle that racial discrimination in public
education is unconstitutional.” Id. , at 298.

															So too in other areas of life. Immediately after Brown , we began routinely affirming lower court decisions
that invalidated all manner of race-based state action. In Gayle v. Browder , for example, we summarily affirmed
a decision 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 affirmed a
decision striking down racial segregation at public beaches and
bathhouses maintained by the State of Maryland and the city of
Baltimore. 350 U.S. 877 (1955) ( per curiam ). “It is obvious
that racial segregation in recreational activities can no longer be
sustained,” the lower court observed. Dawson v. Mayor and
City Council of Baltimore , 220 F.2d 386, 387 (CA4 1955)
( per curiam ). “[T]he ideal of equality before the law
which characterizes our institutions” demanded as much. Ibid. In the decades that followed, this Court
continued to vindicate the Constitution’s pledge of racial
equality. Laws dividing parks and golf courses; neighborhoods and
businesses; buses and trains; schools and juries were undone, all
by a transformative promise “stemming from our American ideal of
fairness”: “ ‘the Constitution . . . forbids
. . . discrimination by the General Government, or by the
States, against any citizen because of his race.’ ” Bolling v. Sharpe , 347 U.S.
497 , 499 (1954) (quoting Gibson v. Mississippi , 162 U.S.
565 , 591 (1896) (Harlan, J., for the Court)). As we recounted
in striking down the State of Virginia’s ban on interracial
marriage 13 years after Brown , the Fourteenth Amendment
“proscri[bes] . . . all invidious racial
discriminations.” Loving v. Virginia , 388 U.S.
1 , 8 (1967). Our cases had thus “consistently denied the
constitutionality of measures which restrict the rights of citizens
on account of race.” Id. , at 11–12; s ee also Yick
Wo , 118 U. S., at 373–375 (commercial property); Shelley v. Kraemer , 334 U.S. 1 (1948) (housing covenants); Hernandez v. Texas , 347 U.S.
475 (1954) (composition of juries); Dawson , 350
U. S., at 877 (beaches and bathhouses); Holmes v. Atlanta , 350 U.S. 879 (1955) ( per curiam ) (golf
courses); Browder , 352 U. S., at 903 (busing); New
Orleans City Park Improvement Assn. v. Detiege , 358 U.S.
54 (1958) ( per curiam ) (public parks); 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 reflect the “core purpose” of
the Equal Protection Clause: “do[ing] away with all governmentally
imposed discrimination based on race.” Palmore v. Sidoti , 466 U.S.
429 , 432 (1984) (footnote omitted). We have recognized that
repeatedly. “The clear and central purpose of the Fourteenth
Amendment was to eliminate all official state sources of invidious
racial discrimination in the States.” Loving , 388
U. S., at 10; see also Washington v. Davis , 426 U.S.
229 , 239 (1976) (“The central purpose of the Equal Protection
Clause of the Fourteenth Amendment is the prevention of official
conduct discriminating on the basis of race.”); McLaughlin v. Florida , 379 U.S.
184 , 192 (1964) (“[T]he historical fact [is] that the central
purpose of the Fourteenth Amendment was to eliminate racial
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 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 (1978) (opinion of Powell, J.). “If both are not
accorded the same protection, then it is not equal.” Id. , at
290.

															Any exception to the Constitution’s demand for
equal protection must survive a daunting two-step examination known
in our cases as “strict scrutiny.” Adarand Constructors,
Inc. v. Peña , 515 U.S.
200 , 227 (1995). Under that standard we ask, first, whether the
racial classification is used to “further compelling governmental
interests.” Grutter v. Bollinger , 539 U.S.
306 , 326 (2003). Second, if so, we ask whether the government’s
use of race is “narrowly tailored”—meaning “necessary”—to achieve
that interest. Fisher v. University of Tex. at
Austin , 570 U.S.
297 , 311–312 (2013) ( Fisher I ) (internal quotation
marks omitted).

															Outside the circumstances of these cases, our
precedents have identified only two compelling interests that
permit resort to race-based government action. One is remediating
specific, identified instances of past discrimination that violated
the Constitution or a statute. See, e.g. , Parents
Involved in Community Schools v. Seattle School Dist. No.
1 , 551 U.S.
701 , 720 (2007); Shaw v. Hunt , 517 U.S.
899 , 909–910 (1996); post , at 19–20, 30–31 (opinion of
Thomas, J.). The second is avoiding imminent and serious risks to
human safety in prisons, such as a race riot. See Johnson v. California , 543 U.S.
499 , 512–513 (2005).[ 3 ]

															Our acceptance of race-based state action has
been rare for a reason. “Distinctions between citizens solely
because of their ancestry are by their very nature odious to a free
people whose institutions are founded upon the doctrine of
equality.” Rice v. Cayetano , 528
U.S. 495 , 517 (2000) (quoting Hirabayashi v. United
States , 320 U.S.
81 , 100 (1943)). That principle cannot be overridden except in
the most extraordinary case.

															B

															These cases involve whether a university may
make admissions decisions that turn on an applicant’s race. Our
Court first considered that issue in Regents of University of
California v. Bakke , which involved a set-aside
admissions program used by the University of California, Davis,
medical school. 438 U. S., at 272–276. Each year, the school
held 16 of its 100 seats open for members of certain minority
groups, who were reviewed on a special admissions track separate
from those in the main admissions pool. 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 admissions policies.” Grutter ,
539 U. S., at 323.

															Justice Powell began by finding three of the
school’s four justifications for its policy not sufficiently
compelling. The school’s first justification of “reducing the
historic deficit of traditionally disfavored minorities in medical
schools,” he wrote, was akin to “[p]referring members of any one
group for no reason other than race or ethnic origin.” Bakke , 438 U. S., at 306–307 (internal quotation marks
omitted). Yet that was “discrimination for its own sake,” which
“the Constitution forbids.” Id. , at 307 (citing, inter
alia , Loving , 388 U. S., at 11). Justice Powell
next observed that the goal of “remedying . . . the
effects of ‘societal discrimination’ ” was also insufficient
because it was “an amorphous concept of injury that may be ageless
in its reach into the past.” Bakke , 438 U. S., at 307.
Finally, Justice Powell found there was “virtually no evidence in
the record indicating that [the school’s] special admissions
program” would, as the school had argued, increase the number of
doctors working in underserved areas. Id. , at 310.

															Justice Powell then turned to the school’s last
interest asserted to be compelling—obtaining the educational
benefits that flow from a racially diverse student body. That
interest, in his view, was “a constitutionally permissible goal for
an institution of higher education.” Id. , at 311–312. And
that was so, he opined, because a university was entitled as a
matter of academic freedom “to make its own judgments as to
. . . the selection of its student body.” Id. , at
312.

															But a university’s freedom was not unlimited.
“Racial and ethnic distinctions of any sort are inherently
suspect,” Justice Powell explained, and antipathy toward them was
deeply “rooted in our Nation’s constitutional and demographic
history.” Id. , at 291. A university could not employ a quota
system, for example, reserving “a specified number of seats in each
class for individuals from the preferred ethnic groups.” Id. , at 315. Nor could it impose a “multitrack program with
a prescribed number of seats set aside for each identifiable
category of applicants.” Ibid. And neither still could it
use race to foreclose an individual “from all consideration
. . . simply because he was not the right color.” Id. , at 318.

															The role of race had to be cabined. It could
operate only as “a ‘plus’ in a particular applicant’s file.” Id. , at 317. And even then, race was to be weighed in a
manner “flexible enough to consider all pertinent elements of
diversity in light of the particular qualifications of each
applicant.” Ibid. Justice Powell derived this approach from
what he called the “illuminating example” of the admissions system
then used by Harvard College. Id. , at 316. Under that
system, as described by Harvard in a brief it had filed with the
Court, “the race of an applicant may tip the balance in his favor
just as geographic origin or a life [experience] may tip the
balance in other candidates’ cases.” Ibid. (internal
quotation marks omitted). Harvard continued: “A farm boy from Idaho
can bring something to Harvard College that a Bostonian cannot
offer. Similarly, a black student can usually bring something that
a white person cannot offer.” Ibid. (internal quotation
marks omitted). The result, Harvard proclaimed, was that “race has
been”—and should be—“a factor in some admission decisions.” Ibid. (internal quotation marks omitted).

															No other Member of the Court joined Justice
Powell’s opinion. Four Justices instead would have held that the
government may use race for the purpose of “remedying the effects
of past societal discrimination.” Id. , at 362 (joint opinion
of Brennan, White, Marshall, and Blackmun, JJ., concurring in
judgment in part and dissenting in part). Four other Justices,
meanwhile, would have struck down the Davis program as violative of
Title VI. In their view, it “seem[ed] clear that the proponents of
Title VI assumed that the Constitution itself required a colorblind
standard on the part of government.” Id. , at 416 (Stevens,
J., joined by Burger, C. J., and Stewart and Rehnquist, JJ.,
concurring in judgment in part and dissenting in part). The Davis
program therefore flatly contravened a core “principle imbedded in
the constitutional and moral understanding of the times”:
the prohibition against “racial discrimination.” Id. , at
418, n. 21 (internal quotation marks omitted).

															C

															In the years that followed our “fractured
decision in Bakke ,” lower courts “struggled to discern
whether Justice Powell’s” opinion constituted “binding precedent.” Grutter , 539 U. S., at 325. We accordingly took up the
matter again in 2003, in the case Grutter v. Bollinger , which concerned the admissions system used by the
University of Michigan law school. Id. , at 311. There, in
another sharply divided decision, the Court for the first time
“endorse[d] Justice Powell’s view that student body diversity is a
compelling state interest that can justify the use of race in
university admissions.” Id. , at 325.

															The Court’s analysis tracked Justice Powell’s in
many respects. As for compelling interest, the Court held that
“[t]he Law School’s educational judgment that such diversity is
essential to its educational mission is one to which we defer.” Id. , at 328. In achieving that goal, however, the Court made
clear—just as Justice Powell had—that the law school was limited in
the means that it could pursue. The school could not “establish
quotas for members of certain racial groups or put members of those
groups on separate admissions tracks.” Id. , at 334. Neither
could it “insulate applicants who belong to certain racial or
ethnic groups from the competition for admission.” Ibid. Nor
still could it desire “some specified percentage of a particular
group merely because of its race or ethnic origin.” Id. , at
329–330 (quoting Bakke , 438 U. S., at 307 (opinion of
Powell, J.)).

															These limits, Grutter explained, were
intended to guard against two dangers that all race-based
government action portends. The first is the risk that the use of
race will devolve 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 admissions programs on the “belief that
minority students always (or even consistently) express some
characteristic minority viewpoint on any issue.” Grutter ,
539 U. S., at 333 (internal quotation marks omitted). The
second risk is that race would be used not as a plus, but as a
negative—to discriminate against those racial groups that
were not the beneficiaries of the race-based preference. A
university’s use of race, accordingly, could not occur in a manner
that “unduly harm[ed] nonminority applicants.” Id. , at
341.

															But even with these constraints in place, Grutter expressed marked discomfort with the use of race in
college admissions. The Court stressed the fundamental principle
that “there are serious problems of justice connected with the idea
of [racial] preference itself.” Ibid. (quoting Bakke ,
438 U. S., at 298 (opinion of Powell, J.)). It observed that
all “racial classifications, however compelling their goals,” were
“dangerous.” Grutter , 539 U. S., at 342. And it
cautioned that all “race-based governmental action” should
“remai[n] subject to continuing oversight to assure that it will
work the least harm possible to other innocent persons competing
for the benefit.” Id. , at 341 (internal quotation marks
omitted).

															To manage these concerns, Grutter imposed
one final limit on race-based admissions programs. At some point,
the Court held, they must end. Id. , at 342. This requirement
was critical, and Grutter emphasized it repeatedly. “[A]ll
race-conscious admissions programs [must] have a termination
point”; they “must have reasonable durational limits”; they “must
be limited in time”; they must have “sunset provisions”; they “must
have a logical end point”; their “deviation from the norm of equal
treatment” must be “a temporary matter.” Ibid. (internal
quotation marks omitted). The importance of an end point was not
just a matter of repetition. It was the reason the Court was
willing to dispense temporarily with the Constitution’s unambiguous
guarantee of equal protection. The Court recognized as much:
“[e]nshrining a permanent justification for racial preferences,”
the Court explained, “would offend this fundamental equal
protection principle.” Ibid. ; see also id., at
342–343 (quoting N. Nathanson & C. Bartnik, The
Constitutionality of Preferential Treatment for Minority Applicants
to Professional Schools, 58 Chi. Bar Rec. 282, 293 (May–June 1977),
for the proposition that “[i]t would be a sad day indeed, were
America to become a quota-ridden society, with each identifiable
minority assigned proportional representation in every desirable
walk of life”). Grutter thus concluded with the following
caution: “It has been 25 years since Justice Powell first approved
the use of race to further an interest in student body diversity in
the context of public higher education. . . . We expect
that 25 years 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 date on it.” Tr. of Oral Arg. in No. 20–1199, p. 85; Brief
for Respondent in No. 20–1199, p. 52. Neither does UNC’s. 567
F. Supp. 3d, at 612. Yet both insist that the use of race
in their admissions programs must continue.

															But we have permitted race-based admissions only
within the confines of narrow restrictions. University programs
must comply with strict scrutiny, they may never use race as a
stereotype or negative, and—at some point—they must end.
Respondents’ admissions systems—however well intentioned and
implemented in good faith—fail each of these criteria. They must
therefore be invalidated under the Equal Protection Clause of the
Fourteenth Amendment.[ 4 ]

															A

															Because “[r]acial discrimination [is]
invidious in all contexts,” Edmonson v. Leesville
Concrete Co. , 500 U.S.
614 , 619 (1991), we have required that universities operate
their race-based admissions programs in a manner that is
“sufficiently measurable to permit judicial [review]” under the
rubric of strict scrutiny, Fisher v. University of Tex.
at Austin , 579 U.S. 365, 381 (2016) ( Fisher II ).
“Classifying and assigning” students based on their race “requires
more than . . . an amorphous end to justify it.” Parents Involved , 551 U. S., at 735.

															Respondents have fallen short of satisfying that
burden. First, the interests they view as compelling cannot be
subjected to meaningful judicial review. Harvard identifies the
following educational benefits that it is pursuing:
(1) “training future leaders in the public and private
sectors”; (2) preparing graduates to “adapt to an increasingly
pluralistic society”; (3) “better educating its students
through diversity”; and (4) “producing new knowledge stemming
from diverse outlooks.” 980 F. 3d, at 173–174. UNC points to
similar benefits, namely, “(1) promoting the robust exchange
of ideas; (2) broadening and refining understanding;
(3) fostering innovation and problem-solving;
(4) preparing engaged and productive citizens and leaders;
[and] (5) enhancing appreciation, respect, and empathy,
cross-racial understanding, and breaking down stereotypes.” 567
F. Supp. 3d, at 656.

															Although these are commendable goals, they are
not sufficiently coherent for purposes of strict scrutiny. At the
outset, it is unclear how courts are supposed to measure any of
these goals. How is a court to know whether leaders have been
adequately “train[ed]”; whether the exchange of ideas is “robust”;
or whether “new knowledge” is being developed? Ibid. ; 980
F. 3d, at 173–174. Even if these goals could somehow be
measured, moreover, how is a court to know when they have been
reached, and when the perilous remedy of racial preferences may
cease? There is no particular point at which there exists
sufficient “innovation and problem-solving,” or 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 elusive nature. In the context of racial violence in a
prison, for example, courts can ask whether temporary racial
segregation of inmates will prevent harm to those in the prison.
See Johnson , 543 U. S., at 512–513. When it comes to
workplace discrimination, courts can ask whether a race-based
benefit makes members of the discriminated class “whole for [the]
injuries [they] suffered.” Franks v. Bowman Transp.
Co. , 424 U.S.
747 , 763 (1976) (internal quotation marks omitted). And in
school segregation cases, courts can determine whether any
race-based remedial action produces a distribution of students
“compar[able] to what it would have been in the absence of such
constitutional violations.” Dayton Bd. of Ed. v. Brinkman , 433 U.S.
406 , 420 (1977).

															Nothing like that is possible when it comes to
evaluating the interests respondents assert here. Unlike discerning
whether a prisoner will be injured or whether an employee should
receive backpay, the question whether a particular mix of minority
students produces “engaged and productive citizens,” sufficiently
“enhance[s] appreciation, respect, and empathy,” or effectively
“train[s] future leaders” is standardless. 567
F. Supp. 3d, at 656; 980 F. 3d, at 173–174. The
interests that respondents seek, though plainly worthy, are
inescapably imponderable.

															Second, respondents’ admissions programs fail to
articulate a meaningful connection between the means they employ
and the goals they pursue. To achieve the educational benefits of
diversity, UNC works to avoid the underrepresentation of minority
groups, 567 F. Supp. 3d, at 591–592, and n. 7, while
Harvard likewise “guard[s ] against inadvertent drop-offs in
representation” of certain minority groups from year to year, Brief
for Respondent in No. 20–1199, at 16. To accomplish both of those
goals, in turn, the universities measure the racial composition of
their classes using the following categories: (1) Asian;
(2) Native Hawaiian or Pacific Islander; (3) Hispanic;
(4) White; (5) African-American; and (6) Native American.
See, e.g. , 397 F. Supp. 3d, at 137, 178; 3 App. in
No. 20–1199, at 1278, 1280–1283; 3 App. in No. 21–707, at
1234–1241. It is far from evident, though, how assigning students
to these racial categories and making admissions decisions based on
them furthers the educational benefits that the universities claim
to pursue.

															For starters, the categories are themselves
imprecise in many ways. Some of them are plainly overbroad: by
grouping together all Asian students, for instance, respondents are
apparently uninterested in whether South Asian or East Asian students are adequately represented, so long as
there is enough of one to compensate for a lack of the other.
Meanwhile other racial categories, such as “Hispanic,” are
arbitrary or undefined. See, e.g. , M. Lopez, J. Krogstad,
& J. Passel, Pew Research Center, Who is Hispanic? (Sept. 15,
2022) (referencing the “long history of changing labels [and]
shifting categories . . . reflect[ing] evolving cultural
norms about what it means to be Hispanic or Latino in the
U. S. today”). And still other categories are underinclusive.
When asked at oral argument “how are applicants from Middle Eastern
countries classified, [such as] Jordan, Iraq, Iran, [and] Egypt,”
UNC’s counsel responded, “[I] do not know the answer to that
question.” Tr. of Oral Arg. in No. 21–707, p. 107; cf. post ,
at 6–7 (Gorsuch, J., concurring) (detailing the “incoherent” and
“irrational stereotypes” that these racial categories further).

															Indeed, the use of these opaque racial
categories undermines, instead of promotes, respondents’ goals. By
focusing on underrepresentation, respondents would apparently
prefer a class with 15% of students from Mexico over a class with
10% of students from several Latin American countries, simply
because the former contains more Hispanic students than the latter.
Yet “[i]t is hard to understand how a plan that could allow these
results can be viewed as being concerned with achieving enrollment
that is ‘broadly diverse.’ ” Parents Involved , 551
U. S., at 724 (quoting Grutter , 539 U. S., at
329). And given the mismatch between the means respondents employ
and the goals they seek, it is especially hard to understand how
courts are supposed to scrutinize the admissions programs that
respondents use.

															The universities’ main response to these
criticisms is, essentially, “trust us.” None of the questions
recited above need answering, they say, because universities are
“owed deference” when using race to benefit some applicants but not
others. Brief for University Respondents in No. 21–707, at 39
(internal quotation marks omitted). It is true that our cases have
recognized a “tradition of giving a degree of deference to a
university’s academic decisions.” Grutter , 539 U. S.,
at 328. But we have been unmistakably clear that any deference must
exist “within constitutionally prescribed limits,” ibid. ,
and that “deference does not imply abandonment or abdication of
judicial review,” Miller–El v. Cockrell , 537 U.S.
322 , 340 (2003). Universities may define their missions as they
see fit. The Constitution defines ours. Courts may not license
separating students on the basis of race without an exceedingly
persuasive justification that is measurable and concrete enough to
permit judicial review. As this Court has repeatedly reaffirmed,
“[r]acial classifications are simply too pernicious to permit any
but the most exact connection between justification and
classification.” Gratz v. Bollinger , 539 U.S.
244 , 270 (2003) (internal quotation marks omitted). The
programs at issue here do not satisfy that standard.[ 5 ]

															B

															The race-based admissions systems that
respondents employ also fail to comply with the twin commands of
the Equal Protection Clause that race may never be used as a
“negative” and that it may not operate as a stereotype.

															First, our cases have stressed that an
individual’s race may never be used against him in the admissions
process. Here, however, the First Circuit found that Harvard’s
consideration of race has led to an 11.1% decrease in the number of
Asian-Americans admitted to Harvard. 980 F. 3d, at 170,
n. 29. And the District Court observed that Harvard’s “policy
of considering applicants’ race . . . overall results in
fewer Asian American and white students being admitted.” 397
F. Supp. 3d, at 178.

															Respondents nonetheless contend that an
individual’s race is never a negative factor in their admissions
programs, but that assertion cannot withstand scrutiny. Harvard,
for example, draws an analogy between race and other factors it
considers in admission. “[W]hile admissions officers may give a
preference to applicants likely to excel in the Harvard-Radcliffe
Orchestra,” Harvard explains, “that does not mean it is a
‘negative’ not to excel at a musical instrument.” Brief for
Respondent in No. 20–1199, at 51. But on Harvard’s logic, while it
gives preferences to applicants with high grades and test scores,
“that does not mean it is a ‘negative’ ” to be a student with
lower grades and lower test scores. Ibid. This understanding
of the admissions process is hard to take seriously. College
admissions are zero-sum. A benefit provided to some applicants but
not to others necessarily advantages the former group at the
expense of the latter.

															Respondents also suggest that race is not a
negative factor because it does not impact many admissions
decisions. See id. , at 49; Brief for University Respondents
in No. 21–707, at 2. Yet, at the same time, respondents also
maintain that the demographics of their admitted classes would
meaningfully change if race-based admissions were abandoned. And
they acknowledge that race is determinative for at least some—if
not many—of the students they admit. See, e.g. , Tr. of Oral
Arg. in No. 20–1199, at 67; 567 F. Supp. 3d, at 633. How
else but “negative” can race be described if, in its absence,
members of some racial groups would be admitted in greater numbers
than they otherwise would have been? The “[e]qual protection of the
laws is not achieved through indiscriminate imposition of
inequalities.” Shelley , 334 U. S., at 22.[ 6 ]

															Respondents’ admissions programs are infirm for
a second reason as well. We have long held that universities may
not operate their admissions programs on the “belief that minority
students always (or even consistently) express some characteristic
minority viewpoint on any issue.” Grutter , 539 U. S.,
at 333 (internal quotation marks omitted). That requirement is
found throughout our Equal Protection Clause 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 rejected 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 benefit in race qua race—in race for race’s sake. Respondents admit as much.
Harvard’s admissions process rests on the pernicious stereotype
that “a black student can usually bring something that a white
person cannot offer.” Bakke , 438 U. S., at 316 (opinion
of Powell, J.) (internal quotation marks omitted); see also Tr. of
Oral Arg. in No. 20–1199, at 92. UNC is much the same. It argues
that race in itself “says [something] about who you are.” Tr. of
Oral Arg. in No. 21–707, at 97; see also id. , at 96
(analogizing being of a certain race to being from a rural
area).

															We have time and again forcefully rejected the
notion that government actors may intentionally allocate 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
suburb, or because they play the violin poorly or well.

															“One of the principal reasons race is treated as
a forbidden classification is that it demeans the dignity and worth
of a person to be judged by ancestry instead of by his or her own
merit and essential qualities.” Rice , 528 U. S., at
517. But when a university admits students “on the basis of race,
it engages in the offensive and demeaning assumption that
[students] of a particular race, because of their race, think
alike,” Miller v. Johnson , 515
U.S. 900 , 911–912 (1995) (internal quotation marks omitted)—at
the very least alike in the sense of being different from
nonminority students. In doing so, the university furthers
“stereotypes that treat individuals as the product of their race,
evaluating their thoughts and efforts—their very worth as
citizens—according to a criterion barred to the Government by
history and the Constitution.” Id. , at 912 (internal
quotation marks omitted). Such stereotyping can only “cause[ ]
continued hurt and injury,” Edmonson , 500 U. S., at
631, contrary as it is to the “core purpose” of the Equal
Protection Clause, Palmore , 466 U. S., at 432.

															C

															If all this were not enough, respondents’
admissions programs also lack a “logical end point.” Grutter , 539 U. S., at 342.

															Respondents and the Government first suggest
that respondents’ race-based admissions programs will end when, in
their absence, there is “meaningful representation and meaningful
diversity” on college campuses. Tr. of Oral Arg. in No. 21–707, at
167. The metric of meaningful representation, respondents assert,
does not involve any “strict numerical benchmark,” id. , at
86; or “precise number or percentage,” id. , at 167; or
“specified percentage,” Brief for Respondent in No. 20–1199, at 38
(internal quotation marks omitted). So what does it involve?

															Numbers all the same. At Harvard, each full
committee meeting begins with a discussion of “how the breakdown of
the class compares to the prior year in terms of racial
identities.” 397 F. Supp. 3d, at 146. And “if at some
point in the admissions process it appears that a group is notably
underrepresented or has suffered a dramatic drop off relative to
the prior year, the Admissions Committee may decide to give
additional attention to applications from students within that
group.” Ibid. ; see also id. , at 147 (District Court
finding that Harvard uses race to “trac[k] how 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
reflect this numerical commitment. For the admitted classes of 2009
to 2018, black students represented a tight band of 10.0%–11.7% of
the admitted pool. The same theme held true for other minority
groups:

															Brief for Petitioner in No. 20–1199 etc., p.
23. Harvard’s focus on numbers is obvious.[ 7 ]

															UNC’s admissions program operates similarly. The
University frames the challenge it faces as “the admission and
enrollment of underrepresented minorities,” Brief for University
Respondents in No. 21–707, at 7, a metric that turns solely on
whether a group’s “percentage enrollment within the undergraduate
student body is lower than their percentage 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 the simple command that the Government
must treat citizens as individuals, not as simply components of a
racial, religious, sexual or national class.” Miller, 515
U. S., at 911 (internal quotation marks omitted). By promising
to terminate their use of race only when some rough percentage of
various racial groups is admitted, respondents turn that principle
on its head. Their admissions programs “effectively assure[ ]
that race will always be relevant . . . and that the
ultimate goal of eliminating” race as a criterion “will never be
achieved.” Croson , 488 U. S., at 495 (internal
quotation marks omitted).

															Respondents’ second proffered end point fares no
better. Respondents assert that universities will no longer need to
engage in race-based admissions when, in their absence, students
nevertheless receive the educational benefits of diversity. But as
we have already explained, it is not clear how a court is supposed
to determine when stereotypes have broken down or “productive
citizens and leaders” have been created. 567 F. Supp. 3d,
at 656. Nor is there any way to know whether those goals would
adequately be met in the absence of a race-based admissions
program. As UNC itself acknowledges, these “qualitative
standard[s]” are “difficult to measure.” Tr. of Oral Arg. in No.
21–707, at 78; but see Fisher II , 579 U. S., at 381
(requiring race-based admissions programs to operate in a manner
that is “sufficiently measurable”).

															Third, respondents suggest that race-based
preferences must be allowed to continue for at least five more
years, based on the Court’s statement in Grutter that it
“expect[ed] that 25 years from now, the use of racial preferences
will no longer be necessary.” 539 U. S., at 343. The 25-year
mark articulated in Grutter , however, reflected only that
Court’s view that race-based preferences would, by 2028, be
unnecessary to ensure a requisite level of racial diversity on
college campuses. Ibid. That expectation was oversold.
Neither Harvard nor UNC believes that race-based admissions will in
fact be unnecessary in five years, and both universities thus
expect to continue using race as a criterion well beyond the time
limit that Grutter suggested. See Tr. of Oral Arg. in No.
20–1199, at 84–85; Tr. of Oral Arg. in No. 21–707, at 85–86.
Indeed, the high school applicants that Harvard and UNC will
evaluate this fall using their race-based admissions systems are
expected to graduate in 2028—25 years after Grutter was
decided.

															Finally, respondents argue that their programs
need not have an end point at all because they frequently review
them to determine whether they remain necessary. See Brief for
Respondent in No. 20–1199, at 52; Brief for University Respondents
in No. 21–707, at 58–59. Respondents point to language in Grutter that, they contend, permits “the durational
requirement [to] be met” with “periodic reviews to determine
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 contrary, the Court made clear that
race-based admissions programs eventually had to end—despite
whatever periodic review universities conducted. Ibid. ; see
also supra , at 18.

															Here, however, Harvard concedes that its
race-based admissions program has no end point. Brief for
Respondent in No. 20–1199, at 52 (Harvard “has not set a sunset
date” for its program (internal quotation marks omitted)). And it
acknowledges that the way it thinks about the use of race in its
admissions process “is the same now as it was” nearly 50 years ago.
Tr. of Oral Arg. in No. 20–1199, at 91. UNC’s race-based admissions
program is likewise not set to expire any time soon—nor, indeed,
any time at all. The University admits that it “has not set forth a
proposed time period in which it believes it 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.

															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 permitted race-based admissions programs to remedy the effects
of societal discrimination. 438 U. S., at 362 (joint opinion
of Brennan, White, Marshall, and Blackmun, JJ., concurring in
judgment in part and dissenting in part). But that minority view
was just that—a minority view. Justice Powell, who provided the
fifth vote and controlling opinion in Bakke , firmly rejected
the notion that societal discrimination 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] classification
that imposes disadvantages upon persons . . . who bear no
responsibility for whatever harm the beneficiaries of the
[race-based] admissions program are thought to have suffered.” Id. , at 310.

															The Court soon adopted Justice Powell’s analysis
as its own. In the years after Bakke , the Court repeatedly
held that ameliorating societal discrimination does not constitute
a compelling interest that justifies race-based state action. “[A]n
effort to alleviate the effects of societal discrimination is not a
compelling interest,” we said plainly in Hunt , a 1996 case
about the Voting Rights Act. 517 U. S., at 909–910. We reached
the same conclusion in Croson , a case that concerned a
preferential government contracting program. Permitting “past
societal discrimination” to “serve as the basis for rigid racial
preferences would be to open the door to competing claims for
‘remedial relief ’ for every disadvantaged group.” 488
U. S., at 505. Opening that door would shutter another—“[t]he
dream of a Nation of equal citizens . . . would be lost,”
we observed, “in a mosaic of shifting preferences based on
inherently unmeasurable claims of past wrongs.” Id. , at
505–506. “[S]uch a result would be contrary to both the letter and
spirit of a constitutional provision 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 Protection 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
dissent in Bakke nearly a dozen times while mentioning
Justice Powell’s controlling opinion barely once (Justice Jackson’s
opinion ignores Justice Powell altogether). For what one dissent
denigrates as “rhetorical flourishes about colorblindness,” post , at 14 (opinion of Sotomayor, J.), are in fact the
proud pronouncements of cases like Loving and Yick
Wo , like Shelley and Bolling —they are defining
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 indefinitely, until
“racial inequality will end.” Post , at 54 (opinion of
Sotomayor, J.). But Grutter did no such thing. It
emphasized—not once or twice, but at least six separate times—that
race-based admissions programs “must have reasonable durational
limits” and that their “deviation from the norm of equal treatment”
must be “a temporary matter.” 539 U. S., at 342. The Court
also disclaimed “[e]nshrining a permanent justification for racial
preferences.” Ibid. Yet the justification for race-based
admissions that the dissent latches on to is just
that—unceasing.

															The principal dissent’s reliance on Fisher
II is similarly mistaken. There, by a 4-to-3 vote, the Court
upheld a “ sui generis ” race-based admissions program used by
the University of Texas, 579 U. S., at 377, whose “goal” it
was to enroll a “critical mass” of certain minority students, Fisher I , 570 U. S., at 297. But neither Harvard nor
UNC claims to be using the critical mass concept—indeed, the
universities admit they do not even know what it means. See 1 App.
in No. 21–707, at 402 (“[N]o one has directed anybody to
achieve a critical mass, and I’m not even sure we would know what
it is.” (testimony of UNC administrator)); 3 App. in No. 20–1199,
at 1137–1138 (similar testimony from Harvard
administrator). Fisher II also recognized the “enduring
challenge” that race-based admissions systems place on “the
constitutional promise of equal treatment.” 579 U. S., at 388.
The Court thus reaffirmed the “continuing obligation” of
universities “to satisfy the burden of strict scrutiny.” Id. , at 379. To drive the point home, Fisher II limited itself just as Grutter had—in duration. The Court
stressed that its decision did “ not necessarily mean the
University may rely on the same policy” going forward. 579
U. S., at 388 (emphasis added); see also Fisher I , 570
U. S., at 313 (recognizing that “ Grutter . . . approved the plan at issue upon concluding that it
. . . was limited in time”). And the Court openly
acknowledged that its decision offered limited “prospective
guidance.” Fisher II , 579 U. S., at 379.[ 9 ]

															The principal dissent wrenches our case law from
its context, going to lengths to ignore the parts of that law it
does not like. The serious reservations that Bakke , Grutter , and Fisher had about racial preferences go
unrecognized. The unambiguous requirements of the Equal Protection
Clause—“the most rigid,” “searching” scrutiny it entails—go without
note. Fisher I , 570 U. S., at 310. And the repeated
demands 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 must
make these omissions to defend: a judiciary that picks winners and
losers based on the color of their skin. While the dissent would
certainly not permit university programs that discriminated against black and Latino applicants, it is perfectly willing
to let the programs here continue. In its view, this Court is
supposed to tell state actors when they have picked the right races
to benefit. Separate but equal is “ inherently unequal,” said Brown . 347 U. S., at 495 (emphasis added). It depends,
says the dissent.

															That is a remarkable view of the judicial
role—remarkably wrong. Lost in the false pretense of judicial
humility that the dissent espouses is a claim to power so radical,
so destructive, that it required a Second Founding to undo.
“Justice Harlan knew better,” one of the dissents decrees. Post , at 5 (opinion of Jackson, J . ). Indeed he
did:

															“[I]n view of the Constitution, in the eye
of the law, there is in this country no superior, dominant, ruling
class of citizens. There is no caste here. Our Constitution is
color-blind, and neither knows nor tolerates classes among
citizens.” Plessy , 163 U. S., at 559 (Harlan, J.,
dissenting).

															VI

															For the reasons provided above, the Harvard
and UNC admissions programs cannot be reconciled with the
guarantees of the Equal Protection Clause. Both programs lack
sufficiently focused and measurable objectives warranting the use
of race, unavoidably employ race in a negative manner, involve
racial stereotyping, and lack meaningful end points. We have never
permitted admissions programs to work in that way, and we will not
do so today.

															At the same time, as all parties agree, nothing
in this opinion should be construed as prohibiting universities
from considering an applicant’s discussion of how race affected his
or her life, be it through discrimination, inspiration, or
otherwise. See, e.g. , 4 App. in No. 21–707, at 1725–1726,
1741; Tr. of Oral Arg. in No. 20–1199, at 10. But, despite the
dissent’s assertion to the contrary, universities may not simply
establish through application essays or other means the regime we
hold unlawful today. (A 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 Constitution deals with substance, not shadows,”
and the prohibition against racial discrimination is “levelled at
the thing, not the name.” Cummings v. Missouri , 4
Wall. 277, 325 (1867). A benefit to a student who overcame racial
discrimination, for example, must be tied to that student’s courage and determination. Or a benefit 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
individual—not on the basis of race.

															Many universities have for too long done just
the opposite. And in doing so, they have concluded, wrongly, that
the touchstone of an individual’s identity is not challenges
bested, skills built, or lessons learned but the color of their
skin. Our constitutional history does not tolerate that choice.

															The judgments of the Court of Appeals for the
First Circuit and of the District Court for the Middle District of
North Carolina are reversed.

															It is so ordered.

															Justice Jackson took no part in the
consideration or decision of the case in No. 20–1199. Notes 1 Justice Jackson attempts
to minimize the role that race plays in UNC’s admissions process by
noting that, from 2016–2021, the school accepted a lower
“percentage of the most academically excellent in-state Black
candidates”—that is, 65 out of 67 such applicants (97.01%)—than it
did similarly situated Asian applicants—that is, 1118 out of 1139
such applicants (98.16%). Post , at 20 (dissenting opinion);
see also 3 App. in No. 21–707, pp. 1078–1080. It is not clear how
the rejection of just two black applicants over five years could be
“indicative of a genuinely holistic [admissions] process,” as
Justice Jackson contends. Post , at 20–21. And indeed it
cannot be, as the overall acceptance rates of academically
excellent applicants to UNC illustrates full well. According to
SFFA’s expert, over 80% of all black applicants in the top academic
decile were admitted to UNC, while under 70% of white and Asian
applicants in that decile were admitted. 3 App. in No. 21–707, at
1078–1083. In the second highest academic decile, the disparity is
even starker: 83% of black 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 figures. See post , at 20, n. 94
(opinion of Jackson, J.). And its contention that white and Asian
students “receive a diversity plus” in UNC’s race-based admissions
system blinks reality. Post , at 18. The same is true at
Harvard. See Brief for Petitioner 24 (“[A]n African American
[student] in [the fourth lowest academic] decile has a higher
chance of admission (12.8%) than an Asian American in the top decile (12.7%).” (emphasis added)); see also 4 App. in
No. 20–1199, p. 1793 (black applicants in the top four academic
deciles are between four and ten times more likely to be admitted
to Harvard than Asian applicants in those deciles). 2 Title VI provides that
“[n]o person in the United States shall, on the ground of race,
color, or national origin, be excluded from participation in, be
denied the benefits of, or be subjected to discrimination under any
program or activity receiving Federal financial assistance.” 42
U. S. C. §2000d. “We have explained that discrimination
that violates the Equal Protection Clause of the Fourteenth
Amendment committed by an institution 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 standards of the
Equal Protection Clause itself. 3 The first time we
determined that a governmental racial classification satisfied “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 demanded” it. Id. , at 217, 223. We
have since overruled Korematsu , recognizing that it was
“gravely wrong the day it was decided.” Trump v. Hawaii , 585 U. S. ___, ___ (2018) (slip op., at 38).
The Court’s decision in Korematsu nevertheless “demonstrates
vividly that even the most rigid scrutiny can sometimes fail to
detect an illegitimate racial classification” and that “[a]ny
retreat from the most searching judicial inquiry can only increase
the risk of another such error occurring in the future.” Adarand
Constructors, Inc. v. Peña , 515
U.S. 200 , 236 (1995) (internal quotation marks omitted). The
principal dissent, for its part, claims that the Court has also
permitted “the use of race when that use burdens minority
populations.” Post , at 38–39 (opinion of Sotomayor, J.). In
support of that claim, the dissent cites two cases that have
nothing to do with the Equal Protection Clause. See ibid. (citing United States v. Brignoni-Ponce , 422 U.S.
873 (1975) ( Fourth Amendment case), and United States v. Martinez-Fuerte , 428 U.S.
543 (1976) (another Fourth Amendment case)). 4 The United States as amicus curiae contends that race-based admissions programs
further compelling interests at our Nation’s military academies. No
military academy is a party to these cases, however, and none of
the courts below addressed the propriety of race-based admissions
systems in that context. This opinion also does not address the
issue, in light of the potentially distinct interests that military
academies may present. 5 For that reason, one
dissent candidly advocates abandoning the demands of strict
scrutiny. See post , at 24, 26–28 (opinion of Jackson, J.)
(arguing the Court must “get out of the way,” “leav[e] well enough
alone,” and defer to universities and “experts” in determining who
should be discriminated against). An opinion professing fidelity to
history (to say nothing of the law) should surely see the folly in
that approach. 6 Justice Jackson contends
that race does not play a “determinative role for applicants” to
UNC. Post , at 24. But even the principal dissent
acknowledges that race—and race alone—explains the admissions
decisions for hundreds if not thousands of applicants to UNC each
year. Post , at 33, n. 28 (opinion of Sotomayor, J.); see
also Students for Fair Admissions, Inc. v. University of
N. C. at Chapel Hill , No. 1:14–cv–954 (MDNC, Dec. 21,
2020), ECF Doc. 233, at 23–27 (UNC expert testifying that race
explains 1.2% of in state and 5.1% of out of state admissions
decisions); 3 App. in No. 21–707, at 1069 (observing that UNC
evaluated 57,225 in state applicants and 105,632 out of state
applicants from 2016–2021). The suggestion by the principal dissent
that our analysis relies on extra-record materials, see post , at 29–30, n. 25 (opinion of Sotomayor, J.), is
simply mistaken. 7 The principal dissent
claims that “[t]he fact that Harvard’s racial shares of admitted
applicants varies relatively little . . . is unsurprising
and reflects the fact that the racial makeup of Harvard’s applicant
pool also varies very little over this period.” Post , at 35
(opinion of Sotomayor, J.) (internal quotation marks omitted). But
that is exactly the point: Harvard must use precise racial
preferences year in and year out to maintain the unyielding
demographic composition of its class. The dissent is thus left to
attack the numbers themselves, arguing they were “handpicked” “from
a truncated period.” Ibid. , n. 29 (opinion of Sotomayor,
J.). As supposed proof, the dissent notes that the share of Asian
students at Harvard varied significantly from 1980 to 1994—a
14-year period that ended nearly three decades ago. 4 App. in No.
20–1199, at 1770. But the relevance of that observation—handpicked
and 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 beneficiaries” 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. 8 Perhaps recognizing as
much, the principal dissent at one point attempts to press a
different remedial rationale altogether, stating that both
respondents “have sordid legacies of racial exclusion.” Post , at 21 (opinion of Sotomayor, J.). Such institutions
should perhaps be the very last ones to be allowed to make
race-based decisions, let alone be accorded deference in doing so.
In any event, neither university defends its admissions system as a
remedy for past discrimination—their own or anyone else’s. See Tr.
of Oral Arg. in No. 21–707, at 90 (“[W]e’re not pursuing any sort
of remedial justification for our policy.”). Nor has any decision
of ours permitted a remedial justification for race-based college
admissions. Cf. Bakke , 438 U. S., at 307 (opinion of
Powell, J.). 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 admissions programs be limited in time. See supra , at 20. Grutter indeed went so far as to
suggest a specific period of reliance—25 years—precluding the
indefinite reliance interests that the dissent articulates. Cf. post , at 2–4 (Kavanaugh, J., concurring). Those interests
are, moreover, vastly overstated on their own terms. Three out of
every five 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 prohibited
race-based admissions outright. See Brief for Oklahoma et al.
as Amici Curiae 9, n. 6. SUPREME COURT OF THE UNITED STATES

															_________________

															Nos. 20–1199 and 21–707

															_________________

															STUDENTS FOR FAIR ADMISSIONS, INC.,
PETITIONER

															20–1199 v. PRESIDENT AND FELLOWS OF HARVARD
COLLEGE

															on writ of certiorari to the united states
court of appeals for the first circuit

															STUDENTS FOR FAIR ADMISSIONS, INC.,
PETITIONER

															21–707 v. UNIVERSITY OF NORTH CAROLINA,
et al.

															on writ of certiorari before judgment to the
united states court of appeals for the fourth circuit

															[June 29, 2023]

															Justice Thomas, concurring.

															In the wake of the Civil War, the country
focused its attention on restoring the Union and establishing the
legal status of newly freed slaves. The Constitution was amended to
abolish slavery and proclaim that all persons born in the United
States are citizens, entitled to the privileges or immunities of
citizenship and the equal protection of the laws. Amdts. 13, 14.
Because of that second founding, “[o]ur Constitution is
color-blind, and neither knows nor tolerates classes among
citizens.” Plessy v. Ferguson , 163 U.S.
537 , 559 (1896) (Harlan, J., dissenting).

															This Court’s commitment to that equality
principle has ebbed and flowed over time. After forsaking the
principle for decades, offering a judicial imprimatur to
segregation and ushering in the Jim Crow era, the Court finally
corrected course in Brown v. Board of Education , 347 U.S.
483 (1954), announcing that primary schools must either
desegregate with all deliberate speed or else close their doors.
See also Brown v. Board of Education , 349 U.S.
294 (1955) ( Brown II ). It then pulled back in Grutter v. Bollinger , 539 U.S.
306 (2003), permitting universities to discriminate based on
race in their admissions process (though only temporarily) in order
to achieve alleged “educational benefits of diversity.” Id. ,
at 319. Yet, the Constitution continues to embody a simple truth:
Two discriminatory wrongs cannot make a right.

															I wrote separately in Grutter , explaining
that the use of race in higher education admissions
decisions—regardless of whether intended to help or to
hurt—violates the Fourteenth Amendment. Id. , at 351 (opinion
concurring in part and dissenting in part). In the decades since, I
have repeatedly stated that Grutter was wrongly decided and
should be overruled. Fisher v. University of Tex. at
Austin , 570 U.S.
297 , 315, 328 (2013) (concurring opinion) ( Fisher
I ); Fisher v. University of Tex. at Austin ,
579 U.S. 365, 389 (2016) (dissenting opinion). Today, and despite a
lengthy 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 finds that
they fail that searching review, I join the majority opinion in
full. I write separately to offer an originalist defense of the
colorblind Constitution; to explain further the flaws of the
Court’s Grutter jurisprudence; to clarify that all forms of
discrimination based on race—including so-called affirmative
action—are prohibited under the Constitution; and to emphasize the
pernicious effects of all such discrimination.

															I

															In the 1860s, Congress proposed and the States
ratified the Thirteenth and Fourteenth Amendments. And, with the
authority conferred by these Amendments, Congress passed two
landmark Civil Rights Acts. Throughout the debates on each of these
measures, their proponents repeatedly affirmed their view of equal
citizenship and the racial equality that flows from it. In fact,
they held this principle so deeply that their crowning
accomplishment—the Fourteenth Amendment—ensures racial equality with no textual reference to race whatsoever . The history of
these measures’ enactment renders their motivating principle as
clear as their text: All citizens of the United States, regardless
of skin color, are equal before the law.

															I do not contend that all of the individuals who
put forth and ratified the Fourteenth Amendment universally
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 ratification in
the States—is sparse. Nonetheless, substantial evidence suggests
that the Fourteenth Amendment was passed to “establis[h] the broad
constitutional principle of full and complete equality of all
persons under the law,” forbidding “all legal distinctions based on
race or color.” Supp. Brief for United States on Reargument in Brown v. Board of Education , O. T. 1953, No. 1
etc., p. 115 (U. S. Brown Reargument
Brief ).

															This was Justice Harlan’s view in his lone
dissent in Plessy , where he observed that “[o]ur
Constitution is color-blind.” 163 U. S., at 559. It was the
view of the Court in Brown , which rejected “ ‘any
authority . . . to use race as a factor in affording
educational opportunities.’ ” Parents Involved in Community
Schools v. Seattle School Dist. No. 1 , 551 U.S.
701 , 747 (2007). And, it is the view adopted in the Court’s
opinion today, requiring “the absolute equality of all citizens”
under the law. Ante , at 10 (internal quotation marks
omitted).

															A

															In its 1864 election platform, the Republican
Party pledged to amend the Constitution to accomplish the “utter
and complete extirpation” of slavery from “the soil of the
Republic.” 2 A. Schlesinger, History of U. S. Political
Parties 1860–1910, p. 1303 (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 ratified as part of the
Constitution later that year. The new Amendment 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 enslaving 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,
America’s Constitution: A Biography 362 (2005) (internal quotation
marks omitted). The Amendment also authorized “Congress
. . . to enforce” its terms “by appropriate
legislation”—authority not granted in any prior Amendment. §2.
Proponents believed this enforcement clause permitted legislative
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 Southern States
began to enact “Black Codes,” which circumscribed 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 firearms, 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, 14Stat. 27, in an attempt to pre-empt the Black
Codes. The 1866 Act promised such a sweeping form of equality that
it would lead many to say that it exceeded the scope of Congress’
authority under the Thirteenth Amendment. As enacted, it
stated:

															“ Be it enacted by the Senate and House
of Representatives of the United States of America in Congress
assembled , That all persons born in the United States and not
subject to any foreign power, excluding Indians not taxed, are
hereby declared to be citizens of the United States; and such
citizens, of every race and color, without regard to any previous
condition of slavery or involuntary servitude, except as a
punishment for crime whereof the party shall have been duly
convicted, shall have the same right, in every State and Territory
in the United States, to make and enforce contracts, to sue, be
parties, and give evidence, to inherit, purchase, lease, sell,
hold, and convey real and personal property, and to full and equal
benefit of all laws and proceedings for the security of person and
property, as is enjoyed by white citizens, and shall be subject to
like punishment, pains, and penalties, and to none other, any law,
statute, ordinance, regulation, or custom, to the contrary
notwithstanding.”

															The text of the provision left no doubt as to
its aim: All persons born in the United States were equal citizens
entitled to the same rights and subject to the same penalties as
white citizens in the categories enumerated. See M. McConnell,
Originalism and the Desegregation Decisions, 81 Va. L. Rev.
947, 958 (1995) (“Note that the bill neither forbade racial
discrimination generally nor did it guarantee particular rights to
all persons. Rather, it required an equality in certain specific
rights”). And, while the 1866 Act used the rights of “white
citizens” as a benchmark, its rule was decidedly colorblind,
safeguarding legal equality for all citizens “of every race
and color” and providing the same rights to all.

															The 1866 Act’s evolution further highlights its
rule of equality. To start, Dred Scott v. Sandford ,
19 How. 393 (1857), had previously held that blacks “were not
regarded as a portion of the people or citizens of the Government”
and “had no rights which the white man was bound to respect.” Id ., at 407, 411. The Act, however, would effectively
overrule Dred Scott and ensure the equality that had been
promised to blacks. But the Act went further still. On January 29,
1866, Senator Lyman Trumbull, the bill’s principal sponsor in the
Senate, proposed text stating that “all persons of African descent
born in the United States are hereby declared to be citizens.”
Cong. Globe, 39th Cong., 1st Sess., 474. The following day,
Trumbull revised his proposal, removing the reference to “African
descent” and declaring more broadly that “all persons born in the
United States, and not subject to any foreign Power,” are “citizens
of the United States.” Id. , at 498.

															“In the years before the Fourteenth Amendment’s
adoption, 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) (slip op., at 6). 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 equality for all Americans. Indeed, the
drafters later included a specific carveout for “Indians not
taxed,” demonstrating the breadth of the bill’s otherwise general
citizenship language. 14Stat. 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 encroachment upon
his liberty” and a “badge of servitude” prohibited by the
Constitution. Cong. Globe, 39th Cong., 1st Sess., at 474 (emphasis
added).

															Trumbull and most of the Act’s other supporters
identified the Thirteenth Amendment as a principal source of
constitutional 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 measure,
seizing on the breadth of the citizenship text and emphasizing
state authority over matters of state citizenship. See S. Doc. No.
31, 39th Cong., 1st Sess., 1, 6 (1866) (Johnson veto message).
Consequently, “doubts about the constitutional authority conferred
by that measure led supporters to supplement their Thirteenth
Amendment arguments with other sources of constitutional
authority.” R. Williams, Originalism and the Other Desegregation
Decision, 99 Va. L. Rev. 493, 532–533 (2013) (describing
appeals to the naturalization power and the inherent power to
protect the rights of citizens). As debates continued, it became
increasingly apparent that safeguarding the 1866 Act, including its
promise of black citizenship and the equal rights that citizenship
entailed, would require further submission to the people of the
United States in the form of a proposed constitutional amendment.
See, e.g. , Cong. Globe, 39th Cong., 1st Sess., at 498
(statement of Sen. Van Winkle).

															B

															Critically, many of those who believed that
Congress lacked the authority to enact the 1866 Act also supported
the principle of racial equality. So, almost immediately following
the ratification of the Thirteenth Amendment, several proposals for
further amendments were submitted in Congress. One such proposal,
approved by the Joint Committee on Reconstruction and then
submitted to the House of Representatives 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. Specifically, he believed the
“very letter of the Constitution” already required equality, but
the enforcement of that requirement “is of the reserved powers of
the States.” Cong. Globe, 39th Cong., 1st Sess., at 1034, 1291
(statement of Rep. Bingham). His proposed constitutional amendment
accordingly would provide a clear constitutional basis for the 1866
Act and ensure that future Congresses would be unable to repeal it.
See W. Nelson, The Fourteenth 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 revised
to read as follows: “ ‘No State shall make or enforce any law
which shall abridge the privileges or immunities of citizens of the
United States; nor shall any State deprive any person of life,
liberty, or property without due process of law, nor deny to any
person within its jurisdiction the equal protection of the
laws.’ ” Id. , at 39. This revised text was submitted to
the full House on April 30, 1866. Cong. Globe, 39th Cong., 1st
Sess., at 2286–2287. Like the eventual first section of the
Fourteenth Amendment, this proposal embodied the familiar
Privileges or Immunities, Due Process, and Equal Protection
Clauses. And, importantly, it also featured an enforcement
clause—with text borrowed from the Thirteenth Amendment—conferring
upon 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
difference “in substance between the new proposal and” earlier
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 terrific conflict” during the Civil War. Cong.
Globe, 39th Cong., 1st Sess., at 2542. The proposal passed the
House by a vote of 128 to 37. Id. , at 2545.

															Senator Jacob Howard introduced the proposed
Amendment in the Senate, powerfully asking, “Ought not the time to
be now passed when one measure of justice is to be meted out to a
member of one caste while another and a different measure is meted
out to the member of another caste, both castes being alike
citizens of the United States, both bound to obey the same laws, to
sustain the burdens of the same Government, and both equally
responsible to justice and to God for the deeds done in the body?” Id. , at 2766. In keeping with this view, he proposed an
introductory sentence, declaring that “ ‘all persons born in
the United States, and subject to the jurisdiction thereof, are
citizens of the United States and of the States wherein they
reside.’ ” Id. , at 2869. This text, the Citizenship
Clause, was the final missing element of what would ultimately
become §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 desideratum in the
jurisprudence and legislation of this country.” Id. , at
2890. He further characterized the addition as “simply declaratory
of what I regard as the law of the land already.” Ibid. The proposal was approved in the Senate by a
vote of 33 to 11. Id. , at 3042. The House then reconciled
differences between the two measures, approving the Senate’s
changes by a vote of 120 to 32. See id. , at 3149. And, in
June 1866, the amendment was submitted to the States for their
consideration and ratification. Two years later, it was ratified by
the requisite number of States and became the Fourteenth Amendment
to the United States Constitution. See 15Stat. 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 protection of the laws.” §1.

															As enacted, the text of the Fourteenth Amendment
provides a firm statement of equality before the law. It begins by
guaranteeing citizenship status, invoking the “longstanding
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) (slip
op., at 6) (internal quotation marks omitted). It then confirms
that States may not “abridge the rights of national citizenship,
including whatever civil equality is guaranteed to ‘citizens’ under
the Citizenship Clause.” Id. , at ___, n. 3 (slip op.,
at 13, n. 3). Finally, it pledges that even noncitizens must
be treated equally “as individuals, and not as members of racial,
ethnic, or religious groups.” Missouri v. Jenkins , 515 U.S.
70 , 120–121 (1995) (Thomas, J., concurring).

															The drafters and ratifiers of the Fourteenth
Amendment focused on this broad equality idea, offering
surprisingly little explanation of which term was intended to
accomplish which part of the Amendment’s overall goal. “The
available materials . . . show,” however, “that there
were widespread expressions of a general understanding of the broad
scope of the Amendment similar to that abundantly demonstrated in
the Congressional debates, namely, that the first 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 Reargument Brief 65 (citation omitted). For example, the
Pennsylvania debate suggests that the Fourteenth Amendment was
understood to make the law “what justice is represented to be,
blind” to the “color of [one’s] skin.” App. to Pa. Leg. Record
XLVIII (1867) (Rep. Mann).

															The most commonly held view today—consistent
with the rationale repeatedly invoked during the congressional
debates, see, e.g. , Cong. Globe, 39th Cong., 1st Sess., at
2458–2469—is that the Amendment was designed to remove any doubts
regarding Congress’ authority to enact the Civil Rights Act of 1866
and to establish a nondiscrimination rule that could not be
repealed by future Congresses. See, e.g. , J. Harrison,
Reconstructing the Privileges or Immunities Clause, 101 Yale
L. J. 1385, 1388 (1992) (noting that the “primary purpose” of
the Fourteenth Amendment “was to mandate certain rules of racial
equality, especially those contained in Section 1 of the Civil
Rights Act of 1866”).[ 2 ] The
Amendment’s phrasing supports this view, and there does not appear
to have been any argument to the contrary predating Brown .

															Consistent with the Civil Rights Act of 1866’s
aim, the Amendment definitively overruled Chief Justice Taney’s
opinion in Dred Scott that blacks “were not regarded as a
portion of the people or citizens of the Government” and “had no
rights which the white man was bound to respect.” 19 How., at 407,
411. And, like the 1866 Act, the Amendment also clarified that
American citizenship conferred rights not just against the Federal
Government but also the government of the citizen’s State of
residence. Unlike the Civil Rights Act, however, the Amendment
employed a wholly race-neutral text, extending privileges or
immunities 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) (slip op., at 10). Combining the
citizenship guarantee with the Privileges or Immunities Clause and
the Equal Protection Clause, the Fourteenth Amendment ensures
protection for all equal citizens of the Nation without regard to
race. Put succinctly, “[o]ur Constitution is color-blind.” Plessy , 163 U. S., at 559 (Harlan, J., dissenting).

															C

															In the period closely following the Fourteenth
Amendment’s ratification, Congress passed several statutes designed
to enforce its terms, eliminating government-based Black
Codes—systems of government-imposed segregation—and criminalizing
racially motivated violence. The marquee legislation was the Civil
Rights Act of 1875, ch. 114, 18Stat. 335–337, and the
justifications 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 systems 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 symmetrically, whites
could not attend a black school. See Plessy , 163 U. S.,
at 544 (arguing that, in light of the social circumstances 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
demands the abolition of all distinctions founded on color and
race.” 2 Cong. Rec. 4083 (1874). And, they submitted that “[t]he
time has come when all distinctions that grew out of slavery ought
to disappear.” Cong. Globe, 42d Cong., 2d Sess., 3193 (1872) (“[A]s
long as you have distinctions and discriminations between white and
black in the enjoyment of legal rights and privileges[,] you will
have discontent and parties divided between black and white”).
Leading Republican Senator Charles Sumner compellingly argued that
“any rule excluding a man on account of his color is an indignity,
an insult, and a wrong.” Id. , at 242; see also ibid. (“I insist that by the law of the land all persons without
distinction of color shall be equal before the law”). Far from
conceding that segregation would be perceived as inoffensive if
race roles were reversed, he declared that “[t]his is plain
oppression, which you . . . would feel keenly were it
directed against you or your child.” Id. , at 384. He went on
to paraphrase the English common-law rule to which he subscribed:
“[The law] makes no discrimination on account of color.” Id. , at 385.

															Others echoed this view. Representative John
Lynch declared that “[t]he duty of the law-maker is to know no
race, no color, no religion, no nationality, except to prevent
distinctions on any of these grounds, so far as the law is
concerned.” 3 Cong. Rec. 945 (1875). Senator John Sherman believed
that the route to peace was to “[w]ipe out all legal
discriminations between white and black [and] make no distinction
between black and white.” Cong. Globe, 42d Cong., 2d Sess., at
3193. And, Senator Henry Wilson sought to “make illegal all
distinctions on account of color” because “there should be no
distinction recognized by the laws of the land.” Id ., at
819; see also 3 Cong. Rec., at 956 (statement of Rep. Cain) (“[M]en
[are] formed of God equally . . . . The
civil-rights bill simply declares this: that there shall be no
discriminations between citizens of this land so far as the laws of
the land are concerned”). The view of the Legislature was clear:
The Constitution “neither knows nor tolerates classes among
citizens.” Plessy , 163 U. S., at 559 (Harlan, J.,
dissenting).

															D

															The earliest Supreme Court opinions to
interpret the Fourteenth Amendment did so in colorblind terms.
Their statements characterizing the Amendment evidence its
commitment to equal rights for all citizens, regardless of the
color of their skin. See ante , at 10–11.

															In the Slaughter-House Cases , 16 Wall. 36
(1873), the Court identified the “pervading purpose” of the
Reconstruction Amendments as “the freedom of the slave race, the
security and firm establishment of that freedom, and the protection
of the newly-made freeman and citizen from the oppressions of those
who had formerly exercised unlimited dominion over him.” Id ., at 67–72. Yet, the Court quickly acknowledged that the
language of the Amendments did not suggest “that no one else but
the negro can share in this protection.” Id. , at 72. Rather,
“[i]f Mexican peonage or the Chinese coolie labor system shall
develop slavery of the Mexican or Chinese race within our
territory, [the Thirteenth 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 protection 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
Amendment’s equality guarantee applied to members of all races, including Asian Americans, ensuring all citizens equal
treatment under law.

															Seven years later, the Court relied on the Slaughter-House view to conclude that “[t]he words of the
[Fourteenth A]mendment . . . contain a necessary
implication of a 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 classifications, no matter the
race affected, because these classifications are “a stimulant to
. . . race prejudice.” Id. , at 308. See also ante , at 10–11. Similar statements appeared in other cases
decided around that time. See Virginia v. Rives , 100 U.S.
313 , 318 (1880) (“The plain object of these statutes [enacted
to enforce the Fourteenth Amendment], as of the Constitution which
authorized them, was to place the colored race, in respect of civil
rights, upon a level with whites. They made the rights and
responsibilities, civil and criminal, of the two races exactly the
same”); Ex parte Virginia , 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 servitude in which most of them had
previously stood, into perfect equality of civil rights with all
other persons within the jurisdiction of the States”).

															This Court’s view of the Fourteenth Amendment
reached its nadir in Plessy , infamously concluding that the
Fourteenth Amendment “could not have been intended to abolish
distinctions based upon color, or to enforce social, as
distinguished 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, 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)
(slip op., at 44). Nonetheless, and despite Justice Harlan’s
efforts, the era of state-sanctioned segregation persisted for more
than a half century.

															E

															Despite the extensive evidence favoring the
colorblind view, as detailed above, it appears increasingly in
vogue to embrace an “antisubordination” view of the Fourteenth
Amendment: that the Amendment forbids only laws that hurt, but not
help, blacks. Such a theory lacks any basis in the original meaning
of the Fourteenth Amendment. Respondents cite a smattering of
federal and state statutes passed during the years surrounding the
ratification of the Fourteenth Amendment. And, Justice Sotomayor’s
dissent argues that several of these statutes evidence the
ratifiers’ understanding that the Equal Protection Clause “permits
consideration of race to achieve its goal.” Post , at 6. Upon
examination, however, it is clear that these statutes are fully
consistent with the colorblind view.

															Start with the 1865 Freedmen’s Bureau Act. That
Act established the Freedmen’s Bureau to issue “provisions,
clothing, and fuel . . . needful for the immediate and
temporary 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,” abandoned,
confiscated, or purchased lands, and assigning “to every male
citizen, whether refugee or freedman, . . . not more than
forty acres of such land.” Ch. 90, §§2, 4, 13Stat. 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, 14Stat. 173–174. Importantly, however, the Acts applied to freedmen (and refugees), a formally race-neutral category,
not blacks writ large. And, because “not all blacks in the United
States were former slaves,” “ ‘freedman’ ” was a
decidedly under-inclusive proxy for race. M. Rappaport, Originalism
and the Colorblind Constitution, 89 Notre Dame L. Rev. 71, 98
(2013) (Rappaport). Moreover, the Freedmen’s Bureau served newly
freed slaves alongside white refugees. P. Moreno, Racial
Classifications and Reconstruction 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 clarified
that the equality sought by the law was not one in which all men
shall be “six feet high”; rather, it strove to ensure that 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 appear to classify based on race, rather than previous
condition of servitude. For example, an 1866 law adopted special
rules and procedures for the payment of “colored” servicemen in the
Union Army to agents who helped them secure bounties, pensions, and
other payments that they were due. 14Stat. 367–368. At the time,
however, Congress believed that many “black servicemen were
significantly 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
Inquiry, 92 Nw. U. L. Rev. 477, 561 (1998). Thus, while this
legislation appears to have provided a discrete race-based benefit,
its aim—to prohibit race-based exploitation—may not have been
possible at the time without using a racial screen. In other words,
the statute’s racial classifications may well have survived strict
scrutiny. See Rappaport 111–112. Another law, passed in 1867,
provided funds for “freedmen or destitute colored people” in the
District of Columbia. Res. of Mar. 16, 1867, No. 4, 15Stat. 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
action “undo[ing] the effects of past discrimination in [a way]
that do[es] not involve classification by race,” even though they
had “a racially disproportionate impact.” Richmond v. J.
A. Croson Co. , 488 U.S.
469 , 526 (1989) (Scalia, J., concurring in judgment) (internal
quotation marks omitted). The government can plainly remedy a
race-based injury that it has inflicted—though such remedies must
be meant to further a colorblind government, not perpetuate racial
consciousness. See id ., at 505 (majority opinion). In that
way, “[r]ace-based government measures during the 1860’s and 1870’s
to remedy state-enforced slavery were . . . not
inconsistent with the colorblind Constitution.” Parents
Involved , 551 U. S., at 772, n. 19 (Thomas, J.,
concurring). Moreover, the very same Congress passed both these
laws and the unambiguously worded 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.

															Justice Sotomayor argues otherwise, pointing to
“a number of race-conscious” federal laws passed around the time of
the Fourteenth Amendment’s enactment. Post , at 6 (dissenting
opinion). She identifies the Freedmen’s Bureau Act of 1865, already
discussed above, as one such law, but she admits that the programs
did not benefit blacks exclusively. She also does not dispute that
legislation targeting the needs of newly freed blacks in 1865 could
be understood as directly remedial. Even today, nothing prevents
the States from according an admissions preference to identified
victims of discrimination. See Croson , 488 U. S., at
526 (opinion of Scalia, J.) (“While most of the beneficiaries might
be black, neither the beneficiaries nor those disadvantaged by the
preference would be identified on the basis of their race ”
(emphasis in original)); see also ante , at 39.

															Justice Sotomayor points also to the Civil
Rights Act of 1866, which as discussed above, mandated that all
citizens have the same rights as those “enjoyed by white citizens.”
14Stat. 27. But these references to the station of white citizens
do not refute the view that the Fourteenth Amendment 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 citizenship. 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 citizenship shall be secured “without respect to race or color.”
14Stat. 176–177. And, §8 required that funds from land sales must
be used to support schools “without distinction of color or
race, . . . in the parishes of ” the area where
the land had been sold. Id. , at 175.

															In addition to these federal laws, Harvard also
points to two state laws: a South Carolina statute that placed the
burden of proof on the defendant when a “colored or black”
plaintiff claimed a violation, 1870 S. C. Acts
pp. 387–388, and Kentucky legislation that authorized a county
superintendent to aid “negro paupers” in Mercer County, 1871 Ky.
Acts pp. 273–274. Even if these statutes provided race-based
benefits, they do not support respondents’ and Justice Sotomayor’s
view that the Fourteenth Amendment was contemporaneously understood
to permit differential treatment based on race, prohibiting only
caste legislation while authorizing antisubordination measures.
Cf., e.g. , O. Fiss, Groups and the Equal Protection Clause,
5 Philos. & Pub. Aff. 107, 147 (1976) (articulating the
antisubordination view); R. Siegel, Equality Talk:
Antisubordination and Anticlassification Values in Constitutional
Struggles Over Brown , 117 Harv. L. Rev. 1470, 1473,
n. 8 (2004) (collecting scholarship). At most, these laws
would support the kinds of discrete remedial measures that our
precedents have permitted.

															If services had been given only to white persons
up to the Fourteenth Amendment’s adoption, then providing those
same services only to previously excluded black persons would work
to equalize treatment against a concrete baseline of
government-imposed inequality. It thus may have been the case that
Kentucky’s county-specific, race-based public aid law was necessary
because that particular county was not providing certain services
to local poor blacks. Similarly, South Carolina’s burden-shifting
framework (where the substantive rule being applied remained
notably race neutral) may have been necessary to streamline
litigation around the most commonly litigated type of case: a
lawsuit seeking to remedy discrimination against a member of the
large population of recently freed black Americans. See 1870
S. C. Acts, at 386 (documenting “persist[ent]” racial
discrimination by state-licensed entities).

															Most importantly, however, there was a wide
range of federal and state statutes enacted at the time of the
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 precisely
the sort of enactments that the Framers of the Fourteenth Amendment
sought to eradicate. Yet, proponents of an antisubordination view
necessarily do not take those laws as evidence of the Fourteenth
Amendment’s true meaning. And rightly so. Neither those laws, nor a
small number of laws that appear to target blacks for preferred
treatment, displace the equality vision reflected in the history of
the Fourteenth Amendment’s enactment. This is particularly true in
light of the clear equality requirements present in the Fourteenth
Amendment’s text. See New York State Rifle & Pistol
Assn. , Inc. v. Bruen , 597 U. S. ___, ___–___
(2022) (slip op., at 26–27) (noting that text controls over
inconsistent postratification history).

															II

															Properly understood, our precedents have
largely adhered to the Fourteenth Amendment’s demand for colorblind
laws.[ 4 ] That is why, for
example, courts “must subject all racial classifications to the
strictest of scrutiny.” Jenkins , 515 U. S., at 121
(Thomas, J., concurring); see also ante , at 15, n. 4
(emphasizing the consequences of an insufficiently searching
inquiry). And, in case after case, we have employed strict scrutiny
vigorously to reject various forms of racial discrimination as
unconstitutional. See Fisher I , 570 U. S., at 317–318
(Thomas, J., concurring). The Court today rightly upholds that
tradition and acknowledges the consequences that have flowed from Grutter ’s contrary approach.

															Three aspects of today’s decision warrant
comment: First, to satisfy strict scrutiny, universities must be
able to establish an actual link between racial discrimination and
educational benefits. Second, those engaged in racial
discrimination do not deserve deference with respect to their
reasons for discriminating. Third, attempts to remedy past
governmental discrimination must be closely tailored to address that particular past governmental discrimination.

															A

															To satisfy strict scrutiny, universities must
be able to establish a compelling reason to racially discriminate. Grutter recognized “only one” interest sufficiently
compelling to justify race-conscious admissions programs: the
“educational benefits of a 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, spanning from
“ ‘training future leaders in the public and private
sectors’ ” to “ ‘enhancing appreciation, respect, and
empathy,’ ” with references to “ ‘better educating
[their] students through diversity’ ” in between. Ante ,
at 22–23. The Court today finds that each of these interests are
too vague and immeasurable to suffice, ibid. , and I
agree.

															Even in Grutter , the Court failed to
clearly define “the educational benefits of a diverse student
body.” 539 U. S., at 333. Thus, in the years since Grutter , I have sought to understand exactly how racial
diversity yields educational benefits. With nearly 50 years
to develop their arguments, neither Harvard nor UNC—two of the
foremost research institutions in the world—nor any of their amici can explain that critical link.

															Harvard, for example, offers a report finding
that meaningful representation of racial minorities promotes
several goals. Only one of those goals—“producing new knowledge
stemming from diverse outlooks,” 980 F.3d 157, 174 (CA1 2020)—bears
any possible relationship to educational benefits. Yet, it too is
extremely vague and offers no indication that, for example, student
test scores increased as a result of Harvard’s efforts toward
racial diversity.

															More fundamentally, it is not clear how racial
diversity, as opposed to other forms of diversity, uniquely and
independently advances Harvard’s goal. This is particularly true
because Harvard blinds itself to other forms of applicant
diversity, such as religion. See 2 App. in No. 20–1199,
pp. 734–743. It may be the case that exposure to different
perspectives and thoughts can foster debate, sharpen young minds,
and hone students’ reasoning skills. But, it is not clear how
diversity with respect to race, qua race, furthers this
goal. Two white students, one from rural Appalachia and one from a
wealthy San Francisco suburb, may well have more diverse outlooks
on this metric than two students from Manhattan’s Upper East Side
attending its most elite schools, one of whom is white and other of
whom is black. If Harvard cannot even explain the link
between racial diversity and education, then surely its interest in
racial diversity cannot be compelling enough to overcome the
constitutional limits on race consciousness.

															UNC fares no better. It asserts, for example, an
interest in training students to “live together in a diverse
society.” Brief for University Respondents in No. 21–707,
p. 39. This may well be important to a university experience,
but it is a social goal, not an educational one. See Grutter , 539 U. S., at 347–348 (Scalia, J., concurring
in part and dissenting in part) (criticizing similar rationales as
divorced from educational goals). And, again, UNC offers no reason
why seeking a diverse society would not be equally supported by
admitting individuals with diverse perspectives and backgrounds,
rather than varying skin pigmentation.

															Nor have amici pointed to any concrete
and quantifiable educational benefits of racial diversity.
The United States focuses on alleged civic benefits, including
“increasing tolerance and decreasing racial prejudice.” Brief for
United States as Amicus Curiae 21–22. Yet, when it comes to
educational benefits, the Government offers only one study
purportedly showing that “college diversity experiences are
significantly and positively related to cognitive development” and
that “interpersonal interactions with racial diversity are the most
strongly related to cognitive development.” N. Bowman, College
Diversity Experiences and Cognitive Development: A Meta-Analysis,
80 Rev. Educ. Research 4, 20 (2010). Here again, the link is, at
best, tenuous, unspecific, and stereotypical. Other amici assert that diversity (generally) fosters the even-more nebulous
values of “creativity” and “innovation,” particularly in graduates’
future workplaces. See, e.g. , Brief for Major American
Business Enterprises as Amici Curiae 7–9; Brief for
Massachusetts Institute of Technology et al. as Amici Curiae 16–17 (describing experience at IBM). Yet, none of those assertions
deals exclusively with racial diversity—as opposed to
cultural or ideological diversity. And, none of those amici demonstrate measurable or concrete benefits 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 benefits,
they would still face a very high bar to show that their interest
is compelling. To survive strict scrutiny, any such benefits would
have to outweigh the tremendous harm inflicted by sorting
individuals on the basis of race. See Cooper v. Aaron , 358 U.S.
1 , 16 (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” sufficient to satisfy strict scrutiny
today. Grutter , 539 U. S . , at 353 (opinion of
Thomas, J.) (internal quotations marks omitted). Cf. Lee v. Washington , 390 U.S.
333 , 334 (1968) (Black, J., concurring) (protecting prisoners
from violence might justify narrowly tailored discrimination); Croson , 488 U. S., at 521 (opinion of Scalia, J.) (“At
least where state or local action is at issue, only a social
emergency rising to the level of imminent danger to life and limb
. . . can justify [racial discrimination]”). For this
reason, “just as the alleged educational benefits of segregation
were insufficient to justify racial discrimination [in the 1950s],
see Brown v. Board of Education , the alleged
educational benefits of diversity cannot justify racial
discrimination today.” Fisher I , 570 U. S., at 320
(Thomas, J., concurring) (citation omitted).

															B

															The Court also correctly refuses to defer to
the universities’ own assessments that the alleged benefits of
race- conscious admissions programs are compelling. It instead
demands that the “interests [universities] view as compelling” must
be capable of being “subjected to meaningful judicial review.” Ante , at 22. In other words, a court must be able to measure
the goals asserted and determine when they have been reached. Ante , at 22–24. The Court’s opinion today further insists
that universities must be able to “articulate a meaningful
connection between the means they employ and the goals they
pursue.” Ante , at 24. Again, I agree. Universities’
self-proclaimed righteousness does not afford them license to
discriminate on the basis of race.

															In fact, it is error for a court to defer to the
views of an alleged discriminator while assessing claims of racial
discrimination. See Grutter , 539 U. S., at 362–364
(opinion of Thomas, J.); see also Fisher I , 570 U. S.,
at 318–319 (Thomas, J., concurring); United States v. Virginia , 518 U.S.
515 , 551, n. 19 (1996) (refusing to defer to the Virginia
Military Institute’s judgment that the changes necessary to
accommodate the admission of women would be too great and
characterizing the necessary changes as “manageable”). We would not
offer such deference in any other context. In employment
discrimination lawsuits under Title VII of the Civil Rights Act,
for example, courts require only a minimal prima facie showing by a
complainant before shifting the burden onto the shoulders of the
alleged-discriminator employer. See McDonnell Douglas Corp. v. Green , 411 U.S.
792 , 803–805 (1973). And, Congress has passed numerous
laws—such as the Civil Rights Act of 1875—under its authority to
enforce the Fourteenth Amendment, each designed to counter
discrimination and each relying on courts to bring a skeptical eye
to alleged discriminators.

															This judicial skepticism is vital. History has
repeatedly shown that purportedly benign discrimination may be
pernicious, and discriminators may go to great lengths to hide and
perpetuate their unlawful conduct. Take, for example, the
university respondents here. Harvard’s “holistic” admissions policy
began in the 1920s when it was developed to exclude Jews. See M.
Synnott, The Half-Opened Door: Discrimination and Admission at
Harvard, Yale, and Princeton, 1900–1970, pp. 58–59, 61, 69,
73–74 (2010). Based on de facto quotas that Harvard quietly
implemented, the proportion of Jews in Harvard’s freshman class
declined from 28% as late as 1925 to just 12% by 1933. J. Karabel,
The Chosen: The Hidden History of Admission and Exclusion at
Harvard, Yale, and Princeton 172 (2005). During this same period,
Harvard played a prominent role in the eugenics movement. According
to then-President Abbott Lawrence Lowell, excluding Jews from
Harvard would help maintain admissions opportunities for Gentiles
and perpetuate the purity of the Brahmin race—New England’s white,
Protestant upper crust. See D. Okrent, The Guarded Gate 309, and
n. * (2019).

															UNC also has a checkered history, dating back to
its time as a segregated university. It admitted its first black
undergraduate students in 1955—but only after being ordered to do
so by a court, following a long legal battle in which UNC sought to
keep its segregated status. Even then, UNC did not turn on a dime:
The first three black students admitted as undergraduates enrolled
at UNC but ultimately earned their bachelor’s degrees elsewhere.
See M. Beauregard, Column: The Desegregation of UNC, The Daily Tar
Heel, Feb. 16, 2022. To the extent past is prologue, the university
respondents’ histories hardly recommend them as trustworthy
arbiters of whether racial discrimination is necessary to achieve
educational goals.

															Of course, none of this should matter in any
event; courts have an independent duty to interpret and uphold the
Constitution that no university’s claimed interest may override.
See ante , at 26, n. 5. The Court today makes clear
that, in the future, universities wishing to discriminate based on
race in admissions must articulate and justify a compelling and
measurable state interest based on concrete evidence. Given the
strictures set out by the Court, I highly doubt any will be able to
do so.

															C

															In an effort to salvage their patently
unconstitutional programs, the universities and their amici pivot to argue that the Fourteenth Amendment permits the use of
race to benefit only certain racial groups—rather than applicants
writ large. Yet, this is just the latest disguise for
discrimination. The sudden narrative shift is not surprising, as it
has long been apparent that “ ‘diversity [was] merely the
current rationale of convenience’ ” to support racially
discriminatory admissions programs. Grutter , 539 U. S.,
at 393 (Kennedy, J., dissenting). Under our precedents, this new
rationale is also lacking.

															To start, the case for affirmative action has
emphasized a number of rationales over the years, including: (1)
restitution to compensate those who have been victimized by past
discrimination, (2) fostering “diversity,” (3) facilitating
“integration” and the destruction of perceived racial castes, and
(4) countering longstanding and diffuse racial prejudice. See R.
Kennedy, For Discrimination: Race, Affirmative Action, and the Law
78 (2013); see also P. Schuck, Affirmative 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 benefits of diversity embraced in Grutter . Yet,
as the universities define the “diversity” that they practice, it
encompasses social and aesthetic goals far afield from the
education-based interest discussed in Grutter . See supra , at 23. The dissents too attempt to stretch the
diversity rationale, suggesting that it supports broad remedial
interests. See, e.g. , post , at 23, 43, 67 (opinion of
Sotomayor, J.) (noting that UNC’s black admissions percentages “do
not reflect the diversity of the State”; equating the diversity
interest under the Court’s precedents with a goal of “integration
in higher education” more broadly; and warning of “the dangerous
consequences of an America where its leadership does not reflect
the diversity of the People”); post , at 23 (opinion of
Jackson, J.) (explaining that diversity programs close wealth
gaps). But language—particularly the language of controlling
opinions of this Court—is not so elastic. See J. Pieper, Abuse of
Language—Abuse of Power 23 (L. Krauth transl. 1992) (explaining
that propaganda, “in contradiction to the nature of language,
intends not to communicate but to manipulate” and becomes an
“[i]nstrument of power” (emphasis deleted)).

															The Court refuses to engage in this
lexicographic drift, seeing these arguments for what they are: a
remedial rationale in disguise. See ante , at 34–35. As the
Court points out, the interest for which respondents advocate has
been presented to and rejected by this Court many times before. In Regents of University of California v. Bakke , 438 U.S.
265 (1978), the University of California made clear its
rationale for the quota system it had established: It wished to
“counteract effects of generations of pervasive discrimination”
against certain minority groups. Brief for Petitioner, O. T.
1977, No. 76–811, p. 2. But, the Court rejected this
distinctly remedial rationale, with Justice Powell adopting in its
place the familiar “diversity” interest that appeared later in Grutter . See Bakke , 438 U. S., at 306 (plurality
opinion). The Court similarly did not adopt the broad remedial
rationale in Grutter ; and it rejects it again today. Newly
and often minted theories cannot be said to be commanded by our
precedents.

															Indeed, our precedents have repeatedly and
soundly distinguished between programs designed to compensate
victims of past governmental discrimination from so-called benign
race-conscious measures, such as affirmative action. Croson ,
488 U. S., at 504–505; Adarand Constructors , Inc. v. Peña , 515 U.S.
200 , 226–227 (1995). To enforce that distinction, our
precedents explicitly require that any attempt to compensate
victims of past governmental discrimination must be concrete and
traceable to the de jure segregated system, which must have
some discrete and continuing discriminatory effect that warrants a
present remedy. See United States v. Fordice , 505 U.S.
717 , 731 (1992). Today’s opinion for the Court reaffirms the
need for such a close remedial fit, hewing to the same line we have
consistently drawn. Ante , at 24–25.

															Without such guardrails, the Fourteenth
Amendment would become self-defeating, promising a Nation based on
the equality ideal but yielding a quota- and caste-ridden society
steeped in race-based discrimination. Even Grutter itself
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 conduct. Nor could
they; the current race-conscious admissions programs take no
account of ancestry and, at least for Harvard, likely have the
effect of discriminating against some of the very same ethnic
groups against which Harvard previously discriminated ( i.e. ,
Jews and those who are not part of the white elite). All the while,
Harvard and UNC ask us to blind ourselves to the burdens imposed on
the millions of innocent applicants denied admission because of
their membership in a currently disfavored race.

															The Constitution neither commands nor permits
such a result. “Purchased at the price of immeasurable human
suffering,” the Fourteenth Amendment recognizes that
classifications based on race lead to ruinous consequences for
individuals and the Nation. Adarand Constructors , Inc. , 515 U. S., at 240 (Thomas, J., concurring in part
and concurring in judgment). Consequently, “ all ” racial
classifications 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 21–34.

															III

															Both experience and logic have vindicated the
Constitution’s colorblind rule and confirmed that the universities’
new narrative cannot stand. Despite the Court’s hope in Grutter that universities would voluntarily end their
race-conscious programs and further the goal of racial equality,
the opposite appears increasingly true. Harvard and UNC now
forthrightly state that they racially discriminate when it comes to
admitting students, arguing that such discrimination is consistent
with this Court’s precedents. And they, along with today’s
dissenters, defend that discrimination as good . More
broadly, it is becoming increasingly clear that discrimination on
the basis of race—often packaged as “affirmative action” or
“equity” programs—are based on the benighted notion “that it is
possible to tell when discrimination helps, rather than hurts,
racial minorities.” Fisher I , 570 U. S., at 328
(Thomas, J., concurring).

															We cannot be guided by those who would desire
less in our Constitution, or by those who would desire more. “The
Constitution abhors classifications based on race, not only because
those classifications can harm favored races or are based on
illegitimate motives, but also because every time the government
places citizens on racial registers and makes race relevant to the
provision of burdens or benefits, it demeans us all.” Grutter , 539 U. S., at 353 (opinion of Thomas, J.).

															A

															The Constitution’s colorblind rule reflects
one of the core principles upon which our Nation was founded: that
“all men are created equal.” Those words featured prominently in
our Declaration of Independence and were inspired by a rich
tradition of political thinkers, from Locke to Montesquieu, who
considered equality to be the foundation of a just government. See, e.g. , J. Locke, Second Treatise of Civil Government 48 (J.
Gough ed. 1948); T. Hobbes, Leviathan 98 (M. Oakeshott ed. 1962); 1
B. Montesquieu, The Spirit of Laws 121 (T. Nugent transl., J.
Prichard ed. 1914). Several Constitutions enacted by the newly
independent States at the founding reflected this principle. For
example, the Virginia Bill of Rights of 1776 explicitly affirmed
“[t]hat all men are by nature equally free and independent, and
have certain inherent rights.” Ch. 1, §1. The State Constitutions
of Massachusetts, Pennsylvania, and New Hampshire adopted similar
language. Pa. Const., Art. I (1776), in 2 Federal and State
Constitutions 1541 (P. Poore ed. 1877); Mass. Const., Art. I
(1780), in 1 id ., at 957; N. H. Const., Art. I (1784),
in 2 id ., at 1280.[ 5 ]
And, prominent Founders publicly mused about the need for equality
as the foundation for government. E.g. , 1 Cong. Register 430
(T. Lloyd ed. 1789) (Madison, J.); 1 Letters and Other Writings of
James Madison 164 (J. Lippincott ed. 1867); N. Webster, The
Revolution in France, in 2 Political Sermons of the Founding Era,
1730–1805, pp. 1236–1299 (1998). As Jefferson declared in his
first inaugural address, “the minority possess their equal rights,
which equal law must protect.” First Inaugural Address (Mar. 4,
1801), in 8 The Writings of Thomas Jefferson 4 (Washington ed.
1854).

															Our Nation did not initially live up to the
equality principle. The institution of slavery persisted for nearly
a century, and the United States Constitution itself included
several provisions acknowledging the practice. The period leading
up to our second founding brought these flaws into bold relief and
encouraged the Nation to finally make good on the equality promise.
As Lincoln recognized, the promise of equality extended to all
people —including immigrants and blacks whose ancestors had
taken no part in the original founding. See Speech at Chicago, Ill.
(July 10, 1858), in 2 The Collected Works of Abraham Lincoln
488–489, 499 (R. Basler ed. 1953). Thus, in Lincoln’s view,
“ ‘the natural rights enumerated in the Declaration of
Independence’ ” extended to blacks as his
“ ‘equal,’ ” and “ ‘the equal of every living
man.’ ” The Lincoln-Douglas Debates 285 (H. Holzer ed.
1993).

															As discussed above, the Fourteenth Amendment
reflected that vision, affirming that equality and racial
discrimination cannot coexist. Under that Amendment, the color of a
person’s skin is irrelevant to that individual’s equal status as a
citizen of this Nation. To treat him differently on the basis of
such a legally irrelevant trait is therefore a deviation from the
equality principle and a constitutional injury.

															Of course, even the promise of the second
founding took time to materialize. Seeking to perpetuate a
segregationist system in the wake of the Fourteenth Amendment’s
ratification, proponents urged a “separate but equal” regime. They
met with initial success, ossifying the segregationist view for
over a half century. As this Court said in Plessy :

															“A statute which implies merely a legal
distinction between the white and colored races—a distinction which
is founded in the color of the two races, and which must always
exist so long as white men are distinguished from the other race by
color—has no tendency to destroy the legal equality of the two
races, or reestablish a state of involuntary servitude.” 163
U. S . , at 543.

															Such a statement, of course, is precisely
antithetical to the notion that all men, regardless of the color of
their skin, are born equal and must be treated equally under the
law. Only one Member of the Court adhered to the equality
principle; Justice Harlan, standing alone in dissent, wrote: “Our
constitution is color-blind, and neither knows nor tolerates
classes among citizens. In respect of civil rights, all citizens
are equal before the law.” Id. , at 559. Though Justice
Harlan rightly predicted that Plessy would, “in time, prove
to be quite as pernicious as the decision made . . . in
the Dred Scott case,” the Plessy rule persisted for
over a half century. Ibid. While it remained in force, Jim
Crow laws prohibiting blacks from entering or utilizing public
facilities such as schools, libraries, restaurants, and theaters
sprang up across the South.

															This Court rightly reversed course in Brown v. Board of Education . The Brown appellants—those challenging segregated schools—embraced the
equality principle, arguing that “[a] racial criterion is a
constitutional irrelevance, and is not saved from condemnation even
though dictated by a sincere desire to avoid the possibility of
violence or race friction.” Brief for Appellants in Brown v. Board of Education , O. T. 1952, No. 1, p. 7
(citation omitted).[ 6 ]
Embracing that view, the Court held that “in the field of public
education the doctrine of ‘separate but equal’ has no place” and
“[s]eparate educational facilities are inherently unequal.” Brown , 347 U. S., at 493, 495. Importantly, in reaching
this conclusion, Brown did not rely on the particular
qualities of the Kansas schools. The mere separation of students on
the basis of race—the “ segregation complained of,” id. , at 495 (emphasis added)—constituted a constitutional
injury. See ante , at 12 (“Separate cannot be equal”).

															Just a few years later, the Court’s application
of Brown made explicit what was already forcefully implied:
“[O]ur decisions have foreclosed any possible contention that
. . . a statute or regulation” fostering segregation in
public facilities “may stand consistently with the Fourteenth
Amendment.” Turner v. Memphis , 369 U.S.
350 , 353 (1962) ( per curiam ); cf. A. Blaustein & C.
Ferguson, Desegregation and the Law: The Meaning and Effect of the
School Segregation Cases 145 (rev. 2d ed. 1962) (arguing that the
Court in Brown had “adopt[ed] a constitutional standard”
declaring “that all classification by race is unconstitutional per se ”).

															Today, our precedents place this principle
beyond 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 reaffirms the rule,
stating that, following Brown , “[t]he time for making
distinctions based on race had passed.” Ante , at 13. “What
was wrong” when the Court decided Brown “in 1954 cannot be
right today.” Parents Involved , 551 U. S., at 778
(Thomas, J., concurring). Rather, we must adhere to the promise of
equality under the law declared by the Declaration of Independence
and codified by the Fourteenth Amendment.

															B

															Respondents and the dissents argue that the
universities’ race-conscious admissions programs ought to be
permitted because they accomplish positive social goals. I would
have thought that history had by now taught a “greater humility”
when attempting to “distinguish good from harmful uses of racial
criteria.” Id. , at 742 (plurality opinion). From the Black
Codes, to discriminatory and destructive social welfare programs,
to discrimination by individual government actors, bigotry has
reared its ugly head time and again. Anyone who today thinks that
some form of racial discrimination will prove “helpful” should thus
tread cautiously, lest racial discriminators succeed (as they once
did) in using such language to disguise more invidious motives.

															Arguments for the benefits of race-based
solutions have proved pernicious in segregationist circles.
Segregated universities once argued that race-based discrimination
was needed “to preserve harmony and peace and at the same time
furnish equal education to both groups.” Brief for Respondents in Sweatt v. Painter , O. T. 1949, No. 44,
p. 94; see also id. , at 79 (“ ‘[T]he mores of racial relationships are such as to rule out, for the present at
least, any possibility of admitting white persons and Negroes to
the same institutions’ ”). And, parties consistently attempted
to convince the Court that the time was not right to disrupt
segregationist systems. See Brief for Appellees in McLaurin v. Oklahoma State Regents for Higher Ed. , O. T. 1949,
No. 34, p. 12 (claiming that a holding rejecting separate but
equal would “necessarily result . . . [i]n the abandoning of many of the state’s existing educational
establishments” and the “ crowding of other such
establishments”); Brief for State of Kansas on Reargument in Brown v. Board of Education , O. T. 1953, No. 1,
p. 56 (“We grant that segregation may not be the ethical or
political ideal. At the same time we recognize that practical
considerations may prevent realization of the ideal”); Tr. of Oral
Arg. in Davis v. School Bd. of Prince Edward Cty. ,
O. T. 1954, No. 3, p. 208 (“We are up against the
proposition: What does the Negro profit if he procures an immediate
detailed decree from this Court now and then impairs or mars or
destroys the public school system in Prince Edward County”).
Litigants have even gone so far as to offer straight-faced
arguments that segregation has practical benefits. Brief for
Respondents in Sweatt v. Painter , at 77–78
(requesting deference to a state law, observing that “ ‘the
necessity for such separation [of the races] still exists in the
interest of public welfare, safety, harmony, health, and recreation
. . .’ ” and remarking on the reasonableness of the
position); Brief for Appellees in Davis v. County School Bd. of Prince Edward Cty. , O. T. 1952, No. 3,
p. 17 (“Virginia has established segregation in certain fields
as a part of her public policy to prevent violence and reduce
resentment. The result, in the view of an overwhelming Virginia
majority, has been to improve the relationship between the
different races”); id. , at 25 (“If segregation be stricken
down, the general welfare will be definitely harmed . . .
there would be more friction developed” (internal quotation 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 “segregationists 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.” Parents Involved , 551 U. S., at 780–781
(Thomas, J., concurring). We cannot now blink reality to
pretend, as the dissents urge, that affirmative action should be
legally permissible merely because the experts assure us that it is
“good” for black students. Though I do not doubt the sincerity of
my dissenting colleagues’ beliefs, experts and elites have been
wrong before—and they may prove to be wrong again. In part for this
reason, the Fourteenth Amendment outlaws government-sanctioned
racial discrimination of all types. The stakes are simply too high
to gamble.[ 7 ] Then, as now, the
views that motivated Dred Scott and Plessy have not
been confined to the past, and we must remain ever 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 admissions policies here. “Affirmative action” policies do
nothing to increase the overall number of blacks and Hispanics able
to access a college education. Rather, those racial policies simply
redistribute individuals among institutions of higher learning,
placing some into more competitive institutions than they otherwise
would have attended. See T. Sowell, Affirmative Action Around the
World 145–146 (2004). In doing so, those policies sort at least
some blacks and Hispanics into environments where they are less
likely to succeed academically relative to their peers. Ibid. The resulting mismatch places “many blacks and
Hispanics who likely would have excelled at less elite schools
. . . in a position where underperformance is all but
inevitable because they are less academically prepared than the
white and Asian students with whom they must compete.” Fisher I , 570 U. S., at 332 (Thomas, J.,
concurring).

															It is self-evident why that is so. As anyone who
has labored over an algebra textbook has undoubtedly discovered,
academic advancement results from hard work and practice, not mere
declaration. Simply treating students as though their grades put
them at the top of their high school classes does nothing to
enhance the performance level of those students or otherwise
prepare them for competitive college environments. In fact, studies
suggest that large racial preferences for black and Hispanic
applicants have led to a disproportionately large share of those
students receiving mediocre or poor grades once they arrive in
competitive collegiate environments. See, e.g. , R. Sander, A
Systemic Analysis of Affirmative Action in American Law Schools, 57
Stan. L. Rev. 367, 371–372 (2004); see also R. Sander & R.
Steinbuch, Mismatch and Bar Passage: A School-Specific Analysis
(Oct. 6, 2017), https://ssrn.com/ abstract=3054208. Take science,
technology, engineering, and mathematics (STEM) fields, for
example. Those students who receive a large admissions preference
are more likely to drop out of STEM fields than similarly situated
students who did not receive such a preference. F. Smith & J.
McArdle, Ethnic and Gender Differences in Science Graduation at
Selective Colleges With Implications for 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 systematic
mismatching of minority students begun at the top can mean that
such students are generally overmatched throughout all levels of
higher education.” T. Sowell, Race and Culture 176–177
(1994).[ 8 ]

															These policies may harm even those who succeed
academically. I have long believed that large racial preferences in
college admissions “stamp [blacks and Hispanics] with a badge of
inferiority.” Adarand , 515 U. S., at 241 (opinion of
Thomas, J.). They thus “tain[t] the accomplishments of all those
who are admitted as a result of racial discrimination” as well as
“all those who are the same race as those admitted as a result of
racial discrimination” because “no one can distinguish those
students from the ones whose race played a role in their
admission.” Fisher I , 570 U. S., at 333 (opinion of
Thomas, J.). Consequently, “[w]hen blacks” and, now, Hispanics
“take positions in the highest places of government, industry, or
academia, it is an open question . . . whether their skin
color played a part in their advancement.” Grutter , 539
U. S., at 373 (Thomas, J., concurring). “The question itself
is the stigma—because either racial discrimination did play a role,
in which case the person may be deemed ‘otherwise unqualified,’ or
it did not, in which case asking the question itself unfairly marks
those . . . who would succeed without discrimination.” Ibid. Yet, in the face of those problems, it seems
increasingly clear that universities are focused on “aesthetic”
solutions unlikely to help deserving members of minority groups. In
fact, universities’ affirmative action programs are a particularly
poor use of such resources. To start, these programs are
overinclusive, providing the same admissions bump to a wealthy
black applicant given every advantage in life as to a black
applicant from a poor family with seemingly insurmountable barriers
to overcome. In doing so, the programs may wind up helping the most
well-off members of minority races without meaningfully assisting
those who struggle with real hardship. Simultaneously, the programs
risk continuing to ignore the academic underperformance of “the
purported ‘beneficiaries’ ” of racial preferences and the
racial stigma that those preferences generate. Grutter , 539
U. S., at 371 (opinion of Thomas, J.). Rather than performing
their academic mission, universities thus may “see[k] only a
facade—it is sufficient that the class looks right, even if it does
not perform right.” Id. , at 372.

															D

															Finally, it is not even theoretically possible
to “help” a certain racial group without causing harm to members of
other racial groups. “It should be obvious that every racial
classification helps, in a narrow sense, some races and hurts
others.” Adarand , 515 U. S., at 241, n. * (opinion
of Thomas, J.). And, even purportedly benign race-based
discrimination has secondary effects on members of other races. The
antisubordination view thus has never guided the Court’s analysis
because “whether a law relying upon racial taxonomy is ‘benign’ or
‘malign’ either turns on ‘whose ox is gored’ or on distinctions
found only in the eye of the beholder.” Ibid. (citations and
some internal quotation marks omitted). Courts are not suited to
the impossible task of determining which racially discriminatory
programs are helping which members of which races—and whether those
benefits outweigh the burdens thrust onto other racial groups.

															As the Court’s opinion today explains, the
zero-sum nature of college admissions—where students compete for a
finite number of seats in each school’s entering class—aptly
demonstrates the point. Ante , at 27.[ 9 ] Petitioner here represents Asian Americans who
allege that, at the margins, Asian applicants were denied admission
because of their race. Yet, Asian Americans can hardly be described
as the beneficiaries of historical racial advantages. To the
contrary, our Nation’s first immigration ban targeted the Chinese,
in part, based on “worker resentment of the low wage rates accepted
by Chinese workers.” U. S. Commission on Civil Rights, Civil
Rights Issues Facing Asian Americans in the 1990s, p. 3 (1992)
(Civil Rights Issues); Act of May 6, 1882, ch. 126, 22Stat.
58–59.

															In subsequent years, “strong anti-Asian
sentiments in the Western States led to the adoption of many
discriminatory laws at the State and local levels, similar to those
aimed at blacks in the South,” and “segregation in public
facilities, including schools, was quite common until after the
Second World War.” Civil Rights Issues 7; see also S. Hinnershitz,
A Different Shade of Justice: Asian American Civil Rights in the
South 21 (2017) (explaining that while both Asians and blacks have
at times fought “against similar forms of discrimination,” “[t]he
issues of citizenship and immigrant status often defined Asian
American battles for civil rights and separated them from African
American legal battles”). Indeed, 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 yellow race.”

															Also, following the Japanese attack on the
U. S. Navy base at Pearl Harbor, Japanese Americans in the
American West were evacuated and interned in relocation camps. See
Exec. Order No. 9066, 3 CFR 1092 (1943). Over 120,000 were removed
to camps beginning in 1942, and the last camp that held Japanese
Americans did not close until 1948. National Park Service, Japanese
American Life During Internment,
www.nps.gov/articles/japanese-american-internment-archeology.htm.
In the interim, this Court endorsed the practice. Korematsu v. United States , 323 U.S.
214 (1944).

															Given the history of discrimination against
Asian Americans, especially their history with segregated schools,
it seems particularly incongruous to suggest that a past history of
segregationist policies toward blacks should be remedied at the
expense of Asian American college applicants.[ 10 ] But this problem is not limited to Asian
Americans; more broadly, universities’ discriminatory policies
burden millions of applicants who are not responsible for the
racial discrimination that sullied our Nation’s past. That is why,
“[i]n the absence of special circumstances, the remedy for de jure segregation ordinarily should not include
educational programs for students who were not in school (or even
alive) during the period of segregation.” Jenkins , 515
U. S., at 137 (Thomas, J., concurring). Today’s 17-year-olds,
after all, did not live through the Jim Crow era, enact or enforce
segregation laws, or take any action to oppress or enslave the
victims of the past. Whatever their skin color, today’s youth
simply are not responsible for instituting the segregation of the
20th century, and they do not shoulder the moral debts of their
ancestors. Our Nation should not punish today’s youth for the sins
of the past.

															IV

															Far from advancing the cause of improved race
relations in our Nation, affirmative action highlights our racial
differences with pernicious effect. In fact, recent history reveals
a disturbing pattern: Affirmative action policies appear to have
prolonged the asserted need for racial discrimination. Parties and amici in these cases report that, in the nearly 50 years
since Bakke , 438 U.S.
265 , racial progress on campuses adopting affirmative action
admissions policies has stagnated, including making no meaningful
progress toward a colorblind goal since Grutter . See ante , at 21–22. Rather, the legacy of Grutter appears
to be ever increasing and strident demands for yet more racially oriented solutions.

															A

															It has become clear that sorting by race does
not stop at the admissions office. In his Grutter opinion,
Justice Scalia criticized universities for “talk[ing] of
multiculturalism and racial diversity,” but supporting “tribalism
and racial segregation on their campuses,” including through
“minority only student organizations, separate minority housing
opportunities, 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 students of different races,
46% offered segregated orientation programs, and 72% sponsored
segregated graduation ceremonies. D. Pierre & P. Wood,
Neo-Segregation at Yale 16–17 (2019); see also D. Pierre, Demands
for Segregated Housing 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 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 observed that “[t]here can be no doubt” that
discriminatory affirmative action policies “injur[e] white and
Asian applicants who are denied admission because of their race.” Fisher I , 570 U. S., at 331 (concurring opinion).
Petitioner here clearly demonstrates this fact. Moreover, “no
social science has disproved the notion that this discrimination
‘engenders attitudes of superiority or, alternatively, provokes
resentment among those who believe that they have been wronged by
the government’s use of race.’ ” Grutter , 539
U. S., at 373 (opinion of Thomas, J.) (quoting Adarand ,
515 U. S., at 241 (opinion of Thomas, J.) (alterations
omitted)). Applicants denied admission to certain colleges may come
to believe—accurately or not—that their race was responsible for
their failure to attain a life-long dream. These individuals, and
others who wished for their success, may resent members of what
they perceive to be favored races, believing that the successes of
those individuals are unearned.

															What, then, would be the endpoint of these
affirmative action policies? Not racial harmony, integration, or
equality under the law. Rather, these policies appear to be leading
to a world in which everyone is defined by their skin color,
demanding ever-increasing entitlements and preferences on that
basis. Not only is that exactly the kind of factionalism
that the Constitution was meant to safeguard against, see The
Federalist No. 10 (J. Madison), but it is a factionalism based on
ever-shifting sands.

															That is because race is a social construct; we
may each identify as members of particular races for any number of
reasons, having to do with our skin color, our heritage, or our
cultural identity. And, over time, these ephemeral, socially
constructed categories have often shifted. For example, whereas
universities today would group all white applicants together, white
elites previously sought to exclude Jews and other white immigrant
groups from higher education. In fact, it is impossible to look at
an individual and know definitively his or her race; some who would
consider themselves black, for example, may be quite fair skinned.
Yet, university admissions policies ask individuals to identify
themselves as belonging to one of only a few reductionist racial
groups. With boxes for only “black,” “white,” “Hispanic,” “Asian,”
or the ambiguous “other,” how is a Middle Eastern person to choose?
Someone from the Philippines? See post , at 5–7 (Gorsuch, J.,
concurring). Whichever choice he makes (in the event he chooses to
report a race at all), the form silos him into an artificial
category. Worse, it sends a clear signal that the category
matters.

															But, under our Constitution, race is irrelevant,
as the Court acknowledges. In fact, all racial categories are
little more than stereotypes, suggesting that immutable
characteristics somehow conclusively determine a person’s ideology,
beliefs, and abilities. Of course, that is false. See ante ,
at 28–30 (noting that the Court’s Equal Protection Clause
jurisprudence forbids such stereotyping). Members of the same race
do not all share the exact same experiences and viewpoints; far
from it. A black person from rural Alabama surely has different
experiences than a black person from Manhattan or a black
first-generation immigrant from Nigeria, in the same way that a
white person from rural Vermont has a different perspective than a
white person from Houston, Texas. Yet, universities’ racial
policies suggest that racial identity “ alone constitutes the
being of the race or the man.” J. Barzun, Race: A Study in
Modern Superstition 114 (1937). That is the same naked racism upon
which segregation itself was built. Small wonder, then, that these
policies are leading to increasing racial polarization and
friction. This kind of reductionist logic leads directly to the
“disregard for what does not jibe with preconceived theory,”
providing a “cloa[k] to conceal complexity, argumen[t] to the crown
for praising or damning without the trouble of going into
details”—such as details about an individual’s ideas or unique
background. Ibid. Rather than forming a more pluralistic
society, these policies thus strip us of our individuality and
undermine the very diversity of thought that universities purport
to seek.

															The solution to our Nation’s racial problems
thus cannot come from policies grounded in affirmative action or
some other conception of equity. Racialism simply cannot be undone
by different or more racialism. Instead, the solution announced in
the second founding is incorporated in our Constitution: that we
are all equal, and should be treated equally before the law without
regard to our race. Only that promise can allow us to look past our
differing skin colors and identities and see each other for what we
truly are: individuals with unique thoughts, perspectives, and
goals, but with equal dignity and equal rights under the law.

															B

															Justice Jackson has a different view. Rather
than focusing on individuals as individuals, her dissent focuses on
the historical subjugation of black Americans, invoking statistical
racial gaps to argue in favor of defining and categorizing
individuals by their race. As she sees things, we are all
inexorably trapped in a fundamentally racist society, with the
original sin of slavery and the historical subjugation of black
Americans still determining our lives today. Post , at 1–26
(dissenting opinion). The panacea, she counsels, is to
unquestioningly accede to the view of elite experts and reallocate
society’s riches by racial means as necessary to “level the playing
field,” all as judged by racial metrics. Post , at 26. I
strongly disagree.

															First, as stated above, any statistical gaps
between the average wealth of black and white Americans is
constitutionally irrelevant. I, of course, agree that our society
is not, and has never been, colorblind. Post , at 2 (Jackson,
J., dissenting); see also Plessy , 163 U. S., at 559
(Harlan, J., dissenting). People discriminate against one another
for a whole host of reasons. But, under the Fourteenth Amendment,
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 constitution is
color-blind, and neither knows nor tolerates classes among
citizens. In respect of civil rights, all citizens are equal before
the law. The humblest is the peer of the most powerful. The law
regards man as man, and takes no account of his surroundings or of
his color when his civil rights as guaranteed by the supreme law of
the land are involved.” Ibid .

															With the passage of the Fourteenth Amendment,
the people of our Nation proclaimed that the law may not sort
citizens based on race. It is this principle that the Framers of
the Fourteenth Amendment adopted in the wake of the Civil War to
fulfill the promise of equality under the law. And it is this
principle that has guaranteed a Nation of equal citizens the
privileges or immunities of citizenship and the equal protection of
the laws. To now dismiss it as “two-dimensional flatness,” post , at 25 (Jackson, J., 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
unhesitatingly ascribed to race. Post , at 24–26. This is so,
she writes, because of statistical disparities among different
racial groups. See post , at 11–14. Even if some whites have
a lower household net worth than some blacks, what matters to
Justice Jackson is that the average white household has more
wealth than the average black household. Post , at
11.

															This lore is not and has never been true. Even
in the segregated South where I grew up, individuals were not the
sum of their skin color. Then as now, not all disparities are based
on race; not all people are racist; and not all differences between
individuals are ascribable to race. Put simply, “the fate of
abstract categories of wealth statistics is not the same as the
fate of a given set of flesh-and-blood human beings.” T. Sowell,
Wealth, Poverty and Politics 333 (2016). Worse still, Justice
Jackson uses her broad observations about statistical relationships
between race and select measures of health, wealth, and well-being
to label all blacks as victims. Her desire to do so is unfathomable
to me. I cannot deny the great accomplishments of black Americans,
including those who succeeded despite long odds.

															Nor do Justice Jackson’s statistics regarding a
correlation between levels of health, wealth, and well-being
between selected racial groups prove anything. Of course, none of
those statistics are capable of drawing a direct causal link
between race—rather than socioeconomic status or any other
factor—and individual outcomes. So Justice Jackson supplies the
link herself: the legacy of slavery and the nature of inherited
wealth. This, she claims, locks blacks into a seemingly perpetual
inferior caste. Such a view is irrational; it is an insult to
individual achievement and cancerous to young minds seeking to push
through barriers, rather than consign themselves to permanent
victimhood. If an applicant has less financial means (because of
generational inheritance or otherwise), then surely a university
may take that into account. If an applicant has medical struggles
or a family member with medical concerns, a university may consider
that too. What it cannot do is use the applicant’s skin color as a
heuristic, assuming that because the applicant checks the box for
“black” he therefore conforms to the university’s monolithic and
reductionist view of an abstract, average black person.

															Accordingly, Justice Jackson’s race-infused
world view falls flat at each step. Individuals are the sum of
their unique experiences, challenges, and accomplishments. What
matters is not the barriers they face, but how they choose to
confront them. And their race is not to blame for everything—good
or bad—that happens in their lives. A contrary, myopic world view
based on individuals’ skin color to the total exclusion of their
personal choices is nothing short of racial determinism.

															Justice Jackson then builds from her faulty
premise to call for action, arguing that courts should defer to
“experts” and allow institutions to discriminate on the basis of
race. Make no mistake: Her dissent is not a vanguard of the
innocent and helpless. It is instead a call to empower privileged
elites, who will “tell us [what] is required to level the playing
field” among castes and classifications that they alone can divine. Post , at 26; see also post , at 5–7 (Gorsuch, J.,
concurring) (explaining the arbitrariness of these
classifications). Then, after siloing us all into racial castes and
pitting those castes against each other, the dissent somehow
believes that we will be able—at some undefined point—to “march
forward together” into some utopian vision. Post , at 26
(opinion of Jackson, J.). Social movements that invoke these
sorts of rallying cries, historically, have ended disastrously.

															Unsurprisingly, this tried-and-failed system
defies both law and reason. Start with the obvious: If social
reorganization in the name of equality may be justified by the mere
fact of statistical disparities among racial groups, then that
reorganization must continue until these disparities are fully
eliminated, regardless of the reasons for the disparities and the
cost of their elimination. If blacks fail a test at higher rates
than their white counterparts (regardless of whether the reason for
the disparity has anything at all to do with race), the only
solution will be race-focused measures. If those measures were to
result in blacks failing at yet higher rates, the only solution
would be to double down. In fact, there would seem to be no logical
limit to what the government may do to level the racial playing
field—outright wealth transfers, quota systems, and racial
preferences would all seem permissible. In such a system, it would
not matter how many innocents suffer race-based injuries; all that
would matter is reaching the race-based goal.

															Worse, the classifications that Justice Jackson
draws are themselves race-based stereotypes. She focuses on two
hypothetical applicants, John and James, competing for admission to
UNC. John is a white, seventh-generation legacy at the school,
while James is black and would be the first in his family to attend
UNC. Post , at 3. Justice Jackson argues that race-conscious
admission programs are necessary to adequately compare the two
applicants. As an initial matter, it is not clear why James’s race
is the only factor that could encourage UNC to admit him; his
status as a first-generation college applicant seems to
contextualize his application. But, setting that aside, why is it
that John should be judged based on the actions of his
great-great-great-grandparents? And what would Justice Jackson say
to John when deeming him not as worthy of admission: Some
statistically significant number of white people had advantages in
college admissions seven generations ago, and you have inherited
their incurable sin?

															Nor should we accept that John or James
represent all members of their respective races. All racial groups
are heterogeneous, and blacks are no exception—encompassing
northerners and southerners, rich and poor, and recent immigrants
and descendants of slaves. See, e.g. , T. Sowell, Ethnic
America 220 (1981) (noting that the great success of West Indian
immigrants to the United States—disproportionate among blacks more
broadly—“seriously undermines the proposition that color is a fatal
handicap in the American economy”). Eschewing the complexity that
comes with individuality may make for an uncomplicated narrative,
but lumping people together and judging them based on assumed
inherited or ancestral traits is nothing but stereotyping.[ 11 ]

															To further illustrate, let’s expand the
applicant pool beyond John and James. Consider Jack, a black
applicant and the son of a multimillionaire industrialist. In a
world of race-based preferences, James’ seat could very well go to
Jack rather than John—both are black, after all. And what about
members of the numerous other racial and ethnic groups in our
Nation? What about Anne, the child of Chinese immigrants? Jacob,
the grandchild of Holocaust survivors who escaped to this Nation
with nothing and faced discrimination upon arrival? Or Thomas, the
great- grandchild of Irish immigrants escaping famine? While
articulating her black and white world (literally), Justice Jackson
ignores the experiences of other immigrant groups (like Asians, see supra , at 43–44) and white communities that have faced
historic barriers.

															Though Justice Jackson seems to think that her
race-based theory can somehow benefit everyone, it is an immutable
fact that “every time the government uses racial criteria to ‘bring
the races together,’ someone gets excluded, and the person excluded
suffers an injury solely because of his or her race.” Parents
Involved , 551 U. S., at 759 (Thomas, J., concurring)
(citation omitted). Indeed, Justice Jackson seems to have no
response—no explanation at all—for the people who will shoulder
that burden. How, for example, would Justice Jackson explain the
need for race-based preferences to the Chinese student who has
worked hard his whole life, only to be denied college admission in
part because of his skin color? If such a burden would seem
difficult to impose on a bright-eyed young person, that’s because
it should be. History has taught us to abhor theories that call for
elites to pick racial winners and losers in the name of
sociological experimentation.

															Nor is it clear what another few generations of
race- conscious college admissions may be expected to accomplish.
Even today, affirmative action programs that offer an admissions
boost to black and Hispanic students discriminate against those who
identify themselves as members of other races that do not receive
such preferential treatment. Must others in the future make
sacrifices to re-level the playing field for this new phase of
racial subordination? And then, out of whose lives should the debt
owed to those further victims be repaid? This vision of meeting
social racism with government-imposed racism is thus
self-defeating, resulting in a never-ending cycle of victimization.
There is no reason to 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.

															C

															Universities’ recent experiences confirm the
efficacy of a colorblind rule. To start, universities prohibited
from engaging in racial discrimination by state law continue to
enroll racially diverse classes by race-neutral means. For example,
the University of California purportedly recently admitted its
“most diverse undergraduate class ever,” despite California’s ban
on racial preferences. T. Watanabe, UC Admits Largest, Most Diverse
Class Ever, But It Was Harder To Get Accepted, L. A. Times,
July 20, 2021, p. A1. Similarly, the University of Michigan’s
2021 incoming class was “among the university’s most racially and
ethnically diverse classes, with 37% of first-year students
identifying as persons of color.” S. Dodge, Largest Ever Student
Body at University of Michigan This Fall, Officials Say, MLive.com
(Oct. 22, 2021), https://www.mlive.com/news/ann-arbor/
2021/10/largest-ever-student-body-at-university-of-michigan-
this-fall-officials-say.html. In fact, at least one set of studies
suggests that, “when we consider the higher education system as a
whole, it is clear that the vast majority of schools would be as
racially integrated, or more racially integrated, under a system of
no preferences than under a system of large preferences.” Brief for
Richard Sander as Amicus Curiae 26. Race-neutral policies
may thus achieve the same benefits of racial harmony and equality
without any of the burdens and strife generated by affirmative
action policies.

															In fact, meritocratic systems have long refuted
bigoted misperceptions of what black students can accomplish. I
have always viewed “higher education’s purpose as imparting
knowledge and skills to students, rather than a communal,
rubber-stamp, credentialing process.” Grutter , 539
U. S., at 371–372 (opinion concurring in part and dissenting
in part). And, I continue to strongly believe (and have never
doubted) that “blacks can achieve in every avenue of American life
without the meddling of university administrators.” Id. , at
350. Meritocratic systems, with objective grading scales, are
critical to that belief. Such scales have always been a great
equalizer—offering a metric for achievement that bigotry could not
alter. Racial preferences take away this benefit, eliminating the
very metric by which those who have the most to prove can clearly
demonstrate their accomplishments—both to themselves and to
others.

															Schools’ successes, like students’ grades, also
provide objective proof of ability. Historically Black Colleges and
Universities (HBCUs) do not have a large amount of racial
diversity, but they demonstrate a marked ability to improve the
lives of their students. To this day, they have proved “to be
extremely effective in educating Black students, particularly in
STEM,” where “HBCUs represent seven of the top eight institutions
that graduate the highest number of Black undergraduate students
who go on to earn [science and engineering] doctorates.” W.
Wondwossen, The Science Behind HBCU Success, Nat. Science
Foundation (Sept. 24, 2020),
https://beta.nsf.gov/science-matters/science-behind-hbcu-success.
“HBCUs have produced 40% of all Black engineers.” Presidential
Proclamation No. 10451, 87 Fed. Reg. 57567 (2022). And, they
“account for 80% of Black judges, 50% of Black doctors, and 50% of
Black lawyers.” M. Hammond, L. 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 also 87 Fed. Reg. 57567
(placing the percentage of black doctors even higher, at 70%). In
fact, Xavier University, an HBCU with only a small percentage of
white students, has had better success at helping its low-income
students move into the middle class than Harvard has. See Hammond
14; see also Brief for Oklahoma et al. as Amici Curiae 18. And, each of the top 10 HBCUs have a success rate above the
national average. Hammond 14.[ 12 ]

															Why, then, would this Court need to allow other
universities to racially discriminate? Not for the betterment of
those black students, it would seem. The hard work of HBCUs and
their students demonstrate that “black schools can function as the
center and symbol of black communities, and provide examples of
independent black leadership, success, and achievement.” Jenkins , 515 U. S., at 122 (Thomas, J., concurring)
(citing Fordice , 505 U. S., at 748 (Thomas, J.,
concurring)). And, because race-conscious college admissions are
plainly not necessary to serve even the interests of blacks, there
is no justification to compel such programs more broadly. See Parents Involved , 551 U. S., at 765 (Thomas, J.,
concurring).

															*  *  *

															The great failure of this country was slavery
and its progeny. And, the tragic failure of this Court was its
misinterpretation of the Reconstruction Amendments, as Justice
Harlan predicted in Plessy . We should not repeat this
mistake merely because we think, as our predecessors thought, that
the present arrangements are superior to the Constitution.

															The Court’s opinion rightly makes clear that Grutter is, for all intents and purposes, overruled. And, it
sees the universities’ admissions policies for what they are:
rudderless, race-based preferences designed to ensure a particular
racial mix in their entering classes. Those policies fly in the
face of our colorblind Constitution and our Nation’s equality
ideal. In short, they are plainly—and boldly—unconstitutional. See Brown II , 349 U. S., at 298 (noting that the Brown case one year earlier had “declare[d] the fundamental
principle that racial discrimination in public education is
unconstitutional”).

															While I am painfully aware of the social and
economic ravages which have befallen my race and all who suffer
discrimination, I hold out enduring hope that this country 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. Notes 1 In fact, Indians would
not be considered citizens until several decades later. Indian
Citizenship Act of 1924, ch. 233, 43Stat. 253 (declaring that all
Indians born in the United States are citizens). 2 There is “some support”
in the history of enactment for at least “four interpretations of
the first section of the proposed amendment, and in particular of
its Privileges [or] Immunities Clause: it would authorize Congress
to enforce the Privileges and Immunities Clause of Article IV; it
would forbid discrimination between citizens with respect to
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. 3 UNC asserts that the
Freedmen’s Bureau gave money to Berea College 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 Illustrated History 2 (2006) (quoting Berea’s first president’s
statement that the school “would welcome ‘all races of men, without
distinction’ ”). 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 classifications that
would violate the Equal Protection Clause”). As Justice Gorsuch
points out, the language of Title VI makes no allowance for racial
considerations in university admissions. See post , at 2–3
(concurring opinion). Though I continue to adhere to my view in Bostock v. Clayton County , 590 U. S. ___,
___–___ (2020) (Alito, J., dissenting) (slip op., at 1–54), I agree
with Justice Gorsuch’s concurrence in this case. The plain text of
Title VI reinforces the colorblind view of the Fourteenth
Amendment. 5 In fact, the
Massachusetts Supreme Court in 1783 declared that slavery was
abolished in Massachusetts by virtue of the newly enacted
Constitution’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 upon this ground our
Constitution of Government . . . sets out with declaring
that all men are born free and equal . . . and in short
is totally repugnant to the idea of being born
slaves”). 6 Briefing in a case
consolidated with Brown stated the colorblind position
forthrightly: Classifications “[b]ased [s]olely on [r]ace or
[c]olor” “can never be” constitutional. Juris. Statement in Briggs v. Elliott , O. T. 1951, No. 273,
pp. 20–21, 25, 29; see also Juris. Statement in Davis v. County School Bd. of Prince Edward Cty. , O. T. 1952,
No. 191, p. 8 (“Indeed, we take the unqualified position that
the Fourteenth Amendment has 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”). 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
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 ”); Brief for Appellants in Brown v. Board of Education , O. T. 1952, No. 1, p. 5 (“The
Fourteenth Amendment precludes a state from imposing distinctions
or classifications based upon race and color alone”). In fact,
Justice Marshall viewed Justice Harlan’s Plessy dissent as
“a ‘Bible’ to which he turned during his most depressed moments”;
no opinion “buoyed Marshall more in his pre- Brown days.” In
Memoriam: Honorable Thurgood Marshall, Proceedings of the Bar and
Officers of the Supreme Court of the United States, p. X
(1993) (remarks of Judge Motley). 8 Justice Sotomayor rejects
this mismatch theory as “debunked long ago,” citing an amicus brief. Post , at 56. But, in 2016, the Journal
of Economic Literature published a review of mismatch
literature—coauthored by a critic and a defender of affirmative
action—which concluded that the evidence for mismatch was “fairly
convincing.” P. Arcidiacono & M. Lovenheim, Affirmative Action
and the Quality-Fit Tradeoff, 54 J. Econ. Lit. 3, 20 (Arcidiacono
& Lovenheim). And, of course, if universities 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, Arcidiacono & Lovenheim 20 (“Our hope is
that better datasets soon will become available”). 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
58–59. This simply defies mathematics. In a zero-sum game like
college admissions, any sorting mechanism that takes race into
account in any way, see post , at 27 (opinion of Jackson, J.)
(defending such a system), has discriminated based on race to the
benefit of some races and the 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 also 397 F. Supp. 3d 126, 178 (Mass. 2019) (noting that,
for Harvard, “race is a determinative tip for” a significant
percentage “of all admitted African American and Hispanic
applicants”); ante , at 5, n. 1 (describing the role
that race plays in the universities’ admissions
processes). 10 Even
beyond Asian Americans, it is abundantly clear that the university
respondents’ racial categories are vastly oversimplistic, as the
opinion of the Court and Justice Gorsuch’s concurrence make clear.
See ante , at 24–25; post , at 5–7 (opinion of
Gorsuch, J.). Their “affirmative action” programs do not help
Jewish, Irish, Polish, or other “white” ethnic groups whose
ancestors faced discrimination upon arrival in America, any more
than they help the descendants of those Japanese-American citizens
interned during World War II. 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. Universities may not,
however, assume that all members of certain racial minorities are
disadvantaged. 12 Such
black achievement in “racially isolated” environments is neither
new nor isolated to higher education. See T. Sowell, Education:
Assumptions Versus History 7–38 (1986). As I have previously
observed, in the years preceding Brown , the “most prominent
example of an exemplary black school was Dunbar High School,”
America’s first 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 fifteen degrees from Ivy League colleges, and ten degrees
from Amherst, Williams, and Wesleyan.” Sowell, Education:
Assumptions Versus History, at 29. Dunbar produced the first black
General in the U. S. Army, the first black Federal Court
Judge, and the first black Presidential Cabinet member. A. Stewart,
First Class: The Legacy of Dunbar 2 (2013). Indeed, efforts towards
racial integration ultimately precipitated the school’s decline.
When the D. C. schools moved to a neighborhood-based
admissions model, Dunbar was no longer able to maintain its prior
admissions policies—and “[m]ore than 80 years of quality education
came to an abrupt end.” T. Sowell, Wealth, Poverty and Politics 194
(2016). SUPREME COURT OF THE UNITED STATES

															_________________

															Nos. 20–1199 and 21–707

															_________________

															STUDENTS FOR FAIR ADMISSIONS, INC.,
PETITIONER

															20–1199 v. PRESIDENT AND FELLOWS OF HARVARD
COLLEGE

															on writ of certiorari to the united states
court of appeals for the first circuit

															STUDENTS FOR FAIR ADMISSIONS, INC.,
PETITIONER

															21–707 v. UNIVERSITY OF NORTH CAROLINA,
et al.

															on writ of certiorari before judgment to the
united states court of appeals for the fourth circuit

															[June 29, 2023]

															Justice Gorsuch, with whom Justice Thomas
joins, concurring.

															For many students, an acceptance letter from
Harvard or the University of North Carolina is a ticket to a
brighter future. Tens of thousands of applicants compete for a
small number of coveted spots. For some time, both universities
have decided which applicants to admit or reject based in part on
race. Today, the Court holds that the Equal Protection Clause of
the Fourteenth Amendment does not tolerate this practice. I write
to emphasize that Title VI of the Civil Rights Act of 1964 does not
either.

															I

															“[F]ew pieces of federal legislation rank in
significance with the Civil Rights Act of 1964.” Bostock v. Clayton County , 590 U. S. ___, ___ (2020) (slip op., at
2). Title VI of that law contains terms as powerful as they are
easy to understand: “No person in the United States shall, on the
ground of race, color, or national origin, be excluded from
participation in, be denied the benefits of, or be subjected to
discrimination under any program or activity receiving Federal
financial assistance.” 42 U. S. C. §2000d. The 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
understood them at the time Congress enacted them. “After all, only
the words on the page constitute the law adopted by Congress and
approved by the President.” Bostock , 590 U. S., at ___
(slip op., at 4).

															The key phrases in Title VI at issue here are
“subjected to discrimination” and “on the ground of.” Begin with
the first. To “discriminate” against a person meant in 1964 what it
means today: to “trea[t] that individual worse than others who are
similarly situated.” Id. , at ___ (slip op., at 7); see also
Webster’s New International Dictionary 745 (2d ed. 1954) (“[t]o
make a distinction” or “[t]o make a difference in treatment or
favor (of one as compared with others)”); Webster’s Third New
International Dictionary 648 (1961) (“to make a difference in
treatment or favor on a class or categorical basis”). The provision
of Title VI before us, this Court has also held, “prohibits only
intentional discrimination.” Alexander 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 another similarly situated person on the
ground of race, color, or national origin.

															What does the statute’s second critical
phrase—“on the ground of ”—mean? Again, the answer is
uncomplicated: It means “because of.” See, e.g., Webster’s
New World Dictionary 640 (1960) (“because of ”); Webster’s
Third New International Dictionary, at 1002 (defining “grounds” as
“a logical condition, physical cause, or metaphysical basis”).
“Because of ” is a familiar phrase in the law, one we often
apply in cases arising under the Civil Rights Act of 1964, and one
that we usually understand to invoke “the ‘simple’ and
‘traditional’ standard of but-for causation.” Bostock , 590
U. S., at ___ (slip op., at 5) (quoting University of Tex.
Southwestern Medical Center v. Nassar , 570 U.S.
338 , 346, 360 (2013); some internal quotation marks omitted).
The but-for-causation standard is a “sweeping” one too. Bostock , 590 U. S., at ___ (slip op., at 5). A
defendant’s actions need not be the primary or proximate cause of
the plaintiff ’s injury to qualify. Nor may a defendant avoid
liability “just by citing some other factor that contributed
to” the plaintiff ’s loss. Id ., at ___ (slip op., at
6). All that matters is that the plaintiff ’s injury would not
have happened but for the defendant’s conduct. Ibid. Now put these pieces back together and a clear
rule emerges. Title VI prohibits a recipient of federal funds from
intentionally treating one person worse than another similarly
situated person because of his race, color, or national origin. It
does not matter if the recipient can point to “some other
. . . factor” that contributed to its decision to
disfavor that individual. Id., at ___–___ (slip op., at
14–15). It does not matter if the recipient discriminates in order
to advance some further benign “intention” or “motivation.” Id., at ___ (slip op., at 13); see also Automobile
Workers v. Johnson Controls, Inc. , 499 U.S.
187 , 199 (1991) (“the absence of a malevolent motive does not
convert a facially discriminatory policy into a neutral policy with
a discriminatory effect” or “alter [its] intentionally
discriminatory character”) . Nor does it matter if the
recipient discriminates against an individual member of a protected
class with the idea that doing so might “favor” the interests of
that “class” as a whole or otherwise “promot[e] equality at the
group level.” Bostock , 590 U. S., at ___, ___ (slip
op., at 13, 15). Title VI prohibits a recipient of federal funds
from intentionally treating any individual worse even in part
because of his race, color, or national origin and without regard
to any other reason or motive the recipient might assert. Without
question, Congress in 1964 could have taken the law in 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 national origin.”
§2000e–2(a)(1). Appreciating the breadth of this provision, just
three years ago this Court read its essentially identical terms the
same way. See Bostock , 590 U. S., at ___–___ (slip op.,
at 4–9). This Court has long recognized, too, that when Congress
uses the same terms in the same statute, we should presume they
“have the same meaning.” IBP, Inc. v. Alvarez , 546 U.S.
21 , 34 (2005). And that presumption surely makes sense here,
for as Justice Stevens recognized years ago, “[b]oth Title VI and
Title VII” codify a categorical rule of “individual equality,
without regard to race.” Regents of Univ. of Cal. v. Bakke , 438 U.S.
265 , 416, n. 19 (1978) (opinion concurring in judgment in
part and dissenting in part) (emphasis 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
Federal financial assistance.” §2000d. No one questions that both
institutions consult race when making their admissions decisions.
And no one can doubt that both schools intentionally treat some
applicants worse than others at least in part because of their
race.

															1

															Start with how Harvard and UNC use race. Like
many colleges and universities, those schools invite interested
students to complete the Common Application. As part of that
process, the trial records show, applicants are prompted to tick
one or more boxes to explain “how you identify yourself.” 4 App. in
No. 21–707, p. 1732. The available choices are American Indian or
Alaska Native; Asian; Black or African American; Native Hawaiian or
Other Pacific Islander; Hispanic or Latino; or White. Applicants
can write in further details if they choose. Ibid. ; see also
397 F. Supp. 3d 126, 137 (Mass. 2019); 567 F. Supp. 3d
580, 596 (MDNC 2021).

															Where do these boxes come from? Bureaucrats. A
federal interagency commission devised this scheme of
classifications in the 1970s to facilitate data collection. See D.
Bernstein, The Modern American Law of Race, 94 S. Cal. L. Rev. 171,
196–202 (2021); see also 43 Fed. Reg. 19269 (1978). That commission
acted “without any input from anthropologists, sociologists,
ethnologists, or other experts.” Brief for David E. Bernstein as Amicus Curiae 3 (Bernstein Amicus Brief ).
Recognizing the limitations of their work, federal regulators
cautioned that their classifications “should not be interpreted as
being scientific or anthropological in nature, nor should they
be viewed as determinants of eligibility for participation in any
Federal program .” 43 Fed. Reg. 19269 (emphasis added). Despite
that warning, others eventually used this classification system for
that very purpose—to “sor[t] out winners and losers in a process
that, by the end of the century, would grant preference[s] in jobs
. . . and university admissions.” H. Graham, The Origins
of Official Minority Designation, in The New Race Question: How the
Census Counts Multiracial Individuals 289 (J. Perlmann &
M. Waters eds. 2002).

															These classifications rest on incoherent
stereotypes. Take the “Asian” category. It sweeps into one pile
East Asians ( e.g., Chinese, Korean, Japanese) and South
Asians ( e.g., Indian, Pakistani, Bangladeshi), even though
together they constitute about 60% of the world’s population.
Bernstein Amicus Brief 2, 5. This agglomeration of so many
peoples paves over countless differences in “language,” “culture,”
and historical experience. Id ., at 5–6. It does so even
though few would suggest that all such persons share “similar
backgrounds and similar ideas and experiences.” Fisher v. University of Tex. at Austin , 579 U.S. 365, 414 (2016)
(Alito, J., dissenting). Consider, as well, the development of a
separate category for “Native Hawaiian or Other Pacific Islander.”
It seems federal officials disaggregated these groups from the
“Asian” category only in the 1990s and only “in response to
political lobbying.” Bernstein Amicus Brief 9–10. And even
that category contains its curiosities. It appears, for example,
that Filipino Americans remain classified as “Asian” rather than
“Other Pacific Islander.” See 4 App. in No. 21–707, at 1732.

															The remaining classifications depend just as
much on irrational stereotypes. The “Hispanic” category covers
those whose ancestral language is Spanish, Basque, or 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 includes 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” covers everyone from a descendant of enslaved persons who
grew up poor in the rural South, to a first-generation child of
wealthy Nigerian immigrants, to a Black-identifying applicant with
multiracial ancestry whose family lives in a typical American
suburb. See id., at 15–16.

															If anything, attempts to divide us all up into a
handful of groups have become only more incoherent with time.
American families have become increasingly multicultural, a fact
that has led to unseemly disputes about whether someone is really a member of a certain racial or ethnic group. There
are decisions denying Hispanic status to someone of
Italian-Argentine descent, Marinelli Constr. Corp. v. New
York , 200 App. Div. 2d 294, 296–297, 613 N.Y.S.2d 1000, 1002
(1994), as well as someone with one Mexican grandparent, Major
Concrete Constr., Inc. v. Erie County , 134 App. Div. 2d
872, 873, 521 N.Y.S.2d 959, 960 (1987). Yet there are also
decisions granting Hispanic status to a Sephardic Jew whose
ancestors fled Spain centuries ago, In re Rothschild-Lynn Legal
& Fin. Servs. , SBA No. 499, 1995 WL 542398, *2–*4 (Apr. 12,
1995), and bestowing a “sort of Hispanic” status on a person with
one Cuban grandparent, Bernstein, 94 S. Cal. L. Rev., at
232 (discussing In re Kist Corp. , 99 F. C. C.
2d 173, 193 (1984)).

															Given all this, is it any surprise that members
of certain groups sometimes try to conceal their race or ethnicity?
Or that a cottage industry has sprung up to help college applicants
do so? We are told, for example, that one effect of lumping so many
people of so many disparate backgrounds into the “Asian” category
is that many colleges consider “Asians” to be “overrepresented” in
their admission pools. Brief for Asian American Coalition for
Education et al. as Amici Curiae 12–14, 18–19. Paid
advisors, in turn, tell high school students of Asian descent to
downplay their heritage to maximize their odds of admission.
“ ‘We will make them appear less Asian when they
apply,’ ” one promises. Id., at 16. “ ‘If you’re
given an option, don’t attach a photograph to your
application,’ ” another instructs. Ibid. [ 1 ] It is difficult to imagine those who
receive this advice would find comfort in a bald (and mistaken)
assurance that “race-conscious admissions benefit . . .
the Asian American community,” post , at 60 (Sotomayor, J.,
dissenting). See 397 F. Supp. 3d, at 178 (district court
finding that “overall” Harvard’s race-conscious admissions policy
“results in fewer Asian American[s]” being admitted). And it is
hard not to wonder whether those left paying the steepest price are
those least able to afford it—children of families with no chance
of hiring 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 groups but not
others. These tips or plusses are just what they sound
like—“factors that might tip an applicant into [an] admitted
class.” 980 F.3d 157, 170 (CA1 2020). And in a process where
applicants compete for a limited pool of spots, “[a] tip for one
race” necessarily works as “a penalty against other races.” Brief
for Economists as Amici Curiae 20. As the trial court
in the Harvard case put it: “Race conscious admissions will always
penalize to some extent the groups that are not being advantaged by
the process.” 397 F. Supp. 3d, at 202–203.

															Consider how this plays out at Harvard. In a
given year, the university’s undergraduate program may receive
60,000 applications for roughly 1,600 spots. Tr. of Oral Arg. in
No. 20–1199, p. 60. Admissions officers read each application
and rate students across several categories: academic,
extracurricular, athletic, school support, personal, and overall.
980 F. 3d, at 167. Harvard says its admissions officers
“should not” consider race or ethnicity when assigning the
“personal” rating. Id., at 169 (internal quotation marks
omitted). But Harvard did not make this instruction explicit until after SFFA filed this suit. Ibid . And, in any event,
Harvard concedes that its admissions officers “ can and do take an applicant’s race into account when assigning an overall rating.” Ibid . (emphasis added). At that
stage, the lower courts found, applicants of certain races may
receive a “tip” in their favor. Ibid. The next step in the process is committee
review. Regional subcommittees may consider an applicant’s race
when deciding whether to recommend admission. Id. , at
169–170. So, too, may the full admissions committee. Ibid. As the Court explains, that latter committee “discusses the
relative breakdown of applicants by race.” Ante , at 2–3. And
“if at some point in the admissions process it appears that a group
is notably underrepresented or has suffered a dramatic drop off
relative to the prior year, the [committee] may decide to give
additional attention to applications from students within that
group.” 397 F. Supp. 3d, at 146.

															The last step is “lopping,” where the admissions
committee trims the list of “prospective admits” before settling on
a final class. Id., at 144 (internal quotation marks
omitted). At this stage, again, the committee considers the
“characteristics of the admitted class,” including its “racial
composition.” Ibid. Once more, too, the committee may
consider each applicant’s race in deciding whom to “lop off.” Ibid. All told, the district court made a number of
findings about Harvard’s use of race-based tips. For example:
“[T]he tip[s] given for race impac[t] who among the
highly-qualified students in the applicant pool will be selected
for admission.” Id. , at 178. “At least 10% of Harvard’s
admitted class . . . would most likely not be admitted in
the absence of Harvard’s race-conscious admissions process.” Ibid. Race-based tips are “determinative” in securing
favorable decisions for a significant percentage of “African
American and Hispanic applicants,” the “primary beneficiaries” of
this system. Ibid. There are clear losers too. “[W]hite and
Asian American applicants are unlikely to receive a meaningful
race-based tip,” id., at 190, n. 56, and “overall” the
school’s race-based practices “resul[t] in fewer Asian American and
white students being admitted,” id. , at 178. For these
reasons and others still, the district court concluded that
“Harvard’s admissions process is not facially neutral” with respect
to race. Id., at 189–190; see also id. , at 190,
n. 56 (“The policy cannot . . . be considered
facially neutral from a Title VI perspective.”).

															Things work similarly at UNC. In a typical year,
about 44,000 applicants vie for 4,200 spots. 567 F. Supp. 3d,
at 595. Admissions officers read each application and rate
prospective students along eight dimensions: academic programming,
academic performance, standardized tests, extracurriculars, special
talents, essays, background, and personal. Id., at 600. The
district court found that “UNC’s admissions policies mandate that
race is taken into consideration” in this process as a
“ ‘plus’ facto[r].” Id., at 594–595. It is a plus that
is “sometimes” awarded to “underrepresented minority” or “URM”
candidates—a group UNC defines to include “ ‘those students
identifying themselves as African American or [B]lack; American
Indian or Alaska Native; or Hispanic, Latino, or Latina,’ ”
but not Asian or white students. Id ., at 591–592, n. 7,
601.

															At UNC, the admissions officers’ decisions to
admit or deny are “ ‘provisionally final.’ ” Ante ,
at 4 (opinion for the Court). The decisions become truly final only
after a committee approves or rejects them. 567
F. Supp. 3d, at 599. That committee may consider an
applicant’s race too. Id. , at 607. In the end, the district
court found that “race plays a role”—perhaps even “a determinative
role”—in the decision to admit or deny some “URM students.” Id., at 634; see also id., at 662 (“race may tip the
scale”). Nor is this an accident. As at Harvard, officials at UNC
have made a “deliberate decision” to employ race-conscious
admissions practices. Id., at 588–589.

															While the district courts’ findings tell the
full story, one can also get a glimpse from aggregate statistics.
Consider the chart in the Court’s opinion collecting Harvard’s data
for the period 2009 to 2018. Ante, at 31. The racial
composition of each incoming class remained steady over that
time—remarkably so. The proportion of African Americans hovered
between 10% and 12%; the proportion of Hispanics between 8% and
12%; and the proportion of Asian Americans between 17% and 20%. Ibid. Might this merely reflect the demographics of the
school’s applicant pool? Cf. post , at 35 (opinion of
Sotomayor, J.). Perhaps—at least assuming the applicant pool looks
much the same each year and the school rather mechanically admits
applicants based on objective criteria. But the possibility that it
instead betrays the school’s persistent focus on numbers of this
race and numbers of that race is entirely consistent with the
findings recounted above. See, e.g., 397
F. Supp. 3d, at 146 (“if at some point in the admissions
process it appears that a group is notably underrepresented or has
suffered a dramatic drop off relative to the prior year, the
[committee] may decide to give additional attention to applications
from students within that group”); cf. ante, at 31–32,
n. 7 (opinion for the Court).

															C

															Throughout this litigation, the parties have
spent less time contesting these facts than debating other
matters.

															For example, the parties debate how much of a role race plays in admissions at Harvard and UNC. Both schools
insist 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 evidence showing
that, whatever label the universities use to describe their
processes, they intentionally consult race and, by design, their
race-based tips and plusses benefit applicants of certain groups to
the detriment of others. See Brief for Petitioner 20–35, 40–45.

															The parties also debate the reasons both
schools consult race. SFFA observes that, in the 1920s, Harvard
began moving away from “test scores” and toward “plac[ing] greater
emphasis on character, fitness, and other subjective criteria.” Id. , at 12–13 (internal quotation marks omitted). Harvard
made this move, SFFA asserts, because President A. Lawrence Lowell
and other university leaders had become “alarmed by the growing
number of Jewish students who were testing in,” and they sought
some way to cap the number of Jewish students without
“ ‘stat[ing] frankly’ ” that they were “ ‘directly
excluding all [Jews] beyond a certain percentage.’ ” Id., at 12; see also 3 App. in No. 20–1199, pp. 1131–1133.
SFFA contends that Harvard’s current “holistic” approach to
admissions works similarly to disguise the school’s efforts to
assemble classes with a particular racial composition—and, in
particular, to limit the number of Asian Americans it admits. Brief
for Petitioner 12–14, 25–32. For its part, Harvard expresses regret
for its past practices while denying that they resemble its current
ones. Tr. of Oral Arg. in No. 20–1199, at 51. And both schools
insist that their student bodies would lack sufficient diversity
without race-conscious admissions. Brief for Respondent in No.
20–1199, pp. 52–54; Brief for University Respondents in No. 21–707,
pp. 54–59.

															When it comes to defining and measuring
diversity, the parties spar too. SFFA observes that the racial
categories the universities employ in the name of diversity do not
begin to reflect the differences that exist within each group. See
Part I–B–1, supra . Instead, they lump together white and
Asian students from privileged backgrounds with “Jewish, Irish,
Polish, or other ‘white’ ethnic groups whose ancestors faced
discrimination” and “descendants of those Japanese-American
citizens interned during World War II.” Ante , at 45,
n. 10 (Thomas, J., concurring). Even putting all that aside,
SFFA stresses that neither Harvard nor UNC is willing to quantify
how much racial and ethnic diversity they think sufficient. And,
SFFA contends, the universities may not wish to do so because their
stated goal implies a desire to admit some fixed number (or quota)
of students from each racial group. See Brief for Petitioner 77,
80; Tr. of Oral Arg. in No. 21–707, p. 180. Besides, SFFA asks, if
it is diversity the schools are after, why do they exhibit so
little interest in other (non-racial) markers of it? See Brief for
Petitioner 78, 83–86. While Harvard professes interest in
socioeconomic diversity, for example, SFFA points to trial
testimony that there are “23 times as many rich kids on campus as
poor kids.” 2 App. in No. 20–1199, p. 756.[ 3 ]

															Even beyond all this, the parties debate the
availability of alternatives. SFFA contends that both Harvard and
UNC could obtain significant 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 financial aid, and the like. Brief
for Petitioner 85–86; see also Brief for Oklahoma et al. as Amici Curiae 9–19.[ 4 ] As
part of its affirmative case, SFFA also submitted evidence that
Harvard could nearly replicate the current racial composition of
its student body without resorting to race-based practices if it:
(1) provided socioeconomically 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 Petitioner
33–34. And it would not require Harvard to end tips for recruited
athletes, who as a group are much weaker academically than
non-athletes.[ 5 ]

															At trial, however, Harvard resisted this
proposal. Its preferences for the children of donors, alumni, and
faculty are no help to applicants who cannot boast of their
parents’ good fortune or trips to the alumni tent all their lives.
While race-neutral on their face, too, these preferences
undoubtedly benefit white and wealthy applicants the most. See 980
F. 3d, at 171. Still, Harvard stands by them. See Brief for
Respondent in No. 20–1199, at 52–54; Tr. of Oral Arg. in No.
21–1199, at 48–49. As a result, athletes and the children of
donors, alumni, and faculty—groups that together “make up less than
5% of applicants to Harvard”—constitute “around 30% of the
applicants admitted each year.” 980 F. 3d, at 171.

															To be sure, the parties’ debates raise some
hard-to-answer questions. Just how many admissions decisions turn
on race? And what really motivates the universities’ race-conscious
admissions policies and their refusal to modify other preferential
practices? Fortunately, Title VI does not 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 discriminating. Instead, the law prohibits covered
institutions from intentionally treating any individual
worse even in part because 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
candidates over others based on the color of their skin. But even
if all that is true, their conduct violates Title VI just the same.
See Part I–A, supra ; see also Bostock , 590
U. S., at ___, ___–___ (slip op., at 6, 12–15) . D

															The principal dissent contends that this
understanding of Title VI is contrary to precedent. Post , at
26–27, n. 21 (opinion of Sotomayor, J.). But the dissent does
not dispute that everything said here about the meaning of Title VI
tracks this Court’s precedent in Bostock interpreting
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 Congress—to mean
different things? Apparently, the federal government takes the
latter view. The Solicitor General insists 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. Respectfully, I do not see it. The words of
the Civil Rights Act of 1964 are not like mood rings; they do not
change their message from one moment to the next.

															Rather than engage with the statutory text or
our precedent in Bostock , the principal dissent seeks to sow
confusion about the facts. It insists that all applicants to
Harvard and UNC are “eligible” to receive a race-based tip. Post , at 32, n. 27 (opinion of Sotomayor, J.); cf. post , at 17 (Jackson, J., dissenting). But the question in
these cases is not who could hypothetically receive a
race-based tip. It is who actually receives one. And on that
score the lower courts left no doubt. The district court in the
Harvard case found that the school’s admissions policy “cannot
. . . be considered facially neutral from a Title VI
perspective given that admissions officers provide [race-based]
tips to African American and Hispanic applicants, while white and
Asian American applicants are unlikely to receive a meaningful
race-based tip.” 397 F. Supp. 3d, at 190, n. 56; see also id., at 189–190 (“Harvard’s admissions process is not
facially neutral.”). Likewise, the district court in the UNC case
found that admissions officers “sometimes” award race-based plusses
to URM candidates—a category that excludes Asian American and white
students. 567 F. Supp. 3d, at 591–592, n. 7, 601.[ 6 ]

															Nor could anyone doubt that these cases are
about intentional discrimination just because Harvard in particular
“ ‘does not explicitly prioritize any particular racial
group over any other.’ ” Post, at 32, n. 27
(opinion of Sotomayor, J.) (emphasis added). Forget for a moment
the universities’ concessions about how they deliberately consult
race when deciding whom to admit. See supra, at
12–13.[ 7 ] Look past the lower
courts’ findings recounted above about how the universities
intentionally give tips to students of some races and not others.
See supra, at 8–12, 16–17. Put to the side telling evidence
that came out in discovery.[ 8 ]
Ignore, too, our many precedents holding that it does not matter
how a defendant “label[s]” its practices, Bostock , 590
U. S., at ___ (slip op., at 14); that intentional
discrimination between individuals is unlawful whether “motivated
by a wish to achieve classwide equality” or any other purpose, id. , at ___ (slip op., at 13); and that “the absence of a
malevolent motive does not convert a facially discriminatory policy
into a neutral policy with a [merely] discriminatory effect,” Johnson Controls , 499 U. S., at 199. Consider just the
dissents in these cases. From start to finish and over the course
of nearly 100 pages, they defend the universities’ purposeful
discrimination between applicants based on race. “[N]eutrality,”
they insist, is not enough. Post, at 12, 68 (opinion of
Sotomayor, J.); cf. post , at 21 (opinion of Jackson, J.).
“[T]he use of race,” they stress, “is critical.” Post, at
59–60 (opinion of Sotomayor, J.); see id., at 2, 33, 39,
43–45; cf. post, at 2, 26 (opinion of Jackson, J.). Plainly,
Harvard and UNC choose to treat some students worse than others in
part because of race. To suggest otherwise—or to cling to the fact
that the schools do not always say the quiet part aloud—is to deny
reality.[ 9 ]

															II

															So far, we have seen that Title VI prohibits a
recipient of federal funds from discriminating against individuals
even in part because of race. We have seen, too, that Harvard and
UNC do just what the law forbids. One might wonder, then, why the
parties have devoted years and fortunes 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 certain 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 fractured
decision that yielded six opinions, a majority of the Court held
that the school’s set-aside system went too far. At the same time,
however, a different coalition of five Justices 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 16–19 (opinion for the
Court).

															As important as these conclusions were some of
the interpretive moves made along the way. Justice Powell (writing
only for himself ) and Justice Brennan (writing for himself
and three others) argued that Title VI is coterminous with the
Equal Protection Clause. Put differently, they read 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
statutory ground.” Id., at 411. He then turned to the “broad
prohibition” of Title VI, id., at 413, and summarized his
views this way: “The University . . . excluded Bakke from
participation in its program of medical education because of his
race. The University also acknowledges that it was, and still is,
receiving federal financial assistance. The plain language of the
statute therefore requires” finding a Title VI violation. Id., at 412 (footnote omitted).

															In the years following Bakke , this Court
hewed to Justice Powell’s and Justice Brennan’s shared premise that
Title VI and the Equal Protection Clause mean the same thing. See Gratz v. Bollinger , 539 U.S.
244 , 276, n. 23 (2003); Grutter v. Bollinger , 539 U.S.
306 , 343 (2003). Justice 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
compelling governmental interests.” Grutter , 539 U. S.,
at 326 (internal quotation marks omitted). Outside the context of
higher education, “our precedents have identified only two”
interests that meet this demanding standard: “remediating specific,
identified instances of past discrimination that violated the
Constitution or a statute,” and “avoiding imminent and serious
risks to human safety in prisons.” Ante, at 15 (opinion for
the Court).

															Within higher education, however, an entirely
distinct set of rules emerged. Following Bakke , this Court
declared that judges may simply “defer” to a school’s assertion
that “diversity is essential” to its “educational mission.” Grutter , 539 U. S., at 328. Not all schools,
though—elementary and secondary schools apparently do not qualify
for this deference. See Parents Involved in Community
Schools v. Seattle School Dist. No. 1 , 551 U.S.
701 , 724–725 (2007). Only colleges and universities, the Court
explained, “occupy a special niche in our constitutional
tradition.” Grutter , 539 U. S., at 329. Yet even they
(wielding their “special niche” authority) cannot simply assert an
interest in diversity and discriminate as they please. Fisher , 579 U. S., at 381. Instead, they may consider
race only as a “plus” factor for the purpose of “attaining a
critical mass of underrepresented minority students” or “a diverse
student body.” Grutter , 539 U. S., at 335–336 (internal
quotation marks omitted). At the same time, the Court cautioned,
this practice “must have a logical end point.” Id., at 342.
And in the meantime, “outright racial balancing” and “quota
system[s]” remain “patently unconstitutional.” Id. , at 330,
334. Nor may a college or university ever provide “mechanical,
predetermined diversity bonuses.” Id ., at 337 (internal
quotation marks omitted). Only a “tip” or “plus” is
constitutionally tolerable, and only for a limited time. Id. , at 338–339, 341.

															If you cannot follow all these twists and turns,
you are not alone. See, e.g., Fisher , 579 U. S.,
at 401–437 (Alito, J., dissenting); Grutter , 539 U. S.,
at 346–349 (Scalia, J., joined by Thomas, J., concurring in part
and dissenting in part); 1 App. in No. 21–707, pp. 401–402
(testimony from UNC administrator: “[M]y understanding of the term
‘critical mass’ is that it’s a . . . I’m trying to decide
if it’s an analogy or a metaphor[.] I think it’s an
analogy. . . . I’m not even sure we would know what
it is.”); 3 App. in No. 20–1199, at 1137–1138 (similar testimony
from a Harvard administrator). If the Court’s post- Bakke higher-education precedents ever made sense, they are by now
incoherent.

															Recognizing as much, the Court today cuts
through the kudzu. It ends university exceptionalism and returns
this Court to the traditional rule that the Equal Protection Clause
forbids the use of race in distinguishing between persons unless
strict scrutiny’s demanding standards can be met. In that way,
today’s decision wakes the echoes of Justice John Marshall Harlan:
“The law regards man as man, and takes no account of his
surroundings or of his color when his civil rights as guaranteed by
the supreme law of the land are involved.” Plessy v. Ferguson , 163 U.S.
537 , 559 (1896) (dissenting opinion).

															B

															If Bakke led to errors in interpreting
the Equal Protection Clause, its first mistake was to take us
there. These cases arise under Title VI and that statute is “more
than a simple paraphrasing” of the Equal Protection Clause. 438
U. S., at 416 (opinion of Stevens, J.). Title VI has
“independent force, with language and emphasis in addition to that
found in the Constitution.” Ibid. That law deserves our
respect and its terms provide us with all the direction we
need.

															Put the two provisions side by side. Title VI
says: “No person in the United States shall, on the ground of race,
color, or national origin, be excluded from participation in, be
denied the benefits of, or be subjected to discrimination under any
program or activity receiving Federal financial 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
addresses all manner of distinctions between persons and this Court
has held that it implies different degrees of judicial scrutiny for
different kinds of classifications. So, for example, courts apply
strict scrutiny for classifications based on race, color, and
national origin; intermediate scrutiny for classifications based on
sex; and rational-basis review for classifications based on more
prosaic grounds. See, e.g. , Fisher , 579 U. S.,
at 376; Richmond v. J. A. Croson Co ., 488 U.S.
469 , 493–495 (1989) (plurality opinion); United States v. Virginia , 518 U.S.
515 , 555–556 (1996); Board of Trustees of Univ. of Ala. v. Garrett , 531 U.S.
356 , 366–367 (2001). By contrast, Title VI targets only certain
classifications—those based on race, color, or national origin. And
that law does not direct courts to subject these classifications to
one degree of scrutiny or another. Instead, as we have seen, its
rule is as uncomplicated as it is momentous. Under Title VI, it is always unlawful to discriminate among persons even in part
because of race, color, or national origin.

															In truth, neither Justice Powell’s nor Justice
Brennan’s opinion in Bakke focused on the text of Title VI.
Instead, both leapt almost immediately to its “voluminous
legislative history,” from which they proceeded to divine an
implicit “congressional intent” to link the statute with the Equal
Protection Clause. 438 U. S., at 284–285 (opinion of Powell,
J.); id., at 328–336 ( joint opinion of Brennan, White,
Marshall, and Blackmun, JJ.). Along the way, as Justice Stevens
documented, both opinions did more than a little cherry-picking
from the legislative record. See id. , at 413–417. Justice
Brennan went so far as to declare that “any claim that the use of
racial criteria is barred by the plain language of the statute must
fail in light of the remedial purpose of Title VI and its
legislative history.” Id., at 340. And once liberated from
the statute’s firm rule against discrimination based on race, both
opinions proceeded to devise their own and very different
arrangements in the name of the Equal Protection Clause.

															The moves made in Bakke were not
statutory interpretation. They were judicial improvisation. Under
our Constitution, judges have never been entitled to disregard the
plain terms of a valid congressional enactment based on surmise
about unenacted legislative intentions. Instead, it has always been
this Court’s duty “to give effect, if possible, to every clause and
word of a statute,” Montclair v. Ramsdell , 107 U.S.
147 , 152 (1883), and of the Constitution itself, see Knowlton v. Moore , 178 U.S.
41 , 87 (1900). In this country, “[o]nly the written word is the
law, and all persons are entitled to its benefit.” Bostock ,
590 U. S., at ___ (slip op., at 2). When judges disregard
these principles and enforce rules “inspired only by extratextual
sources and [their] own imaginations,” they usurp a lawmaking
function “reserved for the people’s representatives.” Id .,
at ___ (slip op., at 4).

															Today, the Court corrects course in its reading
of the Equal Protection Clause. With that, courts should now also
correct course in their treatment of Title VI. For years, they 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 independent force beyond the Equal
Protection Clause. Nothing in it grants special deference to
university administrators. Nothing in it endorses racial
discrimination to any degree or for any purpose. Title VI is more
consequential than that.

															*

															In the aftermath of the Civil War, Congress took
vital steps toward realizing the promise of equality under the law.
As important as those initial efforts were, much work remained to
be done—and much remains today. But by any measure, the Civil
Rights Act of 1964 stands as a landmark on this journey and one of
the Nation’s great triumphs. We have no right to make a blank sheet
of any of its provisions. And when we look to the clear and
powerful command Congress set forth in that law, these cases all
but resolve themselves. 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.). Notes 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 [have] spoke[n] about trying to
steer their Asian American clients away from so-called typically
Asian activities such as Chinese language school, piano and Indian
classical instruments.”). 2 Though the matter did not
receive much attention in the proceedings below, it appears that
the Common Application has evolved in recent years to allow
applicants to choose among more options to describe their
backgrounds. The decisions below do not disclose how much Harvard
or UNC made use of this further information (or whether they make
use of it now). But neither does it make a difference. Title VI no
more tolerates discrimination based on 60 racial categories than it
does 6. 3 See also E. Bazelon, Why
Is Affirmative Action in Peril? One Man’s Decision, N. Y.
Times Magazine, Feb. 15, 2023, p. 41 (“In the Ivy League,
children whose parents are in the top 1 percent of the income
distribution are 77 times as likely to attend as those whose
parents are in the bottom 20 percent of the income bracket.”); ibid. (“[A] common critique . . . is that schools
have made a bargain with economic elites of all races, with the
exception of Asian Americans, who are underrepresented compared
with their level of academic achievement.”). 4 The principal dissent
chides me for “reach[ing] beyond the factfinding below” by
acknowledging SFFA’s argument that other universities have employed
various race-neutral tools. Post, at 29–30, n. 25
(opinion of Sotomayor, J.). Contrary to the dissent’s suggestion,
however, I do not purport to find facts about those practices; all
I do here is recount what SFFA has argued every step of the way.
See, e.g., Brief for Petitioner 55, 66–67; 1 App. in No.
20–1199, pp. 415–416, 440; 2 App. in No. 21–707, pp. 551–552. Nor,
of course, is it somehow remarkable to acknowledge the parties’
arguments. The principal dissent itself recites SFFA’s arguments
about Harvard’s and other universities’ practices too. See, e.g., post, at 30–31, 50 (opinion of Sotomayor, J.).
In truth, it is the dissent that reaches beyond the factfinding
below when it argues from studies recited in a dissenting opinion
in a different case decided almost a decade ago. Post, at
29–30, n. 25 (opinion of Sotomayor, J.); see also post, at 18–21 (opinion of Sotomayor, J.) (further venturing beyond the
trial records to discuss data about employment, income, wealth,
home ownership, and healthcare). 5 See Brief for Defense of
Freedom Institute for Policy Studies as Amicus Curiae 11
(recruited athletes make up less than 1% of Harvard’s applicant
pool but represent more than 10% of the admitted class); P.
Arcidiacono, 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). 6 The principal dissent
suggests “some Asian American applicants are actually advantaged by
Harvard’s use of race.” Post, at 60 (opinion of Sotomayor,
J.) (internal quotation marks omitted). What is the dissent’s basis
for that claim? The district court’s finding that “considering
applicants’ race may improve the admission chances of some Asian Americans who connect their racial identities
with particularly compelling narratives .” 397 F. Supp. 3d, at
178 (emphasis added). The dissent neglects to mention those key
qualifications. Worse, it ignores completely the district court’s
further finding that “ overall ” Harvard’s race-conscious
admissions policy “results in fewer Asian American[s]
. . . being admitted.” Ibid . (emphasis added). So
much for affording the district court’s “careful factfinding” the
“deference it [is] owe[d].” Post, at 29–30, n. 25
(opinion of Sotomayor, J.). 7 See also, e.g. ,
Tr. of Oral Arg. in No. 20–1199, at 67, 84, 91; Tr. of Oral Arg. in
No. 21–707, at 70–71, 81, 84, 91–92, 110. 8 Messages among UNC
admissions officers included statements such as these: “[P]erfect
2400 SAT All 5 on AP one B in 11th [grade].” “Brown?!” “Heck no.
Asian.” “Of course. Still impressive.”; “If it[’]s brown and above
a 1300 [SAT] put them in for [the] merit/Excel [scholarship].”; “I
just opened a brown girl who’s an 810 [SAT].”; “I’m going through
this trouble because this is a bi-racial (black/white) male.”;
“[S]tellar academics for a Native Amer[ican]/African Amer[ican]
kid.” 3 App. in No. 21–707, pp. 1242–1251. 9 Left with no reply on the
statute or its application to the facts, the principal dissent
suggests that it violates “principles of party presentation” and
abandons “judicial restraint” even to look at the text of
Title VI. Post , at 26–27, n. 21 (opinion of
Sotomayor, J.). It is a bewildering suggestion. SFFA sued Harvard
and UNC under Title VI. And when a party seeks relief under a
statute, our task is to apply the law’s terms as a reasonable
reader would have understood them when Congress enacted them. Bostock v. Clayton County , 590 U. S. ___, ___
(2020) (slip op., at 4). To be sure, parties are free to frame
their arguments. But they are not free to stipulate to a statute’s
meaning and no party may “waiv[e]” the proper interpretation of the
law by “fail[ing] to invoke it.” EEOC v. FLRA , 476 U.S.
19 , 23 (1986) ( per curiam ) (internal quotation marks
omitted); see also Young v. United States , 315 U.S.
257 , 258–259 (1942). SUPREME COURT OF THE UNITED STATES

															_________________

															Nos. 20–1199 and 21–707

															_________________

															STUDENTS FOR FAIR ADMISSIONS, INC.,
PETITIONER

															20–1199 v. PRESIDENT AND FELLOWS OF HARVARD
COLLEGE

															on writ of certiorari to the united states
court of appeals for the first circuit

															STUDENTS FOR FAIR ADMISSIONS, INC.,
PETITIONER

															21–707 v. UNIVERSITY OF NORTH CAROLINA,
et al.

															on writ of certiorari before judgment to the
united states court of appeals for the fourth circuit

															[June 29, 2023]

															Justice Kavanaugh, concurring.

															I join the Court’s opinion in full. I add this
concurring opinion to further explain why the Court’s decision
today is consistent with and follows from the Court’s equal
protection precedents, including the Court’s precedents on
race-based affirmative action in higher education.

															Ratified in 1868 in the wake of the Civil War,
the Equal Protection Clause of the Fourteenth Amendment provides:
“No State shall . . . deny to any person within its jurisdiction
the equal protection of the laws.” U. S. Const., Amdt. 14, §1.
In accord with the Fourteenth Amendment’s text and history, this
Court considers all racial classifications to be constitutionally
suspect. See Grutter v. Bollinger , 539 U.S.
306 , 326 (2003); Strauder v. West Virginia , 100 U.S.
303 , 306–308 (1880). As a result, the Court has long held that
racial classifications by the government, including race-based
affirmative action programs, are subject to strict judicial
scrutiny.

															Under strict scrutiny, racial classifications
are constitutionally prohibited unless they are narrowly tailored
to further a compelling governmental interest. Grutter , 539
U. S., at 326–327. Narrow tailoring requires courts to
examine, among other things, whether a racial classification is
“necessary”—in other words, whether race-neutral alternatives could
adequately achieve the governmental interest. Id., at 327,
339–340; Richmond v. J. A. Croson Co. , 488 U.S.
469 , 507 (1989).

															Importantly, even if a racial classification is
otherwise narrowly tailored to further a compelling governmental
interest, a “deviation from the norm of equal treatment of all
racial and ethnic groups” must be “a temporary matter”—or stated
otherwise, must be “limited in time.” Id., at 510 (plurality
opinion of O’Connor, J.); Grutter , 539 U. S., at
342.

															In 1978, five Members of this Court held that
race-based affirmative action in higher education did not violate
the Equal Protection Clause or Title VI of the Civil Rights Act, so
long as universities used race only as a factor in admissions
decisions and did not employ quotas. See Regents of Univ. of
Cal. v. Bakke , 438 U.S.
265 , 325–326 (1978) (joint opinion of Brennan, White, Marshall,
and Blackmun, JJ.); id., at 287, 315–320 (opinion of Powell,
J.). One Member of the Court’s five-Justice majority, Justice
Blackmun, added that race-based affirmative action should exist
only as a temporary measure. He expressed hope that such programs
would be “unnecessary” and a “relic of the past” by 1988—within 10
years “at the most,” in his words—although he doubted that the goal
could be achieved by then. Id., at 403 (opinion of Blackmun,
J.).

															In 2003, 25 years after Bakke , five
Members of this Court again held that race-based affirmative action
in higher education did not violate the Equal Protection Clause or
Title VI. Grutter , 539 U. S., at 343. This time,
however, the Court also specifically indicated—despite the
reservations of Justice Ginsburg and Justice Breyer—that race-based
affirmative action in higher education would not be
constitutionally justified after another 25 years, at least absent
something not “expect[ed].” Ibid. And various Members of the
Court wrote separate opinions explicitly referencing the Court’s
25-year limit.

															Justice O’Connor’s opinion for the Court
stated: “We expect that 25 years from now, the use of racial
preferences will no longer be necessary to further the interest
approved today.” Ibid. Justice Thomas expressly concurred in “the
Court’s holding that racial discrimination in higher education
admissions will be illegal in 25 years.” Id., at 351
(opinion concurring in part and dissenting in part).

															Justice Thomas, joined here by Justice Scalia,
reiterated “the Court’s holding” that race-based affirmative action
in higher education “will be unconstitutional in 25 years” and
“that in 25 years the practices of the Law School will be illegal,”
while also stating that “they are, for the reasons I have given,
illegal now.” Id., at 375–376.

															Justice Kennedy referred to “the Court’s
pronouncement that race-conscious admissions programs will be
unnecessary 25 years from now.” Id., at 394 (dissenting
opinion).

															Justice Ginsburg, joined by Justice Breyer,
acknowledged the Court’s 25-year limit but questioned it, writing
that “one may hope, but not firmly forecast, that over the next
generation’s span, progress toward nondiscrimination and genuinely
equal opportunity will make it safe to sunset affirmative action.” Id., at 346 (concurring opinion).

															In allowing race-based affirmative action in
higher education for another generation—and only for another
generation—the Court in Grutter took into account competing
considerations. The Court recognized the barriers that some
minority applicants to universities still faced as of 2003,
notwithstanding the progress made since Bakke . See Grutter , 539 U. S., at 343. The Court stressed,
however, that “there are serious problems of justice connected with
the idea of preference itself.” Id., at 341 (internal
quotation marks omitted). And the Court added that a “core purpose
of the Fourteenth Amendment was to do away with all governmentally
imposed discrimination based on race.” Ibid. (internal
quotation marks omitted).

															The Grutter Court also emphasized the
equal protection principle that racial classifications, even when
otherwise permissible, must be a “ ‘temporary matter,’ ”
and “must be limited in time.” Id., at 342 (quoting Croson , 488 U. S., at 510 (plurality opinion of
O’Connor, J.)). The requirement of a time limit “reflects that
racial classifications, however compelling their goals, are
potentially so dangerous that they may be employed no more broadly
than the interest demands. Enshrining a permanent justification for
racial preferences would offend this fundamental equal protection
principle.” Grutter , 539 U. S., at 342.

															Importantly, the Grutter Court saw “no
reason to exempt race-conscious admissions programs from the
requirement that all governmental use of race must have a logical
end point.” Ibid. The Court reasoned that the “requirement
that all race-conscious admissions programs have a termination
point assures all citizens that the deviation from the norm of
equal treatment of all racial and ethnic groups is a temporary
matter, a measure taken in the service of the goal of equality
itself.” Ibid. (internal quotation marks and alteration
omitted). The Court therefore concluded that race-based affirmative
action programs in higher education, like other racial
classifications, must be “limited in time.” Ibid. The Grutter Court’s conclusion that
race-based affirmative action in higher education must be limited
in time followed not only from fundamental equal protection
principles, but also from this Court’s equal protection precedents
applying those principles. Under those precedents, racial
classifications may not continue indefinitely. For example, in the
elementary and secondary school context after Brown v. Board of Education , 347 U.S.
483 (1954), the Court authorized race-based student assignments
for several decades—but not indefinitely into the future. See, e.g., Board of Ed. of Oklahoma City Public Schools v. Dowell , 498 U.S.
237 , 247–248 (1991); Pasadena City Bd. of Ed. v. Spangler , 427 U.S.
424 , 433–434, 436 (1976); Swann v. Charlotte-Mecklenburg Bd. of Ed. , 402 U.S.
1 , 31–32 (1971); cf. McDaniel v. Barresi , 402 U.S.
39 , 41 (1971).

															In those decisions, this Court ruled that the
race-based “injunctions entered in school desegregation cases”
could not “operate in perpetuity.” Dowell , 498 U. S.,
at 248. Consistent with those decisions, the Grutter Court
ruled that race-based affirmative action in higher education
likewise could not operate in perpetuity.

															As of 2003, when Grutter was decided,
many race-based affirmative action programs in higher education had
been operating for about 25 to 35 years. Pointing to the Court’s
precedents requiring that racial classifications be “temporary,” Croson , 488 U. S., at 510 (plurality opinion of
O’Connor, J.), the petitioner in Grutter , joined by the
United States, argued that race-based affirmative action in higher
education could continue no longer. See Brief for Petitioner 21–22,
30–31, 33, 42, Brief for United States 26–27, in Grutter v. Bollinger , O. T. 2002, No. 02–241.

															The Grutter Court rejected those
arguments for ending race-based affirmative action in higher
education in 2003. But in doing so, the Court struck a careful
balance. The Court ruled that narrowly tailored race-based
affirmative action in higher education could continue for another
generation. But the Court also explicitly rejected any “permanent
justification for racial preferences,” and therefore ruled that
race-based affirmative action in higher education could continue only for another generation. 539 U. S., at 342–343.

															Harvard and North Carolina would prefer that the
Court now ignore or discard Grutter ’s 25-year limit on
race-based affirmative action in higher education, or treat it as a
mere aspiration. But the 25-year limit constituted an important
part of Justice O’Connor’s nuanced opinion for the Court in Grutter . Indeed, four of the separate opinions in Grutter discussed the majority opinion’s 25-year limit,
which belies any suggestion that the Court’s reference to it was
insignificant or not carefully considered.

															In short, the Court in Grutter expressly
recognized the serious issues raised by racial
classifications—particularly permanent or long-term racial
classifications. And the Court “assure[d] all citizens” throughout
America that “the deviation from the norm of equal treatment” in
higher education could continue for another generation, and only
for another generation. Ibid . (internal quotation marks
omitted).

															A generation has now passed since Grutter , and about 50 years have gone by since the era of Bakke and DeFunis v. Odegaard , 416 U.S.
312 (1974), when race-based affirmative action programs in
higher education largely began. In light of the Constitution’s
text, history, and precedent, the Court’s decision today
appropriately respects and abides by Grutter ’s explicit
temporal limit on the use of race-based affirmative action in
higher education.[ 1 ]

															Justice Sotomayor, Justice Kagan, and Justice
Jackson disagree with the Court’s decision. I respect their views.
They thoroughly recount the horrific history of slavery and Jim
Crow in America, cf. Bakke , 438 U. S., at 395–402
(opinion of Marshall, J.), as well as the continuing effects of
that history on African Americans today. And they are of course
correct that for the last five decades, Bakke and Grutter have allowed narrowly tailored race-based
affirmative action in higher education.

															But I respectfully part ways with my dissenting
colleagues on the question of whether, under this Court’s
precedents, race-based affirmative action in higher education may
extend indefinitely into the future. The dissents suggest that the
answer is yes. But this Court’s precedents make clear that the
answer is no. See Grutter , 539 U. S., at 342–343; Dowell , 498 U. S., at 247–248; Croson , 488
U. S., at 510 (plurality opinion of O’Connor, J.).

															To reiterate: For about 50 years, many
institutions of higher education have employed race-based
affirmative action programs. In the abstract, it might have been
debatable how long those race-based admissions programs could
continue under the “temporary matter”/“limited in time” equal
protection principle recognized and applied by this Court. Grutter , 539 U. S., at 342 (internal quotation marks
omitted); cf. Dowell , 498 U. S., at 247–248. But in
2003, the Grutter Court applied that temporal equal
protection principle and resolved the debate: The Court declared
that race-based affirmative action in higher education could
continue for another generation, and only for another generation,
at least absent something unexpected. Grutter , 539
U. S., at 343. As I have explained, the Court’s pronouncement
of a 25-year period—as both an extension of and an outer
limit to race-based affirmative action in higher education—formed
an important part of the carefully constructed Grutter decision. I would abide by that temporal limit rather than
discarding it, as today’s dissents would do.

															To be clear, although progress has been made
since Bakke and Grutter , racial discrimination still
occurs and the effects of past racial discrimination still persist.
Federal and state civil rights laws serve to deter and provide
remedies for current acts of racial discrimination. And governments
and universities still “can, of course, act to undo the effects of
past discrimination in many permissible ways that do not involve
classification by race.” Croson , 488 U. S., at 526
(Scalia, J., concurring in judgment) (internal quotation marks
omitted); see id., at 509 (plurality opinion of O’Connor,
J.) (“the city has at its disposal a whole array of race-neutral
devices to increase the accessibility of city contracting
opportunities to small entrepreneurs of all races”); ante, at 39–40; Brief for Petitioner 80–86; Reply Brief in No. 20–1199,
pp. 25–26; Reply Brief in No. 21–707, pp. 23–26.

															In sum, the Court’s opinion today is consistent
with and follows from the Court’s equal protection precedents, and
I join the Court’s opinion in full. Notes 1 The Court’s decision will
first apply to the admissions process for the college class of
2028, which is the next class to be admitted. Some might have
debated how to calculate Grutter ’s 25-year period—whether it
ends with admissions for the college class of 2028 or instead for
the college class of 2032. But neither Harvard nor North Carolina
argued that Grutter ’s 25-year period ends with the class of
2032 rather than the class of 2028. Indeed, notwithstanding the
25-year limit set forth in Grutter , neither university
embraced any temporal limit on race-based affirmative action
in higher education, or identified any end date for its continued
use of race in admissions. Ante, at 30–34. SUPREME COURT OF THE UNITED STATES

															_________________

															Nos. 20–1199 and 21–707

															_________________

															STUDENTS FOR FAIR ADMISSIONS, INC.,
PETITIONER

															20–1199 v. PRESIDENT AND FELLOWS OF HARVARD
COLLEGE

															on writ of certiorari to the united states
court of appeals for the first circuit

															STUDENTS FOR FAIR ADMISSIONS, INC.,
PETITIONER

															21–707 v. UNIVERSITY OF NORTH CAROLINA,
et al.

															on writ of certiorari before judgment to the
united states court of appeals for the fourth circuit

															[June 29, 2023]

															Justice Sotomayor, with whom Justice Kagan and
Justice Jackson join,[ 1 ]*
dissenting.

															The Equal Protection Clause of the Fourteenth
Amendment enshrines a guarantee of racial equality. The Court long
ago concluded that this guarantee can be enforced through
race-conscious means in a society that is not, and has never been,
colorblind. In Brown v . Board of Education , 347 U.S.
483 (1954), the Court recognized the constitutional necessity
of racially integrated schools in light of the harm inflicted by
segregation and the “importance of education to our democratic
society.” Id. , at 492–495. For 45 years, the Court extended Brown ’s transformative legacy to the context of higher
education, allowing colleges and universities to consider race in a
limited way and for the limited purpose of promoting the important
benefits of racial diversity. This limited use of race has helped
equalize educational opportunities for all students of every race
and background and has improved racial diversity on college
campuses. Although progress has been slow and imperfect,
race-conscious college admissions policies have advanced the
Constitution’s guarantee of equality and have promoted Brown ’s vision of a Nation with more inclusive schools.

															Today, this Court stands in the way and rolls
back decades of precedent and momentous progress. It holds that
race can no longer be used in a limited way in college admissions
to achieve such critical benefits. In so holding, the Court cements
a superficial rule of colorblindness as a constitutional principle
in an endemically segregated society where race has always mattered
and continues to matter. The Court subverts the constitutional
guarantee of equal protection by further entrenching racial
inequality in education, the very foundation of our democratic
government and pluralistic society. Because the Court’s opinion is
not grounded in law or fact and contravenes the vision of equality
embodied in the Fourteenth Amendment, I dissent.

															I

															A

															Equal educational opportunity is a
prerequisite to achieving racial equality in our Nation. From its
founding, the United States was a new experiment in a republican
form of government where democratic participation and the capacity
to engage in self-rule were vital. At the same time, American
society was structured around the profitable institution that was
slavery, which the original Constitution protected. The
Constitution initially limited the power of Congress to restrict
the slave trade, Art. I, §9, cl. 1, accorded Southern
States additional electoral power by counting three-fifths of their
enslaved population in apportioning congressional seats, §2,
cl. 3, and gave enslavers the right to retrieve enslaved
people who escaped to free States, Art. IV, §2, cl. 3.
Because a foundational pillar of slavery was the racist notion that
Black people are a subordinate class with intellectual inferiority,
Southern States sought to ensure slavery’s longevity by prohibiting
the education of Black people, whether enslaved or free. See H.
Williams, Self-Taught: African American Education in Slavery and
Freedom 7, 203–213 (2005) (Self-Taught). Thus, from this Nation’s
birth, the freedom to learn was neither colorblind nor equal.

															With time, and at the tremendous cost of the
Civil War, abolition came. More than two centuries after the first
African enslaved persons were forcibly brought to our shores,
Congress adopted the Thirteenth Amendment to the Constitution,
which abolished “slavery” and “involuntary servitude, except as a
punishment for crime.” §1. “Like all great historical
transformations,” emancipation was a movement, “not a single event”
owed to any single individual, institution, or political party. E.
Foner, The Second Founding 21, 51–54 (2019) (The Second
Founding).

															The fight for equal educational opportunity,
however, was a key driver. Literacy was an “instrument of
resistance and liberation.” Self-Taught 8. Education “provided the
means to write a pass to freedom” and “to learn of abolitionist
activities.” Id. , at 7. It allowed enslaved Black people “to
disturb the power relations between master and slave,” which “fused
their desire for literacy with their desire for freedom.” Ibid . Put simply, “[t]he very feeling of inferiority which
slavery forced upon [Black people] fathered an intense desire to
rise out of their condition by means of education.” W. E. B. Du
Bois, Black Reconstruction in America 1860–1880, p. 638
(1935); see J. Anderson, The Education of Blacks in the South
1860–1935, p. 7 (1988). Black Americans thus insisted, in the
words of Frederick Douglass, “that in a country governed by the
people, like ours, education of the youth of all classes is vital
to its welfare, prosperity, and to its existence.” Address to the
People of the United States (1883), in 4 P. Foner, The Life and
Writings of Frederick Douglass 386 (1955). Black people’s yearning
for freedom of thought, and for a more perfect Union with
educational opportunity for all, played a crucial role during the
Reconstruction era.

															Yet emancipation marked the beginning, not the
end, of that era. Abolition alone could not repair centuries of
racial subjugation. Following the Thirteenth Amendment’s
ratification, the Southern States replaced slavery with “a system
of ‘laws which imposed upon [Black people] onerous disabilities and
burdens, and curtailed their rights in the pursuit of life,
liberty, and property to such an extent that their freedom was of
little value.’ ” Regents of Univ. of Cal. v. Bakke , 438 U.S.
265 , 390 (1978) (opinion of Marshall, J.) (quoting Slaughter-House Cases , 16 Wall. 36, 70 (1873)). Those
so-called “Black Codes” discriminated against Black people on the
basis of race, regardless of whether they had been previously
enslaved. See, e.g ., 1866 N. C. Sess. Laws pp. 99,
102.

															Moreover, the criminal punishment exception in
the Thirteenth Amendment facilitated the creation of a new system
of forced labor in the South. Southern States expanded their
criminal laws, which in turn “permitted involuntary servitude as a
punishment” for convicted Black persons. D. Blackmon, Slavery by
Another Name: The Re-Enslavement of Black Americans From the Civil
War to World War II, pp. 7, 53 (2009) (Slavery by Another Name).
States required, for example, that Black people “sign a labor
contract to work for a white employer or face prosecution for
vagrancy.” The Second Founding 48. State laws then forced Black
convicted persons to labor in “plantations, mines, and industries
in the South.” Id. , at 50. This system of free forced labor
provided tremendous benefits to Southern whites and was designed to
intimidate, subjugate, and control newly emancipated Black people.
See Slavery by Another Name 5–6, 53 . The Thirteenth
Amendment, without more, failed to equalize society.

															Congress thus went further and embarked on
months of deliberation about additional Reconstruction laws. Those
efforts included the appointment of a Committee, the Joint
Committee on Reconstruction, “to inquire into the condition of the
Confederate States.” Report of the Joint Committee on
Reconstruction, S. Rep. No. 112, 39th Cong., 1st Sess., 1
(1866) (hereinafter Joint Comm. Rep.). Among other things, the
Committee’s Report to Congress documented the “deep-seated
prejudice” against emancipated Black people in the Southern States
and the lack of a “general disposition to place the colored race,
constituting at least two-fifths of the population, upon terms even
of civil equality.” Id. , at 11. In light of its findings,
the Committee proposed amending the Constitution to secure the
equality of “rights, civil and political.” Id. , at 7.

															Congress acted on that recommendation and
adopted the Fourteenth Amendment. Proponents of the Amendment
declared that one of its key goals was to “protec[t] the black man
in his fundamental rights as a citizen with the same shield which
it throws over the white man.” Cong. Globe, 39th Cong., 1st Sess.,
2766 (1866) (Cong. Globe) (statement of Sen. Howard). That is, the
Amendment sought “to secure to a race recently emancipated, a race
that through many generations [was] held in slavery, all the civil
rights that the superior race enjoy.” Plessy v. Ferguson , 163
U.S. 537 , 555–556 (1896) (Harlan, J., dissenting) (internal
quotation marks omitted).

															To promote this goal, Congress enshrined a broad
guarantee of equality in the Equal Protection Clause of the
Amendment. That Clause commands that “[n]o State shall
. . . deny to any person within its jurisdiction the
equal protection of the laws.” Amdt. 14, §1. Congress chose its
words carefully, opting for expansive language that focused on
equal protection and rejecting “proposals that would have made the
Constitution explicitly color-blind.” A. Kull, The Color-Blind
Constitution 69 (1992); see also, e.g. , Cong. Globe 1287
(rejecting proposed language providing that “no State
. . . shall . . . recognize any distinction
between citizens . . . on account of race or color”).
This choice makes it clear that the Fourteenth Amendment does not
impose a blanket ban on race-conscious policies.

															Simultaneously with the passage of the
Fourteenth Amendment, Congress enacted a number of race-conscious
laws to fulfill the Amendment’s promise of equality, leaving no
doubt that the Equal Protection Clause permits consideration of
race to achieve its goal. One such law was the Freedmen’s Bureau
Act, enacted in 1865 and then expanded in 1866, which established a
federal agency to provide certain benefits to refugees and newly
emancipated freedmen. See Act of Mar. 3, 1865, ch. 90, 13Stat.
507; Act of July 16, 1866, ch. 200, 14Stat. 173. For the Bureau,
education “was the foundation upon which all efforts to assist the
freedmen rested.” E. Foner, Reconstruction: America’s Unfinished
Revolution 1863–1877, p. 144 (1988). Consistent with that
view, the Bureau provided essential “funding for black education
during Reconstruction.” Id. , at 97.

															Black people were the targeted beneficiaries of
the Bureau’s programs, especially when it came to investments in
education in the wake of the Civil War. Each year surrounding the
passage of the Fourteenth Amendment, the Bureau “educated
approximately 100,000 students, nearly all of them black,” and
regardless of “degree of past disadvantage.” E. Schnapper,
Affirmative Action and the Legislative History of the Fourteenth
Amendment, 71 Va. L. Rev. 753, 781 (1985). The Bureau also
provided land and funding to establish some of our Nation’s
Historically Black Colleges and Universities (HBCUs). Ibid. ;
see also Brief for HBCU Leaders et al. as Amici Curiae 13
(HBCU Brief ). In 1867, for example, the Bureau provided
Howard University tens of thousands of dollars to buy property and
construct its campus in our Nation’s capital. 2 O. Howard,
Autobiography 397–401 (1907). Howard University was designed to
provide “special opportunities for a higher education to the newly
enfranchised of the south,” but it was available to all Black
people, “whatever may have been their previous condition.” Bureau
Refugees, Freedmen and Abandoned Lands, Sixth Semi-Annual Report on
Schools for Freedmen 60 (July 1, 1868).[ 2 ] The Bureau also “expended a total of $407,752.21 on
black colleges, and only $3,000 on white colleges” from 1867 to
1870. Schnapper, 71 Va. L. Rev., at 798, n. 149.

															Indeed, contemporaries understood that the
Freedmen’s Bureau Act benefited Black people. Supporters defended
the law by stressing its race-conscious approach. See, e.g. ,
Cong. Globe 632 (statement of Rep. Moulton) (“[T]he true object of
this bill is the amelioration of the condition of the colored
people”); Joint Comm. Rep. 11 (reporting that “the Union men of the
south” declared “with one voice” that the Bureau’s efforts
“protect[ed] the colored people”). Opponents argued that the Act
created harmful racial classifications that favored Black people
and disfavored white Americans. See, e.g. , Cong. Globe 397
(statement of Sen. Willey) (the Act makes “a distinction on account
of color between the two races”), 544 (statement of Rep. Taylor)
(the Act is “legislation for a particular class of the blacks to
the exclusion of all whites”), App. to Cong. Globe, 39th Cong., 1st
Sess., 69–70 (statement of Rep. Rousseau) (“You raise a spirit of
antagonism between the black race and the white race in our
country, and the law-abiding will be powerless to control it”).
President Andrew Johnson vetoed the bill on the basis that it
provided benefits “to a particular class of citizens,” 6 Messages
and Papers of the Presidents 1789–1897, p. 425 (J. Richardson
ed. 1897) (Messages & Papers) (A. Johnson to House of Rep. July
16, 1866), but Congress overrode his veto. Cong. Globe 3849–3850.
Thus, rejecting those opponents’ objections, the same
Reconstruction Congress that passed the Fourteenth Amendment
eschewed the concept of colorblindness as sufficient to remedy
inequality in education.

															Congress also debated and passed the Civil
Rights Act of 1866 contemporaneously with the Fourteenth Amendment.
The goal of that Act was to eradicate the Black Codes enacted by
Southern States following ratification of the Thirteenth Amendment.
See id. , at 474. Because the Black Codes focused on race,
not just slavery-related status, the Civil Rights Act explicitly
recognized that white citizens enjoyed certain rights that
non-white citizens did not. Section 1 of the Act provided that all
persons “of every race and color . . . shall have the
same right[s]” as those “enjoyed by white citizens.” Act of Apr. 9,
1866, 14Stat. 27. Similarly, Section 2 established criminal
penalties for subjecting racial minorities to “different punishment
. . . by reason of . . . color or race, than is
prescribed for the punishment of white persons.” Ibid . In
other words, the Act was not colorblind. By using white citizens as
a benchmark, the law classified by race and took account of the
privileges enjoyed only by white people. As he did with the
Freedmen’s Bureau Act, President Johnson vetoed the Civil Rights
Act in part because he viewed it as providing Black citizens with
special treatment. See Messages and Papers 408, 413 (the Act is
designed “to afford discriminating protection to colored persons,”
and its “distinction of race and color . . . operate[s]
in favor of the colored and against the white race”). Again,
Congress overrode his veto. Cong. Globe 1861. In fact, Congress
reenacted race-conscious language in the Civil Rights Act of 1870,
two years after ratification of the Fourteenth Amendment, see Act
of May 31, 1870, §16, 16Stat. 144, where it remains today, see 42
U. S. C. §§1981(a) and 1982 (Rev. Stat. §§1972,
1978).

															Congress similarly appropriated federal dollars
explicitly and solely for the benefit of racial minorities. For
example, it appropriated money for “ ‘the relief of destitute
colored women and children,’ ” without regard to prior
enslavement. Act of July 28, 1866, 14Stat. 317. Several times
during and after the passage of the Fourteenth Amendment, Congress
also made special appropriations and adopted special protections
for the bounty and prize money owed to “colored soldiers and
sailors” of the Union Army. 14Stat. 357, Res. No. 46, June 15,
1866; Act of Mar. 3, 1869, ch. 122, 15Stat. 301; Act of Mar. 3,
1873, 17Stat. 528. In doing so, it rebuffed objections to these
measures as “class legislation” “applicable to colored people and
not . . . to the white people.” Cong. Globe, 40th Cong.,
1st Sess., 79 (1867) (statement of Sen. Grimes). This history makes
it “inconceivable” that race-conscious college admissions are
unconstitutional. Bakke , 438 U. S., at 398 (opinion of
Marshall, J.).[ 3 ]

															B

															The Reconstruction era marked a
transformational point in the history of American democracy. Its
vision of equal opportunity leading to an equal society “was
short-lived,” however, “with the assistance of this Court.” Id. , at 391. In a series of decisions, the Court “sharply
curtailed” the “substantive protections” of the Reconstruction
Amendments and the Civil Rights Acts. Id. , at 391–392
(collecting cases). That endeavor culminated with the Court’s
shameful decision in Plessy v. Ferguson , 163 U.S.
537 (1896), which established that “equality of treatment”
exists “when the races are provided substantially equal facilities,
even though these facilities be separate.” Brown , 347
U. S., at 488. Therefore, with this Court’s approval,
government-enforced segregation and its concomitant destruction of
equal opportunity became the constitutional norm and infected every
sector of our society, from bathrooms to military units and,
crucially, schools. See Bakke , 438 U. S., at 393–394
(opinion of Marshall, J.); see also generally R. Rothstein, The
Color of Law 17–176 (2017) (discussing various federal policies
that promoted racial segregation).

															In a powerful dissent, Justice Harlan explained
in Plessy that the Louisiana law at issue, which authorized
segregation in railway carriages, perpetuated a “caste” system. 163
U. S., at 559–560. Although the State argued that the law
“prescribe[d] a rule applicable alike to white and colored
citizens,” all knew that the law’s purpose was not “to exclude
white persons from railroad cars occupied by blacks,” but “to
exclude colored people from coaches occupied by or assigned to
white persons.” Id. , at 557. That is, the law “proceed[ed]
on the ground that colored citizens are so inferior and degraded
that they cannot be allowed to sit in public coaches occupied by
white citizens.” Id. , at 560. Although “[t]he white race
deems itself to be the dominant race . . . in prestige,
in achievements, in education, in wealth, and in power,” Justice
Harlan explained, there is “no superior, dominant, ruling class of
citizens” in the eyes of the law. Id. , at 559. In that
context, Justice Harlan thus announced his view that “[o]ur
constitution is color-blind.” Ibid. It was not until half a century later, in Brown , that the Court honored the guarantee of equality in
the Equal Protection Clause and Justice Harlan’s vision of a
Constitution that “neither knows nor tolerates classes among
citizens.” Ibid . Considering the “effect[s] of segregation”
and the role of education “in the light of its full development and
its present place in American life throughout the Nation,” Brown overruled Plessy . 347 U. S., at 492–495.
The Brown Court held that “[s]eparate educational facilities
are inherently unequal,” and that such racial segregation deprives
Black students “of the equal protection of the laws guaranteed by
the Fourteenth Amendment.” Id. , at 494–495. The Court thus
ordered segregated schools to transition to a racially integrated
system of public education “with all deliberate speed,” “ordering
the immediate admission of [Black children] to schools previously
attended only by white children.” Brown v. Board of
Education , 349 U.S.
294 , 301 (1955). Brown was a race-conscious decision that
emphasized the importance of education in our society. Central to
the Court’s holding was the recognition that, as Justice Harlan
emphasized in Plessy , segregation perpetuates a caste system
wherein Black children receive inferior educational opportunities
“solely because of their race,” denoting “inferiority as to their
status in the community.” 347 U. S., at 494, and n. 10.
Moreover, because education is “the very foundation of good
citizenship,” segregation in public education harms “our democratic
society” more broadly as well. Id. , at 493. In light of the
harmful effects of entrenched racial subordination on racial
minorities and American democracy, Brown recognized the
constitutional necessity of a racially integrated system of schools
where education is “available to all on equal terms.” Ibid .

															The desegregation cases that followed Brown confirm that the ultimate goal of that seminal
decision was to achieve a system of integrated schools that ensured
racial equality of opportunity, not to impose a formalistic rule of
race-blindness. In Green v. School Bd. of New Kent
Cty. , 391 U.S.
430 (1968), for example, the Court held that the New Kent
County School Board’s “freedom of choice” plan, which allegedly
allowed “every student, regardless of race, . . .
‘freely’ [to] choose the school he [would] attend,” was
insufficient to effectuate “the command of [ Brown ].” Id. , at 437, 441–442. That command, the Court explained, was
that schools dismantle “well-entrenched dual systems” and
transition “to a unitary, nonracial system of public education.” Id. , at 435–436. That the board “opened the doors of the
former ‘white’ school to [Black] children and the [‘Black’] school
to white children” on a race-blind basis was not enough. Id. , at 437. Passively eliminating race classifications did
not suffice when de facto segregation persisted. Id. ,
at 440–442 (noting that 85% of Black children in the school system
were still attending an all-Black school). Instead, the board was
“clearly charged with the affirmative duty to take whatever steps
might be necessary to convert to a unitary system in which racial
discrimination would be eliminated root and branch.” Id. , at
437–438. Affirmative steps, this Court held, are constitutionally
necessary when mere formal neutrality cannot achieve Brown ’s
promise of racial equality. See Green , 391
U. S . , at 440–442; see also North Carolina Bd. of
Ed. v . Swann , 402 U.S.
43 , 45–46 (1971) (holding that North Carolina statute that
forbade the use of race in school busing “exploits an apparently
neutral form to control school assignment plans by directing that
they be ‘colorblind’; that requirement, against the background of
segregation, would render illusory the promise of Brown ”); Dayton Bd. of Ed. v. Brinkman , 443 U.S.
526 , 538 (1979) (school board “had to do more than abandon its
prior discriminatory purpose”; it “had an affirmative
responsibility” to integrate); Keyes v. School Dist. No.
1, Denver , 413 U.S.
189 , 200 (1973) (“[T]he State automatically assumes an
affirmative duty” under Brown to eliminate the vestiges of
segregation).[ 4 ]

															In so holding, this Court’s post- Brown decisions rejected arguments advanced by opponents of integration
suggesting that “restor[ing] race as a criterion in the operation
of the public schools” was at odds with “the Brown decisions.” Brief for Respondents in Green v. School Bd.
of New Kent Cty. , O. T. 1967, No. 695, p. 6 ( Green Brief ). Those opponents argued that Brown only
required the admission of Black students “to public schools on a
racially nondiscriminatory basis.” Id. , at 11 (emphasis
deleted). Relying on Justice Harlan’s dissent in Plessy ,
they argued that the use of race “is improper” because the
“ ‘Constitution is colorblind.’ ” Green Brief 6,
n. 6 (quoting Plessy , 163 U. S., at 559 (Harlan,
J., dissenting)). They also incorrectly claimed that their views
aligned with those of the Brown litigators, arguing that the Brown plaintiffs “understood” that Brown ’s “mandate”
was colorblindness. Green Brief 17. This Court rejected that
characterization of “the thrust of Brown .” Green , 391
U. S., at 437. It made clear that indifference to race “is not
an end in itself ” under that watershed decision. Id .,
at 440. The ultimate goal is racial equality of opportunity.

															Those rejected arguments mirror the Court’s
opinion today. The Court claims that Brown requires that
students be admitted “ ‘on a racially nondiscriminatory
basis.’ ” Ante , at 13. It distorts the dissent in Plessy to advance a colorblindness theory. Ante , at
38–39; see also ante , at 22 (Gorsuch, J., concurring)
(“[T]oday’s decision wakes the echoes of Justice John Marshall
Harlan [in Plessy ]”); ante , at 3 (Thomas, J.,
concurring) (same). The Court also invokes the Brown litigators, relying on what the Brown “plaintiffs had
argued.” Ante , at 12; ante , at 35–36, 39, n. 7
(opinion of Thomas, J.).

															If there was a Member of this Court who
understood the Brown litigation, it was Justice Thurgood
Marshall, who “led the litigation campaign” to dismantle
segregation as a civil rights lawyer and “rejected the hollow,
race-ignorant conception of equal protection” endorsed by the
Court’s ruling today. Brief for NAACP Legal Defense and Educational
Fund, Inc., et al. as Amici Curiae 9. Justice Marshall
joined the Bakke plurality and “applaud[ed] the judgment of
the Court that a university may consider race in its admissions
process.” 438 U. S., at 400. In fact, Justice Marshall’s view
was that Bakke ’s holding should have been even more
protective of race-conscious college admissions programs in light
of the remedial purpose of the Fourteenth Amendment and the legacy
of racial inequality in our society. See id. , at 396–402
(arguing that “a class-based remedy” should be constitutionally
permissible in light of the hundreds of “years of class-based
discrimination against [Black Americans]”). The Court’s
recharacterization of Brown is nothing but revisionist
history and an affront to the legendary life of Justice Marshall, a
great jurist who was a champion of true equal opportunity, not
rhetorical flourishes about colorblindness.

															C

															Two decades after Brown , in Bakke , a plurality of the Court held that “the attainment of
a diverse student body” is a “compelling” and “constitutionally
permissible goal for an institution of higher education.” 438
U. S., at 311–315. Race could be considered in the college
admissions process in pursuit of this goal, the plurality
explained, if it is one factor of many in an applicant’s file, and
each applicant receives individualized review as part of a holistic
admissions process. Id. , at 316–318.

															Since Bakke , the Court has reaffirmed
numerous times the constitutionality of limited race-conscious
college admissions. First, in Grutter v. Bollinger , 539 U.S.
306 (2003), a majority of the Court endorsed the Bakke plurality’s “view that student body diversity is a compelling state
interest that can justify the use of race in university
admissions,” 539 U. S., at 325, and held that race may be used
in a narrowly tailored manner to achieve this interest, id. ,
at 333–344; see also Gratz v. Bollinger , 539 U.S.
244 , 268 (2003) (“for the reasons set forth [the same day] in Grutter ,” rejecting petitioners’ arguments that race can
only be considered in college admissions “to remedy identified
discrimination” and that diversity is “ ‘too open-ended,
ill-defined, and indefinite to constitute a compelling
interest’ ”).

															Later, in the Fisher litigation, the
Court twice reaffirmed that a limited use of race in college
admissions is constitutionally permissible if it satisfies strict
scrutiny. In Fisher v. University of Texas at Austin , 570 U.S.
297 (2013) ( Fisher I ), seven Members of the Court
concluded that the use of race in college admissions comports with
the Fourteenth Amendment if it “is narrowly tailored to obtain the
educational benefits of diversity.” Id. , at 314, 337.
Several years later, in Fisher v. University of Texas at
Austin , 579 U.S. 365, 376 (2016) ( Fisher II ), the Court
upheld the admissions program at the University of Texas under this
framework. Id. , at 380–388. Bakke , Grutter , and Fisher are an extension of Brown ’s legacy. Those decisions
recognize that “ ‘experience lend[s] support to the view that
the contribution of diversity is substantial.’ ” Grutter , 539 U. S., at 324 (quoting Bakke , 438
U. S., at 313). Racially integrated schools improve
cross-racial understanding, “break down racial stereotypes,” and
ensure that students obtain “the skills needed in today’s
increasingly global marketplace . . . through exposure to
widely diverse people, cultures, ideas, and viewpoints.” 539
U. S., at 330. More broadly, inclusive institutions that are
“visibly open to talented and qualified individuals of every race
and ethnicity” instill public confidence in the “legitimacy” and
“integrity” of those institutions and the diverse set of graduates
that they cultivate. Id. , at 332. That is particularly true
in the context of higher education, where colleges and universities
play a critical role in “maintaining the fabric of society” and
serve as “the training ground for a large number of our Nation’s
leaders.” Id. , at 331–332. It is thus an objective of the
highest order, a “compelling interest” indeed, that universities
pursue the benefits of racial diversity and ensure that “the
diffusion of knowledge and opportunity” is available to students of
all races. Id. , at 328–333.

															This compelling interest in student body
diversity is grounded not only in the Court’s equal protection
jurisprudence but also in principles of “academic freedom,” which
“ ‘long [have] been viewed as a special concern of the First
Amendment.’ ” Id. , at 324 (quoting Bakke , 438
U. S., at 312). In light of “the important purpose of public
education and the expansive freedoms of speech and thought
associated with the university environment,” this Court’s
precedents recognize the imperative nature of diverse student
bodies on American college campuses. 539 U. S., at 329.
Consistent with the First Amendment, student body diversity allows
universities to promote “th[e] robust exchange of ideas which
discovers truth out of a multitude of tongues [rather] than through
any kind of authoritative selection. ” Bakke , 438
U. S., at 312 (internal quotation marks omitted). Indeed, as
the Court recently reaffirmed in another school case, “learning how
to tolerate diverse expressive activities has always been ‘part of
learning how to live in a pluralistic society’ ” under our
constitutional tradition. Kennedy v. Bremerton School
Dist. , 597 U. S. ___, ___ (2022) (slip op., at 29); cf. Khorrami v. Arizona , 598 U. S. ___, ___ (2022)
(Gorsuch, J., dissenting from denial of certiorari) (slip op., at
8) (collecting research showing that larger juries are more likely
to be racially diverse and “deliberate longer, recall information
better, and pay greater attention to dissenting voices”).

															In short, for more than four decades, it has
been this Court’s settled law that the Equal Protection Clause of
the Fourteenth Amendment authorizes a limited use of race in
college admissions in service of the educational benefits that flow
from a diverse student body. From Brown to Fisher ,
this Court’s cases have sought to equalize educational opportunity
in a society structured by racial segregation and to advance the
Fourteenth Amendment’s vision of an America where racially
integrated schools guarantee students of all races the equal
protection of the laws.

															D

															Today, the Court concludes that indifference
to race is the only constitutionally permissible means to achieve
racial equality in college admissions. That interpretation of the
Fourteenth Amendment is not only contrary to precedent and the
entire teachings of our history, see supra , at 2–17, but is
also grounded in the illusion that racial inequality was a problem
of a different generation. Entrenched racial inequality remains a
reality today. That is true for society writ large and, more
specifically, for Harvard and the University of North Carolina
(UNC), two institutions with a long history of racial exclusion.
Ignoring race will not equalize a society that is racially unequal.
What was true in the 1860s, and again in 1954, is true today:
Equality requires acknowledgment of inequality.

															1

															After more than a century of government
policies enforcing racial segregation by law, society remains
highly segregated. About half of all Latino and Black students
attend a racially homogeneous school with at least 75% minority
student enrollment.[ 5 ] The
share of intensely segregated minority schools ( i.e. ,
schools that enroll 90% to 100% racial minorities) has sharply
increased.[ 6 ] To this day, the
U. S. Department of Justice continues to enter into
desegregation decrees with schools that have failed to “eliminat[e]
the vestiges of de jure segregation.” [ 7 ]

															Moreover, underrepresented minority students are
more likely to live in poverty and attend schools with a high
concentration of poverty.[ 8 ]
When combined with residential segregation and school funding
systems that rely heavily on local property taxes, this leads to
racial minority students attending schools with fewer resources.
See San Antonio Independent School Dist. v .
Rodriguez , 411 U.S.
1 , 72–86 (1973) (Marshall, J., dissenting) (noting school
funding disparities that result from local property
taxation).[ 9 ] In turn,
underrepresented minorities are more likely to attend schools with
less qualified teachers, less challenging curricula, lower
standardized test scores, and fewer extracurricular activities and
advanced placement courses.[ 10 ] It is thus unsurprising that there are achievement
gaps along racial lines, even after controlling for income
differences.[ 11 ]

															Systemic inequities disadvantaging
underrepresented racial minorities exist beyond school resources.
Students of color, particularly Black students, are
disproportionately disciplined or suspended, interrupting their
academic progress and increasing their risk of involvement with the
criminal justice system.[ 12 ]
Underrepresented minorities are less likely to have parents with a
postsecondary education who may be familiar with the college
application process.[ 13 ]
Further, low-income children of color are less likely to attend
preschool and other early childhood education programs that
increase educational attainment.[ 14 ] All of these interlocked factors place
underrepresented minorities multiple steps behind the starting line
in the race for college admissions.

															In North Carolina, the home of UNC, racial
inequality is deeply entrenched in K–12 education. State courts
have consistently found that the State does not provide
underrepresented racial minorities equal access to educational
opportunities, and that racial disparities in public schooling have
increased in recent years, in violation of the State Constitution.
See, e.g. , Hoke Cty. Bd. of Ed. v. State , 2020
WL 13310241, *6, *13 (N. C. Super. Ct., Jan. 21, 2020); Hoke Cty. Bd. of Ed. v . State , 382 N. C. 386,
388–390, 879 S.E.2d 193, 197–198 (2022).

															These opportunity gaps “result in fewer students
from underrepresented backgrounds even applying to” college,
particularly elite universities. Brief for Massachusetts Institute
of Technology et al. as Amici Curiae 32. “Because
talent lives everywhere, but opportunity does not, there are
undoubtedly talented students with great academic potential who
have simply not had the opportunity to attain the traditional
indicia of merit that provide a competitive edge in the admissions
process.” Brief for Harvard Student and Alumni Organizations as Amici Curiae 16. Consistent with this reality, Latino and
Black students are less likely to enroll in institutions of higher
education than their white peers.[ 15 ]

															Given the central role that education plays in
breaking the cycle of racial inequality, these structural barriers
reinforce other forms of inequality in communities of color. See E.
Wilson, Monopolizing Whiteness, 134 Harv. L. Rev. 2382, 2416
(2021) (“[E]ducational opportunities . . . allow for
social mobility, better life outcomes, and the ability to
participate equally in the social and economic life of the
democracy”). Stark racial disparities exist, for example, in
unemployment rates,[ 16 ]
income levels,[ 17 ] wealth
and homeownership,[ 18 ] and
healthcare access.[ 19 ] See
also Schuette v . BAMN , 572 U.S.
291 , 380–381 (2014) (Sotomayor, J., dissenting) (noting the
“persistent racial inequality in society”); Gratz , 539
U. S., at 299–301 (Ginsburg, J., dissenting) (cataloging
racial disparities in employment, poverty, healthcare, housing,
consumer transactions, and education).

															Put simply, society remains “inherently
unequal.” Brown , 347 U. S., at 495. Racial inequality
runs deep to this very day. That is particularly true in education,
the “ ‘most vital civic institution for the preservation of a
democratic system of government.’ ” Plyler v .
Doe , 457 U.S.
202 , 221, 223 (1982). As I have explained before, only with
eyes open to this reality can the Court “carry out the guarantee of
equal protection.” Schuette , 572 U. S., at 381
(dissenting opinion).

															2

															Both UNC and Harvard have sordid legacies of
racial exclusion. Because “[c]ontext matters” when reviewing
race-conscious college admissions programs, Grutter , 539
U. S., at 327, this reality informs the exigency of
respondents’ current admissions policies and their racial diversity
goals.

															i

															For much of its history, UNC was a bastion of
white supremacy. Its leadership included “slaveholders, the leaders
of the Ku Klux Klan, the central figures in the white supremacy
campaigns of 1898 and 1900, and many of the State’s most ardent
defenders of Jim Crow and race-based Social Darwinism in the
twentieth century.” 3 App. 1680. The university excluded all people
of color from its faculty and student body, glorified the
institution of slavery, enforced its own Jim Crow regulations, and
punished any dissent from racial orthodoxy. Id. , at
1681–1683. It resisted racial integration after this Court’s
decision in Brown , and was forced to integrate by court
order in 1955. 3 App. 1685. It took almost 10 more years for the
first Black woman to enroll at the university in 1963. See Karen L.
Parker Collection, 1963–1966, UNC Wilson Special Collections
Library. Even then, the university admitted only a handful of
underrepresented racial minorities, and those students suffered
constant harassment, humiliation, and isolation. 3 App. 1685. UNC
officials openly resisted racial integration well into the 1980s,
years after the youngest Member of this Court was born.[ 20 ] Id. , at 1688–1690. During
that period, Black students faced racial epithets and stereotypes,
received hate mail, and encountered Ku Klux Klan rallies on campus.
2 id. , at 781–784; 3 id. , at 1689.

															To this day, UNC’s deep-seated legacy of racial
subjugation continues to manifest itself in student life. Buildings
on campus still bear the names of members of the Ku Klux Klan and
other white supremacist leaders. Id. , at 1683. Students of
color also continue to experience racial harassment, isolation, and
tokenism.[ 21 ] Plus, the
student body remains predominantly white: approximately 72% of UNC
students identify as white, while only 8% identify as Black. Id. , at 1647. These numbers do not reflect the diversity of
the State, particularly Black North Carolinians, who make up 22% of
the population. Id. , at 1648.

															ii

															UNC is not alone. Harvard, like other Ivy
League universities in our country, “stood beside church and state
as the third pillar of a civilization built on bondage.” C. Wilder,
Ebony & Ivy: Race, Slavery, and the Troubled History of
America’s Universities 11 (2013). From Harvard’s founding, slavery
and racial subordination were integral parts of the institution’s
funding, intellectual production, and campus life. Harvard and its
donors had extensive financial ties to, and profited from, the
slave trade, the labor of enslaved people, and slavery-related
investments. As Harvard now recognizes, the accumulation of this
wealth was “vital to the University’s growth” and establishment as
an elite, national institution. Harvard & the Legacy of
Slavery, Report by the President and Fellows of Harvard College 7
(2022) (Harvard Report). Harvard suppressed antislavery views, and
enslaved persons “served Harvard presidents and professors and fed
and cared for Harvard students” on campus. Id. , at 7,
15.

															Exclusion and discrimination continued to be a
part of campus life well into the 20th century. Harvard’s
leadership and prominent professors openly promoted “ ‘race
science,’ ” racist eugenics, and other theories rooted in
racial hierarchy. Id. , at 11. Activities to advance these
theories “took place on campus,” including “intrusive physical
examinations” and “photographing of unclothed” students. Ibid. The university also “prized the admission of
academically able Anglo-Saxon students from elite
backgrounds—including wealthy white sons of the South.” Id. ,
at 44. By contrast, an average of three Black students enrolled at
Harvard each year during the five decades between 1890 and 1940. Id. , at 45. Those Black students who managed to enroll at
Harvard “excelled academically, earning equal or better academic
records than most white students,” but faced the challenges of the
deeply rooted legacy of slavery and racism on campus. Ibid .
Meanwhile, a few women of color attended Radcliffe College, a
separate and overwhelmingly white “women’s annex” where racial
minorities were denied campus housing and scholarships. Id. ,
at 51. Women of color at Radcliffe were taught by Harvard
professors, but “women did not receive Harvard degrees until 1963.” Ibid. ; see also S. Bradley, Upending the Ivory Tower: Civil
Rights, Black Power, and the Ivy League 17 (2018) (noting that the
historical discussion of racial integration at the Ivy League “is
necessarily male-centric,” given the historical exclusion of women
of color from these institutions).

															Today, benefactors with ties to slavery and
white supremacy continue to be memorialized across campus through
“statues, buildings, professorships, student houses, and the like.”
Harvard Report 11. Black and Latino applicants account for only 20%
of domestic applicants to Harvard each year. App. to Pet. for Cert.
in No. 20–1199, p. 112. “Even those students of color who beat
the odds and earn an offer of admission” continue to experience
isolation and alienation on campus. Brief for 25 Harvard Student
and Alumni Organizations as Amici Curiae 30–31; 2 App. 823,
961. For years, the university has reported that inequities on
campus remain. See, e.g. , 4 App. 1564–1601. For example,
Harvard has reported that “far too many black students at Harvard
experience feelings of isolation and marginalization,” 3 id. , at 1308, and that “student survey data show[ed] that
only half of Harvard undergraduates believe that the housing system
fosters exchanges between students of different backgrounds,” id. , at 1309.

															*  *  *

															These may be uncomfortable truths to some, but
they are truths nonetheless. “Institutions can and do change,”
however, as societal and legal changes force them “to live up to
[their] highest ideals.” Harvard Report 56. It is against this
historical backdrop that Harvard and UNC have reckoned with their
past and its lingering effects. Acknowledging the reality that race
has always mattered and continues to matter, these universities
have established institutional goals of diversity and inclusion.
Consistent with equal protection principles and this Court’s
settled law, their policies use race in a limited way with the goal
of recruiting, admitting, and enrolling underrepresented racial
minorities to pursue the well-documented benefits of racial
integration in education.

															II

															The Court today stands in the way of
respondents’ commendable undertaking and entrenches racial
inequality in higher education. The majority opinion does so by
turning a blind eye to these truths and overruling decades of
precedent, “content for now to disguise” its ruling as an
application of “established law and move on.” Kennedy , 597
U. S., at ___ (Sotomayor, J., dissenting) (slip op., at 29).
As Justice Thomas puts it, “ Grutter is, for all intents and
purposes, overruled.” Ante , at 58.

															It is a disturbing feature of today’s decision
that the Court does not even attempt to make the extraordinary
showing required by stare decisis . The Court simply moves
the goalposts, upsetting settled expectations and throwing
admissions programs nationwide into turmoil. In the end, however,
it is clear why the Court is forced to change the rules of the game
to reach its desired outcome: Under a faithful application of the
Court’s settled legal framework, Harvard and UNC’s admissions
programs are constitutional and comply with Title VI of the Civil
Rights Act of 1964, 42 U. S. C. §2000d et seq .[ 22 ]

															A

															Answering the question whether Harvard’s and
UNC’s policies survive strict scrutiny under settled law is
straightforward, both because of the procedural posture of these
cases and because of the narrow scope of the issues presented by
petitioner Students for Fair Admissions, Inc. (SFFA).[ 23 ]

															These cases arrived at this Court after two
lengthy trials. Harvard and UNC introduced dozens of fact
witnesses, expert testimony, and documentary evidence in support of
their admissions programs. Brief for Petitioner 20, 40. SFFA, by
contrast, did not introduce a single fact witness and relied on the
testimony of two experts. Ibid .

															After making detailed findings of fact and
conclusions of law, the District Courts entered judgment in favor
of Harvard and UNC. See 397 F. Supp. 3d 126, 133–206
(Mass. 2019) ( Harvard I ); 567 F. Supp. 3d
580, 588–667 (MDNC 2021) ( UNC ). The First Circuit affirmed
in the Harvard case, finding “no error” in the District
Court’s thorough opinion. 980 F.3d 157, 204 (2020) ( Harvard
II ). SFFA then filed petitions for a writ of certiorari
in both cases, which the Court granted. 595 U. S. ___
(2022).[ 24 ]

															The Court granted certiorari on three questions:
(1) whether the Court should overrule Bakke , Grutter ,
and Fisher ; or, alternatively, (2) whether UNC’s admissions
program is narrowly tailored, and (3) whether Harvard’s admissions
program is narrowly tailored. See Brief for Petitioner in No.
20–1199, p. i; Brief for Respondent in No. 20–1199, p. i;
Brief for University Respondents in No. 21–707, p. i.
Answering the last two questions, which call for application of
settled law to the facts of these cases, is simple: Deferring to
the lower courts’ careful findings of fact and credibility
determinations, Harvard’s and UNC’s policies are narrowly
tailored.

															B

															1

															As to narrow tailoring, the only issue SFFA
raises in the UNC case is that the university cannot use
race in its admissions process because race-neutral alternatives
would promote UNC’s diversity objectives. That issue is so easily
resolved in favor of UNC that SFFA devoted only three pages to it
at the end of its 87-page brief. Brief for Petitioner 83–86.

															The use of race is narrowly tailored unless
“workable” and “available” race-neutral approaches exist, meaning
race-neutral alternatives promote the institution’s diversity goals
and do so at “ ‘tolerable administrative expense.’ ” Fisher I , 570 U. S., at 312 (quoting Wygant v. Jackson Bd. of Ed ., 476 U.S.
267 , 280, n. 6 (1986) (plurality opinion)). Narrow
tailoring does not mean perfect tailoring. The Court’s precedents
make clear that “[n]arrow tailoring does not require exhaustion of
every conceivable race-neutral alternative.” Grutter , 539
U. S., at 339. “Nor does it require a university to choose
between maintaining a reputation for excellence or fulfilling a
commitment to provide educational opportunities to members of all
racial groups.” Ibid. As the District Court found after considering
extensive expert testimony, SFFA’s proposed race-neutral
alternatives do not meet those criteria. UNC , 567
F. Supp. 3d, at 648. All of SFFA’s proposals are
methodologically flawed because they rest on “ ‘terribly
unrealistic’ ” assumptions about the applicant pools. Id. , at 643–645, 647. For example, as to one set of
proposals, SFFA’s expert “unrealistically assumed” that “all of the
top students in the candidate pools he use[d] would apply, be
admitted, and enroll.” Id. , at 647. In addition, some of
SFFA’s proposals force UNC to “abandon its holistic approach” to
college admissions, id. , at 643–645, n. 43, a result
“in deep tension with the goal of educational diversity as this
Court’s cases have defined it,” Fisher II , 579 U. S.,
at 386–387. Others are “largely impractical—not to mention
unprecedented—in higher education.” 567 F. Supp. 3d, at 647.
SFFA’s proposed top percentage plans,[ 25 ] for example, are based on a made-up and complicated
admissions index that requires UNC to “access . . .
real-time data for all high school students.” Ibid. UNC is
then supposed to use that index, which “would change every time any
student took a standardized test,” to rank students based on grades
and test scores. Ibid. One of SFFA’s top percentage plans
would even “nearly erase the Native American incoming class” at
UNC. Id ., at 646. The courts below correctly concluded that
UNC is not required to adopt SFFA’s unrealistic proposals to
satisfy strict scrutiny.[ 26 ]

															2

															Harvard’s admissions program is also narrowly
tailored under settled law. SFFA argues that Harvard’s program is
not narrowly tailored because the university “has workable
race-neutral alternatives,” “does not use race as a mere plus,” and
“engages in racial balancing.” Brief for Petitioner 75–83. As the
First Circuit concluded, there was “no error” in the District
Court’s findings on any of these issues. Harvard II , 980
F. 3d, at 204.[ 27 ]

															Like UNC, Harvard has already implemented many
of SFFA’s proposals, such as increasing recruitment efforts and
financial aid for low-income students. Id. , at 193. Also
like UNC, Harvard “carefully considered” other race-neutral ways to
achieve its diversity goals, but none of them are “workable.” Id. , at 193–194. SFFA’s argument before this Court is that
Harvard should adopt a plan designed by SFFA’s expert for purposes
of trial, which increases preferences for low-income applicants and
eliminates the use of race and legacy preferences. Id. , at
193; Brief for Petitioner 81. Under SFFA’s model, however, Black
representation would plummet by about 32%, and the admitted share
of applicants with high academic ratings would decrease, as would
the share with high extracurricular and athletic ratings. 980
F. 3d, at 194. SFFA’s proposal, echoed by Justice Gorsuch, ante , at 14–15, requires Harvard to “make sacrifices on
almost every dimension important to its admissions process,” 980
F. 3d, at 194, and forces it “to choose between a diverse
student body and a reputation for academic excellence,” Fisher
II , 579 U. S., at 385. Neither this Court’s precedents nor
common sense impose that type of burden on colleges and
universities.

															The courts below also properly rejected SFFA’s
argument that Harvard does not use race in the limited way this
Court’s precedents allow. The Court has explained that a university
can consider a student’s race in its admissions process so long as
that use is “contextual and does not operate as a mechanical plus
factor.” Id ., at 375. The Court has also repeatedly held
that race, when considered as one factor of many in the context of
holistic review, “can make a difference to whether an application
is accepted or rejected.” Ibid . After all, race-conscious
admissions seek to improve racial diversity. Race cannot, however,
be “ ‘decisive’ for virtually every minimally qualified
underrepresented minority applicant.” Gratz , 539 U. S.,
at 272 (quoting Bakke , 438 U. S., at 317).

															That is precisely how Harvard’s program
operates. In recent years, Harvard has received about 35,000
applications for a class with about 1,600 seats. 980 F. 3d, at
165. The admissions process is exceedingly competitive; it involves
six different application components. Those components include
interviews with alumni and admissions officers, as well as
consideration of a whole range of information, such as grades, test
scores, recommendation letters, and personal essays, by several
committees. Id. , at 165–166. Consistent with that
“individualized, holistic review process,” admissions officers may,
but need not, consider a student’s self-reported racial identity
when assigning overall ratings. Id. , at 166, 169, 180. Even
after so many layers of competitive review, Harvard typically ends
up with about 2,000 tentative admits, more students than the 1,600
or so that the university can admit. Id. , at 170. To choose
among those highly qualified candidates, Harvard considers “plus
factors,” which can help “tip an applicant into Harvard’s admitted
class.” Id. , at 170, 191. To diversify its class, Harvard
awards “tips” for a variety of reasons, including geographic
factors, socioeconomic status, ethnicity, and race. Ibid. There is “no evidence of any mechanical use of
tips.” Id. , at 180. Consistent with the Court’s precedents,
Harvard properly “considers race as part of a holistic review
process,” “values all types of diversity,” “does not consider race
exclusively,” and “does not award a fixed amount of points to
applicants because of their race.” Id. , at 190.[ 28 ] Indeed, Harvard’s admissions
process is so competitive and the use of race is so limited and
flexible that, as “SFFA’s own expert’s analysis” showed, “Harvard
rejects more than two-thirds of Hispanic applicants and slightly
less than half of all African-American applicants who are among the
top 10% most academically promising applicants.” Id. , at
191.

															The courts below correctly rejected SFFA’s view
that Harvard’s use of race is unconstitutional because it impacts
overall Hispanic and Black student representation by 45%. See Brief
for Petitioner 79. That 45% figure shows that eliminating the use
of race in admissions “would reduce African American representation
. . . from 14% to 6% and Hispanic representation from 14%
to 9%.” Harvard II , 980 F. 3d, at 180, 191. Such impact
of Harvard’s limited use of race on the makeup of the class is less
than this Court has previously upheld as narrowly tailored. In Grutter , for example, eliminating the use of race would have
reduced the underrepresented minority population by 72%, a much
greater effect. 539 U. S., at 320. And in Fisher II ,
the use of race helped increase Hispanic representation from 11% to
16.9% (a 54% increase) and African-American representation from
3.5% to 6.8% (a 94% increase). 579 U. S., at 384.[ 29 ]

															Finally, the courts below correctly concluded
that Harvard complies with this Court’s repeated admonition that
colleges and universities cannot define their diversity interest
“as ‘some specified percentage of a particular group merely because
of its race or ethnic origin.’ ” Fisher I , 570
U. S., at 311 (quoting Bakke , 438 U. S., at 307).
Harvard does not specify its diversity objectives in terms of
racial quotas, and “SFFA did not offer expert testimony to support
its racial balancing claim.” Harvard II , 980 F. 3d, at
180, 186–187. Harvard’s statistical evidence, by contrast, showed
that the admitted classes across racial groups varied considerably
year to year, a pattern “inconsistent with the imposition of a
racial quota or racial balancing.” Harvard I , 397
F. Supp. 3d, at 176–177; see Harvard II , 980
F. 3d, at 180, 188–189.

															Similarly, Harvard’s use of “one-pagers”
containing “a snapshot of various demographic characteristics of
Harvard’s applicant pool” during the admissions review process is
perfectly consistent with this Court’s precedents. Id. , at
170–171, 189. Consultation of these reports, with no “specific
number firmly in mind,” “does not transform [Harvard’s] program
into a quota.” Grutter , 539 U. S., at 335–336. Rather,
Harvard’s ongoing review complies with the Court’s command that
universities periodically review the necessity of the use of race
in their admissions programs. Id ., at 342; Fisher II ,
579 U. S., at 388.

															The Court ignores these careful findings and
concludes that Harvard engages in racial balancing because its
“focus on numbers is obvious.” Ante , at 31. Because SFFA
failed to offer an expert and to prove its claim below, the
majority is forced to reconstruct the record and conduct its own
factual analysis. It thus relies on a single chart from SFFA’s
brief that truncates relevant data in the record. Compare ibid. (citing Brief for Petitioner in No. 20–1199,
p. 23) with 4 App. in No. 20–1199, p. 1770. That chart
cannot displace the careful factfinding by the District Court,
which the First Circuit upheld on appeal under clear error review.
See Harvard II , 980 F. 3d, at 180–182, 188–189.

															In any event, the chart is misleading and
ignores “the broader context” of the underlying data that it
purports to summarize. Id. , at 188. As the First Circuit
concluded, what the data actually show is that admissions have
increased for all racial minorities, including Asian American
students, whose admissions numbers have “increased roughly
five-fold since 1980 and roughly two-fold since 1990.” Id. ,
at 180, 188. The data also show that the racial shares of admitted
applicants fluctuate more than the corresponding racial shares of
total applicants, which is “the opposite of what one would expect
if Harvard imposed a quota.” Id. , at 188. Even looking at
the Court’s truncated period for the classes of 2009 to 2018, “the
same pattern holds.” Ibid . The fact that Harvard’s racial
shares of admitted applicants “varies relatively little in absolute
terms for [those classes] is unsurprising and reflects the fact
that the racial makeup of Harvard’s applicant pool also varies very
little over this period.” Id. , at 188–189. Thus, properly
understood, the data show that Harvard “does not utilize quotas and
does not engage in racial balancing.” Id. , at 189.[ 30 ]

															III

															The Court concludes that Harvard’s and UNC’s
policies are unconstitutional because they serve objectives that
are insufficiently measurable, employ racial categories that are
imprecise and overbroad, rely on racial stereotypes and
disadvantage nonminority groups, and do not have an end point. Ante , at 21–34, 39. In reaching this conclusion, the Court
claims those supposed issues with respondents’ programs render the
programs insufficiently “narrow” under the strict scrutiny
framework that the Court’s precedents command. Ante , at
22 . In reality, however, “the Court today cuts through the
kudzu” and overrules its “higher-education precedents” following Bakke. Ante , at 22 (Gorsuch, J., concurring).

															There is no better evidence that the Court is
overruling the Court’s precedents than those precedents themselves.
“Every one of the arguments made by the majority can be found in
the dissenting opinions filed in [the] cases” the majority now
overrules. Payne v. Tennessee , 501 U.S.
808 , 846 (1991) (Marshall, J., dissenting); see, e.g. , Grutter , 539 U. S., at 354 (Thomas, J., concurring in
part and dissenting in part) (“Unlike the majority, I seek to
define with precision the interest being asserted”); Fisher
II , 579 U. S., at 389 (Thomas, J., dissenting)
(race-conscious admissions programs “res[t] on pernicious
assumptions about race”); id. , at 403 (Alito, J., joined by
Roberts, C. J., and Thomas, J., dissenting) (diversity
interests “are laudable goals, but they are not concrete or
precise”); id. , at 413 (race-conscious college admissions
plan “discriminates against Asian-American students”); id. ,
at 414 (race-conscious admissions plan is unconstitutional because
it “does not specify what it means to be ‘African-American,’
‘Hispanic,’ ‘Asian American,’ ‘Native American,’ or
‘White’ ”); id. , at 419 (race-conscious college
admissions policies rest on “pernicious stereotype[s]”).

															Lost arguments are not grounds to overrule a
case. When proponents of those arguments, greater now in number on
the Court, return to fight old battles anew, it betrays an
unrestrained disregard for precedent. It fosters the People’s
suspicions that “bedrock principles are founded . . . in
the proclivities of individuals” on this Court, not in the law, and
it degrades “the integrity of our constitutional system of
government.” Vasquez v. Hillery , 474 U.S.
254 , 265 (1986). Nowhere is the damage greater than in cases
like these that touch upon matters of representation and
institutional legitimacy.

															The Court offers no justification, much less “a
‘special justification,’ ” for its costly endeavor. Dobbs v. Jackson Women’s Health Organization , 597
U. S. ___, ___ (2022) (joint opinion of Breyer, Sotomayor, and
Kagan, JJ., dissenting) (slip op., at 31) (quoting Gamble v. United States , 587 U. S. ___, ___ (2019) (slip op., at
11)). Nor could it. There is no basis for overruling Bakke , Grutter , and Fisher . The Court’s precedents were
correctly decided, the opinion today is not workable and creates
serious equal protection problems, important reliance interests
favor respondents, and there are no legal or factual developments
favoring the Court’s reckless course. See 597 U. S., at ___
(joint opinion of Breyer, Sotomayor, and Kagan, JJ., dissenting)
(slip op., at 31); id. , at ___–___ (Kavanaugh, J.,
concurring) (slip op., at 6–7). At bottom, the six unelected
members of today’s majority upend the status quo based on their
policy preferences about what race in America should be like, but
is not, and their preferences for a veneer of colorblindness in a
society where race has always mattered and continues to matter in
fact and in law.

															A

															1

															A limited use of race in college admissions is
consistent with the Fourteenth Amendment and this Court’s broader
equal protection jurisprudence. The text and history of the
Fourteenth Amendment make clear that the Equal Protection Clause
permits race-conscious measures. See supra , at 2–9.
Consistent with that view, the Court has explicitly held that
“race-based action” is sometimes “within constitutional
constraints.” Adarand Constructors , Inc. v. Peña , 515 U.S.
200 , 237 (1995). The Court has thus upheld the use of race in a
variety of contexts. See, e.g. , Parents Involved in
Community Schools v. Seattle School Dist. No. 1 , 551 U.S.
701 , 737 (2007) (“[T]he obligation to disestablish a school
system segregated by law can include race-conscious
remedies—whether or not a court had issued an order to that
effect”); Johnson v. California , 543 U.S.
499 , 512 (2005) (use of race permissible to further prison’s
interest in “ ‘security’ ” and
“ ‘discipline’ ”); Cooper v. Harris , 581
U.S. 285, 291–293 (2017) (use of race permissible when drawing
voting districts in some circumstances).[ 31 ]

															Tellingly, in sharp contrast with today’s
decision, the Court has allowed the use of race when that use
burdens minority populations. In United States v. Brignoni-Ponce , 422 U.S.
873 (1975), for example, the Court held that it is
unconstitutional for border patrol agents to rely on a person’s
skin color as “a single factor” to justify a traffic stop based on
reasonable suspicion, but it remarked that “Mexican appearance”
could be “a relevant factor” out of many to justify such a stop “at
the border and its functional equivalents.” Id. , at 884–887;
see also id. , at 882 (recognizing that “the border” includes
entire metropolitan areas such as San Diego, El Paso, and the South
Texas Rio Grande Valley).[ 32 ] The Court thus facilitated racial profiling of
Latinos as a law enforcement tool and did not adopt a race-blind
rule. The Court later extended this reasoning to border patrol
agents selectively referring motorists for secondary inspection at
a checkpoint, concluding that “even if it be assumed that such
referrals are made largely on the basis of apparent Mexican
ancestry, [there is] no constitutional violation.” United
States v . Martinez-Fuerte , 428 U.S.
543 , 562–563 (1976) (footnote omitted).

															The result of today’s decision is that a
person’s skin color may play a role in assessing individualized
suspicion, but it cannot play a role in assessing that person’s
individualized contributions to a diverse learning environment.
That indefensible reading of the Constitution is not grounded in
law and subverts the Fourteenth Amendment’s guarantee of equal
protection.

															2

															The majority does not dispute that some uses
of race are constitutionally permissible. See ante , at 15.
Indeed, it agrees that a limited use of race is permissible in some
college admissions programs. In a footnote, the Court exempts
military academies from its ruling in light of “the potentially
distinct interests” they may present. Ante , at 22,
n. 4 . To the extent the Court suggests national
security interests are “distinct,” those interests cannot explain
the Court’s narrow exemption, as national security interests are
also implicated at civilian universities. See infra , at
64–65. The Court also attempts to justify its carveout based on the
fact that “[n]o military academy is a party to these cases.” Ante , at 22, n. 4. Yet the same can be said of many
other institutions that are not parties here, including the
religious universities supporting respondents, which the Court does
not similarly exempt from its sweeping opinion. See Brief for
Georgetown University et al. as Amici Curiae 18–29
(Georgetown Brief ) (Catholic colleges and universities noting
that they rely on the use of race in their holistic admissions to
further not just their academic goals, but also their religious
missions); see also Harvard II , 980 F. 3d, at 187,
n. 24 (“[S]chools that consider race are diverse on numerous
dimensions, including in terms of religious affiliation, location,
size, and courses of study offered”). The Court’s carveout only
highlights the arbitrariness of its decision and further proves
that the Fourteenth Amendment does not categorically prohibit the
use of race in college admissions.

															The concurring opinions also agree that the
Constitution tolerates some racial classifications. Justice Gorsuch
agrees with the majority’s conclusion that racial classifications
are constitutionally permissible if they advance a compelling
interest in a narrowly tailored way. Ante , at 23. Justice
Kavanaugh, too, agrees that the Constitution permits the use of
race if it survives strict scrutiny. Ante , at
2 . [ 33 ] Justice Thomas
offers an “originalist defense of the colorblind Constitution,” but
his historical analysis leads to the inevitable conclusion that the
Constitution is not, in fact, colorblind. Ante , at 2 . Like the majority opinion, Justice Thomas agrees that race can be
used to remedy past discrimination and “to equalize treatment
against a concrete baseline of government-imposed inequality.” Ante , at 18–21. He also argues that race can be used if it
satisfies strict scrutiny more broadly, and he considers compelling
interests those that prevent anarchy, curb violence, and segregate
prisoners. Ante , at 26. Thus, although Justice Thomas at
times suggests that the Constitution only permits “directly
remedial” measures that benefit “identified victims of
discrimination,” ante , at 20, he agrees that the
Constitution tolerates a much wider range of race-conscious
measures.

															In the end, when the Court speaks of a
“colorblind” Constitution, it cannot really mean it, for it is
faced with a body of law that recognizes that race-conscious
measures are permissible under the Equal Protection Clause.
Instead, what the Court actually lands on is an understanding of
the Constitution that is “colorblind” sometimes , when the
Court so chooses. Behind those choices lie the Court’s own value
judgments about what type of interests are sufficiently compelling
to justify race-conscious measures.

															Overruling decades of precedent, today’s newly
constituted Court singles out the limited use of race in holistic
college admissions. It strikes at the heart of Bakke , Grutter , and Fisher by holding that racial diversity
is an “inescapably imponderable” objective that cannot justify
race-conscious affirmative action, ante , at 24, even though
respondents’ objectives simply “mirror the ‘compelling interest’
this Court has approved” many times in the past. Fisher II ,
579 U. S., at 382; see, e.g. , UNC , 567
F. Supp. 3d, at 598 (“the [university’s admissions
policy] repeatedly cites Supreme Court precedent as
guideposts”).[ 34 ] At bottom,
without any new factual or legal justification, the Court overrides
its longstanding holding that diversity in higher education is of
compelling value.

															To avoid public accountability for its choice,
the Court seeks cover behind a unique measurability requirement of
its own creation. None of this Court’s precedents, however,
requires that a compelling interest meet some threshold level of
precision to be deemed sufficiently compelling. In fact, this Court
has recognized as compelling plenty of interests that are equally
or more amorphous, including the “intangible” interest in
preserving “public confidence in judicial integrity,” an interest
that “does not easily reduce to precise definition.” Williams-Yulee v. Florida Bar , 575 U.S. 433, 447, 454
(2015) (Roberts, C. J., for the Court); see also, e.g. , Ramirez v. Collier , 595 U. S. ___, ___ (2022)
(Roberts, C. J., for the Court) (slip op., at 18) (“[M]aintaining
solemnity and decorum in the execution chamber” is a “compelling”
interest); United States v. Alvarez , 567 U.S.
709 , 725 (2012) (plurality opinion) (“[P]rotecting the
integrity of the Medal of Honor” is a “compelling interes[t]”); Sable Communications of Cal. , Inc. v. FCC , 492 U.S.
115 , 126 (1989) (“[P]rotecting the physical and psychological
well-being of minors” is a “compelling interest”). Thus, although
the Members of this majority pay lip service to respondents’
“commendable” and “worthy” racial diversity goals, ante , at
23–24, they make a clear value judgment today: Racial integration
in higher education is not sufficiently important to them. “Today,
the proclivities of individuals rule.” Dobbs , 597
U. S., at ___ (dissenting opinion) (slip op., at 6).

															The majority offers no response to any of this.
Instead, it attacks a straw man, arguing that the Court’s cases
recognize that remedying the effects of “societal discrimination”
does not constitute a compelling interest. Ante , at 34–35.
Yet as the majority acknowledges, while Bakke rejected that
interest as insufficiently compelling, it upheld a limited use of
race in college admissions to promote the educational benefits that
flow from diversity. 438 U. S., at 311–315. It is that
narrower interest, which the Court has reaffirmed numerous times
since Bakke and as recently as 2016 in Fisher II , see supra , at 14–15, that the Court overrules today.

															B

															The Court’s precedents authorizing a limited
use of race in college admissions are not just workable—they have
been working. Lower courts have consistently applied them without
issue, as exemplified by the opinions below and SFFA’s and the
Court’s inability to identify any split of authority. Today, the
Court replaces this settled framework with a set of novel
restraints that create troubling equal protection problems and
share one common purpose: to make it impossible to use race in a
holistic way in college admissions, where it is much needed.

															1

															The Court argues that Harvard’s and UNC’s
programs must end because they unfairly disadvantage some racial
groups. According to the Court, college admissions are a “zero-sum”
game and respondents’ use of race unfairly “advantages”
underrepresented minority students “at the expense of ” other
students. Ante , at 27.

															That is not the role race plays in holistic
admissions. Consistent with the Court’s precedents, respondents’
holistic review policies consider race in a very limited way. Race
is only one factor out of many. That type of system allows Harvard
and UNC to assemble a diverse class on a multitude of dimensions.
Respondents’ policies allow them to select students with various
unique attributes, including talented athletes, artists,
scientists, and musicians. They also allow respondents to assemble
a class with diverse viewpoints, including students who have
different political ideologies and academic interests, who have
struggled with different types of disabilities, who are from
various socioeconomic backgrounds, who understand different ways of
life in various parts of the country, and—yes—students who
self-identify with various racial backgrounds and who can offer
different perspectives because of that identity.

															That type of multidimensional system benefits
all students. In fact, racial groups that are not underrepresented
tend to benefit disproportionately from such a system. Harvard’s
holistic system, for example, provides points to applicants who
qualify as “ALDC,” meaning “athletes, legacy applicants, applicants
on the Dean’s Interest List [primarily relatives of donors], and
children of faculty or staff.” Harvard II , 980 F. 3d,
at 171 (noting also that “SFFA does not challenge the admission of
this large group”). ALDC applicants are predominantly white: Around
67.8% are white, 11.4% are Asian American, 6% are Black, and 5.6%
are Latino. Ibid. By contrast, only 40.3% of non-ALDC
applicants are white, 28.3% are Asian American, 11% are Black, and
12.6% are Latino. Ibid. Although “ALDC applicants make up
less than 5% of applicants to Harvard,” they constitute “around 30%
of the applicants admitted each year.” Ibid. Similarly,
because of achievement gaps that result from entrenched racial
inequality in K–12 education, see infra , at 18–21, a heavy
emphasis on grades and standardized test scores disproportionately
disadvantages underrepresented racial minorities. Stated simply,
race is one small piece of a much larger admissions puzzle where
most of the pieces disfavor underrepresented racial minorities.
That is precisely why underrepresented racial minorities remain under represented. The Court’s suggestion that an already
advantaged racial group is “disadvantaged” because of a limited use
of race is a myth.

															The majority’s true objection appears to be that
a limited use of race in college admissions does, in fact, achieve
what it is designed to achieve: It helps equalize opportunity and
advances respondents’ objectives by increasing the number of
underrepresented racial minorities on college campuses,
particularly Black and Latino students. This is unacceptable, the
Court says, because racial groups that are not underrepresented
“would be admitted in greater numbers” without these policies. Ante , at 28. Reduced to its simplest terms, the Court’s
conclusion is that an increase in the representation of racial
minorities at institutions of higher learning that were
historically reserved for white Americans is an unfair and
repugnant outcome that offends the Equal Protection Clause. It
provides a license to discriminate against white Americans, the
Court says, which requires the courts and state actors to
“pic[k ] the right races to benefit.” Ante , at 38.

															Nothing in the Fourteenth Amendment or its
history supports the Court’s shocking proposition, which echoes
arguments made by opponents of Reconstruction-era laws and this
Court’s decision in Brown . Supra , at 2–17. In a
society where opportunity is dispensed along racial lines, racial
equality cannot be achieved without making room for
underrepresented groups that for far too long were denied admission
through the force of law, including at Harvard and UNC. Quite the
opposite: A racially integrated vision of society, in which
institutions reflect all sectors of the American public and where
“the sons of former slaves and the sons of former slave owners
[are] able to sit down together at the table of brotherhood,” is
precisely what the Equal Protection Clause commands. Martin Luther
King “I Have a Dream” Speech (Aug. 28, 1963). It is “essential if
the dream of one Nation, indivisible, is to be realized.” Grutter , 539 U. S., at 332.[ 35 ]

															By singling out race, the Court imposes a
special burden on racial minorities for whom race is a crucial
component of their identity. Holistic admissions require “truly
individualized consideration” of the whole person. Id. , at
334. Yet, “by foreclosing racial considerations, colorblindness
denies those who racially self-identify the full expression of
their identity” and treats “racial identity as inferior” among all
“other forms of social identity.” E. Boddie, The Indignities of
Colorblindness, 64 UCLA L. Rev. Discourse, 64, 67 (2016). The
Court’s approach thus turns the Fourteenth Amendment’s equal
protection guarantee on its head and creates an equal protection
problem of its own.

															There is no question that minority students will
bear the burden of today’s decision. Students of color testified at
trial that racial self-identification was an important component of
their application because without it they would not be able to
present a full version of themselves. For example, Rimel Mwamba, a
Black UNC alumna, testified that it was “really important” that UNC
see who she is “holistically and how the color of [her] skin and
the texture of [her] hair impacted [her] upbringing.” 2 App. in No.
21–707, p. 1033. Itzel Vasquez-Rodriguez, who identifies as
Mexican-American of Cora descent, testified that her ethnoracial
identity is a “core piece” of who she is and has impacted “every
experience” she has had, such that she could not explain her
“potential contributions to Harvard without any reference” to it. 2
App. in No. 20–1199, at 906, 908. Sally Chen, a Harvard alumna who
identifies as Chinese American, explained that being the child of
Chinese immigrants was “really fundamental to explaining who” she
is. Id. , at 968–969. Thang Diep, a Harvard alumnus,
testified that his Vietnamese identity was “such a big part” of
himself that he needed to discuss it in his application. Id. , at 949. And Sarah Cole, a Black Harvard alumna,
emphasized that “[t]o try to not see [her] race is to try to not
see [her] simply because there is no part of [her] experience, no
part of [her] journey, no part of [her] life that has been
untouched by [her] race.” Id. , at 932.

															In a single paragraph at the end of its lengthy
opinion, the Court suggests that “nothing” in today’s opinion
prohibits universities from considering a student’s essay that
explains “how race affected [that student’s] life.” Ante , at
39. This supposed recognition that universities can, in some
situations, consider race in application essays is nothing but an
attempt to put lipstick on a pig. The Court’s opinion circumscribes
universities’ ability to consider race in any form by meticulously
gutting respondents’ asserted diversity interests. See supra , at 41–43. Yet, because the Court cannot escape the
inevitable truth that race matters in students’ lives, it announces
a false promise to save face and appear attuned to reality. No one
is fooled.

															Further, the Court’s demand that a student’s
discussion of racial self-identification be tied to individual
qualities, such as “courage,” “leadership,” “unique ability,” and
“determination,” only serves to perpetuate the false narrative that
Harvard and UNC currently provide “preferences on the basis of race
alone.” Ante , at 28–29, 39; see also ante , at 28,
n. 6 (claiming without support that “race alone
. . . explains the admissions decisions for hundreds if
not thousands of applicants”). The Court’s precedents already
require that universities take race into account holistically, in a
limited way, and based on the type of “individualized” and
“flexible” assessment that the Court purports to favor. Grutter , 539 U. S., at 334; see Brief for Students and
Alumni of Harvard College as Amici Curiae 15–17 (Harvard
College Brief ) (describing how the dozens of application
files in the record “uniformly show that, in line with Harvard’s
‘whole-person’ admissions philosophy, Harvard’s admissions officers
engage in a highly nuanced assessment of each applicant’s
background and qualifications”). After extensive discovery and two
lengthy trials, neither SFFA nor the majority can point to a single
example of an underrepresented racial minority who was admitted to
Harvard or UNC on the basis of “race alone.”

															In the end, the Court merely imposes its
preferred college application format on the Nation, not acting as a
court of law applying precedent but taking on the role of college
administrators to decide what is better for society. The Court’s
course reflects its inability to recognize that racial identity
informs some students’ viewpoints and experiences in unique ways.
The Court goes as far as to claim that Bakke ’s recognition
that Black Americans can offer different perspectives than white
people amounts to a “stereotype.” Ante , at 29.

															It is not a stereotype to acknowledge the basic
truth that young people’s experiences are shaded by a societal
structure where race matters. Acknowledging that there is something
special about a student of color who graduates valedictorian from a
predominantly white school is not a stereotype. Nor is it a
stereotype to acknowledge that race imposes certain burdens on
students of color that it does not impose on white students. “For
generations, black and brown parents have given their children ‘the
talk’—instructing them never to run down the street; always keep
your hands where they can be seen; do not even think of talking
back to a stranger—all out of fear of how an officer with a gun
will react to them.” Utah v . Strieff , 579 U.S. 232,
254 (2016) (Sotomayor, J., dissenting). Those conversations occur
regardless of socioeconomic background or any other aspect of a
student’s self-identification. They occur because of race. As
Andrew Brennen, a UNC alumnus, testified, “running down the
neighborhood . . . people don’t see [him] as someone that
is relatively affluent; they see [him] as a black man.” 2 App. in
No. 21–707, at 951–952.

															The absence of racial diversity, by contrast,
actually contributes to stereotyping. “[D]iminishing the force of
such stereotypes is both a crucial part of [respondents’] mission,
and one that [they] cannot accomplish with only token numbers of
minority students.” Grutter , 539 U. S., at 333. When
there is an increase in underrepresented minority students on
campus, “racial stereotypes lose their force” because diversity
allows students to “learn there is no ‘minority viewpoint’ but
rather a variety of viewpoints among minority students.” Id. , at 319–320. By preventing respondents from achieving
their diversity objectives, it is the Court’s opinion that
facilitates stereotyping on American college campuses.

															To be clear, today’s decision leaves intact
holistic college admissions and recruitment efforts that seek to
enroll diverse classes without using racial classifications.
Universities should continue to use those tools as best they can to
recruit and admit students from different backgrounds based on all
the other factors the Court’s opinion does not, and cannot, touch.
Colleges and universities can continue to consider socioeconomic
diversity and to recruit and enroll students who are
first-generation college applicants or who speak multiple
languages, for example. Those factors are not “interchangeable”
with race. UNC , 567 F. Supp. 3d, at 643; see, e.g. , 2 App. in No. 21–707, at 975–976 (Laura Ornelas, a UNC
alumna, testifying that her Latina identity, socioeconomic status,
and first-generation college status are all important but different
“parts to getting a full picture” of who she is and how she “see[s]
the world”). At SFFA’s own urging, those efforts remain
constitutionally permissible. See Brief for Petitioner 81–86
(emphasizing “race-neutral” alternatives that Harvard and UNC
should implement, such as those that focus on socioeconomic and
geographic diversity, percentage plans, plans that increase
community college transfers, and plans that develop partnerships
with disadvantaged high schools); see also ante , at 51, 53,
55–56 (Thomas, J., concurring) (arguing universities can consider
“[r]ace-neutral policies” similar to those adopted in States such
as California and Michigan, and that universities can consider
“status as a first-generation college applicant,” “financial
means,” and “generational inheritance or otherwise”); ante ,
at 8 (Kavanaugh, J., concurring) (citing SFFA’s briefs and
concluding that universities can use “race-neutral” means); ante , at 14, n. 4 (Gorsuch, J., concurring)
(“recount[ing] what SFFA has argued every step of the way” as to
“race-neutral tools”).

															The Court today also does not adopt SFFA’s
suggestion that college admissions should be a function of academic
metrics alone. Using class rank or standardized test scores as the
only admissions criteria would severely undermine multidimensional
diversity in higher education. Such a system “would exclude the
star athlete or musician whose grades suffered because of daily
practices and training. It would exclude a talented young biologist
who struggled to maintain above-average grades in humanities
classes. And it would exclude a student whose freshman-year grades
were poor because of a family crisis but who got herself back on
track in her last three years of school, only to find herself just
outside of the top decile of her class.” Fisher II , 579
U. S., at 386. A myopic focus on academic ratings “does not
lead to a diverse student body.” Ibid. [ 36 ]

															2

															As noted above, this Court suggests that the
use of race in college admissions is unworkable because
respondents’ objectives are not sufficiently “measurable,”
“focused,” “concrete,” and “coherent.” Ante , at 23, 26, 39.
How much more precision is required or how universities are
supposed to meet the Court’s measurability requirement, the Court’s
opinion does not say. That is exactly the point. The Court is not
interested in crafting a workable framework that promotes racial
diversity on college campuses. Instead, it announces a requirement
designed to ensure all race-conscious plans fail. Any increased
level of precision runs the risk of violating the Court’s
admonition that colleges and universities operate their
race-conscious admissions policies with no “ ‘specified
percentage[s]’ ” and no “specific number[s] firmly in mind.” Grutter , 539 U. S., at 324, 335. Thus, the majority’s
holding puts schools in an untenable position. It creates a legal
framework where race-conscious plans must be measured with
precision but also must not be measured with
precision. That holding is not meant to infuse clarity into the
strict scrutiny framework; it is designed to render strict scrutiny
“ ‘fatal in fact.’ ” Id ., at 326 (quoting Adarand Constructors , Inc. , 515 U. S., at 237).
Indeed, the Court gives the game away when it holds that, to the
extent respondents are actually measuring their diversity
objectives with any level of specificity (for example, with a
“focus on numbers” or specific “numerical commitment”), their plans
are unconstitutional. Ante , at 30–31; see also ante ,
at 29 (Thomas, J., concurring) (“I highly doubt any [university]
will be able to” show a “measurable state interest”).

															3

															The Court also holds that Harvard’s and UNC’s
race-conscious programs are unconstitutional because they rely on
racial categories that are “imprecise,” “opaque,” and “arbitrary.” Ante , at 25. To start, the racial categories that the Court
finds troubling resemble those used across the Federal Government
for data collection, compliance reporting, and program
administration purposes, including, for example, by the U. S.
Census Bureau. See, e.g. , 62 Fed. Reg. 58786–58790 (1997).
Surely, not all “ ‘federal grant-in-aid benefits, drafting of
legislation, urban and regional planning, business planning, and
academic and social studies’ ” that flow from census data
collection, Department of Commerce v. New York , 588
U. S. ___, ___ (2019) (slip op., at 2), are constitutionally
suspect.

															The majority presumes that it knows better and
appoints itself as an expert on data collection methods, calling
for a higher level of granularity to fix a supposed problem of
overinclusiveness and underinclusiveness. Yet it does not identify
a single instance where respondents’ methodology has prevented any
student from reporting their race with the level of detail they
preferred. The record shows that it is up to students to choose
whether to identify as one, multiple, or none of these categories.
See Harvard I , 397 F. Supp. 3d, at 137; UNC , 567
F. Supp. 3d, at 596. To the extent students need to convey
additional information, students can select subcategories or
provide more detail in their personal statements or essays. See Harvard I , 397 F. Supp. 3d, at 137. Students often do
so. See, e.g. , 2 App. in No. 20–1199, at 906–907 (student
respondent discussing her Latina identity on her application); id. , at 949 (student respondent testifying he “wrote about
[his] Vietnamese identity on [his] application”). Notwithstanding
this Court’s confusion about racial self-identification, neither
students nor universities are confused. There is no evidence that
the racial categories that respondents use are unworkable.[ 37 ]

															4

															Cherry-picking language from Grutter ,
the Court also holds that Harvard’s and UNC’s race-conscious
programs are unconstitutional because they do not have a specific
expiration date. Ante , at 30–34. This new durational
requirement is also not grounded in law, facts, or common sense. Grutter simply announced a general “expect[ation]” that “the
use of racial preferences [would] no longer be necessary” in the
future. 539 U. S., at 343. As even SFFA acknowledges, those
remarks were nothing but aspirational statements by the Grutter Court. Tr. of Oral Arg. in No. 21–707,
p. 56.

															Yet this Court suggests that everyone, including
the Court itself, has been misreading Grutter for 20 years. Grutter , according to the majority, requires that
universities identify a specific “end point” for the use of race. Ante , at 33 . Justice Kavanaugh, for his part,
suggests that Grutter itself automatically expires in 25
years, after either “the college class of 2028” or “the college
class of 2032.” Ante , at 7, n. 1. A faithful reading of
this Court’s precedents reveals that Grutter held nothing of
the sort.

															True, Grutter referred to “25 years,” but
that arbitrary number simply reflected the time that had elapsed
since the Court “first approved the use of race” in college
admissions in Bakke . Grutter , 539 U. S., at 343.
It is also true that Grutter remarked that “race-conscious
admissions policies must be limited in time,” but it did not do so
in a vaccum, as the Court suggests. Id ., at 342. Rather than
impose a fixed expiration date, the Court tasked universities with
the responsibility of periodically assessing whether their
race-conscious programs “are still necessary.” Ibid. Grutter offered as examples sunset provisions, periodic reviews, and
experimenting with “race-neutral alternatives as they develop.” Ibid. That is precisely how this Court has previously
interpreted Grutter ’s command. See Fisher II , 579
U. S., at 388 (“It is the University’s ongoing obligation to
engage in constant deliberation and continued reflection regarding
its admissions policies”). Grutter ’s requirement that universities
engage in periodic reviews so the use of race can end “as soon as
practicable” is well grounded in the need to ensure that race is
“employed no more broadly than the interest demands.” 539
U. S., at 343. That is, it is grounded in strict scrutiny. By
contrast, the Court’s holding is based on the fiction that racial
inequality has a predictable cutoff date. Equality is an ongoing
project in a society where racial inequality persists. See supra , at 17–25. A temporal requirement that rests on the
fantasy that racial inequality will end at a predictable hour is
illogical and unworkable. There is a sound reason why this Court’s
precedents have never imposed the majority’s strict deadline:
Institutions cannot predict the future. Speculating about a day
when consideration of race will become unnecessary is arbitrary at
best and frivolous at worst. There is no constitutional duty to
engage in that type of shallow guesswork . [ 38 ]

															Harvard and UNC engage in the ongoing review
that the Court’s precedents demand. They “use [their] data to
scrutinize the fairness of [their] admissions program[s]; to assess
whether changing demographics have undermined the need for a
race-conscious policy; and to identify the effects, both positive
and negative, of the affirmative-action measures [they] dee[m]
necessary.” Fisher II , 579 U. S., at 388. The Court
holds, however, that respondents’ attention to numbers amounts to
unconstitutional racial balancing. Ante , at 30–32. But
“ ‘[s]ome attention to numbers’ ” is both necessary and
permissible. Grutter , 539 U. S., at 336 (quoting Bakke , 438 U. S., at 323). Universities cannot blindly
operate their limited race-conscious programs without regard for
any quantitative information. “Increasing minority enrollment [is]
instrumental to th[e] educational benefits” that respondents seek
to achieve, Fisher II , 579 U. S., at 381, and
statistics, data, and numbers “have some value as a gauge of
[respondents’] ability to enroll students who can offer
underrepresented perspectives.” Id. , at 383–384. By removing
universities’ ability to assess the success of their programs, the
Court obstructs these institutions’ ability to meet their diversity
goals.

															5

															Justice Thomas, for his part, offers a
multitude of arguments for why race-conscious college admissions
policies supposedly “burden” racial minorities. Ante , at 39.
None of them has any merit.

															He first renews his argument that the use of
race in holistic admissions leads to the “inevitable”
“underperformance” by Black and Latino students at elite
universities “because they are less academically prepared than the
white and Asian students with whom they must compete.” Fisher
I , 570 U. S., at 332 (concurring opinion). Justice Thomas
speaks only for himself. The Court previously declined to adopt
this so-called “mismatch” hypothesis for good reason: It was
debunked long ago. The decades-old “studies” advanced by the
handful of authors upon whom Justice Thomas relies, ante , at
40–41, have “major methodological flaws,” are based on unreliable
data, and do not “meet the basic tenets of rigorous social science
research.” Brief for Empirical Scholars as Amici Curiae 3,
9–25. By contrast, “[m]any social scientists have studied the
impact of elite educational institutions on student outcomes, and
have found, among other things, that attending a more selective
school is associated with higher graduation rates and higher
earnings for [underrepresented minority] students—conclusions
directly contrary to mismatch.” Id. , at 7–9 (collecting
studies). This extensive body of research is supported by the most
obvious data point available to this institution today: The three
Justices of color on this Court graduated from elite universities
and law schools with race-conscious admissions programs, and
achieved successful legal careers, despite having different
educational backgrounds than their peers. A discredited hypothesis
that the Court previously rejected is no reason to overrule
precedent.

															Justice Thomas claims that the weight of this
evidence is overcome by a single more recent article published in
2016. Ante , at 41, n. 8. That article, however,
explains that studies supporting the mismatch hypothesis “yield
misleading conclusions,” “overstate the amount of mismatch,”
“preclude one from drawing any concrete conclusions,” and rely on
methodologically flawed assumptions that “lea[d] to an
upwardly-biased estimate of mismatch.” P. Arcidiacono & M.
Lovenheim, Affirmative Action and the Quality-Fit Trade-off, 54 J.
Econ. Lit. 3, 17, 20 (2016); see id. , at 6 (“economists
should be very skeptical of the mismatch hypothesis”). Notably,
this refutation of the mismatch theory was coauthored by one of
SFFA’s experts, as Justice Thomas seems to recognize.

															Citing nothing but his own long-held belief,
Justice Thomas also equates affirmative action in higher education
with segregation, arguing that “racial preferences in college
admissions ‘stamp [Black and Latino students] with a badge of
inferiority.’ ” Ante , at 41 (quoting Adarand ,
515 U. S., at 241 (Thomas, J., concurring in part and
concurring in judgment)). Studies disprove this sentiment, which
echoes “tropes of stigma” that “were employed to oppose
Reconstruction policies.” A. Onwuachi-Willig, E. Houh, & M.
Campbell, Cracking the Egg: Which Came First—Stigma or Affirmative
Action? 96 Cal. L. Rev. 1299, 1323 (2008); see, e.g. , id. , at 1343–1344 (study of seven law schools showing that
stigma results from “racial stereotypes that have attached
historically to different groups, regardless of affirmative
action’s existence”). Indeed, equating state-sponsored segregation
with race-conscious admissions policies that promote racial
integration trivializes the harms of segregation and offends Brown ’s transformative legacy. School segregation “has a
detrimental effect” on Black students by “denoting the inferiority”
of “their status in the community” and by “ ‘depriv[ing] them
of some of the benefits they would receive in a racial[ly]
integrated school system.’ ” 347 U. S., at 494. In sharp
contrast, race-conscious college admissions ensure that higher
education is “visibly open to” and “inclusive of talented and
qualified individuals of every race and ethnicity.” Grutter ,
539 U. S., at 332. These two uses of race are not created
equal. They are not “equally objectionable.” Id. , at
327.

															Relatedly, Justice Thomas suggests that
race-conscious college admissions policies harm racial minorities
by increasing affinity-based activities on college campuses. Ante , at 46. Not only is there no evidence of a causal
connection between the use of race in college admissions and the
supposed rise of those activities, but Justice Thomas points to no
evidence that affinity groups cause any harm. Affinity-based
activities actually help racial minorities improve their visibility
on college campuses and “decreas[e] racial stigma and vulnerability
to stereotypes” caused by “conditions of racial isolation” and
“tokenization.” U. Jayakumar, Why Are All Black Students Still Sitting Together in the Proverbial College Cafeteria?,
Higher Education Research Institute at UCLA (Oct. 2015); see also
Brief for Respondent-Students in No. 21–707, p. 42 (collecting
student testimony demonstrating that “affinity groups beget
important academic and social benefits” for racial minorities); 4
App. in No. 20–1199, at 1591 (Harvard Working Group on Diversity
and Inclusion Report) (noting that concerns “that culturally
specific spaces or affinity-themed housing will isolate” student
minorities are misguided because those spaces allow students “to
come together . . . to deal with intellectual, emotional,
and social challenges”).

															Citing no evidence, Justice Thomas also suggests
that race-conscious admissions programs discriminate against Asian
American students. Ante , at 43–44. It is true that SFFA
“allege[d]” that Harvard discriminates against Asian American
students. Ante , at 43 . Specifically, SFFA argued that
Harvard discriminates against Asian American applicants vis-à-vis
white applicants through the use of the personal rating, an
allegedly “highly subjective” component of the admissions process
that is “susceptible to stereotyping and bias.” Harvard II ,
980 F. 3d, at 196; see Brief for Professors of Economics as Amici Curiae 24. It is also true, however, that there was a
lengthy trial to test those allegations, which SFFA lost. Justice
Thomas points to no legal or factual error below, precisely because
there is none.

															To begin, this part of SFFA’s discrimination
claim does not even fall under the strict scrutiny framework in Grutter and its progeny, which concerns the use of racial
classifications. The personal rating is a facially
race- neutral component of Harvard’s admissions
policy.[ 39 ] Therefore, even
assuming for the sake of argument that Harvard engages in racial
discrimination through the personal rating, there is no connection
between that rating and the remedy that SFFA sought and that the
majority grants today: ending the limited use of race in the entire
admissions process. In any event, after assessing the credibility
of fact witnesses and considering extensive documentary evidence
and expert testimony, the courts below found “no discrimination
against Asian Americans.” Harvard II , 980 F. 3d, at
195, n. 34, 202; see id. , at 195–204.

															There is no question that the Asian American
community continues to struggle against potent and dehumanizing
stereotypes in our society. It is precisely because racial
discrimination persists in our society, however, that the use of
race in college admissions to achieve racially diverse classes is
critical to improving cross-racial understanding and breaking down
racial stereotypes. See supra , at 16. Indeed, the record
shows that some Asian American applicants are actually “advantaged
by Harvard’s use of race,” Harvard II , 980 F. 3d, at
191, and “eliminating consideration of race would significantly
disadvantage at least some Asian American applicants,” Harvard
I , 397 F. Supp. 3d, at 194. Race-conscious holistic
admissions that contextualize the racial identity of each
individual allow Asian American applicants “who would be less
likely to be admitted without a comprehensive understanding of
their background” to explain “the value of their unique background,
heritage, and perspective.” Id. , at 195. Because the Asian
American community is not a monolith, race-conscious holistic
admissions allow colleges and universities to “consider the vast
differences within [that] community.” AALDEF Brief 4–14. Harvard’s
application files show that race-conscious holistic admissions
allow Harvard to “valu[e ] the diversity of Asian American
applicants’ experiences.” Harvard College Brief 23.

															Moreover, the admission rates of Asian Americans
at institutions with race-conscious admissions policies, including
at Harvard, have “been steadily increasing for decades.” Harvard
II , 980 F. 3d, at 198.[ 40 ] By contrast, Asian American enrollment declined at
elite universities that are prohibited by state law from
considering race. See AALDEF Brief 27; Brief for 25 Diverse,
California-Focused Bar Associations et al. as Amici
Curiae 19–20, 23. At bottom, race-conscious admissions benefit
all students, including racial minorities. That includes the Asian
American community.

															Finally, Justice Thomas belies reality by
suggesting that “experts and elites” with views similar to those
“that motivated Dred Scott and Plessy ” are the ones
who support race conscious admissions. Ante , at 39. The
plethora of young students of color who testified in favor of
race-consciousness proves otherwise. See supra , at 46–47;
see also infra , at 64–67 (discussing numerous amici from many sectors of society supporting respondents’ policies). Not
a single student—let alone any racial minority—affected by the
Court’s decision testified in favor of SFFA in these cases.

															C

															In its “radical claim to power,” the Court
does not even acknowledge the important reliance interests that
this Court’s precedents have generated. Dobbs , 597
U. S., at ___ (dissenting opinion) (slip op., at 53).
Significant rights and expectations will be affected by today’s
decision nonetheless. Those interests supply “added force” in favor
of stare decisis . Hilton v. South Carolina Public
Railways Comm’n , 502 U.S.
197 , 202 (1991).

															Students of all backgrounds have formed settled
expectations that universities with race-conscious policies “will
provide diverse, cross-cultural experiences that will better
prepare them to excel in our increasingly diverse world.” Brief for
Respondent-Students in No. 21–707, at 45; see Harvard College Brief
6–11 (collecting student testimony).

															Respondents and other colleges and universities
with race-conscious admissions programs similarly have concrete
reliance interests because they have spent significant resources in
an effort to comply with this Court’s precedents. “Universities
have designed courses that draw on the benefits of a diverse
student body,” “hired faculty whose research is enriched by the
diversity of the student body,” and “promoted their learning
environments to prospective students who have enrolled based on the
understanding that they could obtain the benefits of diversity of
all kinds.” Brief for Respondent in No. 20–1199, at 40–41 (internal
quotation marks omitted). Universities also have “expended vast
financial and other resources” in “training thousands of
application readers on how to faithfully apply this Court’s
guardrails on the use of race in admissions.” Brief for University
Respondents in No. 21–707, p. 44. Yet today’s decision
abruptly forces them “to fundamentally alter their admissions
practices.” Id. , at 45; see also Brief for Massachusetts
Institute of Technology et al. as Amici Curiae 25–26;
Brief for Amherst College et al. as Amici Curiae 23–25
(Amherst Brief ). As to Title VI in particular, colleges and
universities have relied on Grutter for decades in accepting
federal funds. See Brief for United States as Amicus Curiae in No. 20–1199, p. 25 (United States Brief ); Georgetown
Brief 16.

															The Court’s failure to weigh these reliance
interests “is a stunning indictment of its decision.” Dobbs ,
597 U. S., at ___ (dissenting opinion) (slip op., at 55).

															IV

															The use of race in college admissions has had
profound consequences by increasing the enrollment of
underrepresented minorities on college campuses. This Court
presupposes that segregation is a sin of the past and that
race-conscious college admissions have played no role in the
progress society has made. The fact that affirmative action in
higher education “has worked and is continuing to work” is no
reason to abandon the practice today. Shelby County v .
Holder , 570 U.S.
529 , 590 (2013) (Ginsburg, J., dissenting) (“[It] is like
throwing away your umbrella in a rainstorm because you are not
getting wet”).

															Experience teaches that the consequences of
today’s decision will be destructive. The two lengthy trials below
simply confirmed what we already knew: Superficial colorblindness
in a society that systematically segregates opportunity will cause
a sharp decline in the rates at which underrepresented minority
students enroll in our Nation’s colleges and universities, turning
the clock back and undoing the slow yet significant progress
already achieved. See Schuette , 572 U. S., at 384–390
(Sotomayor, J., dissenting) (collecting statistics from States that
have banned the use of race in college admissions); see also
Amherst Brief 13 (noting that eliminating the use of race in
college admissions will take Black student enrollment at elite
universities back to levels this country saw in the early
1960s).

															After California amended its State Constitution
to prohibit race-conscious college admissions in 1996, for example,
“freshmen enrollees from underrepresented minority groups dropped
precipitously” in California public universities. Brief for
President and Chancellors of the University of California as Amici Curiae 4, 9, 11–13. The decline was particularly
devastating at California’s most selective campuses, where the
rates of admission of underrepresented groups “dropped by 50% or
more.” Id. , at 4, 12. At the University of California,
Berkeley, a top public university not just in California but also
nationally, the percentage of Black students in the freshman class
dropped from 6.32% in 1995 to 3.37% in 1998. Id. , at 12–13.
Latino representation similarly dropped from 15.57% to 7.28% during
that period at Berkeley, even though Latinos represented 31% of
California public high school graduates. Id. , at 13. To this
day, the student population at California universities still
“reflect[s] a persistent inability to increase opportunities” for
all racial groups. Id. , at 23. For example, as of 2019, the
proportion of Black freshmen at Berkeley was 2.76%, well below the
pre-constitutional amendment level in 1996, which was 6.32%. Ibid . Latinos composed about 15% of freshmen students at
Berkeley in 2019, despite making up 52% of all California public
high school graduates. Id. , at 24; see also Brief for
University of Michigan as Amicus Curiae 21–24 (noting
similar trends at the University of Michigan from 2006, the last
admissions cycle before Michigan’s ban on race-conscious admissions
took effect, through present); id. , at 24–25 (explaining
that the university’s “experience is largely consistent with other
schools that do not consider race as a factor in admissions,”
including, for example, the University of Oklahoma’s most
prestigious campus).

															The costly result of today’s decision harms not
just respondents and students but also our institutions and
democratic society more broadly. Dozens of amici from nearly
every sector of society agree that the absence of race-conscious
college admissions will decrease the pipeline of racially diverse
college graduates to crucial professions. Those amici include the United States, which emphasizes the need for diversity
in the Nation’s military, see United States Brief 12–18, and in the
federal workforce more generally, id. , at 19–20 (discussing
various federal agencies, including the Federal Bureau of
Investigation and the Office of the Director of National
Intelligence). The United States explains that “the Nation’s
military strength and readiness depend on a pipeline of officers
who are both highly qualified and racially diverse—and who have
been educated in diverse environments that prepare them to lead
increasingly diverse forces.” Id. , at 12. That is true not
just at the military service academies but “at civilian
universities, including Harvard, that host Reserve Officers’
Training Corps (ROTC) programs and educate students who go on to
become officers.” Ibid. Top former military leaders agree.
See Brief for Adm. Charles S. Abbot et al. as Amici
Curiae 3 (noting that in amici ’s “professional judgment,
the status quo—which permits service academies and civilian
universities to consider racial diversity as one factor among many
in their admissions practices—is essential to the continued
vitality of the U. S. military”).

															Indeed, history teaches that racial diversity is
a national security imperative. During the Vietnam War, for
example, lack of racial diversity “threatened the integrity and
performance of the Nation’s military” because it fueled
“perceptions of racial/ethnic minorities serving as ‘cannon fodder’
for white military leaders.” Military Leadership Diversity Comm’n,
From Representation to Inclusion: Diversity Leadership for the
21st-Century Military xvi, 15 (2011); see also, e.g. , R.
Stillman, Racial Unrest in the Military: The Challenge and the
Response, 34 Pub. Admin. Rev. 221, 221–222 (1974) (discussing other
examples of racial unrest). Based on “lessons from decades of
battlefield experience,” it has been the “longstanding military
judgment” across administrations that racial diversity “is
essential to achieving a mission-ready” military and to ensuring
the Nation’s “ability to compete, deter, and win in today’s
increasingly complex global security environment.” United States
Brief 13 (internal quotation marks omitted). The majority
recognizes the compelling need for diversity in the military and
the national security implications at stake, see ante , at
22, n. 4, but it ends race-conscious college admissions at
civilian universities implicating those interests anyway. Amici also tell the Court that
race-conscious college admissions are critical for providing
equitable and effective public services. State and local
governments require public servants educated in diverse
environments who can “identify, understand, and respond to
perspectives” in “our increasingly diverse communities.” Brief for
Southern Governors as Amici Curiae 5–8 (Southern Governors
Brief ). Likewise, increasing the number of students from
underrepresented backgrounds who join “the ranks of medical
professionals” improves “healthcare access and health outcomes in
medically underserved communities.” Brief for Massachusetts
et al. as Amici Curiae 10; see Brief for Association of
American Medical Colleges et al. as Amici Curiae 5
(noting also that all physicians become better practitioners
when they learn in a racially diverse environment). So too, greater
diversity within the teacher workforce improves student academic
achievement in primary public schools. Brief for Massachusetts
et al. as Amici Curiae 15–17; see Brief for American
Federation of Teachers as Amicus Curiae 8 (“[T]here are few
professions with broader social impact than teaching”). A diverse
pipeline of college graduates also ensures a diverse legal
profession, which demonstrates that “the justice system serves the
public in a fair and inclusive manner.” Brief for American Bar
Association as Amicus Curiae 18; see also Brief for Law Firm
Antiracism Alliance as Amicus Curiae 1, 6 (more than 300 law
firms in all 50 States supporting race-conscious college admissions
in light of the “influence and power” that lawyers wield “in the
American system of government”).

															Examples of other industries and professions
that benefit from race-conscious college admissions abound.
American businesses emphasize that a diverse workforce improves
business performance, better serves a diverse consumer marketplace,
and strengthens the overall American economy. Brief for Major
American Business Enterprises as Amici Curiae 5–27. A
diverse pipeline of college graduates also improves research by
reducing bias and increasing group collaboration. Brief for
Individual Scientists as Amici Curiae 13–14. It creates a
more equitable and inclusive media industry that communicates
diverse viewpoints and perspectives. Brief for Multicultural Media,
Telecom and Internet Council, Inc., et al. as Amici
Curiae 6. It also drives innovation in an increasingly global
science and technology industry. Brief for Applied Materials, Inc.,
et al. as Amici Curiae 11–20.

															Today’s decision further entrenches racial
inequality by making these pipelines to leadership roles less
diverse. A college degree, particularly from an elite institution,
carries with it the benefit of powerful networks and the
opportunity for socioeconomic mobility. Admission to college is
therefore often the entry ticket to top jobs in workplaces where
important decisions are made. The overwhelming majority of Members
of Congress have a college degree.[ 41 ] So do most business leaders.[ 42 ] Indeed, many state and local leaders in
North Carolina attended college in the UNC system. See Southern
Governors Brief 8. More than half of judges on the North Carolina
Supreme Court and Court of Appeals graduated from the UNC system,
for example, and nearly a third of the Governor’s cabinet attended
UNC. Ibid. A less diverse pipeline to these top jobs
accumulates wealth and power unequally across racial lines,
exacerbating racial disparities in a society that already dispenses
prestige and privilege based on race.

															The Court ignores the dangerous consequences of
an America where its leadership does not reflect the diversity of
the People. A system of government that visibly lacks a path to
leadership open to every race cannot withstand scrutiny “in the
eyes of the citizenry.” Grutter , 539 U. S., at 332.
“[G]ross disparity in representation” leads the public to wonder
whether they can ever belong in our Nation’s institutions,
including this one, and whether those institutions work for them.
Tr. of Oral Arg. in No. 21–707, p. 171 (“The Court is going to
hear from 27 advocates in this sitting of the oral argument
calendar, and two are women, even though women today are 50 percent
or more of law school graduates. And I think it would be reasonable
for a woman to look at that and wonder, is that a path that’s open
to me, to be a Supreme Court advocate?” (remarks of Solicitor
General Elizabeth Prelogar)).[ 43 ]

															By ending race-conscious college admissions,
this Court closes the door of opportunity that the Court’s
precedents helped open to young students of every race. It creates
a leadership pipeline that is less diverse than our increasingly
diverse society, reserving “positions of influence, affluence, and
prestige in America” for a predominantly white pool of college
graduates. Bakke , 438 U. S., at 401 (opinion of
Marshall, J.). At its core, today’s decision exacerbates
segregation and diminishes the inclusivity of our Nation’s
institutions in service of superficial neutrality that promotes
indifference to inequality and ignores the reality of race.

															*  *  *

															True equality of educational opportunity in
racially diverse schools is an essential component of the fabric of
our democratic society. It is an interest of the highest order and
a foundational requirement for the promotion of equal protection
under the law. Brown recognized that passive race neutrality
was inadequate to achieve the constitutional guarantee of racial
equality in a Nation where the effects of segregation persist. In a
society where race continues to matter, there is no constitutional
requirement that institutions attempting to remedy their legacies
of racial exclusion must operate with a blindfold.

															Today, this Court overrules decades of
precedent and imposes a superficial rule of race blindness on the
Nation. The devastating impact of this decision cannot be
overstated. The majority’s vision of race neutrality will entrench
racial segregation in higher education because racial inequality
will persist so long as it is ignored.

															Notwithstanding this Court’s actions, however,
society’s progress toward equality cannot be permanently halted.
Diversity is now a fundamental American value, housed in our varied
and multicultural American community that only continues to grow.
The pursuit of racial diversity will go on. Although the Court has
stripped out almost all uses of race in college admissions,
universities can and should continue to use all available tools to
meet society’s needs for diversity in education. Despite the
Court’s unjustified exercise of power, the opinion today will serve
only to highlight the Court’s own impotence in the face of an
America whose cries for equality resound. As has been the case
before in the history of American democracy, “the arc of the moral
universe” will bend toward racial justice despite the Court’s
efforts today to impede its progress. Martin Luther King “Our God
is Marching On!” Speech (Mar. 25, 1965). Notes 1 *Justice Jackson did not
participate in the consideration or decision of the case in No.
20–1199 and joins this opinion only as it applies to the case in
No. 21–707. 2 As Justice Thomas
acknowledges, the HBCUs, including Howard University, account for a
high proportion of Black college graduates. Ante , at 56–57
(concurring opinion). That reality cannot be divorced from the
history of anti-Black discrimination that gave rise to the HBCUs
and the targeted work of the Freedmen’s Bureau to help Black people
obtain a higher education. See HBCU Brief 13–15. 3 By the time the
Fourteenth Amendment was ratified 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 Scholars as Amici
Curiae 9 (“The herculean efforts of Black reformers, activists,
and lawmakers during the Reconstruction Era forever transformed
State constitutional law; today, thanks to the impact of their
work, every State constitution contains language guaranteeing the
right to public education”). 4 The majority suggests
that “it required a Second Founding to undo” programs that help
ensure racial integration and therefore greater equality in
education. Ante , at 38 . At the risk of stating the
blindingly obvious, and as Brown recognized, the Fourteenth
Amendment was intended to undo the effects of a world where laws
systematically subordinated Black people and created a racial caste
system. Cf. Dred Scott v. Sandford , 19 How. 393, 405
(1857). Brown and its progeny recognized the need to take
affirmative, race-conscious steps to eliminate that
system. 5 See GAO, Report to the
Chairman, Committee on Education and Labor, House of
Representatives, K–12 Education: Student Population Has
Significantly Diversified, but Many Schools Remain Divided Along
Racial, Ethnic, and Economic Lines 13 (GAO–22–104737, June 2022)
(hereinafter GAO Report). 6 G. Orfield, E.
Frankenberg, & J. Ayscue, Harming Our Common Future: America’s
Segregated Schools 65 Years After Brown 21
(2019). 7 E.g. , Bennett v. Madison Cty. Bd. of Ed. , No. 5:63–CV–613
(ND Ala., July 5, 2022), ECF Doc. 199, p. 19; id. , at 6
(requiring school district to ensure “the participation of black
students” in advanced courses). 8 GAO Report 6, 13 (noting
that 80% of predominantly Black and Latino schools have at least
75% of their students eligible for free or reduced-price lunch—a
proxy for poverty). 9 See also L. Clark, Barbed
Wire Fences: The Structural Violence of Education Law, 89 U. Chi.
L. Rev. 499, 502, 512–517 (2022); Albert Shanker Institute, B.
Baker, M. DiCarlo, & P. Greene, Segregation andSchool Funding:
How Housing Discrimination Reproduces Unequal Opportunity 17–19
(Apr. 2022). 10 See
Brief for 25 Harvard Student and Alumni Organizations as Amici
Curiae 6–15 (collecting sources). 11 GAO
Report 7; see also Brief for Council of the Great City Schools as Amicus Curiae 11–14 (collecting sources). 12 See
J. Okonofua & J. Eberhardt, Two Strikes: Race and the
Disciplining of Young Students, 26 Psychol. Sci. 617 (2015) (a
national survey showed that “Black students are more than three
times as likely to be suspended or expelled as their White peers”);
Brief for Youth Advocates and Experts on Educational Access as Amici Curiae 14–15 (describing investigation in North
Carolina of a public school district, which found that Black
students were 6.1 times more likely to be suspended than white
students). 13 See, e.g ., Dept. of Education, National Center for Education
Statistics, Digest of Education Statistics (2021) (Table 104.70)
(showing that 59% of white students and 78% of Asian students have
a parent with a bachelor’s degree or higher, while the same is true
for only 25% of Latino students and 33% of Black
students). 14 R.
Crosnoe, K. Purtell, P. Davis-Kean, A. Ansari, & A. Benner, The
Selection of Children From Low-Income Families into Preschool, 52
J. Developmental Psychology 11 (2016); A. Kenly & A. Klein,
Early Childhood Experiences of Black Children in a Diverse
Midwestern Suburb, 24 J. African American Studies 130, 136
(2020). 15 Dept.
of Education, National Center for Education, Institute of
Educational Science, The Condition of Education 2022, p. 24
(2020) (fig. 16). 16 ProQuest Statistical Abstract of the
United States: 2023, p. 402 (Table 622) (noting Black and
Latino adults are more likely to be unemployed). 17 Id. , at 173 (Table
259). 18 A.
McCargo & J. Choi, Closing the Gaps: Building Black Wealth
Through Homeownership (2020) (fig. 1). 19 Dept.
of Commerce, Census Bureau, Health Insurance Coverage in the United
States: 2021, p. 9 (fig. 5); id. , at 29 (Table C–1),
https://www.census.gov/library/publications/2022/demo/p60-278.html
(noting racial minorities, particularly Latinos, are less likely to
have health insurance coverage). 20 In
1979, prompted by lawsuits filed by civil rights lawyers under
Title VI, the U. S. Department of Health, Education, and
Welfare “revoked UNC’s federal funding for its continued
noncompliance” with Brown . 3 App. 1688; see Adams v . Richardson , 351 F. Supp. 636 , 637 (DC 1972); Adams v .
Califano , 430 F. Supp. 118 , 121 (DC 1977). North Carolina sued the Federal Government in
response, and North Carolina Senator Jesse Helms introduced
legislation to block federal desegregation efforts. 3 App.
1688 . UNC praised those actions by North Carolina public
officials. Ibid. The litigation ended in 1981, after the
Reagan administration settled with the State. See North
Carolina v . Department of Education , No. 79–217–CIV–5
(EDNC, July 17, 1981) (Consent Decree). 21 See 1
App. 20–21 (campus climate survey showing inter alia that
“91 percent of students heard insensitive or disparaging racial
remarks made by other students”); 2 id. , at 1037 (Black
student testifying that a white student called him “the N word”
and, on a separate occasion at a fraternity party, he was “told
that no slaves were allowed in”); id. , at 955 (student
testifying that he was “the only African American student in the
class,” which discouraged him from speaking up about racially
salient issues); id. , at 762–763 (student describing that
being “the only Latina” made it “hard to speak up” and made her
feel “foreign” and “an outsider”). 22 The
same standard that applies under the Equal Protection Clause guides
the Court’s review under Title VI, as the majority correctly
recognizes . See ante , at 6, n. 2; see also Regents of Univ. of Cal. v. Bakke , 438 U.S.
265 , 325 (1978) (Brennan, J., concurring). Justice Gorsuch
argues that “Title VI bears independent force” and holds
universities to an even higher standard than the Equal Protection
Clause. Ante , at 25. Because no party advances Justice
Gorsuch’s argument, see ante , at 6, n. 2, the Court
properly declines to address it under basic principles of party
presentation. See United States v. Sineneng-Smith ,
590 U. S. ___, ___ (2020) (slip op., at 3). Indeed, Justice
Gorsuch’s approach calls for even more judicial restraint. If
petitioner could prevail under Justice Gorsuch’s statutory
analysis, there would be no reason for this Court to reach the
constitutional question. See Escambia County v .
McMillan , 466 U.S.
48 , 51 (1984) ( per curiam ). In a statutory case,
moreover, stare decisis carries “enhanced force,” as it
would be up to Congress to “correct any mistake it sees” with “our
interpretive decisions.” Kimble v . Marvel Entertainment,
LLC , 576 U.S. 446, 456 (2015). Justice Gorsuch wonders why
the dissent, like the majority, does not “engage” with his
statutory arguments. Ante , at 16 . The answer is
simple: This Court plays “the role of neutral arbiter of matters
the parties present.” Greenlaw v. United States , 554 U.S.
237 , 243 (2008). Petitioner made astrategic litigation choice,
and in our adversarial system, it is not up to this Court to come
up with “wrongs to right” on behalf of
litigants. Id. , at 244 (internal quotation
marks omitted). 23 SFFA
is a 501(c)(3) nonprofit organization founded after this Court’s
decision in Fisher I , 570 U.S.
297 (2013). App. to Pet. for Cert. in No. 20–1199, p. 10.
Its original board of directors had three self-appointed members:
Edward Blum, Abigail Fisher (the plaintiff in Fisher ), and
Richard Fisher. See ibid. 24 Bypassing the Fourth Circuit’s
opportunity to review the District Court’s opinion in the UNC case, SFFA sought certiorari before judgment, urging
that, “[p]aired with Harvard ,” the UNC case would
“allow the Court to resolve the ongoing validity of race-based
admissions under both Title VI and the Constitution.” Pet. for
Cert. in No. 21–707, p. 27. 25 Generally speaking, top percentage
plans seek to enroll a percentage of the graduating high school
students with the highest academic credentials. See, e.g. , Fisher II , 579 U. S., at 373 (describing the University
of Texas’ Top Ten Percent Plan). 26 SFFA
and Justice Gorsuch reach beyond the factfinding below and argue
that universities in States that have banned the use of race in
college admissions have achieved racial diversity through efforts
such as increasing socioeconomic preferences, so UNC could do the
same. Brief for Petitioner 85–86; ante , at 14. Data from
those States disprove that theory. Institutions in those States
experienced “ ‘an immediate and precipitous decline in the
rates at which underrepresented-minority students applied . . .
were admitted . . . and enrolled.’ ” Schuette v. BAMN , 572 U.S.
291 , 384–390 (2014) (Sotomayor, J., dissenting); see infra , at 63–64. In addition, UNC “already engages” in
race-neutral efforts focused on socioeconomic status, including
providing “exceptional levels of financial aid” and “increased and
targeted recruiting.” UNC , 567 F. Supp. 3d, at 665.
Justice Gorsuch argues that he is simply “recount[ing] what SFFA
has argued.” Ante , at 14, n. 4 . That is
precisely the point: SFFA’s arguments were not credited by the
court below. “[W]e are a court of review, not of first view.” Cutter v. Wilkinson , 544 U.S.
709 , 718, n. 7 (2005). Justice Gorsuch also suggests it is
inappropriate for the dissent to respond to the majority by relying
on materials beyond the findings of fact below. Ante , at 14,
n. 4 . There would be no need for the dissent to do that
if the majority stuck to reviewing the District Court’s careful
factfinding with the deference it owes to the trial court. Because
the majority has made a different choice, the dissent
responds. 27 SFFA
also argues that Harvard discriminates against Asian American
students. Brief for Petitioner 72–75. As explained below, this
claim does not fit under Grutter ’s strict scrutiny
framework, and the courts below did not err in rejecting that
claim. See infra , at 59–60. 28 Justice Gorsuch suggests that only
“applicants of certain races may receive a ‘tip’ in their favor.” Ante , at 9. To the extent Justice Gorsuch means that some
races are not eligible to receive a tip based on their race, there
is no evidence in the record to support this statement. Harvard
“does not explicitly prioritize any particular racial group over
any other and permits its admissions officers to evaluate the
racial and ethnic identity of every student in the context of his
or her background and circumstances.” Harvard I , 397
F. Supp. 3d 126, 190, n. 56 (Mass. 2019). 29 Relying on a single footnote in the
First Circuit’s opinion, the Court claims that Harvard’s program is
unconstitutional because it “has led to an 11.1% decrease in the
number of Asian-Americans admitted to Harvard.” Ante , at 27.
The Court of Appeals, however, merely noted that the United States,
at the time represented by a different administration, argued that
“absent the consideration of race, [Asian American] representation
would increase from 24% to 27%,” an 11% increase. Harvard
II , 980 F. 3d, at 191, n. 29. Taking those
calculations as correct, the Court of Appeals recognized that such
an impact from the use of race on the overall makeup of the class
is consistent with the impact that this Court’s precedents have
tolerated. Ibid . The Court also notes that “race is
determinative for at least some—if not many—of the students”
admitted at UNC. Ante , at 27 . The District Court in
the UNC case found that “race plays a role in a very small
percentage of decisions: 1.2% for in-state students and 5.1% for
out-of-state students.” 567 F. Supp. 3d 580, 634 (MDNC 2021).
The limited use of race at UNC thus has a smaller effect than at
Harvard and is also consistent with the Court’s precedents. In
addition, contrary to the majority’s suggestion, such effect does
not prove that “race alone . . . explains the admissions decisions
for hundreds if not thousands of applicants to UNC each year.” Ante, at 28, n. 6. As the District Court found, UNC (like
Harvard) “engages a highly individualized, holistic review of each
applicant’s file, which considers race flexibly as a ‘plus factor’
as one among many factors in its individualized consideration of
each and every applicant.” 567 F. Supp. 3d, at 662; see id., at 658 (finding that UNC “rewards different kinds of
diversity, and evaluates a candidate withinthe context of their
lived experience”); id., at 659 (“The parties stipulated,
and the evidence shows, that readers evaluate applicants by taking
into consideration dozens of criteria,” and even SFFA’s expert
“concede[d] that the University’s admissions process is
individualized and holistic”). Stated simply, race is not “a
defining feature of any individual application.” Id., at
662; see also infra , at 48. 30 The
majority does not dispute that it has handpicked data from a
truncated period, ignoring the broader context of that data and
what the data reflect. Instead, the majority insists that its
selected data prove that Harvard’s “precise racial preferences”
“operate like clockwork.” Ante , at 31–32, n. 7. The
Court’s conclusion that such racial preferences must be responsible
for an “unyielding demographic composition of [the]class,” ibid. , misunderstands basic principles of statistics. A
number of factors (most notably, the demographic composition of the
applicant pool) affect the demographic composition of the entering
class. Assume, for example, that Harvard admitted students based
solely on standardized test scores. If test scores followed a
normal distribution (even with different averages by race) and were
relatively constant over time, and if the racial shares of total
applicants were also relatively constant over time, one would
expect the same “unyielding demographic composition of [the]
class.” Ibid. That would be true even though, under that
hypothetical scenario, Harvard does not consider race in admissions
at all. In other words, the Court’s inference that precise racial
preferences must be the cause of relatively constant racial shares
of admitted students is specious. 31 In
the context of policies that “benefit rather than burden the
minority,” the Court has adhered to a strict scrutiny framework
despite multiple Members of this Court urging that “the mandate of
the Equal Protection Clause” favors applying a less exacting
standard of review. Schuette , 572 U. S., at 373–374
(Sotomayor, J., dissenting) (collecting cases). 32 The
Court’s “dictum” that Mexican appearance can be one of many factors
rested on now-outdated quantitative premises. United States v. Montero-Camargo , 208 F.3d 1122 , 1132 (CA9 2000). 33 Justice Kavanaugh agrees that the
effects from the legacy of slav-ery and Jim Crow continue today,
citing Justice Marshall’s opinion in Bakke . Ante , at
7 (citing 438 U. S., at 395–402). As explained above, Justice
Marshall’s view was that Bakke covered only a portion of the
Fourteenth Amendment’s sweeping reach, such that the Court’s higher
education precedents must be expanded, not constricted. See 438
U. S.,at 395–402 (opinion dissenting in part). Justice
Marshall’s reading of the Fourteenth Amendment does not support
Justice Kavanaugh’s and the majority’s opinions. 34 There
is no dispute that respondents’ compelling diversity objectives are
“substantial, long-standing, and well documented.” UNC , 567
F. Supp. 3d, at 655; Harvard II , 980 F. 3d, at
186–187. SFFA did not dispute below that respondents have a
compelling interest in diversity. See id. , at 185; Harvard I , 397 F. Supp. 3d, at 133; Tr. of Oral Arg. in
No. 21–707, p. 121. And its expert agreed that valuable
educational benefits flow from diversity, including richer and
deeper learning, reduced bias, and more creative problem solving. 2
App. in No. 21–707, p. 546. SFFA’s counsel also emphatically
disclaimed the issue at trial. 2 App. in No. 20–1199,
p. 548 (“Diversity and its benefits are not on trial
here”). 35 The
Court suggests that promoting the Fourteenth Amendment’s vision of
equality is a “radical” claim of judicial power and the equivalent
of “pick[ing] winners and losers based on the color of their skin.” Ante , at 38 . The law sometimes requires consideration
of race to achieve racial equality. Just like drawing district
lines that comply with the Voting Rights Act may require
consideration of race along with other demographic factors,
achieving racial diversity in higher education requires
consideration of race along with “age, economic status, religious
and political persuasion, and a variety of other demographic
factors.” Shaw v . Reno , 509 U.S.
630 , 646 (1993) (“[R]ace consciousness does not lead inevitably
to impermissible race discrimination”). Moreover, in ordering the
admission of Black children to all-white schools “with all
deliberate speed” in Brown v. Board of Education , 349 U.S.
294 , 301 (1955), this Court did not decide that the Black
children should receive an “advantag[e] . . . at the expense of”
white children. Ante , at 27 . It simply enforced the
Equal Protection Clause by leveling the playing field. 36 Today’s decision is likely to
generate a plethora of litigation by disappointed college
applicants who think their credentials and personal qualities
should have secured them admission. By inviting those challenges,
the Court’s opinion promotes chaos and incentivizes universities to
convert their admissions programs into inflexible systems focused
on mechanical factors, which will harm all students. 37 The
Court suggests that the term “Asian American” was developed by
respondents because they are “uninterested” in whether Asian
American students “are adequately represented.” Ante , at 25;
see also ante , at 5 (Gorsuch, J., concurring) (suggesting
that “[b]ureaucrats” devised a system that grouped all Asian
Americans into a single racial category). That argument offends the
history of that term. “The term ‘Asian American’ was coined in the
late 1960s by Asian American activists—mostly college students—to
unify Asian ethnic groups that shared common experiences of
race-based violence and discrimination and to advocate for civil
rights and visibility.” Brief for Asian American Legal Defense and
Education Fund et al. as Amici Curiae 9 (AALDEF
Brief ). 38 Justice Kavanaugh’s reading, in
particular, is quite puzzling. Unlike the majority, which concludes
that respondents’ programs should have an end point, Justice
Kavanaugh suggests that Grutter itself has an expiration
date. He agrees that racial inequality persists, ante , at
7–8, but at the same time suggests that race-conscious affirmative
action was only necessary in “another generation,” ante , at
4. He attempts to analogize expiration dates of court-ordered
injunctions in desegregation cases, ante , at 5, but an
expiring injunction does not eliminate the underlying
constitutional principle. His musings about different college
classes, ante , at 7, n. 1, are also entirely beside the
point. Nothing in Grutter ’s analysis turned on whether
someone was applying for the class of 2028 or 2032. That reading of Grutter trivializes the Court’s precedent by reducing it to
an exercise in managing academic calendars. Grutter is no
such thing. 39 Before 2018, Harvard’s admissions
procedures were silent on the use of race in connection with the
personal rating. Harvard II , 980 F. 3d, at 169. Harvard
later modified its instructions to say explicitly that “ ‘an
applicant’s race or ethnicity should not be considered in assigning
the personal rating.’ ” Ibid. 40 At
Harvard, “Asian American applicants are accepted at the same rate
as other applicants and now make up more than 20% of Harvard’s
admitted classes,” even though “only about 6% of the United States
population is Asian American.” Harvard I , 397 F. Supp.
3d, at 203. 41 K.
Schaeffer, Pew Research Center, The Changing Face of Congress in 8
Charts (Feb. 7, 2023). 42 See
J. Martelli & P. Abels, The Education of a Leader: Educational
Credentials and Other Characteristics of Chief Executive Officers,
J. of Educ. for Bus. 216 (2010); see also J. Moody, Where the Top
Fortune 500 CEOs Attended College, U. S. News & World
Report (June 16, 2021). 43 Racial inequality in the pipeline to
this institution, too, will deepen. See J. Fogel, M. Hoopes, &
G. Liu, Law Clerk Selection and Diversity: Insights From Fifty
Sitting Judges of the Federal Courts of Appeals 7–8(2022) (noting
that from 2005 to 2017, 85% of Supreme Court law clerks were white,
9% were Asian American, 4% were Black, and 1.5% were Latino, and
about half of all clerks during that period graduated from two law
schools: Harvard and Yale); Brief for American Bar Association as Amicus Curiae 25 (noting that more than 85% of lawyers, more
than 70% of Article III judges, and more than 80% of state judges
in the United States are white, even though white people represent
about 60% of the population). SUPREME COURT OF THE UNITED STATES

															_________________

															Nos. 20–1199 and 21–707

															_________________

															STUDENTS FOR FAIR ADMISSIONS, INC.,
PETITIONER

															20–1199 v. PRESIDENT AND FELLOWS OF HARVARD
COLLEGE

															on writ of certiorari to the united states
court of appeals for the first circuit

															STUDENTS FOR FAIR ADMISSIONS, INC.,
PETITIONER

															21–707 v. UNIVERSITY OF NORTH CAROLINA,
et al.

															on writ of certiorari before judgment to the
united states court of appeals for the fourth circuit

															[June 29, 2023]

															Justice Jackson, with whom Justice Sotomayor
and Justice Kagan join, dissenting.[ 1 ]*

															Gulf-sized race-based gaps exist with respect to
the health, wealth, and well-being of American citizens. They were
created in the distant past, but have indisputably been passed down
to the present day through the generations. Every moment these gaps
persist is a moment in which this great country falls short of
actualizing one of its foundational principles—the “self-evident”
truth that all of us are created equal. Yet, today, the Court
determines that holistic admissions programs like the one that the
University of North Carolina (UNC) has operated, consistent with Grutter v. Bollinger , 539 U.S.
306 (2003), are a problem with respect to achievement of that
aspiration, rather than a viable solution (as has long been evident
to historians, sociologists, and policymakers alike).

															Justice Sotomayor has persuasively established
that nothing in the Constitution or Title VI prohibits institutions
from taking race into account to ensure the racial diversity of
admits in higher education. I join her opinion without
qualification. I write separately to expound upon the universal
benefits of considering race in this context, in response to a
suggestion that has permeated this legal action from the start.
Students for Fair Admissions (SFFA) has maintained, both subtly and
overtly, that it is unfair for a college’s admissions
process to consider race as one factor in a holistic review of its
applicants. See, e.g. , Tr. of Oral Arg. 19.

															This contention blinks both history and reality
in ways too numerous to count. But the response is simple: Our
country has never been colorblind. Given the lengthy history of
state-sponsored race-based preferences in America, to say that
anyone is now victimized if a college considers whether that legacy
of discrimination has unequally ad- vantaged its applicants fails
to acknowledge the well- documented “intergenerational transmission
of inequality” that still plagues our citizenry.[ 2 ]

															It is that inequality that admissions
programs such as UNC’s help to address, to the benefit of us all.
Because the majority’s judgment stunts that progress without any
basis in law, history, logic, or justice, I dissent.

															I

															A

															Imagine two college applicants from North
Carolina, John and James. Both trace their family’s North Carolina
roots to the year of UNC’s founding in 1789. Both love their State
and want great things for its people. Both want to honor their
family’s legacy by attending the State’s flagship educational
institution. John, however, would be the seventh generation to
graduate from UNC. He is White. James would be the first; he is
Black. Does the race of these applicants properly play a role in
UNC’s holistic merits-based admissions process?

															To answer that question, “a page of history is
worth a volume of logic.” New York Trust Co. v. Eisner , 256 U.S.
345 , 349 (1921). Many chapters of America’s history appear
necessary, given the opinions that my colleagues in the majority
have issued in this case.

															Justice Thurgood Marshall recounted the
genesis:

															“Three hundred and fifty years ago, the
Negro was dragged to this country in chains to be sold into
slavery. Uprooted from his homeland and thrust into bondage for
forced labor, the slave was deprived of all legal rights. It was
unlawful to teach him to read; he could be sold away from his
family and friends at the whim of his master; and killing or
maiming him was not a crime. The system of slavery brutalized and
dehumanized both master and slave.” Regents of Univ. of Cal. v. Bakke , 438 U.S.
265 , 387–388 (1978).

															Slavery should have been (and was to many) self-
evidently dissonant with our avowed founding principles. When the
time came to resolve that dissonance, eleven States chose slavery.
With the Union’s survival at stake, Frederick Douglass noted, Black
Americans in the South “were almost the only reliable friends the
nation had,” and “but for their help . . . the Rebels
might have succeeded in breaking up the Union.”[ 3 ] After the war, Senator John Sherman defended
the proposed Fourteenth Amendment in a manner that encapsulated our
Reconstruction Framers’ highest sentiments: “We are bound by every
obligation, by [Black Americans’] service on the battlefield, by
their heroes who are buried in our cause, by their patriotism in
the hours that tried our country, we are bound to protect them and
all their natural rights.”[ 4 ]

															To uphold that promise, the Framers repudiated
this Court’s holding in Dred Scott v. Sandford , 19
How. 393 (1857), by crafting Reconstruction Amendments (and
associated legislation) that transformed our Constitution and
society.[ 5 ] Even after this
Second Founding—when the need to right historical wrongs should
have been clear beyond cavil—opponents insisted that vindicating
equality in this manner slighted White Americans. So, when the
Reconstruction Congress passed a bill to secure all citizens “the
same [civil] right[s]” as “enjoyed by white citizens,” 14Stat. 27,
President Andrew Johnson vetoed it because it “discriminat[ed]
. . . in favor of the negro.”[ 6 ]

															That attitude, and the Nation’s associated
retreat from Reconstruction, made prophesy out of Congressman
Thaddeus Stevens’s fear that “those States will all . . .
keep up this discrimination, and crush to death the hated
freedmen.”[ 7 ] And this Court
facilitated that retrenchment.[ 8 ] Not just in Plessy v. Ferguson , 163 U.S.
537 (1896), but “in almost every instance, the Court chose to
restrict the scope of the second founding.”[ 9 ] Thus, thirteen years pre- Plessy , in the Civil Rights Cases , 109 U.S. 3 (1883), our predecessors on this Court invalidated Congress’s
attempt to enforce the Reconstruction Amendments via the Civil
Rights Act of 1875, lecturing that “there must be some stage
. . . when [Black Americans] tak[e] the rank of a mere
citizen, and ceas[e] to be the special favorite of the laws.” Id ., at 25. But Justice Harlan knew better. He responded:
“What the nation, through Congress, has sought to accomplish in
reference to [Black people] is—what had already been done in every
State of the Union for the white race—to secure and protect rights
belonging to them as freemen and citizens; nothing more.” Id. , at 61 (dissenting opinion).

															Justice Harlan dissented alone. And the betrayal
that this Court enabled had concrete effects. Enslaved Black people
had built great wealth, but only for enslavers.[ 10 ] No surprise, then, that freedmen leapt
at the chance to control their own labor and to build their own
financial security.[ 11 ]
Still, White southerners often “simply refused to sell land to
blacks,” even when not selling was economically foolish.[ 12 ] To bolster private exclusion,
States sometimes passed laws forbidding such sales.[ 13 ] The inability to build wealth through
that most American of means forced Black people into sharecropping
roles, where they somehow always tended to find themselves in debt
to the landowner when the growing season closed, with no hope of
recourse against the ever-present cooking of the books.[ 14 ]

															Sharecropping is but one example of race-linked
obstacles that the law (and private parties) laid down to hinder
the progress and prosperity of Black people. Vagrancy laws
criminalized free Black men who failed to work for White
landlords.[ 15 ] Many States
barred freedmen from hunting or fishing to ensure that they could
not live without entering de facto reenslavement as
sharecroppers.[ 16 ] A
cornucopia of laws ( e.g. , banning hitchhiking, prohibiting
encouraging a laborer to leave his employer, and penalizing those
who prompted Black southerners to migrate northward) ensured that
Black people could not freely seek better lives elsewhere.[ 17 ] And when statutes did not ensure
compliance, state-sanctioned (and private) violence did.[ 18 ]

															Thus emerged Jim Crow—a system that was, as much
as anything else, a comprehensive scheme of economic exploitation
to replace the Black Codes, which themselves had replaced slavery’s
form of comprehensive economic exploitation.[ 19 ] Meanwhile, as Jim Crow ossified, the Federal
Government was “giving away land” on the western frontier, and with
it “the opportunity for upward mobility and a more secure future,”
over the 1862 Homestead Act’s three-quarter-century
tenure.[ 20 ] Black people
were exceedingly unlikely to be allowed to share in those benefits,
which by one calculation may have advantaged approximately 46
million Americans living today.[ 21 ]

															Despite these barriers, Black people persisted.
Their so-called Great Migration northward accelerated during and
after the First World War.[ 22 ] Like clockwork, American cities responded with
racially exclusionary zoning (and similar policies).[ 23 ] As a result, Black migrants had to pay
disproportionately high prices for disproportionately subpar
housing.[ 24 ] Nor did
migration make it more likely for Black people to access home
ownership, as banks would not lend to Black people, and in the rare
cases banks would fund home loans, exorbitant interest rates were
charged.[ 25 ] With Black
people still locked out of the Homestead Act giveaway, it is no
surprise that, when the Great Depression arrived, race-based
wealth, health, and opportunity gaps were the norm.[ 26 ]

															Federal and State Governments’ selective
intervention further exacerbated the disparities. Consider, for
example, the federal Home Owners’ Loan Corporation (HOLC), created
in 1933.[ 27 ] HOLC purchased
mortgages threatened with foreclosure and issued new, amortized
mortgages in their place.[ 28 ] Not only did this mean that recipients of these
mortgages could gain equity while paying off the loan, successful
full payment would make the recipient a homeowner.[ 29 ] Ostensibly to identify (and avoid) the
riskiest recipients, the HOLC “created color-coded maps of every
metropolitan area in the nation.”[ 30 ] Green meant safe; red meant risky. And, regardless of
class, every neighborhood with Black people earned the red
designation.[ 31 ]

															Similarly, consider the Federal Housing
Administration (FHA), created in 1934, which insured highly
desirable bank mortgages. Eligibility for this insurance required
an FHA appraisal of the property to ensure a low default
risk.[ 32 ] But, nationwide,
it was FHA’s established policy to provide “no guarantees for
mortgages to African Americans, or to whites who might lease to
African Americans,” irrespective of creditworthiness.[ 33 ] No surprise, then, that
“[b]etween 1934 and 1968, 98 percent of FHA loans went to white
Americans,” with whole cities (ones that had a disproportionately
large number of Black people due to housing segregation) sometimes
being deemed ineligible for FHA intervention on racial
grounds.[ 34 ] The Veterans
Administration operated similarly.[ 35 ]

															One more example: the Federal Home Loan Bank
Board “chartered, insured, and regulated savings and loan
associations from the early years of the New Deal.”[ 36 ] But it did “not oppose the denial of
mortgages to African Americans until 1961” (and even then opposed
discrimination ineffectively).[ 37 ]

															The upshot of all this is that, due to
government policy choices, “[i]n the suburban-shaping years between
1930 and 1960, fewer than one percent of all mortgages in the
nation were issued to African Americans.”[ 38 ] Thus, based on their race, Black people were
“[l]ocked out of the greatest mass-based opportunity for wealth
accumulation in American history.”[ 39 ]

															For present purposes, it is significant that, in
so excluding Black people, government policies affirmatively
operated—one could say, affirmatively acted—to dole out preferences
to those who, if nothing else, were not Black. Those past
preferences carried forward and are reinforced today by (among
other things) the benefits that flow to homeowners and to the
holders of other forms of capital that are hard to obtain unless
one already has assets.[ 40 ]

															This discussion of how the existing gaps were
formed is merely illustrative, not exhaustive. I will pass over
Congress’s repeated crafting of family-, worker-, and
retiree-protective legislation to channel benefits to White people,
thereby excluding Black Americans from what was otherwise “a
revolution in the status of most working Americans.”[ 41 ] I will also skip how the G. I. Bill’s
“creation of . . . middle-class America” (by giving $95
billion to veterans and their families between 1944 and 1971) was
“deliberately designed to accommodate Jim Crow.”[ 42 ] So, too, will I bypass how Black people
were prevented from partaking in the consumer credit market—a
market that helped White people who could access it build and
protect wealth.[ 43 ] Nor will
time and space permit my elaborating how local officials’ racial
hostility meant that even those benefits that Black people could
formally obtain were unequally distributed along racial
lines.[ 44 ] And I could not
possibly discuss every way in which, in light of this history,
facially race-blind policies still work race-based harms
today ( e.g. , racially disparate tax-system treatment; the
disproportionate location of toxic-waste facilities in Black
communities; or the deliberate action of governments at all levels
in designing interstate highways to bisect and segregate Black
urban communities).[ 45 ]

															The point is this: Given our history, the origin
of persistent race-linked gaps should be no mystery. It has never
been a deficiency of Black Americans’ desire or ability to, in
Frederick Douglass’s words, “stand on [their] own legs.”[ 46 ] Rather, it was always simply
what Justice Harlan recognized 140 years ago—the persistent and
pernicious denial of “what had already been done in every State of
the Union for the white race.” Civil Rights Cases , 109
U. S., at 61 (dissenting opinion).

															B

															History speaks. In some form, it can be heard
forever. The race-based gaps that first developed centuries ago are
echoes from the past that still exist today. By all accounts, they
are still stark.

															Start with wealth and income. Just four years
ago, in 2019, Black families’ median wealth was approximately
$24,000.[ 47 ] For White
families, that number was approximately eight times as much (about
$188,000).[ 48 ] These wealth
disparities “exis[t] at every income and education level,” so,
“[o]n average, white families with college degrees have over
$300,000 more wealth than black families with college
degrees.”[ 49 ] This disparity
has also accelerated over time—from a roughly $40,000 gap between
White and Black household median net worth in 1993 to a roughly
$135,000 gap in 2019.[ 50 ]
Median income numbers from 2019 tell the same story: $76,057 for
White households, $98,174 for Asian households, $56,113 for Latino
households, and $45,438 for Black households.[ 51 ]

															These financial gaps are unsurprising in light
of the link between home ownership and wealth. Today, as was true
50 years ago, Black home ownership trails White home ownership by
approximately 25 percentage points.[ 52 ] Moreover, Black Americans’ homes (relative to White
Americans’) constitute a greater percentage of household wealth,
yet tend to be worth less, are subject to higher effective property
taxes, and generally lost more value in the Great
Recession.[ 53 ]

															From those markers of social and financial
unwellness flow others. In most state flagship higher educational
institutions, the percentage of Black undergraduates is lower than
the percentage of Black high school graduates in that
State.[ 54 ] Black Americans
in their late twenties are about half as likely as their White
counterparts to have college degrees.[ 55 ] And because lower family income and wealth force
students to borrow more, those Black students who do graduate
college find themselves four years out with about $50,000 in
student debt—nearly twice as much as their White
compatriots.[ 56 ]

															As for postsecondary professional arenas,
despite being about 13% of the population, Black people make up
only about 5% of lawyers.[ 57 ] Such disparity also appears in the business realm: Of
the roughly 1,800 chief executive officers to have appeared on the
well-known Fortune 500 list, fewer than 25 have been Black (as of
2022, only six are Black).[ 58 ] Furthermore, as the COVID–19 pandemic raged,
Black-owned small businesses failed at dramatically higher rates
than White-owned small businesses, partly due to the
disproportionate denial of the forgivable loans needed to survive
the economic downturn.[ 59 ]

															Health gaps track financial ones. When tested,
Black children have blood lead levels that are twice the rate of
White children—“irreversible” contamination working irremediable
harm on developing brains.[ 60 ] Black (and Latino) children with heart conditions are
more likely to die than their White counterparts.[ 61 ] Race-linked mortality-rate disparity
has also persisted, and is highest among infants.[ 62 ]

															So, too, for adults: Black men are twice as
likely to die from prostate cancer as White men and have lower
5-year cancer survival rates.[ 63 ] Uterine cancer has spiked in recent years among all
women—but has spiked highest for Black women, who die of uterine
cancer at nearly twice the rate of “any other racial or ethnic
group.”[ 64 ] Black mothers
are up to four times more likely than White mothers to die as a
result of childbirth.[ 65 ]
And COVID killed Black Americans at higher rates than White
Americans.[ 66 ]

															“Across the board, Black Americans experience
the highest rates of obesity, hypertension, maternal mortality,
infant mortality, stroke, and asthma.”[ 67 ] These and other disparities—the predictable result
of opportunity disparities—lead to at least 50,000 excess deaths a
year for Black Americans vis-à-vis White Americans.[ 68 ] That is 80 million excess years of life
lost from just 1999 through 2020.[ 69 ] Amici tell us that “race-linked health
inequities pervad[e] nearly every index of human health” resulting
“in an overall reduced life expectancy for racial and ethnic
minorities that cannot be explained by genetics.”[ 70 ] Meanwhile—tying health and wealth
together—while she lays dying, the typical Black American “pay[s]
more for medical care and incur[s] more medical debt.”[ 71 ]

															C

															We return to John and James now, with history
in hand. It is hardly John’s fault that he is the seventh
generation to graduate from UNC. UNC should permit him to honor
that legacy. Neither, however, was it James’s (or his family’s)
fault that he would be the first. And UNC ought to be able to
consider why.

															Most likely, seven generations ago, when John’s
family was building its knowledge base and wealth potential on the
university’s campus, James’s family was enslaved and laboring in
North Carolina’s fields. Six generations ago, the North Carolina
“Redeemers” aimed to nullify the results of the Civil War through
terror and violence, marauding in hopes of excluding all who looked
like James from equal citizenship.[ 72 ] Five generations ago, the North Carolina Red Shirts
finished the job.[ 73 ] Four
(and three) generations ago, Jim Crow was so entrenched in the
State of North Carolina that UNC “enforced its own Jim Crow
regulations.”[ 74 ] Two
generations ago, North Carolina’s Governor still railed against
“ ‘integration for integration’s sake’ ”—and UNC Black
enrollment was minuscule.[ 75 ] So, at bare minimum, one generation ago, James’s
family was six generations behind because of their race, making
John’s six generations ahead.

															These stories are not every student’s story. But
they are many students’ stories. To demand that colleges ignore
race in today’s admissions practices—and thus disregard the fact
that racial disparities may have mattered for where some applicants
find themselves today—is not only an affront to the dignity of
those students for whom race matters.[ 76 ] It also condemns our society to never escape the past
that explains how and why race matters to the very concept
of who “merits” admission.

															Permitting (not requiring) colleges like UNC to
assess merit fully, without blinders on, plainly advances (not
thwarts) the Fourteenth Amendment’s core promise. UNC considers
race as one of many factors in order to best assess the entire
unique import of John’s and James’s individual lives and
inheritances on an equal basis . Doing so involves
acknowledging (not ignoring) the seven generations’ worth of
historical privileges and disadvantages that each of these
applicants was born with when his own life’s journey started a mere
18 years ago.

															II

															Recognizing all this, UNC has developed a
holistic review process to evaluate applicants for admission.
Students must submit standardized test scores and other
conventional information.[ 77 ] But applicants are not required to submit
demographic information like gender and race.[ 78 ] UNC considers whatever information each
applicant submits using a nonexhaustive list of 40 criteria grouped
into eight categories: “academic performance, academic program,
standardized testing, extracurricular activity, special talent,
essay criteria, background, and personal criteria.”[ 79 ]

															Drawing on those 40 criteria, a UNC staff member
evaluating John and James would consider, with respect to each, his
“engagement outside the classroom; persistence of commitment;
demonstrated capacity for leadership; contributions to family,
school, and community; work history; [and his] unique or unusual
interests.”[ 80 ] Relevant,
too, would be his “relative advantage or disadvantage, as indicated
by family income level, education history of family members, impact
of parents/guardians in the home, or formal education environment;
experience of growing up in rural or center-city locations; [and
his] status as child or step-child of Carolina alumni.”[ 81 ] The list goes on. The process is
holistic, through and through.

															So where does race come in? According to UNC’s
admissions-policy document, reviewers may also consider “the race
or ethnicity of any student” (if that information is provided) in
light of UNC’s interest in diversity.[ 82 ] And, yes, “the race or ethnicity of any student may—or may not—receive a ‘plus’ in the evaluation process
depending on the individual circumstances revealed in the student’s
application.”[ 83 ] Stephen
Farmer, the head of UNC’s Office of Undergraduate Admissions,
confirmed at trial (under oath) that UNC’s admissions process
operates in this fashion.[ 84 ]

															Thus, to be crystal clear: Every student
who chooses to disclose his or her race is eligible for such a
race-linked plus, just as any student who chooses to disclose his
or her unusual interests can be credited for what those interests
might add to UNC. The record supports no intimation to the
contrary. Eligibility is just that; a plus is never automatically
awarded, never considered in numerical terms, and never
automatically results in an offer of admission.[ 85 ] There are no race-based quotas in UNC’s
holistic review process.[ 86 ]
In fact, during the admissions cycle, the school prevents anyone
who knows the overall racial makeup of the admitted-student pool
from reading any applications.[ 87 ]

															More than that, every applicant is also eligible
for a diversity-linked plus (beyond race) more generally.[ 88 ] And, notably, UNC understands
diversity broadly, including “socioeconomic status,
first-generation college status . . . political beliefs,
religious beliefs . . . diversity of thoughts,
experiences, ideas, and talents.”[ 89 ]

															A plus, by its nature, can certainly matter to
an admissions case. But make no mistake: When an applicant chooses
to disclose his or her race, UNC treats that aspect of identity on
par with other aspects of applicants’ identity that affect who they
are (just like, say, where one grew up, or medical challenges one
has faced).[ 90 ] And race is
considered alongside any other factor that sheds light on what
attributes applicants will bring to the campus and whether they are
likely to excel once there.[ 91 ] A reader of today’s majority opinion could be
forgiven for misunderstanding how UNC’s program really works, or
for missing that, under UNC’s holistic review process, a White
student could receive a diversity plus while a Black student might
not.[ 92 ]

															UNC does not do all this to provide handouts to
either John or James. It does this to ascertain who among its tens
of thousands of applicants has the capacity to take full advantage
of the opportunity to attend, and contribute to, this prestigious
institution, and thus merits admission.[ 93 ] And UNC has concluded that ferreting this out
requires understanding the full person, which means taking
seriously not just SAT scores or whether the applicant plays the
trumpet, but also any way in which the applicant’s race-linked
experience bears on his capacity and merit. In this way, UNC is
able to value what it means for James, whose ancestors received no
race-based advantages, to make himself competitive for admission to
a flagship school nevertheless. Moreover, recognizing this aspect
of James’s story does not preclude UNC from valuing John’s legacy
or any obstacles that his story reflects.

															So, to repeat: UNC’s program permits, but does
not require, admissions officers to value both John’s and James’s
love for their State, their high schools’ rigor, and whether either
has overcome obstacles that are indicative of their “persistence of
commitment.”[ 94 ] It permits,
but does not require, them to value John’s identity as a child of
UNC alumni (or, perhaps, if things had turned out differently, as a
first-generation White student from Appalachia whose family
struggled to make ends meet during the Great Recession). And it
permits, but does not require, them to value James’s race—not in
the abstract, but as an element of who he is, no less than his love
for his State, his high school courses, and the obstacles he has
overcome.

															Understood properly, then, what SFFA caricatures
as an unfair race-based preference cashes out, in a holistic
system, to a personalized assessment of the advantages and
disadvantages that every applicant might have received by accident
of birth plus all that has happened to them since. It ensures a
full accounting of everything that bears on the individual’s
resilience and likelihood of enhancing the UNC campus. It also
forecasts his potential for entering the wider world upon
graduation and making a meaningful contribution to the larger,
collective, societal goal that the Equal Protection Clause embodies
(its guarantee that the United States of America offers genuinely
equal treatment to every person, regardless of race).

															Furthermore, and importantly, the fact that
UNC’s holistic process ensures a full accounting makes it far from
clear that any particular applicant of color will finish ahead of
any particular nonminority applicant. For example, as the District
Court found, a higher percentage of the most academically excellent
in-state Black candidates (as SFFA’s expert defined academic
excellence) were denied admission than similarly qualified White
and Asian American applicants.[ 95 ] That, if nothing else, is indicative of a genuinely
holistic process; it is evidence that, both in theory and in
practice, UNC recognizes that race—like any other aspect of a
person—may bear on where both John and James start the admissions
relay, but will not fully determine whether either eventually
crosses the finish line.

															III

															A

															The majority seems to think that race
blindness solves the problem of race-based disadvantage. But the
irony is that requiring colleges to ignore the initial race-linked
opportunity gap between applicants like John and James will
inevitably widen that gap, not narrow it. It will delay the day
that every American has an equal opportunity to thrive, regardless
of race.

															SFFA similarly asks us to consider how much
longer UNC will be able to justify considering race in its
admissions process. Whatever the answer to that question was
yesterday, today’s decision will undoubtedly extend the duration of
our country’s need for such race consciousness, because the
justification for admissions programs that account for race is
inseparable from the race-linked gaps in health, wealth, and
well-being that still exist in our society (the closure of which
today’s decision will forestall).

															To be sure, while the gaps are stubborn and
pernicious, Black people, and other minorities, have generally been
doing better.[ 96 ] But those
improvements have only been made possible because institutions like
UNC have been willing to grapple forthrightly with the burdens of
history. SFFA’s complaint about the “indefinite” use of
race-conscious admissions programs, then, is a non sequitur. These
programs respond to deep-rooted, objectively measurable problems;
their definite end will be when we succeed, together, in solving
those problems.

															Accordingly, while there are many perversities
of today’s judgment, the majority’s failure to recognize that
programs like UNC’s carry with them the seeds of their own
destruction is surely one of them. The ultimate goal of recognizing
James’s full story and (potentially) admitting him to UNC is to
give him the necessary tools to contribute to closing the equity
gaps discussed in Part I, supra , so that he, his progeny—and
therefore all Americans—can compete without race mattering in the
future. That intergenerational project is undeniably a worthy
one.

															In addition, and notably, that end is not fully
achieved just because James is admitted. Schools properly care
about preventing racial isolation on campus because research shows
that it matters for students’ ability to learn and succeed while in
college if they live and work with at least some other people who
look like them and are likely to have similar experiences related
to that shared characteristic.[ 97 ] Equally critical, UNC’s program ensures that students
who don’t share the same stories (like John and James) will
interact in classes and on campus, and will thereby come to
understand each other’s stories, which amici tell us
improves cognitive abilities and critical- thinking skills, reduces
prejudice, and better prepares students for postgraduate
life.[ 98 ]

															Beyond campus, the diversity that UNC pursues
for the betterment of its students and society is not a trendy
slogan. It saves lives. For marginalized communities in North
Carolina, it is critically important that UNC and other area
institutions produce highly educated professionals of color.
Research shows that Black physicians are more likely to accurately
assess Black patients’ pain tolerance and treat them accordingly
(including, for example, prescribing them appropriate amounts of
pain medication).[ 99 ] For
high-risk Black newborns, having a Black physician more than
doubles the likelihood that the baby will live, and not
die.[ 100 ] Studies also
confirm what common sense counsels: Closing wealth disparities
through programs like UNC’s—which, beyond diversifying the medical
profession, open doors to every sort of opportunity—helps address
the aforementioned health disparities (in the long run) as
well.[ 101 ]

															Do not miss the point that ensuring a diverse
student body in higher education helps everyone , not just
those who, due to their race, have directly inherited distinct
disadvantages with respect to their health, wealth, and well-
being. Amici explain that students of every race will come
to have a greater appreciation and understanding of civic virtue,
democratic values, and our country’s commitment to
equality.[ 102 ] The larger
economy benefits, too: When it comes down to the brass tacks of
dollars and cents, ensuring diversity will, if permitted to work,
help save hundreds of billions of dollars annually (by conservative
estimates).[ 103 ]

															Thus, we should be celebrating the fact that
UNC, once a stronghold of Jim Crow, has now come to understand
this. The flagship educational institution of a former Confederate
State has embraced its constitutional obligation to afford genuine
equal protection to applicants, and, by extension, to the broader
polity that its students will serve after graduation. Surely that
is progress for a university that once engaged in the kind of
patently offensive race- dominated admissions process that the
majority decries.

															With its holistic review process, UNC now treats
race as merely one aspect of an applicant’s life, when race played
a totalizing, all-encompassing, and singularly determinative role
for applicants like James for most of this country’s history: No
matter what else was true about him, being Black meant he had no
shot at getting in (the ultimate race-linked uneven playing field).
Holistic programs like UNC’s reflect the reality that Black
students have only relatively recently been permitted to get into
the admissions game at all. Such programs also reflect
universities’ clear-eyed optimism that, one day, race will no longer matter.

															So much upside. Universal benefits ensue from
holistic admissions programs that allow consideration of all factors material to merit (including race), and that thereby
facilitate diverse student populations. Once trained, those UNC
students who have thrived in the university’s diverse learning
environment are well equipped to make lasting contributions in a
variety of realms and with a variety of colleagues, which, in turn,
will steadily decrease the salience of race for future generations.
Fortunately, UNC and other institutions of higher learning are
already on this beneficial path. In fact, all that they have needed
to continue moving this country forward (toward full achievement of
our Nation’s founding promises) is for this Court to get out of the
way and let them do their jobs. To our great detriment, the
majority cannot bring itself to do so.

															B

															The overarching reason the majority gives for
becoming an impediment to racial progress—that its own conception
of the Fourteenth Amendment’s Equal Protection Clause leaves it no
other option—has a wholly self-referential, two-dimensional
flatness. The majority and concurring opinions rehearse this
Court’s idealistic vision of racial equality, from Brown forward, with appropriate lament for past indiscretions. See, e.g. , ante , at 11. But the race-linked gaps that the
law (aided by this Court) previously founded and fostered—which
indisputably define our present reality—are strangely absent and do
not seem to matter.

															With let-them-eat-cake obliviousness, today, the
majority pulls the ripcord and announces “colorblindness for all”
by legal fiat. But deeming race irrelevant in law does not make it
so in life. And having so detached itself from this country’s
actual past and present experiences, the Court has now been lured
into interfering with the crucial work that UNC and other
institutions of higher learning are doing to solve America’s
real-world problems.

															No one benefits from ignorance. Although formal
race-linked legal barriers are gone, race still matters to the
lived experiences of all Americans in innumerable ways, and today’s
ruling makes things worse, not better. The best that can be said of
the majority’s perspective is that it proceeds (ostrich-like) from
the hope that preventing consideration of race will end racism. But
if that is its motivation, the majority proceeds in vain. If the
colleges of this country are required to ignore a thing that
matters, it will not just go away. It will take longer for
racism to leave us. And, ultimately, ignoring race just makes it
matter more.[ 104 ]

															The only way out of this morass—for all of us—is
to stare at racial disparity unblinkingly, and then do what
evidence and experts tell us is required to level the playing field
and march forward together, collectively striving to achieve true
equality for all Americans. It is no small irony that the judgment
the majority hands down today will forestall the end of race-based
disparities in this country, making the colorblind world the
majority wistfully touts much more difficult to accomplish.

															*  *  *

															As the Civil War neared its conclusion,
General William T. Sherman and Secretary of War Edwin Stanton
convened a meeting of Black leaders in Savannah, Georgia. During
the meeting, someone asked Garrison Frazier, the group’s
spokesperson, what “freedom” meant to him. He answered,
“ ‘placing us where we could reap the fruit of our own labor,
and take care of ourselves . . . to have land, and turn
it and till it by our own labor.’ ”[ 105 ]

															Today’s gaps exist because that freedom was
denied far longer than it was ever afforded. Therefore, as Justice
Sotomayor correctly and amply explains, UNC’s holistic review
program pursues a righteous end—legitimate “ ‘because it is
defined by the Constitution itself. The end is the maintenance of
freedom.’ ” Jones v. Alfred H. Mayer Co. , 392 U.S.
409 , 443–444 (1968) (quoting Cong. Globe, 39th Cong., 1st
Sess., 1118 (1866) (Rep. Wilson)).

															Viewed from this perspective, beleaguered
admissions programs such as UNC’s are not pursuing a patently
unfair, ends-justified ideal of a multiracial democracy at all.
Instead, they are engaged in an earnest effort to secure a more
functional one. The admissions rubrics they have constructed now
recognize that an individual’s “merit”—his ability to succeed in an
institute of higher learning and ultimately contribute something to
our society—cannot be fully determined without understanding that
individual in full. There are no special favorites here.

															UNC has thus built a review process that more
accurately assesses merit than most of the admissions programs
that have existed since this country’s founding. Moreover, in so
doing, universities like UNC create pathways to upward mobility for
long excluded and historically disempowered racial groups. Our
Nation’s history more than justifies this course of action. And our
present reality indisputably establishes that such programs are
still needed—for the general public good—because after centuries of
state- sanctioned (and enacted) race discrimination, the
aforementioned intergenerational race-based gaps in health, wealth,
and well-being stubbornly persist.

															Rather than leaving well enough alone, today,
the majority is having none of it. Turning back the clock (to a
time before the legal arguments and evidence establishing the
soundness of UNC’s holistic admissions approach existed), the Court
indulges those who either do not know our Nation’s history or long
to repeat it. Simply put, the race-blind admissions stance the
Court mandates from this day forward is unmoored from critical
real-life circumstances. Thus, the Court’s meddling not only
arrests the noble generational project that America’s universities
are attempting, it also launches, in effect, a dismally misinformed
sociological experiment.

															Time will reveal the results. Yet the Court’s
own missteps are now both eternally memorialized and excruciatingly
plain. For one thing—based, apparently, on nothing more than
Justice Powell’s initial say so—it drastically discounts the
primary reason that the racial-diversity objectives it excoriates
are needed, consigning race-related historical happenings to the
Court’s own analytical dustbin. Also, by latching onto arbitrary
timelines and professing insecurity about missing metrics, the
Court sidesteps unrefuted proof of the compelling benefits of
holistic admissions programs that factor in race (hard to do, for
there is plenty), simply proceeding as if no such evidence exists.
Then, ultimately, the Court surges to vindicate equality, but Don
Quixote style—pitifully perceiving itself as the sole vanguard of
legal high ground when, in reality, its perspective is not
constitutionally compelled and will hamper the best judgments of
our world-class educational institutions about who they need to
bring onto their campuses right now to benefit every American, no
matter their race.[ 106 ]

															The Court has come to rest on the bottom-line
conclusion that racial diversity in higher education is only worth
potentially preserving insofar as it might be needed to prepare
Black Americans and other underrepresented minorities for success
in the bunker, not the boardroom (a particularly awkward place to
land, in light of the history the majority opts to
ignore).[ 107 ] It would be
deeply unfortunate if the Equal Protection Clause actually demanded
this perverse, ahistorical, and counterproductive outcome. To
impose this result in that Clause’s name when it requires no such
thing, and to thereby obstruct our collective progress toward the
full realization of the Clause’s promise, is truly a tragedy for us
all. Notes 1 *Justice Jackson did not
participate in the consideration or decision of the case in No.
20–1199, and issues this opinion with respect to the case in No.
21–707. 2 M. Oliver & T.
Shapiro, Black Wealth/White Wealth: A New Perspective on Racial
Inequality 128 (1997) (Oliver & Shapiro) (emphasis
deleted). 3 An Appeal to Congress for
Impartial Suffrage, Atlantic Monthly (Jan. 1867), in 2 The
Reconstruction Amendments: The Essential Documents 324 (K. Lash ed.
2021) (Lash). 4 Speech of Sen. John
Sherman (Sept. 28, 1866) (Sherman), in id ., at 276; see also
W. Du Bois, Black Reconstruction in America 162 (1998) (Du
Bois). 5 See Sherman 276; M.
Curtis, No State Shall Abridge: The Fourteenth Amendment and the
Bill of Rights 48, 71–75, 91, 173 (1986). 6 Message Accompanying Veto
of the Civil Rights Bill (Mar. 27, 1866), in Lash 145. 7 Speech Introducing the
[Fourteenth] Amendment (May 8, 1866), in id. , at 159; see Du
Bois 670–710. 8 E. Foner, The Second
Founding 125–167 (2019) (Foner). 9 Id ., at
128. 10 M.
Baradaran, The Color of Money: Black Banks and the Racial Wealth
Gap 9–11 (2017) (Baradaran). 11 Foner
179; see also Baradaran 15–16; I. Wilkerson, The Warmth of Other
Suns: The Epic Story of America’s Great Migration 37 (2010)
(Wilkerson). 12 Baradaran 18. 13 Ibid. 14 R.
Rothstein, The Color of Law: A Forgotten History of How Our
Government Segregated America 154 (2017) (Rothstein); Baradaran
33–34; Wilkerson 53–55. 15 Baradaran 20–21; Du Bois 173–179,
694–696, 698–699; R. Goluboff, The Thirteenth Amendment and the
Lost Origins of Civil Rights, 50 Duke L. J. 1609, 1656–1659
(2001) (Goluboff ); Wilkerson 152 (noting persistence of this
practice “well into the 1940s”). 16 Baradaran 20. 17 Goluboff 1656–1659 (recounting
presence of these practices well into the 20th century); Wilkerson
162–163. 18 Rothstein 154. 19 C.
Black, The Lawfulness of the Segregation Decisions, 69 Yale
L. J. 421, 424 (1960); Foner 47–48; Du Bois 179, 696;
Baradaran 38–39. 20 T.
Shanks, The Homestead Act: A Major Asset-Building Policy in
American History, in Inclusion in the American Dream: Assets,
Poverty, and Public Policy 23–25 (M. Sherraden ed. 2005) (Shanks);
see also Baradaran 18. 21 Shanks 32–37; Oliver & Shapiro
37–38. 22 Wilkerson 8–10; Rothstein
155. 23 Id ., at 43–50; Baradaran
90–92. 24 Ibid. ; Rothstein 172–173;
Wilkerson 269–271. 25 Baradaran 90. 26 I.
Katznelson, When Affirmative Action Was White: An Untold History of
Racial Inequality in Twentieth-Century America 29–35 (2005)
(Katznelson). 27 D.
Massey & N. Denton, American Apartheid: Segregation and the
Making of the Underclass 51–53 (1993); Oliver & Shapiro
16–18. 28 Rothstein 63. 29 Id ., at 63–64. 30 Id. , at 64; see Oliver &
Shapiro 16–18; Baradaran 105. 31 Rothstein 64. 32 Ibid. 33 Id ., at 67. 34 Baradaran 108; see Rothstein
69–75. 35 Id. , at 9, 13,
70. 36 Id. , at 108. 37 Ibid . 38 R.
Schragger, The Limits of Localism, 100 Mich. L. Rev. 371, 411,
n. 144 (2001); see also Rothstein 182–183. 39 Oliver & Shapiro 18. 40 Id ., at 43–44; Baradaran 109,
253–254; A. Dickerson, Shining a Bright Light on the Color of
Wealth, 120 Mich. L. Rev. 1085, 1100 (2022)
(Dickerson). 41 Katznelson 53; see id. , at 22,
29, 42–48, 53–61; Rothstein 31, 155–156. 42 Katznelson 113–114; see id. ,
at 113–141; see also, e.g. , id. , at 139–140 (Black
veterans, North and South, were routinely denied loans that White
veterans received); Rothstein 167. 43 Baradaran 112–113. 44 Katznelson 22–23; Rothstein
167. 45 Id. , at 54–56, 65, 127–131,
217; Stanford Institute for Economic Policy Research, Measuring and
Mitigating Disparities in Tax Audits 1–7 (2023); Dickerson
1096–1097. 46 What
the Black Man Wants: An Address Delivered in Boston, Massachusetts,
on 26 January 1865, in 4 The Frederick Douglass Papers 68 (J.
Blassingame & J. McKivigan eds. 1991). 47 Dickerson 1086 (citing data from 2019
Federal Reserve Survey of Consumer Finances); see also Rothstein
184 (reporting, in 2017, even lower median-wealth number of
$11,000). 48 Dickerson 1086; see also Rothstein
184 (reporting even larger relative gap in 2017 of $134,000 to
$11,000). 49 Baradaran 249; see also Dickerson
1089–1090; Oliver & Shapiro 94–95, 100–101, 110–111,
197. 50 See
Brief for National Academy of Education as Amicus Curiae 14–15 (citing U. S. Census Bureau statistics). 51 Id. , at 14 (citing U. S.
Census Bureau statistics); Rothstein 184 (reporting similarly stark
White/Black income gap numbers in 2017). Early returns suggest that
the COVID–19 pandemic exacerbated these disparities. See E.
Derenoncourt, C. Kim, M. Kuhn, & M. Schularick, Wealth of Two
Nations: The U. S. Racial Wealth Gap, 1860–2020, p. 22 (Fed.
Reserve Bank of Minneapolis, Opportunity & Inclusive Growth
Inst., Working Paper No. 59, June 2022) (Wealth of Two Nations); L.
Bollinger & G. Stone, A Legacy of Discrimination: The Essential
Constitutionality of Affirmative Action 103 (2023) (Bollinger &
Stone). 52 Id. , at 87; Wealth of Two
Nations 77–79. 53 Id ., at 78, 89; Bollinger
& Stone 94–95; Dickerson 1101. 54 Bollinger & Stone
99–100. 55 Id. , at 99, and n.
58. 56 Dickerson 1088; Bollinger & Stone
100, and n. 63. 57 ABA,
Profile of the Legal Profession 33 (2020). 58 Bollinger & Stone 106; Brief for
HR Policy Association as Amicus Curiae 18–19. 59 Dickerson 1102. 60 Rothstein 230. 61 Brief
for Association of American Medical Colleges et al. as Amici Curiae 8 (AMC Brief ). 62 C.
Caraballo et al., Excess Mortality and Years of Potential Life
Lost Among the Black Population in the U. S., 1999–2020, 329
JAMA 1662, 1663, 1667 (May 16, 2023) (Caraballo). 63 Bollinger & Stone
101. 64 S.
Whetstone et al., Health Disparities in Uterine Cancer: Report
From the Uterine Cancer Evidence Review Conference, 139 Obstetrics
& Gynecology 645, 647–648 (2022). 65 AMC
Brief 8–9. 66 Bollinger & Stone 101; Caraballo
1663–1665, 1668. 67 Bollinger & Stone 101 (footnotes
omitted). 68 Caraballo 1667. 69 Ibid. 70 AMC
Brief 9. 71 Bollinger & Stone
100. 72 See
Report on the Alleged Outrages in the Southern States, S. Rep. No.
1, 42d Cong., 1st Sess., I–XXXII (1871). 73 See
D. Tokaji, Realizing the Right To Vote: The Story of Thornburg
v. Gingles , in Election Law Stories 133–139 (J. Douglas &
E. Mazo eds. 2016); see Foner xxii. 74 3
App. 1683. 75 Id ., at
1687–1688. 76 See
O. James, Valuing Identity, 102 Minn. L. Rev. 127, 162 (2017);
P. Karlan & D. Levinson, Why Voting Is Different, 84 Cal.
L. Rev. 1201, 1217 (1996). 77 567
F. Supp. 3d 580, 595 (MDNC 2021). 78 Id. , at 596; 1 App. 348; Decl.
of J. Rosenberg in No. 1:14–cv–954 (MDNC, Jan. 18, 2019), ECF Doc.
154–7, ¶10 (Rosenberg). 79 1
App. 350; see also 3 id. , at 1414–1415. 80 Id. , at 1414. 81 Id ., at 1415. 82 Id. , at 1416; see also 2 id. , at 706; Rosenberg ¶22. 83 3
App. 1416 (emphasis added); see also 2 id. , at
631–639. 84 567
F. Supp. 3d, at 591, 595; 2 App. 638 (Farmer, when asked how
race could “b[e] a potential plus” for “students other than
underrepresented minority students,” pointing to a North Carolinian
applicant, originally from Vietnam, who identified as “Asian and
Montagnard”); id. , at 639 (Farmer stating that “the whole of
[that student’s] background was appealing to us when we evaluated
her applicatio[n],” and noting how her “story reveals sometimes how
hard it is to separate race out from other things that we know
about a student. That was integral to that student’s story. It was
part of our understanding of her, and it played a role in our
deciding to admit her”). 85 3 id. , at 1416; Rosenberg ¶25. 86 2
App. 631. 87 Id. , at 636–637,
713. 88 3 id. , at 1416; 2 id. , at 699–700. 89 Id. , at 699; see also
Rosenberg ¶24. 90 2
App. 706, 708; 3 id. , at 1415–1416. 91 2 id. , at 706, 708; 3 id. , at 1415–1416. 92 A
reader might miss this because the majority does not bother todrill
down on how UNC’s holistic admissions process operates. Perhaps
that explains its failure to apprehend (by reviewing the evidence
presented at trial) that everyone, no matter their race, is
eligible for a diversity-linked plus. Compare ante , at 5,
and n. 1, with 3 App. 1416, and supra , at 17. The
majority also repeatedly mischaracterizes UNC’s holistic
admissions-review process as a “race-based admissions system,” and
insists that UNC’s program involves “separating students on the
basis of race” and “pick[ing only certain] races to benefit.” Ante , at 5, and n. 1, 26, 38. These claims would be
concerning if they had any basis in the record. The majority
appears to have misunderstood (or categorically rejected) the
established fact that UNC treats race as merely one of the many
aspects of an applicant that, in the real world, matter to
understanding the whole person. Moreover, its holistic review
process involves reviewing a wide variety of personal criteria, not
just race. Every applicant competes against thousands of other
applicants, each of whom has personal qualities that are taken into
account and that other applicants do not—and could not—have. Thus,
the elimination of the race-linked plus would still leave
SFFA’s members competing against thousands of other applicants to
UNC, each of whom has potentially plus-conferring qualities that a
given SFFA member does not. 93 See 3
App. 1409, 1414, 1416. 94 Id. , at
1414–1415. 95 See
567 F. Supp. 3d, at 617, 619; 3 App. 1078–1080. The majority
cannot deny this factual finding. Instead, it conducts its own
back-of-the-envelope calculations (its numbers appear nowhere in
the District Court’s opinion) regarding “the overall acceptance rates of academically excellent applicants to UNC,” in
an effort to trivialize the District Court’s conclusion. Ante , at 5, n. 1. I am inclined to stick with the
District Court’s findings over the majority’s unauthenticated
calculations. Even when the majority’s ad hoc statistical
analysis is taken at face value, it hardly supports what the
majority wishes to intimate: that Black students are being admitted
based on UNC’s myopic focus on “race—and race alone.” Ante ,
at 28, n. 6. As the District Court observed, if these Black
students “were largely defined in the admissions process by their
race, one would expect to find that every ” such student
“demonstrating academic excellence . . . would be
admitted.” 567 F. Supp. 3d, at 619 (emphasis added). Contrary
to the majority’s narrative, “race does not even act as a tipping
point for some students with otherwise exceptional qualifications.” Ibid. Moreover, as the District Court also found, UNC does
not even use the bespoke “academic excellence” metric that SFFA’s
expert “ ‘invented’ ” for this litigation. Id. , at
617, 619; see also id. , at 624–625. The majority’s
calculations of overall acceptance rates by race on that metric bear scant relationship to, and thus are no indictment of,
how UNC’s admissions process actually works (a recurring theme in
its opinion). 96 See
Bollinger & Stone 86, 103. 97 See, e.g. , Brief for University of Michigan as Amicus
Curiae 6, 24; Brief for President and Chancellors of University
of California as Amici Curiae 20–29; Brief for American
Psychological Association et al. as Amici Curiae 14–16,
21–23 (APA Brief ). 98 Id. , at 14–20,
23–27. 99 AMC
Brief 4, 14; see also Brief for American Federation of Teachers as Amicus Curiae 10 (AFT Brief ) (collecting further
studies on the “tangible benefits” of patients’ access to doctors
who look like them). 100 AMC
Brief 4. 101 National Research Council, New
Horizons in Health: An Integrative Approach 100–111 (2001); Pollack
et al., Should Health Studies Measure Wealth? A Systematic
Review, 33 Am. J. Preventative Med. 250, 252, 261–263 (2007); see
also Part I–B, supra . 102 See
APA Brief 14–20, 23–27 (collecting studies); AFT Brief 11–12
(same); Brief for National School Boards Association et al. as Amici Curiae 6–11 (same); see also 567 F. Supp. 3d, at
592–593, 655–656 (factual findings in this case with respect to
these benefits). 103 LaVeist et al., The Economic
Burden of Racial, Ethnic, and Educational Health Inequities in the
U. S., 329 JAMA 1682, 1683–1684, 1689, 1691 (May 16,
2023). 104 Justice Thomas’s prolonged attack, ante , at 49–55 (concurring opinion), responds to a dissent I
did not write in order to assail an admissions program that is not
the one UNC has crafted. He does not dispute any historical or
present fact about the origins and continued existence of
race-based disparity (nor could he), yet is somehow persuaded that
these realities have no bearing on a fair assessment of “individual
achievement,” ante , at 51. Justice Thomas’s opinion also
demonstrates an obsession with race consciousness that far
outstrips my or UNC’s holistic understanding that race can be a
factor that affects applicants’ unique life experiences. How else
can one explain his detection of “an organizing principle based on
race,” a claim that our society is “fundamentally racist,” and a
desire for Black “victimhood” or racial “silo[s],” ante , at
49–52, in this dissent’s approval of an admissions program that
advances all Americans’ shared pursuit of true equality by treating
race “on par with” other aspects of identity, supra , at 18?
Justice Thomas ignites too many more straw men to list, or fully
extinguish, here. The takeaway is that those who demand that no one
think about race (a classic pink-elephant paradox) refuse to see,
much less solve for, the elephant in the room—the race-linked
disparities that continue to impede achievement of our great
Nation’s full potential. Worse still, by insisting that obvious
truths be ignored, they prevent our problem-solving institutions
from directly addressing the real import and impact of “social
racism” and “government-imposed racism,” ante , at 55
(Thomas, J., concurring), thereby deterring our collective
progression toward becoming a society where race no longer
matters. 105 Foner 179. 106 Justice Sotomayor has fully explained
why the majority’s analysis is legally erroneous and how UNC’s
holistic review program is entirely consistent with the Fourteenth
Amendment. My goal here has been to highlight the interests at
stake and to show that holistic admissions programs that factor in
race are warranted, just, and universally beneficial. All told, the
Court’s myopic misunderstanding of what the Constitution permits
will impede what experts and evidence tell us is required (as a
matter of social science) to solve for pernicious race-based
inequities that are themselves rooted in the persistent denial of
equal protection. “[T]he potential consequences of the [majority’s]
approach, as measured against the Constitution’s objectives
. . . provides further reason to believe that the
[majority’s] approach is legally unsound.” Parents Involved in
Community Schools v. Seattle School Dist. No. 1 , 551 U.S.
701 , 858 (2007) (Breyer, J., dissenting). I fear that the
Court’s folly brings our Nation to the brink of coming “full
circle” once again. Regents of Univ. of Cal. v. Bakke , 438 U.S.
265 , 402 (1978) (opinion of Marshall, J.). 107 Compare ante , at 22,
n. 4, with ante , at 22–30, and supra , at 3–4,
and nn. 2–3.

Summary: The Supreme Court considered the admissions processes of Harvard College and the University of North Carolina, which take race into account as one of several factors. The Court evaluated the legality of these processes under the Equal Protection Clause of the Fourteenth Amendment. The Court's opinion, delivered by Chief Justice Roberts, acknowledged the highly selective nature of Harvard's admissions, where an applicant's race can influence their chances of admission. The Court's decision addressed the use of race as a factor in university admissions, with Justice Thomas dissenting and Justice Sotomayor providing a counterargument.