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															SUPREME COURT OF THE UNITED STATES

															_________________

															No. 11–345

															_________________

															ABIGAIL NOEL FISHER, PETITIONER v. UNIVERSITY
OF TEXAS AT AUSTIN et al.

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

															[June 24, 2013]

															     Justice Kennedy
delivered the opinion of the Court.

															     The University of Texas
at Austin considers race as one of various factors in its
undergraduate admissions process. Race is not itself assigned a
numerical value for each ap-plicant, but the University has
committed itself to increasing racial minority enrollment on
campus. It refers to this goal as a “critical mass.”
Petitioner, who is Caucasian, sued the University after her
application was re-jected. She contends that the University’s
use of race in the admissions process violated the Equal Protection
Clause of the Fourteenth Amendment.

															     The parties asked the
Court to review whether the judgment below was consistent with
“this Court’s deci-sions interpreting the Equal
Protection Clause of the Four- teenth Amendment, including Grutter
v. Bollinger, 539 U. S. 306 (2003) .” Pet. for Cert. i.
The Court concludes that the Court of Appeals did not hold the
University to the demanding burden of strict scrutiny articulated
in Grutter and Regents of Univ. of Cal. v. Bakke, 438 U. S.
265, 305 (1978) (opinion of Powell, J.). Because the Court of
Appeals did not apply the correct standard of strict scrutiny, its
decision affirming the District Court’s grant of summary
judgment to the University was incorrect. That decision is vacated,
and the case is remanded for further proceedings.

															I

															A

															     Located in Austin,
Texas, on the most renowned campus of the Texas state university
system, the University is one of the leading institutions of higher
education in the Nation. Admission is prized and competitive. In
2008, when petitioner sought admission to the University’s
entering class, she was 1 of 29,501 applicants. From this group
12,843 were admitted, and 6,715 accepted and enrolled. Petitioner
was denied admission.

															     In recent years the
University has used three different programs to evaluate candidates
for admission. The first is the program it used for some years
before 1997, when the University considered two factors: a
numerical score reflecting an applicant’s test scores and
academic perform-ance in high school (Academic Index or AI), and
the applicant’s race. In 1996, this system was held
unconstitutional by the United States Court of Appeals for the
Fifth Circuit. It ruled the University’s consideration of
race violated the Equal Protection Clause because it did not
further any compelling government interest. Hopwood v. Texas, 78
F. 3d 932, 955 (1996).

															     The second program was
adopted to comply with the Hopwood decision. The University stopped
considering race in admissions and substituted instead a new
holistic metric of a candidate’s potential contribution to
the University, to be used in conjunction with the Academic Index.
This “Personal Achievement Index” (PAI) measures a
student’s leadership and work experience, awards,
extracurricular activities, community service, and other special
circumstances that give insight into a student’s background.
These included growing up in a single-parent home, speaking a
language other than English at home, significant family
responsibilities assumed by the applicant, and the general
socioeconomic condition of the student’s family. Seeking to
address the decline in minority enrollment after Hopwood, the
University also expanded its outreach programs.

															     The Texas State
Legislature also responded to the Hop-wood decision. It enacted a
measure known as the Top Ten Percent Law, codified at Tex. Educ.
Code Ann. §51.803 (West 2009). Also referred to as H. B.
588, the Top Ten Percent Law grants automatic admission to any
public state college, including the University, to all students in
the top 10% of their class at high schools in Texas that comply
with certain standards.

															     The University’s
revised admissions process, coupled with the operation of the Top
Ten Percent Law, resulted in a more racially diverse environment at
the University. Before the admissions program at issue in this
case, in the last year under the post-Hopwood AI/PAI system that
did not consider race, the entering class was 4.5% African-American
and 16.9% Hispanic. This is in contrast with the 1996 pre-Hopwood
and Top Ten Percent regime, when race was explicitly considered,
and the University’s entering freshman class was 4.1%
African-American and 14.5% Hispanic.

															     Following this
Court’s decisions in Grutter v. Bollinger, supra, and Gratz
v. Bollinger, 539 U. S. 244 (2003) , the University adopted a
third admissions program, the 2004 program in which the University
reverted to explicit consideration of race. This is the program
here at issue. In Grutter, the Court upheld the use of race as one
of many “plus factors” in an admissions program that
considered the overall individual contribution of each candidate.
In Gratz, by contrast, the Court held unconstitutional
Michigan’s undergraduate admissions program, which
automatically awarded points to applicants from certain racial
minorities.

															     The University’s
plan to resume race-conscious admissions was given formal
expression in June 2004 in an in-ternal document entitled Proposal
to Consider Race and Ethnicity in Admissions (Proposal). Supp. App.
1a. The Proposal relied in substantial part on a study of a subset
of undergraduate classes containing between 5 and 24 students. It
showed that few of these classes had significant enrollment by
members of racial minorities. In addition the Proposal relied on
what it called “anecdotal” reports from students
regarding their “interaction in the classroom.” The
Proposal concluded that the University lacked a “critical
mass” of minority students and that to remedy the deficiency
it was necessary to give explicit consideration to race in the
undergraduate admissions program.

															     To implement the
Proposal the University included a student’s race as a
component of the PAI score, begin- ning with applicants in the fall
of 2004. The University asks students to classify themselves from
among five predefined racial categories on the application. Race is
not assigned an explicit numerical value, but it is undisputed that
race is a meaningful factor.

															     Once applications have
been scored, they are plotted on a grid with the Academic Index on
the x-axis and the Personal Achievement Index on the y-axis. On
that grid students are assigned to so-called cells based on their
individual scores. All students in the cells falling above a
certain line are admitted. All students below the line are not.
Each college—such as Liberal Arts or Engineering—admits
students separately. So a student is considered initially for her
first-choice college, then for her second choice, and finally for
general admission as an undeclared major.

															     Petitioner applied for
admission to the University’s 2008 entering class and was
rejected. She sued the University and various University officials
in the United States District Court for the Western District of
Texas. She alleged that the University’s consideration of
race in admissions violated the Equal Protection Clause. The
parties cross-moved for summary judgment. The District Court
granted summary judgment to the University. The United States Court
of Appeals for the Fifth Circuit affirmed. It held that Grutter
required courts to give substantial deference to the University,
both in the definition of the compelling interest in
diversity’s benefits and in deciding whether its specific
plan was narrowly tailored to achieve its stated goal. Applying
that standard, the court upheld the University’s admissions
plan. 631 F. 3d 213, 217–218 (2011).

															     Over the dissent of
seven judges, the Court of Appeals denied petitioner’s
request for rehearing en banc. See 644 F. 3d 301, 303 (CA5
2011) (per curiam). Petitioner sought a writ of certiorari.
The writ was granted. 565 U. S. ___ (2012).

															B

															     Among the
Court’s cases involving racial classifications in education,
there are three decisions that directly address the question of
considering racial minority status as a positive or favorable
factor in a university’s admissions process, with the goal of
achieving the educational benefits of a more diverse student body:
Bakke, 438 U. S. 265 ; Gratz, supra; and Grutter, 539
U. S. 306 . We take those cases as given for purposes of
deciding this case.

															     We begin with the
principal opinion authored by Justice Powell in Bakke, supra. In
Bakke, the Court considered a system used by the medical school of
the University of California at Davis. From an entering class of
100 students the school had set aside 16 seats for minority
applicants. In holding this program impermissible under the Equal
Protection Clause Justice Powell’s opinion stated certain
basic premises. First, “decisions based on race or ethnic
origin by faculties and administrations of state universities are
reviewable under the Fourteenth Amend-ment.” Id., at 287
(separate opinion). The principle of equal protection admits no
“artificial line of a ‘two- class
theory’ ” that “permits the recognition of
special wards entitled to a degree of protection greater than that
accorded others.” Id., at 295. It is therefore irrelevant
that a system of racial preferences in admissions may seem benign.
Any racial classification must meet strict scrutiny, for when
government decisions “touch upon an individual’s race
or ethnic background, he is entitled to a judicial determination
that the burden he is asked to bear on that basis is precisely
tailored to serve a compelling governmental interest.” Id.,
at 299.

															     Next, Justice Powell
identified one compelling interest that could justify the
consideration of race: the interest in the educational benefits
that flow from a diverse student body. Redressing past
discrimination could not serve as a compelling interest, because a
university’s “broad mission [of] education” is
incompatible with making the “judicial, legislative, or
administrative findings of constitutional or statutory
violations” necessary to justify remedial racial
classification. Id., at 307–309.

															     The attainment of a
diverse student body, by contrast, serves values beyond race alone,
including enhanced class-room dialogue and the lessening of racial
isolation and stereotypes. The academic mission of a university is
“a special concern of the First Amendment.” Id., at
312. Part of “ ‘the business of a university [is]
to provide that atmosphere which is most conducive to speculation,
experiment, and creation,’ ” and this in turn
leads to the question of “ ‘who may be admitted to
study.’ ” Sweezy v. New Hampshire, 354 U. S.
234, 263 (1957) (Frankfurter, J., concurring in judgment).

															     Justice Powell’s
central point, however, was that this interest in securing
diversity’s benefits, although a permissible objective, is
complex. “It is not an interest in simple ethnic diversity,
in which a specified percentage of the student body is in effect
guaranteed to be members of selected ethnic groups, with the
remaining percentage an undifferentiated aggregation of students.
The diversity that furthers a compelling state interest encompasses
a far broader array of qualifications and characteristics of which
racial or ethnic origin is but a single though important
element.” Bakke, 438 U. S., at 315 (separate
opinion).

															     In Gratz, 539
U. S. 244 , and Grutter, supra, the Court endorsed the
precepts stated by Justice Powell. In Grutter, the Court reaffirmed
his conclusion that obtaining the educational benefits of
“student body diversity is a compelling state interest that
can justify the use of race in university admissions.” Id.,
at 325.

															     As Gratz and Grutter
observed, however, this follows only if a clear precondition is
met: The particular admissions process used for this objective is
subject to judicial review. Race may not be considered unless the
admissions process can withstand strict scrutiny. “Nothing in
Justice Powell’s opinion in Bakke signaled that a university
may employ whatever means it desires to achieve the stated goal of
diversity without regard to the limits imposed by our strict
scrutiny analysis.” Gratz, supra, at 275. “To be
narrowly tailored, a race-conscious admissions program cannot use a
quota system,” Grutter, 539 U. S., at 334, but instead
must “remain flexible enough to ensure that each applicant is
evaluated as an individual and not in a way that makes an
applicant’s race or ethnicity the defining feature of his or
her application,” id., at 337. Strict scru-tiny requires the
university to demonstrate with clarity that its “purpose or
interest is both constitutionally permissible and substantial, and
that its use of the classification is necessary . . . to
the accomplishment of its purpose.” Bakke, 438 U. S., at
305 (opinion of Powell, J.) (internal quotation marks omitted).

															     While these are the
cases that most specifically address the central issue in this
case, additional guidance may be found in the Court’s broader
equal protection jurisprudence which applies in this context.
“Distinctions between citizens solely because of their
ancestry are by their very nature odious to a free people,”
Rice v. Cayetano, 528 U. S. 495, 517 (2000) (internal
quotation marks omitted), and therefore “are contrary to our
traditions and hence constitutionally suspect,” Bolling v.
Sharpe, 347 U. S. 497, 499 (1954) .
“ ‘[B]ecause racial characteristics so seldom
provide a relevant basis for disparate
treatment,’ ” Richmond v. J. A. Croson Co., 488
U. S. 469, 505 (1989) (quoting Fullilove v. Klutznick, 448
U. S. 448 –534 (1980) (Stevens, J., dissenting)),
“the Equal Protection Clause demands that racial
classifications . . . be subjected to the
‘most rigid scrutiny.’ ” Loving v. Virginia,
388 U. S. 1, 11 (1967) .

															     To implement these
canons, judicial review must begin from the position that
“any official action that treats a person differently on
account of his race or ethnic origin is inherently suspect.”
Fullilove, supra, at 523 (Stewart, J., dissenting); McLaughlin v.
Florida, 379 U. S. 184, 192 (1964) . Strict scrutiny is a
searching examination, and it is the government that bears the
burden to prove “ ‘that the reasons for any
[racial] classification [are] clearly iden-tified and
unquestionably legitimate,’ ” Croson, supra, at
505 (quoting Fullilove, 448 supra, at 533–535 (Stevens, J.,
dissenting)).

															II

															     Grutter made clear
that racial “classifications are constitutional only if they
are narrowly tailored to further compelling governmental
interests.” 539 U. S., at 326. And Grutter endorsed
Justice Powell’s conclusion in Bakke that “the
attainment of a diverse student body . . . is a
consti-tutionally permissible goal for an institution of higher
education.” 438 U. S., at 311–312 (separate
opinion). Thus, under Grutter, strict scrutiny must be applied to
any admissions program using racial categories or
classifications.

															     According to Grutter, a
university’s “educational judgment that such diversity
is essential to its educational mission is one to which we
defer.” 539 U. S., at 328. Grutter concluded that the
decision to pursue “the educational benefits that flow from
student body diversity,” id., at 330, that the University
deems integral to its mission is, in substantial measure, an
academic judgment to which some, but not complete, judicial
deference is proper under Grutter. A court, of course, should
ensure that there is a reasoned, principled explanation for the
academic decision. On this point, the District Court and Court of
Appeals were correct in finding that Grutter calls for de-ference
to the University’s conclusion, “ ‘based on
its experience and expertise,’ ” 631 F. 3d,
at 230 (quoting 645 F. Supp. 2d 587, 603 (WD Tex. 2009)), that
a diverse student body would serve its educational goals. There is
disagreement about whether Grutter was consistent with the
principles of equal protection in approving this compelling
interest in diversity. See post, at 1 (Scalia, J., concurring);
post, at 4–5 (Thomas, J., concurring); post, at 1–2
(Ginsburg, J., dissenting). But the parties here do not ask the
Court to revisit that aspect of Grutter’s holding.

															     A university is not
permitted to define diversity as “some specified percentage
of a particular group merely because of its race or ethnic
origin.” Bakke, supra, at 307 (opinion of Powell, J.).
“That would amount to outright racial balancing, which is
patently unconstitutional.” Grutter, supra, at 330.
“Racial balancing is not transformed from ‘patently
unconstitutional’ to a compelling state interest simply by
relabeling it ‘racial diversity.’ ” Parents
Involved in Community Schools v. Seattle School Dist. No. 1, 551
U. S. 701, 732 (2007) .

															     Once the University has
established that its goal of di-versity is consistent with strict
scrutiny, however, there must still be a further judicial
determination that the admissions process meets strict scrutiny in
its implementation. The University must prove that the means chosen
by the University to attain diversity are narrowly tailored to that
goal. On this point, the University receives no deference. Grutter
made clear that it is for the courts, not for university
administrators, to ensure that “[t]he means chosen to
accomplish the [government’s] asserted purpose must be
specifically and narrowly framed to accomplish that purpose.”
539 U. S., at 333 (internal quotation marks omitted). True, a
court can take account of a university’s experience and
expertise in adopting or rejecting certain admissions processes.
But, as the Court said in Grutter, it remains at all times the
University’s obligation to demonstrate, and the
Judiciary’s obligation to determine, that admissions
processes “ensure that each applicant is evaluated as an
individual and not in a way that makes an applicant’s race or
ethnicity the defining feature of his or her application.”
Id., at 337.

															     Narrow tailoring also
requires that the reviewing court verify that it is
“necessary” for a university to use race to achieve the
educational benefits of diversity. Bakke, supra, at 305. This
involves a careful judicial inquiry into whether a university could
achieve sufficient diversity without using racial classifications.
Although “[n]arrow tailoring does not require exhaustion of
every conceivable race-neutral alternative,” strict scrutiny
does require a court to examine with care, and not defer to, a
university’s “serious, good faith consideration of
workable race-neutral alternatives.” See Grutter, 539
U. S., at 339–340 (emphasis added). Consideration by the
university is of course necessary, but it is not sufficient to
satisfy strict scrutiny: The reviewing court must ultimately be
satisfied that no workable race-neutral alternatives would produce
the edu-cational benefits of diversity. If “ ‘a
nonracial approach . . . could promote the substantial
interest about as well and at tolerable administrative
expense,’ ” Wygant v. Jackson Bd. of Ed., 476
U. S. 267 , n. 6 (1986) (quoting Greenawalt, Judicial
Scrutiny of “Benign” Racial Preference in Law School
Admissions, 75 Colum. L. Rev. 559, 578–579 (1975)), then
the university may not consider race. A plaintiff, of course, bears
the burden of placing the validity of a university’s adoption
of an affirmative action plan in issue. But strict scrutiny imposes
on the univer-sity the ultimate burden of demonstrating, before
turning to racial classifications, that available, workable
race-neutral alternatives do not suffice.

															     Rather than perform
this searching examination, however, the Court of Appeals held
petitioner could challenge only “whether [the
University’s] decision to reintroduce race as a factor in
admissions was made in good faith.” 631 F. 3d, at 236.
And in considering such a challenge, the court would “presume
the University acted in good faith” and place on petitioner
the burden of rebutting that presumption. Id., at 231–232.
The Court of Appeals held that to “second-guess the
merits” of this aspect of the University’s decision was
a task it was “ill-equipped to perform” and that it
would attempt only to “ensure that [the University’s]
decision to adopt a race-conscious admissions policy followed from
[a process of] good faith consideration.” Id., at 231. The
Court of Appeals thus concluded that “the narrow-tailoring
inquiry—like the compelling-interest inquiry—is
undertaken with a degree of deference to the Universit[y].”
Id., at 232. Because “the efforts of the University have been
studied, serious, and of high purpose,” the Court of Appeals
held that the use of race in the admissions program fell within
“a constitutionally protected zone of discretion.” Id.,
at 231.

															     These expressions of
the controlling standard are at odds with Grutter’s command
that “all racial classifications imposed by government
‘must be analyzed by a reviewing court under strict
scrutiny.’ ” 539 U. S., at 326 (quoting
Adarand Constructors, Inc. v. Peña, 515 U. S. 200, 227
(1995) ). In Grutter, the Court approved the plan at issue upon
concluding that it was not a quota, was sufficiently flexible, was
limited in time, and followed “serious, good faith
consideration of workable race-neutral alternatives.” 539
U. S., at 339. As noted above, see supra, at 1, the parties do
not challenge, and the Court therefore does not consider, the
correctness of that determination.

															     Grutter did not hold
that good faith would forgive an impermissible consideration of
race. It must be remembered that “the mere recitation of a
‘benign’ or legitimate purpose for a racial
classification is entitled to little or no weight.” Croson,
488 U. S., at 500. Strict scrutiny does not permit a court to
accept a school’s assertion that its admissions process uses
race in a permissible way without a court giving close analysis to
the evidence of how the process works in practice.

															     The higher education
dynamic does not change the narrow tailoring analysis of strict
scrutiny applicable in other contexts. “[T]he analysis and
level of scrutiny applied to determine the validity of [a racial]
classification do not vary simply because the objective appears
acceptable . . . . While the validity and importance
of the objective may affect the outcome of the analysis, the
analysis itself does not change.” Mississippi Univ. for Women
v. Hogan, 458 U. S. 718 , n. 9 (1982).

															     The District Court and
Court of Appeals confined the strict scrutiny inquiry in too narrow
a way by deferring to the University’s good faith in its use
of racial classifications and affirming the grant of summary
judgment on that basis. The Court vacates that judgment, but
fairness to the litigants and the courts that heard the case
requires that it be remanded so that the admissions process can be
considered and judged under a correct analysis. See Adarand, supra,
at 237. Unlike Grutter, which was decided after trial, this case
arises from cross-motions for summary judgment. In this case, as in
similar cases, in determining whether summary judgment in favor of
the University would be appropriate, the Court of Appeals must
assess whether the University has offered sufficient evidence that
would prove that its admissions program is narrowly tailored to
obtain the educational benefits of diversity. Whether this
record—and not “simple . . . assurances of
good intention,” Croson, supra, at 500—is sufficient is
a question for the Court of Appeals in the first instance.

															*  *  *

															     Strict scrutiny must
not be “ ‘strict in theory, but fatal in
fact,’ ” Adarand, supra, at 237; see also Grutter,
supra, at 326. But the opposite is also true. Strict scrutiny must
not be strict in theory but feeble in fact. In order for judicial
review to be meaningful, a university must make a showing that its
plan is narrowly tailored to achieve the only interest that this
Court has approved in this context: the benefits of a student body
diversity that “encompasses a . . . broa[d] array
of qualifications and characteristics of which racial or ethnic
origin is but a single though important element.” Bakke, 438
U. S., at 315 (opinion of Powell, J.). The judgment of the
Court of Appeals is vacated, and the case is remanded for further
proceedings consistent with this opinion.

															It is so ordered.

															     Justice Kagan took no
part in the consideration or decision of this case. SUPREME COURT OF THE UNITED STATES

															_________________

															No. 11–345

															_________________

															ABIGAIL NOEL FISHER, PETITIONER v. UNIVERSITY
OF TEXAS AT AUSTIN et al.

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

															[June 24, 2013]

															     Justice Scalia,
concurring.

															     I adhere to the view I
expressed in Grutter v. Bollinger: “The Constitution
proscribes government discrimination on the basis of race, and
state-provided education is no exception.” 539 U. S.
306, 349 (2003) (opinion concurring in part and dissenting in
part). The petitioner in this case did not ask us to overrule
Grutter’s holding that a “compelling interest” in
the educational benefits of diversity can justify racial
preferences in university admissions. Tr. of Oral Arg. 8–9. I
therefore join the Court’s opinion in full. SUPREME COURT OF THE UNITED STATES

															_________________

															No. 11–345

															_________________

															ABIGAIL NOEL FISHER, PETITIONER v. UNIVERSITY
OF TEXAS AT AUSTIN et al.

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

															[June 24, 2013]

															     Justice Thomas,
concurring.

															     I join the
Court’s opinion because I agree that the Court of Appeals did
not apply strict scrutiny to the University of Texas at
Austin’s (University) use of racial discrimi- nation in
admissions decisions. Ante, at 1. I write separately to explain
that I would overrule Grutter v. Bollinger, 539 U. S. 306
(2003) , and hold that a State’s use of race in higher
education admissions decisions is categorically prohibited by the
Equal Protection Clause.

															I

															A

															     The Fourteenth
Amendment provides that no State shall “deny to any person
. . . the equal protection of the laws.” The Equal
Protection Clause guarantees every person the right to be treated
equally by the State, without regard to race. “At the heart
of this [guarantee] lies the principle that the government must
treat citizens as individuals, and not as members of racial,
ethnic, or religious groups.” Missouri v. Jenkins, 515
U. S. 70 –121 (1995) (Thomas, J., concurring). “It
is for this reason that we must subject all racial classifications
to the strictest of scrutiny.” Id., at 121.

															     Under strict scrutiny,
all racial classifications are categorically prohibited unless they
are “ ‘necessary to further a compelling
governmental interest’ ” and “narrowly
tailored to that end.” Johnson v. California, 543 U. S.
499, 514 (2005) (quoting Grutter, supra, at 327). This most
exacting standard “has proven automatically fatal” in
almost every case. Jenkins, supra, at 121 (Thomas, J., concurring).
And rightly so. “Purchased at the price of immeasurable human
suffering, the equal protection principle reflects our
Nation’s understanding that [racial] classifications
ultimately have a destructive impact on the individual and our
society.” Adarand Constructors, Inc. v. Peña, 515
U. S. 200, 240 (1995) (Thomas, J., concurring in part and
concurring in judgment). “The Constitution abhors
classifications based on race” 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, supra, at 353 (Thomas, J., concurring in part
and dissenting in part).

															B

															1

															     The Court first
articulated the strict-scrutiny standard in Korematsu v. United
States, 323 U. S. 214 (1944) . There, we held that
“[p]ressing public necessity may sometimes justify the
existence of [racial discrimination]; racial antagonism never
can.” Id., at 216. [ 1 ]
Aside from Grutter, the Court has recognized only two instances in
which a “[p]ressing public necessity” may justify
racial discrimination by the government. First, in Korematsu, the
Court recognized that protecting national security may satisfy this
exacting standard. In that case, the Court upheld an evacuation
order directed at “all persons of Japanese ancestry” on
the grounds that the Nation was at war with Japan and that the
order had “a definite and close relationship to the
prevention of espionage and sabotage.” 323 U. S., at
217–218. Second, the Court has recognized that the government
has a compelling interest in remedying past discrimination for
which it is responsible, but we have stressed that a government
wishing to use race must provide “a ‘strong basis in
evidence for its conclusion that remedial action [is]
necessary.’ ” Richmond v. J. A. Croson Co., 488
U. S. 469, 500, 504 (1989) (quoting Wygant v. Jackson Bd. of
Ed., 476 U. S. 267, 277 (1986) (plurality opinion)).

															     In contrast to these
compelling interests that may, in a narrow set of circumstances,
justify racial discrimination, the Court has frequently found other
asserted interests insufficient. For example, in Palmore v. Sidoti,
466 U. S. 429 (1984) , the Court flatly rejected a claim that
the best interests of a child justified the government’s
racial discrimination. In that case, a state court awarded custody
to a child’s father because the mother was in a mixed-race
marriage. The state court believed the child might be stigmatized
by living in a mixed-race household and sought to avoid this
perceived problem in its custody determination. We acknowledged the
possibility of stigma but nevertheless concluded that “the
reality of private biases and the possible injury they might
inflict” do not justify racial discrimination. Id., at 433.
As we explained, “The Constitution cannot control such
prejudices but neither can it tolerate them. Private biases may be
outside the reach of the law, but the law cannot, directly or
indirectly, give them effect.” Ibid.

															     Two years later, in
Wygant, supra, the Court held that even asserted interests in
remedying societal discrimination and in providing role models for
minority students could not justify governmentally imposed racial
discrimination. In that case, a collective-bargaining agreement
between a school board and a teacher’s union favored teachers
who were “ ‘Black, American Indian, Oriental, or
of Spanish descendancy.’ ” Id., at 270–271,
and n. 2 (plurality opinion). We rejected the interest in
remedying societal discrimination because it had no logical
stopping point. Id., at 276. We similarly rebuffed as inadequate
the interest in providing role models to minority students and
added that the notion that “black students are better off
with black teachers could lead to the very system the Court
rejected in Brown v. Board of Education, 347 U. S. 483 (1954)
.” Ibid.

															2

															     Grutter was a radical
departure from our strict-scrutiny precedents. In Grutter, the
University of Michigan Law School (Law School) claimed that it had
a compelling reason to discriminate based on race. The reason it
advanced did not concern protecting national security or remedying
its own past discrimination. Instead, the Law School argued that it
needed to discriminate in admissions decisions in order to obtain
the “educational benefits that flow from a diverse student
body.” 539 U. S., at 317. Contrary to the very meaning of
strict scrutiny, the Court deferred to the Law School’s
determination that this interest was sufficiently compelling to
justify racial discrimination. Id., at 325.

															     I dissented from that
part of the Court’s decision. I explained that “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. Id., at 353. Cf. Lee v. Washington, 390 U. S. 333,
334 (1968) (Black, J., concurring) (protecting prisoners from
violence might justify narrowly tailored discrimination); J. A.
Croson, supra, at 521 (Scalia, J., concurring in judgment)
(“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]”). I
adhere to that view today. As should be obvious, there is nothing
“pressing” or “necessary” about obtaining
whatever educational benefits may flow from racial diversity.

															II

															A

															     The University claims
that the District Court found that it has a compelling interest in
attaining “a diverse stu- dent body and the educational
benefits flowing from such diversity.” Brief for Respondents
18. The use of the conjunction, “and,” implies that the
University believes its discrimination furthers two distinct
interests. The first is an interest in attaining diversity for its
own sake. The sec- ond is an interest in attaining educational
benefits that allegedly flow from diversity.

															     Attaining diversity for
its own sake is a nonstarter. As even Grutter recognized, the
pursuit of diversity as an end is nothing more than impermissible
“racial balancing.” 539 U. S., at 329–330
(“The Law School’s interest is not simply ‘to
assure within its student body some specified percentage of a
particular group merely because of its race or ethnic
origin.’ That would amount to outright racial balancing,
which is patently unconstitutional” (quoting Regents of Univ.
of Cal. v. Bakke, 438 U. S. 265, 307 (1978) ; citation
omitted)); see also id., at 307 (“Preferring members of any
one group for no reason other than race or ethnic origin is
discrimination for its own sake. This the Constitution
forbids”). Rather, diversity can only be the means by which
the University obtains educational benefits; it cannot be an end
pursued for its own sake. Therefore, the educational benefits
allegedly produced by diversity must rise to the level of a
compelling state interest in order for the program to survive
strict scrutiny.

															     Unfortunately for the
University, the educational benefits flowing from student body
diversity—assuming they exist—hardly qualify as a
compelling state interest. Indeed, the argument that educational
benefits justify racial discrimination was advanced in support of
racial segregation in the 1950’s, but emphatically rejected
by this Court. And just as the alleged educational benefits of
segregation were insufficient to justify racial discrimination
then, see Brown v. Board of Education, 347 U. S. 483 (1954) ,
the alleged educational benefits of diversity cannot justify racial
discrimination today.

															1

															     Our desegregation
cases establish that the Constitution prohibits public schools from
discriminating based on race, even if discrimination is necessary
to the schools’ survival. In Davis v. School Bd. of Prince
Edward Cty., decided with Brown, supra, the school board argued
that if the Court found segregation unconstitutional, white
students would migrate to private schools, funding for public
schools would decrease, and public schools would either decline in
quality or cease to exist altogether. Brief for Appellees in Davis
v. School Bd. of Prince Edward Cty., O. T. 1952, No. 191,
p. 30 (hereinafter Brief for Appellees in Davis)
(“Virginians . . . would no longer permit sizeable
appropriations for schools on either the State or local level;
private segregated schools would be greatly increased in number and
the masses of our people, both white and Negro, would suffer
terribly. . . . [M]any white parents would withdraw
their children from the public schools and, as a result, the
program of providing better schools would be abandoned”
(internal quotation marks omitted)). The true victims of
desegregation, the school board asserted, would be black students,
who would be unable to afford private school. See id., at 31
(“[W]ith the demise of segregation, education in Virginia
would receive a serious setback. Those who would suffer most would
be the Negroes who, by and large, would be economically less able
to afford the private school”); Tr. of Oral Arg. in Davis v.
School Bd. of Prince Edward Cty., O. T. 1954, No. 3, p. 208
(“What is worst of all, in our opinion, you impair the public
school system of Virginia and the victims will be the children of
both races, we think the Negro race worse than the white race,
because the Negro race needs it more by virtue of these
disadvantages under which they have labored. 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”).
[ 2 ]

															     Unmoved by this
sky-is-falling argument, we held that segregation violates the
principle of equality enshrined in the Fourteenth Amendment. See
Brown, supra, at 495 (“[I]n the field of public education the
doctrine of ‘separate but equal’ has no place. Separate
educational facilities are inherently unequal”); see also
Allen v. School Bd. of Prince Edward Cty., 249 F. 2d 462, 465
(CA4 1957) (per curiam) (“The fact that the schools might be
closed if the order were enforced is no reason for not enforcing
it. A person may not be denied enforcement of rights to which he is
entitled under the Constitution of the United States because of
action taken or threatened in defiance of such rights”).
Within a matter of years, the warning became reality: After being
ordered to desegregate, Prince Edward County closed its public
schools from the summer of 1959 until the fall of 1964. See R.
Sarratt, The Ordeal of Desegregation 237 (1966). Despite this fact,
the Court never backed down from its rigid enforcement of the Equal
Protection Clause’s antidiscrimination principle.

															     In this case, of
course, Texas has not alleged that the University will close if it
is prohibited from discriminating based on race. But even if it
had, the foregoing cases make clear that even that consequence
would not justify its use of racial discrimination. It follows,
a fortiori, that the putative educational benefits of student
body diversity cannot justify racial discrimination: If a State
does not have a compelling interest in the existence of a
university, it certainly cannot have a compelling interest in the
supposed benefits that might accrue to that university from racial
discrimination. See Grutter, 539 U. S., at 361 (opinion of
Thomas, J.) (“[A] marginal improvement in legal education
cannot justify racial discrimination where the Law School has no
compelling interest either in its exis- tence or in its current
educational and admissions policies”). If the Court were
actually applying strict scrutiny, it would require Texas either to
close the University or to stop discriminating against applicants
based on their race. The Court has put other schools to that
choice, and there is no reason to treat the University
differently.

															2

															     It is also noteworthy
that, in our desegregation cases, we rejected arguments that are
virtually identical to those advanced by the University today. The
University asserts, for instance, that the diversity obtained
through its discriminatory admissions program prepares its students
to become leaders in a diverse society. See, e.g., Brief for
Respondents 6 (arguing that student body diversity “prepares
students to become the next generation of leaders in an
increasingly diverse society”). The segregationists likewise
defended segregation on the ground that it provided more leadership
opportunities for blacks. See, e.g., Brief for Respondents in
Sweatt 96 (“[A] very large group of Northern Negroes [comes]
South to attend separate colleges, suggesting that the Negro does
not secure as well-rounded a college life at a mixed college, and
that the separate college offers him positive advantages; that
there is a more normal social life for the Negro in a separate
college; that there is a greater opportunity for full participation
and for the development of leadership; that the Negro is inwardly
more ‘secure’ at a college of his own people”);
Brief for Appellees in Davis 25–26 (“The Negro child
gets an opportunity to participate in segregated schools that I
have never seen accorded to him in non-segregated schools. He is
important, he holds offices, he is accepted by his fellows, he is
on athletic teams, he has a full place there” (internal
quotation marks omitted)). This argument was unavailing. It is
irrelevant under the Fourteenth Amendment whether segregated or
mixed schools produce better leaders. Indeed, no court today would
accept the suggestion that segregation is permissible because
historically black colleges produced Booker T. Washington, Thurgood
Marshall, Martin Luther King, Jr., and other prominent leaders.
Likewise, the University’s racial discrimination cannot be
justified on the ground that it will produce better leaders.

															     The University also
asserts that student body diversity improves interracial relations.
See, e.g., Brief for Respondents 6 (arguing that student body
diversity promotes “cross-racial understanding” and
breaks down racial and ethnic stereotypes). In this argument, too,
the University repeats arguments once marshaled in support of
segregation. See, e.g., Brief for Appellees in Davis 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)); Brief for Respondents in
Sweatt 93 (“Texas has had no serious breaches of the peace in
recent years in connection with its schools. The separation of the
races has kept the conflicts at a minimum”); id., at
97–98 (“The legislative acts are based not only on the
belief that it is the best way to provide education for both races,
and the knowledge that separate schools are necessary to keep
public support for the public schools, but upon the necessity to
maintain the public peace, harmony, and welfare”); Brief for
Appellees in Briggs 32 (“The southern Negro, by and large,
does not want an end to segregation in itself any more than does
the southern white man. The Negro in the South knows that
discriminations, and worse, can and would multiply in such
event” (internal quotation marks omitted)). We flatly
rejected this line of arguments in McLaurin v. Oklahoma State
Regents for Higher Ed., 339 U. S. 637 (1950) , where we held
that segregation would be unconstitutional even if white students
never tolerated blacks. Id., at 641 (“It may be argued that
appellant will be in no better position when these restrictions are
removed, for he may still be set apart by his fellow students. This
we think irrelevant. There is a vast difference—a
Constitutional difference—between restrictions imposed by the
state which prohibit the intellectual commingling of students, and
the refusal of individuals to commingle where the state presents no
such bar”). It is, thus, entirely irrelevant whether the
University’s racial discrimination increases or decreases
tolerance.

															     Finally, while the
University admits that racial discrimination in admissions is not
ideal, it asserts that it is a temporary necessity because of the
enduring race consciousness of our society. See Brief for
Respondents 53–54 (“Certainly all aspire for a
colorblind society in which race does not matter
. . . . But in Texas, as in America, ‘our
highest aspirations are yet unfulfilled’ ”). Yet
again, the University echoes the hollow justifications advanced by
the segregationists. See, e.g., 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”); Brief
for Respondents in Sweatt 94 (“The racial consciousness and
feeling which exists today in the minds of many people may be
regrettable and unjustified. Yet they are a reality which must be
dealt with by the State if it is to preserve harmony and peace and
at the same time furnish equal education to both groups”);
id., at 96 (“ ‘[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’ ”); Brief for Appellees in Briggs
26–27 (“[I]t would be unwise in administrative practice
. . . to mix the two races in the same schools at the
present time and under present conditions”); Brief for
Appellees on Reargument in Briggs v. Elliott, O. T. 1953, No.
2, p. 79 (“It is not ‘racism’ to be cognizant of
the fact that mankind has struggled with race problems and racial
tensions for upwards of sixty centuries”). But these
arguments too were unavailing. The Fourteenth Amendment views
racial bigotry as an evil to be stamped out, not as an excuse for
perpetual racial tinkering by the State. See DeFunis v. Odegaard,
416 U. S. 312, 342 (1974) (Douglas, J., dissenting)
(“The Equal Protection Clause commands the elimination of
racial barriers, not their creation in order to satisfy our theory
as to how society ought to be organized”). The
University’s arguments to this effect are similarly
insufficient to justify discrimination. [ 3 ]

															3

															     The
University’s arguments today are no more persuasive than they
were 60 years ago. Nevertheless, despite rejecting identical
arguments in Brown, the Court in Grutter deferred to the
University’s determination that the diversity obtained by
racial discrimination would yield educational benefits. There is no
principled distinction between the University’s assertion
that diversity yields educational benefits and the
segregationists’ assertion that segregation yielded those
same benefits. See Grutter, 539 U. S., at 365–366 (opinion of
Thomas, J.) (“Con- tained within today’s majority
opinion is the seed of a new constitutional justification for a
concept I thought long and rightly rejected—racial
segregation”). Educational benefits are a far cry from the
truly compelling state interests that we previously required to
justify use of racial classifications.

															B

															     My view of the
Constitution is the one advanced by the plaintiffs in Brown:
“[N]o 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 v. Board of Education, O. T. 1952, No.
8, p. 7; see also Juris. Statement in Davis v. School Bd. of
Prince Edward Cty., O. T. 1952, No. 191, p. 8
(“[W]e 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”); Brief for
Appellants in Brown v. Board of Education, O. T. 1952, No. 8,
p. 5 (“The Fourteenth Amendment precludes a state from
imposing distinctions or classifications based upon race and color
alone”); Brief for Appellants in Nos. 1, 2, and 4, and for
Respondents in No. 10 on Reargument in Brown v. Board of Education,
O. T. 1953, p. 65 (“That the Constitution is color blind
is our dedicated belief”). The Constitution does not pander
to faddish theories about whether race mixing is in the public
interest. The Equal Protection Clause strips States of all
authority to use race as a factor in providing education. All
applicants must be treated equally under the law, and no benefit in
the eye of the beholder can justify racial discrimination.

															     This principle is
neither new nor difficult to understand. In 1868, decades before
Plessy, the Iowa Supreme Court held that schools may not
discriminate against applicants based on their skin color. In Clark
v. Board of Directors, 24 Iowa 266 (1868), a school denied
admission to a student because she was black, and “public
sentiment [was] opposed to the intermingling of white and colored
children in the same schools.” Id., at 269. The Iowa Supreme
Court rejected that flimsy justification, holding that “all
the youths are equal before the law, and there is no discretion
vested in the board . . . or elsewhere, to interfere with
or disturb that equality.” Id., at 277. “For the courts
to sustain a board of school directors . . . in limiting
the rights and privileges of persons by reason of their [race],
would be to sanction a plain violation of the spirit of our laws
not only, but would tend to perpetuate the national differences of
our people and stimulate a constant strife, if not a war of
races.” Id., at 276. This simple, yet fundamental, truth was
lost on the Court in Plessy and Grutter.

															     I would overrule
Grutter and hold that the University’s admissions program
violates the Equal Protection Clause because the University has not
put forward a compelling interest that could possibly justify
racial discrimination.

															III

															     While I find the
theory advanced by the University to justify racial discrimination
facially inadequate, I also believe that its use of race has little
to do with the alleged educational benefits of diversity. I suspect
that the University’s program is instead based on the
benighted notion that it is possible to tell when discrimination
helps, rather than hurts, racial minorities. See post, at 3
(Ginsburg, J., dissenting) (“[G]overnment actors, including
state universities, need not be blind to the lingering effects of
‘an overtly discriminatory past,’ the legacy of
‘centuries of law-sanctioned inequality’ ”).
But “[h]istory should teach greater humility.” Metro
Broadcasting, Inc. v. FCC, 497 U. S. 547, 609 (1990)
(O’Connor, J., dissenting). The worst forms of racial
discrimination in this Nation have always been accompanied by
straight-faced representations that discrimination helped
minorities.

															A

															     Slaveholders argued
that slavery was a “positive good” that civilized
blacks and elevated them in every dimension of life. See, e.g.,
Calhoun, Speech in the U. S. Senate, 1837, in P. Finkelman,
Defending Slavery 54, 58–59 (2003) (“Never before has
the black race of Central Africa, from the dawn of history to the
present day, attained a condition so civilized and so improved, not
only physically, but morally and
intellectually. . . . [T]he relation now existing in
the slaveholding States between the two [races], is, instead of an
evil, a good—a positive good”); Harper, Memoir on
Slavery, in The Ideology of Slavery 78, 115–116 (D. Faust ed.
1981) (“Slavery, as it is said in an eloquent article
published in a Southern periodical work . . . ‘has
done more to elevate a degraded race in the scale of humanity; to
tame the savage; to civilize the barbarous; to soften the
ferocious; to enlighten the ignorant, and to spread the blessings
of [C]hristianity among the heathen, than all the missionaries that
philanthropy and religion have ever sent
forth’ ”); Hammond, The Mudsill Speech, 1858, in
Defending Slavery, supra, at 80, 87 (“They are elevated from
the condition in which God first created them, by being made our
slaves”).

															     A century later,
segregationists similarly asserted that segregation was not only
benign, but good for black students. They argued, for example, that
separate schools protected black children from racist white
students and teachers. See, e.g., Brief for Appellees in Briggs
33–34 (“ ‘I have repeatedly seen wise and
loving colored parents take infinite pains to force their little
children into schools where the white children, white teachers, and
white parents despised and resented the dark child, made mock of
it, neglected or bullied it, and literally rendered its life a
living hell. Such parents want their child to “fight”
this thing out,—but, dear God, at what a cost!
. . . We shall get a finer, better balance of spirit; an
infinitely more capable and rounded personality by putting children
in schools where they are wanted, and where they are happy and
inspired, than in thrusting them into hells where they are
ridiculed and hated’ ” (quoting DuBois, Does the
Negro Need Separate Schools? 4 J. of Negro Educ. 328, 330–331
(1935))); Tr. of Oral Arg. in Bolling v. Sharpe, O. T. 1952,
No. 413, p. 56 (“There was behind these [a]cts a kindly
feeling [and] an intention to help these people who had been in
bondage. And there was and there still is an intention by the
Congress to see that these children shall be educated in a
healthful atmosphere, in a wholesome atmosphere, in a place where
they are wanted, in a place where they will not be looked upon with
hostility, in a place where there will be a receptive atmosphere
for learning for both races without the hostility that undoubtedly
Congress thought might creep into these situations”). And
they even appealed to the fact that many blacks agreed that
separate schools were in the “best interests” of both
races. See, e.g., Brief for Appellees in Davis 24–25
(“ ‘It has been my experience, in working with the
people of Virginia, including both white and Negro, that the
customs and the habits and the traditions of Virginia citizens are
such that they believe for the best interests of both the white and
the Negro that the separate school is
best’ ”).

															     Following in these
inauspicious footsteps, the University would have us believe that
its discrimination is likewise benign. I think the lesson of
history is clear enough: Racial discrimination is never benign.
“ ‘[B]enign’ carries with it no independent
meaning, but reflects only acceptance of the current
generation’s conclusion that a politically acceptable burden,
imposed on particular citizens on the basis of race, is
reasonable.” See Metro Broadcasting, 497 U. S., at 610
(O’Connor, J., dissenting). It is for this reason that the
Court has repeatedly held that strict scrutiny applies to all
racial classifications, regardless of whether the government has
benevolent motives. See, e.g., Johnson, 543 U. S., at 505
(“We have insisted on strict scrutiny in every context, even
for so-called ‘benign’ racial classifications”);
Adarand, 515 U. S., at 227 (“[A]ll racial
classifications, imposed by whatever federal, state, or local
governmental actor, must be analyzed by a reviewing court under
strict scrutiny”); J. A. Croson, 488 U. S., at 500
(“Racial classifications are suspect, and that means that
simple legislative assurances of good intention cannot
suffice”). The University’s professed good intentions
cannot excuse its outright racial discrimination any more than such
intentions justified the now denounced arguments of slaveholders
and segregationists.

															B

															     While it does not,
for constitutional purposes, matter whether the University’s
racial discrimination is benign, I note that racial engineering
does in fact have insidious consequences. There can be no doubt
that the University’s discrimination injures white and Asian
applicants who are denied admission because of their race. But I
believe the injury to those admitted under the University’s
discriminatory admissions program is even more harmful.

															     Blacks and Hispanics
admitted to the University as a result of racial discrimination
are, on average, far less prepared than their white and Asian
classmates. In the University’s entering class of 2009, for
example, among the students admitted outside the Top Ten Percent
plan, blacks scored at the 52d percentile of 2009 SAT takers
nationwide, while Asians scored at the 93d percentile. Brief for
Richard Sander et al. as Amici Curiae 3–4, and
n. 4. Blacks had a mean GPA of 2.57 and a mean SAT score of
1524; Hispanics had a mean GPA of 2.83 and a mean SAT score of
1794; whites had a mean GPA of 3.04 and a mean SAT score of 1914;
and Asians had a mean GPA of 3.07 and a mean SAT score of 1991. [ 4 ] Ibid.

															     Tellingly, neither the
University nor any of the 73 amici briefs in support of racial
discrimination has presented a shred of evidence that black and
Hispanic students are able to close this substantial gap during
their time at the University. Cf. Thernstrom & Thernstrom,
Reflections on the Shape of the River, 46 UCLA L. Rev. 1583,
1605–1608 (1999) (discussing the failure of defenders of
racial discrimination in admissions to consider the fact that its
“beneficiaries” are underperforming in the classroom).
“It is a fact that in virtually all selective schools
. . . where racial preferences in admission is practiced,
the majority of [black] students end up in the lower quarter of
their class.” S. Cole & E. Barber, Increasing Faculty
Diversity: The Occupational Choices of High-Achieving Minority
Students 124 (2003). There is no reason to believe this is not the
case at the University. The University and its dozens of amici are
deafeningly silent on this point.

															     Furthermore, the
University’s discrimination does nothing to increase the
number of blacks and Hispanics who have access to a college
education generally. Instead, the University’s discrimination
has a pervasive shifting effect. See T. Sowell, Affirmative Action
Around the World 145–146 (2004). The University admits
minorities who otherwise would have attended less selective
colleges where they would have been more evenly matched. But, as a
result of the mismatching, many blacks and Hispanics who likely
would have excelled at less elite schools are placed 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. Setting aside the damage wreaked upon the
self-confidence of these overmatched students, there is no evidence
that they learn more at the University than they would have learned
at other schools for which they were better prepared. Indeed, they
may learn less.

															     The Court of Appeals
believed that the University needed to enroll more blacks and
Hispanics because they remained “clustered in certain
programs.” 631 F. 3d 213, 240 (CA5 2011)
(“[N]early a quarter of the undergraduate students in [the
University’s] College of Social Work are Hispanic, and more
than 10% are [black]. In the College of Education, 22.4% of
students are Hispanic and 10.1% are [black]”). But racial
discrimination may be the cause of, not the solution to, this
clustering. There is some evidence that students admitted as a
result of racial discrimination are more likely to abandon their
initial aspirations to become scientists and engineers than are
students with similar qualifications who attend less selective
schools. See, e.g., Elliott, Strenta, Adair, Matier, & Scott,
The Role of Ethnicity in Choosing and Leaving Science in Highly
Selective Institutions, 37 Research in Higher Educ. 681,
699–701 (1996). [ 5 ]
These students may well drift towards less competitive majors
because the mismatch caused by racial discrimination in admissions
makes it difficult for them to compete in more rigorous majors.

															     Moreover, the
University’s discrimination “stamp[s] [blacks and
Hispanics] with a badge of inferiority.” Adarand, 515
U. S., at 241 (opinion of Thomas, J.). It taints the
accomplishments of all those who are admitted as a result of racial
discrimination. Cf. J. McWhorter, Losing the Race: Self-Sabotage in
Black America 248 (2000) (“I was never able to be as proud of
getting into Stanford as my classmates could
be. . . . [H]ow much of an achievement can I truly
say it was to have been a good enough black person to be admitted,
while my colleagues had been considered good enough people to be
admitted”). And, it taints the accomplishments of all those
who are the same race as those admitted as a result of racial
discrimination. In this case, for example, most blacks and
Hispanics attending the University were admitted without
discrimination under the Top Ten Percent plan, but no one can
distinguish those students from the ones whose race played a role
in their admission. “When blacks [and 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.” See
Grutter, 539 U. S., at 373 (opinion of Thomas, J.). “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. Al- though cloaked in good intentions, the University’s
racial tinkering harms the very people it claims to be helping.

															*  *  *

															     For the foregoing
reasons, I would overrule Grutter. However, because the Court
correctly concludes that the Court of Appeals did not apply strict
scrutiny, I join its opinion. Notes 1 The standard of
“pressing public necessity” is more frequently called a
“compelling governmental interest.” I use the terms
interchangeably. 2 Similar arguments were
advanced unsuccessfully in other cases as well. See, e.g., Brief
for Respondents in Sweatt v. Painter, O. T. 1949, No. 44, pp.
94–95 (hereinafter Brief for Respondents in Sweatt)
(“[I]f the power to separate the students were terminated,
. . . it would be as a bonanza to the private white
schools of the State, and it would mean the migration out of the
schools and the turning away from the public schools of the
influence and support of a large number of children and of the
parents of those children . . . who are the largest
contributors to the cause of public education, and whose financial
support is necessary for the continued progress of public
education. . . . Should the State be required to mix the
public schools, there is no question but that a very large group of
students would transfer, or be moved by their parents, to private
schools with a resultant deterioration of the public schools”
(internal quotation marks omitted)); Brief for Appellees in Briggs
v. Elliott, O. T. 1952, No. 101, p. 27 (hereinafter Brief
for Appellees in Briggs) (“[I]t would be impossible to have
sufficient acceptance of the idea of mixed groups attending the
same schools to have public education on that basis at all
. . . . [I]t would eliminate the public schools in
most, if not all, of the communities in the
State”). 3 While the arguments
advanced by the University in defense of discrimination are the
same as those advanced by the segregationists, one obvious
difference is that the segregationists argued that it was
segregation that was necessary to obtain the alleged benefits,
whereas the University argues that diversity is the key. Today, the
segre-gationists’ arguments would never be given serious
considera-tion. But see M. Plocienniczak, Pennsylvania School
Experiments with ‘Segregation,’ CNN (Jan. 27, 2011),
http://www.cnn.com/2011/US/01/27/pennsylvania.segregation/?_s=PM:US
(as visited June 21, 2013, and available in Clerk of Court’s
case file). We should be equally hostile to the University’s
repackaged version of the same arguments in support of its favored
form of racial discrimination. 4 The lowest possible score
on the SAT is 600, and the highest possible score is
2400. 5 The success of
historically black colleges at producing graduates who go on to
earn graduate degrees in science and engineering is well
documented. See, e.g., National Science Foundation, J. Burrelli
& A. Rapoport, InfoBrief, Role of HBCUs as Baccalaureate-Origin
Institutions of Black S&E Doctorate Recipients 6 (2008) (Table
2) (showing that, from 1997–2006, Howard University had more
black students who went on to earn science and engineering
doctorates than any other undergraduate institution, and that 7
other historically black colleges ranked in the top 10); American
Association of Medical Colleges, Diversity in Medical Education:
Facts & Figures 86 (2012) (Table 19) (showing that, in 2011,
Xavier University had more black students who went on to earn
medical degrees than any other undergraduate institution and that
Howard University was second). SUPREME COURT OF THE UNITED STATES

															_________________

															No. 11–345

															_________________

															ABIGAIL NOEL FISHER, PETITIONER v. UNIVERSITY
OF TEXAS AT AUSTIN et al.

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

															[June 24, 2013]

															     Justice Ginsburg,
dissenting.

															     The University of Texas
at Austin (University) is candid about what it is endeavoring to
do: It seeks to achieve student-body diversity through an
admissions policy patterned after the Harvard plan referenced as
exemplary in Justice Powell’s opinion in Regents of Univ. of
Cal. v. Bakke, 438 U. S. 265 –317 (1978). The University
has steered clear of a quota system like the one struck down in
Bakke, which excluded all nonminority candidates from competition
for a fixed number of seats. See id., at 272–275, 315,
319–320 (opinion of Powell, J.). See also Gratz v. Bollinger,
539 U. S. 244, 293 (2003) (Souter, J., dissenting)
(“Justice Powell’s opinion in [Bakke] rules out a
racial quota or set-aside, in which race is the sole fact of
eligibility for certain places in a class.”). And, like so
many educational institutions across the Nation, [ 1 ] the University has taken care to follow
the model approved by the Court in Grutter v. Bollinger, 539
U. S. 306 (2003) . See 645 F. Supp. 2d 587, 609 (WD Tex.
2009) (“[T]he parties agree [that the University’s]
policy was based on the [admissions] policy [upheld in
Grutter].”).

															     Petitioner urges that
Texas’ Top Ten Percent Law and race-blind holistic review of
each application achieve significant diversity, so the University
must be content with those alternatives. I have said before and
reiterate here that only an ostrich could regard the supposedly
neutral alternatives as race unconscious. See Gratz, 539
U. S., at 303–304, n. 10 (dissenting opinion). As
Justice Souter observed, the vaunted alternatives suffer from
“the disadvantage of deliberate obfuscation.” Id., at
297–298 (dissenting opinion).

															     Texas’ percentage
plan was adopted with racially segregated neighborhoods and schools
front and center stage. See House Research Organization, Bill
Analysis, HB 588, pp. 4–5 (Apr. 15, 1997) (“Many
regions of the state, school districts, and high schools in Texas
are still predominantly composed of people from a single racial or
ethnic group. Because of the persistence of this segregation,
admitting the top 10 percent of all high schools would provide a
diverse population and ensure that a large, well qualified pool of
minority students was admitted to Texas universities.”). It
is race consciousness, not blindness to race, that drives such
plans. [ 2 ] As for holistic
review, if universities cannot explicitly include race as a factor,
many may “resort to camouflage” to “maintain
their minority enrollment.” Gratz, 539 U. S., at 304
(Ginsburg, J., dissenting).

															     I have several times
explained why government actors, including state universities, need
not be blind to the lingering effects of “an overtly
discriminatory past,” the legacy of “centuries of
law-sanctioned inequality.” Id., at 298 (dissenting opinion).
See also Adarand Constructors, Inc. v. Peña, 515 U. S.
200 –274 (1995) (dissenting opinion). Among constitutionally
permissible options, I remain convinced, “those that candidly
disclose their consideration of race [are] preferable to those that
conceal it.” Gratz, 539 U. S., at 305, n. 11
(dissenting opinion).

															     Accordingly, I would
not return this case for a second look. As the thorough opinions
below show, 631 F. 3d 213 (CA5 2011); 645 F. Supp. 2d
587, the University’s admissions policy flexibly considers
race only as a “factor of a factor of a factor of a
factor” in the calculus, id., at 608; followed a yearlong
review through which the University reached the reasonable,
good-faith judgment that supposedly race-neutral initiatives were
insufficient to achieve, in appropriate measure, the educational
benefits of student-body diversity, see 631 F. 3d, at
225–226; and is sub- ject to periodic review to ensure that
the consideration of race remains necessary and proper to achieve
the Uni- versity’s educational objectives, see id., at 226. [ 3 ] Justice Powell’s
opinion in Bakke and the Court’s decision in Grutter require
no further determinations. See Grutter, 539 U. S., at
333–343; Bakke, 438 U. S., at 315–320.

															     The Court rightly
declines to cast off the equal protection framework settled in
Grutter. See ante, at 5. Yet it stops short of reaching the
conclusion that framework warrants. Instead, the Court vacates the
Court of Appeals’ judgment and remands for the Court of
Appeals to “assess whether the University has offered
sufficient evidence [to] prove that its admissions program is
narrowly tailored to obtain the educational benefits of
diversity.” Ante, at 13. As I see it, the Court of Appeals
has already completed that inquiry, and its judgment, trained on
this Court’s Bakke and Grutter pathmarkers, merits our
approbation. [ 4 ]

															*  *  *

															     For the reasons
stated, I would affirm the judgment of the Court of Appeals. Notes 1 See Brief for Amherst
College et al. as Amici Curiae 33–35; Brief for
Association of American Law Schools as Amicus Curiae 6; Brief for
Association of American Medical Colleges et al. as Amici
Curiae 30–32; Brief for Brown University et al. as Amici
Curiae 2–3, 13; Brief for Robert Post et al. as Amici
Curiae 24–27; Brief for Fordham University et al. as
Amici Curiae 5–6; Brief for University of Delaware
et al. as Amici Curiae 16–21. 2 The notion that
Texas’ Top Ten Percent Law is race neutral calls to mind
Professor Thomas Reed Powell’s famous statement: “If
you think that you can think about a thing inextricably attached to
something else without thinking of the thing which it is attached
to, then you have a legal mind.” T. Arnold, The Symbols of
Government 101 (1935) (internal quotation marks omitted). Only that
kind of legal mind could conclude that an admissions plan
specifically designed to produce racial diversity is not race
conscious. 3 As the Court said in
Grutter v. Bollinger, , “[n]arrow tailoring . . .
require[s] serious, good faith consideration of workable
race-neutral alternatives that will achieve the diversity the
university seeks.” But, Grutter also explained, it does not
“require a university to choose between maintaining a
reputation for excellence [and] fulfilling a commitment to provide
educational opportunitiesto members of all racial groups.”
Ibid. I do not read the Court tosay otherwise. See ante, at 10
(acknowledging that, in determining whether a race-conscious
admissions policy satisfies Grutter’s narrow-tailoring
requirement, “a court can take account of a
university’s experience and expertise in adopting or
rejecting certain admissions processes”). 4 Because the
University’s admissions policy, in my view, is constitutional
under Grutter, there is no need for the Court in this case
“to revisit whether all governmental classifications by race,
whether designed to benefit or to burden a historically
disadvantaged group, should be subject to the same standard of
judicial review.” 539 U. S., at 346, n. (Ginsburg, J.,
concurring). See also Gratz v. Bollinger, (Ginsburg, J.,
dissenting) (“Actions designed to burden groups long denied
full citizenship stature are not sensibly ranked with measures
taken to hasten the day when entrenched discrimination and its
aftereffects have been extirpated.”).

Summary: The University of Texas at Austin's use of race as a factor in its undergraduate admissions process was challenged by Abigail Fisher, a Caucasian applicant who was denied admission. The Supreme Court concluded that the lower court did not hold the University to the strict scrutiny standard required in such cases, and remanded the case for further review. Justice Ginsburg dissented, arguing that the lower court had applied the correct standard and that the University's admissions policy was constitutional under existing precedent.