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

PRELIMINARY PRINT

Volume 600 U. S. Part 1
Pages 181–411

OFFICIAL REPORTS
OF

THE SUPREME COURT
June 29, 2023

Page Proof Pending Publication

REBECCA A. WOMELDORF
reporter of decisions

NOTICE: This preliminary print is subject to formal revision before
the bound volume is published. Users are requested to notify the Reporter
of Decisions, Supreme Court of the United States, Washington, D.C. 20543,
pio@supremecourt.gov, of any typographical or other formal errors.
OCTOBER TERM, 2022 181

Syllabus

STUDENTS FOR FAIR ADMISSIONS, INC. v.
PRESIDENT AND FELLOWS OF
HARVARD COLLEGE
certiorari to the united states court of appeals for
the rst circuit
No. 20–1199. Argued October 31, 2022—Decided June 29, 2023*
Harvard College and the University of North Carolina (UNC) are two of
the oldest institutions of higher learning in the United States. Every
year, tens of thousands of students apply to each school; many fewer are
admitted. Both Harvard and UNC employ a highly selective admis-
sions process to make their decisions. Admission to each school can
depend on a student's grades, recommendation letters, or extracurricu-
lar involvement. It can also depend on their race. The question pre-
sented is whether the admissions systems used by Harvard College and
UNC are lawful under the Equal Protection Clause of the Fourteenth
Amendment.
At Harvard, each application for admission is initially screened by a
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“frst reader,” who assigns a numerical score in each of six categories:
academic, extracurricular, athletic, school support, personal, and overall.
For the “overall” category—a composite of the fve other ratings—a frst
reader can and does consider the applicant's race. Harvard's admissions
subcommittees then review all applications from a particular geographic
area. These regional subcommittees make recommendations to the full
admissions committee, and they take an applicant's race into account.
When the 40-member full admissions committee begins its deliberations,
it discusses the relative breakdown of applicants by race. The goal of
the process, according to Harvard's director of admissions, is ensuring
there is no “dramatic drop-off” in minority admissions from the prior
class. An applicant receiving a majority of the full committee's votes
is tentatively accepted for admission. At the end of this process, the
racial composition of the tentative applicant pool is disclosed to the com-
mittee. The last stage of Harvard's admissions process, called the
“lop,” winnows the list of tentatively admitted students to arrive at the
fnal class. Applicants that Harvard considers cutting at this stage are
placed on the “lop list,” which contains only four pieces of information:

*Together with No. 21–707, Students for Fair Admissions, Inc. v. Uni-
versity of North Carolina et al., on certiorari before judgment to the
United States Court of Appeals for the Fourth Circuit.
182 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
Syllabus

legacy status, recruited athlete status, fnancial aid eligibility, and race.
In the Harvard admissions process, “race is a determinative tip for” a
signifcant percentage “of all admitted African American and Hispanic
applicants.”
UNC has a similar admissions process. Every application is re-
viewed frst by an admissions offce reader, who assigns a numerical
rating to each of several categories. Readers are required to consider
the applicant's race as a factor in their review. Readers then make a
written recommendation on each assigned application, and they may
provide an applicant a substantial “plus” depending on the applicant's
race. At this stage, most recommendations are provisionally fnal. A
committee of experienced staff members then conducts a “school group
review” of every initial decision made by a reader and either approves
or rejects the recommendation. In making those decisions, the commit-
tee may consider the applicant's race.
Petitioner, Students for Fair Admissions (SFFA), is a nonproft orga-
nization whose stated purpose is “to defend human and civil rights se-
cured by law, including the right of individuals to equal protection under
the law.” SFFA fled separate lawsuits against Harvard and UNC, ar-
guing that their race-based admissions programs violate, respectively,

Page Proof Pending Publication
Title VI of the Civil Rights Act of 1964 and the Equal Protection Clause
of the Fourteenth Amendment. After separate bench trials, both ad-
missions programs were found permissible under the Equal Protection
Clause and this Court's precedents. In the Harvard case, the First Cir-
cuit affrmed, and this Court granted certiorari. In the UNC case, this
Court granted certiorari before judgment.
Held: Harvard's and UNC's admissions programs violate the Equal Protec-
tion Clause of the Fourteenth Amendment. Pp. 198–231.
(a) Because SFFA complies with the standing requirements for orga-
nizational plaintiffs articulated by this Court in Hunt v. Washington
State Apple Advertising Comm'n, 432 U. S. 333, SFFA's obligations
under Article III are satisfed, and this Court has jurisdiction to con-
sider the merits of SFFA's claims.
The Court rejects UNC's argument that SFFA lacks standing because
it is not a “genuine” membership organization. An organizational plain-
tiff can satisfy Article III jurisdiction in two ways, one of which is to
assert “standing solely as the representative of its members,” Warth v.
Seldin, 422 U. S. 490, 511, an approach known as representational or
organizational standing. To invoke it, an organization must satisfy the
three-part test in Hunt. Respondents do not suggest that SFFA fails
Hunt's test for organizational standing. They argue instead that SFFA
cannot invoke organizational standing at all because SFFA was not a
Cite as: 600 U. S. 181 (2023) 183

Syllabus

genuine membership organization at the time it fled suit. Respondents
maintain that, under Hunt, a group qualifes as a genuine membership
organization only if it is controlled and funded by its members. In
Hunt, this Court determined that a state agency with no traditional
members could still qualify as a genuine membership organization in
substance because the agency represented the interests of individuals
and otherwise satisfed Hunt's three-part test for organizational stand-
ing. See 432 U. S., at 342. Hunt's “indicia of membership” analysis,
however, has no applicability here. As the courts below found, SFFA
is indisputably a voluntary membership organization with identifable
members who support its mission and whom SFFA represents in good
faith. SFFA is thus entitled to rely on the organizational standing doc-
trine as articulated in Hunt. Pp. 198–201.
(b) Proposed by Congress and ratifed by the States in the wake of
the Civil War, the Fourteenth Amendment provides that no State shall
“deny to any person . . . the equal protection of the laws.” Proponents
of the Equal Protection Clause described its “foundation[al] principle”
as “not permit[ing] any distinctions of law based on race or color.” Any
“law which operates upon one man,” they maintained, should “operate
equally upon all.” Accordingly, as this Court's early decisions inter-
preting the Equal Protection Clause explained, the Fourteenth Amend-
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ment guaranteed “that the law in the States shall be the same for the
black as for the white; that all persons, whether colored or white, shall
stand equal before the laws of the States.”
Despite the early recognition of the broad sweep of the Equal Protec-
tion Clause, the Court—alongside the country—quickly failed to live up
to the Clause's core commitments. For almost a century after the Civil
War, state-mandated segregation was in many parts of the Nation a
regrettable norm. This Court played its own role in that ignoble his-
tory, allowing in Plessy v. Ferguson the separate but equal regime that
would come to deface much of America. 163 U. S. 537.
After Plessy, “American courts . . . labored with the doctrine [of sepa-
rate but equal] for over half a century.” Brown v. Board of Education,
347 U. S. 483, 491. Some cases in this period attempted to curtail the
perniciousness of the doctrine by emphasizing that it required States
to provide black students educational opportunities equal to—even if
formally separate from—those enjoyed by white students. See, e. g.,
Missouri ex rel. Gaines v. Canada, 305 U. S. 337, 349–350. But the
inherent folly of that approach—of trying to derive equality from in-
equality—soon became apparent. As the Court subsequently recog-
nized, even racial distinctions that were argued to have no palpable
effect worked to subordinate the afficted students. See, e. g.,
McLaurin v. Oklahoma State Regents for Higher Ed., 339 U. S. 637,
184 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
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640–642. By 1950, the inevitable truth of the Fourteenth Amendment
had thus begun to reemerge: Separate cannot be equal.
The culmination of this approach came fnally in Brown v. Board of
Education, 347 U. S. 483. There, the Court overturned the separate
but equal regime established in Plessy and began on the path of invali-
dating all de jure racial discrimination by the States and Federal Gov-
ernment. The conclusion reached by the Brown Court was unmistak-
ably clear: the right to a public education “must be made available to all
on equal terms.” 347 U. S., at 493. The Court reiterated that rule just
one year later, holding that “full compliance” with Brown required
schools to admit students “on a racially nondiscriminatory basis.”
Brown v. Board of Education, 349 U. S. 294, 300–301.
In the years that followed, Brown's “fundamental principle that racial
discrimination in public education is unconstitutional,” id., at 298,
reached other areas of life—for example, state and local laws requiring
segregation in busing, Gayle v. Browder, 352 U. S. 903 (per curiam);
racial segregation in the enjoyment of public beaches and bathhouses,
Mayor and City Council of Baltimore v. Dawson, 350 U. S. 877 (per cu-
riam); and antimiscegenation laws, Loving v. Virginia, 388 U. S. 1.
These decisions, and others like them, refect the “core purpose” of
the Equal Protection Clause: “do[ing] away with all governmentally
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imposed discrimination based on race.” Palmore v. Sidoti, 466 U. S.
429, 432.
Eliminating racial discrimination means eliminating all of it. Accord-
ingly, the Court has held that the Equal Protection Clause applies “with-
out regard to any differences of race, of color, or of nationality”—it is
“universal in [its] application.” Yick Wo v. Hopkins, 118 U. S. 356, 369.
For “[t]he guarantee of equal protection cannot mean one thing when
applied to one individual and something else when applied to a person
of another color.” Regents of Univ. of Cal. v. Bakke, 438 U. S. 265, 289–
290 (opinion of Powell, J.).
Any exceptions to the Equal Protection Clause's guarantee must sur-
vive a daunting two-step examination known as “strict scrutiny,” Ada-
rand Constructors, Inc. v. Peña, 515 U. S. 200, 227, which asks frst
whether the racial classifcation is used to “further compelling govern-
mental interests,” Grutter v. Bollinger, 539 U. S. 306, 326, and second
whether the government's use of race is “narrowly tailored,” i. e., “nec-
essary,” to achieve that interest, Fisher v. University of Tex. at Austin,
570 U. S. 297, 311–312. Acceptance of race-based state action is rare
for a reason: “[d]istinctions between citizens solely because of their an-
cestry are by their very nature odious to a free people whose institu-
tions are founded upon the doctrine of equality.” Rice v. Cayetano, 528
U. S. 495, 517. Pp. 201–208.
Cite as: 600 U. S. 181 (2023) 185

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(c) This Court frst considered whether a university may make race-
based admissions decisions in Bakke, 438 U. S. 265. In a deeply splin-
tered decision that produced six different opinions, Justice Powell's opin-
ion for himself alone would eventually come to “serv[e] as the touchstone
for constitutional analysis of race-conscious admissions policies.” Grut-
ter, 539 U. S., at 323. After rejecting three of the University's four
justifcations as not suffciently compelling, Justice Powell turned to its
last interest asserted to be compelling—obtaining the educational bene-
fts that fow from a racially diverse student body. Justice Powell found
that interest to be “a constitutionally permissible goal for an institution
of higher education,” which was entitled as a matter of academic free-
dom “to make its own judgments as to . . . the selection of its student
body.” 438 U. S., at 311–312. But a university's freedom was not un-
limited—“[r]acial and ethnic distinctions of any sort are inherently sus-
pect,” Justice Powell explained, and antipathy toward them was deeply
“rooted in our Nation's constitutional and demographic history.” Id., at
291. Accordingly, a university could not employ a two-track quota sys-
tem with a specifc number of seats reserved for individuals from a pre-
ferred ethnic group. Id., at 315. Neither still could a university use
race to foreclose an individual from all consideration. Id., at 318. Race

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could only operate as “a `plus' in a particular applicant's fle,” and even
then it had to be weighed in a manner “fexible enough to consider all
pertinent elements of diversity in light of the particular qualifcations
of each applicant.” Id., at 317. Pp. 208–210.
(d) For years following Bakke, lower courts struggled to determine
whether Justice Powell's decision was “binding precedent.” Grutter,
539 U. S., at 325. Then, in Grutter v. Bollinger, the Court for the frst
time “endorse[d] Justice Powell's view that student body diversity is a
compelling state interest that can justify the use of race in university
admissions.” Ibid. The Grutter majority's analysis tracked Justice
Powell's in many respects, including its insistence on limits on how uni-
versities may consider race in their admissions programs. Those limits,
Grutter explained, were intended to guard against two dangers that all
race-based government action portends. The frst is the risk that the
use of race will devolve into “illegitimate . . . stereotyp[ing].” Rich-
mond v. J. A. Croson Co., 488 U. S. 469, 493 (plurality opinion). Admis-
sions programs could thus not operate on the “belief that minority stu-
dents always (or even consistently) express some characteristic minority
viewpoint on any issue.” Grutter, 539 U. S., at 333 (internal quotation
marks omitted). The second risk is that race would be used not as a
plus, but as a negative—to discriminate against those racial groups that
were not the benefciaries of the race-based preference. A university's
186 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
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use of race, accordingly, could not occur in a manner that “unduly
harm[ed] nonminority applicants.” Id., at 341.
To manage these concerns, Grutter imposed one fnal limit on race-
based admissions programs: At some point, the Court held, they must
end. Id., at 342. Recognizing that “[e]nshrining a permanent justif-
cation for racial preferences would offend” the Constitution's unambigu-
ous guarantee of equal protection, the Court expressed its expectation
that, in 25 years, “the use of racial preferences will no longer be neces-
sary to further the interest approved today.” Id., at 343. Pp. 211–213.
(e) Twenty years have passed since Grutter, with no end to race-based
college admissions in sight. But the Court has permitted race-based
college admissions only within the confnes of narrow restrictions: such
admissions programs must comply with strict scrutiny, may never use
race as a stereotype or negative, and must—at some point—end. Re-
spondents' admissions systems fail each of these criteria and must there-
fore be invalidated under the Equal Protection Clause of the Fourteenth
Amendment. Pp. 213–225.
(1) Respondents fail to operate their race-based admissions pro-
grams in a manner that is “suffciently measurable to permit judicial
[review]” under the rubric of strict scrutiny. Fisher v. University of
Tex. at Austin, 579 U. S. 365, 381. First, the interests that respondents
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view as compelling cannot be subjected to meaningful judicial review.
Those interests include training future leaders, acquiring new knowl-
edge based on diverse outlooks, promoting a robust marketplace of
ideas, and preparing engaged and productive citizens. While these are
commendable goals, they are not suffciently coherent for purposes of
strict scrutiny. It is unclear how courts are supposed to measure any
of these goals, or if they could, to know when they have been reached
so that racial preferences can end. The elusiveness of respondents' as-
serted goals is further illustrated by comparing them to recognized com-
pelling interests. For example, courts can discern whether the tempo-
rary racial segregation of inmates will prevent harm to those in the
prison, see Johnson v. California, 543 U. S. 499, 512–513, but the ques-
tion whether a particular mix of minority students produces “engaged
and productive citizens” or effectively “ train[s] future leaders” is
standardless.
Second, respondents' admissions programs fail to articulate a mean-
ingful connection between the means they employ and the goals they
pursue. To achieve the educational benefts of diversity, respondents
measure the racial composition of their classes using racial categories
that are plainly overbroad (expressing, for example, no concern whether
South Asian or East Asian students are adequately represented as
“Asian”); arbitrary or undefned (the use of the category “Hispanic”); or
Cite as: 600 U. S. 181 (2023) 187

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underinclusive (no category at all for Middle Eastern students). The
unclear connection between the goals that respondents seek and the
means they employ preclude courts from meaningfully scrutinizing re-
spondents' admissions programs.
The universities' main response to these criticisms is “trust us.”
They assert that universities are owed deference when using race to
beneft some applicants but not others. While this Court has recog-
nized a “tradition of giving a degree of deference to a university's aca-
demic decisions,” it has made clear that deference must exist “within
constitutionally prescribed limits.” Grutter, 539 U. S., at 328. Re-
spondents have failed to present an exceedingly persuasive justifcation
for separating students on the basis of race that is measurable and con-
crete enough to permit judicial review, as the Equal Protection Clause
requires. Pp. 214–218.
(2) Respondents' race-based admissions systems also fail to comply
with the Equal Protection Clause's twin commands that race may never
be used as a “negative” and that it may not operate as a stereotype.
The First Circuit found that Harvard's consideration of race has resulted
in fewer admissions of Asian-American students. Respondents' asser-
tion that race is never a negative factor in their admissions programs
cannot withstand scrutiny. College admissions are zero-sum, and a
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beneft provided to some applicants but not to others necessarily advan-
tages the former at the expense of the latter.
Respondents' admissions programs are infrm for a second reason as
well: They require stereotyping—the very thing Grutter foreswore.
When a university admits students “on the basis of race, it engages in
the offensive and demeaning assumption that [students] of a particular
race, because of their race, think alike.” Miller v. Johnson, 515 U. S.
900, 911–912. Such stereotyping is contrary to the “core purpose” of
the Equal Protection Clause. Palmore, 466 U. S., at 432. Pp. 218–221.
(3) Respondents' admissions programs also lack a “logical end
point” as Grutter required. 539 U. S., at 342. Respondents suggest
that the end of race-based admissions programs will occur once mean-
ingful representation and diversity are achieved on college campuses.
Such measures of success amount to little more than comparing the ra-
cial breakdown of the incoming class and comparing it to some other
metric, such as the racial makeup of the previous incoming class or the
population in general, to see whether some proportional goal has been
reached. The problem with this approach is well established: “[O]ut-
right racial balancing” is “patently unconstitutional.” Fisher, 570 U. S.,
at 311. Respondents' second proffered end point—when students re-
ceive the educational benefts of diversity—fares no better. As ex-
plained, it is unclear how a court is supposed to determine if or when
188 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
Syllabus

such goals would be adequately met. Third, respondents suggest the
25-year expectation in Grutter means that race-based preferences must
be allowed to continue until at least 2028. The Court's statement in
Grutter, however, refected only that Court's expectation that race-
based preferences would, by 2028, be unnecessary in the context of ra-
cial diversity on college campuses. Finally, respondents argue that the
frequent reviews they conduct to determine whether racial preferences
are still necessary obviates the need for an end point. But Grutter
never suggested that periodic review can make unconstitutional conduct
constitutional. Pp. 221–225.
(f) Because Harvard's and UNC's admissions programs lack suff-
ciently focused and measurable objectives warranting the use of race,
unavoidably employ race in a negative manner, involve racial stereotyp-
ing, and lack meaningful end points, those admissions programs cannot
be reconciled with the guarantees of the Equal Protection Clause. At
the same time, nothing prohibits universities from considering an appli-
cant's discussion of how race affected the applicant's life, so long as that
discussion is concretely tied to a quality of character or unique ability
that the particular applicant can contribute to the university. Many
universities have for too long wrongly concluded that the touchstone of
an individual's identity is not challenges bested, skills built, or lessons
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learned, but the color of their skin. This Nation's constitutional history
does not tolerate that choice. Pp. 230–231.
No. 20–1199, 980 F. 3d 157; No. 21–707, 567 F. Supp. 3d 580, reversed.

Roberts, C. J., delivered the opinion of the Court, in which Thomas,
Alito, Gorsuch, Kavanaugh, and Barrett, JJ., joined. Thomas, J.,
fled a concurring opinion, post, p. 231. Gorsuch, J., fled a concurring
opinion, in which Thomas, J., joined, post, p. 287. Kavanaugh, J., fled a
concurring opinion, post, p. 311. Sotomayor, J., fled a dissenting opinion,
in which Kagan, J., joined, and in which Jackson, J., joined as it applies
to No. 21–707, post, p. 318. Jackson, J., fled a dissenting opinion in
No. 21–707, in which Sotomayor and Kagan, JJ., joined, post, p. 384.
Jackson, J., took no part in the consideration or decision of the case in
No. 20–1199.

Cameron T. Norris argued the cause for petitioner in No.
20–1199. With him on the briefs were William S. Conso-
voy, Thomas R. McCarthy, J. Michael Connolly, Bryan
Weir, James F. Hasson, Adam K. Mortara, Patrick Straw-
bridge, and Alan M. Ruley. Mr. Strawbridge argued the
Cite as: 600 U. S. 181 (2023) 189

Counsel

cause for petitioner in No. 21–707. With him on the briefs
were Messrs. Consovoy, McCarthy, Connolly, Norris, Weir,
Hasson, Mortara, and Ruley.
Seth P. Waxman argued the cause for respondent in No.
20–1199. With him on the briefs were Catherine M. A. Car-
roll, Claire H. Chung, Debo P. Adegbile, Rishita Apsani,
William F. Lee, Felicia H. Ellsworth, Hannah E. Gelbort,
Diane E. Lopez, and Ara B. Gershengorn. Ryan Y. Park,
Solicitor General of North Carolina, argued the cause for uni-
versity respondents in No. 21–707. With him on the brief
were Joshua H. Stein, Attorney General of North Carolina,
Nicholas S. Brod, Sarah G. Boyce, and James W. Doggett,
Deputy Solicitors General, Sripriya Narasimhan, Deputy
General Counsel, Stephanie A. Brennan and Tamika L. Hen-
derson, Special Deputy Attorneys General, Patrick Fitzger-
ald, Amy Van Gelder, and Lara Flath. David G. Hinojosa
argued the cause for student respondents Cecilia Polanco
et al. in No. 21–707. With him on the brief were Damon T.
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Hewitt, Jon Greenbaum, Reed N. Colfax, Soohyun Choi, and
Gemma Donofrio.
Solicitor General Prelogar argued the cause for the United
States as amicus curiae urging affrmance in both cases.
With her on the brief were Acting Principal Deputy Assist-
ant Attorney General Smith, Deputy Solicitor General Flet-
cher, Masha G. Hansford, Nicolas Y. Riley, Elizabeth Parr
Hecker, Jonathan E. Meyer, and Samuel R. Bagenstos.*

*Briefs of amici curiae urging reversal in both cases were fled for the
State of Oklahoma et al. by John O'Connor, Attorney General of Okla-
homa, and Mithun Mansinghani, Solicitor General, and by the Attorneys
General for their respective jurisdictions as follows: Steve Marshall of
Alabama, Mark Brnovich of Arizona, Leslie Rutledge of Arkansas, Ashley
Moody of Florida, Chris Carr of Georgia, Derek Schmidt of Kansas, Daniel
Cameron of Kentucky, Jeff Landry of Louisiana, Lynn Fitch of Mississippi,
Eric Schmitt of Missouri, Austin Knudsen of Montana, Doug Peterson of
Nebraska, Drew H. Wrigley of North Dakota, Dave Yost of Ohio, Alan
Wilson of South Carolina, Sean D. Reyes of Utah, Jason S. Miyares of
190 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
Opinion of the Court

Chief Justice Roberts delivered the opinion of the
Court.
In these cases we consider whether the admissions sys-
tems used by Harvard College and the University of North

Virginia, and Patrick Morrisey of West Virginia; for the State of Texas
by Ken Paxton, Attorney General of Texas, Judd E. Stone II, Solicitor
General, Lanora C. Pettit, Principal Deputy Solicitor General, Rance
Craft, Assistant Solicitor General, and Brent Webster, First Assistant At-
torney General; for the American Center for Law and Justice et al. by Jay
Alan Sekulow, Stuart J. Roth, Jordan A. Sekulow, Colby M. May, and
Walter M. Weber; for the Californians for Equal Rights Foundation by
Daniel I. Morenoff; for the Defense of Freedom Institute for Policy Stud-
ies by John C. Sullivan; for Economists by C. Boyden Gray, R. Trent
McCotter, and Jonathan Berry; for the Hamilton Lincoln Law Institute
et al. by Theodore H. Frank, Anna St. John, and Ilya Shapiro, pro se; for
the Louis D. Brandeis Center for Human Rights Under Law et al. by
Jonathan A. Vogel; for the National Association of Scholars by Dennis J.
Saffran; for the Pacifc Legal Foundation et al. by Joshua P. Thompson,
Anastasia P. Boden, Wencong Fa, and Alison Somin; for Project 21 by
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David H. Thompson, Peter A. Patterson, John D. Ohlendorf, and Megan
M. Wold; for United States Senators et al. by R. Shawn Gunnarson;
and for Mark Keith Robinson et al. by Thomas Brejcha and B. Tyler
Brooks. A brief of amicus curiae urging vacatur in both cases was fled
for F. Andrew Hessick by Richard A. Simpson and Mr. Hessick, pro se.
Briefs of amici curiae urging reversal in No. 20–1199 were fled for
the America First Legal Foundation by Jonathan F. Mitchell and Gene
P. Hamilton; and for the for the Foundation Against Intolerance & Racism
by Mary E. Keane. A brief of amici curiae urging vacatur was fled for
Fiona A. Harrison by Alan B. Morrison in No. 20–1199.
Briefs of amici curiae urging affrmance in both cases were fled for the
Commonwealth of Massachusetts et al. by Maura Healey, Attorney Gen-
eral of Massachusetts, Elizabeth N. Dewar, State Solicitor, and Ann E.
Lynch and David Ureña, Assistant Attorneys General, by Karl A. Racine,
Attorney General of the District of Columbia, by Matthew J. Platkin, Act-
ing Attorney General of New Jersey, and by the Attorneys General for
their respective States as follows: Rob Bonta of California, Philip J.
Weiser of Colorado, William Tong of Connecticut, Kathleen Jennings of
Delaware, Holly T. Shikada of Hawaii, Kwame Raoul of Illinois, Aaron
M. Frey of Maine, Brian E. Frosh of Maryland, Keith Ellison of Minne-
sota, Aaron D. Ford of Nevada, Hector Balderas of New Mexico, Letitia
James of New York, Ellen F. Rosenblum of Oregon, Josh Shapiro of Penn-
Cite as: 600 U. S. 181 (2023) 191

Opinion of the Court

Carolina, two of the oldest institutions of higher learning in
the United States, are lawful under the Equal Protection
Clause of the Fourteenth Amendment.

sylvania, Peter F. Neronha of Rhode Island, Robert W. Ferguson of Wash-
ington, and Joshua L. Kaul of Wisconsin; for Admissions and Testing Pro-
fessionals by Daniel D. Doyle; for the American Bar Association by
Reginald M. Turner, Jr., Loretta Lynch, Sidney Rosdeitcher, Jaren Jan-
ghorbani, Jennifer H. Wu, Josephine Young, and Johan E. Tatoy; for the
American Civil Liberties Union et al. by Sarah Hinger, Jennesa Calvo-
Friedman, ReNika Moore, David D. Cole, Matthew R. Segal, and Kristi
L. Graunke; for the American Council on Education et al. by Jessica L.
Ellsworth, Madelyn F. Wessel, and Johannah Walker; for the American
Educational Research Association et al. by Angelo N. Ancheta; for the
American Federation of Teachers by Kevin K. Russell, Rhonda Weingar-
ten, and David J. Strom; for the American G. I. Forum et al. by Elizabeth
A. Ritvo, Joshua P. Dunn, Lourdes M. Rosado, and Francisca Fajana; for
the American Psychological Association et al. by Melissa Arbus Sherry,
Deanne M. Ottaviano, and Nathalie Gilfoyle; for Amherst College et al.
by Mark D. Harris and John E. Roberts; for Applied Materials, Inc., et al.
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by Mark S. Davies, Thomas M. Bondy, Katherine M. Kopp, E. Joshua
Rosenkranz, and Darren S. Teshima; for the Asian American Legal De-
fense and Education Fund et al. by Dean Richlin, Madeleine K. Rodri-
guez, and Bethany Li; for Asian Americans Advancing Justice et al. by
Roberto A. Rivera-Soto, Michael R. McDonald, Niyati Shah, Eri Andri-
ola, Winifred Kao, and Laboni Hoq; for the Association of American Medi-
cal Colleges et al. by Jonathan S. Franklin, Peter B. Siegal, Heather J.
Alarcon, and Frank R. Trinity; for Black Women Law Scholars by Ray-
mond P. Tolentino and Joshua Matz; for Brown University et al. by Mat-
thew S. Hellman, Ishan K. Bhabha, and Lauren J. Hartz; for the Constitu-
tional Accountability Center by Elizabeth B. Wydra, Brianne J. Gorod,
and David H. Gans; for the Council of the Great City Schools by John W.
Borkowski, Aleksandra O. Rushing, and Julie Wright Halbert; for Deans
of U. S. Law Schools by David B. Oppenheimer; for Faith Organizations
by Corrine Irish and Keith Bradley; for Georgetown University et al. by
Crystal Nix-Hines, Kathleen M. Sullivan, and Justin T. Reinheimer; for
HBCU Leaders et al. by Laurel Pyke Malson and Amanda Shafer Ber-
man; for the HR Policy Association by G. Roger King and Jacquelyn L.
Thompson; for the Law Firm Antiracism Alliance by Stephen R. McAllis-
ter and Simon A. Steel; for Legal Scholars Defending Race-Conscious Ad-
missions by Vinay Harpalani; for Major American Business Enterprises
by Michael R. Dreeben, Heather Welles, Melissa C. Cassel, and Ruthanne
192 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
Opinion of the Court

I
A
Founded in 1636, Harvard College has one of the most se-
lective application processes in the country. Over 60,000

M. Deutsch; for the Massachusetts Institute of Technology et al. by Doug-
las Hallward-Driemeier, Debra L. Zumwalt, and Dahlia Fetouh; for the
Multicultural Media, Telecom and Internet Council, Inc., et al. by Emily
Kanstroom Musgrave, Susan Finegan, and Tara M. Corvo; for the Na-
tional Academy of Education by Yelena Konanova, Caitlin J. Halligan,
and Amy I. Berman; for the National Asian Pacifc American Bar Associa-
tion et al. by Daniel H. Bromberg, Albert Giang, Rachana Pathak, and
Navdeep Singh; for the National Association of Basketball Coaches et al.
by Jaime A. Santos; for the National Black Law Students Association by
Deborah N. Archer and Vincent M. Southerland; for the National Educa-
tion Association et al. by Alice O'Brien, Jason Walta, and Nicole G.
Berner; for the National School Boards Association et al. by Pratik A.
Shah, Aileen M. McGrath, Francisco M. Negrón, Jr., and Sonja H.
Trainor; for the National Women's Law Center et al. by Richard C. Smith,
Page Proof Pending Publication
Meredith Riley, Patrick Ashby, Menaka Nayar, Fatima Goss Graves,
Emily Martin, and Sunu P. Chandy; for the President of the University
of California et al. by Ginger D. Anders, Donald B. Verrilli, Jr., Charles
F. Robinson, and Allison M. Day; for Professors of History and Law by
Kathleen Hartnett, Adam S. Gershenson, and Kristen A. Johnson; for
Southern Governors by Charles L. McCloud and Matthew J. Greer; for
United States Senators et al. by Robert A. Long, Jr., and Eric Chung; for
the University of Michigan by John P. Elwood, Stephen K. Wirth, and
Timothy G. Lynch; for the Washington Bar Association et al. by Upnit K.
Bhatti, Max Carter-Oberstone, and Daniel A. Rubens; for Youth Advo-
cates et al. by Kelly M. Dermody and Miriam Rollin; for Charles S. Abbot
et al. by Michael M. Purpura, Joe R. Reeder, Robert P. Charrow, and
Elliot H. Scherker; for Deborah Cohen et al. by Mark A. Packman; for
Robert C. “Bobby” Scott et al. by Brigida Benitez and Christopher A.
Suarez; and for 25 Diverse, California-Focused Bar Associations et al. by
Mark R. Yohalem and Eva Paterson.
Briefs of amici curiae urging affrmance in No. 20–1199 were fled for
the Anti-Defamation League by Samuel P. Groner and Steven M. Free-
man; for Professors of Economics by Derek T. Ho, Bradley E. Oppenhei-
mer, and Minsuk Han; for Students of Harvard College et al. by Elisabeth
S. Theodore, John A. Freedman, Nancy L. Perkins, Sally L. Pei, Damon
Hewitt, Jon Greenbaum, David G. Hinojosa, and Mses. Shah and Andri-
Cite as: 600 U. S. 181 (2023) 193

Opinion of the Court

people applied to the school last year; fewer than 2,000 were
admitted. Gaining admission to Harvard is thus no easy
feat. It can depend on having excellent grades, glowing rec-
ommendation letters, or overcoming signifcant adversity.

ola; for 25 Harvard Student Organizations et al. by Jin Hee Lee, Mi-
chaele N. Turnage Young, Jennifer A. Holmes, Janai S. Nelson, Samuel
Spital, Rachel M. Kleinman, and Cara McClellan; and for 1,241 Social
Scientists et al. by Daniel Woofter, Erica Oleszczuk Evans, and Liliana
M. Garces.
Briefs of amici curiae urging affrmance in No. 21–707 were fled for the
NAACP Legal Defense and Educational Fund, Inc., et al. by Ms. Nelson,
Mr. Spital, Alexsis M. Johnson, Mr. Lee, and Amber M. Koonce; and for
1,246 American Social Science Researchers et al. by Caroline E. Reynolds,
David A. Reiser, and William J. Murphy.
Briefs of amici curiae were fled in both cases for the American Associa-
tion for Access, Equity and Diversity et al. by Marilynn L. Schuyler; for
the Asian American Coalition for Education et al. by Gordon M. Fauth,
Jr.; for the Claremont Institute's Center for Constitutional Jurisprudence
by John C. Eastman and Anthony T. Caso; for the College Board et al. by
Page Proof Pending Publication
Michael A. Brown, Timothy P. Harkness, David Y. Livshiz, and Scott A.
Eisman; for Empirical Scholars by Susan Baker Manning; for Former
Federal Offcials of the U. S. Dept. of Education's Offce for Civil Rights
by William E. Trachman; for Freedom X by Mitchell Keiter and William
J. Becker, Jr.; for Human Rights Advocates et al. by Constance de la Vega
and Neil A. F. Popović; for Individual Scientists by Ashley Lee Hogewood
III, David R. Fine, and Andrew C. Glass; for Judicial Watch, Inc., et al.
by H. Christopher Coates; for the Legal Insurrection Foundation by Wil-
liam A. Jacobson; for the Liberty Justice Center et al. by Daniel R. Suhr;
for the LONANG Institute by Kerry Lee Morgan and Randall A. Pen-
tiuk; for Parents Defending Education by Christopher E. Mills; for Speech
First by Bradley A. Benbrook and Stephen M. Duvernay; for Veterans for
Fairness by Gene C. Schaerr, Erik S. Jaffe, H. Christopher Bartolomucci,
Hannah C. Smith, Kathryn E. Tarbert, and Claude M. McQuarrie III; for
David E. Bernstein by Cory R. Liu; for David Boyle by Mr. Boyle, pro se;
for Gail Heriot et al. by Peter N. Kirsanow and Ms. Heriot, both pro se;
for Ann M. Killenbeck et al. by Stuart Taylor, Jr.; for Former Attorney
General Edwin Meese III by Edward M. Wenger; and for Richard Sander
by Mr. Taylor. Briefs of amici curiae were fled in No. 20–1199 for the
Jewish Coalition for Religious Liberty by Kristen K. Waggoner, John J.
Bursch, David A. Cortman, and Erin Morrow Hawley; and for the South-
eastern Legal Foundation by Kimberly S. Hermann.
194 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
Opinion of the Court

See 980 F. 3d 157, 166–169 (CA1 2020). It can also depend
on your race.
The admissions process at Harvard works as follows.
Every application is initially screened by a “frst reader,”
who assigns scores in six categories: academic, extracurricu-
lar, athletic, school support, personal, and overall. Ibid. A
rating of “1” is the best; a rating of “6” the worst. Ibid.
In the academic category, for example, a “1” signifes “near-
perfect standardized test scores and grades”; in the extra-
curricular category, it indicates “truly unusual achievement”;
and in the personal category, it denotes “outstanding” attrib-
utes like maturity, integrity, leadership, kindness, and cour-
age. Id., at 167–168. A score of “1” on the overall rating—
a composite of the fve other ratings—“signifes an excep-
tional candidate with >90% chance of admission.” Id., at 169
(internal quotation marks omitted). In assigning the over-
all rating, the frst readers “can and do take an applicant's
Page Proof Pending Publication
race into account.” Ibid.
Once the frst read process is complete, Harvard convenes
admissions subcommittees. Ibid. Each subcommittee
meets for three to fve days and evaluates all applicants from
a particular geographic area. Ibid. The subcommittees
are responsible for making recommendations to the full ad-
missions committee. Id., at 169–170. The subcommittees
can and do take an applicant's race into account when making
their recommendations. Id., at 170.
The next step of the Harvard process is the full committee
meeting. The committee has 40 members, and its discussion
centers around the applicants who have been recommended
by the regional subcommittees. Ibid. At the beginning of
the meeting, the committee discusses the relative breakdown
of applicants by race. The “goal,” according to Harvard's
director of admissions, “is to make sure that [Harvard does]
not hav[e] a dramatic drop-off” in minority admissions from
the prior class. 2 App. in No. 20–1199, pp. 744, 747–748.
Each applicant considered by the full committee is discussed
Cite as: 600 U. S. 181 (2023) 195

Opinion of the Court

one by one, and every member of the committee must vote
on admission. 980 F. 3d, at 170. Only when an applicant
secures a majority of the full committee's votes is he or she
tentatively accepted for admission. Ibid. At the end of the
full committee meeting, the racial composition of the pool of
tentatively admitted students is disclosed to the committee.
Ibid.; 2 App. in No. 20–1199, at 861.
The fnal stage of Harvard's process is called the “lop,”
during which the list of tentatively admitted students is win-
nowed further to arrive at the fnal class. Any applicants
that Harvard considers cutting at this stage are placed on a
“lop list,” which contains only four pieces of information: leg-
acy status, recruited athlete status, fnancial aid eligibility,
and race. 980 F. 3d, at 170. The full committee decides as
a group which students to lop. 397 F. Supp. 3d 126, 144
(Mass. 2019). In doing so, the committee can and does take
race into account. Ibid. Once the lop process is complete,
Harvard's admitted class is set. Ibid. In the Harvard ad-
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missions process, “race is a determinative tip for” a signif-
cant percentage “of all admitted African American and His-
panic applicants.” Id., at 178.

B
Founded just nine months after the Constitution was rati-
fed, the University of North Carolina (UNC) prides itself on
being the “nation's frst public university.” 567 F. Supp. 3d
580, 588 (MDNC 2021). Like Harvard, UNC's “admissions
process is highly selective”: In a typical year, the school “re-
ceives approximately 43,500 applications for its freshman
class of 4,200.” Id., at 595.
Every application the University receives is initially re-
viewed by one of approximately 40 admissions offce readers,
each of whom reviews roughly fve applications per hour.
Id., at 596, 598. Readers are required to consider “[r]ace
and ethnicity . . . as one factor” in their review. Id., at 597
(internal quotation marks omitted). Other factors include
196 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
Opinion of the Court

academic performance and rigor, standardized testing re-
sults, extracurricular involvement, essay quality, personal
factors, and student background. Id., at 600. Readers
are responsible for providing numerical ratings for the aca-
demic, extracurricular, personal, and essay categories. Ibid.
During the years at issue in this litigation, underrepre-
sented minority students were “more likely to score [highly]
on their personal ratings than their white and Asian
American peers,” but were more likely to be “rated lower by
UNC readers on their academic program, academic perform-
ance, . . . extracurricular activities,” and essays. Id., at
616–617.
After assessing an applicant's materials along these lines,
the reader “formulates an opinion about whether the student
should be offered admission” and then “writes a comment
defending his or her recommended decision.” Id., at 598 (in-
ternal quotation marks omitted). In making that decision,
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readers may offer students a “plus” based on their race,
which “may be signifcant in an individual case.” Id., at 601
(internal quotation marks omitted). The admissions deci-
sions made by the frst readers are, in most cases, “provision-
ally fnal.” Students for Fair Admissions, Inc. v. Uni-
versity of N. C. at Chapel Hill, No. 1:14–cv–954 (MDNC,
Nov. 9, 2020), ECF Doc. 225, p. 7, ¶52.
Following the frst read process, “applications then go to a
process called `school group review' . . . where a committee
composed of experienced staff members reviews every [ini-
tial] decision.” 567 F. Supp. 3d, at 599. The review com-
mittee receives a report on each student which contains,
among other things, their “class rank, GPA, and test scores;
the ratings assigned to them by their initial readers; and
their status as residents, legacies, or special recruits.” Ibid.
(footnote omitted). The review committee either approves
or rejects each admission recommendation made by the frst
reader, after which the admissions decisions are fnalized.
Ibid. In making those decisions, the review committee may
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Opinion of the Court

also consider the applicant's race. Id., at 607; 2 App. in
No. 21–707, p. 407.1
C
Petitioner, Students for Fair Admissions (SFFA), is a non-
proft organization founded in 2014 whose purpose is “to de-
fend human and civil rights secured by law, including the
right of individuals to equal protection under the law.” 980
F. 3d, at 164 (internal quotation marks omitted). In Novem-
ber 2014, SFFA fled separate lawsuits against Harvard Col-
lege and the University of North Carolina, arguing that their

1
Justice Jackson attempts to minimize the role that race plays in
UNC's admissions process by noting that, from 2016–2021, the school ac-
cepted a lower “percentage of the most academically excellent in-state
Black candidates”—that is, 65 out of 67 such applicants (97.01%)—than it
did similarly situated Asian applicants—that is, 1118 out of 1139 such ap-
plicants (98.16%). Post, at 402 (dissenting opinion); see also 3 App. in No.
21–707, pp. 1078–1080. It is not clear how the rejection of just two black
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applicants over fve years could be “indicative of a genuinely holistic [ad-
missions] process,” as Justice Jackson contends. Post, at 403. And in-
deed it cannot be, as the overall acceptance rates of academically excellent
applicants to UNC illustrates full well. According to SFFA's expert, over
80% of all black applicants in the top academic decile were admitted to
UNC, while under 70% of white and Asian applicants in that decile were
admitted. 3 App. in No. 21–707, at 1078–1083. In the second highest
academic decile, the disparity is even starker: 83% of black applicants were
admitted, while 58% of white applicants and 47% of Asian applicants were
admitted. Ibid. And in the third highest decile, 77% of black applicants
were admitted, compared to 48% of white applicants and 34% of Asian
applicants. Ibid. The dissent does not dispute the accuracy of these
fgures. See post, at 402–403, n. 94 (opinion of Jackson, J). And its con-
tention that white and Asian students “receive a diversity plus” in UNC's
race-based admissions system blinks reality. Post, at 400.
The same is true at Harvard. See Brief for Petitioner 24 (“[A]n African
American [student] in [the fourth lowest academic] decile has a higher
chance of admission (12.8%) than an Asian American in the top decile
(12.7%).” (emphasis added)); see also 4 App. in No. 20–1199, p. 1793 (black
applicants in the top four academic deciles are between four and ten times
more likely to be admitted to Harvard than Asian applicants in those
deciles).
198 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
Opinion of the Court

race-based admissions programs violated, respectively, Title
VI of the Civil Rights Act of 1964, 78 Stat. 252, 42 U. S. C.
§ 2000d et seq., and the Equal Protection Clause of the Four-
teenth Amendment.2 See 397 F. Supp. 3d, at 131–132; 567
F. Supp. 3d, at 585–586. The District Courts in both cases
held bench trials to evaluate SFFA's claims. 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 affrmed that determination. See 980 F. 3d, at
204. Similarly, in the UNC case, the District Court con-
cluded after an eight-day trial that UNC's admissions pro-
gram was permissible under the Equal Protection Clause.
567 F. Supp. 3d, at 588, 666.
We granted certiorari in the Harvard case and certiorari
before judgment in the UNC case. 595 U. S. ––– (2022).
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II
Before turning to the merits, we must assure ourselves of
our jurisdiction. See Summers v. Earth Island Institute,
555 U. S. 488, 499 (2009). UNC argues that SFFA lacks
standing to bring its claims because it is not a “genuine”
membership organization. Brief for University Respond-
ents in No. 21–707, pp. 23–26. Every court to have consid-
2
Title VI provides that “[n]o person in the United States shall, on the
ground of race, color, or national origin, be excluded from participation in,
be denied the benefts of, or be subjected to discrimination under any
program or activity receiving Federal fnancial assistance.” 42 U. S. C.
§ 2000d. “We have explained that discrimination that violates the Equal
Protection Clause of the Fourteenth Amendment committed by an institu-
tion that accepts federal funds also constitutes a violation of Title VI.”
Gratz v. Bollinger, 539 U. S. 244, 276, n. 23 (2003). Although Justice
Gorsuch questions that proposition, no party asks us to reconsider it.
We accordingly evaluate Harvard's admissions program under the stand-
ards of the Equal Protection Clause itself.
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Opinion of the Court

ered this argument has rejected it, and so do we. See Stu-
dents for Fair Admissions, Inc. v. University of Tex. at
Austin, 37 F. 4th 1078, 1084–1086, and n. 8 (CA5 2022) (col-
lecting cases).
Article III of the Constitution limits “[t]he judicial power
of the United States” to “cases” or “controversies,” ensuring
that federal courts act only “as a necessity in the determina-
tion of real, earnest and vital” disputes. Muskrat v. United
States, 219 U. S. 346, 351, 359 (1911) (internal quotation
marks omitted). “To state a case or controversy under Arti-
cle III, a plaintiff must establish standing.” Arizona Chris-
tian School Tuition Organization v. Winn, 563 U. S. 125, 133
(2011). That, in turn, requires a plaintiff to demonstrate
that it has “(1) suffered an injury in fact, (2) that is fairly
traceable to the challenged conduct of the defendant, and (3)
that is likely to be redressed by a favorable judicial decision.”
Spokeo, Inc. v. Robins, 578 U. S. 330, 338 (2016).
Page Proof Pending Publication
In cases like these, where the plaintiff is an organization,
the standing requirements of Article III can be satisfed in
two ways. Either the organization can claim that it suffered
an injury in its own right or, alternatively, it can assert
“standing solely as the representative of its members.”
Warth v. Seldin, 422 U. S. 490, 511 (1975). The latter ap-
proach is known as representational or organizational stand-
ing. Ibid.; Summers, 555 U. S., at 497–498. To invoke it, an
organization must demonstrate that “(a) its members would
otherwise have standing to sue in their own right; (b) the
interests it seeks to protect are germane to the organiza-
tion's purpose; and (c) neither the claim asserted nor the re-
lief requested requires the participation of individual mem-
bers in the lawsuit.” Hunt v. Washington State Apple
Advertising Comm'n, 432 U. S. 333, 343 (1977).
Respondents do not contest that SFFA satisfes the three-
part test for organizational standing articulated in Hunt, and
like the courts below, we fnd no basis in the record to con-
clude otherwise. See 980 F. 3d, at 182–184; 397 F. Supp. 3d,
200 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
Opinion of the Court

at 183–184; No. 1:14–cv–954 (MDNC, Sept. 29, 2018), App. D
to Pet. for Cert. in No. 21–707, pp. 237–245 (2018 DC Opin-
ion). Respondents instead argue that SFFA was not a “gen-
uine `membership organization' ” when it fled suit, and thus
that it could not invoke the doctrine of organizational stand-
ing in the frst place. Brief for University Respondents in
No. 21–707, at 24. According to respondents, our decision in
Hunt established that groups qualify as genuine membership
organizations only if they are controlled and funded by their
members. And because SFFA's members did neither at the
time this litigation commenced, respondents' argument goes,
SFFA could not represent its members for purposes of Arti-
cle III standing. Brief for University Respondents in No.
21–707, at 24 (citing Hunt, 432 U. S., at 343).
Hunt involved the Washington State Apple Advertising
Commission, a state agency whose purpose was to protect
the local apple industry. The Commission brought suit chal-
Page Proof Pending Publication
lenging a North Carolina statute that imposed a labeling re-
quirement on containers of apples sold in that State. The
Commission argued that it had standing to challenge the re-
quirement on behalf of Washington's apple industry. 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 nev-
ertheless concluded that the Commission had standing be-
cause the apple growers and dealers it represented were ef-
fectively members of the Commission. Id., at 344. The
growers and dealers “alone elect[ed] the members of the
Commission,” “alone . . . serve[d] on the Commission,” and
“alone fnance[d] its activities”—they possessed, in other
words, “all of the indicia of membership.” Ibid. The Com-
mission was therefore a genuine membership organization in
substance, if not in form. And it was “clearly” entitled to
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Opinion of the Court

rely on the doctrine of organizational standing under the
three-part test recounted above. Id., at 343.
The indicia of membership analysis employed in Hunt has
no applicability in these cases. Here, SFFA is indisputably
a voluntary membership organization with identifable mem-
bers—it is not, as in Hunt, a state agency that concededly
has no members. See 2018 DC Opinion 241–242. As the
First Circuit in the Harvard litigation observed, at the time
SFFA fled suit, it was “a validly incorporated 501(c)(3) non-
proft with forty-seven members who joined voluntarily to
support its mission.” 980 F. 3d, at 184. Meanwhile in the
UNC litigation, SFFA represented four members in particu-
lar—high school graduates who were denied admission to
UNC. See 2018 DC Opinion 234. Those members fled dec-
larations with the District Court stating “that they have vol-
untarily joined SFFA; they support its mission; they receive
updates about the status of the case from SFFA's President;
and they have had the opportunity to have input and direc-
Page Proof Pending Publication
tion on SFFA's case.” Id., at 234–235 (internal quotation
marks omitted). Where, as here, an organization has identi-
fed members and represents them in good faith, our cases
do not require further scrutiny into how the organization
operates. Because SFFA complies with the standing re-
quirements demanded of organizational plaintiffs in Hunt, its
obligations under Article III are satisfed.

III
A
In the wake of the Civil War, Congress proposed and the
States ratifed the Fourteenth Amendment, providing that
no State shall “deny to any person . . . the equal protection
of the laws.” Amdt. 14, § 1. To its proponents, the Equal
Protection Clause represented a “foundation[al] principle”—
“the absolute equality of all citizens of the United States
politically and civilly before their own laws.” Cong. Globe,
39th Cong., 1st Sess., 431 (1866) (statement of Rep. Bingham)
202 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
Opinion of the Court

(Cong. Globe). The Constitution, they were determined,
“should not permit any distinctions of law based on race or
color,” Supp. Brief for United States on Reargument in
Brown v. Board of Education, O. T. 1953, No. 1 etc., p. 41
(detailing the history of the adoption of the Equal Protection
Clause), because any “law which operates upon one man
[should] operate equally upon all,” Cong. Globe 2459 (state-
ment of Rep. Stevens). As soon-to-be President James Gar-
feld observed, the Fourteenth Amendment would hold “over
every American citizen, without regard to color, the protect-
ing shield of law.” Id., at 2462. And in doing so, said Sena-
tor Jacob Howard of Michigan, the Amendment would give
“to the humblest, the poorest, the most despised of the race
the same rights and the same protection before the law as it
gives to the most powerful, the most wealthy, or the most
haughty.” Id., at 2766. For “[w]ithout this principle of
equal justice,” Howard continued, “there is no republican
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government and none that is really worth maintaining.”
Ibid.
At frst, this Court embraced the transcendent aims of the
Equal Protection Clause. “What is this,” we said of the
Clause in 1880, “but declaring that the law in the States shall
be the same for the black as for the white; that all persons,
whether colored or white, shall stand equal before the laws
of the States?” Strauder v. West Virginia, 100 U. S. 303,
307–309 (1880). “[T]he broad and benign provisions of the
Fourteenth Amendment” apply “to all persons,” we unani-
mously declared six years later; it is “hostility to . . . race
and nationality” “which in the eye of the law is not justifed.”
Yick Wo v. Hopkins, 118 U. S. 356, 368–369, 373–374 (1886);
see also id., at 368 (applying the Clause to “aliens and sub-
jects of the Emperor of China”); Truax v. Raich, 239 U. S.
33, 36 (1915) (“a native of Austria”); semble Strauder, 100
U. S., at 308–309 (“Celtic Irishmen”) (dictum).
Despite our early recognition of the broad sweep of the
Equal Protection Clause, this Court—alongside the coun-
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Opinion of the Court

try—quickly failed to live up to the Clause's core commit-
ments. For almost a century after the Civil War, state-
mandated segregation was in many parts of the Nation a
regrettable norm. This Court played its own role in that
ignoble history, allowing in Plessy v. Ferguson the separate
but equal regime that would come to deface much of
America. 163 U. S. 537 (1896). The aspirations of the fram-
ers of the Equal Protection Clause, “[v]irtually strangled in
[their] infancy,” would remain for too long only that—aspira-
tions. J. Tussman & J. tenBroek, The Equal Protection of
the Laws, 37 Cal. L. Rev. 341, 381 (1949).
After Plessy, “American courts . . . labored with the doc-
trine [of separate but equal] for over half a century. ”
Brown v. Board of Education, 347 U. S. 483, 491 (1954).
Some cases in this period attempted to curtail the perni-
ciousness of the doctrine by emphasizing that it required
States to provide black students educational opportunities
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equal to—even if formally separate from—those enjoyed by
white students. See, e. g., Missouri ex rel. Gaines v. Can-
ada, 305 U. S. 337, 349–350 (1938) (“The admissibility of laws
separating the races in the enjoyment of privileges afforded
by the State rests wholly upon the equality of the privileges
which the laws give to the separated groups . . . .”). But
the inherent folly of that approach—of trying to derive equal-
ity from inequality—soon became apparent. As the Court
subsequently recognized, even racial distinctions that were ar-
gued to have no palpable effect worked to subordinate the af-
ficted students. See, e. g., McLaurin v. Oklahoma State Re-
gents for Higher Ed., 339 U. S. 637, 640–642 (1950) (“It is said
that the separations imposed by the State in this case are in
form merely nominal. . . . But they signify that the State . . .
sets [petitioner] apart from the other students.”). By 1950,
the inevitable truth of the Fourteenth Amendment had thus
begun to reemerge: Separate cannot be equal.
The culmination of this approach came fnally in Brown v.
Board of Education. In that seminal decision, we over-
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turned Plessy for good and set frmly on the path of invali-
dating all de jure racial discrimination by the States and
Federal Government. 347 U. S., at 494–495. Brown con-
cerned the permissibility of racial segregation in public
schools. The school district maintained that such segrega-
tion was lawful because the schools provided to black stu-
dents and white students were of roughly the same quality.
But we held such segregation impermissible “even though
the physical facilities and other `tangible' factors may be
equal.” Id., at 493 (emphasis added). The mere act of sepa-
rating “children . . . because of their race,” we explained,
itself “generate[d] a feeling of inferiority.” Id., at 494.
The conclusion reached by the Brown Court was thus un-
mistakably clear: the right to a public education “must be
made available to all on equal terms.” Id., at 493. As the
plaintiffs had argued, “no State has any authority under the
equal-protection clause of the Fourteenth Amendment to use
Page Proof Pending Publication
race as a factor in affording educational opportunities among
its citizens.” Tr. of Oral Arg. in Brown I, O. T. 1952, No. 8,
p. 7 (Robert L. Carter, Dec. 9, 1952); see also Supp. Brief
for Appellants on Reargument in Nos. 1, 2, and 4, and for
Respondents in No. 10, in Brown v. Board of Education,
O. T. 1953, p. 65 (“That the Constitution is color blind is our
dedicated belief.”); post, at 268, n. 7 (Thomas, J., concurring).
The Court reiterated that rule just one year later, holding
that “full compliance” with Brown required schools to admit
students “on a racially nondiscriminatory basis.” Brown v.
Board of Education, 349 U. S. 294, 300–301 (1955). The
time for making distinctions based on race had passed.
Brown, the Court observed, “declar[ed] the fundamental
principle that racial discrimination in public education is un-
constitutional.” Id., at 298.
So too in other areas of life. Immediately after Brown,
we began routinely affrming lower court decisions that in-
validated all manner of race-based state action. In Gayle
v. Browder, for example, we summarily affrmed a decision
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invalidating state and local laws that required segregation in
busing. 352 U. S. 903 (1956) (per curiam). As the lower
court explained, “[t]he equal protection clause requires
equality of treatment before the law for all persons without
regard to race or color.” Browder v. Gayle, 142 F. Supp.
707, 715 (MD Ala. 1956). And in Mayor and City Council
of Baltimore v. Dawson, we summarily affrmed a decision
striking down racial segregation at public beaches and bath-
houses maintained by the State of Maryland and the city of
Baltimore. 350 U. S. 877 (1955) (per curiam). “[I]t is obvi-
ous that racial segregation in recreational activities can no
longer be sustained,” the lower court observed. Dawson v.
Mayor and City Council of Baltimore, 220 F. 2d 386, 387
(CA4 1955) (per curiam). “[T]he ideal of equality before the
law which characterizes our institutions” demanded as
much. Ibid.
In the decades that followed, this Court continued to vindi-
Page Proof Pending Publication
cate the Constitution's pledge of racial equality. Laws di-
viding parks and golf courses; neighborhoods and businesses;
buses and trains; schools and juries were undone, all by a
transformative promise “stemming from our American ideal
of fairness”: “ `the Constitution . . . forbids . . . discrimination
by the General Government, or by the States, against any
citizen because of his race.' ” Bolling v. Sharpe, 347 U. S.
497, 499 (1954) (quoting Gibson v. Mississippi, 162 U. S. 565,
591 (1896) (Harlan, J., for the Court)). As we recounted in
striking down the Commonwealth of Virginia's ban on inter-
racial marriage 13 years after Brown, the Fourteenth
Amendment “proscri[bes] . . . all invidious racial discrimina-
tions.” Loving v. Virginia, 388 U. S. 1, 8 (1967). Our cases
had thus “consistently denied the constitutionality of meas-
ures which restrict the rights of citizens on account of race.”
Id., at 11–12; see also Yick Wo, 118 U. S., at 373–375 (commer-
cial property); Shelley v. Kraemer, 334 U. S. 1 (1948) (housing
covenants); Hernandez v. Texas, 347 U. S. 475 (1954) (composi-
tion of juries); Dawson, 350 U. S., at 877 (beaches and bath-
206 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
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houses); Holmes v. Atlanta, 350 U. S. 879 (1955) (per curiam)
(golf courses); Browder, 352 U. S., at 903 (busing); New Or-
leans City Park Improvement Assn. v. Detiege, 358 U. S. 54
(1958) (per curiam) (public parks); Bailey v. Patterson,
369 U. S. 31 (1962) (per curiam) (transportation facilities);
Swann v. Charlotte-Mecklenburg Bd. of Ed., 402 U. S. 1
(1971) (education); Batson v. Kentucky, 476 U. S. 79 (1986)
(peremptory jury strikes).
These decisions refect the “core purpose” of the Equal
Protection Clause: “do[ing] away with all governmentally
imposed discrimination based on race.” Palmore v. Sidoti,
466 U. S. 429, 432 (1984) (footnote omitted). We have recog-
nized that repeatedly. “The clear and central purpose of the
Fourteenth Amendment was to eliminate all offcial state
sources of invidious racial discrimination in the States.”
Loving, 388 U. S., at 10; see also Washington v. Davis, 426
U. S. 229, 239 (1976) (“The central purpose of the Equal Pro-
tection Clause of the Fourteenth Amendment is the preven-
Page Proof Pending Publication
tion of offcial conduct discriminating on the basis of race.”);
McLaughlin v. Florida, 379 U. S. 184, 192 (1964) (“[T]he his-
torical fact [is] that the central purpose of the Fourteenth
Amendment was to eliminate racial discrimination.”).
Eliminating racial discrimination means eliminating all of
it. And the Equal Protection Clause, we have accordingly
held, applies “without regard to any differences of race, of
color, or of nationality”—it is “universal in [its] application.”
Yick Wo, 118 U. S., at 369. For “[t]he guarantee of equal
protection cannot mean one thing when applied to one indi-
vidual and something else when applied to a person of an-
other color.” Regents of Univ. of Cal. v. Bakke, 438 U. S. 265,
289–290 (1978) (opinion of Powell, J.). “If both are not ac-
corded the same protection, then it is not equal.” Id., at 290.
Any exception to the Constitution's demand for equal
protection must survive a daunting two-step examination
known in our cases as “strict scrutiny.” Adarand Construc-
tors, Inc. v. Peña, 515 U. S. 200, 227 (1995). Under that
standard we ask, frst, whether the racial classifcation
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is used to “further compelling governmental interests.”
Grutter v. Bollinger, 539 U. S. 306, 326 (2003). Second, if
so, we ask whether the government's use of race is “nar-
rowly tailored”—meaning “necessary”—to achieve that in-
terest. Fisher v. University of Tex. at Austin, 570 U. S. 297,
311–312 (2013) (Fisher I) (internal quotation marks omitted).
Outside the circumstances of these cases, our precedents
have identifed only two compelling interests that permit re-
sort to race-based government action. One is remediating
specifc, identifed instances of past discrimination that vio-
lated the Constitution or a statute. See, e. g., Parents In-
volved in Community Schools v. Seattle School Dist. No. 1,
551 U. S. 701, 720 (2007); Shaw v. Hunt, 517 U. S. 899, 909–
910 (1996); post, at 248–249, 259–260 (opinion of Thomas, J.).
The second is avoiding imminent and serious risks to human
safety in prisons, such as a race riot. See Johnson v. Cali-
fornia, 543 U. S. 499, 512–513 (2005).3
Page
3
Proof Pending Publication
The frst time we determined that a governmental racial classifcation
satisfed “the most rigid scrutiny” was 10 years before Brown v. Board of
Education, 347 U. S. 483 (1954), in the infamous case Korematsu v. United
States, 323 U. S. 214, 216 (1944). There, the Court upheld the internment
of “all persons of Japanese ancestry in prescribed West Coast . . . areas”
during World War II because “the military urgency of the situation de-
manded” it. Id., at 217, 223. We have since overruled Korematsu, rec-
ognizing that it was “gravely wrong the day it was decided.” Trump v.
Hawaii, 585 U. S. –––, ––– (2018). The Court's decision in Korematsu
nevertheless “demonstrates vividly that even the most rigid scrutiny
can sometimes fail to detect an illegitimate racial classifcation” and that
“[a]ny retreat from the most searching judicial inquiry can only increase
the risk of another such error occurring in the future.” Adarand Con-
structors, Inc. v. Peña, 515 U. S. 200, 236 (1995) (internal quotation
marks omitted).
The principal dissent, for its part, claims that the Court has also permit-
ted “the use of race when that use burdens minority populations.” Post,
at 354–355 (opinion of Sotomayor, J.). In support of that claim, the dis-
sent cites two cases that have nothing to do with the Equal Protection
Clause. 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)).
208 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
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Our acceptance of race-based state action has been rare
for a reason. “Distinctions between citizens solely because
of their ancestry are by their very nature odious to a free
people whose institutions are founded upon the doctrine of
equality.” Rice v. Cayetano, 528 U. S. 495, 517 (2000) (quot-
ing Hirabayashi v. United States, 320 U. S. 81, 100 (1943)).
That principle cannot be overridden except in the most ex-
traordinary case.
B
These cases involve whether a university may make admis-
sions decisions that turn on an applicant's race. Our Court
frst considered that issue in Regents of University of Cali-
fornia v. Bakke, which involved a set-aside admissions pro-
gram used by the University of California, Davis, medical
school. 438 U. S., at 272–276. Each year, the school held 16
of its 100 seats open for members of certain minority groups,
who were reviewed on a special admissions track separate
Page Proof Pending Publication
from those in the main admissions pool. Id., at 272–275.
The plaintiff, Allan Bakke, was denied admission two years
in a row, despite the admission of minority applicants with
lower grade point averages and MCAT scores. Id., at 276–
277. Bakke subsequently sued the school, arguing that its
set-aside program violated the Equal Protection Clause.
In a deeply splintered decision that produced six different
opinions—none of which commanded a majority of the
Court—we ultimately ruled in part in favor of the school
and in part in favor of Bakke. Justice Powell announced
the Court's judgment, and his opinion—though written for
himself alone—would eventually come to “serv[e] as the
touchstone for constitutional analysis of race-conscious ad-
missions policies.” Grutter, 539 U. S., at 323.
Justice Powell began by fnding three of the school's four
justifcations for its policy not suffciently compelling. The
school's frst justifcation of “reducing the historic defcit of
traditionally disfavored minorities in medical schools,” he
wrote, was akin to “[p]referring members of any one group
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for no reason other than race or ethnic origin.” Bakke, 438
U. S., at 306–307 (internal quotation marks omitted). Yet
that was “discrimination for its own sake,” which “the Con-
stitution forbids.” Id., at 307 (citing, inter alia, Loving, 388
U. S., at 11). Justice Powell next observed that the goal of
“remedying . . . the effects of `societal discrimination' ” was
also insuffcient because it was “an amorphous concept of in-
jury that may be ageless in its reach into the past.” Bakke,
438 U. S., at 307. Finally, Justice Powell found there was
“virtually no evidence in the record indicating that [the
school's] special admissions program” would, as the school
had argued, increase the number of doctors working in un-
derserved areas. Id., at 310.
Justice Powell then turned to the school's last interest as-
serted to be compelling—obtaining the educational benefts
that fow from a racially diverse student body. That inter-
est, in his view, was “a constitutionally permissible goal for
Page Proof Pending Publication
an institution of higher education.” Id., at 311–312. And
that was so, he opined, because a university was entitled as
a matter of academic freedom “to make its own judgments
as to . . . the selection of its student body.” Id., at 312.
But a university's freedom was not unlimited. “Racial
and ethnic distinctions of any sort are inherently suspect,”
Justice Powell explained, and antipathy toward them was
deeply “rooted in our Nation's constitutional and demo-
graphic history.” Id., at 291. A university could not em-
ploy a quota system, for example, reserving “a specifed num-
ber of seats in each class for individuals from the preferred
ethnic groups.” Id., at 315. Nor could it impose a “multi-
track program with a prescribed number of seats set aside
for each identifable category of applicants.” Ibid. And
neither still could it use race to foreclose an individual “from
all consideration . . . simply because he was not the right
color.” Id., at 318.
The role of race had to be cabined. It could operate only
as “a `plus' in a particular applicant's fle.” Id., at 317. And
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even then, race was to be weighed in a manner “fexible
enough to consider all pertinent elements of diversity in light
of the particular qualifcations of each applicant.” Ibid.
Justice Powell derived this approach from what he called the
“illuminating example” of the admissions system then used
by Harvard College. Id., at 316. Under that system, as de-
scribed by Harvard in a brief it had fled with the Court,
“the race of an applicant may tip the balance in his favor just
as geographic origin or a life [experience] may tip the bal-
ance in other candidates' cases.” Ibid. (internal quotation
marks omitted). Harvard continued: “A farm boy from
Idaho can bring something to Harvard College that a Bosto-
nian cannot offer. Similarly, a black student can usually
bring something that a white person cannot offer.” Ibid.
(internal quotation marks omitted). The result, Harvard
proclaimed, was that “race has been”—and should be—“a
factor in some admission decisions.” Ibid. (internal quota-
Page Proof Pending Publication
tion marks omitted).
No other Member of the Court joined Justice Powell's
opinion. Four Justices instead would have held that the
government may use race for the purpose of “remedying the
effects of past societal discrimination.” Id., at 362 ( joint
opinion of Brennan, White, Marshall, and Blackmun, JJ., con-
curring in judgment in part and dissenting in part). Four
other Justices, meanwhile, would have struck down the
Davis program as violative of Title VI. In their view, it
“seem[ed] clear that the proponents of Title VI assumed that
the Constitution itself required a colorblind standard on the
part of government.” Id., at 416 (Stevens, J., joined by
Burger, C. J., and Stewart and Rehnquist, JJ., concurring in
judgment in part and dissenting in part). The Davis pro-
gram therefore fatly contravened a core “principle imbedded
in the constitutional and moral understanding of the times”:
the prohibition against “racial discrimination.” Id., at 418,
n. 21 (internal quotation marks omitted).
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C
In the years that followed our “fractured decision in
Bakke,” lower courts “struggled to discern whether Justice
Powell's” opinion constituted “binding precedent.” Grutter,
539 U. S., at 325. We accordingly took up the matter again
in 2003, in the case Grutter v. Bollinger, which concerned
the admissions system used by the University of Michigan
law school. Id., at 311. There, in another sharply divided
decision, the Court for the frst time “endorse[d] Justice
Powell's view that student body diversity is a compelling
state interest that can justify the use of race in university
admissions.” Id., at 325.
The Court's analysis tracked Justice Powell's in many re-
spects. As for compelling interest, the Court held that
“[t]he Law School's educational judgment that such diversity
is essential to its educational mission is one to which we
defer.” Id., at 328. In achieving that goal, however, the
Page Proof Pending Publication
Court made clear—just as Justice Powell had—that the law
school was limited in the means that it could pursue. The
school could not “establish quotas for members of certain
racial groups or put members of those groups on separate
admissions tracks.” Id., at 334. Neither could it “insulate
applicants who belong to certain racial or ethnic groups from
the competition for admission.” Ibid. Nor still could it de-
sire “some specifed percentage of a particular group merely
because of its race or ethnic origin.” Id., at 329–330 (quot-
ing Bakke, 438 U. S., at 307 (opinion of Powell, J.)).
These limits, Grutter explained, were intended to guard
against two dangers that all race-based government action
portends. The frst is the risk that the use of race will de-
volve into “illegitimate . . . stereotyp[ing].” Richmond v.
J. A. Croson Co., 488 U. S. 469, 493 (1989) (plurality opinion).
Universities were thus not permitted to operate their admis-
sions programs on the “belief that minority students always
(or even consistently) express some characteristic minority
212 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
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viewpoint on any issue.” Grutter, 539 U. S., at 333 (internal
quotation marks omitted). The second risk is that race
would be used not as a plus, but as a negative—to discrimi-
nate against those racial groups that were not the benefci-
aries of the race-based preference. A university's use of
race, accordingly, could not occur in a manner that “unduly
harm[ed] nonminority applicants.” Id., at 341.
But even with these constraints in place, Grutter ex-
pressed marked discomfort with the use of race in college
admissions. The Court stressed the fundamental principle
that “there are serious problems of justice connected with
the idea of [racial] preference itself.” Ibid. (quoting Bakke,
438 U. S., at 298 (opinion of Powell, J.)). It observed that all
“racial classifcations, however compelling their goals,” were
“dangerous.” Grutter, 539 U. S., at 342. And it cautioned
that all “race-based governmental action” should “remai[n]
subject to continuing oversight to assure that it will work the
Page Proof Pending Publication
least harm possible to other innocent persons competing for
the beneft.” Id., at 341 (internal quotation marks omitted).
To manage these concerns, Grutter imposed one fnal limit
on race-based admissions programs. At some point, the
Court held, they must end. Id., at 342. This requirement
was critical, and Grutter emphasized it repeatedly. “[A]ll
race-conscious admissions programs [must] have a termina-
tion point”; they “must have reasonable durational limits”;
they “must be limited in time”; they must have “sunset pro-
visions”; they “must have a logical end point”; their “devia-
tion from the norm of equal treatment” must be “a tempo-
rary matter.” Ibid. (internal quotation marks omitted).
The importance of an end point was not just a matter
of repetition. It was the reason the Court was willing to
dispense temporarily with the Constitution's unambigu-
ous guarantee of equal protection. The Court recognized
as much: “[e]nshrining a permanent justifcation for racial
preferences,” the Court explained, “would offend this funda-
mental equal protection principle.” Ibid.; see also id., at
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342–343 (quoting N. Nathanson & C. Bartnik, The Constitu-
tionality of Preferential Treatment for Minority Applicants
to Professional Schools, 58 Chi. Bar Rec. 282, 293 (May–June
1977), for the proposition that “[i]t would be a sad day in-
deed, were America to become a quota-ridden society, with
each identifable minority assigned proportional representa-
tion in every desirable walk of life”).
Grutter thus concluded with the following caution: “It has
been 25 years since Justice Powell frst approved the use of
race to further an interest in student body diversity in the
context of public higher education. . . . We expect that 25
years from now, the use of racial preferences will no longer
be necessary to further the interest approved today.” 539
U. S., at 343.
IV
Twenty years later, no end is in sight. “Harvard's view
about when [race-based admissions will end] doesn't have a
Page Proof Pending Publication
date on it.” Tr. of Oral Arg. in No. 20–1199, p. 85; Brief for
Respondent in No. 20–1199, p. 52. Neither does UNC's.
567 F. Supp. 3d, at 612. Yet both insist that the use of race
in their admissions programs must continue.
But we have permitted race-based admissions only within
the confnes of narrow restrictions. University programs
must comply with strict scrutiny, they may never use race
as a stereotype or negative, and—at some point—they must
end. Respondents' admissions systems—however well in-
tentioned and implemented in good faith—fail each of these
criteria. They must therefore be invalidated under the
Equal Protection Clause of the Fourteenth Amendment.4

4
The United States as amicus curiae contends that race-based admis-
sions programs further compelling interests at our Nation's military acad-
emies. No military academy is a party to these cases, however, and none
of the courts below addressed the propriety of race-based admissions sys-
tems in that context. This opinion also does not address the issue, in light
of the potentially distinct interests that military academies may present.
214 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
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A
Because “[r]acial discrimination [is] invidious in all con-
texts,” Edmonson v. Leesville Concrete Co., 500 U. S. 614,
619 (1991), we have required that universities operate their
race-based admissions programs in a manner that is “suff-
ciently measurable to permit judicial [review]” under the ru-
bric of strict scrutiny, Fisher v. University of Tex. at Austin,
579 U. S. 365, 381 (2016) (Fisher II). “Classifying and as-
signing” students based on their race “requires more than
. . . an amorphous end to justify it.” Parents Involved, 551
U. S., at 735.
Respondents have fallen short of satisfying that burden.
First, the interests they view as compelling cannot be sub-
jected to meaningful judicial review. Harvard identifes the
following educational benefts that it is pursuing: (1) “train-
ing future leaders in the public and private sectors”; (2) pre-
paring graduates to “adapt to an increasingly pluralistic soci-
Page Proof Pending Publication
ety”; (3) “better educating its students through diversity”;
and (4) “producing new knowledge stemming from diverse
outlooks.” 980 F. 3d, at 173–174. UNC points to similar
benefts, namely, “(1) promoting the robust exchange of ideas;
(2) broadening and refning understanding; (3) fostering inno-
vation and problem-solving; (4) preparing engaged and pro-
ductive citizens and leaders; [and] (5) enhancing appreciation,
respect, and empathy, cross-racial understanding, and break-
ing down stereotypes.” 567 F. Supp. 3d, at 656.
Although these are commendable goals, they are not suff-
ciently coherent for purposes of strict scrutiny. At the out-
set, it is unclear how courts are supposed to measure any of
these goals. How is a court to know whether leaders have
been adequately “train[ed]”; whether the exchange of ideas
is “robust”; or whether “new knowledge” is being developed?
Ibid.; 980 F. 3d, at 173–174. Even if these goals could some-
how be measured, moreover, how is a court to know when
they have been reached, and when the perilous remedy of
racial preferences may cease? There is no particular point
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at which there exists suffcient “innovation and problem-
solving,” or students who are appropriately “engaged and
productive.” 567 F. Supp. 3d, at 656. Finally, the question
in this context is not one of no diversity or of some: it is a
question of degree. How many fewer leaders Harvard
would create without racial preferences, or how much poorer
the education at Harvard would be, are inquiries no court
could resolve.
Comparing respondents' asserted goals to interests we
have recognized as compelling further illustrates their elu-
sive nature. In the context of racial violence in a prison, for
example, courts can ask whether temporary racial segrega-
tion of inmates will prevent harm to those in the prison.
See Johnson, 543 U. S., at 512–513. When it comes to work-
place discrimination, courts can ask whether a race-based
beneft makes members of the discriminated class “whole for
[the] injuries [they] suffered.” Franks v. Bowman Transp.
Page Proof Pending Publication
Co., 424 U. S. 747, 763 (1976) (internal quotation marks omit-
ted). And in school segregation cases, courts can determine
whether any race-based remedial action produces a distribu-
tion of students “compar[able] to what it would have been in
the absence of such constitutional violations.” Dayton Bd.
of Ed. v. Brinkman, 433 U. S. 406, 420 (1977).
Nothing like that is possible when it comes to evaluating
the interests respondents assert here. Unlike discerning
whether a prisoner will be injured or whether an employee
should receive backpay, the question whether a particular
mix of minority students produces “engaged and productive
citizens,” suffciently “enhance[s] appreciation, respect, and
empathy,” or effectively “train[s] future leaders” is standard-
less. 567 F. Supp. 3d, at 656; 980 F. 3d, at 173–174. The
interests that respondents seek, though plainly worthy, are
inescapably imponderable.
Second, respondents' admissions programs fail to articu-
late a meaningful connection between the means they em-
ploy and the goals they pursue. To achieve the educational
216 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
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benefts of diversity, UNC works to avoid the underrepresen-
tation of minority groups, 567 F. Supp. 3d, at 591–592, and
n. 7, while Harvard likewise “guard[s] against inadvertent
drop-offs in representation” of certain minority groups from
year to year, Brief for Respondent in No. 20–1199, at 16.
To accomplish both of those goals, in turn, the universities
measure the racial composition of their classes using the fol-
lowing categories: (1) Asian; (2) Native Hawaiian or Pacifc
Islander; (3) Hispanic; (4) White; (5) African-American; and
(6) Native American. See, e. g., 397 F. Supp. 3d, at 137, 178;
3 App. in No. 20–1199, at 1278, 1280–1283; 3 App. in No. 21–
707, at 1234–1241. It is far from evident, though, how as-
signing students to these racial categories and making ad-
missions decisions based on them furthers the educational
benefts that the universities claim to pursue.
For starters, the categories are themselves imprecise in
many ways. Some of them are plainly overbroad: by group-
Page Proof Pending Publication
ing together all Asian students, for instance, respondents are
apparently uninterested in whether South Asian or East
Asian students are adequately represented, so long as there
is enough of one to compensate for a lack of the other.
Meanwhile other racial categories, such as “Hispanic,” are
arbitrary or undefned. See, e. g., M. Lopez, J. Krogstad, &
J. Passel, Pew Research Center, Who is Hispanic? (Sept. 15,
2022) (referencing the “long history of changing labels [and]
shifting categories . . . refect[ing] evolving cultural norms
about what it means to be Hispanic or Latino in the U. S.
today”). And still other categories are underinclusive.
When asked at oral argument “how are applicants from Mid-
dle Eastern countries classifed, [such as] Jordan, Iraq, Iran,
[and] Egypt,” UNC's counsel responded, “[I] do not know the
answer to that question.” Tr. of Oral Arg. in No. 21–707,
p. 107; cf. post, at 291–292 (Gorsuch, J., concurring) (detail-
ing the “incoherent” and “irrational stereotypes” that these
racial categories further).
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Opinion of the Court

Indeed, the use of these opaque racial categories under-
mines, instead of promotes, respondents' goals. By focusing
on underrepresentation, respondents would apparently pre-
fer a class with 15% of students from Mexico over a class
with 10% of students from several Latin American countries,
simply because the former contains more Hispanic students
than the latter. Yet “[i]t is hard to understand how a plan
that could allow these results can be viewed as being con-
cerned with achieving enrollment that is `broadly diverse.' ”
Parents Involved, 551 U. S., at 724 (quoting Grutter, 539
U. S., at 329). And given the mismatch between the means
respondents employ and the goals they seek, it is especially
hard to understand how courts are supposed to scrutinize
the admissions programs that respondents use.
The universities' main response to these criticisms is, es-
sentially, “trust us.” None of the questions recited above
need answering, they say, because universities are “owed
Page Proof Pending Publication
deference” when using race to beneft some applicants but
not others. Brief for University Respondents in No. 21–707,
at 39 (internal quotation marks omitted). It is true that our
cases have recognized a “tradition of giving a degree of def-
erence to a university's academic decisions.” Grutter, 539
U. S., at 328. But we have been unmistakably clear that any
deference must exist “within constitutionally prescribed lim-
its,” ibid., and that “deference does not imply abandonment
or abdication of judicial review,” Miller–El v. Cockrell, 537
U. S. 322, 340 (2003). Universities may defne their missions
as they see ft. The Constitution defnes ours. Courts may
not license separating students on the basis of race without
an exceedingly persuasive justifcation that is measurable
and concrete enough to permit judicial review. As this
Court has repeatedly reaffrmed, “[r]acial classifcations are
simply too pernicious to permit any but the most exact con-
nection between justifcation and classifcation.” Gratz v.
Bollinger, 539 U. S. 244, 270 (2003) (internal quotation marks
218 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
Opinion of the Court

omitted). The programs at issue here do not satisfy that
standard.5
B
The race-based admissions systems that respondents em-
ploy also fail to comply with the twin commands of the Equal
Protection Clause that race may never be used as a “nega-
tive” and that it may not operate as a stereotype.
First, our cases have stressed that an individual's race may
never be used against him in the admissions process. Here,
however, the First Circuit found that Harvard's consider-
ation of race has led to an 11.1% decrease in the number of
Asian-Americans admitted to Harvard. 980 F. 3d, at 170,
n. 29. And the District Court observed that Harvard's “pol-
icy of considering applicants' race . . . overall results in fewer
Asian American and white students being admitted.” 397
F. Supp. 3d, at 178.
Respondents nonetheless contend that an individual's race
Page Proof Pending Publication
is never a negative factor in their admissions programs, but
that assertion cannot withstand scrutiny. Harvard, for ex-
ample, draws an analogy between race and other factors it
considers in admission. “[W]hile admissions offcers may
give a preference to applicants likely to excel in the Harvard-
Radcliffe Orchestra,” Harvard explains, “that does not mean
it is a `negative' not to excel at a musical instrument.” Brief
for Respondent in No. 20–1199, at 51. But on Harvard's
logic, while it gives preferences to applicants with high
grades and test scores, “that does not mean it is a `negative' ”
to be a student with lower grades and lower test scores.
Ibid. This understanding of the admissions process is hard
to take seriously. College admissions are zero-sum. A ben-
5
For that reason, one dissent candidly advocates abandoning the de-
mands of strict scrutiny. See post, at 407–410 (opinion of Jackson, J.)
(arguing the Court must “get out of the way,” “leav[e] well enough alone,”
and defer to universities and “experts” in determining who should be dis-
criminated against). An opinion professing fdelity to history (to say
nothing of the law) should surely see the folly in that approach.
Cite as: 600 U. S. 181 (2023) 219

Opinion of the Court

eft provided to some applicants but not to others necessarily
advantages the former group at the expense of the latter.
Respondents also suggest that race is not a negative factor
because it does not impact many admissions decisions. See
id., at 49; Brief for University Respondents in No. 21–707,
at 2. Yet, at the same time, respondents also maintain that
the demographics of their admitted classes would meaning-
fully change if race-based admissions were abandoned. And
they acknowledge that race is determinative for at least
some—if not many—of the students they admit. See, e. g.,
Tr. of Oral Arg. in No. 20–1199, at 67; 567 F. Supp. 3d, at
633. How else but “negative” can race be described if, in its
absence, members of some racial groups would be admitted
in greater numbers than they otherwise would have been?
The “[e]qual protection of the laws is not achieved through
indiscriminate imposition of inequalities.” Shelley, 334
U. S., at 22.6
Respondents' admissions programs are infrm for a second
Page Proof Pending Publication
reason as well. We have long held that universities may not
operate their admissions programs on the “belief that minor-
ity students always (or even consistently) express some char-
acteristic minority viewpoint on any issue.” Grutter, 539
U. S., at 333 (internal quotation marks omitted). That re-
quirement is found throughout our Equal Protection Clause

6
Justice Jackson contends that race does not play a “determinative
role for applicants” to UNC. Post, at 406. But even the principal dissent
acknowledges that race—and race alone—explains the admissions deci-
sions for hundreds if not thousands of applicants to UNC each year. Post,
at 349, n. 28 (opinion of Sotomayor, J.); see also Students for Fair Admis-
sions, Inc. v. University of N. C. at Chapel Hill, No. 1:14–cv–954 (MDNC,
Dec. 21, 2020), ECF Doc. 233, at 23–27 (UNC expert testifying that race
explains 1.2% of in state and 5.1% of out of state admissions decisions); 3
App. in No. 21–707, at 1069 (observing that UNC evaluated 57,225 in state
applicants and 105,632 out of state applicants from 2016–2021). The sug-
gestion by the principal dissent that our analysis relies on extra-record
materials, see post, at 345–346, n. 25 (opinion of Sotomayor, J.), is sim-
ply mistaken.
220 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
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Opinion of the Court

jurisprudence more generally. See, e. g., Schuette v. BAMN,
572 U. S. 291, 308 (2014) (plurality opinion) (“In cautioning
against `impermissible racial stereotypes,' this Court has re-
jected the assumption that `members of the same racial
group—regardless of their age, education, economic status,
or the community in which they live—think alike . . . .' ”
(quoting Shaw v. Reno, 509 U. S. 630, 647 (1993))).
Yet by accepting race-based admissions programs in which
some students may obtain preferences on the basis of race
alone, respondents' programs tolerate the very thing that
Grutter foreswore: stereotyping. The point of respondents'
admissions programs is that there is an inherent beneft in
race qua race—in race for race's sake. Respondents admit
as much. Harvard's admissions process rests on the perni-
cious stereotype that “a black student can usually bring
something that a white person cannot offer.” Bakke, 438
U. S., at 316 (opinion of Powell, J.) (internal quotation marks
Page Proof Pending Publication
omitted); see also Tr. of Oral Arg. in No. 20–1199, at 92.
UNC is much the same. It argues that race in itself “says
[something] about who you are.” Tr. of Oral Arg. in No. 21–
707, at 97; see also id., at 96 (analogizing being of a certain
race to being from a rural area).
We have time and again forcefully rejected the notion that
government actors may intentionally allocate preference to
those “who may have little in common with one another but
the color of their skin.” Shaw, 509 U. S., at 647. The entire
point of the Equal Protection Clause is that treating someone
differently because of their skin color is not like treating
them differently because they are from a city or from a sub-
urb, or because they play the violin poorly or well.
“One of the principal reasons race is treated as a forbidden
classifcation is that it demeans the dignity and worth of a
person to be judged by ancestry instead of by his or her own
merit and essential qualities.” Rice, 528 U. S., at 517. But
when a university admits students “on the basis of race, it
engages in the offensive and demeaning assumption that
Cite as: 600 U. S. 181 (2023) 221

Opinion of the Court

[students] of a particular race, because of their race, think
alike,” Miller v. Johnson, 515 U. S. 900, 911–912 (1995) (in-
ternal quotation marks omitted)—at the very least alike in
the sense of being different from nonminority students. In
doing so, the university furthers “stereotypes that treat indi-
viduals as the product of their race, evaluating their
thoughts and efforts—their very worth as citizens—accord-
ing to a criterion barred to the Government by history and
the Constitution.” Id., at 912 (internal quotation marks
omitted). Such stereotyping can only “cause[ ] continued
hurt and injury,” Edmonson, 500 U. S., at 631, contrary as it
is to the “core purpose” of the Equal Protection Clause,
Palmore, 466 U. S., at 432.
C
If all this were not enough, respondents' admissions pro-
grams also lack a “logical end point.” Grutter, 539 U. S.,
at 342.
Page Proof Pending Publication
Respondents and the Government frst suggest that re-
spondents' race-based admissions programs will end when,
in their absence, there is “meaningful representation and
meaningful diversity” on college campuses. Tr. of Oral Arg.
in No. 21–707, at 167. The metric of meaningful representa-
tion, respondents assert, does not involve any “strict numeri-
cal benchmark,” id., at 86; or “precise number or percent-
age,” id., at 167; or “specifed percentage,” Brief for
Respondent in No. 20–1199, at 38 (internal quotation marks
omitted). So what does it involve?
Numbers all the same. At Harvard, each full committee
meeting begins with a discussion of “how the breakdown of
the class compares to the prior year in terms of racial identi-
ties.” 397 F. Supp. 3d, at 146. And “if at some point in
the admissions process it appears that a group is notably
underrepresented or has suffered a dramatic drop off relative
to the prior year, the Admissions Committee may decide
to give additional attention to applications from students
within that group.” Ibid.; see also id., at 147 (District Court
222 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
Opinion of the Court

fnding that Harvard uses race to “track[ ] how each class is
shaping up relative to previous years with an eye towards
achieving a level of racial diversity”); 2 App. in No. 20–1199,
at 821–822.
The results of the Harvard admissions process refect this
numerical commitment. For the admitted classes of 2009 to
2018, black students represented a tight band of 10.0%–11.7%
of the admitted pool. The same theme held true for other
minority groups:

Page Proof Pending Publication

Brief for Petitioner in No. 20–1199 etc., p. 23. Harvard's
focus on numbers is obvious.7
7
The principal dissent claims that “[t]he fact that Harvard's racial shares
of admitted applicants varies relatively little . . . is unsurprising and re-
fects the fact that the racial makeup of Harvard's applicant pool also var-
ies very little over this period.” Post, at 351 (opinion of Sotomayor, J.)
(internal quotation marks omitted). But that is exactly the point: Har-
vard must use precise racial preferences year in and year out to maintain
Cite as: 600 U. S. 181 (2023) 223

Opinion of the Court

UNC's admissions program operates similarly. The Uni-
versity frames the challenge it faces as “the admission and
enrollment of underrepresented minorities,” Brief for Uni-
versity Respondents in No. 21–707, at 7, a metric that turns
solely on whether a group's “percentage enrollment within
the undergraduate student body is lower than their percent-
age within the general population in North Carolina,” 567
F. Supp. 3d, at 591, n. 7; see also Tr. of Oral Arg. in No. 21–
707, at 79. The University “has not yet fully achieved its
diversity-related educational goals,” it explains, in part due
to its failure to obtain closer to proportional representation.
Brief for University Respondents in No. 21–707, at 7; see also
567 F. Supp. 3d, at 594.
The problem with these approaches is well established.
“[O]utright racial balancing” is “patently unconstitutional.”
Fisher I, 570 U. S., at 311 (internal quotation marks omitted).
That is so, we have repeatedly explained, because “[a]t the
heart of the Constitution's guarantee of equal protection lies
Page Proof Pending Publication
the simple command that the Government must treat citizens
as individuals, not as simply components of a racial, religious,
sexual or national class.” Miller, 515 U. S., at 911 (internal
quotation marks omitted). By promising to terminate their
use of race only when some rough percentage of various ra-
cial groups is admitted, respondents turn that principle on

the unyielding demographic composition of its class. The dissent is thus
left to attack the numbers themselves, arguing they were “handpicked”
“from a truncated period.” Ibid., n. 29 (opinion of Sotomayor, J.). As
supposed proof, the dissent notes that the share of Asian students at Har-
vard varied signifcantly from 1980 to 1994—a 14-year period that ended
nearly three decades ago. 4 App. in No. 20–1199, at 1770. But the rele-
vance of that observation—handpicked and truncated as it is—is lost on
us. And the dissent does not and cannot dispute that the share of black
and Hispanic students at Harvard—“the primary benefciaries” of its race-
based admissions policy—has remained consistent for decades. 397
F. Supp. 3d, at 178; 4 App. in No. 20–1199, at 1770. For all the talk of
holistic and contextual judgments, the racial preferences at issue here in
fact operate like clockwork.
224 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
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Opinion of the Court

its head. Their admissions programs “effectively assure[ ]
that race will always be relevant . . . and that the ultimate
goal of eliminating” race as a criterion “will never be
achieved.” Croson, 488 U. S., at 495 (internal quotation
marks omitted).
Respondents' second proffered end point fares no better.
Respondents assert that universities will no longer need to
engage in race-based admissions when, in their absence, stu-
dents nevertheless receive the educational benefts of diver-
sity. But as we have already explained, it is not clear how
a court is supposed to determine when stereotypes have bro-
ken down or “productive citizens and leaders” have been cre-
ated. 567 F. Supp. 3d, at 656. Nor is there any way to
know whether those goals would adequately be met in the
absence of a race-based admissions program. As UNC itself
acknowledges, these “qualitative standard[s]” are “diffcult
to measure.” Tr. of Oral Arg. in No. 21–707, at 78; but see
Page Proof Pending Publication
Fisher II, 579 U. S., at 381 (requiring race-based admissions
programs to operate in a manner that is “sufficiently
measurable”).
Third, respondents suggest that race-based preferences
must be allowed to continue for at least fve more years,
based on the Court's statement in Grutter that it “expect[ed]
that 25 years from now, the use of racial preferences will no
longer be necessary.” 539 U. S., at 343. The 25-year mark
articulated in Grutter, however, refected only that Court's
view that race-based preferences would, by 2028, be unneces-
sary to ensure a requisite level of racial diversity on college
campuses. Ibid. That expectation was oversold. Neither
Harvard nor UNC believes that race-based admissions will
in fact be unnecessary in fve years, and both universities
thus expect to continue using race as a criterion well beyond
the time limit that Grutter suggested. See Tr. of Oral Arg.
in No. 20–1199, at 84–85; Tr. of Oral Arg. in No. 21–707, at
85–86. Indeed, the high school applicants that Harvard and
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Opinion of the Court

UNC will evaluate this fall using their race-based admissions
systems are expected to graduate in 2028—25 years after
Grutter was decided.
Finally, respondents argue that their programs need not
have an end point at all because they frequently review them
to determine whether they remain necessary. See Brief for
Respondent in No. 20–1199, at 52; Brief for University Re-
spondents in No. 21–707, at 58–59. Respondents point
to language in Grutter that, they contend, permits “the du-
rational requirement [to] be met” with “periodic reviews
to determine whether racial preferences are still necessary
to achieve student body diversity.” 539 U. S., at 342.
But Grutter never suggested that periodic review could
make unconstitutional conduct constitutional. To the con-
trary, the Court made clear that race-based admissions
programs eventually had to end—despite whatever perio-
dic review universities conducted. Ibid.; see also supra,
Page Proof Pending Publication
at 209–210.
Here, however, Harvard concedes that its race-based ad-
missions program has no end point. Brief for Respondent
in No. 20–1199, at 52 (Harvard “has not set a sunset date”
for its program (internal quotation marks omitted)). And it
acknowledges that the way it thinks about the use of race in
its admissions process “is the same now as it was” nearly 50
years ago. Tr. of Oral Arg. in No. 20–1199, at 91. UNC's
race-based admissions program is likewise not set to expire
any time soon—nor, indeed, any time at all. The University
admits that it “has not set forth a proposed time period in
which it believes it can end all race-conscious admissions
practices.” 567 F. Supp. 3d, at 612. And UNC suggests
that it might soon use race to a greater extent than it
currently does. See Brief for University Respondents in
No. 21–707, at 57. In short, there is no reason to believe
that respondents will—even acting in good faith—comply
with the Equal Protection Clause any time soon.
226 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
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Opinion of the Court

V
The dissenting opinions resist these conclusions. They
would instead uphold respondents' admissions programs
based on their view that the Fourteenth Amendment permits
state actors to remedy the effects of societal discrimination
through explicitly race-based measures. Although both
opinions are thorough and thoughtful in many respects, this
Court has long rejected their core thesis.
The dissents' interpretation of the Equal Protection
Clause is not new. In Bakke, four Justices would have per-
mitted race-based admissions programs to remedy the ef-
fects of societal discrimination. 438 U. S., at 362 ( joint opin-
ion of Brennan, White, Marshall, and Blackmun, JJ.,
concurring in judgment in part and dissenting in part). But
that minority view was just that—a minority view. Justice
Powell, who provided the ffth vote and controlling opinion in
Bakke, frmly rejected the notion that societal discrimination
Page Proof Pending Publication
constituted a compelling interest. Such an interest presents
“an amorphous concept of injury that may be ageless in its
reach into the past,” he explained. Id., at 307. It cannot
“justify a [racial] classifcation that imposes disadvantages
upon persons . . . who bear no responsibility for whatever
harm the benefciaries of the [race-based] admissions pro-
gram are thought to have suffered.” Id., at 310.
The Court soon adopted Justice Powell's analysis as its
own. In the years after Bakke, the Court repeatedly held
that ameliorating societal discrimination does not constitute
a compelling interest that justifes race-based state action.
“[A]n effort to alleviate the effects of societal discrimination
is not a compelling interest,” we said plainly in Hunt, a 1996
case about the Voting Rights Act. 517 U. S., at 909–910.
We reached the same conclusion in Croson, a case that
concerned a preferential government contracting program.
Permitting “past societal discrimination” to “serve as the
basis for rigid racial preferences would be to open the door
to competing claims for `remedial relief ' for every disadvan-
Cite as: 600 U. S. 181 (2023) 227

Opinion of the Court

taged group.” 488 U. S., at 505. Opening that door would
shutter another—“[t]he dream of a Nation of equal citizens
. . . would be lost,” we observed, “in a mosaic of shifting
preferences based on inherently unmeasurable claims of past
wrongs.” Id., at 505–506. “[S]uch a result would be con-
trary to both the letter and spirit of a constitutional provi-
sion whose central command is equality.” Id., at 506.
The dissents here do not acknowledge any of this. They
fail to cite Hunt. They fail to cite Croson. They fail to
mention that the entirety of their analysis of the Equal Pro-
tection Clause—the statistics, the cases, the history—has
been considered and rejected before. There is a reason the
principal dissent must invoke Justice Marshall's partial dis-
sent in Bakke nearly a dozen times while mentioning Justice
Powell's controlling opinion barely once (Justice Jackson's
opinion ignores Justice Powell altogether). For what one
dissent denigrates as “rhetorical fourishes about colorblind-
ness,” post, at 331 (opinion of Sotomayor, J.), are in fact the
Page Proof Pending Publication
proud pronouncements of cases like Loving and Yick Wo, like
Shelley and Bolling—they are defning statements of law.
We understand the dissents want that law to be different.
They are entitled to that desire. But they surely cannot
claim the mantle of stare decisis while pursuing it.8
The dissents are no more faithful to our precedent on race-
based admissions. To hear the principal dissent tell it,
Grutter blessed such programs indefnitely, until “racial in-

8
Perhaps recognizing as much, the principal dissent at one point at-
tempts to press a different remedial rationale altogether, stating that both
respondents “have sordid legacies of racial exclusion.” Post, at 337 (opin-
ion of Sotomayor, J.). Such institutions should perhaps be the very last
ones to be allowed to make race-based decisions, let alone be accorded
deference in doing so. In any event, neither university defends its admis-
sions system as a remedy for past discrimination—their own or anyone
else's. See Tr. of Oral Arg. in No. 21–707, at 90 (“[W]e're not pursuing
any sort of remedial justifcation for our policy.”). Nor has any decision
of ours permitted a remedial justifcation for race-based college admis-
sions. Cf. Bakke, 438 U. S., at 307 (opinion of Powell, J.).
228 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
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Opinion of the Court

equality will end.” Post, at 370 (opinion of Sotomayor, J.).
But Grutter did no such thing. It emphasized—not once or
twice, but at least six separate times—that race-based ad-
missions programs “must have reasonable durational limits”
and that their “deviation from the norm of equal treatment”
must be “a temporary matter.” 539 U. S., at 342. The
Court also disclaimed “[e]nshrining a permanent justifcation
for racial preferences.” Ibid. Yet the justifcation for race-
based admissions that the dissent latches on to is just
that—unceasing.
The principal dissent's reliance on Fisher II is similarly
mistaken. There, by a 4-to-3 vote, the Court upheld a “sui
generis” race-based admissions program used by the Univer-
sity of Texas, 579 U. S., at 377, whose “goal” it was to enroll
a “critical mass” of certain minority students, Fisher I, 570
U. S., at 301. But neither Harvard nor UNC claims to be
using the critical mass concept—indeed, the universities
Page Proof Pending Publication
admit they do not even know what it means. See 1 App.
in No. 21–707, at 402 (“[N]o one has directed anybody to
achieve a critical mass, and I'm not even sure we would know
what it is.” (testimony of UNC administrator)); 3 App. in
No. 20–1199, at 1137–1138 (similar testimony from Harvard
administrator).
Fisher II also recognized the “enduring challenge” that
race-based admissions systems place on “the constitutional
promise of equal treatment.” 579 U. S., at 388. The Court
thus reaffrmed the “continuing obligation” of universities
“to satisfy the burden of strict scrutiny.” Id., at 379. To
drive the point home, Fisher II limited itself just as Grutter
had—in duration. The Court stressed that its decision did
“not necessarily mean the University may rely on that same
policy” going forward. 579 U. S., at 388 (emphasis added);
see also Fisher I, 570 U. S., at 313 (recognizing that “Grutter
. . . approved the plan at issue upon concluding that it . . .
was limited in time”). And the Court openly acknowledged
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Opinion of the Court

that its decision offered limited “prospective guidance.”
Fisher II, 579 U. S., at 379.9
The principal dissent wrenches our case law from its con-
text, going to lengths to ignore the parts of that law it does
not like. The serious reservations that Bakke, Grutter, and
Fisher had about racial preferences go unrecognized. The
unambiguous requirements of the Equal Protection Clause—
“the most rigid,” “searching” scrutiny it entails—go without
note. Fisher I, 570 U. S., at 310. And the repeated de-
mands that race-based admissions programs must end go
overlooked—contorted, worse still, into a demand that such
programs never stop.
Most troubling of all is what the dissent defends by mak-
ing these omissions: a judiciary that picks winners and losers
based on the color of their skin. While the dissent would
certainly not permit university programs that discriminated
against black and Latino applicants, it is perfectly willing to
Page Proof Pending Publication
let the programs here continue. In its view, this Court is
supposed to tell state actors when they have picked the right
races to beneft. Separate but equal is “inherently un-
equal,” said Brown. 347 U. S., at 495 (emphasis added). It
depends, says the dissent.

9
The principal dissent rebukes the Court for not considering adequately
the reliance interests respondents and other universities had in Grutter.
But as we have explained, Grutter itself limited the reliance that could be
placed upon it by insisting, over and over again, that race-based admis-
sions programs be limited in time. See supra, at 212. Grutter indeed
went so far as to suggest a specifc period of reliance—25 years—preclud-
ing the indefnite reliance interests that the dissent articulates. Cf. post,
at 312–313 (Kavanaugh, J., concurring). Those interests are, moreover,
vastly overstated on their own terms. Three out of every fve American
universities do not consider race in their admissions decisions. See Brief
for Respondent in No. 20–1199, p. 40. And several States—including
some of the most populous (California, Florida, and Michigan)—have pro-
hibited race-based admissions outright. See Brief for Oklahoma et al. as
Amici Curiae 9, n. 6.
230 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
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Opinion of the Court

That is a remarkable view of the judicial role—remarkably
wrong. Lost in the false pretense of judicial humility that
the dissent espouses is a claim to power so radical, so de-
structive, that it required a Second Founding to undo. “Jus-
tice Harlan knew better,” one of the dissents decrees. Post,
at 388 (opinion of Jackson, J.). Indeed he did:
“[I]n view of the Constitution, in the eye of the law,
there is in this country no superior, dominant, ruling
class of citizens. There is no caste here. Our Constitu-
tion is color-blind, and neither knows nor tolerates
classes among citizens.” Plessy, 163 U. S., at 559 (Har-
lan, J., dissenting).
VI
For the reasons provided above, the Harvard and UNC
admissions programs cannot be reconciled with the guaran-
tees of the Equal Protection Clause. Both programs lack
suffciently focused and measurable objectives warranting
Page Proof Pending Publication
the use of race, unavoidably employ race in a negative man-
ner, involve racial stereotyping, and lack meaningful end
points. We have never permitted admissions programs to
work in that way, and we will not do so today.
At the same time, as all parties agree, nothing in this opin-
ion should be construed as prohibiting universities from con-
sidering an applicant's discussion of how race affected his or
her life, be it through discrimination, inspiration, or other-
wise. See, e. g., 4 App. in No. 21–707, at 1725–1726, 1741
(under seal); Students for Fair Admissions, Inc. v. Univer-
sity of N. C. at Chapel Hill, No. 1:14–cv–954 (MDNC, Feb.
5, 2021), ECF Doc. 246, pp. 14–15, ¶¶25–26 (summarizing
sealed material); Tr. of Oral Arg. in No. 20–1199, at 10. But,
despite the dissent's assertion to the contrary, universities
may not simply establish through application essays or other
means the regime we hold unlawful today. (A dissenting
opinion is generally not the best source of legal advice on
how to comply with the majority opinion.) “[W]hat cannot
be done directly cannot be done indirectly. The Constitu-
tion deals with substance, not shadows,” and the prohibition
Cite as: 600 U. S. 181 (2023) 231

Thomas, J., concurring

against racial discrimination is “levelled at the thing, not the
name.”Cummings v. Missouri, 4 Wall. 277, 325 (1867). A
beneft to a student who overcame racial discrimination, for
example, must be tied to that student's courage and determi-
nation. Or a beneft to a student whose heritage or culture
motivated him or her to assume a leadership role or attain a
particular goal must be tied to that student's unique ability
to contribute to the university. In other words, the student
must be treated based on his or her experiences as an indi-
vidual—not on the basis of race.
Many universities have for too long done just the oppo-
site. And in doing so, they have concluded, wrongly, that
the touchstone of an individual's identity is not challenges
bested, skills built, or lessons learned but the color of their
skin. Our constitutional history does not tolerate that choice.
The judgments of the Court of Appeals for the First Cir-
cuit and of the District Court for the Middle District of
North Carolina are reversed.
Page Proof Pending Publication It is so ordered.

Justice Jackson took no part in the consideration or deci-
sion of the case in No. 20–1199.

Justice Thomas, concurring.
In the wake of the Civil War, the country focused its atten-
tion on restoring the Union and establishing the legal status
of newly freed slaves. The Constitution was amended to
abolish slavery and proclaim that all persons born in the
United States are citizens, entitled to the privileges or im-
munities of citizenship and the equal protection of the laws.
Amdts. 13, 14. Because of that second founding, “[o]ur Con-
stitution is color-blind, and neither knows nor tolerates
classes among citizens.” Plessy v. Ferguson, 163 U. S. 537,
559 (1896) (Harlan, J., dissenting).
This Court's commitment to that equality principle has
ebbed and fowed over time. After forsaking the principle
for decades, offering a judicial imprimatur to segregation
232 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
Thomas, J., concurring

and ushering in the Jim Crow era, the Court fnally cor-
rected course in Brown v. Board of Education, 347 U. S. 483
(1954), announcing that primary schools must either desegre-
gate with all deliberate speed or else close their doors. See
also Brown v. Board of Education, 349 U. S. 294 (1955)
(Brown II). It then pulled back in Grutter v. Bollinger, 539
U. S. 306 (2003), permitting universities to discriminate
based on race in their admissions process (though only tem-
porarily) in order to achieve alleged “educational benefts of
diversity.” Id., at 319. Yet, the Constitution continues to
embody a simple truth: Two discriminatory wrongs cannot
make a right.
I wrote separately in Grutter, explaining that the use of
race in higher education admissions decisions—regardless of
whether intended to help or to hurt—violates the Four-
teenth Amendment. Id., at 351 (opinion concurring in part
and dissenting in part). In the decades since, I have repeat-
edly stated that Grutter was wrongly decided and should be
Page Proof Pending Publication
overruled. Fisher v. University of Tex. at Austin, 570 U. S.
297, 315, 328 (2013) (Fisher I) (concurring opinion); Fisher v.
University of Tex. at Austin, 579 U. S. 365, 389 (2016) (dis-
senting opinion). Today, and despite a lengthy interregnum,
the Constitution prevails.
Because the Court today applies genuine strict scrutiny to
the race-conscious admissions policies employed at Harvard
and the University of North Carolina (UNC) and fnds that
they fail that searching review, I join the majority opinion
in full. I write separately to offer an originalist defense of
the colorblind Constitution; to explain further the faws of
the Court's Grutter jurisprudence; to clarify that all forms of
discrimination based on race—including so-called affrmative
action—are prohibited under the Constitution; and to empha-
size the pernicious effects of all such discrimination.

I
In the 1860s, Congress proposed and the States ratifed
the Thirteenth and Fourteenth Amendments. And, with
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Thomas, J., concurring

the authority conferred by these Amendments, Congress
passed two landmark Civil Rights Acts. Throughout the de-
bates on each of these measures, their proponents repeatedly
affrmed their view of equal citizenship and the racial equal-
ity that fows from it. In fact, they held this principle so
deeply that their crowning accomplishment—the Fourteenth
Amendment—ensures racial equality with no textual refer-
ence to race whatsoever. The history of these measures' en-
actment renders their motivating principle as clear as their
text: All citizens of the United States, regardless of skin
color, are equal before the law.
I do not contend that all of the individuals who put forth
and ratifed the Fourteenth Amendment universally believed
this to be true. Some Members of the proposing Congress,
for example, opposed the Amendment. And, the historical
record—particularly with respect to the debates on ratifca-
tion in the States—is sparse. Nonetheless, substantial evi-
dence suggests that the Fourteenth Amendment was passed
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to “establis[h] the broad constitutional principle of full and
complete equality of all persons under the law,” forbidding
“all legal distinctions based on race or color.” Supp. Brief
for United States on Reargument in Brown v. Board of Edu-
cation, O. T. 1953, No. 1 etc., p. 115 (U. S. Brown Reargu-
ment Brief).
This was Justice Harlan's view in his lone dissent in
Plessy, where he observed that “[o]ur Constitution is color-
blind.” 163 U. S., at 559. It was the view of the Court in
Brown, which rejected “ `any authority . . . to use race as
a factor in affording educational opportunities.' ” Parents
Involved in Community Schools v. Seattle School Dist.
No. 1, 551 U. S. 701, 747 (2007). And, it is the view adopted
in the Court's opinion today, requiring “the absolute equality
of all citizens” under the law. Ante, at 201 (internal quota-
tion marks omitted).
A
In its 1864 election platform, the Republican Party
pledged to amend the Constitution to accomplish the “utter
234 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
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Thomas, J., concurring

and complete extirpation” of slavery from “the soil of the
Republic.” 2 A. Schlesinger, History of U. S. Political Par-
ties 1860–1910, p. 1303 (1973). After their landslide victory,
Republicans quickly moved to make good on that promise.
Congress proposed what would become the Thirteenth
Amendment to the States in January 1865, and it was ratifed
as part of the Constitution later that year. The new Amend-
ment stated that “[n]either slavery nor involuntary servitude
. . . shall exist” in the United States “except as a punishment
for crime whereof the party shall have been duly convicted.”
§ 1. It thus not only prohibited States from themselves en-
slaving persons, but also obligated them to end enslavement
by private individuals within their borders. Its Framers
viewed the text broadly, arguing that it “allowed Congress
to legislate not merely against slavery itself, but against all
the badges and relics of a slave system.” A. Amar, Ameri-
ca's Constitution: A Biography 362 (2005) (internal quotation
Page Proof Pending Publication
marks omitted). The Amendment also authorized “Con-
gress . . . to enforce” its terms “by appropriate legislation”—
authority not granted in any prior Amendment. § 2. Pro-
ponents believed this enforcement clause permitted legisla-
tive measures designed to accomplish the Amendment's
broader goal of equality for the freedmen.
It quickly became clear, however, that further amendment
would be necessary to safeguard that goal. Soon after the
Thirteenth Amendment's adoption, the reconstructed South-
ern States began to enact “Black Codes,” which circum-
scribed the newly won freedoms of blacks. The Black Code
of Mississippi, for example, “imposed all sorts of disabilities”
on blacks, “including limiting their freedom of movement and
barring them from following certain occupations, owning
frearms, serving on juries, testifying in cases involving
whites, or voting.” E. Foner, The Second Founding 48
(2019).
Congress responded with the landmark Civil Rights Act
of 1866, 14 Stat. 27, in an attempt to pre-empt the Black
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Thomas, J., concurring

Codes. The 1866 Act promised such a sweeping form of
equality that it would lead many to say that it exceeded the
scope of Congress' authority under the Thirteenth Amend-
ment. As enacted, it stated:
“Be it enacted by the Senate and House of Repre-
sentatives of the United States of America in Congress
assembled, That all persons born in the United States
and not subject to any foreign power, excluding Indians
not taxed, are hereby declared to be citizens of the
United States; and such citizens, of every race and color,
without regard to any previous condition of slavery or
involuntary servitude, except as a punishment for crime
whereof the party shall have been duly convicted, shall
have the same right, in every State and Territory in the
United States, to make and enforce contracts, to sue, be
parties, and give evidence, to inherit, purchase, lease,
sell, hold, and convey real and personal property, and
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to full and equal beneft of all laws and proceedings for
the security of person and property, as is enjoyed by
white citizens, and shall be subject to like punishment,
pains, and penalties, and to none other, any law, stat-
ute, ordinance, regulation, or custom, to the contrary
notwithstanding.”

The text of the provision left no doubt as to its aim: All
persons born in the United States were equal citizens enti-
tled to the same rights and subject to the same penalties as
white citizens in the categories enumerated. See M. Mc-
Connell, Originalism and the Desegregation Decisions, 81 Va.
L. Rev. 947, 958 (1995) (“Note that the bill neither forbade
racial discrimination generally nor did it guarantee particu-
lar rights to all persons. Rather, it required an equality in
certain specifc rights”). And, while the 1866 Act used the
rights of “white citizens” as a benchmark, its rule was decid-
edly colorblind, safeguarding legal equality for all citizens
“of every race and color” and providing the same rights to all.
236 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
Thomas, J., concurring

The 1866 Act's evolution further highlights its rule of
equality. To start, Dred Scott v. Sandford, 19 How. 393
(1857), had previously held that blacks “were not regarded
as a portion of the people or citizens of the Government” and
“had no rights which the white man was bound to respect.”
Id., at 407, 411. The Act, however, would effectively over-
rule Dred Scott and ensure the equality that had been prom-
ised to blacks. But the Act went further still. On Janu-
ary 29, 1866, Senator Lyman Trumbull, the bill's principal
sponsor in the Senate, proposed text stating that “all persons
of African descent born in the United States are hereby de-
clared to be citizens.” Cong. Globe, 39th Cong., 1st Sess.,
474. The following day, Trumbull revised his proposal, re-
moving the reference to “African descent” and declaring
more broadly that “all persons born in the United States,
and not subject to any foreign Power,” are “citizens of the
United States.” Id., at 498.
“In the years before the Fourteenth Amendment's adop-
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tion, jurists and legislators often connected citizenship with
equality,” where “the absence or presence of one entailed the
absence or presence of the other.” United States v. Vaello
Madero, 596 U. S. –––, ––– (2022) (Thomas, J., concurring).
The addition of a citizenship guarantee thus evidenced an
intent to broaden the provision, extending beyond recently
freed blacks and incorporating a more general view of equal-
ity for all Americans. Indeed, the drafters later included a
specifc carveout for “Indians not taxed,” demonstrating the
breadth of the bill's otherwise general citizenship language.
14 Stat. 27.1 As Trumbull explained, the provision created
a bond between all Americans; “any statute which is not
equal to all, and which deprives any citizen of civil rights
which are secured to other citizens,” was “an unjust en-
croachment upon his liberty” and a “badge of servitude” pro-
1
In fact, Indians would not be considered citizens until several decades
later. Indian Citizenship Act of 1924, ch. 233, 43 Stat. 253 (declaring that
all Indians born in the United States are citizens).
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Thomas, J., concurring

hibited by the Constitution. Cong. Globe, 39th Cong., 1st
Sess., at 474 (emphasis added).
Trumbull and most of the Act's other supporters identifed
the Thirteenth Amendment as a principal source of constitu-
tional authority for the Act's nondiscrimination provisions.
See, e. g., id., at 475 (statement of Sen. Trumbull); id., at 1152
(statement of Rep. Thayer); id., at 503–504 (statement of Sen.
Howard). In particular, they explained that the Thirteenth
Amendment allowed Congress not merely to legislate
against slavery itself, but also to counter measures “which
depriv[e] any citizen of civil rights which are secured to other
citizens.” Id., at 474.
But opponents argued that Congress' authority did not
sweep so broadly. President Andrew Johnson, for example,
contended that Congress lacked authority to pass the meas-
ure, seizing on the breadth of the citizenship text and empha-
sizing state authority over matters of state citizenship. See
S. Doc. No. 31, 39th Cong., 1st Sess., 1, 6 (1866) (Johnson veto
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message). Consequently, “doubts about the constitutional
authority conferred by that measure led supporters to sup-
plement their Thirteenth Amendment arguments with other
sources of constitutional authority.” R. Williams, Original-
ism and the Other Desegregation Decision, 99 Va. L. Rev.
493, 532–533 (2013) (describing appeals to the naturalization
power and the inherent power to protect the rights of citi-
zens). As debates continued, it became increasingly appar-
ent that safeguarding the 1866 Act, including its promise of
black citizenship and the equal rights that citizenship en-
tailed, would require further submission to the people of the
United States in the form of a proposed constitutional
amendment. See, e. g., Cong. Globe, 39th Cong., 1st Sess.,
at 498 (statement of Sen. Van Winkle).

B
Critically, many of those who believed that Congress
lacked the authority to enact the 1866 Act also supported the
238 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
Thomas, J., concurring

principle of racial equality. So, almost immediately follow-
ing the ratifcation of the Thirteenth Amendment, several
proposals for further amendments were submitted in Con-
gress. One such proposal, approved by the Joint Committee
on Reconstruction and then submitted to the House of Rep-
resentatives on February 26, 1866, would have declared that
“[t]he Congress shall have power to make all laws which
shall be necessary and proper to secure to the citizens of
each State all privileges and immunities of citizens in the
several States, and to all persons in the several States equal
protection in the rights of life, liberty, and property.” Id., at
1033–1034. Representative John Bingham, its drafter, was
among those who believed Congress lacked the power to
enact the 1866 Act. See id., at 1291. Specifcally, he be-
lieved the “very letter of the Constitution” already required
equality, but the enforcement of that requirement “is of the
reserved powers of the States.” Id., at 1034, 1291 (state-
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ment of Rep. Bingham). His proposed constitutional
amendment accordingly would provide a clear constitutional
basis for the 1866 Act and ensure that future Congresses
would be unable to repeal it. See W. Nelson, The Four-
teenth Amendment 48–49 (1988).
Discussion of Bingham's initial draft was later postponed
in the House, but the Joint Committee on Reconstruction
continued its work. See 2 K. Lash, The Reconstruction
Amendments 8 (2021). In April, Representative Thaddeus
Stevens proposed to the Joint Committee an amendment that
began, “[n]o discrimination shall be made by any State nor
by the United States as to the civil rights of persons because
of race, color, or previous condition of servitude.” S. Doc.
No. 711, 63d Cong., 1st Sess., 31–32 (1915) (reprinting the
Journal of the Joint Committee on Reconstruction for the
Thirty-Ninth Congress). Stevens' proposal was later re-
vised to read as follows: “ `No State shall make or enforce
any law which shall abridge the privileges or immunities of
citizens of the United States; nor shall any State deprive any
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Thomas, J., concurring

person of life, liberty, or property without due process of
law, nor deny to any person within its jurisdiction the equal
protection of the laws.' ” Id., at 39. This revised text was
submitted to the full House on April 30, 1866. Cong. Globe,
39th Cong., 1st Sess., at 2286–2287. Like the eventual frst
section of the Fourteenth Amendment, this proposal em-
bodied the familiar Privileges or Immunities, Due Process,
and Equal Protection Clauses. And, importantly, it also
featured an enforcement clause—with text borrowed from
the Thirteenth Amendment—conferring upon Congress the
power to enforce its provisions. Ibid.
Stevens explained that the draft was intended to “allo[w]
Congress to correct the unjust legislation of the States, so
far that the law which operates upon one man shall operate
equally upon all.” Id., at 2459. Moreover, Stevens' later
statements indicate that he did not believe there was a dif-
ference “in substance between the new proposal and” earlier
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measures calling for impartial and equal treatment without
regard to race. U. S. Brown Reargument Brief 44 (noting a
distinction only with respect to a suffrage provision). And,
Bingham argued that the need for the proposed text was
“one of the lessons that have been taught . . . by the history
of the past four years of terrifc confict” during the Civil
War. Cong. Globe, 39th Cong., 1st Sess., at 2542. The pro-
posal passed the House by a vote of 128 to 37. Id., at 2545.
Senator Jacob Howard introduced the proposed Amend-
ment in the Senate, powerfully asking, “Ought not the time
to be now passed when one measure of justice is to be meted
out to a member of one caste while another and a different
measure is meted out to the member of another caste, both
castes being alike citizens of the United States, both bound
to obey the same laws, to sustain the burdens of the same
Government, and both equally responsible to justice and to
God for the deeds done in the body?” Id., at 2766. In keep-
ing with this view, he proposed an introductory sentence,
declaring that “ `[a]ll persons born in the United States and
240 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
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Thomas, J., concurring

subject to the jurisdiction thereof are citizens of the United
States and of the States wherein they reside.' ” Id., at 2869.
This text, the Citizenship Clause, was the fnal missing ele-
ment of what would ultimately become § 1 of the Fourteenth
Amendment. Howard's draft for the proposed citizenship
text was modeled on the Civil Rights Act of 1866's text, and
he suggested the alternative language to “remov[e] all doubt
as to what persons are or are not citizens of the United
States,” a question which had “long been a great desidera-
tum in the jurisprudence and legislation of this country.”
Id., at 2890. He further characterized the addition as “sim-
ply declaratory of what I regard as the law of the land al-
ready.” Ibid.
The proposal was approved in the Senate by a vote of 33
to 11. Id., at 3042. The House then reconciled differences
between the two measures, approving the Senate's changes
by a vote of 120 to 32. See id., at 3149. And, in June 1866,
the amendment was submitted to the States for their consid-
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eration and ratifcation. Two years later, it was ratifed by
the requisite number of States and became the Fourteenth
Amendment to the United States Constitution. See 15 Stat.
706–707; id., at 709–711. Its opening words instilled in our
Nation's Constitution a new birth of freedom:
“All persons born or naturalized in the United States,
and subject to the jurisdiction thereof, are citizens of the
United States and of the State wherein they reside. No
State shall make or enforce any law which shall abridge
the privileges or immunities of citizens of the United
States; nor shall any State deprive any person of life,
liberty, or property, without due process of law; nor
deny to any person within its jurisdiction the equal pro-
tection of the laws.” § 1.

As enacted, the text of the Fourteenth Amendment pro-
vides a frm statement of equality before the law. It begins
by guaranteeing citizenship status, invoking the “longstand-
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Thomas, J., concurring

ing political and legal tradition that closely associated the
status of citizenship with the entitlement to legal equality.”
Vaello Madero, 596 U. S., at ––– (Thomas, J., concurring) (in-
ternal quotation marks omitted). It then confrms that
States may not “abridge the rights of national citizenship,
including whatever civil equality is guaranteed to `citizens'
under the Citizenship Clause.” Id., at –––, n. 3. Finally, it
pledges that even noncitizens must be treated equally “as
individuals, and not as members of racial, ethnic, or religious
groups.” Missouri v. Jenkins, 515 U. S. 70, 120–121 (1995)
(Thomas, J., concurring).
The drafters and ratifers of the Fourteenth Amendment
focused on this broad equality idea, offering surprisingly lit-
tle explanation of which term was intended to accomplish
which part of the Amendment's overall goal. “The available
materials . . . show,” however, “that there were widespread
expressions of a general understanding of the broad scope of
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the Amendment similar to that abundantly demonstrated in
the Congressional debates, namely, that the frst section of
the Amendment would establish the full constitutional right
of all persons to equality before the law and would prohibit
legal distinctions based on race or color.” U. S. Brown Re-
argument Brief 65 (citation omitted). For example, the
Pennsylvania debate suggests that the Fourteenth Amend-
ment was understood to make the law “what justice is repre-
sented to be, blind” to the “color of [one's] skin.” App. to
Pa. Leg. Record XLVIII (1867) (Rep. Mann).
The most commonly held view today—consistent with the
rationale repeatedly invoked during the congressional de-
bates, see, e. g., Cong. Globe, 39th Cong., 1st Sess., at 2458–
2469—is that the Amendment was designed to remove any
doubts regarding Congress' authority to enact the Civil
Rights Act of 1866 and to establish a nondiscrimination rule
that could not be repealed by future Congresses. See, e. g.,
J. Harrison, Reconstructing the Privileges or Immunities
Clause, 101 Yale L. J. 1385, 1388 (1992) (noting that the “pri-
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mary purpose” of the Fourteenth Amendment “was to man-
date certain rules of racial equality, especially those con-
tained in Section 1 of the Civil Rights Act of 1866”).2 The
Amendment's phrasing supports this view, and there does
not appear to have been any argument to the contrary pre-
dating Brown.
Consistent with the Civil Rights Act of 1866's aim, the
Amendment defnitively overruled Chief Justice Taney's
opinion in Dred Scott that blacks “were not regarded as a
portion of the people or citizens of the Government” and
“had no rights which the white man was bound to respect.”
19 How., at 407, 411. And, like the 1866 Act, the Amend-
ment also clarified that American citizenship conferred
rights not just against the Federal Government but also the
government of the citizen's State of residence. Unlike the
Civil Rights Act, however, the Amendment employed a
wholly race-neutral text, extending privileges or immunities
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to all “citizens”—even if its practical effect was to provide
all citizens with the same privileges then enjoyed by whites.
That citizenship guarantee was often linked with the concept
of equality. Vaello Madero, 596 U. S., at ––– (Thomas, J.,
concurring). Combining the citizenship guarantee with the
Privileges or Immunities Clause and the Equal Protection
Clause, the Fourteenth Amendment ensures protection for
all equal citizens of the Nation without regard to race. Put
succinctly, “[o]ur Constitution is color-blind.” Plessy, 163
U. S., at 559 (Harlan, J., dissenting).

2
There is “some support” in the history of enactment for at least “four
interpretations of the frst section of the proposed amendment, and in
particular of its Privileges [or] Immunities Clause: it would authorize Con-
gress to enforce the Privileges and Immunities Clause of Article IV; it
would forbid discrimination between citizens with respect to fundamental
rights; it would establish a set of basic rights that all citizens must enjoy;
and it would make the Bill of Rights applicable to the states.” D. Currie,
The Reconstruction Congress, 75 U. Chi. L. Rev. 383, 406 (2008) (citing
sources). Notably, those four interpretations are all colorblind.
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Thomas, J., concurring

C
In the period closely following the Fourteenth Amend-
ment's ratifcation, Congress passed several statutes de-
signed to enforce its terms, eliminating government-based
Black Codes—systems of government-imposed segrega-
tion—and criminalizing racially motivated violence. The
marquee legislation was the Civil Rights Act of 1875, ch. 114,
18 Stat. 335–337, and the justifcations offered by proponents
of that measure are further evidence for the colorblind view
of the Fourteenth Amendment.
The Civil Rights Act of 1875 sought to counteract the sys-
tems of racial segregation that had arisen in the wake of the
Reconstruction era. Advocates of so-called separate-but-
equal systems, which allowed segregated facilities for blacks
and whites, had argued that laws permitting or requiring
such segregation treated members of both races precisely
alike: Blacks could not attend a white school, but symmetri-
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cally, whites could not attend a black school. See Plessy,
163 U. S., at 544 (arguing that, in light of the social circum-
stances at the time, racial segregation did not “necessarily
imply the inferiority of either race to the other”). Congress
was not persuaded. Supporters of the soon-to-be 1875 Act
successfully countered that symmetrical restrictions did not
constitute equality, and they did so on colorblind terms.
For example, they asserted that “free government de-
mands the abolition of all distinctions founded on color and
race.” 2 Cong. Rec. 4083 (1874). And, they submitted that
“[t]he time has come when all distinctions that grew out of
slavery ought to disappear.” Cong. Globe, 42d Cong., 2d
Sess., 3193 (1872) (“[A]s long as you have distinctions and
discriminations between white and black in the enjoyment
of legal rights and privileges[,] you will have discontent and
parties divided between black and white”). Leading Repub-
lican Senator Charles Sumner compellingly argued that “any
rule excluding a man on account of his color is an indignity,
an insult, and a wrong.” Id., at 242; see also ibid. (“I insist
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that by the law of the land all persons without distinction of
color shall be equal before the law”). Far from conceding
that segregation would be perceived as inoffensive if race
roles were reversed, he declared that “[t]his is plain oppres-
sion, which you . . . would feel keenly were it directed against
you or your child.” Id., at 384. He went on to paraphrase
the English common-law rule to which he subscribed: “[The
law] makes no discrimination on account of color.” Id.,
at 385.
Others echoed this view. Representative John Lynch de-
clared that “[t]he duty of the law-maker is to know no race,
no color, no religion, no nationality, except to prevent distinc-
tions on any of these grounds, so far as the law is concerned.”
3 Cong. Rec. 945 (1875). Senator John Sherman believed
that the route to peace was to “[w]ipe out all legal discrimi-
nations between white and black [and] make no distinction
between black and white.” Cong. Globe, 42d Cong., 2d
Sess., at 3193. And, Senator Henry Wilson sought to “make
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illegal all distinctions on account of color” because “there
should be no distinction recognized by the laws of the land.”
Id., at 819; see also 3 Cong. Rec., at 956 (statement of Rep.
Cain) (“[M]en [are] formed of God equally . . . . The civil-
rights bill simply declares this: that there shall be no dis-
criminations between citizens of this land so far as the laws
of the land are concerned”). The view of the Legislature
was clear: The Constitution “neither knows nor tolerates
classes among citizens.” Plessy, 163 U. S., at 559 (Har-
lan, J., dissenting).
D
The earliest Supreme Court opinions to interpret the
Fourteenth Amendment did so in colorblind terms. Their
statements characterizing the Amendment evidence its com-
mitment to equal rights for all citizens, regardless of the
color of their skin. See ante, at 202.
In the Slaughter-House Cases, 16 Wall. 36 (1873), the
Court identifed the “pervading purpose” of the Reconstruc-
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Thomas, J., concurring

tion Amendments as “the freedom of the slave race, the secu-
rity and frm establishment of that freedom, and the pro-
tection of the newly-made freeman and citizen from the
oppressions of those who had formerly exercised unlimited
dominion over him.” Id., at 67–72. Yet, the Court quickly
acknowledged that the language of the Amendments did not
suggest “that no one else but the negro can share in this
protection.” Id., at 72. Rather, “[i]f Mexican peonage or
the Chinese coolie labor system shall develop slavery of the
Mexican or Chinese race within our territory, [the Thir-
teenth Amendment] may safely be trusted to make it void.”
Ibid. And, similarly, “if other rights are assailed by the
States which properly and necessarily fall within the protec-
tion of these articles, that protection will apply, though the
party interested may not be of African descent.” Ibid.
The Court thus made clear that the Fourteenth Amend-
ment's equality guarantee applied to members of all races,
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including Asian Americans, ensuring all citizens equal treat-
ment under law.
Seven years later, the Court relied on the Slaughter-
House view to conclude that “[t]he words of the [Fourteenth
A]mendment . . . contain a necessary implication of a positive
immunity, or right, most valuable to the colored race,—the
right to exemption from unfriendly legislation against them
distinctively as colored.” Strauder v. West Virginia, 100
U. S. 303, 307–308 (1880). The Court thus found that the
Fourteenth Amendment banned “expres[s]” racial classifca-
tions, no matter the race affected, because these classifca-
tions are “a stimulant to . . . race prejudice.” Id., at 308.
See also ante, at 202. Similar statements appeared in
other cases decided around that time. See Virginia v.
Rives, 100 U. S. 313, 318 (1880) (“The plain object of these
statutes [enacted to enforce the Fourteenth Amendment], as
of the Constitution which authorized them, was to place the
colored race, in respect of civil rights, upon a level with
whites. They made the rights and responsibilities, civil and
246 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
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Thomas, J., concurring

criminal, of the two races exactly the same”); Ex parte Vir-
ginia, 100 U. S. 339, 344–345 (1880) (“One great purpose of
[the Thirteenth and Fourteenth Amendments] was to raise
the colored race from that condition of inferiority and servi-
tude in which most of them had previously stood, into perfect
equality of civil rights with all other persons within the ju-
risdiction of the States”).
This Court's view of the Fourteenth Amendment reached
its nadir in Plessy, infamously concluding that the Four-
teenth Amendment “could not have been intended to abolish
distinctions based upon color, or to enforce social, as distin-
guished from political equality, or a commingling of the two
races upon terms unsatisfactory to either.” 163 U. S., at 544.
That holding stood in sharp contrast to the Court's earlier
embrace of the Fourteenth Amendment's equality ideal, as
Justice Harlan emphasized in dissent: The Reconstruction
Amendments had aimed to remove “the race line from our
systems of governments.” Id., at 563. For Justice Harlan,
Page Proof Pending Publication
the Constitution was colorblind and categorically rejected
laws designed to protect “a dominant race—a superior class
of citizens,” while imposing a “badge of servitude” on others.
Id., at 560–562.
History has vindicated Justice Harlan's view, and this
Court recently acknowledged that Plessy should have been
overruled immediately because it “betrayed our commitment
to `equality before the law.' ” Dobbs v. Jackson Women's
Health Organization, 597 U. S. –––, ––– (2022). Nonethe-
less, and despite Justice Harlan's efforts, the era of state-
sanctioned segregation persisted for more than a half
century.
E
Despite the extensive evidence favoring the colorblind
view, as detailed above, it appears increasingly in vogue to
embrace an “antisubordination” view of the Fourteenth
Amendment: that the Amendment forbids only laws that
hurt, but not help, blacks. Such a theory lacks any basis in
Cite as: 600 U. S. 181 (2023) 247

Thomas, J., concurring

the original meaning of the Fourteenth Amendment. Re-
spondents cite a smattering of federal and state statutes
passed during the years surrounding the ratifcation of the
Fourteenth Amendment. And, Justice Sotomayor's dis-
sent argues that several of these statutes evidence the rati-
fers' understanding that the Equal Protection Clause “per-
mits consideration of race to achieve its goal.” Post, at 322.
Upon examination, however, it is clear that these statutes
are fully consistent with the colorblind view.
Start with the 1865 Freedmen's Bureau Act. That Act
established the Freedmen's Bureau to issue “provisions,
clothing, and fuel . . . needful for the immediate and tempo-
rary shelter and supply of destitute and suffering refugees
and freedmen and their wives and children” and the setting
“apart, for the use of loyal refugees and freedmen,” aban-
doned, confscated, or purchased lands, and assigning “to
every male citizen, whether refugee or freedman, . . . not
Page Proof Pending Publication
more than forty acres of such land.” Ch. 90, §§ 2, 4, 13 Stat.
507. The 1866 Freedmen's Bureau Act then expanded upon
the prior year's law, authorizing the Bureau to care for all
loyal refugees and freedmen. Ch. 200, 14 Stat. 173–174.
Importantly, however, the Acts applied to freedmen (and ref-
ugees), a formally race-neutral category, not blacks writ
large. And, because “not all blacks in the United States
were former slaves,” “ `freedman' ” was a decidedly under-
inclusive proxy for race. M. Rappaport, Originalism and the
Colorblind Constitution, 89 Notre Dame L. Rev. 71, 98 (2013)
(Rappaport). Moreover, the Freedmen's Bureau served
newly freed slaves alongside white refugees. P. Moreno,
Racial Classifcations and Reconstruction Legislation, 61 J.
So. Hist. 271, 276–277 (1995); R. Barnett & E. Bernick, The
Original Meaning of the Fourteenth Amendment 119 (2021).
And, advocates of the law explicitly disclaimed any view
rooted in modern conceptions of antisubordination. To the
contrary, they explicitly clarifed that the equality sought by
the law was not one in which all men shall be “six feet high”;
248 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
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rather, it strove to ensure that freedmen enjoy “equal rights
before the law” such that “each man shall have the right to
pursue in his own way life, liberty, and happiness.” Cong.
Globe, 39th Cong., 1st Sess., at 322, 342.
Several additional federal laws cited by respondents ap-
pear to classify based on race, rather than previous condition
of servitude. For example, an 1866 law adopted special
rules and procedures for the payment of “colored” service-
men in the Union Army to agents who helped them secure
bounties, pensions, and other payments that they were due.
14 Stat. 367–368. At the time, however, Congress believed
that many “black servicemen were signifcantly overpaying
for these agents' services in part because [the servicemen]
did not understand how the payment system operated.”
Rappaport 110; see also S. Siegel, The Federal Government's
Power To Enact Color-Conscious Laws: An Originalist In-
quiry, 92 Nw. U. L. Rev. 477, 561 (1998). Thus, while this
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legislation appears to have provided a discrete race-based
beneft, its aim—to prohibit race-based exploitation—may
not have been possible at the time without using a racial
screen. In other words, the statute's racial classifcations
may well have survived strict scrutiny. See Rappaport 111–
112. Another law, passed in 1867, provided funds for “freed-
men or destitute colored people” in the District of Columbia.
Res. of Mar. 16, 1867, No. 4, 15 Stat. 20. However, when a
prior version of this law targeting only blacks was criticized
for being racially discriminatory, “it was defended on the
grounds that there were various places in the city where
former slaves . . . lived in densely populated shantytowns.”
Rappaport 104–105 (citing Cong. Globe, 39th Cong., 1st Sess.,
at 1507). Congress thus may have enacted the measure not
because of race, but rather to address a special problem in
shantytowns in the District where blacks lived.
These laws—even if targeting race as such—likely were
also constitutionally permissible examples of Government ac-
tion “undo[ing] the effects of past discrimination in [a way]
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Thomas, J., concurring

that do[es] not involve classifcation by race,” even though
they had a “racially disproportionate impact.” Richmond v.
J. A. Croson Co., 488 U. S. 469, 526 (1989) (Scalia, J., concur-
ring in judgment) (internal quotation marks omitted). The
government can plainly remedy a race-based injury that it
has inficted—though such remedies must be meant to fur-
ther a colorblind government, not perpetuate racial con-
sciousness. 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 in-
consistent with the colorblind Constitution.” Parents In-
volved, 551 U. S., at 772, n. 19 (Thomas, J., concurring).
Moreover, the very same Congress passed both these laws
and the unambiguously worded Civil Rights Act of 1866 that
clearly prohibited discrimination on the basis of race.3 And,
as noted above, the proponents of these laws explicitly
sought equal rights without regard to race while disavowing
any antisubordination view.
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Justice Sotomayor argues otherwise, pointing to “a
number of race-conscious” federal laws passed around the
time of the Fourteenth Amendment's enactment. Post, at
322 (dissenting opinion). She identifes the Freedmen's Bu-
reau Act of 1865, already discussed above, as one such law,
but she admits that the programs did not beneft blacks ex-
clusively. She also does not dispute that legislation target-
ing the needs of newly freed blacks in 1865 could be under-
stood as directly remedial. Even today, nothing prevents
the States from according an admissions preference to identi-
fed victims of discrimination. See Croson, 488 U. S., at 526

3
UNC asserts that the Freedmen's Bureau gave money to Berea Col-
lege at a time when the school sought to achieve a 50–50 ratio of black to
white students. Brief for University Respondents in No. 21–707, p. 32.
But, evidence suggests that, at the relevant time, Berea conducted its
admissions without distinction by race. S. Wilson, Berea College: An Il-
lustrated History 2 (2006) (quoting Berea's frst president's statement that
the school “would welcome `all races of men, without distinction' ”).
250 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
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Thomas, J., concurring

(opinion of Scalia, J.) (“While most of the benefciaries might
be black, neither the benefciaries nor those disadvantaged
by the preference would be identifed on the basis of their
race” (emphasis in original)); see also ante, at 230.
Justice Sotomayor points also to the Civil Rights Act of
1866, which as discussed above, mandated that all citizens
have the same rights as those “enjoyed by white citizens.”
14 Stat. 27. But these references to the station of white
citizens do not refute the view that the Fourteenth Amend-
ment is colorblind. Rather, they specify that, in meeting the
Amendment's goal of equal citizenship, States must level up.
The Act did not single out a group of citizens for special
treatment—rather, all citizens were meant to be treated the
same as those who, at the time, had the full rights of citizen-
ship. Other provisions of the 1866 Act reinforce this view,
providing for equality in civil rights. See Rappaport 97.
Most notably, § 14 stated that the basic civil rights of citizen-
Page Proof Pending Publication
ship shall be secured “without respect to race or color.” 14
Stat. 176–177. And, § 8 required that funds from land sales
must be used to support schools “without distinction of color
or race, . . . in the parishes of ” the area where the land had
been sold. Id., at 175.
In addition to these federal laws, Harvard also points to
two state laws: a South Carolina statute that placed the bur-
den of proof on the defendant when a “colored or black”
plaintiff claimed a violation, 1870 S. C. Acts pp. 387–388, and
Kentucky legislation that authorized a county superintend-
ent to aid “negro paupers” in Mercer County, 1871 Ky. Acts
pp. 273–274. Even if these statutes provided race-based
benefts, they do not support respondents' and Justice So-
tomayor's view that the Fourteenth Amendment was con-
temporaneously understood to permit differential treatment
based on race, prohibiting only caste legislation while author-
izing antisubordination measures. Cf., e. g., O. Fiss, Groups
and the Equal Protection Clause, 5 Philos. & Pub. Aff.
107, 147 (1976) (articulating the antisubordination view);
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R. Siegel, Equality Talk: Antisubordination and Anticlassif-
cation Values in Constitutional Struggles Over Brown, 117
Harv. L. Rev. 1470, 1473, n. 8 (2004) (collecting scholarship).
At most, these laws would support the kinds of discrete re-
medial measures that our precedents have permitted.
If services had been given only to white persons up to
the Fourteenth Amendment's adoption, then providing those
same services only to previously excluded black persons
would work to equalize treatment against a concrete baseline
of government-imposed inequality. It thus may have been
the case that Kentucky's county-specifc, race-based public
aid law was necessary because that particular county was
not providing certain services to local poor blacks. Simi-
larly, South Carolina's burden-shifting framework (where the
substantive rule being applied remained notably race neu-
tral) may have been necessary to streamline litigation
around the most commonly litigated type of case: a lawsuit
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seeking to remedy discrimination against a member of the
large population of recently freed black Americans. See
1870 S. C. Acts, at 386 (documenting “persist[ent]” racial dis-
crimination by state-licensed entities).
Most importantly, however, there was a wide range of fed-
eral and state statutes enacted at the time of the Fourteenth
Amendment's adoption and during the period thereafter that
explicitly sought to discriminate against blacks on the basis
of race or a proxy for race. See Rappaport 113–115. These
laws, hallmarks of the race-conscious Jim Crow era, are pre-
cisely the sort of enactments that the Framers of the Four-
teenth Amendment sought to eradicate. Yet, proponents of
an antisubordination view necessarily do not take those laws
as evidence of the Fourteenth Amendment's true meaning.
And rightly so. Neither those laws, nor a small number of
laws that appear to target blacks for preferred treatment,
displace the equality vision refected in the history of the
Fourteenth Amendment's enactment. This is particularly
true in light of the clear equality requirements present in the
252 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
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Thomas, J., concurring

Fourteenth Amendment's text. See New York State Rife &
Pistol Assn., Inc. v. Bruen, 597 U. S. –––, ––– – ––– (2022)
(noting that text controls over inconsistent postratifcation
history).
II
Properly understood, our precedents have largely adhered
to the Fourteenth Amendment's demand for colorblind laws.4
That is why, for example, courts “must subject all racial clas-
sifcations to the strictest of scrutiny.” Jenkins, 515 U. S.,
at 121 (Thomas, J., concurring); see also ante, at 207, n. 3
(emphasizing the consequences of an insuffciently searching
inquiry). And, in case after case, we have employed strict
scrutiny vigorously to reject various forms of racial discrimi-
nation as unconstitutional. See Fisher I, 570 U. S., at 317–
318 (Thomas, J., concurring). The Court today rightly up-
holds that tradition and acknowledges the consequences that
have fowed from Grutter's contrary approach.
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Three aspects of today's decision warrant comment: First,
to satisfy strict scrutiny, universities must be able to estab-
lish an actual link between racial discrimination and educa-
tional benefts. Second, those engaged in racial discrimina-
tion do not deserve deference with respect to their reasons
for discriminating. Third, attempts to remedy past govern-

4
The Court has remarked that Title VI is coextensive with the Equal
Protection Clause. See Gratz v. Bollinger, 539 U. S. 244, 276, n. 23 (2003)
(“We have explained that discrimination that violates the Equal Protection
Clause of the Fourteenth Amendment committed by an institution that
accepts federal funds also constitutes a violation of Title VI”); Regents of
Univ. of Cal. v. Bakke, 438 U. S. 265, 287 (1978) (opinion of Powell, J.)
(“Title VI . . . proscribe[s] only those racial classifcations that would vio-
late the Equal Protection Clause”). As Justice Gorsuch points out, the
language of Title VI makes no allowance for racial considerations in uni-
versity admissions. See post, at 288 (concurring opinion). Though I con-
tinue to adhere to my view in Bostock v. Clayton County, 590 U. S.
–––, ––– – ––– (2020) (Alito, J., dissenting), I agree with Justice Gor-
such's concurrence in this case. The plain text of Title VI reinforces the
colorblind view of the Fourteenth Amendment.
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Thomas, J., concurring

mental discrimination must be closely tailored to address
that particular past governmental discrimination.

A
To satisfy strict scrutiny, universities must be able to es-
tablish a compelling reason to racially discriminate. Grut-
ter recognized “only one” interest suffciently compelling to
justify race-conscious admissions programs: the “educational
benefts of a diverse student body.” 539 U. S., at 328, 333.
Expanding on this theme, Harvard and UNC have offered
a grab bag of interests to justify their programs, span-
ning from “ `training future leaders in the public and private
sectors' ” to “ `enhancing appreciation, respect, and empa-
thy,' ” with references to “ `better educating [their] stu-
dents through diversity' ” in between. Ante, at 214. The
Court today fnds that each of these interests are too vague
and immeasurable to suffce, ibid., and I agree.
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Even in Grutter, the Court failed to clearly defne “the
educational benefts of a diverse student body.” 539 U. S.,
at 333. Thus, in the years since Grutter, I have sought to
understand exactly how racial diversity yields educational
benefts. With nearly 50 years to develop their arguments,
neither Harvard nor UNC—two of the foremost research in-
stitutions in the world—nor any of their amici can explain
that critical link.
Harvard, for example, offers a report fnding that mean-
ingful representation of racial minorities promotes several
goals. Only one of those goals—“producing new knowledge
stemming from diverse outlooks,” 980 F. 3d 157, 174 (CA1
2020)—bears any possible relationship to educational bene-
fts. Yet, it too is extremely vague and offers no indication
that, for example, student test scores increased as a result
of Harvard's efforts toward racial diversity.
More fundamentally, it is not clear how racial diversity, as
opposed to other forms of diversity, uniquely and independ-
ently advances Harvard's goal. This is particularly true be-
254 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
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Thomas, J., concurring

cause Harvard blinds itself to other forms of applicant diver-
sity, such as religion. See 2 App. in No. 20–1199, pp. 734–
743. It may be the case that exposure to different perspec-
tives and thoughts can foster debate, sharpen young minds,
and hone students' reasoning skills. But, it is not clear how
diversity with respect to race, qua race, furthers this goal.
Two white students, one from rural Appalachia and one from
a wealthy San Francisco suburb, may well have more diverse
outlooks on this metric than two students from Manhattan's
Upper East Side attending its most elite schools, one of
whom is white and the other of whom is black. If Harvard
cannot even explain the link between racial diversity and
education, then surely its interest in racial diversity cannot
be compelling enough to overcome the constitutional limits
on race consciousness.
UNC fares no better. It asserts, for example, an interest
in training students to “live together in a diverse society.”
Page Proof Pending Publication
Brief for University Respondents in No. 21–707, p. 39. This
may well be important to a university experience, but it is a
social goal, not an educational one. See Grutter, 539 U. S.,
at 347–348 (Scalia, J., concurring in part and dissenting
in part) (criticizing similar rationales as divorced from edu-
cational goals). And, again, UNC offers no reason why
seeking a diverse society would not be equally supported by
admitting individuals with diverse perspectives and back-
grounds, rather than varying skin pigmentation.
Nor have amici pointed to any concrete and quantifable
educational benefts of racial diversity. The United States
focuses on alleged civic benefts, including “increasing toler-
ance and decreasing racial prejudice.” Brief for United
States as Amicus Curiae 21–22. Yet, when it comes to edu-
cational benefts, the Government offers only one study pur-
portedly showing that “college diversity experiences are sig-
nifcantly and positively related to cognitive development”
and that “interpersonal interactions with racial diversity are
the most strongly related to cognitive development. ”
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Thomas, J., concurring

N. Bowman, College Diversity Experiences and Cognitive
Development: A Meta-Analysis, 80 Rev. Educ. Research 4,
20 (2010). Here again, the link is, at best, tenuous, unspe-
cifc, and stereotypical. Other amici assert that diversity
(generally) fosters the even-more nebulous values of “cre-
ativity” and “innovation,” particularly in graduates' future
workplaces. See, e. g., Brief for Major American Business
Enterprises as Amici Curiae 7–9; Brief for Massachusetts
Institute of Technology et al. as Amici Curiae 16–17 (de-
scribing experience at IBM). Yet, none of those assertions
deals exclusively with racial diversity—as opposed to cul-
tural or ideological diversity. And, none of those amici
demonstrate measurable or concrete benefts that have
resulted from universities' race-conscious admissions
programs.
Of course, even if these universities had shown that racial
diversity yielded any concrete or measurable benefts, they
Page Proof Pending Publication
would still face a very high bar to show that their interest
is compelling. To survive strict scrutiny, any such benefts
would have to outweigh the tremendous harm inficted by
sorting individuals on the basis of race. See Cooper v.
Aaron, 358 U. S. 1, 16 (1958) (following Brown, “law and
order are not here to be preserved by depriving the Negro
children of their constitutional rights”). As the Court's
opinions in these cases make clear, all racial stereotypes
harm and demean individuals. That is why “only those
measures the State must take to provide a bulwark against
anarchy, or to prevent violence, will constitute a pressing
public necessity” suffcient to satisfy strict scrutiny today.
Grutter, 539 U. S., at 353 (opinion of Thomas, J.) (internal
quotations marks omitted). Cf. Lee v. Washington, 390 U. S.
333, 334 (1968) (Black, J., concurring) (protecting prisoners
from violence might justify narrowly tailored discrimina-
tion); Croson, 488 U. S., at 521 (opinion of Scalia, J.) (“At least
where state or local action is at issue, only a social emer-
gency rising to the level of imminent danger to life and
256 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
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Thomas, J., concurring

limb . . . can justify [racial discrimination]”). For this rea-
son, “just as the alleged educational benefts of segregation
were insuffcient to justify racial discrimination [in the
1950s], see Brown v. Board of Education, the alleged educa-
tional benefts of diversity cannot justify racial discrimina-
tion today.” Fisher I, 570 U. S., at 320 (Thomas, J., concur-
ring) (citation omitted).
B
The Court also correctly refuses to defer to the universi-
ties' own assessments that the alleged benefts of race-
conscious admissions programs are compelling. It instead
demands that the “interests [universities] view as compel-
ling” must be capable of being “subjected to meaningful judi-
cial review.” Ante, at 214. In other words, a court must
be able to measure the goals asserted and determine when
they have been reached. Ante, at 214–215. The Court's
opinion today further insists that universities must be able to
Page Proof Pending Publication
“articulate a meaningful connection between the means they
employ and the goals they pursue.” Ante, at 215. Again, I
agree. Universities' self-proclaimed righteousness does not
afford them license to discriminate on the basis of race.
In fact, it is error for a court to defer to the views of an
alleged discriminator while assessing claims of racial dis-
crimination. See Grutter, 539 U. S., at 362–364 (opinion of
Thomas, J.); see also Fisher I, 570 U. S., at 318–319 (Thomas,
J., concurring); United States v. Virginia, 518 U. S. 515, 551,
n. 19 (1996) (refusing to defer to the Virginia Military Insti-
tute's judgment that the changes necessary to accommodate
the admission of women would be too great and characteriz-
ing the necessary changes as “manageable”). We would not
offer such deference in any other context. In employment
discrimination lawsuits under Title VII of the Civil Rights
Act, for example, courts require only a minimal prima facie
showing by a complainant before shifting the burden onto
the shoulders of the alleged-discriminator employer. See
McDonnell Douglas Corp. v. Green, 411 U. S. 792, 803–805
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(1973). And, Congress has passed numerous laws—such as
the Civil Rights Act of 1875—under its authority to enforce
the Fourteenth Amendment, each designed to counter dis-
crimination and each relying on courts to bring a skeptical
eye to alleged discriminators.
This judicial skepticism is vital. History has repeatedly
shown that purportedly benign discrimination may be perni-
cious, and discriminators may go to great lengths to hide and
perpetuate their unlawful conduct. Take, for example, the
university respondents here. Harvard's “holistic” admis-
sions policy began in the 1920s when it was developed to
exclude Jews. See M. Synnott, The Half-Opened Door: Dis-
crimination and Admission at Harvard, Yale, and Princeton,
1900–1970, pp. 58–59, 61, 69, 73–74 (2010). Based on de facto
quotas that Harvard quietly implemented, the proportion of
Jews in Harvard's freshman class declined from 28% as late
as 1925 to just 12% by 1933. J. Karabel, The Chosen: The
Page Proof Pending Publication
Hidden History of Admission and Exclusion at Harvard,
Yale, and Princeton 172 (2005). During this same period,
Harvard played a prominent role in the eugenics movement.
According to then-President Abbott Lawrence Lowell, ex-
cluding Jews from Harvard would help maintain admissions
opportunities for Gentiles and perpetuate the purity of the
Brahmin race—New England's white, Protestant upper
crust. See D. Okrent, The Guarded Gate 309, and n. *
(2019).
UNC also has a checkered history, dating back to its time
as a segregated university. It admitted its frst black under-
graduate students in 1955—but only after being ordered to
do so by a court, following a long legal battle in which UNC
sought to keep its segregated status. Even then, UNC did
not turn on a dime: The frst three black students admitted
as undergraduates enrolled at UNC but ultimately earned
their bachelor's degrees elsewhere. See M. Beauregard,
Column: The Desegregation of UNC, The Daily Tar Heel,
Feb. 16, 2022. To the extent past is prologue, the university
258 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
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respondents' histories hardly recommend them as trustwor-
thy arbiters of whether racial discrimination is necessary to
achieve educational goals.
Of course, none of this should matter in any event; courts
have an independent duty to interpret and uphold the Con-
stitution that no university's claimed interest may override.
See ante, at 218, n. 5. The Court today makes clear that, in
the future, universities wishing to discriminate based on race
in admissions must articulate and justify a compelling and
measurable state interest based on concrete evidence.
Given the strictures set out by the Court, I highly doubt any
will be able to do so.
C
In an effort to salvage their patently unconstitutional pro-
grams, the universities and their amici pivot to argue that
the Fourteenth Amendment permits the use of race to bene-
ft only certain racial groups—rather than applicants writ
Page Proof Pending Publication
large. Yet, this is just the latest disguise for discrimination.
The sudden narrative shift is not surprising, as it has long
been apparent that “ `diversity [was] merely the current ra-
tionale of convenience' ” to support racially discriminatory
admissions programs. Grutter, 539 U. S., at 393 (Ken-
nedy, J., dissenting). Under our precedents, this new ration-
ale is also lacking.
To start, the case for affrmative action has emphasized a
number of rationales over the years, including: (1) restitution
to compensate those who have been victimized by past dis-
crimination, (2) fostering “diversity,” (3) facilitating “inte-
gration” and the destruction of perceived racial castes, and
(4) countering longstanding and diffuse racial prejudice.
See R. Kennedy, For Discrimination: Race, Affrmative Ac-
tion, and the Law 78 (2013); see also P. Schuck, Affrmative
Action: Past, Present, and Future, 20 Yale L. & Pol'y Rev.
1, 22–46 (2002). Again, this Court has only recognized one
interest as compelling: the educational benefts of diversity
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Thomas, J., concurring

embraced in Grutter. Yet, as the universities defne the “di-
versity” that they practice, it encompasses social and aes-
thetic goals far afeld from the education-based interest dis-
cussed in Grutter. See supra, at 214. The dissents too
attempt to stretch the diversity rationale, suggesting that it
supports broad remedial interests. See, e. g., post, at 339,
358, 382 (opinion of Sotomayor, J.) (noting that UNC's black
admissions percentages “do not refect the diversity of the
State”; equating the diversity interest under the Court's
precedents with a goal of “integration in higher education”
more broadly; and warning of “the dangerous consequences
of an America where its leadership does not refect the diver-
sity of the People”); post, at 405 (opinion of Jackson, J.) (ex-
plaining that diversity programs close wealth gaps). But
language—particularly the language of controlling opinions
of this Court—is not so elastic. See J. Pieper, Abuse of Lan-
guage—Abuse of Power 23 (L. Krauth transl. 1992) (explain-
Page Proof Pending Publication
ing that propaganda, “in contradiction to the nature of lan-
guage, intends not to communicate but to manipulate” and
becomes an “[i]nstrument of power” (emphasis deleted)).
The Court refuses to engage in this lexicographic drift,
seeing these arguments for what they are: a remedial ration-
ale in disguise. See ante, at 226–227. As the Court points
out, the interest for which respondents advocate has been
presented to and rejected by this Court many times before.
In Regents of University of California v. Bakke, 438 U. S.
265 (1978), the University of California made clear its ration-
ale for the quota system it had established: It wished to
“counteract effects of generations of pervasive discrimina-
tion” against certain minority groups. Brief for Petitioner,
O. T. 1977, No. 76–811, p. 2. But, the Court rejected this
distinctly remedial rationale, with Justice Powell adopting in
its place the familiar “diversity” interest that appeared later
in Grutter. See Bakke, 438 U. S., at 306 (plurality opinion).
The Court similarly did not adopt the broad remedial ration-
260 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
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ale in Grutter; and it rejects it again today. Newly and
often minted theories cannot be said to be commanded by
our precedents.
Indeed, our precedents have repeatedly and soundly dis-
tinguished between programs designed to compensate vic-
tims of past governmental discrimination from so-called be-
nign race-conscious measures, such as affrmative action.
Croson, 488 U. S., at 504–505; Adarand Constructors, Inc. v.
Peña, 515 U. S. 200, 226–227 (1995). To enforce that distinc-
tion, our precedents explicitly require that any attempt to
compensate victims of past governmental discrimination
must be concrete and traceable to the de jure segregated
system, which must have some discrete and continuing dis-
criminatory effect that warrants a present remedy. See
United States v. Fordice, 505 U. S. 717, 731 (1992). Today's
opinion for the Court reaffrms the need for such a close re-
medial ft, hewing to the same line we have consistently
Page Proof Pending Publication
drawn. Ante, at 215–216.
Without such guardrails, the Fourteenth Amendment
would become self-defeating, promising a Nation based on
the equality ideal but yielding a quota- and caste-ridden soci-
ety steeped in race-based discrimination. Even Grutter it-
self could not tolerate this outcome. It accordingly imposed
a time limit for its race-based regime, observing that “ `a core
purpose of the Fourteenth Amendment was to do away with
all governmentally imposed discrimination based on race.' ”
539 U. S., at 341–342 (quoting Palmore v. Sidoti, 466 U. S.
429, 432 (1984); alterations omitted).
The Court today enforces those limits. And rightly so.
As noted above, both Harvard and UNC have a history of
racial discrimination. But, neither have even attempted to
explain how their current racially discriminatory programs
are even remotely traceable to their past discriminatory con-
duct. Nor could they; the current race-conscious admissions
programs take no account of ancestry and, at least for Har-
vard, likely have the effect of discriminating against some of
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Thomas, J., concurring

the very same ethnic groups against which Harvard pre-
viously discriminated (i. e., Jews and those who are not part
of the white elite). All the while, Harvard and UNC ask us
to blind ourselves to the burdens imposed on the millions of
innocent applicants denied admission because of their mem-
bership in a currently disfavored race.
The Constitution neither commands nor permits such a
result. “Purchased at the price of immeasurable human suf-
fering,” the Fourteenth Amendment recognizes that classif-
cations based on race lead to ruinous consequences for
individuals and the Nation. Adarand Constructors, Inc.,
515 U. S., at 240 (Thomas, J., concurring in part and concur-
ring in judgment). Consequently, “all” racial classifcations
are “inherently suspect,” id., at 223–224 (majority opinion)
(emphasis added; internal quotation marks omitted), and
must be subjected to the searching inquiry conducted by the
Court, ante, at 213–225.
III
Page Proof Pending Publication
Both experience and logic have vindicated the Constitu-
tion's colorblind rule and confrmed that the universities' new
narrative cannot stand. Despite the Court's hope in Grutter
that universities would voluntarily end their race-conscious
programs and further the goal of racial equality, the opposite
appears increasingly true. Harvard and UNC now forth-
rightly state that they racially discriminate when it comes
to admitting students, arguing that such discrimination is
consistent with this Court's precedents. And they, along
with today's dissenters, defend that discrimination as good.
More broadly, it is becoming increasingly clear that discrimi-
nation on the basis of race—often packaged as “affrmative
action” or “equity” programs—are based on the benighted
notion “that it is possible to tell when discrimination helps,
rather than hurts, racial minorities.” Fisher I, 570 U. S., at
328 (Thomas, J., concurring).
We cannot be guided by those who would desire less in
our Constitution, or by those who would desire more. “The
262 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
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Constitution abhors classifcations based on race, not only be-
cause those classifcations can harm favored races or are
based on illegitimate motives, but also because every time
the government places citizens on racial registers and makes
race relevant to the provision of burdens or benefts, it
demeans us all.” Grutter, 539 U. S., at 353 (opinion of
Thomas, J.).
A
The Constitution's colorblind rule refects one of the core
principles upon which our Nation was founded: that “all men
are created equal.” Those words featured prominently in
our Declaration of Independence and were inspired by a rich
tradition of political thinkers, from Locke to Montesquieu,
who considered equality to be the foundation of a just gov-
ernment. See, e. g., J. Locke, Second Treatise of Civil Gov-
ernment 48 (J. Gough ed. 1948); T. Hobbes, Leviathan 98 (M.
Oakeshott ed. 1962); 1 B. Montesquieu, The Spirit of Laws
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121 (T. Nugent transl., J. Prichard ed. 1914). Several Con-
stitutions enacted by the newly independent States at the
founding refected this principle. For example, the Virginia
Bill of Rights of 1776 explicitly affrmed “[t]hat all men are
by nature equally free and independent, and have certain
inherent rights.” Ch. 1, § 1. The State Constitutions of
Massachusetts, Pennsylvania, and New Hampshire adopted
similar language. Pa. Const., Art. I (1776), in 2 Federal and
State Constitutions 1541 (P. Poore ed. 1877); Mass. Const.,
Art. I (1780), in 1 id., at 957; N. H. Const., Art. I (1784), in 2
id., at 1280.5 And, prominent Founders publicly mused

5
In fact, the Massachusetts Supreme Court in 1783 declared that slavery
was abolished in Massachusetts by virtue of the newly enacted Constitu-
tion's provision of equality under the law. See The Quock Walker Case,
in 1 H. Commager, Documents of American History 110 (9th ed. 1973)
(Cushing, C. J.) (“[W]hatever sentiments have formerly prevailed in this
particular or slid in upon us by the example of others, a different idea has
taken place with the people of America, more favorable to the natural
rights of mankind, and to that natural, innate desire of Liberty . . . . And
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Thomas, J., concurring

about the need for equality as the foundation for govern-
ment. E. g., 1 Cong. Register 430 (T. Lloyd ed. 1789) (Madi-
son, J.); 1 Letters and Other Writings of James Madison 164
(J. Lippincott ed. 1867); N. Webster, The Revolution in
France, in 2 Political Sermons of the Founding Era, 1730–
1805, pp. 1236–1299 (1998). As Jefferson declared in his frst
inaugural address, “the minority possess their equal rights,
which equal law must protect.” First Inaugural Address
(Mar. 4, 1801), in 8 The Writings of Thomas Jefferson 4
(Washington ed. 1854).
Our Nation did not initially live up to the equality princi-
ple. The institution of slavery persisted for nearly a cen-
tury, and the United States Constitution itself included sev-
eral provisions acknowledging the practice. The period
leading up to our second founding brought these faws into
bold relief and encouraged the Nation to fnally make good
on the equality promise. As Lincoln recognized, the prom-
ise of equality extended to all people—including immigrants
Page Proof Pending Publication
and blacks whose ancestors had taken no part in the original
founding. See Speech at Chicago, Ill. (July 10, 1858), in
2 The Collected Works of Abraham Lincoln 488–489, 499
(R. Basler ed. 1953). Thus, in Lincoln's view, “ `the natural
rights enumerated in the Declaration of Independence' ” ex-
tended to blacks as his “ `equal,' ” and “ `the equal of every
living man.' ” The Lincoln-Douglas Debates 285 (H. Holzer
ed. 1993).
As discussed above, the Fourteenth Amendment refected
that vision, affrming that equality and racial discrimination
cannot coexist. Under that Amendment, the color of a per-
son's skin is irrelevant to that individual's equal status as a
citizen of this Nation. To treat him differently on the basis
of such a legally irrelevant trait is therefore a deviation from
the equality principle and a constitutional injury.

upon this ground our Constitution of Government . . . sets out with declar-
ing that all men are born free and equal . . . and in short is totally repug-
nant to the idea of being born slaves”).
264 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
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Of course, even the promise of the second founding took
time to materialize. Seeking to perpetuate a segregationist
system in the wake of the Fourteenth Amendment's ratifca-
tion, proponents urged a “separate but equal” regime. They
met with initial success, ossifying the segregationist view for
over a half century. As this Court said in Plessy:
“A statute which implies merely a legal distinction be-
tween the white and colored races—a distinction which
is founded in the color of the two races, and which must
always exist so long as white men are distinguished
from the other race by color—has no tendency to de-
stroy the legal equality of the two races, or reestablish
a state of involuntary servitude.” 163 U. S., at 543.

Such a statement, of course, is precisely antithetical to the
notion that all men, regardless of the color of their skin, are
born equal and must be treated equally under the law. Only
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one Member of the Court adhered to the equality principle;
Justice Harlan, standing alone in dissent, wrote: “Our Consti-
tution is color-blind, and neither knows nor tolerates classes
among citizens. In respect of civil rights, all citizens are
equal before the law.” Id., at 559. Though Justice Harlan
rightly predicted that Plessy would, “in time, prove to be
quite as pernicious as the decision made . . . in the Dred
Scott case,” the Plessy rule persisted for over a half century.
Ibid. While it remained in force, Jim Crow laws prohibiting
blacks from entering or utilizing public facilities such as
schools, libraries, restaurants, and theaters sprang up across
the South.
This Court rightly reversed course in Brown v. Board of
Education. The Brown appellants—those challenging seg-
regated schools—embraced the equality principle, arguing
that “[a] racial criterion is a constitutional irrelevance, and is
not saved from condemnation even though dictated by a sin-
cere desire to avoid the possibility of violence or race fric-
tion.” Brief for Appellants in Brown v. Board of Educa-
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Thomas, J., concurring

tion, O. T. 1952, No. 1, p. 7 (citation omitted).6 Embracing
that view, the Court held that “in the feld of public education
the doctrine of `separate but equal' has no place” and “[s]epa-
rate educational facilities are inherently unequal.” Brown,
347 U. S., at 493, 495. Importantly, in reaching this conclu-
sion, Brown did not rely on the particular qualities of the
Kansas schools. The mere separation of students on the
basis of race—the “segregation complained of,” id., at 495
(emphasis added)—constituted a constitutional injury. See
ante, at 203 (“Separate cannot be equal”).
Just a few years later, the Court's application of Brown
made explicit what was already forcefully implied: “[O]ur de-
cisions have foreclosed any possible contention that . . . a
statute or regulation” fostering segregation in public facili-
ties “may stand consistently with the Fourteenth Amend-
ment.” Turner v. Memphis, 369 U. S. 350, 353 (1962) (per
curiam); cf. A. Blaustein & C. Ferguson, Desegregation and
the Law: The Meaning and Effect of the School Segregation
Page Proof Pending Publication
Cases 145 (rev. 2d ed. 1962) (arguing that the Court in Brown
had “adopt[ed] a constitutional standard” declaring “that all
classifcation by race is unconstitutional per se”).
Today, our precedents place this principle beyond question.
In assessing racial segregation during a race-motivated
prison riot, for example, this Court applied strict scrutiny
without requiring an allegation of unequal treatment among
the segregated facilities. Johnson v. California, 543 U. S.
499, 505–506 (2005). The Court today reaffrms the rule,
stating that, following Brown, “[t]he time for making distinc-
6
Briefng in a case consolidated with Brown stated the colorblind posi-
tion forthrightly: Classifcations “[b]ased [s]olely on [r]ace or [c]olor” “can
never be” constitutional. Juris. Statement in Briggs v. Elliott, O. T.
1951, No. 273, pp. 20–21, 25, 29; see also Juris. Statement in Davis v.
County School Bd. of Prince Edward Cty., O. T. 1952, No. 191, p. 8 (“In-
deed, we take the unqualifed position that the Fourteenth Amendment
has totally stripped the state of power to make race and color the basis
for governmental action. . . . For this reason alone, we submit, the state
separate school laws in this case must fall”).
266 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
Thomas, J., concurring

tions based on race had passed.” Ante, at 204. “What was
wrong” when the Court decided Brown “in 1954 cannot be
right today.” Parents Involved, 551 U. S., at 778 (Thomas,
J., concurring). Rather, we must adhere to the promise of
equality under the law declared by the Declaration of Inde-
pendence and codifed by the Fourteenth Amendment.

B
Respondents and the dissents argue that the universities'
race-conscious admissions programs ought to be permitted
because they accomplish positive social goals. I would have
thought that history had by now taught a “greater humility”
when attempting to “distinguish good from harmful govern-
mental uses of racial criteria.” Id., at 742 (plurality opin-
ion). From the Black Codes, to discriminatory and destruc-
tive social welfare programs, to discrimination by individual
government actors, bigotry has reared its ugly head time and
Page Proof Pending Publication
again. Anyone who today thinks that some form of racial
discrimination will prove “helpful” should thus tread cau-
tiously, lest racial discriminators succeed (as they once did)
in using such language to disguise more invidious motives.
Arguments for the benefts of race-based solutions have
proved pernicious in segregationist circles. Segregated uni-
versities once argued that race-based discrimination was
needed “to preserve harmony and peace and at the same
time furnish equal education to both groups.” Brief for Re-
spondents in Sweatt v. Painter, O. T. 1949, No. 44, p. 94; see
also id., at 79 (“ `[T]he mores of racial relationships are such
as to rule out, for the present at least, any possibility of ad-
mitting white persons and Negroes to the same institu-
tions' ”). And, parties consistently attempted to convince
the Court that the time was not right to disrupt segregation-
ist systems. See Brief for Appellees in McLaurin v. Okla-
homa State Regents for Higher Ed., O. T. 1949, No. 34, p. 12
(claiming that a holding rejecting separate but equal would
“necessarily result . . . [i]n the abandoning of many of the
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Thomas, J., concurring

state's existing educational establishments” and the “crowd-
ing of other such establishments”); Brief for State of Kansas
on Reargument in Brown v. Board of Education, O. T. 1953,
No. 1, p. 56 (“We grant that segregation may not be the ethi-
cal or political ideal. At the same time we recognize that
practical considerations may prevent realization of the
ideal”); Tr. of Oral Arg. in Davis v. School Bd. of Prince
Edward Cty., O. T. 1954, No. 3, p. 208 (“We are up against
the proposition: What does the Negro proft if he procures
an immediate detailed decree from this Court now and then
impairs or mars or destroys the public school system in
Prince Edward County”). Litigants have even gone so far
as to offer straight-faced arguments that segregation has
practical benefts. Brief for Respondents in Sweatt v.
Painter, at 77–78 (requesting deference to a state law, ob-
serving that “ `the necessity for such separation [of the races]
still exists in the interest of public welfare, safety, harmony,
Page Proof Pending Publication
health, and recreation . . . ' ” and remarking on the reason-
ableness of the position); Brief for Appellees in Davis v.
County School Bd. of Prince Edward Cty., O. T. 1952, No. 3,
p. 17 (“Virginia has established segregation in certain felds
as a part of her public policy to prevent violence and reduce
resentment. The result, in the view of an overwhelming
Virginia majority, has been to improve the relationship be-
tween the different races”); id., at 25 (“If segregation be
stricken down, the general welfare will be defnitely harmed
. . . there would be more friction developed” (internal quota-
tion marks omitted)). In fact, slaveholders once “argued
that slavery was a `positive good' that civilized blacks and
elevated them in every dimension of life,” and “segregation-
ists similarly asserted that segregation was not only benign,
but good for black students.” Fisher I, 570 U. S., at 328–
329 (Thomas, J., concurring).
“Indeed, if our history has taught us anything, it has
taught us to beware of elites bearing racial theories.” Par-
ents Involved, 551 U. S., at 780–781 (Thomas, J., concurring).
268 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
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Thomas, J., concurring

We cannot now blink reality to pretend, as the dissents urge,
that affrmative action should be legally permissible merely
because the experts assure us that it is “good” for black stu-
dents. Though I do not doubt the sincerity of my dissenting
colleagues' beliefs, experts and elites have been wrong
before—and they may prove to be wrong again. In part
for this reason, the Fourteenth Amendment outlaws
government-sanctioned racial discrimination of all types.
The stakes are simply too high to gamble.7 Then, as now,
the views that motivated Dred Scott and Plessy have not
been confned to the past, and we must remain ever vigilant
against all forms of racial discrimination.

C
Even taking the desire to help on its face, what initially
seems like aid may in reality be a burden, including for the
very people it seeks to assist. Take, for example, the college
Page Proof Pending Publication
admissions policies here. “Affrmative action” policies do
nothing to increase the overall number of blacks and Hispan-
ics able to access a college education. Rather, those racial
policies simply redistribute individuals among institutions of
higher learning, placing some into more competitive institu-
tions than they otherwise would have attended. See T. So-
well, Affrmative Action Around the World 145–146 (2004).
7
Indeed, the lawyers who litigated Brown were unwilling to take this
bet, insisting on a colorblind legal rule. See, e. g., Supp. Brief for Appel-
lants on Reargument in Nos. 1, 2, and 4, and for Respondents in No. 10, in
Brown v. Board of Education, O. T. 1953, p. 65 (“That the Constitution is
color blind is our dedicated belief ”); Brief for Appellants in Brown v.
Board of Education, O. T. 1952, No. 1, p. 5 (“The Fourteenth Amendment
precludes a state from imposing distinctions or classifcations based upon
race and color alone”). In fact, Justice Marshall viewed Justice Harlan's
Plessy dissent as “a `Bible' to which he turned during his most depressed
moments”; no opinion “buoyed Marshall more in his pre-Brown days.” In
Memoriam: Honorable Thurgood Marshall, Proceedings of the Bar and Of-
fcers of the Supreme Court of the United States, p. X (1993) (remarks of
Judge Motley).
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In doing so, those policies sort at least some blacks and His-
panics into environments where they are less likely to suc-
ceed academically relative to their peers. Ibid. The re-
sulting mismatch places “many blacks and Hispanics who
likely would have excelled at less elite schools . . . in a posi-
tion where underperformance is all but inevitable because
they are less academically prepared than the white and
Asian students with whom they must compete.” Fisher I,
570 U. S., at 332 (Thomas, J., concurring).
It is self-evident why that is so. As anyone who has la-
bored over an algebra textbook has undoubtedly discovered,
academic advancement results from hard work and practice,
not mere declaration. Simply treating students as though
their grades put them at the top of their high school classes
does nothing to enhance the performance level of those stu-
dents or otherwise prepare them for competitive college en-
vironments. In fact, studies suggest that large racial pref-
Page Proof Pending Publication
erences for black and Hispanic applicants have led to a
disproportionately large share of those students receiving
mediocre or poor grades once they arrive in competitive col-
legiate environments. See, e. g., R. Sander, A Systemic
Analysis of Affrmative Action in American Law Schools, 57
Stan. L. Rev. 367, 371–372 (2004); see also R. Sander &
R. Steinbuch, Mismatch and Bar Passage: A School-Specifc
Analysis (Oct. 6, 2017), https://ssrn.com/abstract=3054208.
Take science, technology, engineering, and mathematics
(STEM) felds, for example. Those students who receive a
large admissions preference are more likely to drop out of
STEM felds than similarly situated students who did not
receive such a preference. F. Smith & J. McArdle, Ethnic
and Gender Differences in Science Graduation at Selective
Colleges With Implications for Admission Policy and College
Choice, 45 Research in Higher Ed. 353 (2004). “Even if most
minority students are able to meet the normal standards at
the `average' range of colleges and universities, the system-
atic mismatching of minority students begun at the top can
270 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
Thomas, J., concurring

mean that such students are generally overmatched through-
out all levels of higher education.” T. Sowell, Race and Cul-
ture 176–177 (1994).8
These policies may harm even those who succeed academi-
cally. I have long believed that large racial preferences in
college admissions “stamp [blacks and Hispanics] with a
badge of inferiority.” Adarand, 515 U. S., at 241 (opinion of
Thomas, J.). They thus “tain[t] the accomplishments of all
those who are admitted as a result of racial discrimination”
as well as “all those who are the same race as those admitted
as a result of racial discrimination” because “no one can dis-
tinguish those students from the ones whose race played a
role in their admission.” Fisher I, 570 U. S., at 333 (opinion
of Thomas, J.). Consequently, “[w]hen blacks” and, now,
Hispanics “take positions in the highest places of govern-
ment, industry, or academia, it is an open question . . .
whether their skin color played a part in their advancement.”
Page Proof Pending Publication
Grutter, 539 U. S., at 373 (Thomas, J., concurring). “The
question itself is the stigma—because either racial discrimi-
nation did play a role, in which case the person may be
deemed `otherwise unqualifed,' or it did not, in which case
asking the question itself unfairly marks those . . . who would
succeed without discrimination.” Ibid.

8
Justice Sotomayor rejects this mismatch theory as “debunked long
ago,” citing an amicus brief. Post, at 371. But, in 2016, the Journal of
Economic Literature published a review of mismatch literature—coau-
thored by a critic and a defender of affrmative action—which concluded
that the evidence for mismatch was “fairly convincing.” P. Arcidiacono &
M. Lovenheim, Affrmative Action and the Quality-Fit Tradeoff, 54
J. Econ. Lit. 3, 20 (Arcidiacono & Lovenheim). And, of course, if universi-
ties wish to refute the mismatch theory, they need only release the data
necessary to test its accuracy. See Brief for Richard Sander as Amicus
Curiae 16–19 (noting that universities have been unwilling to provide the
necessary data concerning student admissions and outcomes); accord, Ar-
cidiacono & Lovenheim 20 (“Our hope is that better datasets soon will
become available”).
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Yet, in the face of those problems, it seems increasingly
clear that universities are focused on “aesthetic” solutions
unlikely to help deserving members of minority groups. In
fact, universities' affrmative action programs are a particu-
larly poor use of such resources. To start, these programs
are overinclusive, providing the same admissions bump to a
wealthy black applicant given every advantage in life as to
a black applicant from a poor family with seemingly insur-
mountable barriers to overcome. In doing so, the programs
may wind up helping the most well-off members of minority
races without meaningfully assisting those who struggle
with real hardship. Simultaneously, the programs risk con-
tinuing to ignore the academic underperformance of “the
purported `benefciaries' ” of racial preferences and the racial
stigma that those preferences generate. Grutter, 539 U. S.,
at 371 (opinion of Thomas, J.). Rather than performing
their academic mission, universities thus may “see[k] only a
facade—it is suffcient that the class looks right, even if it
Page Proof Pending Publication
does not perform right.” Id., at 372.

D
Finally, it is not even theoretically possible to “help” a
certain racial group without causing harm to members of
other racial groups. “It should be obvious that every racial
classifcation helps, in a narrow sense, some races and
hurts others.” Adarand, 515 U. S., at 241, n. * (opinion of
Thomas, J.). And, even purportedly benign race-based dis-
crimination has secondary effects on members of other races.
The antisubordination view thus has never guided the
Court's analysis because “whether a law relying upon racial
taxonomy is `benign' or `malign' either turns on `whose ox is
gored' or on distinctions found only in the eye of the be-
holder.” Ibid. (citations and some internal quotation marks
omitted). Courts are not suited to the impossible task of
determining which racially discriminatory programs are help-
272 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
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Thomas, J., concurring

ing which members of which races—and whether those bene-
fts outweigh the burdens thrust onto other racial groups.
As the Court's opinion today explains, the zero-sum nature
of college admissions—where students compete for a fnite
number of seats in each school's entering class—aptly demon-
strates the point. Ante, at 218–219.9 Petitioner here rep-
resents Asian Americans who allege that, at the margins,
Asian applicants were denied admission because of their
race. Yet, Asian Americans can hardly be described as the
benefciaries of historical racial advantages. To the con-
trary, our Nation's frst immigration ban targeted the Chi-
nese, in part, based on “worker resentment of the low wage
rates accepted by Chinese workers.” U. S. Commission on
Civil Rights, Civil Rights Issues Facing Asian Americans in
the 1990s, p. 3 (1992) (Civil Rights Issues); Act of May 6,
1882, ch. 126, 22 Stat. 58–59.
In subsequent years, “strong anti-Asian sentiments in the
Western States led to the adoption of many discriminatory
Page Proof Pending Publication
laws at the State and local levels, similar to those aimed at
blacks in the South,” and “segregation in public facilities,
including schools, was quite common until after the Second
World War.” Civil Rights Issues 7; see also S. Hinnershitz,
A Different Shade of Justice: Asian American Civil Rights
9
Justice Sotomayor apparently believes that race-conscious admission
programs can somehow increase the chances that members of certain races
(blacks and Hispanics) are admitted without decreasing the chances of
admission for members of other races (Asians). See post, at 374. This
simply defes mathematics. In a zero-sum game like college admissions,
any sorting mechanism that takes race into account, in any way, see post,
at 409 (opinion of Jackson, J.) (defending such a system)—has discrimi-
nated based on race to the beneft of some races and the detriment of
others. And, the universities here admit that race is determinative in at
least some of their admissions decisions. See, e. g., Tr. of Oral Arg. in No.
20–1199, at 67; 567 F. Supp. 3d 580, 633 (MDNC 2021); see also 397 F. Supp.
3d 126, 178 (Mass. 2019) (noting that, for Harvard, “race is a determinative
tip for” a signifcant percentage “of all admitted African American and
Hispanic applicants”); ante, at 197, n. 1 (describing the role that race plays
in the universities' admissions processes).
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Thomas, J., concurring

in the South 21 (2017) (explaining that while both Asians and
blacks have at times fought “against similar forms of dis-
crimination,” “[t]he issues of citizenship and immigrant sta-
tus often defned Asian American battles for civil rights and
separated them from African American legal battles”). In-
deed, this Court even sanctioned this segregation—in the
context of schools, no less. In Gong Lum v. Rice, 275 U. S.
78, 81–82, 85–87 (1927), the Court held that a 9-year-old
Chinese-American girl could be denied entry to a “white”
school because she was “a member of the Mongolian or yel-
low race.”
Also, following the Japanese attack on the U. S. Navy base
at Pearl Harbor, Japanese Americans in the American West
were evacuated and interned in relocation camps. See
Exec. Order No. 9066, 3 CFR 1092 (1943). Over 120,000
were removed to camps beginning in 1942, and the last camp
that held Japanese Americans did not close until 1948. Na-
Page Proof Pending Publication
tional Park Service, Japanese American Life During Intern-
ment, www.nps.gov/articles/japanese-american-internment-
archeology.htm. In the interim, this Court endorsed the
practice. Korematsu v. United States, 323 U. S. 214 (1944).
Given the history of discrimination against Asian Ameri-
cans, especially their history with segregated schools, it
seems particularly incongruous to suggest that a past history
of segregationist policies toward blacks should be remedied
at the expense of Asian American college applicants.10 But
this problem is not limited to Asian Americans; more
broadly, universities' discriminatory policies burden millions

10
Even beyond Asian Americans, it is abundantly clear that the univer-
sity respondents' racial categories are vastly oversimplistic, as the opinion
of the Court and Justice Gorsuch's concurrence make clear. See ante,
at 215–216; post, at 291–293 (opinion of Gorsuch, J.). Their “affrmative
action” programs do not help Jewish, Irish, Polish, or other “white” ethnic
groups whose ancestors faced discrimination upon arrival in America, any
more than they help the descendants of those Japanese-American citizens
interned during World War II.
274 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
Thomas, J., concurring

of applicants who are not responsible for the racial discrimi-
nation that sullied our Nation's past. That is why, “[i]n the
absence of special circumstances, the remedy for de jure
segregation ordinarily should not include educational pro-
grams for students who were not in school (or were even
alive) during the period of segregation.” Jenkins, 515 U. S.,
at 137 (Thomas, J., concurring). Today's 17-year-olds, after
all, did not live through the Jim Crow era, enact or enforce
segregation laws, or take any action to oppress or enslave
the victims of the past. Whatever their skin color, today's
youth simply are not responsible for instituting the segrega-
tion of the 20th century, and they do not shoulder the moral
debts of their ancestors. Our Nation should not punish to-
day's youth for the sins of the past.

IV
Far from advancing the cause of improved race relations
in our Nation, affrmative action highlights our racial differ-
Page Proof Pending Publication
ences with pernicious effect. In fact, recent history reveals
a disturbing pattern: Affrmative action policies appear to
have prolonged the asserted need for racial discrimination.
Parties and amici in these cases report that, in the nearly 50
years since Bakke, 438 U. S. 265, racial progress on campuses
adopting affrmative action admissions policies has stag-
nated, including making no meaningful progress toward a
colorblind goal since Grutter. See ante, at 212–213.
Rather, the legacy of Grutter appears to be ever increasing
and strident demands for yet more racially oriented
solutions.
A
It has become clear that sorting by race does not stop at
the admissions offce. In his Grutter opinion, Justice Scalia
criticized universities for “talk[ing] of multiculturalism and
racial diversity,” but supporting “tribalism and racial segre-
gation on their campuses,” including through “minority-only
Cite as: 600 U. S. 181 (2023) 275

Thomas, J., concurring

student organizations, separate minority housing oppor-
tunities, separate minority student centers, even separate
minority-only graduation ceremonies.” 539 U. S., at 349
(opinion concurring in part and dissenting in part). This
trend has hardly abated with time, and today, such programs
are commonplace. See Brief for Gail Heriot et al. as Amici
Curiae 9. In fact, a recent study considering 173 schools
found that 43% of colleges offered segregated housing to stu-
dents of different races, 46% offered segregated orientation
programs, and 72% sponsored segregated graduation cere-
monies. D. Pierre & P. Wood, Neo-Segregation at Yale 16–
17 (2019); see also D. Pierre, Demands for Segregated Hous-
ing at Williams College Are Not News, Nat. Rev., May 8,
2019. In addition to contradicting the universities' claims
regarding the need for interracial interaction, see Brief for
National Association of Scholars as Amicus Curiae 4–12,
these trends increasingly encourage our Nation's youth to
Page Proof Pending Publication
view racial differences as important and segregation as
routine.
Meanwhile, these discriminatory policies risk creating new
prejudices and allowing old ones to fester. I previously ob-
served that “[t]here can be no doubt” that discriminatory af-
frmative action policies “injur[e] white and Asian applicants
who are denied admission because of their race.” Fisher I,
570 U. S., at 331 (concurring opinion). Petitioner here
clearly demonstrates this fact. Moreover, “no social science
has disproved the notion that this discrimination `engenders
attitudes of superiority or, alternatively, provokes resent-
ment among those who believe that they have been wronged
by the government's use of race.' ” Grutter, 539 U. S., at 373
(opinion of Thomas, J.) (quoting Adarand, 515 U. S., at 241
(opinion of Thomas, J.) (alterations omitted)). Applicants
denied admission to certain colleges may come to believe—
accurately or not—that their race was responsible for their
failure to attain a life-long dream. These individuals, and
276 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
Thomas, J., concurring

others who wished for their success, may resent members of
what they perceive to be favored races, believing that the
successes of those individuals are unearned.
What, then, would be the endpoint of these affrmative ac-
tion policies? Not racial harmony, integration, or equality
under the law. Rather, these policies appear to be leading
to a world in which everyone is defned by their skin color,
demanding ever-increasing entitlements and preferences on
that basis. Not only is that exactly the kind of factionalism
that the Constitution was meant to safeguard against, see
The Federalist No. 10 (J. Madison), but it is a factionalism
based on ever-shifting sands.
That is because race is a social construct; we may each
identify as members of particular races for any number of
reasons, having to do with our skin color, our heritage, or
our cultural identity. And, over time, these ephemeral,
socially constructed categories have often shifted. For
Page Proof Pending Publication
example, whereas universities today would group all white
applicants together, white elites previously sought to exclude
Jews and other white immigrant groups from higher edu-
cation. In fact, it is impossible to look at an individual
and know defnitively his or her race; some who would con-
sider themselves black, for example, may be quite fair
skinned. Yet, university admissions policies ask individuals
to identify themselves as belonging to one of only a few
reductionist racial groups. With boxes for only “black,”
“white,” “Hispanic,” “Asian,” or the ambiguous “other,” how
is a Middle Eastern person to choose? Someone from the
Philippines? See post, at 291–293 (Gorsuch, J., concurring).
Whichever choice he makes (in the event he chooses to re-
port a race at all), the form silos him into an artifcial cate-
gory. Worse, it sends a clear signal that the category
matters.
But, under our Constitution, race is irrelevant, as the
Court acknowledges. In fact, all racial categories are little
more than stereotypes, suggesting that immutable charac-
Cite as: 600 U. S. 181 (2023) 277

Thomas, J., concurring

teristics somehow conclusively determine a person's ideol-
ogy, beliefs, and abilities. Of course, that is false. See ante,
at 219–221 (noting that the Court's Equal Protection Clause
jurisprudence forbids such stereotyping). Members of the
same race do not all share the exact same experiences and
viewpoints; far from it. A black person from rural Alabama
surely has different experiences than a black person from
Manhattan or a black frst-generation immigrant from Nige-
ria, in the same way that a white person from rural Vermont
has a different perspective than a white person from Hous-
ton, Texas. Yet, universities' racial policies suggest that ra-
cial identity “alone constitutes the being of the race or the
man.” J. Barzun, Race: A Study in Modern Superstition 114
(1937). That is the same naked racism upon which segrega-
tion itself was built. Small wonder, then, that these policies
are leading to increasing racial polarization and friction.
This kind of reductionist logic leads directly to the “disre-
Page Proof Pending Publication
gard for what does not jibe with preconceived theory,” pro-
viding a “cloa[k] to conceal complexity, argumen[t] to the
crowd for praising or damning without the trouble of going
into details”—such as details about an individual's ideas or
unique background. Ibid. Rather than forming a more
pluralistic society, these policies thus strip us of our individu-
ality and undermine the very diversity of thought that uni-
versities purport to seek.
The solution to our Nation's racial problems thus cannot
come from policies grounded in affrmative action or some
other conception of equity. Racialism simply cannot be un-
done by different or more racialism. Instead, the solution
announced in the second founding is incorporated in our Con-
stitution: that we are all equal, and should be treated equally
before the law without regard to our race. Only that prom-
ise can allow us to look past our differing skin colors and
identities and see each other for what we truly are: individu-
als with unique thoughts, perspectives, and goals, but with
equal dignity and equal rights under the law.
278 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
Thomas, J., concurring

B
Justice Jackson has a different view. Rather than fo-
cusing on individuals as individuals, her dissent focuses on
the historical subjugation of black Americans, invoking sta-
tistical racial gaps to argue in favor of defning and categoriz-
ing individuals by their race. As she sees things, we are all
inexorably trapped in a fundamentally racist society, with
the original sin of slavery and the historical subjugation of
black Americans still determining our lives today. Post, at
384–408 (dissenting opinion). The panacea, she counsels, is
to unquestioningly accede to the view of elite experts and
reallocate society's riches by racial means as necessary to
“level the playing feld,” all as judged by racial metrics.
Post, at 408. I strongly disagree.
First, as stated above, any statistical gaps between the
average wealth of black and white Americans is constitution-
ally irrelevant. I, of course, agree that our society is not,
Page Proof Pending Publication
and has never been, colorblind. Post, at 385 (Jackson, J.,
dissenting); see also Plessy, 163 U. S., at 559 (Harlan, J., dis-
senting). People discriminate against one another for a
whole host of reasons. But, under the Fourteenth Amend-
ment, the law must disregard all racial distinctions:
“[I]n view of the Constitution, in the eye of the law,
there is in this country no superior, dominant, ruling
class of citizens. There is no caste here. Our Constitu-
tion is color-blind, and neither knows nor tolerates
classes among citizens. In respect of civil rights, all cit-
izens are equal before the law. The humblest is the
peer of the most powerful. The law regards man as
man, and takes no account of his surroundings or of his
color when his civil rights as guaranteed by the supreme
law of the land are involved.” Ibid.
With the passage of the Fourteenth Amendment, the peo-
ple of our Nation proclaimed that the law may not sort citi-
zens based on race. It is this principle that the Framers of
Cite as: 600 U. S. 181 (2023) 279

Thomas, J., concurring

the Fourteenth Amendment adopted in the wake of the Civil
War to fulfll the promise of equality under the law. And
it is this principle that has guaranteed a Nation of equal citi-
zens the privileges or immunities of citizenship and the equal
protection of the laws. To now dismiss it as “two-dimensional
fatness,” post, at 407 (Jackson, J., dissenting), is to abdicate
a sacred trust to ensure that our “honored dead . . . shall not
have died in vain.” A. Lincoln, Gettysburg Address (1863).
Yet, Justice Jackson would replace the second Founders'
vision with an organizing principle based on race. In fact,
on her view, almost all of life's outcomes may be unhesitat-
ingly ascribed to race. Post, at 406–408. This is so, she
writes, because of statistical disparities among different ra-
cial groups. See post, at 393–396. Even if some whites
have a lower household net worth than some blacks, what
matters to Justice Jackson is that the average white house-
hold has more wealth than the average black household.
Page Proof Pending Publication
Post, at 393–394.
This lore is not and has never been true. Even in the
segregated South where I grew up, individuals were not the
sum of their skin color. Then as now, not all disparities are
based on race; not all people are racist; and not all differences
between individuals are ascribable to race. Put simply, “the
fate of abstract categories of wealth statistics is not the same
as the fate of a given set of fesh-and-blood human beings.”
T. Sowell, Wealth, Poverty and Politics 333 (2016). Worse
still, Justice Jackson uses her broad observations about
statistical relationships between race and select measures of
health, wealth, and well-being to label all blacks as victims.
Her desire to do so is unfathomable to me. I cannot deny
the great accomplishments of black Americans, including
those who succeeded despite long odds.
Nor do Justice Jackson's statistics regarding a correla-
tion between levels of health, wealth, and well-being be-
tween selected racial groups prove anything. Of course,
none of those statistics are capable of drawing a direct causal
280 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
Thomas, J., concurring

link between race—rather than socioeconomic status or any
other factor—and individual outcomes. So Justice Jack-
son supplies the link herself: the legacy of slavery and the
nature of inherited wealth. This, she claims, locks blacks
into a seemingly perpetual inferior caste. Such a view is
irrational; it is an insult to individual achievement and can-
cerous to young minds seeking to push through barriers,
rather than consign themselves to permanent victimhood.
If an applicant has less fnancial means (because of genera-
tional inheritance or otherwise), then surely a university
may take that into account. If an applicant has medical
struggles or a family member with medical concerns, a uni-
versity may consider that too. What it cannot do is use the
applicant's skin color as a heuristic, assuming that because
the applicant checks the box for “black” he therefore con-
forms to the university's monolithic and reductionist view of
an abstract, average black person.
Page Proof Pending Publication
Accordingly, Justice Jackson's race-infused world view
falls fat at each step. Individuals are the sum of their
unique experiences, challenges, and accomplishments. What
matters is not the barriers they face, but how they choose to
confront them. And their race is not to blame for every-
thing—good or bad—that happens in their lives. A con-
trary, myopic world view based on individuals' skin color to
the total exclusion of their personal choices is nothing short
of racial determinism.
Justice Jackson then builds from her faulty premise to call
for action, arguing that courts should defer to “experts” and
allow institutions to discriminate on the basis of race. Make
no mistake: Her dissent is not a vanguard of the innocent and
helpless. It is instead a call to empower privileged elites, who
will “tell us [what] is required to level the playing feld”
among castes and classifcations that they alone can divine.
Post, at 408; see also post, at 291–293 (Gorsuch, J., concur-
ring) (explaining the arbitrariness of these classifcations).
Then, after siloing us all into racial castes and pitting those
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Thomas, J., concurring

castes against each other, the dissent somehow believes that
we will be able—at some undefned point—to “march for-
ward together” into some utopian vision. Post, at 408 (opin-
ion of Jackson, J.). Social movements that invoke these
sorts of rallying cries, historically, have ended disastrously.
Unsurprisingly, this tried-and-failed system defes both
law and reason. Start with the obvious: If social reorganiza-
tion in the name of equality may be justifed by the mere
fact of statistical disparities among racial groups, then that
reorganization must continue until these disparities are fully
eliminated, regardless of the reasons for the disparities and
the cost of their elimination. If blacks fail a test at higher
rates than their white counterparts (regardless of whether
the reason for the disparity has anything at all to do with
race), the only solution will be race-focused measures. If
those measures were to result in blacks failing at yet higher
rates, the only solution would be to double down. In fact,
Page Proof Pending Publication
there would seem to be no logical limit to what the govern-
ment may do to level the racial playing feld—outright
wealth transfers, quota systems, and racial preferences
would all seem permissible. In such a system, it would not
matter how many innocents suffer race-based injuries; all
that would matter is reaching the race-based goal.
Worse, the classifcations that Justice Jackson draws are
themselves race-based stereotypes. She focuses on two hy-
pothetical applicants, John and James, competing for admis-
sion to UNC. John is a white, seventh-generation legacy at
the school, while James is black and would be the frst in his
family to attend UNC. Post, at 385–386. Justice Jackson
argues that race-conscious admission programs are neces-
sary to adequately compare the two applicants. As an ini-
tial matter, it is not clear why James' race is the only factor
that could encourage UNC to admit him; his status as a frst-
generation college applicant seems to contextualize his appli-
cation. But, setting that aside, why is it that John should
be judged based on the actions of his great-great-great-
282 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
Thomas, J., concurring

grandparents? And what would Justice Jackson say to
John when deeming him not as worthy of admission: Some
statistically signifcant number of white people had advan-
tages in college admissions seven generations ago, and you
have inherited their incurable sin?
Nor should we accept that John or James represents all
members of their respective races. All racial groups are
heterogeneous, and blacks are no exception—encompassing
northerners and southerners, rich and poor, and recent immi-
grants and descendants of slaves. See, e. g., T. Sowell, Eth-
nic America 220 (1981) (noting that the great success of West
Indian immigrants to the United States—disproportionate
among blacks more broadly—“seriously undermines the
proposition that color is a fatal handicap in the American
economy”). Eschewing the complexity that comes with in-
dividuality may make for an uncomplicated narrative, but
lumping people together and judging them based on assumed
inherited or ancestral traits is nothing but stereotyping.11
Page Proof Pending Publication
To further illustrate, let's expand the applicant pool be-
yond John and James. Consider Jack, a black applicant and
the son of a multimillionaire industrialist. In a world of
race-based preferences, James' seat could very well go to
Jack rather than John—both are black, after all. And what
about members of the numerous other racial and ethnic
groups in our Nation? What about Anne, the child of Chi-
nese immigrants? Jacob, the grandchild of Holocaust survi-
vors who escaped to this Nation with nothing and faced dis-
crimination upon arrival? Or Thomas, the great-grandchild
of Irish immigrants escaping famine? While articulating
her black and white world (literally), Justice Jackson
ignores the experiences of other immigrant groups (like

11
Again, universities may offer admissions preferences to students from
disadvantaged backgrounds, and they need not withhold those preferences
from students who happen to be members of racial minorities. Universi-
ties may not, however, assume that all members of certain racial minori-
ties are disadvantaged.
Cite as: 600 U. S. 181 (2023) 283

Thomas, J., concurring

Asians, see supra, at 272–273) and white communities that
have faced historic barriers.
Though Justice Jackson seems to think that her race-
based theory can somehow beneft everyone, it is an immuta-
ble fact that “every time the government uses racial criteria
to `bring the races together,' someone gets excluded, and the
person excluded suffers an injury solely because of his or
her race.” Parents Involved, 551 U. S., at 759 (Thomas, J.,
concurring) (citation omitted). Indeed, Justice Jackson
seems to have no response—no explanation at all—for the
people who will shoulder that burden. How, for example,
would Justice Jackson explain the need for race-based
preferences to the Chinese student who has worked hard his
whole life, only to be denied college admission in part be-
cause of his skin color? If such a burden would seem diff-
cult to impose on a bright-eyed young person, that's because
it should be. History has taught us to abhor theories that
Page Proof Pending Publication
call for elites to pick racial winners and losers in the name
of sociological experimentation.
Nor is it clear what another few generations of race-
conscious college admissions may be expected to accomplish.
Even today, affrmative action programs that offer an admis-
sions boost to black and Hispanic students discriminate
against those who identify themselves as members of other
races that do not receive such preferential treatment. Must
others in the future make sacrifces to relevel the playing
feld for this new phase of racial subordination? And then,
out of whose lives should the debt owed to those further
victims be repaid? This vision of meeting social racism with
government-imposed racism is thus self-defeating, resulting
in a never-ending cycle of victimization. There is no reason
to continue down that path. In the wake of the Civil War,
the Framers of the Fourteenth Amendment charted a way
out: a colorblind Constitution that requires the government
to, at long last, put aside its citizens' skin color and focus on
their individual achievements.
284 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
Thomas, J., concurring

C
Universities' recent experiences confrm the effcacy of a
colorblind rule. To start, universities prohibited from en-
gaging in racial discrimination by state law continue to enroll
racially diverse classes by race-neutral means. For exam-
ple, the University of California purportedly recently ad-
mitted its “most diverse undergraduate class ever,” despite
California's ban on racial preferences. T. Watanabe, UC Ad-
mits Largest, Most Diverse Class Ever, But It Was Harder
To Get Accepted, L. A. Times, July 20, 2021, p. A1. Simi-
larly, the University of Michigan's 2021 incoming class was
“among the university's most racially and ethnically diverse
classes, with 37% of frst-year students identifying as per-
sons of color.” S. Dodge, Largest Ever Student Body at
University of Michigan This Fall, Offcials Say, MLive.com
(Oct. 22, 2021), https://www.mlive.com/news/ann-arbor/2021/
10/largest-ever-student-body-at-university-of-michigan-this-
Page Proof Pending Publication
fall-offcials-say.html. In fact, at least one set of studies sug-
gests that, “when we consider the higher education system
as a whole, it is clear that the vast majority of schools would
be as racially integrated, or more racially integrated, under
a system of no preferences than under a system of large pref-
erences.” Brief for Richard Sander as Amicus Curiae 26.
Race-neutral policies may thus achieve the same benefts of
racial harmony and equality without any of the burdens and
strife generated by affrmative action policies.
In fact, meritocratic systems have long refuted bigoted
misperceptions of what black students can accomplish. I
have always viewed “higher education's purpose as impart-
ing knowledge and skills to students, rather than a commu-
nal, rubber-stamp, credentialing process.” Grutter, 539
U. S., at 371–372 (opinion concurring in part and dissenting in
part). And, I continue to strongly believe (and have never
doubted) that “blacks can achieve in every avenue of Ameri-
can life without the meddling of university administrators.”
Id., at 350. Meritocratic systems, with objective grading
Cite as: 600 U. S. 181 (2023) 285

Thomas, J., concurring

scales, are critical to that belief. Such scales have always
been a great equalizer—offering a metric for achievement
that bigotry could not alter. Racial preferences take away
this beneft, eliminating the very metric by which those who
have the most to prove can clearly demonstrate their accom-
plishments—both to themselves and to others.
Schools' successes, like students' grades, also provide ob-
jective proof of ability. Historically Black Colleges and Uni-
versities (HBCUs) do not have a large amount of racial
diversity, but they demonstrate a marked ability to improve
the lives of their students. To this day, they have proved
“to be extremely effective in graduating Black students, par-
ticularly in STEM,” where “HBCUs represent seven of the
top eight institutions that graduate the highest number of
Black undergraduate students who go on to earn [science and
engineering] doctorates.” W. Wondwossen, The Science Be-
hind HBCU Success, Nat. Science Foundation (Sept. 24,
2020), https:// beta.nsf.gov/science-matters/science-behind-
Page Proof Pending Publication
hbcu-success. “HBCUs have produced 40% of all Black en-
gineers.” Presidential Proclamation No. 10451, 87 Fed. Reg.
57567 (2022). And, they “account for 80% of Black judges,
50% of Black doctors, and 50% of Black lawyers.” M. Ham-
mond, L. Owens, & B. Gulko, Social Mobility Outcomes
for HBCU Alumni, United Negro College Fund 4 (2021)
(Hammond), https://cdn.uncf.org/wp-content/uploads/Social-
Mobility-Report-FINAL.pdf; see 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 per-
centage of white students, has had better success at helping
its low-income students move into the middle class than Har-
vard has. See Hammond 14; see also Brief for Oklahoma et al.
as Amici Curiae 18. And, each of the top 10 HBCUs has a
success rate above the national average. Hammond 14.12
12
Such black achievement in “racially isolated” environments is neither
new nor isolated to higher education. See T. Sowell, Education: Assump-
tions Versus History 7–38 (1986). As I have previously observed, in the
286 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
Thomas, J., concurring

Why, then, would this Court need to allow other universi-
ties to racially discriminate? Not for the betterment of
those black students, it would seem. The hard work of
HBCUs and their students demonstrate that “black schools
can function as the center and symbol of black communities,
and provide examples of independent black leadership,
success, and achievement. ” Jenkins, 515 U. S., at 122
(Thomas, J., concurring) (citing Fordice, 505 U. S., at 748
(Thomas, J., concurring)). And, because race-conscious col-
lege admissions are plainly not necessary to serve even the
interests of blacks, there is no justifcation to compel such
programs more broadly. See Parents Involved, 551 U. S., at
765 (Thomas, J., concurring).
* * *
The great failure of this country was slavery and its prog-
eny. And, the tragic failure of this Court was its misinter-
pretation of the Reconstruction Amendments, as Justice
Page Proof Pending Publication
Harlan predicted in Plessy. We should not repeat this mis-
take merely because we think, as our predecessors thought,
that the present arrangements are superior to the
Constitution.

years preceding Brown, the “most prominent example of an exemplary
black school was Dunbar High School,” America's frst public high school
for black students. Parents Involved in Community Schools v. Seattle
School Dist. No. 1, 551 U. S. 701, 763 (2007) (concurring opinion). Known
for its academics, the school attracted black students from across the
Washington, D. C., area. “[I]n the period 1918–1923, Dunbar graduates
earned ffteen degrees from Ivy League colleges, and ten degrees from
Amherst, Williams, and Wesleyan.” Sowell, Education: Assumptions Ver-
sus History, at 29. Dunbar produced the frst black General in the U. S.
Army, the frst black Federal Court Judge, and the frst black Presidential
Cabinet member. A. Stewart, First Class: The Legacy of Dunbar 2
(2013). Indeed, efforts toward racial integration ultimately precipitated
the school's decline. When the D. C. schools moved to a neighborhood-
based admissions model, Dunbar was no longer able to maintain its prior
admissions policies—and “[m]ore than 80 years of quality education came
to an abrupt end.” T. Sowell, Wealth, Poverty and Politics 194 (2016).
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Gorsuch, J., concurring

The Court's opinion rightly makes clear that Grutter
is, for all intents and purposes, overruled. And, it sees the
universities' admissions policies for what they are: rudder-
less, race-based preferences designed to ensure a particular
racial mix in their entering classes. Those policies fy in the
face of our colorblind Constitution and our Nation's equality
ideal. In short, they are plainly—and boldly—unconstitu-
tional. See Brown II, 349 U. S., at 298 (noting that the
Brown case one year earlier had “declare[d] the fundamental
principle that racial discrimination in public education is
unconstitutional”).
While I am painfully aware of the social and economic rav-
ages which have befallen my race and all who suffer discrimi-
nation, I hold out enduring hope that this country will live
up to its principles so clearly enunciated in the Declaration
of Independence and the Constitution of the United States:
that all men are created equal, are equal citizens, and must
be treated equally before the law.
Page Proof Pending Publication
Justice Gorsuch, with whom Justice Thomas joins,
concurring.
For many students, an acceptance letter from Harvard or
the University of North Carolina is a ticket to a brighter
future. Tens of thousands of applicants compete for a small
number of coveted spots. For some time, both universities
have decided which applicants to admit or reject based in
part on race. Today, the Court holds that the Equal Protec-
tion Clause of the Fourteenth Amendment does not tolerate
this practice. I write to emphasize that Title VI of the Civil
Rights Act of 1964 does not either.

I
“[F]ew pieces of federal legislation rank in signifcance
with the Civil Rights Act of 1964.” Bostock v. Clayton
County, 590 U. S. –––, ––– (2020). Title VI of that law con-
tains terms as powerful as they are easy to understand: “No
288 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
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person in the United States shall, on the ground of race,
color, or national origin, be excluded from participation in,
be denied the benefts of, or be subjected to discrimination
under any program or activity receiving Federal fnancial
assistance.” 42 U. S. C. § 2000d. The message for these
cases is unmistakable. Students for Fair Admissions (SFFA)
brought claims against Harvard and UNC under Title VI.
That law applies to both institutions, as they elect to receive
millions of dollars of federal assistance annually. And the
trial records reveal that both schools routinely discriminate
on the basis of race when choosing new students—exactly
what the law forbids.
A
When a party seeks relief under a statute, our task is to
apply the law's terms as a reasonable reader would have un-
derstood them at the time Congress enacted them. “After
all, only the words on the page constitute the law adopted
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by Congress and approved by the President.” Bostock, 590
U. S., at –––.
The key phrases in Title VI at issue here are “subjected
to discrimination” and “on the ground of.” Begin with the
frst. To “discriminate” against a person meant in 1964
what it means today: to “trea[t] that individual worse than
others who are similarly situated.” Id., at –––; see also
Webster's New International Dictionary 745 (2d ed. 1954)
(“[t]o make a distinction” or “[t]o make a difference in treat-
ment or favor (of one as compared with others)”); Webster's
Third New International Dictionary 648 (1961) (“to make a
difference in treatment or favor on a class or categorical
basis”). The provision of Title VI before us, this Court has
also held, “prohibits only intentional discrimination.” Alex-
ander v. Sandoval, 532 U. S. 275, 280 (2001). From this, we
can safely say that Title VI forbids a recipient of federal
funds from intentionally treating one person worse than an-
other similarly situated person on the ground of race, color,
or national origin.
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Gorsuch, J., concurring

What does the statute's second critical phrase—“on the
ground of ”—mean? Again, the answer is uncomplicated: It
means “because of.” See, e. g., Webster's New World Dic-
tionary 640 (1960) (“because of ”); Webster's Third New In-
ternational Dictionary, at 1002 (defning “grounds” as “a
logical condition, physical cause, or metaphysical basis”).
“Because of ” is a familiar phrase in the law, one we often
apply in cases arising under the Civil Rights Act of 1964, and
one that we usually understand to invoke “the `simple' and
`traditional' standard of but-for causation.” Bostock, 590
U. S., at ––– (quoting University of Tex. Southwestern Medi-
cal Center v. Nassar, 570 U. S. 338, 346, 360 (2013); some
internal quotation marks omitted). The but-for-causation
standard is a “sweeping” one too. Bostock, 590 U. S., at –––.
A defendant's actions need not be the primary or proximate
cause of the plaintiff 's injury to qualify. Nor may a defend-
ant avoid liability “just by citing some other factor that con-
Page Proof Pending Publication
tributed to” the plaintiff's loss. Id., at –––. All that mat-
ters is that the plaintiff's injury would not have happened
but for the defendant's conduct. Ibid.
Now put these pieces back together and a clear rule
emerges. Title VI prohibits a recipient of federal funds
from intentionally treating one person worse than another
similarly situated person because of his race, color, or na-
tional origin. It does not matter if the recipient can point
to “some other . . . factor” that contributed to its decision to
disfavor that individual. Id., at ––– – –––. It does not mat-
ter if the recipient discriminates in order to advance some
further benign “intention” or “motivation.” Id., at –––; see
also Automobile Workers v. Johnson Controls, Inc., 499 U. S.
187, 199 (1991) (“the absence of a malevolent motive does not
convert a facially discriminatory policy into a neutral policy
with a discriminatory effect” or “alter [its] intentionally dis-
criminatory character”). Nor does it matter if the recipient
discriminates against an individual member of a protected
class with the idea that doing so might “favor” the interests
290 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
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of that “class” as a whole or otherwise “promot[e] equality
at the group level.” Bostock, 590 U. S., at –––, –––. Title
VI prohibits a recipient of federal funds from intentionally
treating any individual worse even in part because of
his race, color, or national origin and without regard to
any other reason or motive the recipient might assert.
Without question, Congress in 1964 could have taken the
law in various directions. But to safeguard the civil rights
of all Americans, Congress chose a simple and profound
rule. One holding that a recipient of federal funds may
never discriminate based on race, color, or national origin—
period.
If this exposition of Title VI sounds familiar, it should.
Just next door, in Title VII, Congress made it “unlawful . . .
for an employer . . . to discriminate against any individual . . .
because of such individual's race, color, religion, sex, or na-
tional origin.” § 2000e–2(a)(1). Appreciating the breadth
of this provision, just three years ago this Court read its
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essentially identical terms the same way. See Bostock, 590
U. S., at ––– – –––. This Court has long recognized, too, that
when Congress uses the same terms in the same statute, we
should presume they “have the same meaning.” IBP, Inc.
v. Alvarez, 546 U. S. 21, 34 (2005). And that presumption
surely makes sense here, for as Justice Stevens recognized
years ago, “[b]oth Title VI and Title VII” codify a categorical
rule of “individual equality, without regard to race.” Re-
gents of Univ. of Cal. v. Bakke, 438 U. S. 265, 416, n. 19 (1978)
(opinion concurring in judgment in part and dissenting in
part) (emphasis deleted).
B
Applying Title VI to the cases now before us, the result is
plain. The parties debate certain details of Harvard's and
UNC's admissions practices. But no one disputes that both
universities operate “program[s] or activit[ies] receiving Fed-
eral fnancial assistance.” § 2000d. No one questions that
both institutions consult race when making their admissions
decisions. And no one can doubt that both schools intention-
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ally treat some applicants worse than others at least in part
because of their race.
1
Start with how Harvard and UNC use race. Like many
colleges and universities, those schools invite interested stu-
dents to complete the Common Application. As part of that
process, the trial records show, applicants are prompted to
tick one or more boxes to explain “how you identify your-
self.” 4 App. in No. 21–707, p. 1732. The available choices
are American Indian or Alaska Native; Asian; Black or Afri-
can American; Native Hawaiian or Other Pacifc Islander;
Hispanic or Latino; or White. Applicants can write in fur-
ther details if they choose. Ibid.; see also 397 F. Supp. 3d
126, 137 (Mass. 2019); 567 F. Supp. 3d 580, 596 (MDNC 2021).
Where do these boxes come from? Bureaucrats. A fed-
eral interagency commission devised this scheme of classif-
cations in the 1970s to facilitate data collection. See D.
Page Proof Pending Publication
Bernstein, The Modern American Law of Race, 94 S. Cal. L.
Rev. 171, 196–202 (2021); see also 43 Fed. Reg. 19269 (1978).
That commission acted “without any input from anthropolo-
gists, sociologists, ethnologists, or other experts.” Brief for
David E. Bernstein as Amicus Curiae 3 (Bernstein Amicus
Brief). Recognizing the limitations of their work, federal
regulators cautioned that their classifcations “should not be
interpreted as being scientifc or anthropological in nature,
nor should they be viewed as determinants of eligibility for
participation in any Federal program.” 43 Fed. Reg. 19269
(emphasis added). Despite that warning, others eventually
used this classifcation system for that very purpose—to
“sor[t] out winners and losers in a process that, by the end
of the century, would grant preference[s] in jobs . . . and
university admissions.” H. Graham, The Origins of Offcial
Minority Designation, in The New Race Question: How the
Census Counts Multiracial Individuals 289 (J. Perlmann &
M. Waters eds. 2002).
These classifications rest on incoherent stereotypes.
Take the “Asian” category. It sweeps into one pile East
292 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
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Asians (e. g., Chinese, Korean, Japanese) and South Asians
(e. g., Indian, Pakistani, Bangladeshi), even though together
they constitute about 60% of the world's population. Bern-
stein Amicus Brief 2, 5. This agglomeration of so many
peoples paves over countless differences in “language,” “cul-
ture,” and historical experience. Id., at 5–6. It does so
even though few would suggest that all such persons share
“similar backgrounds and similar ideas and experiences.”
Fisher v. University of Tex. at Austin, 579 U. S. 365, 414
(2016) (Alito, J., dissenting). Consider, as well, the devel-
opment of a separate category for “Native Hawaiian or Other
Pacifc Islander.” It seems federal offcials disaggregated
these groups from the “Asian” category only in the 1990s and
only “in response to political lobbying.” Bernstein Amicus
Brief 9–10. And even that category contains its curiosities.
It appears, for example, that Filipino Americans remain clas-
sifed as “Asian” rather than “Other Pacifc Islander.” See
Page Proof Pending Publication
4 App. in No. 21–707, at 1732.
The remaining classifcations depend just as much on irra-
tional stereotypes. The “Hispanic” category covers those
whose ancestral language is Spanish, Basque, or Catalan—
but it also covers individuals of Mayan, Mixtec, or Zapotec
descent who do not speak any of those languages and whose
ancestry does not trace to the Iberian Peninsula but bears
deep ties to the Americas. See Bernstein Amicus Brief 10–
11. The “White” category sweeps in anyone from “Europe,
Asia west of India, and North Africa.” Id., at 14. That in-
cludes those of Welsh, Norwegian, Greek, Italian, Moroccan,
Lebanese, Turkish, or Iranian descent. It embraces an Iraqi
or Ukrainian refugee as much as a member of the British
royal family. Meanwhile, “Black or African American” cov-
ers everyone from a descendant of enslaved persons who
grew up poor in the rural South, to a frst-generation child
of wealthy Nigerian immigrants, to a Black-identifying appli-
cant with multiracial ancestry whose family lives in a typical
American suburb. See id., at 15–16.
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If anything, attempts to divide us all up into a handful of
groups have become only more incoherent with time.
American families have become increasingly multicultural, a
fact that has led to unseemly disputes about whether some-
one is really a member of a certain racial or ethnic group.
There are decisions denying Hispanic status to someone of
Italian-Argentine descent, Marinelli Constr. Corp. v. New
York, 200 App. Div. 2d 294, 296–297, 613 N. Y. S. 2d 1000,
1002 (1994), as well as someone with one Mexican grand-
parent, Major Concrete Constr., Inc. v. Erie County, 134
App. Div. 2d 872, 873, 521 N. Y. S. 2d 959, 960 (1987). Yet
there are also decisions granting Hispanic status to a Sephar-
dic Jew whose ancestors fed Spain centuries ago, In re
Rothschild-Lynn Legal & Fin. Servs., SBA No. 499, 1995 WL
542398, *2–*4 (Apr. 12, 1995), and bestowing a “sort of His-
panic” status on a person with one Cuban grandparent,
Bernstein, 94 S. Cal. L. Rev., at 232 (discussing In re Kist
Corp., 99 F. C. C. 2d 173, 193 (1984)).
Page Proof Pending Publication
Given all this, is it any surprise that members of certain
groups sometimes try to conceal their race or ethnicity? Or
that a cottage industry has sprung up to help college appli-
cants do so? We are told, for example, that one effect of
lumping so many people of so many disparate backgrounds
into the “Asian” category is that many colleges consider
“Asians” to be “overrepresented” in their admission pools.
Brief for Asian American Coalition for Education et al. as
Amici Curiae 12–14, 18–19. Paid advisors, in turn, tell high
school students of Asian descent to downplay their heritage
to maximize their odds of admission. “ `We will make them
appear less Asian when they apply,' ” one promises. Id., at
16. “ `If you're given an option, don't attach a photograph
to your application,' ” another instructs. Ibid.1 It is diffi-
1
See also A. Qin, Aiming for an Ivy and Trying to Seem `Less Asian,'
N. Y. Times, Dec. 3, 2022, p. A18, col. 1 (“[T]he rumor that students can
appear `too Asian' has hardened into a kind of received wisdom within
many Asian American communities,” and “college admissions consultants
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cult to imagine those who receive this advice would fnd com-
fort in a bald (and mistaken) assurance that “race-conscious
admissions beneft . . . the Asian American community,” post,
at 375–376 (Sotomayor, J., dissenting). See 397 F. Supp. 3d,
at 178 (district court fnding that “overall” Harvard's race-
conscious admissions policy “results in fewer Asian Ameri-
can[s]” being admitted). And it is hard not to wonder
whether those left paying the steepest price are those least
able to afford it—children of families with no chance of hiring
the kind of consultants who know how to play this game.2

2
Just as there is no question Harvard and UNC consider
race in their admissions processes, there is no question both
schools intentionally treat some applicants worse than others
because of their race. Both schools frequently choose to
award a “tip” or a “plus” to applicants from certain racial
Page Proof Pending Publication
groups but not others. These tips or plusses are just what
they sound like—“factors that might tip an applicant into [an]
admitted class.” 980 F. 3d 157, 170 (CA1 2020). And in a
process where applicants compete for a limited pool of spots,
“[a] tip for one race” necessarily works as “a penalty against
other races.” Brief for Economists as Amici Curiae 20.
As the trial court in the Harvard case put it: “Race conscious
admissions will always penalize to some extent the groups
that are not being advantaged by the process. ” 397
F. Supp. 3d, at 202–203.
[have] spoke[n] about trying to steer their Asian American clients away
from so-called typically Asian activities such as Chinese language school,
piano and Indian classical instruments.”).
2
Though the matter did not receive much attention in the proceedings
below, it appears that the Common Application has evolved in recent years
to allow applicants to choose among more options to describe their back-
grounds. The decisions below do not disclose how much Harvard or UNC
made use of this further information (or whether they make use of it now).
But neither does it make a difference. Title VI no more tolerates discrim-
ination based on 60 racial categories than it does 6.
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Consider how this plays out at Harvard. In a given year,
the university's undergraduate program may receive 60,000
applications for roughly 1,600 spots. Tr. of Oral Arg. in No.
20–1199, p. 60. Admissions offcers read each application
and rate students across several categories: academic, extra-
curricular, athletic, school support, personal, and overall.
980 F. 3d, at 167. Harvard says its admissions offcers
“should not” consider race or ethnicity when assigning the
“personal” rating. Id., at 169 (internal quotation marks
omitted). But Harvard did not make this instruction ex-
plicit until after SFFA fled this suit. Ibid. And, in any
event, Harvard concedes that its admissions offcers “can and
do take an applicant's race into account when assigning an
overall rating.” Ibid. (emphasis added). At that stage, the
lower courts found, applicants of certain races may receive a
“tip” in their favor. Ibid.
The next step in the process is committee review. Re-
Page Proof Pending Publication
gional subcommittees may consider an applicant's race when
deciding whether to recommend admission. Id., at 169–170.
So, too, may the full admissions committee. Ibid. As the
Court explains, that latter committee “discusses the relative
breakdown of applicants by race.” Ante, at 194. And “if at
some point in the admissions process it appears that a group
is notably underrepresented or has suffered a dramatic drop
off relative to the prior year, the [committee] may decide to
give additional attention to applications from students
within that group.” 397 F. Supp. 3d, at 146.
The last step is “lopping,” where the admissions committee
trims the list of “prospective admits” before settling on a
fnal class. Id., at 144 (internal quotation marks omitted).
At this stage, again, the committee considers the “character-
istics of the admitted class,” including its “racial composi-
tion.” Ibid. Once more, too, the committee may consider
each applicant's race in deciding whom to “lop off.” Ibid.
All told, the district court made a number of fndings about
Harvard's use of race-based tips. For example: “[T]he tip[s]
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given for race impac[t] who among the highly-qualifed stu-
dents in the applicant pool will be selected for admission.”
Id., at 178. “At least 10% of Harvard's admitted class . . .
would most likely not be admitted in the absence of Har-
vard's race-conscious admissions process.” Ibid. Race-
based tips are “determinative” in securing favorable deci-
sions for a signifcant percentage of “African American and
Hispanic applicants,” the “primary benefciaries” of this sys-
tem. Ibid. There are clear losers too. “[W]hite and Asian
American applicants are unlikely to receive a meaningful
race-based tip,” id., at 190, n. 56, and “overall” the school's
race-based practices “resul[t] in fewer Asian American and
white students being admitted,” id., at 178. For these rea-
sons and others still, the district court concluded that “Har-
vard's admissions process is not facially neutral” with re-
spect to race. Id., at 189–190; see also id., at 190, n. 56 (“The
policy cannot . . . be considered facially neutral from a Title
Page Proof Pending Publication
VI perspective.”).
Things work similarly at UNC. In a typical year, about
44,000 applicants vie for 4,200 spots. 567 F. Supp. 3d, at 595.
Admissions offcers read each application and rate prospec-
tive students along eight dimensions: academic program-
ming, academic performance, standardized tests, extracurric-
ulars, special talents, essays, background, and personal. Id.,
at 600. The district court found that “UNC's admissions
policies mandate that race is taken into consideration” in this
process as a “ `plus' facto[r].” Id., at 594–595. It is a plus
that is “sometimes” awarded to “underrepresented minority”
or “URM” candidates—a group UNC defnes to include
“ `those students identifying themselves as African American
or [B]lack; American Indian or Alaska Native; or Hispanic,
Latino, or Latina,' ” but not Asian or white students. Id.,
at 591–592, n. 7, 601.
At UNC, the admissions offcers' decisions to admit or
deny are “ `provisionally fnal.' ” Ante, at 196 (opinion for
the Court). The decisions become truly fnal only after a
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committee approves or rejects them. 567 F. Supp. 3d, at
599. That committee may consider an applicant's race too.
Id., at 607. In the end, the district court found that “race
plays a role”—perhaps even “a determinative role”—in the
decision to admit or deny some “URM students.” Id., at
634; see also id., at 662 (“race may tip the scale”). Nor is
this an accident. As at Harvard, offcials at UNC have made
a “deliberate decision” to employ race-conscious admissions
practices. Id., at 588–589.
While the district courts' fndings tell the full story, one
can also get a glimpse from aggregate statistics. Consider
the chart in the Court's opinion collecting Harvard's data
for the period 2009 to 2018. Ante, at 222. The racial com-
position of each incoming class remained steady over that
time—remarkably so. The proportion of African Ameri-
cans hovered between 10% and 12%; the proportion of His-
panics between 8% and 12%; and the proportion of Asian
Page Proof Pending Publication
Americans between 17% and 20%. Ibid. Might this merely
refect the demographics of the school's applicant pool? Cf.
post, at 350–351 (opinion of Sotomayor, J.). Perhaps—at
least assuming the applicant pool looks much the same each
year and the school rather mechanically admits applicants
based on objective criteria. But the possibility that it in-
stead betrays the school's persistent focus on numbers of this
race and numbers of that race is entirely consistent with the
fndings recounted above. See, e. g., 397 F. Supp. 3d, at 146
(“if at some point in the admissions process it appears that
a group is notably underrepresented or has suffered a dra-
matic drop off relative to the prior year, the [committee] may
decide to give additional attention to applications from stu-
dents within that group”); cf. ante, at 222–223, n. 7 (opinion
for the Court).
C
Throughout this litigation, the parties have spent less time
contesting these facts than debating other matters.
298 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
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For example, the parties debate how much of a role race
plays in admissions at Harvard and UNC. Both schools in-
sist that they consider race as just one of many factors when
making admissions decisions in their self-described “holistic”
review of each applicant. SFFA responds with trial evi-
dence showing that, whatever label the universities use to
describe their processes, they intentionally consult race and,
by design, their race-based tips and plusses beneft appli-
cants of certain groups to the detriment of others. See
Brief for Petitioner 20–35, 40–45.
The parties also debate the reasons both schools consult
race. SFFA observes that, in the 1920s, Harvard began
moving away from “test scores” and toward “plac[ing]
greater emphasis on character, ftness, and other subjective
criteria.” Id., at 12–13 (internal quotation marks omitted).
Harvard made this move, SFFA asserts, because President
A. Lawrence Lowell and other university leaders had be-
Page Proof Pending Publication
come “alarmed by the growing number of Jewish students
who were testing in,” and they sought some way to cap the
number of Jewish students without “ `stat[ing] frankly' ” that
they were “ `directly excluding all [Jews] beyond a certain
percentage.' ” Id., at 12; see also 3 App. in No. 20–1199,
pp. 1131–1133. SFFA contends that Harvard's current “ho-
listic” approach to admissions works similarly to disguise the
school's efforts to assemble classes with a particular racial
composition—and, in particular, to limit the number of Asian
Americans it admits. Brief for Petitioner 12–14, 25–32.
For its part, Harvard expresses regret for its past practices
while denying that they resemble its current ones. Tr. of
Oral Arg. in No. 20–1199, at 51. And both schools insist that
their student bodies would lack suffcient diversity without
race-conscious admissions. Brief for Respondent in No. 20–
1199, pp. 52–54; Brief for University Respondents in No. 21–
707, pp. 54–59.
When it comes to defning and measuring diversity, the
parties spar too. SFFA observes that the racial categories
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Gorsuch, J., concurring

the universities employ in the name of diversity do not begin
to refect the differences that exist within each group. See
Part I–B–1, supra. Instead, they lump together white and
Asian students from privileged backgrounds with “Jewish,
Irish, Polish, or other `white' ethnic groups whose ancestors
faced discrimination” and “descendants of those Japanese-
American citizens interned during World War II.” Ante, at
273, n. 10 (Thomas, J., concurring). Even putting all that
aside, SFFA stresses that neither Harvard nor UNC is will-
ing to quantify how much racial and ethnic diversity they
think suffcient. And, SFFA contends, the universities may
not wish to do so because their stated goal implies a desire
to admit some fxed number (or quota) of students from each
racial group. See Brief for Petitioner 77, 80; Tr. of Oral Arg.
in No. 21–707, p. 180. Besides, SFFA asks, if it is diversity
the schools are after, why do they exhibit so little interest
in other (non-racial) markers of it? See Brief for Petitioner
Page Proof Pending Publication
78, 83–86. While Harvard professes interest in socioeco-
nomic diversity, for example, SFFA points to trial testimony
that there are “23 times as many rich kids on campus as poor
kids.” 2 App. in No. 20–1199, at 756.3
Even beyond all this, the parties debate the availability of
alternatives. SFFA contends that both Harvard and UNC
could obtain signifcant racial diversity without resorting to
race-based admissions practices. Many other universities
across the country, SFFA points out, have sought to do just
that by reducing legacy preferences, increasing fnancial aid,
and the like. Brief for Petitioner 85–86; see also Brief for

3
See also E. Bazelon, Why Is Affrmative Action in Peril? One Man's
Decision, N. Y. Times Magazine, Feb. 15, 2023, p. 41 (“In the Ivy League,
children whose parents are in the top 1 percent of the income distribution
are 77 times as likely to attend as those whose parents are in the bottom
20 percent of the income bracket.”); ibid. (“[A] common critique . . . is that
schools have made a bargain with economic elites of all races, with the
exception of Asian Americans, who are underrepresented compared with
their level of academic achievement.”).
300 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
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Oklahoma et al. as Amici Curiae 9–19.4 As part of its af-
frmative case, SFFA also submitted evidence that Harvard
could nearly replicate the current racial composition of its
student body without resorting to race-based practices if it:
(1) provided socioeconomically disadvantaged applicants just
half of the tip it gives recruited athletes; and (2) eliminated
tips for the children of donors, alumni, and faculty. Brief for
Petitioner 33–34, 81; see 2 App. in No. 20–1199, at 763–765,
774–775. Doing these two things would barely affect the
academic credentials of each incoming class. Brief for Peti-
tioner 33–34. And it would not require Harvard to end tips
for recruited athletes, who as a group are much weaker aca-
demically than non-athletes.5

4
The principal dissent chides me for “reach[ing] beyond the factfnding
below” by acknowledging SFFA's argument that other universities have
employed various race-neutral tools. Post, at 345, n. 25 (opinion of Soto-
Page Proof Pending Publication
mayor, J.). Contrary to the dissent's suggestion, however, I do not pur-
port to fnd facts about those practices; all I do here is recount what SFFA
has argued every step of the way. See, e. g., Brief for Petitioner 55, 66–
67; 1 App. in No. 20–1199, pp. 415–416, 440; 2 App. in No. 21–707, pp. 551–
552. Nor, of course, is it somehow remarkable to acknowledge the parties'
arguments. The principal dissent itself recites SFFA's arguments about
Harvard's and other universities' practices too. See, e. g., post, at 346, 365
(opinion of Sotomayor, J.). In truth, it is the dissent that reaches beyond
the factfnding below when it argues from studies recited in a dissenting
opinion in a different case decided almost a decade ago. Post, at 345, n. 25
(opinion of Sotomayor, J.); see also post, at 334–337 (opinion of Soto-
mayor, J.) (further venturing beyond the trial records to discuss data
about employment, income, wealth, home ownership, and healthcare).
5
See Brief for Defense of Freedom Institute for Policy Studies as Ami-
cus Curiae 11 (recruited athletes make up less than 1% of Harvard's appli-
cant pool but represent more than 10% of the admitted class); P. Arcidia-
cono, J. Kinsler, & T. Ransom, Legacy and Athlete Preferences at Harvard,
40 J. Lab. Econ. 133, 141, n. 17 (2021) (recruited athletes were the only
applicants admitted with the lowest possible academic rating and 79% of
recruited athletes with the next lowest rating were admitted compared to
0.02% of other applicants with the same rating).
Cite as: 600 U. S. 181 (2023) 301

Gorsuch, J., concurring

At trial, however, Harvard resisted this proposal. Its
preferences for the children of donors, alumni, and faculty
are no help to applicants who cannot boast of their parents'
good fortune or trips to the alumni tent all their lives.
While race-neutral on their face, too, these preferences un-
doubtedly beneft white and wealthy applicants the most.
See 980 F. 3d, at 171. Still, Harvard stands by them. See
Brief for Respondent in No. 20–1199, at 52–54; Tr. of Oral
Arg. in No. 21–1199, at 48–49. As a result, athletes and the
children of donors, alumni, and faculty—groups that together
“make up less than 5% of applicants to Harvard”—constitute
“around 30% of the applicants admitted each year.” 980
F. 3d, at 171.
To be sure, the parties' debates raise some hard-to-answer
questions. Just how many admissions decisions turn on
race? And what really motivates the universities' race-
conscious admissions policies and their refusal to modify
other preferential practices? Fortunately, Title VI does not
Page Proof Pending Publication
require an answer to any of these questions. It does not ask
how much a recipient of federal funds discriminates. It does
not scrutinize a recipient's reasons or motives for discrimi-
nating. Instead, the law prohibits covered institutions from
intentionally treating any individual worse even in part be-
cause of race. So yes, of course, the universities consider
many non-racial factors in their admissions processes too.
And perhaps they mean well when they favor certain candi-
dates over others based on the color of their skin. But even
if all that is true, their conduct violates Title VI just the
same. See Part I–A, supra; see also Bostock, 590 U. S., at
–––, ––– – –––.
D
The principal dissent contends that this understanding of
Title VI is contrary to precedent. Post, at 342, n. 21 (opinion
of Sotomayor, J.). But the dissent does not dispute that
everything said here about the meaning of Title VI tracks
302 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
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this Court's precedent in Bostock interpreting materially
identical language in Title VII. That raises two questions:
Do the dissenters think Bostock wrongly decided? Or do
they read the same words in neighboring provisions of the
same statute—enacted at the same time by the same Con-
gress—to mean different things? Apparently, the federal
government takes the latter view. The Solicitor General in-
sists that there is “ambiguity in the term `discrimination' ”
in Title VI but no ambiguity in the term “discriminate” in
Title VII. Tr. of Oral Arg. in No. 21–707, at 164. Respect-
fully, I do not see it. The words of the Civil Rights Act of
1964 are not like mood rings; they do not change their mes-
sage from one moment to the next.
Rather than engage with the statutory text or our prece-
dent in Bostock, the principal dissent seeks to sow confusion
about the facts. It insists that all applicants to Harvard and
UNC are “eligible” to receive a race-based tip. Post, at 348,
n. 27 (opinion of Sotomayor, J.); cf. post, at 399 (Jackson, J.,
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dissenting). But the question in these cases is not who
could hypothetically receive a race-based tip. It is who ac-
tually receives one. And on that score the lower courts left
no doubt. The district court in the Harvard case found that
the school's admissions policy “cannot . . . be considered fa-
cially neutral from a Title VI perspective given that admis-
sions offcers provide [race-based] tips to African American
and Hispanic applicants, while white and Asian American
applicants are unlikely to receive a meaningful race-based
tip.” 397 F. Supp. 3d, at 190, n. 56; see also id., at 189–
190 (“Harvard's admissions process is not facially neutral.”).
Likewise, the district court in the UNC case found that
admissions offcers “sometimes” award race-based plusses
to URM candidates—a category that excludes Asian Ameri-
can and white students. 567 F. Supp. 3d, at 591–592, n. 7,
601.6
6
The principal dissent suggests “some Asian American applicants are
actually advantaged by Harvard's use of race.” Post, at 375 (opinion of
Sotomayor, J.) (internal quotation marks omitted). What is the dissent's
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Gorsuch, J., concurring

Nor could anyone doubt that these cases are about inten-
tional discrimination just because Harvard in particular
“ `does not explicitly prioritize any particular racial group
over any other.' ” Post, at 348, n. 27 (opinion of Sotoma-
yor, J.) (emphasis added). Forget for a moment the univer-
sities' concessions about how they deliberately consult race
when deciding whom to admit. See supra, at 298.7 Look
past the lower courts' fndings recounted above about how
the universities intentionally give tips to students of some
races and not others. See supra, at 294–297, 302. Put to the
side telling evidence that came out in discovery.8 Ignore,
too, our many precedents holding that it does not matter how
a defendant “label[s]” its practices, Bostock, 590 U. S., at –––;
that intentional discrimination between individuals is un-
lawful whether “motivated by a wish to achieve classwide
equality” or any other purpose, id., at –––; and that “the
absence of a malevolent motive does not convert a facially
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discriminatory policy into a neutral policy with a [merely]
discriminatory effect,” Johnson Controls, 499 U. S., at 199.

basis for that claim? The district court's fnding that “considering appli-
cants' race may improve the admission chances of some Asian Americans
who connect their racial identities with particularly compelling narra-
tives.” 397 F. Supp. 3d, at 178 (emphasis added). The dissent neglects
to mention those key qualifcations. Worse, it ignores completely the dis-
trict court's further fnding that “overall” Harvard's race-conscious admis-
sions policy “results in fewer Asian American[s] . . . being admitted.”
Ibid. (emphasis added). So much for affording the district court's “careful
factfnding” the “deference it [is] owe[d].” Post, at 345–346, n. 25 (opinion
of Sotomayor, J.).
7
See also, e. g., Tr. of Oral Arg. in No. 20–1199, at 67, 84, 91; Tr. of Oral
Arg. in No. 21–707, at 70–71, 81, 84, 91–92, 110.
8
Messages among UNC admissions offcers included statements such
as these: “[P]erfect 2400 SAT All 5 on AP one B in 11th [grade].”
“Brown?!” “Heck no. Asian.” “Of course. Still impressive.”; “If it[']s
brown and above a 1300 [SAT] put them in for [the] merit/Excel [scholar-
ship].”; “I just opened a brown girl who's an 810 [SAT].”; “I'm going
through this trouble because this is a bi-racial (black/white) male.”; “Stel-
lar academics for a Native Amer[ican]/African Amer[ican] kid.” 3 App. in
No. 21–707, at 1242–1251.
304 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
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Gorsuch, J., concurring

Consider just the dissents in these cases. From start to fn-
ish and over the course of nearly 100 pages, they defend the
universities' purposeful discrimination between applicants
based on race. “[N]eutrality,” they insist, is not enough.
Post, at 328, 383 (opinion of Sotomayor, J.); cf. post, at 403
(opinion of Jackson, J.). “[T]he use of race,” they stress, “is
critical.” Post, at 375 (opinion of Sotomayor, J.); see id., at
318, 348–349, 355, 359–360; cf. post, at 384, 408 (opinion of
Jackson, J.). Plainly, Harvard and UNC choose to treat
some students worse than others in part because of race. To
suggest otherwise—or to cling to the fact that the schools
do not always say the quiet part aloud—is to deny reality.9
II
So far, we have seen that Title VI prohibits a recipient of
federal funds from discriminating against individuals even in
part because of race. We have seen, too, that Harvard and
UNC do just what the law forbids. One might wonder, then,
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why the parties have devoted years and fortunes litigating
other matters, like how much the universities discriminate
and why they do so. The answer lies in Bakke.
A
Bakke concerned admissions to the medical school at the
University of California, Davis. That school set aside a cer-
9
Left with no reply on the statute or its application to the facts, the
principal dissent suggests that it violates “principles of party presenta-
tion” and abandons “judicial restraint” even to look at the text of Title VI.
Post, at 342, n. 21 (opinion of Sotomayor, J.). It is a bewildering sugges-
tion. SFFA sued Harvard and UNC under Title VI. And when a party
seeks relief under a statute, our task is to apply the law's terms as a
reasonable reader would have understood them when Congress enacted
them. Bostock v. Clayton County, 590 U. S. –––, ––– (2020). To be sure,
parties are free to frame their arguments. But they are not free to stipu-
late to a statute's meaning and no party may “waiv[e]” the proper inter-
pretation of the law by “fail[ing] to invoke it.” EEOC v. FLRA, 476 U. S.
19, 23 (1986) (per curiam) (internal quotation marks omitted); see also
Young v. United States, 315 U. S. 257, 258–259 (1942).
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Gorsuch, J., concurring

tain number of spots in each class for minority applicants.
See 438 U. S., at 272–276 (opinion of Powell, J.). Allan
Bakke argued that the school's policy violated Title VI and
the Equal Protection Clause of the Fourteenth Amendment.
Id., at 270. The Court agreed with Mr. Bakke. In a frac-
tured decision that yielded six opinions, a majority of the
Court held that the school's set-aside system went too far.
At the same time, however, a different coalition of fve Jus-
tices ventured beyond the facts of the case to suggest that, in
other circumstances not at issue, universities may sometimes
permissibly use race in their admissions processes. See
ante, at 208–210 (opinion for the Court).
As important as these conclusions were some of the inter-
pretive moves made along the way. Justice Powell (writing
only for himself) and Justice Brennan (writing for himself
and three others) argued that Title VI is coterminous with
the Equal Protection Clause. Put differently, they read
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Title VI to prohibit recipients of federal funds from doing
whatever the Equal Protection Clause prohibits States from
doing. Justice Powell and Justice Brennan then proceeded
to evaluate racial preferences in higher education directly
under the Equal Protection Clause. From there, however,
their paths diverged. Justice Powell thought some racial
preferences might be permissible but that the admissions
program at issue violated the promise of equal protection.
438 U. S., at 315–320. Justice Brennan would have given a
wider berth to racial preferences and allowed the challenged
program to proceed. Id., at 355–379.
Justice Stevens (also writing for himself and three others)
took an altogether different approach. He began by noting
the Court's “settled practice” of “avoid[ing] the decision of a
constitutional issue if a case can be fairly decided on a statu-
tory ground.” Id., at 411. He then turned to the “broad
prohibition” of Title VI, id., at 413, and summarized his
views this way: “The University . . . excluded Bakke from
participation in its program of medical education because of
306 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
Gorsuch, J., concurring

his race. The University also acknowledges that it was, and
still is, receiving federal fnancial assistance. The plain lan-
guage of the statute therefore requires” fnding a Title VI
violation. Id., at 412 (footnote omitted).
In the years following Bakke, this Court hewed to Justice
Powell's and Justice Brennan's shared premise that Title VI
and the Equal Protection Clause mean the same thing. See
Gratz v. Bollinger, 539 U. S. 244, 276, n. 23 (2003); Grutter
v. Bollinger, 539 U. S. 306, 343 (2003). Justice Stevens's
statute-focused approach receded from view. As a result,
for over four decades, every case about racial preferences in
school admissions under Title VI has turned into a case about
the meaning of the Fourteenth Amendment.
And what a confused body of constitutional law followed.
For years, this Court has said that the Equal Protection
Clause requires any consideration of race to satisfy “strict
scrutiny,” meaning it must be “narrowly tailored to further
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compelling governmental interests.” Grutter, 539 U. S., at
326 (internal quotation marks omitted). Outside the context
of higher education, “our precedents have identifed only
two” interests that meet this demanding standard: “remedi-
ating specifc, identifed instances of past discrimination that
violated the Constitution or a statute,” and “avoiding immi-
nent and serious risks to human safety in prisons.” Ante,
at 207 (opinion for the Court).
Within higher education, however, an entirely distinct set
of rules emerged. Following Bakke, this Court declared
that judges may simply “defer” to a school's assertion that
“diversity is essential” to its “educational mission.” Grut-
ter, 539 U. S., at 328. Not all schools, though—elementary
and secondary schools apparently do not qualify for this def-
erence. See Parents Involved in Community Schools v. Se-
attle School Dist. No. 1, 551 U. S. 701, 724–725 (2007). Only
colleges and universities, the Court explained, “occupy a spe-
cial niche in our constitutional tradition.” Grutter, 539
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Gorsuch, J., concurring

U. S., at 329. Yet even they (wielding their “special niche”
authority) cannot simply assert an interest in diversity and
discriminate as they please. Fisher, 579 U. S., at 381. In-
stead, they may consider race only as a “plus” factor for the
purpose of “attaining a critical mass of underrepresented mi-
nority students” or “a diverse student body.” Grutter, 539
U. S., at 335–336 (internal quotation marks omitted). At the
same time, the Court cautioned, this practice “must have a
logical end point.” Id., at 342. And in the meantime, “out-
right racial balancing” and “quota system[s]” remain “pat-
ently unconstitutional.” Id., at 330, 334. Nor may a college
or university ever provide “mechanical, predetermined di-
versity bonuses.” Id., at 337 (internal quotation marks
omitted). Only a “tip” or “plus” is constitutionally tolerable,
and only for a limited time. Id., at 338–339, 341.
If you cannot follow all these twists and turns, you are
not alone. See, e. g., Fisher, 579 U. S., at 401–437 (Alito, J.,
Page Proof Pending Publication
dissenting); Grutter, 539 U. S., at 346–349 (Scalia, J., joined
by Thomas, J., concurring in part and dissenting in part); 1
App. in No. 21–707, at 401–402 (testimony from UNC admin-
istrator: “[M]y understanding of the term `critical mass' is
that it's a . . . I'm trying to decide if it's an analogy or a
metaphor[.] I think it's an analogy. . . . I'm not even sure
we would know what it is.”); 3 App. in No. 20–1199, at 1137–
1138 (similar testimony from a Harvard administrator). If
the Court's post-Bakke higher-education precedents ever
made sense, they are by now incoherent.
Recognizing as much, the Court today cuts through the
kudzu. It ends university exceptionalism and returns this
Court to the traditional rule that the Equal Protection
Clause forbids the use of race in distinguishing between per-
sons unless strict scrutiny's demanding standards can be
met. In that way, today's decision wakes the echoes of Jus-
tice John Marshall Harlan: “The law regards man as man,
and takes no account of his surroundings or of his color when
308 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
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Gorsuch, J., concurring

his civil rights as guaranteed by the supreme law of the land
are involved.” Plessy v. Ferguson, 163 U. S. 537, 559 (1896)
(dissenting opinion).
B
If Bakke led to errors in interpreting the Equal Protection
Clause, its frst mistake was to take us there. These cases
arise under Title VI and that statute is “more than a simple
paraphrasing” of the Equal Protection Clause. 438 U. S., at
416 (opinion of Stevens, J.). Title VI has “independent force,
with language and emphasis in addition to that found in the
Constitution.” Ibid. That law deserves our respect and its
terms provide us with all the direction we need.
Put the two provisions side by side. Title VI says: “No
person in the United States shall, on the ground of race,
color, or national origin, be excluded from participation in,
be denied the benefts of, or be subjected to discrimination
under any program or activity receiving Federal fnancial
Page Proof Pending Publication
assistance.” § 2000d. The Equal Protection Clause reads:
“No State shall . . . deny to any person within its jurisdiction
the equal protection of the laws.” Amdt. 14, § 1. That such
differently worded provisions should mean the same thing is
implausible on its face.
Consider just some of the obvious differences. The Equal
Protection Clause operates on States. It does not purport
to regulate the conduct of private parties. By contrast,
Title VI applies to recipients of federal funds—covering not
just many state actors, but many private actors too. In this
way, Title VI reaches entities and organizations that the
Equal Protection Clause does not.
In other respects, however, the relative scope of the two
provisions is inverted. The Equal Protection Clause ad-
dresses all manner of distinctions between persons and this
Court has held that it implies different degrees of judicial
scrutiny for different kinds of classifcations. So, for exam-
ple, courts apply strict scrutiny for classifcations based on
race, color, and national origin; intermediate scrutiny for
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Gorsuch, J., concurring

classifcations based on sex; and rational-basis review for
classifcations based on more prosaic grounds. See, e. g.,
Fisher, 579 U. S., at 376; Richmond v. J. A. Croson Co., 488
U. S. 469, 493–495 (1989) (plurality opinion); United States v.
Virginia, 518 U. S. 515, 555–556 (1996); Board of Trustees of
Univ. of Ala. v. Garrett, 531 U. S. 356, 366–367 (2001). By
contrast, Title VI targets only certain classifcations—those
based on race, color, or national origin. And that law does
not direct courts to subject these classifcations to one de-
gree of scrutiny or another. Instead, as we have seen, its
rule is as uncomplicated as it is momentous. Under Title
VI, it is always unlawful to discriminate among persons even
in part because of race, color, or national origin.
In truth, neither Justice Powell's nor Justice Brennan's
opinion in Bakke focused on the text of Title VI. Instead,
both leapt almost immediately to its “voluminous legislative
history,” from which they proceeded to divine an implicit
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“congressional intent” to link the statute with the Equal Pro-
tection Clause. 438 U. S., at 284–285 (opinion of Powell, J.);
id., at 328–336 ( joint opinion of Brennan, White, Marshall,
and Blackmun, JJ.). Along the way, as Justice Stevens docu-
mented, both opinions did more than a little cherry-picking
from the legislative record. 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 frm rule against discrimination based on
race, both opinions proceeded to devise their own and very
different arrangements in the name of the Equal Protection
Clause.
The moves made in Bakke were not statutory interpreta-
tion. They were judicial improvisation. Under our Consti-
tution, judges have never been entitled to disregard the plain
terms of a valid congressional enactment based on surmise
about unenacted legislative intentions. Instead, it has al-
310 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
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Gorsuch, J., concurring

ways been this Court's duty “to give effect, if possible, to
every clause and word of a statute,” Montclair v. Ramsdell,
107 U. S. 147, 152 (1883), and of the Constitution itself, see
Knowlton v. Moore, 178 U. S. 41, 87 (1900). In this country,
“[o]nly the written word is the law, and all persons are enti-
tled to its beneft.” Bostock, 590 U. S., at –––. When
judges disregard these principles and enforce rules “inspired
only by extratextual sources and [their] own imaginations,”
they usurp a lawmaking function “reserved for the people's
representatives.” Id., at –––.
Today, the Court corrects course in its reading of the
Equal Protection Clause. With that, courts should now also
correct course in their treatment of Title VI. For years,
they have read a solo opinion in Bakke like a statute while
reading Title VI as a mere suggestion. A proper respect
for the law demands the opposite. Title VI bears independ-
ent force beyond the Equal Protection Clause. Nothing in
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it grants special deference to university administrators.
Nothing in it endorses racial discrimination to any degree
or for any purpose. Title VI is more consequential than
that.
*
In the aftermath of the Civil War, Congress took vital
steps toward realizing the promise of equality under the law.
As important as those initial efforts were, much work re-
mained to be done—and much remains today. But by any
measure, the Civil Rights Act of 1964 stands as a landmark
on this journey and one of the Nation's great triumphs. We
have no right to make a blank sheet of any of its provisions.
And when we look to the clear and powerful command Con-
gress set forth in that law, these cases all but resolve them-
selves. Under Title VI, it is never permissible “ `to say
“yes” to one person . . . but to say “no” to another person' ”
even in part “ `because of the color of his skin.' ” Bakke, 438
U. S., at 418 (opinion of Stevens, J.).
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Kavanaugh, J., concurring

Justice Kavanaugh, concurring.
I join the Court's opinion in full. I add this concurring
opinion to further explain why the Court's decision today is
consistent with and follows from the Court's equal protection
precedents, including the Court's precedents on race-based
affrmative action in higher education.
Ratifed in 1868 in the wake of the Civil War, the Equal
Protection Clause of the Fourteenth Amendment provides:
“No State shall. . . deny to any person within its jurisdiction
the equal protection of the laws.” U. S. Const., Amdt. 14,
§ 1. In accord with the Fourteenth Amendment's text and
history, this Court considers all racial classifcations to be
constitutionally suspect. See Grutter v. Bollinger, 539 U. S.
306, 326 (2003); Strauder v. West Virginia, 100 U. S. 303, 306–
308 (1880). As a result, the Court has long held that racial
classifcations by the government, including race-based af-
frmative action programs, are subject to strict judicial
Page Proof Pending Publication
scrutiny.
Under strict scrutiny, racial classifcations are consti-
tutionally prohibited unless they are narrowly tailored to
further a compelling governmental interest. Grutter, 539
U. S., at 326–327. Narrow tailoring requires courts to ex-
amine, among other things, whether a racial classifcation is
“necessary”—in other words, whether race-neutral alterna-
tives could adequately achieve the governmental interest.
Id., at 327, 339–340; Richmond v. J. A. Croson Co., 488 U. S.
469, 507 (1989).
Importantly, even if a racial classifcation is otherwise nar-
rowly tailored to further a compelling governmental inter-
est, a “deviation from the norm of equal treatment of all ra-
cial and ethnic groups” must be “a temporary matter”—or
stated otherwise, must be “limited in time.” Id., at 510 (plu-
rality opinion of O'Connor, J.); Grutter, 539 U. S., at 342.
In 1978, fve Members of this Court held that race-based
affrmative action in higher education did not violate the
Equal Protection Clause or Title VI of the Civil Rights Act,
312 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
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Kavanaugh, J., concurring

so long as universities used race only as a factor in admis-
sions decisions and did not employ quotas. See Regents of
Univ. of Cal. v. Bakke, 438 U. S. 265, 325–326 (1978) ( joint
opinion of Brennan, White, Marshall, and Blackmun, JJ.); id.,
at 287, 315–320 (opinion of Powell, J.). One Member of the
Court's fve-Justice majority, Justice Blackmun, added that
race-based affrmative action should exist only as a tem-
porary measure. He expressed hope that such programs
would be “unnecessary” and a “relic of the past” by 1988—
within 10 years “at the most,” in his words—although he
doubted that the goal could be achieved by then. Id., at 403
(opinion of Blackmun, J.).
In 2003, 25 years after Bakke, fve Members of this Court
again held that race-based affrmative action in higher educa-
tion did not violate the Equal Protection Clause or Title VI.
Grutter, 539 U. S., at 343. This time, however, the Court
also specifcally indicated—despite the reservations of Jus-
Page Proof Pending Publication
tice Ginsburg and Justice Breyer—that race-based affrma-
tive action in higher education would not be constitutionally
justifed after another 25 years, at least absent something
not “expect[ed].” Ibid. And various Members of the Court
wrote separate opinions explicitly referencing the Court's 25-
year limit.
• Justice O'Connor's opinion for the Court stated: “We ex-
pect that 25 years from now, the use of racial preferences
will no longer be necessary to further the interest ap-
proved today.” Ibid.
• Justice Thomas expressly concurred in “the Court's
holding that racial discrimination in higher education ad-
missions will be illegal in 25 years.” Id., at 351 (opinion
concurring in part and dissenting in part).
• Justice Thomas, joined here by Justice Scalia, reiter-
ated “the Court's holding” that race-based affrmative
action in higher education “will be unconstitutional in 25
years” and “that in 25 years the practices of the Law
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Kavanaugh, J., concurring

School will be illegal,” while also stating that “they are,
for the reasons I have given, illegal now.” Id., at 375–
376.
• Justice Kennedy referred to “the Court's pronouncement
that race-conscious admissions programs will be unnec-
essary 25 years from now.” Id., at 394 (dissenting
opinion).
• Justice Ginsburg, joined by Justice Breyer, acknowl-
edged the Court's 25-year limit but questioned it, writ-
ing that “one may hope, but not frmly forecast, that over
the next generation's span, progress toward nondiscrimi-
nation and genuinely equal opportunity will make it safe
to sunset affrmative action.” Id., at 346 (concurring
opinion).
In allowing race-based affrmative action in higher educa-
tion for another generation—and only for another genera-
tion—the Court in Grutter took into account competing con-
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siderations. The Court recognized the barriers that some
minority applicants to universities still faced as of 2003, not-
withstanding the progress made since Bakke. See Grutter,
539 U. S., at 343. The Court stressed, however, that “there
are serious problems of justice connected with the idea of
preference itself.” Id., at 341 (internal quotation marks
omitted). And the Court added that a “core purpose of the
Fourteenth Amendment was to do away with all governmen-
tally imposed discrimination based on race.” Ibid. (internal
quotation marks omitted).
The Grutter Court also emphasized the equal protection
principle that racial classifcations, even when otherwise per-
missible, must be a “ `temporary matter,' ” and “must be
limited in time.” Id., at 342 (quoting Croson, 488 U. S., at
510 (plurality opinion of O'Connor, J.)). The requirement of
a time limit “refects that racial classifcations, however com-
pelling their goals, are potentially so dangerous that they
may be employed no more broadly than the interest de-
314 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
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Kavanaugh, J., concurring

mands. Enshrining a permanent justifcation for racial pref-
erences would offend this fundamental equal protection prin-
ciple.” Grutter, 539 U. S., at 342.
Importantly, the Grutter Court saw “no reason to exempt
race-conscious admissions programs from the requirement
that all governmental use of race must have a logical end
point.” Ibid. The Court reasoned that the “requirement
that all race-conscious admissions programs have a termina-
tion point assures all citizens that the deviation from the
norm of equal treatment of all racial and ethnic groups is a
temporary matter, a measure taken in the service of the goal
of equality itself.” Ibid. (internal quotation marks and al-
teration omitted). The Court therefore concluded that race-
based affrmative action programs in higher education, like
other racial classifcations, must be “limited in time.” Ibid.
The Grutter Court's conclusion that race-based affrmative
action in higher education must be limited in time followed
Page Proof Pending Publication
not only from fundamental equal protection principles, but
also from this Court's equal protection precedents applying
those principles. Under those precedents, racial classifca-
tions may not continue indefnitely. For example, in the ele-
mentary and secondary school context after Brown v. Board
of Education, 347 U. S. 483 (1954), the Court authorized
race-based student assignments for several decades—but not
indefnitely into the future. See, e. g., Board of Ed. of Okla-
homa City Public Schools v. Dowell, 498 U. S. 237, 247–248
(1991); Pasadena City Bd. of Ed. v. Spangler, 427 U. S. 424,
433–434, 436 (1976); Swann v. Charlotte-Mecklenburg Bd. of
Ed., 402 U. S. 1, 31–32 (1971); cf. McDaniel v. Barresi, 402
U. S. 39, 41 (1971).
In those decisions, this Court ruled that the race-based
“injunctions entered in school desegregation cases” could not
“operate in perpetuity.” Dowell, 498 U. S., at 248. Consist-
ent with those decisions, the Grutter Court ruled that race-
based affrmative action in higher education likewise could
not operate in perpetuity.
Cite as: 600 U. S. 181 (2023) 315

Kavanaugh, J., concurring

As of 2003, when Grutter was decided, many race-based
affrmative action programs in higher education had been op-
erating for about 25 to 35 years. Pointing to the Court's
precedents requiring that racial classifcations be “tempo-
rary,” Croson, 488 U. S., at 510 (plurality opinion of O'Con-
nor, J.), the petitioner in Grutter, joined by the United
States, argued that race-based affrmative action in higher
education could continue no longer. See Brief for Petitioner
21–22, 30–31, 33, 42, Brief for United States 26–27, in Grutter
v. Bollinger, O. T. 2002, No. 02–241.
The Grutter Court rejected those arguments for ending
race-based affrmative action in higher education in 2003.
But in doing so, the Court struck a careful balance. The
Court ruled that narrowly tailored race-based affrmative ac-
tion in higher education could continue for another genera-
tion. But the Court also explicitly rejected any “permanent
justifcation for racial preferences,” and therefore ruled that
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race-based affrmative action in higher education could con-
tinue only for another generation. 539 U. S., at 342–343.
Harvard and North Carolina would prefer that the Court
now ignore or discard Grutter's 25-year limit on race-based
affrmative action in higher education, or treat it as a mere
aspiration. But the 25-year limit constituted an important
part of Justice O'Connor's nuanced opinion for the Court in
Grutter. Indeed, four of the separate opinions in Grutter
discussed the majority opinion's 25-year limit, which belies
any suggestion that the Court's reference to it was insignif-
cant or not carefully considered.
In short, the Court in Grutter expressly recognized the
serious issues raised by racial classifcations—particularly
permanent or long-term racial classifications. And the
Court “assure[d] all citizens” throughout America that “the
deviation from the norm of equal treatment” in higher edu-
cation could continue for another generation, and only for
another generation. Ibid. (internal quotation marks
omitted).
316 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
Kavanaugh, J., concurring

A generation has now passed since Grutter, and about 50
years have gone by since the era of Bakke and DeFunis v.
Odegaard, 416 U. S. 312 (1974), when race-based affrmative
action programs in higher education largely began. In light
of the Constitution's text, history, and precedent, the Court's
decision today appropriately respects and abides by Grut-
ter's explicit temporal limit on the use of race-based affrma-
tive action in higher education.*
Justice Sotomayor, Justice Kagan, and Justice Jack-
son disagree with the Court's decision. I respect their
views. They thoroughly recount the horrifc history of slav-
ery and Jim Crow in America, cf. Bakke, 438 U. S., at 395–
402 (opinion of Marshall, J.), as well as the continuing effects
of that history on African Americans today. And they are
of course correct that for the last fve decades, Bakke and
Grutter have allowed narrowly tailored race-based affrma-
tive action in higher education.
But I respectfully part ways with my dissenting col-
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leagues on the question of whether, under this Court's prece-
dents, race-based affrmative action in higher education may
extend indefnitely into the future. The dissents suggest
that the answer is yes. But this Court's precedents make
clear that the answer is no. See Grutter, 539 U. S., at 342–
343; Dowell, 498 U. S., at 247–248; Croson, 488 U. S., at 510
(plurality opinion of O'Connor, J.).
To reiterate: For about 50 years, many institutions of
higher education have employed race-based affrmative ac-

*The Court's decision will frst apply to the admissions process for the
college class of 2028, which is the next class to be admitted. Some might
have debated how to calculate Grutter's 25-year period—whether it ends
with admissions for the college class of 2028 or instead for the college class
of 2032. But neither Harvard nor North Carolina argued that Grutter's
25-year period ends with the class of 2032 rather than the class of 2028.
Indeed, notwithstanding the 25-year limit set forth in Grutter, neither
university embraced any temporal limit on race-based affrmative action
in higher education, or identifed any end date for its continued use of race
in admissions. Ante, at 221–225.
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Kavanaugh, J., concurring

tion programs. In the abstract, it might have been debat-
able how long those race-based admissions programs could
continue under the “temporary matter”/“limited in time”
equal protection principle recognized and applied by this
Court. Grutter, 539 U. S., at 342 (internal quotation marks
omitted); cf. Dowell, 498 U. S., at 247–248. But in 2003, the
Grutter Court applied that temporal equal protection princi-
ple and resolved the debate: The Court declared that race-
based affrmative action in higher education could continue
for another generation, and only for another generation, at
least absent something unexpected. Grutter, 539 U. S., at
343. As I have explained, the Court's pronouncement of a
25-year period—as both an extension of and an outer limit
to race-based affrmative action in higher education—formed
an important part of the carefully constructed Grutter deci-
sion. I would abide by that temporal limit rather than dis-
carding it, as today's dissents would do.
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To be clear, although progress has been made since Bakke
and Grutter, racial discrimination still occurs and the effects
of past racial discrimination still persist. Federal and state
civil rights laws serve to deter and provide remedies for
current acts of racial discrimination. And governments
and universities still “can, of course, act to undo the effects
of past discrimination in many permissible ways that do
not involve classifcation by race.” Croson, 488 U. S., at
526 (Scalia, J., concurring in judgment) (internal quotation
marks omitted); see id., at 509 (plurality opinion of O'Con-
nor, J.) (“the city has at its disposal a whole array of race-
neutral devices to increase the accessibility of city con-
tracting opportunities to small entrepreneurs of all races”);
ante, at 230–231; Brief for Petitioner 80–86; Reply Brief in
No. 20–1199, pp. 25–26; Reply Brief in No. 21–707,
pp. 23–26.
In sum, the Court's opinion today is consistent with and
follows from the Court's equal protection precedents, and I
join the Court's opinion in full.
318 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
Sotomayor, J., dissenting

Justice Sotomayor, with whom Justice Kagan and
Justice Jackson join,* dissenting.
The Equal Protection Clause of the Fourteenth Amend-
ment enshrines a guarantee of racial equality. The Court
long ago concluded that this guarantee can be enforced
through race-conscious means in a society that is not, and
has never been, colorblind. In Brown v. Board of Educa-
tion, 347 U. S. 483 (1954), the Court recognized the constitu-
tional necessity of racially integrated schools in light of the
harm inficted by segregation and the “importance of educa-
tion to our democratic society.” Id., at 492–495. For 45
years, the Court extended Brown's transformative legacy to
the context of higher education, allowing colleges and uni-
versities to consider race in a limited way and for the limited
purpose of promoting the important benefts of racial diver-
sity. This limited use of race has helped equalize educa-
tional opportunities for all students of every race and back-
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ground and has improved racial diversity on college
campuses. Although progress has been slow and imperfect,
race-conscious college admissions policies have advanced the
Constitution's guarantee of equality and have promoted
Brown's vision of a Nation with more inclusive schools.
Today, this Court stands in the way and rolls back decades
of precedent and momentous progress. It holds that race
can no longer be used in a limited way in college admissions
to achieve such critical benefts. In so holding, the Court
cements a superfcial rule of colorblindness as a constitu-
tional principle in an endemically segregated society where
race has always mattered and continues to matter. The
Court subverts the constitutional guarantee of equal protec-
tion by further entrenching racial inequality in education,
the very foundation of our democratic government and plu-

*Justice Jackson did not participate in the consideration or decision
of the case in No. 20–1199 and joins this opinion only as it applies to the
case in No. 21–707.
Cite as: 600 U. S. 181 (2023) 319

Sotomayor, J., dissenting

ralistic society. Because the Court's opinion is not grounded
in law or fact and contravenes the vision of equality embod-
ied in the Fourteenth Amendment, I dissent.

I
A
Equal educational opportunity is a prerequisite to achiev-
ing racial equality in our Nation. From its founding, the
United States was a new experiment in a republican form of
government where democratic participation and the capacity
to engage in self-rule were vital. At the same time, Ameri-
can society was structured around the proftable institution
that was slavery, which the original Constitution protected.
The Constitution initially limited the power of Congress to
restrict the slave trade, Art. I, § 9, cl. 1, accorded Southern
States additional electoral power by counting three-ffths
Page Proof Pending Publication
of their enslaved population in apportioning congressional
seats, § 2, cl. 3, and gave enslavers the right to retrieve en-
slaved people who escaped to free States, Art. IV, § 2, cl. 3.
Because a foundational pillar of slavery was the racist notion
that Black people are a subordinate class with intellectual
inferiority, Southern States sought to ensure slavery's lon-
gevity by prohibiting the education of Black people, whether
enslaved or free. See H. Williams, Self-Taught: African
American Education in Slavery and Freedom 7, 203–213
(2005) (Self-Taught). Thus, from this Nation's birth, the
freedom to learn was neither colorblind nor equal.
With time, and at the tremendous cost of the Civil War,
abolition came. More than two centuries after the frst Afri-
can enslaved persons were forcibly brought to our shores,
Congress adopted the Thirteenth Amendment to the Consti-
tution, which abolished “slavery” and “involuntary servitude,
except as a punishment for crime.” § 1. “Like all great his-
torical transformations,” emancipation was a movement,
“not a single event” owed to any single individual, institu-
320 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
Sotomayor, J., dissenting

tion, or political party. E. Foner, The Second Founding 21,
51–54 (2019) (The Second Founding).
The fght for equal educational opportunity, however, was
a key driver. Literacy was an “instrument of resistance and
liberation. ” Self-Taught 8. Education “provided the
means to write a pass to freedom” and “to learn of abolition-
ist activities.” Id., at 7. It allowed enslaved Black people
“to disturb the power relations between master and slave,”
which “fused their desire for literacy with their desire for
freedom.” Ibid. Put simply, “[t]he very feeling of inferior-
ity which slavery forced upon [Black people] fathered an in-
tense desire to rise out of their condition by means of educa-
tion.” W. E. B. Du Bois, Black Reconstruction in America
1860–1880, p. 638 (1935); see J. Anderson, The Education of
Blacks in the South 1860–1935, p. 7 (1988). Black Americans
thus insisted, in the words of Frederick Douglass, “that in a
country governed by the people, like ours, education of the
Page Proof Pending Publication
youth of all classes is vital to its welfare, prosperity, and to
its existence.” Address to the People of the United States
(1883), in 4 P. Foner, The Life and Writings of Frederick
Douglass 386 (1955). Black people's yearning for freedom
of thought, and for a more perfect Union with educational
opportunity for all, played a crucial role during the Recon-
struction era.
Yet emancipation marked the beginning, not the end, of
that era. Abolition alone could not repair centuries of racial
subjugation. Following the Thirteenth Amendment's rati-
fcation, the Southern States replaced slavery with “a system
of `laws which imposed upon [Black people] onerous disabili-
ties and burdens, and curtailed their rights in the pursuit of
life, liberty, and property to such an extent that their free-
dom was of little value.' ” Regents of Univ. of Cal. v. Bakke,
438 U. S. 265, 390 (1978) (opinion of Marshall, J.) (quoting
Slaughter-House Cases, 16 Wall. 36, 70 (1873)). Those so-
called “Black Codes” discriminated against Black people on
Cite as: 600 U. S. 181 (2023) 321

Sotomayor, J., dissenting

the basis of race, regardless of whether they had been pre-
viously enslaved. See, e. g., 1866 N. C. Sess. Laws pp. 99, 102.
Moreover, the criminal punishment exception in the Thir-
teenth Amendment facilitated the creation of a new system
of forced labor in the South. Southern States expanded
their criminal laws, which in turn “permitted involuntary
servitude as a punishment” for convicted Black persons. D.
Blackmon, Slavery by Another Name: The Re-Enslavement
of Black Americans From the Civil War to World War II,
pp. 7, 53 (2009) (Slavery by Another Name). States re-
quired, for example, that Black people “sign a labor contract
to work for a white employer or face prosecution for va-
grancy.” The Second Founding 48. State laws then forced
Black convicted persons to labor in “plantations, mines, and
industries in the South.” Id., at 50. This system of free
forced labor provided tremendous benefts to Southern
whites and was designed to intimidate, subjugate, and con-
Page Proof Pending Publication
trol newly emancipated Black people. See Slavery by An-
other Name 5–6, 53. The Thirteenth Amendment, without
more, failed to equalize society.
Congress thus went further and embarked on months of
deliberation about additional Reconstruction laws. Those
efforts included the appointment of a Committee, the Joint
Committee on Reconstruction, “to inquire into the condition
of the Confederate States.” Report of the Joint Committee
on Reconstruction, S. Rep. No. 112, 39th Cong., 1st Sess.,
1 (1866) (hereinafter Joint Comm. Rep.). Among other
things, the Committee's Report to Congress documented the
“deep-seated prejudice” against emancipated Black people in
the Southern States and the lack of a “general disposition to
place the colored race, constituting at least two-ffths of the
population, upon terms even of civil equality.” Id., at 11.
In light of its fndings, the Committee proposed amending
the Constitution to secure the equality of “rights, civil and
political.” Id., at 7.
322 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
Sotomayor, J., dissenting

Congress acted on that recommendation and adopted the
Fourteenth Amendment. Proponents of the Amendment
declared that one of its key goals was to “protec[t] the black
man in his fundamental rights as a citizen with the same
shield which it throws over the white man.” Cong. Globe,
39th Cong., 1st Sess., 2766 (1866) (Cong. Globe) (statement of
Sen. Howard). That is, the Amendment sought “to secure
to a race recently emancipated, a race that through many
generations [was] held in slavery, all the civil rights that the
superior race enjoy.” Plessy v. Ferguson, 163 U. S. 537,
555–556 (1896) (Harlan, J., dissenting) (internal quotation
marks omitted).
To promote this goal, Congress enshrined a broad guaran-
tee of equality in the Equal Protection Clause of the Amend-
ment. That Clause commands that “[n]o State shall . . . deny
to any person within its jurisdiction the equal protection of
the laws.” Amdt. 14, § 1. Congress chose its words care-
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fully, opting for expansive language that focused on equal
protection and rejecting “proposals that would have made
the Constitution explicitly color-blind.” A. Kull, The Color-
Blind Constitution 69 (1992); see also, e. g., Cong. Globe 1287
(rejecting proposed language providing that “no State . . .
shall . . . recognize any distinction between citizens . . . on
account of race or color”). This choice makes it clear that
the Fourteenth Amendment does not impose a blanket ban
on race-conscious policies.
Simultaneously with the passage of the Fourteenth
Amendment, Congress enacted a number of race-conscious
laws to fulfll the Amendment's promise of equality, leaving
no doubt that the Equal Protection Clause permits consider-
ation of race to achieve its goal. One such law was the
Freedmen's Bureau Act, enacted in 1865 and then expanded
in 1866, which established a federal agency to provide cer-
tain benefts to refugees and newly emancipated freedmen.
See Act of Mar. 3, 1865, ch. 90, 13 Stat. 507; Act of July 16,
1866, ch. 200, 14 Stat. 173. For the Bureau, education “was
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Sotomayor, J., dissenting

the foundation upon which all efforts to assist the freedmen
rested.” E. Foner, Reconstruction: America's Unfnished
Revolution 1863–1877, p. 144 (1988). Consistent with that
view, the Bureau provided essential “funding for black edu-
cation during Reconstruction.” Id., at 97.
Black people were the targeted benefciaries of the Bu-
reau's programs, especially when it came to investments in
education in the wake of the Civil War. Each year sur-
rounding the passage of the Fourteenth Amendment, the Bu-
reau “educated approximately 100,000 students, nearly all of
them black,” and regardless of “degree of past disadvan-
tage.” E. Schnapper, Affrmative Action and the Legisla-
tive History of the Fourteenth Amendment, 71 Va. L. Rev.
753, 781 (1985). The Bureau also provided land and funding
to establish some of our Nation's Historically Black Colleges
and Universities (HBCUs). Ibid.; see also Brief for HBCU
Leaders et al. as Amici Curiae 13 (HBCU Brief). In 1867,
for example, the Bureau provided Howard University tens of
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thousands of dollars to buy property and construct its cam-
pus in our Nation's capital. 2 O. Howard, Autobiography
397–401 (1907). Howard University was designed to pro-
vide “special opportunities for a higher education to the
newly enfranchised of the south,” but it was available to
all Black people, “whatever may have been their previous
condition.” Bureau Refugees, Freedmen and Abandoned
Lands, Sixth Semi-Annual Report on Schools for Freedmen
60 (July 1, 1868).1 The Bureau also “expended a total of
$407,752.21 on black colleges, and only $3,000 on white col-
leges” from 1867 to 1870. Schnapper, 71 Va. L. Rev., at
781, n. 149.

1
As Justice Thomas acknowledges, the HBCUs, including Howard
University, account for a high proportion of Black college graduates.
Ante, at 285–286 (concurring opinion). That reality cannot be divorced
from the history of anti-Black discrimination that gave rise to the HBCUs
and the targeted work of the Freedmen's Bureau to help Black people
obtain a higher education. See HBCU Brief 13–15.
324 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
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Sotomayor, J., dissenting

Indeed, contemporaries understood that the Freedmen's
Bureau Act benefted Black people. Supporters defended
the law by stressing its race-conscious approach. See, e. g.,
Cong. Globe 632 (statement of Rep. Moulton) (“[T]he true
object of this bill is the amelioration of the condition of the
colored people”); Joint Comm. Rep. 11 (reporting that “the
Union men of the south” declared “with one voice” that the
Bureau's efforts “protect[ed] the colored people”). Oppo-
nents argued that the Act created harmful racial classifca-
tions that favored Black people and disfavored white Ameri-
cans. See, e. g., Cong. Globe 397 (statement of Sen. Willey)
(the Act makes “a distinction on account of color between
the two races”), 544 (statement of Rep. Taylor) (the Act is
“legislation for a particular class of the blacks to the exclu-
sion of all whites”), App. to Cong. Globe, 39th Cong., 1st
Sess., 69–70 (statement of Rep. Rousseau) (“You raise a spirit
of antagonism between the black race and the white race in
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our country, and the law-abiding will be powerless to control
it”). President Andrew Johnson vetoed the bill on the basis
that it provided benefts “to a particular class of citizens,” 6
Messages and Papers of the Presidents 1789–1897, p. 425 (J.
Richardson ed. 1897) (Messages and Papers) (A. Johnson to
House of Rep. July 16, 1866), but Congress overrode his veto.
Cong. Globe 3849–3850. Thus, rejecting those opponents'
objections, the same Reconstruction Congress that passed
the Fourteenth Amendment eschewed the concept of color-
blindness as suffcient to remedy inequality in education.
Congress also debated and passed the Civil Rights Act of
1866 contemporaneously with the Fourteenth Amendment.
The goal of that Act was to eradicate the Black Codes
enacted by Southern States following ratifcation of the Thir-
teenth Amendment. See id., at 474. Because the Black
Codes focused on race, not just slavery-related status, the
Civil Rights Act explicitly recognized that white citizens en-
joyed certain rights that non-white citizens did not. Section
1 of the Act provided that all persons “of every race and
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Sotomayor, J., dissenting

color . . . shall have the same right[s]” as those “enjoyed by
white citizens.” Act of Apr. 9, 1866, 14 Stat. 27. Similarly,
§ 2 established criminal penalties for subjecting racial minor-
ities to “different punishment . . . by reason of . . . color or
race, than is prescribed for the punishment of white per-
sons.” Ibid. In other words, the Act was not colorblind.
By using white citizens as a benchmark, the law classifed by
race and took account of the privileges enjoyed only by white
people. As he did with the Freedmen's Bureau Act, Presi-
dent Johnson vetoed the Civil Rights Act in part because he
viewed it as providing Black citizens with special treatment.
See Messages and Papers 408, 413 (the Act is designed “to
afford discriminating protection to colored persons,” and its
“distinction of race and color . . . operate[s] in favor of the
colored and against the white race”). Again, Congress over-
rode his veto. Cong. Globe 1861. In fact, Congress reen-
acted race-conscious language in the Civil Rights Act of 1870,
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two years after ratifcation of the Fourteenth Amendment,
see Act of May 31, 1870, § 16, 16 Stat. 144, where it remains
today, see 42 U. S. C. §§ 1981(a) and 1982 (Rev. Stat. §§ 1972,
1978).
Congress similarly appropriated federal dollars explicitly
and solely for the beneft of racial minorities. For example,
it appropriated money for “ `the relief of destitute colored
women and children,' ” without regard to prior enslavement.
Act of July 28, 1866, 14 Stat. 317. Several times during and
after the passage of the Fourteenth Amendment, Congress
also made special appropriations and adopted special protec-
tions for the bounty and prize money owed to “colored sol-
diers and sailors” of the Union Army. 14 Stat. 357, Res. No.
46, June 15, 1866; Act of Mar. 3, 1869, ch. 122, 15 Stat. 301;
Act of Mar. 3, 1873, 17 Stat. 528. In doing so, it rebuffed
objections to these measures as “class legislation” “applica-
ble to colored people and not . . . to the white people.” Cong.
Globe, 40th Cong., 1st Sess., 79 (1867) (statement of Sen.
Grimes). This history makes it “inconceivable” that race-
326 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
Sotomayor, J., dissenting

conscious college admissions are unconstitutional. Bakke,
438 U. S., at 398 (opinion of Marshall, J.).2
B
The Reconstruction era marked a transformational point
in the history of American democracy. Its vision of equal
opportunity leading to an equal society “was short-lived,”
however, “with the assistance of this Court.” Id., at 391.
In a series of decisions, the Court “sharply curtailed” the
“substantive protections” of the Reconstruction Amend-
ments and the Civil Rights Acts. Id., at 391–392 (collecting
cases). That endeavor culminated with the Court's shame-
ful decision in Plessy v. Ferguson, 163 U. S. 537 (1896), which
established that “equality of treatment” exists “when the
races are provided substantially equal facilities, even though
these facilities be separate.” Brown, 347 U. S., at 488.
Therefore, with this Court's approval, government-enforced
segregation and its concomitant destruction of equal oppor-
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tunity became the constitutional norm and infected every
sector of our society, from bathrooms to military units and,
crucially, schools. See Bakke, 438 U. S., at 393–394 (opinion
of Marshall, J.); see also generally R. Rothstein, The Color of
Law 17–176 (2017) (discussing various federal policies that
promoted racial segregation).
In a powerful dissent, Justice Harlan explained in Plessy
that the Louisiana law at issue, which authorized segregation
in railway carriages, perpetuated a “caste” system. 163
U. S., at 559–560. Although the State argued that the law
2
By the time the Fourteenth Amendment was ratifed by the States in
1868, “education had become a right of state citizenship in the constitution
of every readmitted state,” including in North Carolina. D. Black, The
Fundamental Right to Education, 94 Notre Dame L. Rev. 1059, 1089
(2019); see also Brief for Black Women Law Scholars as Amici Curiae 9
(“The herculean efforts of Black reformers, activists, and lawmakers dur-
ing the Reconstruction Era forever transformed State constitutional law;
today, thanks to the impact of their work, [nearly] every State constitution
contains language guaranteeing the right to public education”).
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Sotomayor, J., dissenting

“prescribe[d] a rule applicable alike to white and colored citi-
zens,” all knew that the law's purpose was not “to exclude
white persons from railroad cars occupied by blacks,” but “to
exclude colored people from coaches occupied by or assigned
to white persons.” Id., at 557. That is, the law “pro-
ceed[ed] on the ground that colored citizens are so inferior
and degraded that they cannot be allowed to sit in public
coaches occupied by white citizens.” Id., at 560. Although
“[t]he white race deems itself to be the dominant race . . .
in prestige, in achievements, in education, in wealth and in
power,” Justice Harlan explained, there is “no superior, dom-
inant, ruling class of citizens” in the eyes of the law. Id., at
559. In that context, Justice Harlan thus announced his
view that “[o]ur constitution is color-blind.” Ibid.
It was not until half a century later, in Brown, that the
Court honored the guarantee of equality in the Equal Protec-
tion Clause and Justice Harlan's vision of a Constitution that
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“neither knows nor tolerates classes among citizens.” 163
U. S., at 559. Considering the “effect[s] of segregation” and
the role of education “in the light of its full development and
its present place in American life throughout the Nation,”
Brown overruled Plessy. 347 U. S., at 492–495. The Brown
Court held that “[s]eparate educational facilities are inher-
ently unequal,” and that such racial segregation deprives
Black students “of the equal protection of the laws guaranteed
by the Fourteenth Amendment.” Id., at 494–495. The
Court thus ordered segregated schools to transition to a ra-
cially integrated system of public education “with all deliber-
ate speed,” “ordering the immediate admission of [Black chil-
dren] 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 sys-
tem wherein Black children receive inferior educational op-
328 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
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Sotomayor, J., dissenting

portunities “solely because of their race,” denoting “inferior-
ity as to their status in the community.” 347 U. S., at 494,
and n. 10. Moreover, because education is “the very founda-
tion 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 confrm that
the ultimate goal of that seminal decision was to achieve a
system of integrated schools that ensured racial equality of op-
portunity, 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 al-
Page Proof Pending Publication
lowed “every student, regardless of race, . . . `freely' [to]
choose the school he [would] attend,” was insuffcient to ef-
fectuate “the command of [Brown].” Id., at 437, 441–442.
That command, the Court explained, was that schools dis-
mantle “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 of the [`Black'] school to white
children” on a race-blind basis was not enough. Id., at 437.
Passively eliminating race classifcations did not suffce when
de facto segregation persisted. Id., at 440–442 (noting that
85% of Black children in the school system were still attend-
ing an all-Black school). Instead, the board was “clearly
charged with the affrmative 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. Affrmative steps, this Court held, are con-
stitutionally necessary when mere formal neutrality cannot
achieve Brown's promise of racial equality. See Green, 391
Cite as: 600 U. S. 181 (2023) 329

Sotomayor, J., dissenting

U. S., at 440–442; see also North Carolina Bd. of Ed. v.
Swann, 402 U. S. 43, 45–46 (1971) (holding that North Caro-
lina statute that forbade the use of race in school busing “ex-
ploits an apparently neutral form to control school assign-
ment 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 affrmative responsibility” to integrate); Keyes v.
School Dist. No. 1, Denver, 413 U. S. 189, 200 (1973) (“[T]he
State automatically assumes an affrmative duty” under
Brown to eliminate the vestiges of segregation).3
In so holding, this Court's post-Brown decisions rejected
arguments advanced by opponents of integration suggesting
that “restor[ing] race as a criterion in the operation of the
public schools” was at odds with “the Brown decisions.”
Page Proof Pending Publication
Brief for Respondents in Green v. School Bd. of New Kent
Cty., O. T. 1967, No. 695, p. 6 (Green Brief). Those oppo-
nents argued that Brown only required the admission of
Black students “to public schools on a racially nondiscrimina-
tory basis.” Green Brief 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 “man-

3
The majority suggests that “it required a Second Founding to undo”
programs that help ensure racial integration and therefore greater equal-
ity in education. Ante, at 230. At the risk of stating the blindingly obvi-
ous, 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. Sand-
ford, 19 How. 393, 405 (1857). Brown and its progeny recognized the need
to take affrmative, race-conscious steps to eliminate that system.
330 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
Sotomayor, J., dissenting

date” was colorblindness. Green Brief 17. This Court re-
jected 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 deci-
sion. Id., at 440. The ultimate goal is racial equality of
opportunity.
Those re jected arguments mirror the Court's opinion
today. The Court claims that Brown requires that students
be admitted “ `on a racially nondiscriminatory basis. ' ”
Ante, at 204. It distorts the dissent in Plessy to advance a
colorblindness theory. Ante, at 230; see also ante, at 307
(Gorsuch, J., concurring) (“[T]oday's decision wakes the ech-
oes of Justice John Marshall Harlan [in Plessy]”); ante, at 233
(Thomas, J., concurring) (same). The Court also invokes the
Brown litigators, relying on what the Brown “plaintiffs had
argued.” Ante, at 204; ante, at 264–265, 268 n. 7 (opinion of
Thomas, J.).
Page Proof Pending Publication
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 concep-
tion 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 admis-
sions 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 revi-
sionist history and an affront to the legendary life of Justice
Cite as: 600 U. S. 181 (2023) 331

Sotomayor, J., dissenting

Marshall, a great jurist who was a champion of true equal
opportunity, not rhetorical fourishes 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 fle, and each applicant re-
ceives individualized review as part of a holistic admissions
process. Id., at 316–318.
Since Bakke, the Court has reaffrmed 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 stu-
Page Proof Pending Publication
dent 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 admis-
sions “to remedy identifed discrimination” and that diver-
sity is “ `too open-ended, ill-defned, and indefnite to consti-
tute a compelling interest' ”).
Later, in the Fisher litigation, the Court twice reaffrmed
that a limited use of race in college admissions is consti-
tutionally permissible if it satisfes 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 Four-
teenth Amendment if it “is narrowly tailored to obtain the
educational benefts of diversity.” Id., at 314, 337. Several
years later, in Fisher v. University of Texas at Austin, 579
332 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
Sotomayor, J., dissenting

U. S. 365, 376 (2016) (Fisher II), the Court upheld the admis-
sions program at the University of Texas under this frame-
work. Id., at 380–388.
Bakke, Grutter, and Fisher are an extension of Brown's
legacy. Those decisions recognize that “ `experience lend[s]
support to the view that the contribution of diversity is sub-
stantial.' ” Grutter, 539 U. S., at 324 (quoting Bakke, 438
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 qualifed individuals of every
race and ethnicity” instill public confdence in the “legiti-
macy” and “integrity” of those institutions and the diverse
set of graduates that they cultivate. Id., at 332. That is
Page Proof Pending Publication
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 benefts of ra-
cial diversity and ensure that “the diffusion of knowledge
and opportunity” is available to students of all races. Id., at
328–333.
This compelling interest in student body diversity is
grounded not only in the Court's equal protection jurispru-
dence but also in principles of “academic freedom,” which
“ `long [have] been viewed as a special concern of the First
Amendment.' ” Id., at 324 (quoting Bakke, 438 U. S., at 312).
In light of “the important purpose of public education and
the expansive freedoms of speech and thought 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
Cite as: 600 U. S. 181 (2023) 333

Sotomayor, J., dissenting

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 reaffrmed in another school case, “learn-
ing 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); cf. Khorrami v. Ari-
zona, 598 U. S. –––, ––– (2022) (Gorsuch, J., dissenting from
denial of certiorari) (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
Page Proof Pending Publication
college admissions in service of the educational benefts that
fow from a diverse student body. From Brown to Fisher,
this Court's cases have sought to equalize educational oppor-
tunity 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 319–
333, 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 specifcally, for Harvard and the Uni-
334 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
Sotomayor, J., dissenting

versity of North Carolina (UNC), two institutions with a
long history of racial exclusion. Ignoring race will not
equalize a society that is racially unequal. What was true in
the 1860s, and again in 1954, is true today: Equality requires
acknowledgment of inequality.

1
After more than a century of government policies enforc-
ing racial segregation by law, society remains highly segre-
gated. About half of all Latino and Black students attend
a racially homogeneous school with at least 75% minority
student enrollment.4 The share of intensely segregated mi-
nority schools (i. e., schools that enroll 90% to 100% racial
minorities) has sharply increased.5 To this day, the U. S.
Department of Justice continues to enter into desegregation
decrees with schools that have failed to “eliminat[e] the ves-
tiges of de jure segregation.” 6
Page Proof Pending Publication
Moreover, underrepresented minority students are more
likely to live in poverty and attend schools with a high con-
centration of poverty.7 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
4
See GAO, Report to the Chairman, Committee on Education and
Labor, House of Representatives, K–12 Education: Student Population
Has Signifcantly Diversifed, but Many Schools Remain Divided Along
Racial, Ethnic, and Economic Lines 13 (GAO–22–104737, June 2022) (here-
inafter GAO Report).
5
G. Orfeld, E. Frankenberg, & J. Ayscue, Harming Our Common Fu-
ture: America's Segregated Schools 65 Years After Brown 21 (2019).
6
E. g., Bennett v. Madison Cty. Bd. of Ed., No. 5:63–CV–613 (ND Ala.,
July 5, 2022), ECF Doc. 199, p. 19; id., at 6 (requiring school district to
ensure “the participation of black students” in advanced courses).
7
GAO Report 6, 13 (noting that 80% of predominantly Black and Latino
schools have at least 75% of their students eligible for free or reduced-
price lunch—a proxy for poverty).
Cite as: 600 U. S. 181 (2023) 335

Sotomayor, J., dissenting

(1973) (Marshall, J., dissenting) (noting school funding dispar-
ities that result from local property taxation).8 In turn, un-
derrepresented minorities are more likely to attend schools
with less qualifed teachers, less challenging curricula, lower
standardized test scores, and fewer extracurricular activities
and advanced placement courses.9 It is thus unsurprising
that there are achievement gaps along racial lines, even after
controlling for income differences.10
Systemic inequities disadvantaging underrepresented ra-
cial minorities exist beyond school resources. Students of
color, particularly Black students, are disproportionately dis-
ciplined or suspended, interrupting their academic progress
and increasing their risk of involvement with the crimi-
nal justice system.11 Underrepresented minorities are less
likely to have parents with a postsecondary education who
may be familiar with the college application process.12 Fur-
ther, low-income children of color are less likely to attend

Page
8
Proof
See also L. Pending
Clark, Barbed Wire Fences: ThePublication
Structural Violence of
Education Law, 89 U. Chi. L. Rev. 499, 502, 512–517 (2022); Albert Shanker
Institute, B. Baker, M. DiCarlo, & P. Greene, Segregation and School
Funding: How Housing Discrimination Reproduces Unequal Opportunity
17–19 (Apr. 2022).
9
See Brief for 25 Harvard Student and Alumni Organizations as Amici
Curiae 6–15 (collecting sources).
10
GAO Report 7; see also Brief for Council of the Great City Schools as
Amicus Curiae 11–14 (collecting sources).
11
See J. Okonofua & J. Eberhardt, Two Strikes: Race and the Disciplin-
ing of Young Students, 26 Psychol. Sci. 617 (2015) (a national survey
showed that “Black students are more than three times as likely to be
suspended or expelled as their White peers”); Brief for Youth Advocates
and Experts on Educational Access as Amici Curiae 14–15 (describing
investigation in North Carolina of a public school district, which found that
Black students were 6.1 times more likely to be suspended than white
students).
12
See, e. g., Dept. of Education, National Center for Education 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).
336 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
Sotomayor, J., dissenting

preschool and other early childhood education programs that
increase educational attainment.13 All of these interlocked
factors place underrepresented minorities multiple steps be-
hind 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 underrep-
resented racial minorities equal access to educational oppor-
tunities, and that racial disparities in public schooling have
increased in recent years, in violation of the State Constitu-
tion. 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 un-
derrepresented backgrounds even applying to” college, par-
ticularly elite universities. Brief for Massachusetts Insti-
tute of Technology et al. as Amici Curiae 32. “Because
Page Proof Pending Publication
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 tradi-
tional indicia of merit that provide a competitive edge in
the admissions process.” Brief for Harvard Student and
Alumni Organizations as Amici Curiae 16. Consistent with
this reality, Latino and Black students are less likely to en-
roll in institutions of higher education than their white
peers.14
Given the central role that education plays in breaking the
cycle of racial inequality, these structural barriers reinforce

13
R. Crosnoe, K. Purtell, P. Davis-Kean, A. Ansari, & A. Benner, The
Selection of Children From Low-Income Families into Preschool, 52 J. De-
velopmental Psychology 11 (2016); A. Kenly & A. Klein, Early Childhood
Experiences of Black Children in a Diverse Midwestern Suburb, 24 J. Afri-
can American Studies 130, 136 (2020).
14
Dept. of Education, National Center for Education, Institute of Educa-
tional Science, The Condition of Education 2022, p. 24 (2020) (fg. 16).
Cite as: 600 U. S. 181 (2023) 337

Sotomayor, J., dissenting

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,15 income levels,16 wealth and homeownership,17 and
healthcare access.18 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 dispari-
ties 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,
Page Proof Pending Publication
223 (1982). As I have explained before, only with eyes open
to this reality can the Court “carry out the guarantee of equal
protection.” Schuette, 572 U. S., at 381 (dissenting opinion).

2
Both UNC and Harvard have sordid legacies of racial ex-
clusion. Because “[c]ontext matters” when reviewing race-
conscious college admissions programs, Grutter, 539 U. S., at
327, this reality informs the exigency of respondents' current
admissions policies and their racial diversity goals.
15
ProQuest Statistical Abstract of the United States: 2023, p. 402 (Table
622) (noting Black and Latino adults are more likely to be unemployed).
16
Id., at 173 (Table 259).
17
A. McCargo & J. Choi, Closing the Gaps: Building Black Wealth
Through Homeownership (2020) (fg. 1).
18
Dept. of Commerce, Census Bureau, Health Insurance Coverage in the
United States: 2021, p. 9 (fg. 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).
338 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
Sotomayor, J., dissenting

i
For much of its history, UNC was a bastion of white su-
premacy. Its leadership included “slaveholders, the leaders
of the Ku Klux Klan, the central fgures in the white suprem-
acy campaigns of 1898 and 1900, and many of the State's most
ardent defenders of Jim Crow and race-based Social Darwin-
ism in the twentieth century.” 3 App. in No. 21–707, p. 1680.
The university excluded all people of color from its faculty
and student body, glorifed the institution of slavery, en-
forced its own Jim Crow regulations, and punished any dis-
sent from racial orthodoxy. Id., at 1681–1683. It resisted
racial integration after this Court's decision in Brown, and
was forced to integrate by court order in 1955. 3 App. 1685.
It took almost 10 more years for the frst Black woman to
enroll at the university in 1963. See Karen L. Parker Col-
lection, 1963–1966, UNC Wilson Special Collections Library.
Even then, the university admitted only a handful of under-
Page Proof Pending Publication
represented racial minorities, and those students suffered
constant harassment, humiliation, and isolation. 3 App.
1685. UNC offcials openly resisted racial integration well
into the 1980s, years after the youngest Member of this
Court was born.19 Id., at 1688–1690. During that period,
Black students faced racial epithets and stereotypes, re-
ceived hate mail, and encountered Ku Klux Klan rallies on
campus. 2 id., at 781–784;3 id., at 1689.

19
In 1979, prompted by lawsuits fled 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 offcials.
Ibid. The litigation ended in 1981, after the Reagan administration set-
tled with the State. See North Carolina v. Department of Education,
No. 79–217–CIV–5 (EDNC, July 17, 1981) (Consent Decree).
Cite as: 600 U. S. 181 (2023) 339

Sotomayor, J., dissenting

To this day, UNC's deep-seated legacy of racial subjuga-
tion continues to manifest itself in student life. Buildings
on campus still bear the names of members of the Ku Klux
Klan and other white supremacist leaders. Id., at 1683.
Students of color also continue to experience racial harass-
ment, isolation, and tokenism.20 Plus, the student body re-
mains predominantly white: approximately 72% of UNC stu-
dents identify as white, while only 8% identify as Black. Id.,
at 1647. These numbers do not refect 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 univer-
sities 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,
Page Proof Pending Publication
slavery and racial subordination were integral parts of the in-
stitution's funding, intellectual production, and campus life.
Harvard and its donors had extensive fnancial ties to, and
profted 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).
20
See 567 F. Supp. 3d 580, 594 (MDNC 2021) (campus climate survey
showing inter alia that “91 percent of students heard insensitive and dis-
paraging racial remarks made by other students”); 2 App. in No. 21–707,
p. 1037 (Black student testifying that a white student called him “the N
wor[d]” 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 describ-
ing that being “the only Latina” made it “hard to speak up” and made her
feel “foreign” and “an outsider”).
340 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
Sotomayor, J., dissenting

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 univer-
sity 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 aver-
age of three Black students enrolled at Harvard each year
during the fve decades between 1890 and 1940. Id., at 45.
Those Black students who managed to enroll at Harvard “ex-
celled academically, earning equal or better academic records
Page Proof Pending Publication
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 Col-
lege, 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, Up-
ending 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 suprem-
acy continue to be memorialized across campus through
“statues, buildings, professorships, student houses, and the
like.” Harvard Report 11. Black and Latino applicants ac-
count for only 20% of domestic applicants to Harvard each
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Sotomayor, J., dissenting

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 Orga-
nizations 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, Har-
vard has reported that “far too many black students at Har-
vard experience feelings of isolation and marginalization,” 3
id., at 1308, and that “student survey data show[ed] that only
half of Harvard undergraduates believe that the housing sys-
tem fosters exchanges between students of different back-
grounds,” id., at 1309.

* * *
These may be uncomfortable truths to some, but they are
truths nonetheless. “Institutions can and do change,” how-
ever, as societal and legal changes force them “to live up to
Page Proof Pending Publication
[their] highest ideals.” Harvard Report 56. It is against
this historical backdrop that Harvard and UNC have reck-
oned with their past and its lingering effects. Acknowledg-
ing the reality that race has always mattered and continues
to matter, these universities have established institutional
goals of diversity and inclusion. Consistent with equal pro-
tection principles and this Court's settled law, their policies
use race in a limited way with the goal of recruiting, admit-
ting, and enrolling underrepresented racial minorities to pur-
sue the well-documented benefts of racial integration in
education.
II
The Court today stands in the way of respondents' com-
mendable undertaking and entrenches racial inequality in
higher education. The majority opinion does so by turning
a blind eye to these truths and overruling decades of prece-
dent, “content for now to disguise” its ruling as an applica-
342 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
Sotomayor, J., dissenting

tion of “established law and move on.” Kennedy, 597 U. S.,
at ––– (Sotomayor, J., dissenting). As Justice Thomas
puts it, “Grutter is, for all intents and purposes, overruled.”
Ante, at 287.
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 goal-
posts, upsetting settled expectations and throwing admis-
sions programs nationwide into turmoil. In the end, how-
ever, 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 com-
ply with Title VI of the Civil Rights Act of 1964, 42 U. S. C.
§ 2000d et seq.21

21
The same standard that applies under the Equal Protection Clause
guides the Court's review under Title VI, as the majority correctly recog-
Page Proof Pending Publication
nizes. See ante, at 198, n. 2; see also Regents of Univ. of Cal. v. Bakke,
438 U. S. 265, 325 (1978) (Brennan, J., concurring). Justice Gorsuch ar-
gues that “Title VI bears independent force” and holds universities to an
even higher standard than the Equal Protection Clause. Ante, at 310.
Because no party advances Justice Gorsuch’s argument, see ante, at
198, 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). 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 car-
ries “enhanced force,” as it would be up to Congress to “correct any mis-
take it sees” with “our interpretive decisions.” Kimble v. Marvel Enter-
tainment, 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 302. The answer is simple: This Court plays “the
role of neutral arbiter of matters the parties present.” Greenlaw v.
United States, 554 U. S. 237, 243 (2008). Petitioner made a strategic liti-
gation 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).
Cite as: 600 U. S. 181 (2023) 343

Sotomayor, J., dissenting

A
Answering the question whether Harvard's and UNC's
policies survive strict scrutiny under settled law is straight-
forward, both because of the procedural posture of these
cases and because of the narrow scope of the issues pre-
sented by petitioner Students for Fair Admissions, Inc.
(SFFA).22
These cases arrived at this Court after two lengthy trials.
Harvard and UNC introduced dozens of fact witnesses, ex-
pert testimony, and documentary evidence in support of their
admissions programs. Brief for Petitioner 20, 40. SFFA,
by contrast, did not introduce a single fact witness and relied
on the testimony of two experts. Ibid.
After making detailed fndings of fact and conclusions of
law, the District Courts entered judgment in favor of Har-
vard and UNC. See 397 F. Supp. 3d 126, 133–206 (Mass.
2019) (Harvard I); 567 F. Supp. 3d 580, 588–667 (MDNC
Page Proof Pending Publication
2021) (UNC). The First Circuit affrmed in the Harvard
case, fnding “no error” in the District Court's thorough opin-
ion. 980 F. 3d 157, 204 (2020) (Harvard II). SFFA then
fled petitions for a writ of certiorari in both cases, which the
Court granted. 595 U. S. ––– (2022).23
The Court granted certiorari on three questions: (1)
whether the Court should overrule Bakke, Grutter, and
Fisher; or, alternatively, (2) whether UNC's admissions pro-
gram is narrowly tailored, and (3) whether Harvard's admis-

22
SFFA is a 501(c)(3) nonproft 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 Rich-
ard Fisher. See ibid.
23
Bypassing the Fourth Circuit's opportunity to review the District
Court's opinion in the UNC case, SFFA sought certiorari before 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.
344 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
Sotomayor, J., dissenting

sions 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 fndings 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 admis-
sions process because race-neutral alternatives would pro-
mote UNC's diversity objectives. That issue is so easily re-
solved 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.
Page Proof Pending Publication
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 prec-
edents 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
fulflling 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 fawed because
they rest on “ `terribly unrealistic' ” assumptions about the
applicant pools. Id., at 643–645, 647. For example, as to
Cite as: 600 U. S. 181 (2023) 345

Sotomayor, J., dissenting

one set of proposals, SFFA's expert “unrealistically as-
sumed” 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 “aban-
don its holistic approach” to college admissions, id., at 643–
645, n. 43, a result “in deep tension with the goal of educa-
tional diversity as this Court's cases have defned 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,24 for example, are based on a made-up and complicated
admissions index that requires UNC to “access . . . real-time
data for all high school students.” Ibid. UNC is then sup-
posed 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 percent-
age plans would even “nearly erase the Native American in-
coming class” at UNC. Id., at 646. The courts below cor-
Page Proof Pending Publication
rectly concluded that UNC is not required to adopt SFFA's
unrealistic proposals to satisfy strict scrutiny.25

24
Generally speaking, top percentage plans seek to enroll a percentage
of the graduating high school students with the highest academic creden-
tials. See, e. g., Fisher II, 579 U. S., at 373 (describing the University of
Texas' Top Ten Percent Plan).
25
SFFA and Justice Gorsuch reach beyond the factfnding 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 299–300. 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 377–379. In ad-
dition, UNC “already engages” in race-neutral efforts focused on socioeco-
nomic status, including providing “exceptional levels of fnancial 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 300, n. 4. That is precisely the point: SFFA's ar-
guments were not credited by the court below. “[W]e are a court of re-
346 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
Sotomayor, J., dissenting

2
Harvard's admissions program is also narrowly tailored
under settled law. SFFA argues that Harvard's program is
not narrowly tailored because the university “has workable
race-neutral alternatives,” “does not use race as a mere
plus,” and “engages in racial balancing.” Brief for Peti-
tioner 75–83. As the First Circuit concluded, there was “no
error” in the District Court's fndings on any of these issues.
Harvard II, 980 F. 3d, at 204.26
Like UNC, Harvard has already implemented many of
SFFA's proposals, such as increasing recruitment efforts and
fnancial aid for low-income students. Id., at 193. Also like
UNC, Harvard “carefully considered” other race-neutral
ways to achieve its diversity goals, but none of them are
“workable.” Id., at 193–194. SFFA's argument before this
Court is that Harvard should adopt a plan designed by
SFFA's expert for purposes of trial, which increases prefer-
Page Proof Pending Publication
ences 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 ap-
plicants 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 Gor-
such, ante, at 300, requires Harvard to “make sacrifces on
almost every dimension important to its admissions process,”
view, not of frst 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 fndings of
fact below. Ante, at 300, n. 4. There would be no need for the dissent
to do that if the majority stuck to reviewing the District Court's careful
factfnding with the deference it owes to the trial court. Because the
majority has made a different choice, the dissent responds.
26
SFFA also argues that Harvard discriminates against Asian American
students. Brief for Petitioner 72–75. As explained below, this claim
does not ft under Grutter's strict scrutiny framework, and the courts
below did not err in rejecting that claim. See infra, at 374–375.
Cite as: 600 U. S. 181 (2023) 347

Sotomayor, J., dissenting

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 oper-
ate 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 qualifed underrepresented minor-
Page Proof Pending Publication
ity applicant.” Gratz, 539 U. S., at 272 (quoting Bakke, 438
U. S., at 317).
That is precisely how Harvard's program operates. In re-
cent years, Harvard has received about 35,000 applications
for a class with about 1,600 seats. 980 F. 3d, at 165. The
admissions process is exceedingly competitive; it involves
six different application components. Those components in-
clude interviews with alumni and admissions offcers, as well
as consideration of a whole range of information, such as
grades, test scores, recommendation letters, and personal es-
says, by several committees. Id., at 165–166. Consistent
with that “individualized, holistic review process,” admis-
sions offcers 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 univer-
sity can admit. Id., at 170. To choose among those highly
qualifed candidates, Harvard considers “plus factors,” which
348 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
Sotomayor, J., dissenting

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 exclu-
sively,” and “does not award a fxed amount of points to ap-
plicants because of their race.” Id., at 190.27 Indeed, Har-
vard's admissions process is so competitive and the use of
race is so limited and fexible 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 aca-
demically promising applicants.” Id., at 191.
The courts below correctly rejected SFFA's view that Har-
Page Proof Pending Publication
vard's use of race is unconstitutional because it impacts over-
all Hispanic and Black student representation by 45%. See
Brief for Petitioner 79. That 45% fgure shows that elimi-
nating 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, elimi-
nating the use of race would have reduced the underrepre-
sented minority population by 72%, a much greater effect.

27
Justice Gorsuch suggests that only “applicants of certain races may
receive a `tip' in their favor.” Ante, at 295. To the extent Justice Gor-
such means that some races are not eligible to receive a tip based on their
race, there is no evidence in the record to support this statement. Har-
vard “does not explicitly prioritize any particular racial group over any
other and permits its admissions offcers to evaluate the racial and ethnic
identity of every student in the context of his or her background and cir-
cumstances.” Harvard I, 397 F. Supp. 3d 126, 190, n. 56 (Mass. 2019).
Cite as: 600 U. S. 181 (2023) 349

Sotomayor, J., dissenting

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 384.28
Finally, the courts below correctly concluded that Harvard
complies with this Court's repeated admonition that colleges
and universities cannot defne their diversity interest “as
`some specifed percentage of a particular group merely be-

28
Relying on a single footnote in the First Circuit's opinion, the Court
claims that Harvard's program is unconstitutional because it “has led to an
11.1% decrease in the number of Asian-Americans admitted to Harvard.”
Ante, at 218. The Court of Appeals, however, merely noted that the
United States, at the time represented by a different administration, ar-
gued that “absent the consideration of race, [Asian American] representa-
tion 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 prece-
Page Proof Pending Publication
dents 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 219. The Dis-
trict 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 ma-
jority'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 219, n. 6. As the District Court found, UNC
(like Harvard) “engages a highly individualized, holistic review of each
applicant's fle, which considers race fexibly as a `plus factor' as one among
many factors in its individualized consideration of each and every appli-
cant.” 567 F. Supp. 3d, at 662; see id., at 658 (fnding that UNC “rewards
different kinds of diversity, and evaluates a candidate within the context
of their lived experience”); id., at 659 (“The parties stipulated, and the
evidence shows, that readers evaluate applicants by taking into consider-
ation 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 defning feature of any individual application.” Id.,
at 662; see also infra, at 363.
350 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
Sotomayor, J., dissenting

cause 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 per-
fectly consistent with this Court's precedents. Id., at 170–
171, 189. Consultation of these reports, with no “specifc
number frmly in mind,” “does not transform [Harvard's]
program into a quota.” Grutter, 539 U. S., at 335–336.
Page Proof Pending Publication
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 fndings and concludes
that Harvard engages in racial balancing because its “focus
on numbers is obvious.” Ante, at 222. 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 factfnding 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
Cite as: 600 U. S. 181 (2023) 351

Sotomayor, J., dissenting

to summarize. Id., at 188. As the First Circuit con-
cluded, what the data actually show is that admissions have
increased for all racial minorities, including Asian Ameri-
can students, whose admissions numbers have “increased
roughly fve-fold since 1980 and roughly two-fold since 1990.”
Id., at 180, 188. The data also show that the racial shares
of admitted applicants fuctuate more than the correspond-
ing racial shares of total applicants, which is “the oppo-
site 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 admit-
ted applicants “varies relatively little in absolute terms
for [those classes] is unsurprising and refects the fact that
the racial makeup of Harvard's applicant pool also varies
very little over this period.” Id., at 188–189. Thus, prop-
erly understood, the data show that Harvard “does not uti-
lize quotas and does not engage in racial balancing.” Id.,
Page Proof Pending Publication
at 189.29

29
The majority does not dispute that it has handpicked data from a trun-
cated period, ignoring the broader context of that data and what the data
refect. Instead, the majority insists that its selected data prove that
Harvard's “precise racial preferences” “operate like clockwork.” Ante, at
222–223, 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, Har-
vard does not consider race in admissions at all. In other words, the
Court's inference that precise racial preferences must be the cause of rela-
tively constant racial shares of admitted students is specious.
352 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
Sotomayor, J., dissenting

III
The Court concludes that Harvard's and UNC's policies
are unconstitutional because they serve objectives that are
insuffciently measurable, employ racial categories that are
imprecise and overbroad, rely on racial stereotypes and dis-
advantage nonminority groups, and do not have an end point.
Ante, at 213–225, 230. In reaching this conclusion, the
Court claims those supposed issues with respondents' pro-
grams render the programs insuffciently “narrow” under the
strict scrutiny framework that the Court's precedents com-
mand. Ante, at 213. In reality, however, “the Court today
cuts through the kudzu” and overrules its “higher-education
precedents” following Bakke. Ante, at 307 (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
Page Proof Pending Publication
found in the dissenting opinions fled in [the] cases” the ma-
jority now overrules. Payne v. Tennessee, 501 U. S. 808, 846
(1991) (Marshall, J., dissenting); see, e. g., Grutter, 539 U. S.,
at 354 (Thomas, J., concurring in part and dissenting in part)
(“Unlike the majority, I seek to defne with precision the in-
terest 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) (diver-
sity 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 num-
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Sotomayor, J., dissenting

ber on the Court, return to fght old battles anew, it betrays
an unrestrained disregard for precedent. It fosters the Peo-
ple's suspicions that “bedrock principles are founded . . . in
the proclivities of individuals” on this Court, not in the law,
and it degrades “the integrity of our constitutional system
of government.” Vasquez v. Hillery, 474 U. S. 254, 265
(1986). Nowhere is the damage greater than in cases like
these that touch upon matters of representation and institu-
tional legitimacy.
The Court offers no justifcation, much less “a `special
justifcation,' ” for its costly endeavor. Dobbs v. Jackson
Women's Health Organization, 597 U. S. –––, ––– (2022)
( joint opinion of Breyer, Sotomayor, and Kagan, JJ., dis-
senting) (quoting Gamble v. United States, 587 U. S. –––, –––
(2019)). 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 cre-
Page Proof Pending Publication
ates 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); id., at ––– – ––– (Kavanaugh, J.,
concurring). At bottom, the six unelected Members of to-
day's majority upend the status quo based on their policy
preferences about what race in America should be like, but
is not, and their preferences for a veneer of colorblindness in
a society where race has always mattered and continues to
matter in fact and in law.
A
1
A limited use of race in college admissions is consistent
with the Fourteenth Amendment and this Court's broader
equal protection jurisprudence. The text and history of the
Fourteenth Amendment make clear that the Equal Protec-
tion Clause permits race-conscious measures. See supra, at
354 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
Sotomayor, J., dissenting

319–326. Consistent with that view, the Court has explicitly
held that “race-based action” is sometimes “within constitu-
tional 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).30
Tellingly, in sharp contrast with today's decision, the
Court has allowed the use of race when that use burdens
minority populations. In United States v. Brignoni-Ponce,
Page Proof Pending Publication
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 traffc stop based
on reasonable suspicion, but it remarked that “Mexican ap-
pearance” 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).31
The Court thus facilitated racial profling of Latinos as a law
enforcement tool and did not adopt a race-blind rule. The

30
In the context of policies that “beneft rather than burden the minor-
ity,” 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).
31
The Court's “dictum” that Mexican appearance can be one of many
factors rested on now-outdated quantitative premises. United States v.
Montero-Camargo, 208 F. 3d 1122, 1132 (CA9 2000).
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Sotomayor, J., dissenting

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 Mexi-
can 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 inde-
fensible 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 206–207. Indeed,
Page Proof Pending Publication
it agrees that a limited use of race is permissible in some
college admissions programs. In a footnote, the Court ex-
empts military academies from its ruling in light of “the po-
tentially distinct interests” they may present. Ante, at 213,
n. 4. To the extent the Court suggests national security in-
terests are “distinct,” those interests cannot explain the
Court's narrow exemption, as national security interests are
also implicated at civilian universities. See infra, at 379–
380. 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 213, 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 ad-
missions to further not just their academic goals, but also
their religious missions); see also Harvard II, 980 F. 3d, at
356 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
Sotomayor, J., dissenting

187, n. 24 (“[S]chools that consider race are diverse on nu-
merous dimensions, including in terms of religious affliation,
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 cat-
egorically prohibit the use of race in college admissions.
The concurring opinions also agree that the Constitution
tolerates some racial classifcations. Justice Gorsuch
agrees with the majority's conclusion that racial classifca-
tions are constitutionally permissible if they advance a com-
pelling interest in a narrowly tailored way. Ante, at 308.
Justice Kavanaugh, too, agrees that the Constitution per-
mits the use of race if it survives strict scrutiny. Ante, at
311.32 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 232. Like the majority opinion, Jus-
tice Thomas agrees that race can be used to remedy past
Page Proof Pending Publication
discrimination and “to equalize treatment against a concrete
baseline of government-imposed inequality.” Ante, at 248–
251. He also argues that race can be used if it satisfes strict
scrutiny more broadly, and he considers compelling interests
those that prevent anarchy, curb violence, and segregate
prisoners. Ante, at 255. Thus, although Justice Thomas
at times suggests that the Constitution only permits “di-
rectly remedial” measures that beneft “identifed victims of
discrimination,” ante, at 249, he agrees that the Constitution
tolerates a much wider range of race-conscious measures.
32
Justice Kavanaugh agrees that the effects from the legacy of slav-
ery and Jim Crow continue today, citing Justice Marshall's opinion in
Bakke. Ante, at 316 (citing 438 U. S., at 395–402). As explained above,
Justice Marshall's view was that Bakke covered only a portion of the Four-
teenth Amendment's sweeping reach, such that the Court's higher edu-
cation 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.
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Sotomayor, J., dissenting

In the end, when the Court speaks of a “colorblind” Consti-
tution, it cannot really mean it, for it is faced with a body of
law that recognizes that race-conscious measures are permis-
sible under the Equal Protection Clause. Instead, what the
Court actually lands on is an understanding of the Constitu-
tion 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 suffciently com-
pelling to justify race-conscious measures.
Overruling decades of precedent, today's newly consti-
tuted Court singles out the limited use of race in holistic
college admissions. It strikes at the heart of Bakke, Grut-
ter, and Fisher by holding that racial diversity is an “ines-
capably imponderable” objective that cannot justify race-
conscious affrmative action, ante, at 215, even though
respondents' objectives simply “mirror the `compelling inter-
est' this Court has approved” many times in the past.
Fisher II, 579 U. S., at 382; see, e. g., UNC, 567 F. Supp. 3d,
Page Proof Pending Publication
at 598 (“the [university's admissions policy] repeatedly cites
Supreme Court precedent as guideposts”).33 At bottom,
without any new factual or legal justifcation, 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
33
There is no dispute that respondents' compelling diversity objectives
are “substantial, long-standing, and well documented.” UNC, 567
F. Supp. 3d, at 655; Harvard II, 980 F. 3d, at 186–187. SFFA did not
dispute below that respondents have a compelling interest in diversity.
See id., at 185; Harvard I, 397 F. Supp. 3d, at 133; Tr. of Oral Arg. in No.
21–707, p. 121. And its expert agreed that valuable educational benefts
fow from diversity, including richer and deeper learning, reduced bias,
and more creative problem solving. 2 App. in No. 21–707, at 546. SFFA's
counsel also emphatically disclaimed the issue at trial. 2 App. in No. 20–
1199, p. 548 (“Diversity and its benefts are not on trial here”).
358 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
Sotomayor, J., dissenting

of precision to be deemed suffciently compelling. In fact,
this Court has recognized as compelling plenty of interests
that are equally or more amorphous, including the “intangi-
ble” interest in preserving “public confdence in judicial in-
tegrity,” an interest that “does not easily reduce to precise
defnition.” 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) (“[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 “com-
pelling 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 inter-
est”). Thus, although the Members of this majority pay lip
service to respondents' “commendable” and “worthy” racial
diversity goals, ante, at 214–215, they make a clear value judg-
Page Proof Pending Publication
ment today: Racial integration in higher education is not suf-
fciently important to them. “Today, the proclivities of indi-
viduals rule.” Dobbs, 597 U. S., at ––– (dissenting opinion).
The majority offers no response to any of this. Instead,
it attacks a straw man, arguing that the Court's cases recog-
nize that remedying the effects of “societal discrimination”
does not constitute a compelling interest. Ante, at 226–227.
Yet as the majority acknowledges, while Bakke rejected that
interest as insuffciently compelling, it upheld a limited use
of race in college admissions to promote the educational ben-
efts that fow from diversity. 438 U. S., at 311–315. It is
that narrower interest, which the Court has reaffrmed nu-
merous times since Bakke and as recently as 2016 in Fisher
II, see supra, at 331–332, 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
Cite as: 600 U. S. 181 (2023) 359

Sotomayor, J., dissenting

working. Lower courts have consistently applied them
without issue, as exemplifed by the opinions below and
SFFA's and the Court's inability to identify any split of au-
thority. Today, the Court replaces this settled framework
with a set of novel restraints that create troubling equal pro-
tection problems and share one common purpose: to make it
impossible to use race in a holistic way in college admissions,
where it is much needed.
1
The Court argues that Harvard's and UNC's programs
must end because they unfairly disadvantage some racial
groups. According to the Court, college admissions are a
“zero-sum” game and respondents' use of race unfairly “ad-
vantages” underrepresented minority students “at the ex-
pense of ” other students. Ante, at 218–219.
That is not the role race plays in holistic admissions. Con-
sistent with the Court's precedents, respondents' holistic re-
Page Proof Pending Publication
view 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, in-
cluding students who have different political ideologies and
academic interests, who have struggled with different types
of disabilities, who are from various socioeconomic back-
grounds, 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 benefts all stu-
dents. In fact, racial groups that are not underrepresented
tend to beneft disproportionately from such a system. Har-
vard's holistic system, for example, provides points to appli-
cants who qualify as “ALDC,” meaning “athletes, legacy ap-
360 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
Sotomayor, J., dissenting

plicants, applicants on the Dean's Interest List [primarily
relatives of donors], and children of faculty or staff.” Har-
vard II, 980 F. 3d, at 171 (noting also that “SFFA does not
challenge the admission of this large group”). ALDC appli-
cants are predominantly white: Around 67.8% are white,
11.4% are Asian American, 6% are Black, and 5.6% are Lat-
ino. Ibid. By contrast, only 40.3% of non-ALDC applicants
are white, 28.3% are Asian American, 11% are Black, and
12.6% are Latino. Ibid. Although “ALDC applicants make
up less than 5% of applicants to Harvard,” they constitute
“around 30% of the applicants admitted each year.” Ibid.
Similarly, because of achievement gaps that result from en-
trenched racial inequality in K–12 education, see infra, at
334–337, 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 dis-
Page Proof Pending Publication
favor underrepresented racial minorities. That is precisely
why underrepresented racial minorities remain underrepre-
sented. 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 unaccept-
able, the Court says, because racial groups that are not un-
derrepresented “would be admitted in greater numbers”
without these policies. Ante, at 219. Reduced to its sim-
plest 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
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Sotomayor, J., dissenting

against white Americans, the Court says, which requires the
courts and state actors to “pic[k] the right races to beneft.”
Ante, at 229.
Nothing in the Fourteenth Amendment or its history sup-
ports the Court's shocking proposition, which echoes argu-
ments made by opponents of Reconstruction-era laws and
this Court's decision in Brown. Supra, at 319–331. In a so-
ciety where opportunity is dispensed along racial lines, racial
equality cannot be achieved without making room for under-
represented groups that for far too long were denied admis-
sion through the force of law, including at Harvard and UNC.
Quite the opposite: A racially integrated vision of society, in
which institutions refect 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,
Page Proof Pending Publication
indivisible, is to be realized.” Grutter, 539 U. S., at 332.34
By singling out race, the Court imposes a special burden
on racial minorities for whom race is a crucial component of
their identity. Holistic admissions require “truly individual-
34
The Court suggests that promoting the Fourteenth Amendment's vi-
sion of equality is a “radical” claim of judicial power and the equivalent of
“pick[ing] winners and losers based on the color of their skin.” Ante, at
229–230. The law sometimes requires consideration of race to achieve
racial equality. Just like drawing district lines that comply with the Vot-
ing Rights Act may require consideration of race along with other demo-
graphic factors, achieving racial diversity in higher education requires
consideration of race along with “age, economic status, religious and politi-
cal persuasion, and a variety of other demographic factors.” Shaw v.
Reno, 509 U. S. 630, 646 (1993) (“[R]ace consciousness does not lead inevi-
tably 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 219. It simply enforced the
Equal Protection Clause by leveling the playing feld.
362 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
Sotomayor, J., dissenting

ized 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 Amend-
ment'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 testifed at
trial that racial self-identifcation was an important compo-
nent of their application because without it they would not
be able to present a full version of themselves. For exam-
ple, Rimel Mwamba, a Black UNC alumna, testifed 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
Page Proof Pending Publication
impacted [her] upbringing.” 2 App. in No. 21–707, at 1033.
Itzel Vasquez-Rodriguez, who identifes as Mexican-Ameri-
can of Cora descent, testifed that her ethnoracial identity is
a “core piece” of who she is and has impacted “every experi-
ence” she has had, such that she could not explain her “poten-
tial contributions to Harvard without any reference” to it.
2 App. in No. 20–1199, at 906, 908. Sally Chen, a Harvard
alumna who identifes as Chinese American, explained that
being the child of Chinese immigrants was “really fundamen-
tal to explaining who” she is. Id., at 968–969. Thang Diep,
a Harvard alumnus, testifed 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
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Sotomayor, J., dissenting

universities from considering a student's essay that explains
“how race affected [that student's] life.” Ante, at 230. This
supposed recognition that universities can, in some situa-
tions, consider race in application essays is nothing but an
attempt to put lipstick on a pig. The Court's opinion circum-
scribes universities' ability to consider race in any form by
meticulously gutting respondents' asserted diversity inter-
ests. See supra, at 357–358. 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-identifcation be tied to individual qualities, such
as “courage,” “leadership,” “unique ability,” and “determina-
tion,” only serves to perpetuate the false narrative that Har-
vard and UNC currently provide “preferences on the basis
of race alone.” Ante, at 220, 231; see also ante, at 219, n. 6
Page Proof Pending Publication
(claiming without support that “race alone . . . explains the
admissions decisions for hundreds if not thousands of appli-
cants”). The Court's precedents already require that uni-
versities take race into account holistically, in a limited way,
and based on the type of “individualized” and “fexible” as-
sessment 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) (de-
scribing how the dozens of application fles in the record
“uniformly show that, in line with Harvard's `whole-person'
admissions philosophy, Harvard's admissions offcers engage
in a highly nuanced assessment of each applicant's back-
ground and qualifcations”). 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
364 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
Sotomayor, J., dissenting

applying precedent but taking on the role of college adminis-
trators to decide what is better for society. The Court's
course refects 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 recog-
nition that Black Americans can offer different perspectives
than white people amounts to a “stereotype.” Ante, at 220.
It is not a stereotype to acknowledge the basic truth that
young people's experiences are shaded by a societal struc-
ture where race matters. Acknowledging that there is
something special about a student of color who graduates
valedictorian from a predominantly white school is not a ste-
reotype. 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'—instruct-
ing them never to run down the street; always keep your
Page Proof Pending Publication
hands where they can be seen; do not even think of talking
back to a stranger—all out of fear of how an offcer 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-identifcation. They occur because
of race. As Andrew Brennen, a UNC alumnus, testifed,
“running down the neighborhood . . . people don't see [him]
as someone that is relatively affuent; they see [him] as a
black man.” 2 App. in No. 21–707, at 951–952.
The absence of racial diversity, by contrast, actually con-
tributes to stereotyping. “[D]iminishing the force of such
stereotypes is both a crucial part of [respondents'] mission,
and one that [they] cannot accomplish with only token num-
bers of minority students.” Grutter, 539 U. S., at 333.
When there is an increase in underrepresented minority stu-
dents on campus, “racial stereotypes lose their force” be-
cause diversity allows students to “learn there is no `minor-
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Sotomayor, J., dissenting

ity viewpoint' but rather a variety of viewpoints among mi-
nority students.” Id., at 319–320. By preventing respond-
ents from achieving their diversity objectives, it is the
Court's opinion that facilitates stereotyping on American col-
lege campuses.
To be clear, today's decision leaves intact holistic college
admissions and recruitment efforts that seek to enroll di-
verse classes without using racial classifcations. Universi-
ties 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 frst-generation college applicants or who
speak multiple languages, for example. Those factors are
not “interchangeable” with race. UNC, 567 F. Supp. 3d, at
643; see, e. g., 2 App. in No. 21–707, at 975–976 (Laura Or-
Page Proof Pending Publication
nelas, a UNC alumna, testifying that her Latina identity, so-
cioeconomic status, and frst-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 diver-
sity, percentage plans, plans that increase community college
transfers, and plans that develop partnerships with disad-
vantaged high schools); see also ante, at 280–281, 284
(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 frst-generation college applicant,” “f-
nancial means,” and “generational inheritance or otherwise”);
ante, at 317 (Kavanaugh, J., concurring) (citing SFFA's
briefs and concluding that universities can use “race-neutral”
366 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
Sotomayor, J., dissenting

means); ante, at 300, 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 met-
rics alone. Using class rank or standardized test scores as
the only admissions criteria would severely undermine mul-
tidimensional 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 fnd herself just
outside of the top decile of her class.” Fisher II, 579 U. S.,
at 386. A myopic focus on academic ratings “does not lead
to a diverse student body.” Ibid.35
Page Proof Pending Publication
2
As noted above, this Court suggests that the use of race
in college admissions is unworkable because respondents' ob-
jectives are not suffciently “measurable,” “focused,” “con-
crete,” and “coherent.” Ante, at 214, 217, 230. How much
more precision is required or how universities are supposed
to meet the Court's measurability requirement, the Court's
opinion does not say. That is exactly the point. The Court
is not interested in crafting a workable framework that pro-
motes racial diversity on college campuses. Instead, it an-
nounces a requirement designed to ensure all race-conscious
35
Today's decision is likely to generate a plethora of litigation by disap-
pointed college applicants who think their credentials and personal quali-
ties should have secured them admission. By inviting those challenges,
the Court's opinion promotes chaos and incentivizes universities to convert
their admissions programs into infexible systems focused on mechanical
factors, which will harm all students.
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Sotomayor, J., dissenting

plans fail. Any increased level of precision runs the risk of
violating the Court's admonition that colleges and universi-
ties operate their race-conscious admissions policies with no
“ `specifed percentage[s]' ” and no “specifc number[s] frmly
in mind.” Grutter, 539 U. S., at 324, 335. Thus, the majori-
ty's holding puts schools in an untenable position. It creates
a legal framework where race-conscious plans must be meas-
ured with precision but also must not be measured with pre-
cision. 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 Con-
structors, 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 specifcity (for example, with a “focus on numbers”
or specifc “numerical commitment”), their plans are uncon-
stitutional. Ante, at 222; see also ante, at 258 (Thomas, J.,
concurring) (“I highly doubt any [university] will be able to”
Page Proof Pending Publication
show a “measurable state interest”).

3
The Court also holds that Harvard's and UNC's race-
conscious programs are unconstitutional because they rely
on racial categories that are “imprecise,” “opaque,” and “ar-
bitrary.” Ante, at 216–217. To start, the racial categories
that the Court fnds troubling resemble those used across the
Federal Government for data collection, compliance report-
ing, and program administration purposes, including, for ex-
ample, by the U. S. Census Bureau. See, e. g., 62 Fed. Reg.
58786–58790 (1997). Surely, not all “ `federal grant-in-aid
benefts, drafting of legislation, urban and regional planning,
business planning, and academic and social studies' ” that fow
from census data collection, Department of Commerce v. New
York, 588 U. S. –––, ––– (2019), are constitutionally suspect.
The majority presumes that it knows better and appoints
itself as an expert on data collection methods, calling for a
368 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
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Sotomayor, J., dissenting

higher level of granularity to fx a supposed problem of over-
inclusiveness and underinclusiveness. Yet it does not iden-
tify 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 iden-
tity on her application); id., at 949 (student respondent testi-
fying he “wrote about [his] Vietnamese identity on [his] ap-
plication”). Notwithstanding this Court's confusion about
racial self-identifcation, neither students nor universities are
confused. There is no evidence that the racial categories
Page Proof Pending Publication
that respondents use are unworkable.36

4
Cherry-picking language from Grutter, the Court also
holds that Harvard's and UNC's race-conscious programs are
unconstitutional because they do not have a specifc expira-
tion date. Ante, at 221–225. This new durational require-
ment is also not grounded in law, facts, or common sense.
36
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 216; see also ante, at
291 (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 Ameri-
can' was coined in the late 1960s by Asian American activists—mostly
college students—to unify Asian ethnic groups that shared common expe-
riences of race-based violence and discrimination and to advocate for civil
rights and visibility.” Brief for Asian American Legal Defense and Edu-
cation Fund et al. as Amici Curiae 9 (AALDEF Brief).
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Sotomayor, J., dissenting

Grutter simply announced a general “expect[ation]” that
“the use of racial preferences [would] no longer be neces-
sary” in the future. 539 U. S., at 343. As even SFFA ac-
knowledges, 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 specifc “end point” for the use of race. Ante, at 225.
Justice Kavanaugh, for his part, suggests that Grutter it-
self automatically expires in 25 years, after either “the col-
lege class of 2028” or “the college class of 2032.” Ante, at
316, n. *. A faithful reading of this Court's precedents re-
veals that Grutter held nothing of the sort.
True, Grutter referred to “25 years,” but that arbitrary
number simply refected the time that had elapsed since the
Page Proof Pending Publication
Court “frst 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 vacuum,
as the Court suggests. Id., at 342. Rather than impose a
fxed expiration date, the Court tasked universities with the
responsibility of periodically assessing whether their race-
conscious programs “are still necessary.” Ibid. Grutter of-
fered as examples sunset provisions, periodic reviews, and
experimenting with “race-neutral alternatives as they de-
velop.” Ibid. That is precisely how this Court has pre-
viously 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 refection re-
garding 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
370 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
Sotomayor, J., dissenting

343. That is, it is grounded in strict scrutiny. By contrast,
the Court's holding is based on the fction that racial inequal-
ity has a predictable cutoff date. Equality is an ongoing
project in a society where racial inequality persists. See
supra, at 333–341. 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 majori-
ty's strict deadline: Institutions cannot predict the future.
Speculating about a day when consideration of race will be-
come unnecessary is arbitrary at best and frivolous at worst.
There is no constitutional duty to engage in that type of shal-
low guesswork.37
Harvard and UNC engage in the ongoing review that the
Court's precedents demand. They “use [their] data to scru-
tinize the fairness of [their] admissions program[s]; to assess
whether changing demographics have undermined the need
for a race-conscious policy; and to identify the effects, both
Page Proof Pending Publication
positive and negative, of the affrmative-action measures
[they] dee[m] necessary.” Fisher II, 579 U. S., at 388. The
Court holds, however, that respondents' attention to num-
bers amounts to unconstitutional racial balancing. Ante, at
221–223. But “ `[s]ome attention to numbers' ” is both neces-
sary and permissible. Grutter, 539 U. S., at 336 (quoting

37
Justice Kavanaugh's reading, in particular, is quite puzzling. Un-
like the majority, which concludes that respondents' programs should have
an end point, Justice Kavanaugh suggests that Grutter itself has an
expiration date. He agrees that racial inequality persists, ante, at 317,
but at the same time suggests that race-conscious affrmative action was
only necessary in “another generation,” ante, at 313. He attempts to analo-
gize expiration dates of court-ordered injunctions in desegregation cases,
ante, at 314, but an expiring injunction does not eliminate the underlying
constitutional principle. His musings about different college classes, ante,
at 316, n. *, are also entirely beside the point. Nothing in Grutter's analy-
sis 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.
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Sotomayor, J., dissenting

Bakke, 438 U. S., at 323). Universities cannot blindly oper-
ate their limited race-conscious programs without regard for
any quantitative information. “Increasing minority enroll-
ment [is] instrumental to th[e] educational benefts” that re-
spondents 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 under-
represented 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 argu-
ments for why race-conscious college admissions policies sup-
posedly “burden” racial minorities. Ante, at 268. None of
them has any merit.
He frst renews his argument that the use of race in holis-
Page Proof Pending Publication
tic 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” ad-
vanced by the handful of authors upon whom Justice
Thomas relies, ante, at 269–270, have “major methodological
faws,” 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 edu-
cational institutions on student outcomes, and have found,
among other things, that attending a more selective school
is associated with higher graduation rates and higher earn-
ings for [underrepresented minority] students—conclusions
directly contrary to mismatch.” Id., at 7–9 (collecting stud-
372 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
Sotomayor, J., dissenting

ies). 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 hav-
ing 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 270, n. 8. That article, however, explains
that studies supporting the mismatch hypothesis “yield
misleading conclusions,” “overstate the amount of mis-
match,” “preclude one from drawing any concrete conclu-
sions,” and rely on methodologically fawed assumptions
that “lea[d] to an upwardly-biased estimate of mismatch.”
P. Arcidiacono & M. Lovenheim, Affrmative Action and the
Page Proof Pending Publication
Quality-Fit Trade-off, 54 J. Econ. Lit. 3, 17, 20 (2016). Nota-
bly, 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 affrmative 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 270 (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 Recon-
struction policies.” A. Onwuachi-Willig, E. Houh, & M.
Campbell, Cracking the Egg: Which Came First—Stigma or
Affrmative 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
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Sotomayor, J., dissenting

attached historically to different groups, regardless of af-
firmative action's existence”). Indeed, equating state-
sponsored segregation with race-conscious admissions poli-
cies that promote racial integration trivializes the harms of
segregation and offends Brown's transformative legacy.
School segregation “has a detrimental effect” on Black stu-
dents by “denoting the inferiority” of “their status in the
community” and by “ `depriv[ing] them of some of the bene-
fts they would receive in a racial[ly] integrated school sys-
tem.' ” 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 qualifed 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 increas-
Page Proof Pending Publication
ing affnity-based activities on college campuses. Ante, at
274–275. Not only is there no evidence of a causal connection
between the use of race in college admissions and the sup-
posed rise of those activities, but Justice Thomas points to
no evidence that affnity groups cause any harm. Affnity-
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 Prover-
bial 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 demonstrat-
ing that “affnity groups beget important academic and social
benefts” for racial minorities); 4 App. in No. 20–1199, at 1591
(Harvard Working Group on Diversity and Inclusion Report)
(noting that concerns “that culturally specifc spaces or
affnity-themed housing will isolate” student minorities are
374 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
Sotomayor, J., dissenting

misguided because those spaces allow students “to come to-
gether . . . 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 272–273. It is true that
SFFA “allege[d]” that Harvard discriminates against Asian
American students. Ante, at 272. Specifcally, SFFA ar-
gued that Harvard discriminates against Asian American ap-
plicants vis-à-vis white applicants through the use of the per-
sonal rating, an allegedly “highly subjective” component of
the admissions process that is “susceptible to stereotyping
and bias.” Harvard II, 980 F. 3d, at 196; see Brief for Pro-
fessors of Economics as Amici Curiae 24. It is also true,
however, that there was a lengthy trial to test those allega-
tions, which SFFA lost. Justice Thomas points to no legal
or factual error below, precisely because there is none.
To begin, this part of SFFA's discrimination claim does not
Page Proof Pending Publication
even fall under the strict scrutiny framework in Grutter and
its progeny, which concerns the use of racial classifcations.
The personal rating is a facially race-neutral component of
Harvard's admissions policy.38 Therefore, even assuming for
the sake of argument that Harvard engages in racial discrim-
ination 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 assess-
ing the credibility of fact witnesses and considering exten-
sive 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.

38
Before 2018, Harvard's admissions procedures were silent on the use
of race in connection with the personal rating. Harvard II, 980 F. 3d, at
169. Harvard later modifed its instructions to say explicitly that “ `an
applicant's race or ethnicity should not be considered in assigning the per-
sonal rating.' ” Ibid.
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Sotomayor, J., dissenting

There is no question that the Asian American community
continues to struggle against potent and dehumanizing ste-
reotypes in our society. It is precisely because racial dis-
crimination persists in our society, however, that the use of
race in college admissions to achieve racially diverse classes
is critical to improving cross-racial understanding and break-
ing down racial stereotypes. See supra, at 332. 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 signifcantly disadvantage at least some Asian Ameri-
can applicants,” Harvard I, 397 F. Supp. 3d, at 194. Race-
conscious holistic admissions that contextualize the racial
identity of each individual allow Asian American applicants
“who would be less likely to be admitted without a compre-
hensive understanding of their background” to explain “the
value of their unique background, heritage, and perspective.”
Id., at 195. Because the Asian American community is not
Page Proof Pending Publication
a monolith, race-conscious holistic admissions allow colleges
and universities to “consider the vast differences within
[that] community.” AALDEF Brief 4–14. Harvard's appli-
cation fles show that race-conscious holistic admissions allow
Harvard to “valu[e] the diversity of Asian American appli-
cants' experiences.” Harvard College Brief 23.
Moreover, the admission rates of Asian Americans at insti-
tutions with race-conscious admissions policies, including at
Harvard, have “been steadily increasing for decades.” Har-
vard II, 980 F. 3d, at 198.39 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
39
At Harvard, “Asian American applicants are accepted at the same rate
as other applicants and now make up more than 20% of Harvard's admitted
classes,” even though “only about 6% of the United States population is
Asian American.” Harvard I, 397 F. Supp. 3d, at 203.
376 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
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Sotomayor, J., dissenting

admissions beneft 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 moti-
vated Dred Scott and Plessy” are the ones who support race
conscious admissions. Ante, at 268. The plethora of young
students of color who testifed in favor of race-consciousness
proves otherwise. See supra, at 362; see also infra, at 379–
382 (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 deci-
sion testifed 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 –––
Page Proof Pending Publication
(dissenting opinion). Significant rights and expectations
will be affected by today's decision nonetheless. Those in-
terests supply “added force” in favor of stare decisis. Hil-
ton v. South Carolina Public Railways Comm'n, 502 U. S.
197, 202 (1991).
Students of all backgrounds have formed settled expecta-
tions that universities with race-conscious policies “will pro-
vide diverse, cross-cultural experiences that will better pre-
pare 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 reli-
ance interests because they have spent signifcant resources
in an effort to comply with this Court's precedents. “Uni-
versities have designed courses that draw on the benefts
of a diverse student body,” “hired faculty whose research is
enriched by the diversity of the student body,” and “pro-
moted their learning environments to prospective students
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Sotomayor, J., dissenting

who have enrolled based on the understanding that they
could obtain the benefts of diversity of all kinds.” Brief for
Respondent in No. 20–1199, at 40–41 (internal quotation
marks omitted). Universities also have “expended vast f-
nancial and other resources” in “training thousands of appli-
cation readers on how to faithfully apply this Court's guard-
rails on the use of race in admissions.” Brief for University
Respondents in No. 21–707, at 44. Yet today's decision
abruptly forces them “to fundamentally alter their admis-
sions 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 universi-
ties 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 –––
Page Proof Pending Publication
(dissenting opinion).
IV
The use of race in college admissions has had profound
consequences by increasing the enrollment of underrepre-
sented minorities on college campuses. This Court presup-
poses that segregation is a sin of the past and that race-
conscious college admissions have played no role in the prog-
ress society has made. The fact that affrmative 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 deci-
sion will be destructive. The two lengthy trials below sim-
ply confrmed what we already knew: Superfcial colorblind-
ness in a society that systematically segregates opportunity
will cause a sharp decline in the rates at which underrepre-
378 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
Sotomayor, J., dissenting

sented minority students enroll in our Nation's colleges and
universities, turning the clock back and undoing the slow yet
signifcant progress already achieved. See Schuette, 572
U. S., at 384–390 (Sotomayor, J., dissenting) (collecting sta-
tistics from States that have banned the use of race in college
admissions); see also Amherst Brief 13 (noting that elimi-
nating 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 pro-
hibit 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 Cali-
fornia as Amici Curiae 4, 9, 11–13. The decline was particu-
larly devastating at California's most selective campuses,
where the rates of admission of underrepresented groups
Page Proof Pending Publication
“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 stu-
dents in the freshman class dropped from 6.32% in 1995 to
3.37% in 1998. Id., at 12–13. Latino representation simi-
larly 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 “refect[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
preconstitutional 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-
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Sotomayor, J., dissenting

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 re-
spondents and students but also our institutions and demo-
cratic 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 Offce of the Direc-
tor of National Intelligence). The United States explains
Page Proof Pending Publication
that “the Nation's military strength and readiness depend
on a pipeline of offcers who are both highly qualifed and
racially diverse—and who have been educated in diverse en-
vironments 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 Har-
vard, that host Reserve Offcers' Training Corps (ROTC)
programs and educate students who go on to become off-
cers.” 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 per-
formance of the Nation's military” because it fueled “percep-
380 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
Sotomayor, J., dissenting

tions of racial/ethnic minorities serving as `cannon fodder'
for white military leaders.” Military Leadership Diversity
Comm'n, From Representation to Inclusion: Diversity Lead-
ership for the 21st-Century Military xvi, 15 (2011); see also,
e. g., R. Stillman, Racial Unrest in the Military: The Chal-
lenge and the Response, 34 Pub. Admin. Rev. 221, 221–222
(1974) (discussing other examples of racial unrest). Based
on “lessons from decades of battlefeld experience,” it has
been the “longstanding military judgment” across adminis-
trations 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 (in-
ternal quotation marks omitted). The majority recognizes
the compelling need for diversity in the military and the na-
tional security implications at stake, see ante, at 213, n. 4,
but it ends race-conscious college admissions at civilian uni-
Page Proof Pending Publication
versities implicating those interests anyway.
Amici also tell the Court that race-conscious college ad-
missions are critical for providing equitable and effective
public services. State and local governments require public
servants educated in diverse environments who can “iden-
tify, understand, and respond to perspectives” in “our in-
creasingly diverse communities.” Brief for Southern Gov-
ernors as Amici Curiae 5–8 (Southern Governors Brief).
Likewise, increasing the number of students from underrep-
resented backgrounds who join “the ranks of medical profes-
sionals” improves “healthcare access and health outcomes in
medically underserved communities.” Brief for Massachu-
setts 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 stu-
dent academic achievement in primary public schools. Brief
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Sotomayor, J., dissenting

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 inclu-
sive manner.” Brief for American Bar Association as Ami-
cus Curiae 18; see also Brief for Law Firm Antiracism Alli-
ance as Amicus Curiae 1, 6 (more than 300 law frms in all
50 States supporting race-conscious college admissions in
light of the “infuence and power” that lawyers wield “in the
American system of government”).
Examples of other industries and professions that beneft
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.
Page Proof Pending Publication
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 col-
laboration. Brief for Individual Scientists as Amici Curiae
13–14. It creates a more equitable and inclusive media in-
dustry that communicates diverse viewpoints and perspec-
tives. Brief for Multicultural Media, Telecom and Internet
Council, Inc., et al. as Amici Curiae 6. It also drives inno-
vation in an increasingly global science and technology in-
dustry. 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 beneft of powerful networks and the opportunity
for socioeconomic mobility. Admission to college is there-
fore often the entry ticket to top jobs in workplaces where
important decisions are made. The overwhelming majority
382 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
Sotomayor, J., dissenting

of Members of Congress have a college degree.40 So do most
business leaders.41 Indeed, many state and local leaders in
North Carolina attended college in the UNC system. See
Southern Governors Brief 8. More than half of judges on
the North Carolina Supreme Court and Court of Appeals
graduated from the UNC system, for example, and nearly a
third of the Governor's cabinet attended UNC. Ibid. A
less diverse pipeline to these top jobs accumulates wealth
and power unequally across racial lines, exacerbating racial
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 refect the diversity
of the People. A system of government that visibly lacks a
path to leadership open to every race cannot withstand scru-
tiny “in the eyes of the citizenry.” Grutter, 539 U. S., at 332.
“[G]ross disparity in representation” leads the public to won-
der whether they can ever belong in our Nation's institu-
Page Proof Pending Publication
tions, including this one, and whether those institutions work
for them. Tr. of Oral Arg. in No. 21–707, at 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)).42
40
K. Schaeffer, Pew Research Center, The Changing Face of Congress
in 8 Charts (Feb. 7, 2023).
41
See J. Martelli & P. Abels, The Education of a Leader: Educational
Credentials and Other Characteristics of Chief Executive Offcers, J. Educ.
for Bus. 216 (2010); see also J. Moody, Where the Top Fortune 500 CEOs
Attended College, U. S. News & World Report (June 16, 2021).
42
Racial inequality in the pipeline to this institution, too, will deepen.
See J. Fogel, M. Hoopes, & G. Liu, Law Clerk Selection and Diversity:
Insights From Fifty Sitting Judges of the Federal Courts of Appeals 7–8
Cite as: 600 U. S. 181 (2023) 383

Sotomayor, J., dissenting

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

* * *
True equality of educational opportunity in racially di-
verse schools is an essential component of the fabric of our
democratic society. It is an interest of the highest order
and a foundational requirement for the promotion of equal
protection under the law. Brown recognized that passive
Page Proof Pending Publication
race neutrality was inadequate to achieve the constitutional
guarantee of racial equality in a Nation where the effects of
segregation persist. In a society where race continues to
matter, there is no constitutional requirement that institu-
tions attempting to remedy their legacies of racial exclusion
must operate with a blindfold.
Today, this Court overrules decades of precedent and im-
poses a superfcial rule of race blindness on the Nation. The
devastating impact of this decision cannot be overstated.
The majority's vision of race neutrality will entrench racial
(2022) (noting that from 2005 to 2017, 85% of Supreme Court law clerks
were white, 9% were Asian American, 4% were Black, and 1.5% were
Latino, and about half of all clerks during that period graduated from two
law schools: Harvard and Yale); Brief for American Bar Association as
Amicus Curiae 25 (noting that more than 85% of lawyers, more than 70%
of Article III judges, and more than 80% of state judges in the United
States are white, even though white people represent about 60% of the
population).
384 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
Jackson, J., dissenting

segregation in higher education because racial inequality will
persist so long as it is ignored.
Notwithstanding this Court's actions, however, society's
progress toward equality cannot be permanently halted.
Diversity is now a fundamental American value, housed in
our varied and multicultural American community that only
continues to grow. The pursuit of racial diversity will go
on. Although the Court has stripped out almost all uses of
race in college admissions, universities can and should con-
tinue to use all available tools to meet society's needs for
diversity in education. Despite the Court's unjustifed exer-
cise 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).
Page Proof Pending Publication
Justice Jackson, with whom Justice Sotomayor and
Justice Kagan join, dissenting.*
Gulf-sized race-based gaps exist with respect to the health,
wealth, and well-being of American citizens. They were
created in the distant past, but have indisputably been
passed down to the present day through the 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 admis-
sions programs like the one that the University of North
Carolina (UNC) has operated, consistent with Grutter v. Bol-
linger, 539 U. S. 306 (2003), are a problem with respect to
achievement of that aspiration, rather than a viable solution

*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.
Cite as: 600 U. S. 181 (2023) 385

Jackson, J., dissenting

(as has long been evident to historians, sociologists, and poli-
cymakers 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
qualifcation. I write separately to expound upon the uni-
versal benefts of considering race in this context, in re-
sponse 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
Page Proof Pending Publication
that anyone is now victimized if a college considers whether
that legacy of discrimination has unequally advantaged its
applicants fails to acknowledge the well-documented “inter-
generational transmission of inequality” that still plagues
our citizenry.1
It is that inequality that admissions programs such as
UNC's help to address, to the beneft 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
1
M. Oliver & T. Shapiro, Black Wealth/White Wealth: A New Perspec-
tive on Racial Inequality 128 (1997) (Oliver & Shapiro) (emphasis deleted).
386 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
Jackson, J., dissenting

State and want great things for its people. Both want to
honor their family's legacy by attending the State's fagship
educational institution. John, however, would be the sev-
enth generation to graduate from UNC. He is White.
James would be the frst; he is Black. Does the race of these
applicants properly play a role in UNC's holistic merits-
based admissions process?
To answer that question, “a page of history is worth a vol-
ume of logic.” New York Trust Co. v. Eisner, 256 U. S. 345,
349 (1921). Many chapters of America's history appear nec-
essary, given the opinions that my colleagues in the majority
have issued in this case.
Justice Thurgood Marshall recounted the genesis:
“Three hundred and ffty 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.
Page Proof Pending Publication
It was unlawful to teach him to read; he could be sold
away from his family and friends at the whim of his mas-
ter; and killing or maiming him was not a crime. The
system of slavery brutalized and dehumanized both mas-
ter 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.” 2 After the war, Senator John Sherman defended
the proposed Fourteenth Amendment in a manner that en-
2
An Appeal to Congress for Impartial Suffrage, Atlantic Monthly (Jan.
1867), in 2 The Reconstruction Amendments: The Essential Documents
324 (K. Lash ed. 2021) (Lash).
Cite as: 600 U. S. 181 (2023) 387

Jackson, J., dissenting

capsulated our Reconstruction Framers' highest sentiments:
“We are bound by every obligation, by [Black Americans']
service on the battlefeld, 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.” 3
To uphold that promise, the Framers repudiated this
Court's holding in Dred Scott v. Sandford, 19 How. 393
(1857), by crafting Reconstruction Amendments (and associ-
ated legislation) that transformed our Constitution and soci-
ety.4 Even after this Second Founding—when the need to
right historical wrongs should have been clear beyond
cavil—opponents insisted that vindicating equality in this
manner slighted White Americans. So, when the Recon-
struction Congress passed a bill to secure all citizens “the
same [civil] right[s]” as “enjoyed by white citizens,” 14 Stat.
27, President Andrew Johnson vetoed it because it “discrimi-
nat[ed] . . . in favor of the negro.” 5
That attitude, and the Nation's associated retreat from Re-
Page Proof Pending Publication
construction, made prophecy out of Congressman Thaddeus
Stevens's fear that “those States will all . . . keep up this
discrimination, and crush to death the hated freedmen.” 6
And this Court facilitated that retrenchment.7 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.” 8 Thus, thirteen years pre-Plessy, in the Civil
Rights Cases, 109 U. S. 3 (1883), our predecessors on this

3
Speech of Sen. John Sherman (Sept. 28, 1866) (Sherman), in id., at 276;
see also W. E. B. Du Bois, Black Reconstruction in America 162 (1998)
(Du Bois).
4
See Sherman 276; M. Curtis, No State Shall Abridge: The Fourteenth
Amendment and the Bill of Rights 48, 71–75, 91, 173 (1986).
5
Message Accompanying Veto of the Civil Rights Bill (Mar. 27, 1866), in
Lash 145.
6
Speech Introducing the [Fourteenth] Amendment (May 8, 1866), in id.,
at 159; see Du Bois 670–710.
7
E. Foner, The Second Founding 125–167 (2019) (Foner).
8
Id., at 128.
388 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
Jackson, J., dissenting

Court invalidated Congress's attempt to enforce the Recon-
struction Amendments via the Civil Rights Act of 1875, lec-
turing 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.9 No
surprise, then, that freedmen leapt at the chance to control
their own labor and to build their own fnancial security.10
Still, White southerners often “simply refused to sell land to
blacks,” even when not selling was economically foolish.11
Page Proof Pending Publication
To bolster private exclusion, States sometimes passed laws
forbidding such sales.12 The inability to build wealth
through that most American of means forced Black people
into sharecropping roles, where they somehow always
tended to fnd themselves in debt to the landowner when the
growing season closed, with no hope of recourse against the
ever-present cooking of the books.13
Sharecropping is but one example of race-linked obstacles
that the law (and private parties) laid down to hinder the
9
M. Baradaran, The Color of Money: Black Banks and the Racial Wealth
Gap 9–11 (2017) (Baradaran).
10
Foner 179; see also Baradaran 15–16; I. Wilkerson, The Warmth of
Other Suns: The Epic Story of America's Great Migration 37 (2010)
(Wilkerson).
11
Baradaran 18.
12
Ibid.
13
R. Rothstein, The Color of Law: A Forgotten History of How Our
Government Segregated America 154 (2017) (Rothstein); Baradaran 33–
34; Wilkerson 53–55.
Cite as: 600 U. S. 181 (2023) 389

Jackson, J., dissenting

progress and prosperity of Black people. Vagrancy laws
criminalized free Black men who failed to work for White
landlords.14 Many States barred freedmen from hunting or
fshing to ensure that they could not live without entering
de facto reenslavement as sharecroppers.15 A cornucopia of
laws (e. g., banning hitchhiking, prohibiting encouraging a la-
borer to leave his employer, and penalizing those who
prompted Black southerners to migrate northward) ensured
that Black people could not freely seek better lives else-
where.16 And when statutes did not ensure compliance,
state-sanctioned (and private) violence did.17
Thus emerged Jim Crow—a system that was, as much as
anything else, a comprehensive scheme of economic exploita-
tion to replace the Black Codes, which themselves had re-
placed slavery's form of comprehensive economic exploi-
tation. 18 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
Page Proof Pending Publication
secure future, ” over the 1862 Homestead Act's three-
quarter-century tenure.19 Black people were exceedingly
unlikely to be allowed to share in those benefts, which by
one calculation may have advantaged approximately 46 mil-
lion Americans living today.20
14
Baradaran 20–21; Du Bois 173–179, 694–696, 698–699; R. Goluboff, The
Thirteenth Amendment and the Lost Origins of Civil Rights, 50 Duke L. J.
1609, 1656–1659 (2001) (Goluboff); Wilkerson 152 (noting persistence of this
practice “well into the 1940s”).
15
Baradaran 20.
16
Goluboff 1656–1659 (recounting presence of these practices well into
the 20th century); Wilkerson 162–163.
17
Rothstein 154.
18
C. Black, The Lawfulness of the Segregation Decisions, 69 Yale L. J.
421, 424 (1960); Foner 47–48; Du Bois 179, 696; Baradaran 38–39.
19
T. Shanks, The Homestead Act: A Major Asset-Building Policy in
American History, in Inclusion in the American Dream: Assets, Poverty,
and Public Policy 23–25 (M. Sherraden ed. 2005) (Shanks); see also Bara-
daran 18.
20
Shanks 32–37; Oliver & Shapiro 37–38.
390 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
Jackson, J., dissenting

Despite these barriers, Black people persisted. Their so-
called Great Migration northward accelerated during and
after the First World War.21 Like clockwork, American
cities responded with racially exclusionary zoning (and simi-
lar policies).22 As a result, Black migrants had to pay dis-
proportionately high prices for disproportionately subpar
housing.23 Nor did migration make it more likely for Black
people to access home ownership, as banks would not lend to
Black people, and in the rare cases banks would fund home
loans, exorbitant interest rates were charged.24 With Black
people still locked out of the Homestead Act giveaway, it is
no surprise that, when the Great Depression arrived, race-
based wealth, health, and opportunity gaps were the norm.25
Federal and State Governments' selective intervention
further exacerbated the disparities. Consider, for example,
the federal Home Owners' Loan Corporation (HOLC), cre-
ated in 1933.26 HOLC purchased mortgages threatened
with foreclosure and issued new, amortized mortgages in
Page Proof Pending Publication
their place.27 Not only did this mean that recipients of these
mortgages could gain equity while paying off the loan, suc-
cessful full payment would make the recipient a home-
owner.28 Ostensibly to identify (and avoid) the riskiest re-
cipients, the HOLC “created color-coded maps of every
metropolitan area in the nation.” 29 Green meant safe; red

21
Wilkerson 8–10; Rothstein 155.
22
Id., at 43–50; Baradaran 90–92.
23
Ibid.; Rothstein 172–173; Wilkerson 269–271.
24
Baradaran 90.
25
I. Katznelson, When Affrmative Action Was White: An Untold His-
tory of Racial Inequality in Twentieth-Century America 29–35 (2005)
(Katznelson).
26
D. Massey & N. Denton, American Apartheid: Segregation and the
Making of the Underclass 51–53 (1993); Oliver & Shapiro 16–18.
27
Rothstein 63.
28
Id., at 63–64.
29
Id., at 64; see Oliver & Shapiro 16–18; Baradaran 105.
Cite as: 600 U. S. 181 (2023) 391

Jackson, J., dissenting

meant risky. And, regardless of class, every neighborhood
with Black people earned the red designation.30
Similarly, consider the Federal Housing Administration
(FHA), created in 1934, which insured highly desirable bank
mortgages. Eligibility for this insurance required an FHA
appraisal of the property to ensure a low default risk.31 But,
nationwide, it was FHA's established policy to provide
“no guarantees for mortgages to African Americans, or
to whites who might lease to African Americans,” irre-
spective of creditworthiness. 32 No surprise, then, that
“[b]etween 1934 and 1968, 98 percent of FHA loans went to
white Americans,” with whole cities (ones that had a dispro-
portionately large number of Black people due to housing
segregation) sometimes being deemed ineligible for FHA in-
tervention on racial grounds.33 The Veterans Administra-
tion operated similarly.34
One more example: the Federal Home Loan Bank Board
“chartered, insured, and regulated savings and loan associa-
Page Proof Pending Publication
tions from the early years of the New Deal.” 35 But it did
“not oppose the denial of mortgages to African Americans
until 1961” (and even then opposed discrimination
ineffectively).36
The upshot of all this is that, due to government policy
choices, “[i]n the suburban-shaping years between 1930 and
1960, fewer than one percent of all mortgages in the nation
were issued to African Americans.” 37 Thus, based on their
race, Black people were “[l]ocked out of the greatest mass-
30
Rothstein 64.
31
Ibid.
32
Id., at 67.
33
Baradaran 108; see Rothstein 69–75.
34
Id., at 9, 13, 70.
35
Id., at 108.
36
Ibid.
37
R. Schragger, The Limits of Localism, 100 Mich. L. Rev. 371, 411,
n. 144 (2001); see also Rothstein 182–183.
392 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
Jackson, J., dissenting

based opportunity for wealth accumulation in American
history.” 38
For present purposes, it is signifcant that, in so excluding
Black people, government policies affrmatively operated—
one could say, affrmatively 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 benefts that fow to homeowners
and to the holders of other forms of capital that are hard to
obtain unless one already has assets.39
This discussion of how the existing gaps were formed is
merely illustrative, not exhaustive. I will pass over Con-
gress's repeated crafting of family-, worker-, and retiree-
protective legislation to channel benefts to White people,
thereby excluding Black Americans from what was other-
wise “a revolution in the status of most working Ameri-
cans.” 40 I will also skip how the G. I. Bill's “creation of . . .
middle-class America” (by giving $95 billion to veterans and
Page Proof Pending Publication
their families between 1944 and 1971) was “deliberately de-
signed to accommodate Jim Crow.” 41 So, too, will I bypass
how Black people were prevented from partaking in the con-
sumer credit market—a market that helped White people
who could access it build and protect wealth.42 Nor will
time and space permit my elaborating how local offcials' ra-
cial hostility meant that even those benefts that Black peo-
ple could formally obtain were unequally distributed along
racial lines.43 And I could not possibly discuss every way in
38
Oliver & Shapiro 18.
39
Id., at 43–44; Baradaran 109, 253–254; A. Dickerson, Shining a Bright
Light on the Color of Wealth, 120 Mich. L. Rev. 1085, 1100 (2022)
(Dickerson).
40
Katznelson 54; see id., at 22, 29, 42–48, 53–61; Rothstein 31, 155–156.
41
Katznelson 113–114; see id., at 113–141; see also, e. g., id., at 139–140
(Black veterans, North and South, were routinely denied loans that White
veterans received); Rothstein 167.
42
Baradaran 112–113.
43
Katznelson 22–23; Rothstein 167.
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Jackson, J., dissenting

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).44
The point is this: Given our history, the origin of persistent
race-linked gaps should be no mystery. It has never been a
defciency of Black Americans' desire or ability to, in Freder-
ick Douglass's words, “stand on [their] own legs.” 45 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.
Page Proof Pending Publication
The race-based gaps that frst developed centuries ago are
echoes from the past that still exist today. By all accounts,
they are still stark.
Start with wealth and income. Just four years ago, in
2019, Black families' median wealth was approximately
$24,000.46 For White families, that number was approxi-
mately eight times as much (about $188,000). 4 7 These
wealth disparities “exis[t] at every income and education
level,” so, “[o]n average, white families with college degrees
44
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.
45
What the Black Man Wants: An Address Delivered in Boston, Mas-
sachusetts, on 26 January 1865, in 4 The Frederick Douglass Papers 68
(J. Blassingame & J. McKivigan eds. 1991).
46
Dickerson 1086 (citing data from 2019 Federal Reserve Survey of Con-
sumer Finances); see also Rothstein 184 (reporting, in 2017, even lower
median-wealth number of $11,000).
47
Dickerson 1086; see also Rothstein 184 (reporting even larger relative
gap in 2017 of $134,000 to $11,000).
394 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
Jackson, J., dissenting

have over $300,000 more wealth than black families with col-
lege degrees.” 48 This disparity has also accelerated over
time—from a roughly $40,000 gap between White and Black
household median net worth in 1993 to a roughly $135,000
gap in 2019.49 Median income numbers from 2019 tell the
same story: $76,057 for White households, $98,174 for Asian
households, $56,113 for Latino households, and $45,438 for
Black households.50
These fnancial 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 own-
ership by approximately 25 percentage points.51 Moreover,
Black Americans' homes (relative to White Americans') con-
stitute a greater percentage of household wealth, yet tend to
be worth less, are subject to higher effective property taxes,
and generally lost more value in the Great Recession.52
From those markers of social and fnancial unwellness fow
others. In most state fagship higher educational institu-
Page Proof Pending Publication
tions, the percentage of Black undergraduates is lower than
the percentage of Black high school graduates in that State.53
Black Americans in their late twenties are about half as
48
Baradaran 249; see also Dickerson 1089–1090; Oliver & Shapiro 94–95,
100–101, 110–111, 197.
49
See Brief for National Academy of Education as Amicus Curiae 14–
15 (citing U. S. Census Bureau statistics).
50
Id., at 14 (citing U. S. Census Bureau statistics); Rothstein 184 (report-
ing similarly stark White/Black income gap numbers in 2017). Early re-
turns 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 Affrma-
tive Action 103 (2023) (Bollinger & Stone).
51
Id., at 87; Wealth of Two Nations 77–79.
52
Id., at 78, 89; Bollinger & Stone 94–95; Dickerson 1101.
53
Bollinger & Stone 99–100.
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Jackson, J., dissenting

likely as their White counterparts to have college degrees.54
And because lower family income and wealth force students
to borrow more, those Black students who do graduate col-
lege fnd themselves four years out with about $50,000
in student debt—nearly twice as much as their White
compatriots.55
As for postsecondary professional arenas, despite being
about 13% of the population, Black people make up only
about 5% of lawyers.56 Such disparity also appears in the
business realm: Of the roughly 1,800 chief executive offcers
to have appeared on the well-known Fortune 500 list, fewer
than 25 have been Black (as of 2022, only six are Black).57
Furthermore, as the COVID–19 pandemic raged, Black-
owned small businesses failed at dramatically higher rates
than White-owned small businesses, partly due to the dispro-
portionate denial of the forgivable loans needed to survive
the economic downturn.58
Health gaps track fnancial ones. When tested, Black chil-
Page Proof Pending Publication
dren have blood lead levels that are twice the rate of White
children—“irreversible” contamination working irremediable
harm on developing brains.59 Black (and Latino) children
with heart conditions are more likely to die than their White
counterparts.60 Race-linked mortality-rate disparity has
also persisted, and is highest among infants.61

54
Id., at 99, and n. 58.
55
Dickerson 1088; Bollinger & Stone 100, and n. 63.
56
ABA, Profle of the Legal Profession 33 (2020).
57
Bollinger & Stone 106; Brief for HR Policy Association as Amicus
Curiae 18–19.
58
Dickerson 1102.
59
Rothstein 230.
60
Brief for Association of American Medical Colleges et al. as Amici
Curiae 8 (AMC Brief).
61
C. Caraballo et al., Excess Mortality and Years of Potential Life Lost
Among the Black Population in the U. S., 1999–2020, 329 JAMA 1662, 1663,
1667 (May 16, 2023) (Caraballo).
396 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
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Jackson, J., dissenting

So, too, for adults: Black men are twice as likely to die
from prostate cancer as White men and have lower 5-year
cancer survival rates.62 Uterine cancer has spiked in recent
years among all women—but has spiked highest for Black
women, who die of uterine cancer at nearly twice the rate of
“any other racial or ethnic group.” 63 Black mothers are up
to four times more likely than White mothers to die as a
result of childbirth.64 And COVID killed Black Americans
at higher rates than White Americans.65
“Across the board, Black Americans experience the high-
est rates of obesity, hypertension, maternal mortality, infant
mortality, stroke, and asthma.” 66 These and other dispari-
ties—the predictable result of opportunity disparities—lead
to at least 50,000 excess deaths a year for Black Americans
vis-à-vis White Americans.67 That is 80 million excess years
of life lost from just 1999 through 2020.68
Amici tell us that “race-linked health inequities pervad[e]
nearly every index of human health” resulting “in an over-
Page Proof Pending Publication
all reduced life expectancy for racial and ethnic minorities
that cannot be explained by genetics.” 69 Meanwhile—tying
health and wealth together—while she lays dying, the typi-
cal Black American “pay[s] more for medical care and incur[s]
more medical debt.” 70
C
We return to John and James now, with history in hand.
It is hardly John's fault that he is the seventh generation to
62
Bollinger & Stone 101.
63
S. Whetstone et al., Health Disparities in Uterine Cancer: Report
From the Uterine Cancer Evidence Review Conference, 139 Obstetrics &
Gynecology 645, 647–648 (2022).
64
AMC Brief 8–9.
65
Bollinger & Stone 101; Caraballo 1663–1665, 1668.
66
Bollinger & Stone 101 (footnotes omitted).
67
Caraballo 1667.
68
Ibid.
69
AMC Brief 9.
70
Bollinger & Stone 100.
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Jackson, J., dissenting

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 frst. 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 uni-
versity's campus, James's family was enslaved and laboring
in North Carolina's felds. 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.71
Five generations ago, the North Carolina Red Shirts fnished
the job.72 Four (and three) generations ago, Jim Crow was
so entrenched in the State of North Carolina that UNC “en-
forced its own Jim Crow regulations.” 73 Two generations
ago, North Carolina's Governor still railed against “ `integra-
tion for integration's sake' ”—and UNC Black enrollment
was minuscule.74 So, at bare minimum, one generation ago,
Page Proof Pending Publication
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 fnd themselves today—is not only an affront
to the dignity of those students for whom race matters.75 It
also condemns our society to never escape the past that ex-
71
See Report on the Alleged Outrages in the Southern States, S. Rep.
No. 1, 42d Cong., 1st Sess., I–XXXII (1871).
72
See D. Tokaji, Realizing the Right To Vote: The Story of Thornburg
v. Gingles, in Election Law Stories 133–139 (J. Douglas & E. Mazo eds.
2016); see Foner xxii.
73
3 App. 1683.
74
Id., at 1687–1688.
75
See O. James, Valuing Identity, 102 Minn. L. Rev. 127, 162 (2017);
P. Karlan & D. Levinson, Why Voting Is Different, 84 Cal. L. Rev. 1201,
1217 (1996).
398 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
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Jackson, J., dissenting

plains 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 infor-
mation.76 But applicants are not required to submit demo-
Page Proof Pending Publication
graphic information like gender and race.77 UNC considers
whatever information each applicant submits using a nonex-
haustive list of 40 criteria grouped into eight categories: “ac-
ademic performance, academic program, standardized test-
ing, extracurricular activity, special talent, essay criteria,
background, and personal criteria.” 78
Drawing on those 40 criteria, a UNC staff member evalu-
ating John and James would consider, with respect to each,
his “engagement outside the classroom; persistence of com-
mitment; demonstrated capacity for leadership; contributions
to family, school, and community; work history; [and his]
unique or unusual interests.” 79 Relevant, too, would be his
“relative advantage or disadvantage, as indicated by family
income level, education history of family members, impact of
76
567 F. Supp. 3d 580, 595 (MDNC 2021).
77
Id., at 596; 1 App. 348; Decl. of J. Rosenberg in No. 1:14–cv–954
(MDNC, Jan. 18, 2019), ECF Doc. 154–7, ¶10 (Rosenberg).
78
1 App. 350; see also 3 id., at 1414–1415.
79
Id., at 1414.
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Jackson, J., dissenting

parents/guardians in the home, or formal education environ-
ment; experience of growing up in rural or center-city loca-
tions; [and his] status as child or step-child of Carolina
alumni.” 80 The list goes on. The process is holistic,
through and through.
So where does race come in? According to UNC's
admissions-policy document, reviewers may also consider
“the race or ethnicity of any student” (if that information is
provided) in light of UNC's interest in diversity.81 And, yes,
“the race or ethnicity of any student may—or may not—
receive a `plus' in the evaluation process depending on the
individual circumstances revealed in the student's applica-
tion.” 82 Stephen Farmer, the head of UNC's Offce of Un-
dergraduate Admissions, confrmed at trial (under oath) that
UNC's admissions process operates in this fashion.83
Thus, to be crystal clear: Every student who chooses to
disclose his or her race is eligible for such a race-linked plus,
Page Proof Pending Publication
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 automati-
cally results in an offer of admission.84 There are no race-

80
Id., at 1415.
81
Id., at 1416; see also 2 id., at 706; Rosenberg ¶22.
82
3 App. 1416 (emphasis added); see also 2 id., at 631–639.
83
567 F. Supp. 3d, at 591, 595; 2 App. 638 (Farmer, when asked how race
could “b[e] a potential plus” for “students other than underrepresented
minority students,” pointing to a North Carolinian applicant, originally
from Vietnam, who identifed as “Asian and Montagnard”); id., at 639
(Farmer stating that “the whole of [that student's] background was appeal-
ing to us when we evaluated her applicatio[n],” and noting how her “story
reveals sometimes how hard it is to separate race out from other things
that we know about a student. That was integral to that student's story.
It was part of our understanding of her, and it played a role in our deciding
to admit her”).
84
3 id., at 1416; Rosenberg ¶25.
400 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
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Jackson, J., dissenting

based quotas in UNC's holistic review process.85 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.86
More than that, every applicant is also eligible for a
diversity-linked plus (beyond race) more generally.87 And,
notably, UNC understands diversity broadly, including “so-
cioeconomic status, frst-generation college status . . . politi-
cal beliefs, religious beliefs . . . diversity of thoughts, experi-
ences, ideas, and talents.” 88
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).89 And race is considered along-
side any other factor that sheds light on what attributes ap-
Page Proof Pending Publication
plicants will bring to the campus and whether they are likely
to excel once there.90 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 re-
view process, a White student could receive a diversity plus
while a Black student might not.91

85
2 App. 631.
86
Id., at 636–637, 713.
87
3 id., at 1416; 2 id., at 699–700.
88
Id., at 699; see also Rosenberg ¶24.
89
2 App. 706, 708; 3 id., at 1415–1416.
90
2 id., at 706, 708; 3 id., at 1415–1416.
91
A reader might miss this because the majority does not bother to drill
down on how UNC's holistic admissions process operates. Perhaps that
explains its failure to apprehend (by reviewing the evidence presented at
trial) that everyone, no matter their race, is eligible for a diversity-linked
plus. Compare ante, at 197, and n. 1, with 3 App. 1416, and supra, at
this page. The majority also repeatedly mischaracterizes UNC's holistic
admissions-review process as a “race-based admissions system,” and in-
sists that UNC's program involves “separating students on the basis of
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Jackson, J., dissenting

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 advan-
tage of the opportunity to attend, and contribute to, this
prestigious institution, and thus merits admission.92 And
UNC has concluded that ferreting this out requires under-
standing the full person, which means taking seriously not
just SAT scores or whether the applicant plays the trumpet,
but also any way in which the applicant's race-linked experi-
ence bears on his capacity and merit. In this way, UNC is
able to value what it means for James, whose ancestors re-
ceived no race-based advantages, to make himself competi-
tive for admission to a fagship school nevertheless. More-
over, recognizing this aspect of James's story does not
preclude UNC from valuing John's legacy or any obstacles
that his story refects.
So, to repeat: UNC's program permits, but does not re-
quire, admissions offcers to value both John's and James's
Page Proof Pending Publication
love for their State, their high schools' rigor, and whether
either has overcome obstacles that are indicative of their
“persistence of commitment.” 93 It permits, but does not re-
quire, them to value John's identity as a child of UNC alumni
(or, perhaps, if things had turned out differently, as a frst-
race” and “pick[ing only certain] races to beneft.” Ante, at 197, and n. 1,
217, 229. These claims would be concerning if they had any basis in the
record. The majority appears to have misunderstood (or categorically re-
jected) the established fact that UNC treats race as merely one of the
many aspects of an applicant that, in the real world, matter to understand-
ing the whole person. Moreover, its holistic review process involves re-
viewing 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 appli-
cants to UNC, each of whom has potentially plus-conferring qualities that
a given SFFA member does not.
92
See 3 App. 1409, 1414, 1416.
93
Id., at 1414–1415.
402 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
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Jackson, J., dissenting

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 disad-
vantages that every applicant might have received by acci-
dent of birth plus all that has happened to them since. It
ensures a full accounting of everything that bears on the in-
dividual'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 con-
tribution 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
Page Proof Pending Publication
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 fnish ahead of any par-
ticular 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 defned
academic excellence) were denied admission than similarly
qualifed White and Asian American applicants.94 That, if
94
See 567 F. Supp. 3d, at 617, 619; 3 App. 1078–1080. The majority
cannot deny this factual fnding. 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 conclu-
sion. Ante, at 197, n. 1. I am inclined to stick with the District Court's
fndings over the majority's unauthenticated calculations. Even when the
majority's ad hoc statistical analysis is taken at face value, it hardly sup-
ports what the majority wishes to intimate: that Black students are being
admitted based on UNC's myopic focus on “race—and race alone.” Ante,
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Jackson, J., dissenting

nothing else, is indicative of a genuinely holistic process; it
is evidence that, both in theory and in practice, UNC recog-
nizes 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 fnish 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 opportu-
nity gap between applicants like John and James will inevita-
bly widen that gap, not narrow it. It will delay the day that
every American has an equal opportunity to thrive, regard-
less of race.
SFFA similarly asks us to consider how much longer UNC
will be able to justify considering race in its admissions proc-
Page Proof Pending Publication
ess. 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 justi-
fcation for admissions programs that account for race is in-
separable 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).

at 219, n. 6. As the District Court observed, if these Black students
“were largely defned in the admissions process by their race, one would
expect to fnd that every” such student “demonstrating academic excel-
lence . . . 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 qualifcations.” 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 proc-
ess actually works (a recurring theme in its opinion).
404 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
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Jackson, J., dissenting

To be sure, while the gaps are stubborn and pernicious,
Black people, and other minorities, have generally been
doing better.95 But those improvements have only been
made possible because institutions like UNC have been will-
ing to grapple forthrightly with the burdens of history.
SFFA's complaint about the “indefnite” use of race-conscious
admissions programs, then, is a non sequitur. These pro-
grams respond to deep-rooted, objectively measurable prob-
lems; their defnite 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 destruc-
tion is surely one of them. The ultimate goal of recognizing
James's full story and (potentially) admitting him to UNC is
to give him the necessary tools to contribute to closing the
equity gaps discussed in Part I, supra, so that he and his
progeny—and therefore all Americans—can compete with-
Page Proof Pending Publication
out 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 suc-
ceed 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.96 Equally
critical, UNC's program ensures that students who don't
share the same stories (like John and James) will interact in
classes and on campus, and will thereby come to understand

95
See Bollinger & Stone 86, 103.
96
See, e. g., Brief for University of Michigan as Amicus Curiae 6, 24;
Brief for President and Chancellors of University of California as Amici
Curiae 20–29; Brief for American Psychological Association et al. as
Amici Curiae 14–16, 21–23 (APA Brief).
Cite as: 600 U. S. 181 (2023) 405

Jackson, J., dissenting

each other's stories, which amici tell us improves cognitive
abilities and critical-thinking skills, reduces prejudice, and
better prepares students for postgraduate life.97
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 Car-
olina, it is critically important that UNC and other area in-
stitutions produce highly educated professionals of color.
Research shows that Black physicians are more likely to ac-
curately assess Black patients' pain tolerance and treat them
accordingly (including, for example, prescribing them appro-
priate amounts of pain medication).98 For high-risk Black
newborns, having a Black physician more than doubles the
likelihood that the baby will live, and not die.99 Studies also
confrm what common sense counsels: Closing wealth dispari-
ties through programs like UNC's—which, beyond diversify-
ing the medical profession, opens doors to every sort of
Page Proof Pending Publication
opportunity—helps address the aforementioned health dis-
parities (in the long run) as well.100
Do not miss the point that ensuring a diverse student body
in higher education helps everyone, not just those who,
due to their race, have directly inherited distinct disadvan-
tages 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 equal-

97
Id., at 14–20, 23–27.
98
AMC Brief 4, 14; see also Brief for American Federation of Teachers
as Amicus Curiae 10 (AFT Brief) (collecting further studies on the “tan-
gible benefts” of patients' access to doctors who look like them).
99
AMC Brief 4.
100
National Research Council, New Horizons in Health: An Integrative
Approach 100–111 (2001); Pollack et al., Should Health Studies Measure
Wealth? A Systematic Review, 33 Am. J. Preventative Med. 250, 252, 261–
263 (2007); see also Part I–B, supra.
406 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
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Jackson, J., dissenting

ity.101 The larger economy benefts, too: When it comes
down to the brass tacks of dollars and cents, ensuring diver-
sity will, if permitted to work, help save hundreds of billions
of dollars annually (by conservative estimates).102
Thus, we should be celebrating the fact that UNC, once a
stronghold of Jim Crow, has now come to understand this.
The fagship 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 gradua-
tion. Surely that is progress for a university that once en-
gaged in the kind of patently offensive race-dominated ad-
missions process that the majority decries.
With its holistic review process, UNC now treats race as
merely one aspect of an applicant's life, when race played a
totalizing, all-encompassing, and singularly determinative
role for applicants like James for most of this country's his-
tory: No matter what else was true about him, being Black
Page Proof Pending Publication
meant he had no shot at getting in (the ultimate race-linked
uneven playing feld). Holistic programs like UNC's refect
the reality that Black students have only relatively recently
been permitted to get into the admissions game at all. Such
programs also refect universities' clear-eyed optimism that,
one day, race will no longer matter.
So much upside. Universal benefts 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 stu-
dents who have thrived in the university's diverse learning

101
See APA Brief 14–20, 23–27 (collecting studies); AFT Brief 11–12
(same); Brief for National School Boards Association et al. as Amici Cu-
riae 6–11 (same); see also 567 F. Supp. 3d, at 592–593, 655–656 (factual
fndings in this case with respect to these benefts).
102
LaVeist et al., The Economic Burden of Racial, Ethnic, and Educa-
tional Health Inequities in the U. S., 329 JAMA 1682, 1683–1684, 1689, 1691
(May 16, 2023).
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Jackson, J., dissenting

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 benefcial 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 fatness. The majority and concurring opinions
rehearse this Court's idealistic vision of racial equality, from
Page Proof Pending Publication
Brown forward, with appropriate lament for past indiscre-
tions. See, e. g., ante, at 201–203. But the race-linked gaps
that the law (aided by this Court) previously founded and
fostered—which indisputably defne 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 fat. But deeming race irrelevant in law does not make
it so in life. And having so detached itself from this coun-
try'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 benefts from ignorance. Although formal race-
linked legal barriers are gone, race still matters to the lived
experiences of all Americans in innumerable ways, and to-
day's ruling makes things worse, not better. The best that
can be said of the majority's perspective is that it proceeds
(ostrich-like) from the hope that preventing consideration of
408 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
Jackson, J., dissenting

race will end racism. But if that is its motivation, the ma-
jority proceeds in vain. If the colleges of this country are
required to ignore a thing that matters, it will not just go
away. It will take longer for racism to leave us. And, ulti-
mately, ignoring race just makes it matter more.103
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 feld 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 col-
orblind world the majority wistfully touts much more diff-
cult to accomplish.

103
Justice Thomas’s prolonged attack, ante, at 278–283 (concurring
opinion), responds to a dissent I did not write in order to assail an admis-
sions program that is not the one UNC has crafted. He does not dispute
Page Proof Pending Publication
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 280. Justice Thomas’s opinion also demonstrates an obsession
with race consciousness that far outstrips my or UNC's holistic under-
standing that race can be a factor that affects applicants' unique life expe-
riences. How else can one explain his detection of “an organizing princi-
ple based on race,” a claim that our society is “fundamentally racist,” and
a desire for Black “victimhood” or racial “silo[s],” ante, at 278–280, 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 as-
pects of identity, supra, at 400? 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 Na-
tion's full potential. Worse still, by insisting that obvious truths be
ignored, they prevent our problem-solving institutions from directly ad-
dressing the real import and impact of “social racism” and “government-
imposed racism,” ante, at 283 (Thomas, J., concurring), thereby deterring
our collective progression toward becoming a society where race no
longer matters.
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Jackson, J., dissenting

* * *
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.' ” 104
Today's gaps exist because that freedom was denied far
longer than it was ever afforded. Therefore, as Justice So-
tomayor correctly and amply explains, UNC's holistic re-
view program pursues a righteous end—legitimate “ `be-
cause it is defned 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)).
Page Proof Pending Publication
Viewed from this perspective, beleaguered admissions pro-
grams such as UNC's are not pursuing a patently unfair,
ends-justifed ideal of a multiracial democracy at all. In-
stead, they are engaged in an earnest effort to secure a more
functional one. The admissions rubrics they have con-
structed now recognize that an individual's “merit”—his abil-
ity to succeed in an institute of higher learning and ulti-
mately 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 mo-
bility for long excluded and historically disempowered racial
groups. Our Nation's history more than justifes this course
of action. And our present reality indisputably establishes

104
Foner 179.
410 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
Jackson, J., dissenting

that such programs are still needed—for the general public
good—because after centuries of state-sanctioned (and en-
acted) race discrimination, the aforementioned intergenera-
tional race-based gaps in health, wealth, and well-being stub-
bornly persist.
Rather than leaving well enough alone, today, the majority
is having none of it. Turning back the clock (to a time be-
fore 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 Na-
tion'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.
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Time will reveal the results. Yet the Court's own mis-
steps are now both eternally memorialized and excruciat-
ingly plain. For one thing—based, apparently, on nothing
more than Justice Powell's initial say so—it drastically
discounts the primary reason that the racial-diversity ob-
jectives it excoriates are needed, consigning race-related
historical happenings to the Court's own analytical dust-
bin. Also, by latching onto arbitrary timelines and profess-
ing insecurity about missing metrics, the Court sidesteps
unrefuted proof of the compelling benefts of holistic admis-
sions 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 equal-
ity, 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 ham-
per the best judgments of our world-class educational in-
stitutions about who they need to bring onto their cam-
Cite as: 600 U. S. 181 (2023) 411

Jackson, J., dissenting

puses right now to beneft every American, no matter their
race.105
The Court has come to rest on the bottom-line conclusion
that racial diversity in higher education is only worth poten-
tially 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 awk-
ward place to land, in light of the history the majority opts
to ignore).106 It would be deeply unfortunate if the Equal
Protection Clause actually demanded this perverse, ahistor-
ical, 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.

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105
Justice Sotomayor has fully explained why the majority's analysis
is legally erroneous and how UNC's holistic review program is entirely
consistent with the Fourteenth Amendment. My goal here has been to
highlight the interests at stake and to show that holistic admissions pro-
grams that factor in race are warranted, just, and universally benefcial.
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 Com-
munity Schools v. Seattle School Dist. No. 1, 551 U. S. 701, 858 (2007)
(Breyer, J., dissenting). I fear that the Court's folly brings our Nation to
the brink of coming “full circle” once again. Regents of Univ. of Cal. v.
Bakke, 438 U. S. 265, 402 (1978) (opinion of Marshall, J.).
106
Compare ante, at 213, n. 4, with ante, at 213–221, and supra, at 386–
387, and nn. 2–3.
Reporter’s Note

The attached opinion has been revised to refect the usual publication
and citation style of the United States Reports. The revised pagination
makes available the offcial United States Reports citation in advance of
publication. The syllabus has been prepared by the Reporter of Decisions
for the convenience of the reader and constitutes no part of the opinion of
the Court. A list of counsel who argued or fled briefs in this case, and
who were members of the bar of this Court at the time this case was
argued, has been inserted following the syllabus. Other revisions may
include adjustments to formatting, captions, citation form, and any errant
punctuation. The following additional edits were made:
Page Proof Pending Publication
p. 229, line 13: “must make” is replaced with “defends by making”
p. 229, line 14: “to defend” is deleted
p. 230, line 11 from bottom: “(under seal); Students for Fair Admissions,
Inc. v. University of N. C. at Chapel Hill, No. 1:14–cv–954 (MDNC,
Feb. 5, 2021), ECF Doc. 246, pp. 14–15, ¶¶ 25–26 (summarizing sealed
material);” is inserted after “1741”
p. 274, line 5: “were” is inserted before “even”
p. 285, line 2 from bottom: “have” is replaced with “has”
p. 372, lines 18 and 19: “; see id., at 6” full citation is deleted and a period
is inserted.
p. 404, lines 17 and 18: “he, his progeny” is replaced with “he and his
progeny”

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

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