Supreme Court Syllabus and Opinions in SFFA v. Harvard/UNC (2023)

Students for Fair Admissions, Inc. v. President and Fellows of Harvard College & University of North Carolina (2023)

Syllabus Overview

  • Case Name: Students for Fair Admissions, Inc. v. President and Fellows of Harvard College (No. 20–1199) and Students for Fair Admissions, Inc. v. University of North Carolina et al. (No. 21–707).
  • Court: Supreme Court of the United States.
  • Argued Date: October 31, 2022.
  • Decided Date: June 29, 2023.
  • Issue: Whether the admissions systems used by Harvard College and the University of North Carolina (UNC) are lawful under the Equal Protection Clause of the Fourteenth Amendment.
  • Holding: Harvard's and UNC's admissions programs violate the Equal Protection Clause of the Fourteenth Amendment.
  • Judgments: No. 20–1199 (First Circuit) reversed; No. 21–707 (Fourth Circuit) reversed.

Background of the Cases

Harvard College Admissions Process
  • Selectivity: Highly selective, with tens of thousands of applicants annually and many fewer admitted.
  • Initial Screening by "First Reader":
    • Assigns numerical scores (1-6, with 1 being best) in six categories:
      1. Academic: "near-perfect standardized test scores and grades."
      2. Extracurricular: "truly unusual achievement."
      3. Athletic.
      4. School support.
      5. Personal: "outstanding" attributes like maturity, integrity, leadership, kindness, and courage.
      6. Overall: A composite of the other five ratings.
    • The "first reader" can and does consider the applicant's race when assigning the "overall" rating.
  • Admissions Subcommittees:
    • Review applications from a particular geographic area.
    • Make recommendations to the full admissions committee.
    • Take an applicant's race into account when making recommendations.
  • Full Admissions Committee (40 members):
    • Discusses the relative breakdown of applicants by race at the beginning of deliberations.
    • Goal: To ensure no "dramatic drop-off" in minority admissions from the prior class.
    • Each applicant is discussed one by one, and every member votes.
    • An applicant receiving a majority vote is tentatively accepted.
    • The racial composition of the tentative applicant pool is disclosed at the end of this stage.
  • "Lop" Stage (Final Stage):
    • Winnows the list of tentatively admitted students to arrive at the final class.
    • Applicants considered for cutting are placed on a "lop list" containing four pieces of information:
      1. Legacy status.
      2. Recruited athlete status.
      3. Financial aid eligibility.
      4. Race.
    • The full committee decides which students to "lop" and can and does take race into account.
  • Impact of Race: "Race is a determinative tip for a significant percentage of all admitted African American and Hispanic applicants" (Harvard District Court finding).
University of North Carolina (UNC) Admissions Process
  • Selectivity: "Highly selective," approximately 43,50043,500 applications for 4,2004,200 freshman spots annually.
  • Initial Review by Admissions Office Reader (approx. 4040 readers, 55 applications/hour):
    • Assigns numerical ratings to several categories.
    • Required to consider the applicant's race as a factor.
    • Other factors: academic performance/rigor, standardized test results, extracurriculars, essay quality, personal factors, student background.
    • Underrepresented minority students were "more likely to score [highly] on their personal ratings" but "rated lower by UNC readers on their academic program, academic performance, … extracurricular activities," and essays.
    • Readers make written recommendations and may provide a substantial "plus" based on applicants' race.
    • Most recommendations are provisionally final at this stage.
  • "School Group Review" by experienced staff committee:
    • Reviews every initial decision.
    • Approves or rejects recommendations.
    • May consider the applicant's race.
  • Impact of Race (SFFA's Expert Findings):
    • Over 80 ext{%} of Black applicants in the top academic decile admitted, compared to under 70 ext{%} of white and Asian applicants.
    • Second highest academic decile: 83 ext{%} of Black applicants admitted, compared to 58 ext{%} of white and 47 ext{%} of Asian applicants.
    • Third highest academic decile: 77 ext{%} of Black applicants admitted, compared to 48 ext{%} of white and 34 ext{%} of Asian applicants.
    • Race is a "determinative role for applicants" in 1.2 ext{%} of in-state and 5.1 ext{%} of out-of-state decisions (UNC expert testimony, confirmed by District Court).
Petitioner: Students for Fair Admissions (SFFA)
  • Nature: Nonprofit organization founded in 20142014.
  • Stated Purpose: "To defend human and civil rights secured by law, including the right of individuals to equal protection under the law."
  • Lawsuits: Filed separate lawsuits against Harvard and UNC.
    • Harvard: Claimed race-based admissions violated Title VI of the Civil Rights Act of 1964.
    • UNC: Claimed race-based admissions violated the Equal Protection Clause of the Fourteenth Amendment.
  • Lower Court Outcomes: Both admissions programs were found permissible under the Equal Protection Clause and Supreme Court precedents by District Courts after separate bench trials.
    • Harvard: First Circuit affirmed; Supreme Court granted certiorari.
    • UNC: Supreme Court granted certiorari before judgment.

Standing (SFFA) and Jurisdiction

Hunt v. Washington State Apple Advertising Comm'n Test
  • Requirements for Representational/Organizational Standing: An organization must demonstrate that:
    (a) its members would otherwise have standing to sue in their own right;
    (b) the interests it seeks to protect are germane to the organization's purpose; and
    (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.
  • Respondents' Argument: UNC argued SFFA lacked standing because it was not a "genuine" membership organization, claiming that under Hunt, a group qualifies only if controlled and funded by its members.
  • Court's Rejection of UNC's Argument:
    • Hunt's analysis of "indicia of membership" applied to a state agency that was not a traditional voluntary membership organization.
    • SFFA is "indisputably a voluntary membership organization with identifiable members who support its mission and whom SFFA represents in good faith" (according to the lower courts).
    • SFFA had 4747 voluntary members when it filed suit, and for UNC litigation, represented 44 members denied admission to UNC who supported its mission and had input on the case.
    • The Court explicitly stated that its cases do not require further scrutiny into how an organization operates when it has identified members and represents them in good faith.
  • Conclusion: SFFA satisfies Article III standing requirements, and the Court has jurisdiction.

Equal Protection Clause of the Fourteenth Amendment

Historical Context and Core Principle
  • Ratification: Proposed by Congress and ratified by the States after the Civil War.
  • Text: "No State shall… deny to any person… the equal protection of the laws."
  • Foundational Principle (Proponents' View): "not permit[ing] any distinctions of law based on race or color." Any "law which operates upon one man… should operate equally upon all."
  • Early Interpretations (e.g., Strauder v. West Virginia, 1880; Yick Wo v. Hopkins, 1886):
    • 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."
    • Equality principle applied universally, "without regard to any differences of race, of color, or of nationality."
Deviation from Core Commitments and Subsequent Correction
  • Plessy v. Ferguson (1896): The Court allowed the "separate but equal" regime, which led to state-mandated segregation for almost a century.
    • This decision "betrayed our commitment to 'equality before the law'" (Dobbs v. Jackson Women's Health Organization, 2022).
  • Efforts to Curtail Perniciousness: Some cases emphasized providing equal (even if separate) educational opportunities (Missouri ex rel. Gaines v. Canada, 1938).
  • Recognition of Inherent Folly: Even seemingly innocuous racial distinctions subordinated students (McLaurin v. Oklahoma State Regents for Higher Ed., 1950).
  • Re-emergence of Truth: By 19501950, the understanding was: "Separate cannot be equal."
  • Brown v. Board of Education (1954/1955):
    • Overturned Plessy's "separate but equal" doctrine.
    • Began invalidating all de jure racial discrimination by States and the Federal Government.
    • "The right to a public education 'must be made available to all on equal terms.'"
    • "Full compliance" required schools to admit students "on a racially nondiscriminatory basis."
    • Declared the "fundamental principle that racial discrimination in public education is unconstitutional."
  • Extension of Brown's Principle: Applied to other areas:
    • Busing (Gayle v. Browder, 1956).
    • Public beaches/bathhouses (Mayor and City Council of Baltimore v. Dawson, 1955).
    • Antimiscegenation laws (Loving v. Virginia, 1967).
  • "Core purpose" of Equal Protection Clause: "do[ing] away with all governmentally imposed discrimination based on race" (Palmore v. Sidoti, 1984).
  • Universal Application: Applies "without regard to any differences of race, of color, or of nationality" (Yick Wo v. Hopkins, 1886).
  • 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, 1978).
Strict Scrutiny Standard
  • Requirement: Any exception to the Equal Protection Clause's guarantee must survive "strict scrutiny." (Adarand Constructors, Inc. v. Peña, 1995).
  • Two-Step Examination:
    1. Compelling Governmental Interests: Is the racial classification used to "further compelling governmental interests?" (Grutter v. Bollinger, 2003).
    2. Narrowly Tailored: Is the government's use of race "narrowly tailored" (i.e., "necessary") to achieve that interest? (Fisher v. University of Tex. at Austin, 2013).
  • Rarity of Acceptance: "Acceptance of race-based state action is rare" because "[d]istinctions between citizens solely because of their ancestry are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality" (Rice v. Cayetano, 2000).
  • Previously Recognized Compelling Interests (Outside of Higher Education):
    1. Remediating Past Discrimination: Specific, identified instances of past discrimination that violated the Constitution or a statute (Parents Involved in Community Schools v. Seattle School Dist. No. 1, 2007).
    2. Avoiding Imminent Risks to Safety: Preventing harm in prisons, such as race riots (Johnson v. California, 2005).
  • Overruled Precedent: Korematsu v. United States (1944) upheld the internment of Japanese Americans during WWII under "rigid scrutiny" due to "military urgency," but has since been explicitly overruled as "gravely wrong." This demonstrates that "even the most rigid scrutiny can sometimes fail to detect an illegitimate racial classification."

Evolution of Race-Based Admissions in Higher Education

Regents of University of California v. Bakke (1978)
  • Case: Challenged a set-aside admissions program (16/100 seats for minorities) at UC Davis medical school.
  • Decision: Fractured, with six opinions. Justice Powell's opinion, though not a majority, became the "touchstone for constitutional analysis of race-conscious admissions policies."
  • Justice Powell's Analysis (controlling opinion):
    • Rejected Three Justifications as Not Compelling:
      1. "Reducing the historic deficit of traditionally disfavored minorities": Akin to "discrimination for its own sake," which "the Constitution forbids."
      2. "Remedying… the effects of 'societal discrimination'": An "amorphous concept of injury that may be ageless in its reach into the past."
      3. Increasing doctors in underserved areas: "Virtually no evidence."
    • Accepted One Justification as Compelling: "Obtaining the educational benefits that flow from a racially diverse student body."
      • Deemed a "constitutionally permissible goal for an institution of higher education."
      • Supported by academic freedom "to make its own judgments as to… the selection of its student body."
    • Imposed Limits on Race's Role:
      • No quota systems (e.g., reserving specific number of seats).
      • No "multitrack program with a prescribed number of seats set aside for each identifiable category."
      • Cannot use race to "foreclose an individual from all consideration."
      • Race could only be a "'plus' in a particular applicant's file."
      • Must be weighed "flexible enough to consider all pertinent elements of diversity in light of the particular qualifications of each applicant."
    • Harvard's Example (cited by Powell): Harvard's system allowed race to "tip the balance" like geographic origin or life experience, recognizing that "a black student can usually bring something that a white person cannot offer."
  • Other Justices' Views in Bakke:
    • Four Justices: Would have allowed race for "remedying the effects of past societal discrimination."
    • Four Justices: Would have struck down the program under Title VI, believing the "Constitution itself required a colorblind standard."
Grutter v. Bollinger (2003)
  • Case: Michigan Law School's admissions system.
  • Decision: For the first time, a majority of the Court "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."
  • Court's Analysis (tracking Powell):
    • Compelling Interest: Deferred to the Law School's "educational judgment that such diversity is essential to its educational mission."
    • Limits on Means: Reaffirmed restrictions:
      • No quotas or separate admissions tracks.
      • No insulating applicants from competition.
      • No desire for specific percentages of groups merely for race/ethnic origin.
    • Guards Against Dangers: Intended to prevent:
      1. "Illegitimate… stereotyp[ing]": Universities could not assume "minority students always… express some characteristic minority viewpoint."
      2. Race as a "negative": Could not "unduly harm nonminority applicants."
  • Discomfort with Race-Based Admissions:
    • "Serious problems of justice connected with the idea of [racial] preference itself."
    • All "racial classifications… were 'dangerous.'"
    • "Race-based governmental action" subject to "continuing oversight."
  • "Logical End Point" Requirement:
    • Held that race-based admissions programs "must end."
    • Reiterated repeatedly: "termination point," "reasonable durational limits," "limited in time," "sunset provisions," "logical end point," "temporary matter."
    • Reason: "[E]nshrining a permanent justification for racial preferences would offend" the Equal Protection Clause.
    • Expectation: "We expect that 2525 years from now, the use of racial preferences will no longer be necessary to further the interest approved today." (i.e., by 20282028).
Fisher v. University of Texas at Austin (2013 and 2016)
  • Consisted of two decisions: Fisher I (2013) and Fisher II (2016).
  • Reaffirmed that race may be considered in a narrowly tailored way in pursuit of educational diversity.
  • Fisher II (2016): Upheld the University of Texas's "sui generis" race-based admissions program, whose goal was to enroll a "critical mass" of certain minority students.
  • Continued Emphasis on Limits: Highlighted the "enduring challenge" of race-based systems and the "continuing obligation" of universities to satisfy strict scrutiny.
  • Durational Limit: Stressed that decision did "not necessarily mean the University may rely on the same policy" going forward.

The Court's Ruling: Harvard's and UNC's Programs Violate the Fourteenth Amendment

  • Summary: After 2020 years since Grutter, the Court finds no end in sight for race-based admissions at Harvard and UNC.
  • Failure to Meet Criteria: The admissions systems fail Grutter's criteria:
    1. Compliance with strict scrutiny.
    2. Avoidance of race as a stereotype or negative.
    3. Existence of an end point.
(1) Failure to Operate Measurable Programs Under Strict Scrutiny
  • Requirement: Race-based programs must be "sufficiently measurable to permit judicial [review]" (Fisher II, 2016).
  • Issue 1: Interests are Not Measurable for Judicial Review:
    • Harvard's Interests: "training future leaders…", "adapt to an increasingly pluralistic society," "better educating its students through diversity," "producing new knowledge stemming from diverse outlooks."
    • UNC's Interests: "promoting the robust exchange of ideas," "broadening and refining understanding," "fostering innovation and problem-solving," "preparing engaged and productive citizens and leaders," "enhancing appreciation, respect, and empathy, cross-racial understanding, and breaking down stereotypes."
    • Court's Critique: These are "commendable goals" but "not sufficiently coherent for purposes of strict scrutiny."
      • Unclear how courts can measure these goals (e.g., "adequately 'train[ed]' leaders," "robust" exchange of ideas, new knowledge).
      • Unclear when goals are reached for racial preferences to cease.
      • Difficulty in quantifying "how many fewer leaders Harvard would create without racial preferences, or how much poorer the education at Harvard would be."
    • Comparison to other compelling interests: Courts can measure outcomes in prison safety (preventing harm) or workplace discrimination (making victims "whole"), but these educational goals are "standardless" and "inescapably imponderable."
  • Issue 2: No Meaningful Connection Between Means and Goals:
    • Universities' Methods: Measure racial composition using categories: Asian; Native Hawaiian or Pacific Islander; Hispanic; White; African-American; Native American.
    • Court's Critique: "Far from evident… how assigning students to these racial categories and making admissions decisions based on them furthers the educational benefits."
      • Imprecise Categories:
        • Overbroad: "Asian" groups East and South Asians, despite differences.
        • Arbitrary/Undefined: "Hispanic" is ambiguous and evolving.
        • Underinclusive: No category for Middle Eastern students.
      • Undermines Goals: By focusing on underrepresentation, they might prefer more students from one Hispanic country over fewer from several, despite aiming for "broadly diverse" enrollment.
  • Universities' Response ("Trust Us") Rejected:
    • Claimed deference for "academic decisions" in using race.
    • Court: Deference exists "within constitutionally prescribed limits" and "does not imply abandonment or abdication of judicial review."
    • Universities failed to present an "exceedingly persuasive justification for separating students on the basis of race that is measurable and concrete enough to permit judicial review."
(2) Failure to Comply with "No Negative" and "No Stereotype" Commands
  • Issue 1: Race Used as a "Negative":
    • Finding: First Circuit confirmed Harvard's consideration of race resulted in an 11.1 ext{%} decrease in Asian-American admissions; District Court found "fewer Asian American and white students being admitted."
    • Universities' Argument: Race is never a negative factor.
    • Court's Rejection: This assertion "cannot withstand scrutiny."
      • College admissions are "zero-sum": a benefit to some necessarily disadvantages others.
      • If eliminating race-based admissions means more members of some racial groups would be admitted, then race acted as a "negative" for them.
  • Issue 2: Requires Stereotyping:
    • Violation: Admissions programs require stereotyping, which Grutter foreswore.
    • Reasoning: Admitting 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, 1995).
    • Harvard's process rested on the stereotype that "a black student can usually bring something that a white person cannot offer."
    • UNC argued race itself "says [something] about who you are."
    • Rejection of Racial Differences (Except for Location, Hobbies etc.): The Equal Protection Clause rejects the notion that treating someone differently based on skin color is equivalent to differences in geographic origin or athletic skill.
    • Dignity & Worth: Judging by ancestry rather than merit "demeans the dignity and worth of a person."
    • Consequence: Such stereotyping "cause[] continued hurt and injury" and is contrary to the "core purpose" of the Equal Protection Clause.
(3) Lack of a "Logical End Point"
  • Requirement: Grutter required a "logical end point" for race-based admissions programs.
  • Issue 1: "Meaningful Representation and Diversity" is Not an End Point:
    • Argument: Programs will end when "meaningful representation and meaningful diversity" are achieved.
    • Court's Critique: This amounts to "little more than comparing the racial breakdown of the incoming class… to some other metric" to reach a "proportional goal."
      • Harvard's Data: Shows "tight bands" of representation for black (10.0 ext{%}-11.7 ext{%}) and other minority groups from 20092009-20182018; admissions committee discusses racial breakdown and gives "additional attention" to underrepresented groups.
      • UNC's Data: Aims to address "underrepresentation of minority groups" by comparing enrollment to general North Carolina population.
    • "Outright racial balancing" is "patently unconstitutional" (Fisher I, 2013). The Equal Protection Clause mandates treating citizens as individuals, not components of a racial class.
  • Issue 2: "Educational Benefits of Diversity" is Not an End Point:
    • Argument: Programs will end when students receive educational benefits of diversity.
    • Court's Critique: Unclear how a court would determine when "stereotypes have broken down" or "productive citizens and leaders" have been created.
  • Issue 3: Grutter's 2525-Year Expectation is Not a Deadline for Continuation:
    • Argument: Preferences should continue until at least 20282028 based on Grutter's 2525-year expectation.
    • Court's Critique: Grutter's statement reflected an expectation that preferences would be unnecessary by 20282028, not a guarantee of permissible use until then.
    • Neither university believes race-based admissions will be unnecessary in 55 years.
  • Issue 4: Frequent Reviews Do Not Obviate End Point Requirement:
    • Argument: Periodic reviews determine if racial preferences are still necessary.
    • Court's Critique: Grutter never suggested periodic review makes unconstitutional conduct constitutional; it required programs to eventually end.
  • Conclusion on End Points: Harvard concedes no sunset date and its approach to race is conceptually the same as 5050 years ago. UNC's program also has no expiration date and it suggests it might even increase its use of race.
Overall Conclusion on Admissions Programs
  • Harvard's and UNC's admissions programs:
    • Lack sufficiently focused and measurable objectives for using race.
    • Unavoidably employ race in a negative manner.
    • Involve racial stereotyping.
    • Lack meaningful end points.
  • Therefore, they "cannot be reconciled with the guarantees of the Equal Protection Clause."
Permissible Use of Race in Applications
  • Explicitly stated by the Court: "Nothing prohibits universities from considering an applicant’s discussion of how race affected the applicant’s life, be it through discrimination, inspiration, or otherwise."
  • Caveat: This discussion must be "concretely tied to a quality of character or unique ability that the particular applicant can contribute to the university."
  • Prohibition on Indirect Means: "What cannot be done directly cannot be done indirectly. The Constitution deals with substance, not shadows."
  • Focus on Individual Experience: A benefit for overcoming discrimination must be tied to courage/determination; a benefit for heritage/culture must be tied to unique ability to contribute. "The student must be treated based on his or her experiences as an individual—not on the basis of race."
  • Criticism of Universities: Many universities have wrongly concluded "that the touchstone of an individual’s identity is not challenges bested, skills built, or lessons learned, but the color of their skin. Our constitutional history does not tolerate that choice."

Concurring Opinion by JUSTICE THOMAS

Defense of the Colorblind Constitution
  • Core Principle: Our Constitution is colorblind, and neither knows nor tolerates classes among citizens (Plessy v. Ferguson, Harlan, J., dissenting).
    • The Fourteenth Amendment ensures racial equality without textual reference to race, indicating deep underlying principle.
  • Reconstruction Era History:
    • Thirteenth Amendment (1865): Abolished slavery and allowed Congress to legislate against its "badges and relics."
    • Black Codes: Southern states enacted laws restricting newly freed blacks' freedoms.
    • Civil Rights Act of 1866: Declared all U.S.-born persons (excluding untaxed Indians) citizens, guaranteeing equal rights "of every race and color… as is enjoyed by white citizens." This benchmark showed the focus was leveling up.
      • Senator Trumbull revised the bill to be broader, moving from "African descent" to "all persons born in the United States… citizens."
      • This Act's goals informed the Fourteenth Amendment and were explicitly meant to combat racial discrimination.
    • Fourteenth Amendment (1868): Ratified to provide a clear constitutional basis for the 1866 Act and ensure an unrepealable nondiscrimination rule.
      • The text provides a "firm statement of equality before the law," guaranteeing citizenship and equal protection to all.
      • Framers focused on "full and complete equality of all persons under the law" and prohibition of "legal distinctions based on race or color."
    • Civil Rights Act of 1875: Sought to counteract racial segregation (Jim Crow laws) which arose after Reconstruction.
      • Proponents argued for "abolition of all distinctions founded on color and race."
      • Argued against "separate but equal" as inherently discriminatory.
  • Early Supreme Court Opinions: Initially interpreted the Fourteenth Amendment in colorblind terms (Slaughter-House Cases, 1873; Strauder v. West Virginia, 1880).
  • Antisubordination View Rejected: Rejects the theory that the Fourteenth Amendment forbids only laws that harm but not those that help blacks.
    • Freedmen's Bureau Acts (1865, 1866): Applied to "freedmen (and refugees)," a formally race-neutral category, as it included white refugees. Its aim was direct remediation consistent with a colorblind view, allowing for "racially disproportionate impact" rather than race-based classification per se.
    • Other statutes targeting "colored" servicemen or "destitute colored people" were likely aimed at specific, race-based exploitation or issues in predominantly black areas, effectively "undo[ing] the effects of past discrimination" in a targeted way.
    • Such remedial measures were consistent with the goal of a "colorblind government, not to perpetuate racial consciousness."
Flaws of Grutter Jurisprudence
  • Court's Decision Applies Strict Scrutiny: Agrees with the majority that universities must establish a "compelling reason to racially discriminate."
    • No Actual Link Between Racial Discrimination and Educational Benefits: Universities' listed interests (e.g., training leaders, promoting robust exchange of ideas) are "too vague and immeasurable to suffice."
      • Racial diversity qua race does not clearly advance educational goals. Other forms of diversity (e.g., socioeconomic, ideological) might be more relevant.
      • "Any such benefits would have to outweigh the tremendous harm inflicted by sorting individuals on the basis of race."
    • No Deference to Discriminators: Courts should not defer to universities' self-assessments.
      • Universities have historical ties to racial discrimination (e.g., Harvard's "holistic" policy to exclude Jews in the 1920s; UNC resisted integration until compelled by court order).
      • Courts have an independent duty to interpret and uphold the Constitution.
    • Remedial Rationale Rejected: The argument that the Fourteenth Amendment permits race to benefit certain groups is a "remedial rationale in disguise."
      • Bakke rejected "societal discrimination" as a compelling interest.
      • Precedents distinguish between remedies for past governmental discrimination (which must be concrete and traceable) and "benign race-conscious measures" like affirmative action.
      • Current race-conscious programs are not traceable to past discriminatory conduct (e.g., Harvard's policies may discriminate against groups it historically excluded).
Pernicious Effects of All Such Discrimination
  • Reaffirming Colorblind Rule: "Two discriminatory wrongs cannot make a right."
  • Equality Principle: Derived from the founding principle that "all men are created equal."
  • Historical Betrayal and Correction: The Nation failed to live up to this during slavery and Jim Crow, but Brown corrected course, stating "Separate cannot be equal."
  • Caution Against "Helpful" Discrimination: Arguments for "benefits" of race-based solutions have historically proved pernicious (e.g., segregationists arguing it created "harmony and peace").
    • "Beware of elites bearing racial theories."
  • Mismatch Theory (Reiterated): Affirmative action policies redistribute minority students to more competitive institutions where they are less likely to succeed academically.
    • This leads to "underperformance" and higher dropout rates in STEM fields.
    • Studies suggest "large racial preferences for black and Hispanic applicants have led to a disproportionately large share of those students receiving mediocre or poor grades."
    • "Stamp[s] [blacks and Hispanics] with a badge of inferiority." Accomplishments are tainted by the perception that race played a role.
  • "Aesthetic" Solutions: Universities focus on creating a "facade" of diversity rather than genuine academic success.
  • Zero-Sum Game: "Not even theoretically possible to 'help' a certain racial group without causing harm to members of other racial groups."
    • Asian Americans, with a history of discrimination, are disproportionately penalized in admissions now.
    • Policies burden millions of applicants not responsible for past discrimination.
  • Affirmative Action Prolongs Need: "Affirmative action policies appear to have prolonged the asserted need for racial discrimination."
    • Leads to "tribalism and racial segregation on their campuses" (e.g., separate student organizations, housing, graduation ceremonies).
    • Creates new prejudices and resentment among those who feel wronged.
    • Race is a social construct, and these policies force individuals into arbitrary, reductionist racial categories.
    • Reduces individuality and diversity of thought.
  • Rejection of Justice Jackson's Dissent: Disagrees with focus on "historical subjugation of black Americans" and statistical racial gaps to justify race-based categorization and reallocation of riches.
    • Statistical gaps are "constitutionally irrelevant." The law must disregard racial distinctions.
    • "Not all disparities are based on race; not all people are racist; and not all differences between individuals are ascribable to race."
    • Labeling all blacks as victims is "irrational" and an "insult to individual achievement."
    • Individual experiences, challenges, and accomplishments matter, not a "myopic world view based on individuals’ skin color."
    • This approach would lead to endless racial measures and quota systems.
    • The hypothetical of John and James overlooks many other racial and ethnic groups and their historically faced barriers.
    • Race-neutral policies (e.g., focusing on socioeconomic background) can achieve diversity.
  • Efficacy of Colorblind Rule:
    • Universities prohibited from racial discrimination by state law still enroll diverse classes (e.g., University of California, University of Michigan).
    • Meritocratic systems (objective grading) are genuine equalizers.
    • Historically Black Colleges and Universities (HBCUs) demonstrate racial achievement without racial diversity, effectively educating black students in STEM and producing high numbers of Black professionals.
  • Conclusion: Grutter is "for all intents and purposes, overruled." Race-based preferences are "plainly—and boldly—unconstitutional."

Concurring Opinion by JUSTICE GORSUCH

Title VI of the Civil Rights Act of 1964
  • Significance: A landmark civil rights law.
  • Text: "No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance."
  • Interpretation of Key Phrases:
    • "Discriminate": To "trea[t] that individual worse than others who are similarly situated." Prohibits intentional discrimination.
    • "On the ground of": Means "because of," invoking a "but-for causation" standard.
  • Clear Rule: Title VI prohibits a recipient of federal funds from intentionally treating one person worse than another similarly situated person because of his race, color, or national origin, regardless of other contributing factors, benign intentions, or goals of "classwide equality."
  • Consistency with Title VII: The language is "essentially identical" to Title VII's prohibition on discrimination "because of such individual's race, color, religion, sex, or national origin."
    • Bostock v. Clayton County (2020) read Title VII's terms the same way.
Application to Harvard and UNC
  • Both universities are recipients of federal funds.
  • Both institutions consult race in admissions decisions.
  • Both schools intentionally treat some applicants worse than others at least in part because of their race.
  • Racial Classifications' Origins: Bureaucrats devised the categories (American Indian/Alaska Native, Asian, Black/African American, Native Hawaiian/Other Pacific Islander, Hispanic/Latino, White) in the 1970s for data collection, not as scientific or anthropological determinants of eligibility.
  • Incoherent Stereotypes: The categories are often arbitrary and overbroad (e.g., "Asian" sweeping in diverse populations, "Hispanic" encompassing individuals without Iberian ancestry, "White" including various European, North African, and West Asian descents).
  • Effects of Stereotypes: Leads to situations where applicants from certain groups (e.g., Asian) are advised to "downplay their heritage" to maximize admission odds, suggesting a perception of being "overrepresented."
  • Intentional Discrimination:
    • Both schools award a "tip" or "plus" to applicants from certain racial groups, but not others.
    • "A tip for one race" is "a penalty against other races" in a zero-sum admissions process.
    • Harvard: Admissions officers "can and do take an applicant’s race into account when assigning an overall rating"; regional subcommittees and the full committee consider race; the "lop" list includes race for decisions on cutting students.
      • District court found race-based tips impacted who was admitted, were "determinative" for a significant percentage of African American and Hispanic applicants, and resulted in "fewer Asian American and white students being admitted."
      • Harvard's process "is not facially neutral" from a Title VI perspective.
    • UNC: Admissions policies "mandate that race is taken into consideration" as a "'plus' facto[r]" for "underrepresented minority" (URM) candidates (African American/Black, American Indian/Alaska Native, Hispanic/Latino/Latina, excluding Asian and white students).
      • The review committee may also consider race.
      • Race "plays a role"—perhaps "a determinative role"—for some URM students.
    • Aggregate Statistics: Harvard's incoming class racial composition remained remarkably steady (10 ext{%}-12 ext{%} Black, 8 ext{%}-12 ext{%} Hispanic, 17 ext{%}-20 ext{%} Asian).
  • Conclusion: Title VI prohibits intentional discrimination "even in part because of race," irrespective of the degree of discrimination or the recipient's motives. The universities' arguments about "holistic" review and good intentions do not negate direct textual violation of Title VI.
Critique of Bakke's Legacy on Title VI and Equal Protection
  • Bakke's Divergence: While a majority in Bakke held UC Davis's set-aside unconstitutional, a different five-Justice coalition ventured beyond the facts to suggest universities may sometimes use race permissibly.
    • Justice Powell and Justice Brennan argued Title VI is "coterminous with the Equal Protection Clause."
    • Justice Stevens argued for deciding on statutory grounds, finding a clear Title VI violation based on plain language.
  • Grutter and Gratz: Adopted the view that Title VI and the Equal Protection Clause mean the same thing, leading all cases on racial preferences in admissions to become Fourteenth Amendment cases.
  • Consequences: Created a "confused body of constitutional law" with inconsistent rules:
    • Strict scrutiny generally, but "deference" to colleges/universities on diversity being "essential." (Not for K-12 schools).
    • Race as a "plus" factor for "critical mass" or "diverse student body."
    • Program "must have a logical end point."
    • "Outright racial balancing" and quotas remain unconstitutional.
    • These twists and turns rendered the law incoherent.
  • Current Decision: "Cuts through the kudzu" by ending "university exceptionalism" and returning to the traditional rule that the Equal Protection Clause forbids race use unless strict scrutiny is met.
  • Reassertion of Title VI's Independent Force: Title VI is "more than a simple paraphrasing" of the Equal Protection Clause, having "independent force, with language and emphasis in addition to that found in the Constitution."
    • Differences from Equal Protection Clause:
      • Equal Protection Clause: Operates on States only.
      • Title VI: Applies to federal fund recipients (state and private actors), reaching entities beyond the Equal Protection Clause.
      • Equal Protection Clause: Addresses all distinctions, applying different scrutiny levels.
      • Title VI: Targets only race, color, national origin classifications, and mandates an uncomplicated rule: "it is always unlawful to discriminate among persons even in part because of race, color, or national origin."
  • Critique of Bakke's Interpretive Moves: Justice Powell's and Justice Brennan's opinions focused on "legislative history" and "congressional intent" rather than the text of Title VI, which was "judicial improvisation."
  • Conclusion: Courts should correct course for Title VI, recognizing its independent force. It allows no special deference to universities, nor does it endorse racial discrimination to any degree or for any purpose. Title VI means 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.'"

Concurring Opinion by JUSTICE KAVANAUGH

Consistency with Precedent
  • Equal Protection Clause: All racial classifications are constitutionally suspect and subject to strict scrutiny (narrowly tailored to a compelling governmental interest).
    • Narrow tailoring includes assessing "race-neutral alternatives."
    • Diversion from equal treatment must be a "temporary matter," "limited in time."
  • Bakke (1978): Five Justices held race-based affirmative action permissible if race was a factor, not a quota.
    • Justice Blackmun hoped it would be temporary, unnecessary by 19881988.
  • Grutter (2003): Five Justices again allowed race-based affirmative action, explicitly stating it would not be constitutionally justified after "2525 years from now" (i.e., by 20282028), "at least absent something not 'expect[ed].'"
    • This 2525-year limit was an "important part of Justice O'Connor's nuanced opinion for the Court."
    • Rationale for Time Limit: Racial classifications are "potentially so dangerous that they may be employed no more broadly than the interest demands." A "permanent justification for racial preferences would offend this fundamental equal protection principle."
    • Required a "logical end point."
    • Consistent with school desegregation cases (e.g., Dowell, Swann) where race-based injunctions could not "operate in perpetuity."
  • Current Decision: Appropriately respects and abides by Grutter's explicit temporal limit.
    • A "generation has now passed" since Grutter (and 5050 years since Bakke era).
    • Harvard and UNC had no end date in sight, contravening Grutter's limit.
  • Disagreement with Dissents: Acknowledges the horrific history of racial discrimination but states that precedents clearly show race-based affirmative action cannot "extend indefinitely into the future."
  • Continuing Role for Civil Rights Laws: Racial discrimination still occurs and effects persist, but civil rights laws and governments/universities can still "undo the effects of past discrimination in many permissible ways that do not involve classification by race" (e.g., race-neutral alternatives).
  • Conclusion: The Court's opinion is consistent with and follows from its equal protection precedents, and the 2525-year limit established in Grutter is now due.

Dissenting Opinion by JUSTICE SOTOMAYOR

Foundational Principles and Historical Context
  • Equal Protection Clause: Enshrines a guarantee of racial equality, to be enforced through race-conscious means in an endemically segregated society.
  • Brown v. Board of Education (1954): Recognized the constitutional necessity of integrated schools to remedy harm from segregation and importance of education.
  • Transformative Legacy of Brown: For 4545 years, the Court extended Brown to higher education, allowing limited race to promote diversity's benefits, which helped equalize opportunities and improve diversity.
  • Critique of Majority: Today's Court "stands in the way and rolls back decades of precedent and momentous progress," enforcing a "superficial rule of colorblindness" that entrenches racial inequality.
Historical Account of Race-Conscious Measures
  • Slavery and Education: Original Constitution protected slavery; Southern States prohibited education for Black people, making freedom to learn neither colorblind nor equal.
  • Abolition and Reconstruction: Thirteenth Amendment (1865) abolished slavery. Black Codes and forced labor systems replaced it, continuing racial subjugation.
  • Fourteenth Amendment (1868): Congress chose broad "equal protection" language, deliberately rejecting "explicitly color-blind" proposals.
    • Contemporaneous Race-Conscious Laws: E.g., Freedmen's Bureau Act (1865/1866) provided funding/land for Black education (e.g., Howard University), despite being criticized as "class legislation."
    • Civil Rights Act of 1866 explicitly used "white citizens" as a benchmark for equal rights.
    • Special appropriations for "colored soldiers and sailors."
    • This history makes race-conscious admissions "inconceivable" to be unconstitutional.
  • Plessy v. Ferguson (1896): Court's "shameful decision" established "separate but equal," cementing government-enforced segregation until Brown.
  • Brown (1954) was Race-Conscious: Emphasized education's importance, found segregation inherently unequal due to its perpetuation of a caste system, and ordered transition to a "unitary, nonracial system of public education." "Affirmative steps" were necessary.
    • Rejected "colorblindness" arguments from segregation opponents.
    • Justice Marshall, a leader of Brown litigation, "applaud[ed] the judgment… that a university may consider race."
  • Post-Brown Precedents (Bakke, Grutter, Fisher): Reaffirmed limited race-conscious admissions for diversity, seen as an extension of Brown's legacy.
    • Benefits: improved cross-racial understanding, breakdown of stereotypes, skills for global marketplace, public trust in institutions, training for national leaders.
    • Grounded in "academic freedom."
  • Conclusion: For over four decades, settled law permitted limited race use for educational diversity.
Persistent Racial Inequality
  • Society Remains Segregated: Half of Latino and Black students attend racially homogeneous schools; intensely segregated minority schools increased.
  • Resource Gaps: Underrepresented minorities (URMs) are more likely to live in poverty, attend under-resourced schools with less qualified teachers, less challenging curricula, and fewer advanced courses.
  • Achievement Gaps: Persist along racial lines even after controlling for income.
  • Beyond Schools: Disproportionate discipline, lower parental postsecondary education, less access to early childhood education.
  • North Carolina's Context: State courts consistently find racial inequality in K-12 education, violating the State Constitution.
  • Consequences: Lower college enrollment for URMs, reinforcing racial disparities in unemployment, income, wealth, homeownership, healthcare.
  • Universities' Sordid Legacies: UNC and Harvard have histories of racial exclusion that inform their goals.
    • UNC: Bastion of white supremacy, slaveholders in leadership, resisted Brown, small Black enrollment. Buildings still bear names of white supremacists.
    • Harvard: Profited from slavery, promoted "race science," admitted few Black students between 18901890-19401940. Black and Latino applicants make up only 20 ext{%}.
  • Conclusion: Both universities have taken steps to address legacies, establishing goals of diversity and inclusion. Ignoring race will not equalize a racially unequal society.
Critique of the Court's Overruling of Precedent
  • Overruling Precedent: The Court "turns a blind eye to these truths and overrules decades of precedent," despite no extraordinary showing required by stare decisis.
  • Harvard and UNC's Programs are Narrowly Tailored (Under Settled Law):
    • Race-Neutral Alternatives: SFFA's proposed alternatives are "methodologically flawed," "unrealistic," force abandonment of holistic approach, or are "largely impractical."
    • Limited Use of Race: Both universities use race as one factor among many in a "highly individualized, holistic review process."
      • Harvard: Race is one of many "plus factors" (including geographic, socioeconomic, athletic, ALDC for mostly white applicants), and there is "no evidence of any mechanical use of tips."
      • UNC: Race is a "plus" factor only for URMs based on "individual circumstances."
      • Impact on racial representation (e.g., 45 ext{%} reduction in Black/Hispanic representation at Harvard without race) is consistent with Grutter and Fisher II.
      • Lower courts found "no discrimination against Asian Americans" by Harvard; overall, Asian American admissions increased. Race-conscious admissions actually help some Asian Americans explain their "unique background."
    • No Racial Balancing/Quotas: Lower courts found no evidence of quotas or racial balancing. Fluctuations in admitted classes, rather than fixed percentages, indicate against quotas.
  • Court's Novel Restraints: The Court "singles out the limited use of race in holistic college admissions," overturning Bakke, Grutter, and Fisher.
    • "Measurability" Requirement: None of the Court's precedents required a compelling interest to meet a specific precision threshold.
      • Court has recognized amorphous interests as compelling (e.g., "public confidence in judicial integrity," "protecting integrity of the Medal of Honor").
      • The new requirement is an unworkable standard designed to make race-conscious plans fail. It's meant to ensure strict scrutiny is "'fatal in fact.'"
    • "Disadvantage Some Racial Groups" Argument: The Court's framing of admissions as "zero-sum" is a myth.
      • Holistic admissions assemble diverse classes on multiple dimensions, benefiting all students (e.g., ALDC preferences at Harvard disproportionately benefit white students).
      • Disparities disfavor URMs, making race one small factor in a system that otherwise disadvantages them.
      • The Court's stance echoes opponents of Reconstruction-era laws and Brown.
      • "A racially integrated vision… is precisely what the Equal Protection Clause commands." (Martin Luther King Jr. quote)
    • Burden on Racial Minorities: Demanding colleges ignore race forces them to deny "the full expression of their identity" and treats "racial identity as inferior."
      • Students testified race is a "crucial component of their identity." The Court's allowance for essays about race is "lipstick on a pig."
      • Race-linked experiences (e.g., "the talk" parents give Black children) are realities regardless of socioeconomic background.
      • Absence of diversity exacerbates stereotyping.
    • "Imprecise, Opaque, and Arbitrary" Racial Categories: The categories used resemble those by the Federal Government (e.g., Census Bureau) for data collection.
      • Students can self-identify with chosen levels of detail.
      • No evidence categories are unworkable.
    • Lack of Specific Expiration Date: Grutter's "2525 years" was an "aspirational statement," not a fixed deadline for ending race-conscious admissions.
      • Grutter required periodic assessment of necessity.
      • Racial inequality has no predictable cutoff date.
      • Universities conduct ongoing reviews consistent with precedent.
Harmful Consequences of Today's Decision
  • Destructive Impact: Will cause a "sharp decline in the rates at which underrepresented minority students enroll," "turning the clock back."
    • California's ban on race-conscious admissions led to a "precipitous" drop in URM enrollment, especially at selective campuses (e.g., Berkeley's Black student percentage dropped from 6.32 ext{%} in 19951995 to 2.76 ext{%} in 20192019).
  • Harms Institutions and Democracy: Decreases pipeline of diverse graduates to crucial professions.
    • Military: National security interests are compromised by lack of diversity in officer corps, as demonstrated by history (e.g., Vietnam War).
    • Public Services: Diverse public servants are needed to serve diverse communities (e.g., in state/local government, healthcare, teaching, law).
    • Business/Industry: Diverse workforce improves performance, serves diverse markets, strengthens economy, drives innovation.
  • Exacerbates Inequality: Limits upward mobility for historically excluded groups, accumulating wealth and power unequally across racial lines.
  • Erodes Public Trust: A system of government visibly lacking a path to leadership open to every race undermines public confidence in institutions.
  • Conclusion: "True equality of educational opportunity in racially diverse schools is an essential component of the fabric of our democratic society."
    • Brown recognized passive neutrality was inadequate.
    • The Court imposes a "superficial rule of race blindness" that will entrench racial segregation.
    • Diversity is a fundamental American value; pursuit of it will continue. The Court's opinion will only highlight its "impotence" in the face of calls for equality.

Dissenting Opinion by JUSTICE JACKSON

The Problem of "Gulf-Sized Race-Based Gaps"
  • Race-Linked Disadvantages: "Gulf-sized race-based gaps exist with respect to the health, wealth, and well-being of American citizens," passed down intergenerationally.
  • Critique of Majority: The Court considers holistic admissions a problem, rather than a solution, for achieving equality.
  • "Our Country Has Never Been Colorblind": "To say 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 'intergenerational transmission of inequality.'"
  • Hypothetical of John and James (North Carolina applicants):
    • John: White, seventh-generation UNC graduate.
    • James: Black, first-generation UNC graduate.
    • This illustrates "seven generations' worth of historical privileges and disadvantages that each of these applicants was born with."
Historical Account of State-Sponsored Race-Based Preferences
  • Slavery: Deprived Black people of all legal rights, including education, brutalizing and dehumanizing.
  • Reconstruction and Betrayal: Despite Black Americans' contributions and the Fourteenth Amendment ensuring equal rights, the Court (Civil Rights Cases, Plessy) undermined progress, asserting that Black Americans should not be "special favorite[s] of the laws."
  • Jim Crow (Economic Exploitation): Laws and private actions (e.g., refusing land sales, vagrancy laws, prohibiting hunting/fishing) hindered Black prosperity.
  • Federal Policies for White Advantage:
    • Homestead Act (1862): Black people largely excluded from land giveaways that benefited millions of white Americans.
    • Home Owners' Loan Corporation (HOLC, 1933): "Color-coded maps" designated all Black neighborhoods as "red" (risky), regardless of class.
    • Federal Housing Administration (FHA, 1934): "No guarantees for mortgages to African Americans" or whites who leased to them; 98 ext{%} of FHA loans between 19341934-19681968 went to white Americans.
    • Veterans Administration & G.I. Bill: Similarly channeled benefits to white people, accommodating Jim Crow.
    • Consumer Credit Market: Black people often prevented from participating.
    • Local Officials' Racial Hostility: Unequally distributed even formal benefits.
  • Conclusion: Consistent government policy choices created "race-linked obstacles" and affirmatively acted to grant preferences to non-Black individuals, producing lasting disparities.
Persistent Race-Based Gaps Today
  • Wealth and Income: In 20192019, Black families' median wealth was $24,000$, compared to $188,000$ for White families (an 8extx8 ext{x} difference), existing at every income and education level. Median income similarly disparate for Black and Latino households.
  • Home Ownership: Black home ownership trails White by 2525 percentage points. Black homes are worth less, subject to higher property taxes, and more vulnerable to economic downturns.
  • Education: Lower percentages of Black undergraduates in state flagship institutions; Black Americans half as likely to have college degrees by their late twenties; higher student debt for Black graduates.
  • Professional Arenas: Black people are 5 ext{%} of lawyers (vs. 13 ext{%} population), fewer than 2525 Black Fortune 500500 CEOs ever.
  • Health Gaps: Black children have twice the blood lead levels; Black children with heart conditions more likely to die; higher race-linked mortality rates (infants, adults); Black women die of uterine cancer at twice the rate of other groups; Black mothers up to 4extx4 ext{x} more likely to die in childbirth; higher COVID-1919 rates.
  • Conclusion: These disparities (obesity, hypertension, etc.) result in 50,00050,000 excess Black deaths annually, with 8080 million years of life lost from 19991999-$2020$. Race-linked health inequities reduce life expectancy, not explained by genetics.
UNC's Holistic Review Process
  • Purpose: To fully assess applicants' merit, resilience, and potential contributions, accounting for historical advantages/disadvantages.
  • Process: Considers standardized tests, conventional info (gender/race optional), and 4040 criteria in eight categories (academic, extracurricular, special talent, essay, background, personal).
  • "Plus" Factors: Includes "engagement outside the classroom; persistence of commitment; demonstrated capacity for leadership; contributions to family, school, and community; work history; [and his] unique or unusual interests." Also, "relative advantage or disadvantage, as indicated by family income level, education history of family members, impact of parents/guardians in the home, or formal education environment; experience of growing up in rural or center-city locations; [and his] status as child or step-child of Carolina alumni."
  • Race in Review: "[T]he race or ethnicity of any student may—or may not—receive a 'plus' in the evaluation process depending on the individual circumstances revealed in the student’s application."
  • Broad Diversity: UNC values diversity broadly, including socioeconomic status, first-generation college status, political/religious beliefs, diversity of thoughts, experiences, ideas, and talents.
  • No Quotas/Automatic Pluses: No automatic plus, no numerical terms, not automatically resulting in admission. No race-based quotas. Overall racial makeup of admitted pool is blinded during application review.
  • Outcome: UNC's process, in theory and practice, recognizes race may bear on admissions but won't fully determine outcomes (e.g., more academically excellent Black candidates denied than White/Asian).
Critiquing the "Race Blindness" Solution
  • Widening Gaps: "Requiring colleges to ignore the initial race-linked opportunity gap… will inevitably widen that gap, not narrow it." Race-conscious programs respond to deep-rooted problems; their end will be when problems are solved.
  • Benefits of Diversity:
    • On Campus: Prevents racial isolation (important for learning and success); promotes interaction between students from different backgrounds, improving cognitive abilities, critical thinking, and reducing prejudice.
    • Beyond Campus (Societal Benefits): Saves lives (e.g., Black physicians more accurately assess pain, reduce mortality for Black newborns). Closes wealth disparities, addressing health disparities.
    • Universal Benefits: All students gain a greater appreciation for civic virtue and democratic values. Larger economy benefits (hundreds of billions annually).
  • UNC's Progress: UNC, a former stronghold of Jim Crow, now understands its constitutional obligation.
  • Perversity of Majority's Decision: By ignoring race, it takes "longer for racism to leave us." "Ignoring race just makes it matter more."
  • Truth and Justice: The solution is to "stare at racial disparity unblinkingly, and then do what evidence and experts tell us is required to level the playing field and march forward together… to achieve true equality."
  • Critique of Majority's "Colorblindness":
    • "Wholly self-referential, two-dimensional flatness." Ignores the actual past and present and interferes with critical work.
    • "With let-them-eat-cake obliviousness, today, the majority pulls the ripcord and announces 'colorblindness for all' by legal fiat. But deeming race irrelevant in law does not make it so in life."
    • "The Court's meddling not only arrests the noble generational project… it also launches, in effect, a dismally misinformed sociological experiment.
    • The Court drastically discounts the primary reason for diversity objectives, latches onto arbitrary timelines, and sidesteps irrefutable proof of benefits.
    • The Court "pitifully perceiv[es] itself as the sole vanguard of legal high ground when, in reality, its perspective is not constitutionally compelled."
  • Conclusion: The Equal Protection Clause does not demand this "perverse, ahistorical, and counterproductive outcome." To obstruct collective progress is a "tragedy for us all." The Court's final conclusion to preserve racial diversity for success "in the bunker, not the boardroom" is particularly awkward given history.

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