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, [email protected], of any typographical or other formal errors. OCTOBER TERM, 2022 181

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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 Page Proof Pending Publication “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

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genuine membership organization at the time it fled suit. Respondents maintain that, under Hunt, a group qualifes as a genuine membership organization only if it is controlled and funded by its members. In Hunt, this Court determined that a state agency with no traditional members could still qualify as a genuine membership organization in substance because the agency represented the interests of individuals and otherwise satisfed Hunt's three-part test for organizational stand- ing. See 432 U. S., at 342. Hunt's “indicia of membership” analysis, however, has no applicability here. As the courts below found, SFFA is indisputably a voluntary membership organization with identifable members who support its mission and whom SFFA represents in good faith. SFFA is thus entitled to rely on the organizational standing doc- trine as articulated in Hunt. Pp. 198–201. (b) Proposed by Congress and ratifed by the States in the wake of the Civil War, the Fourteenth Amendment provides that no State shall “deny to any person . . . the equal protection of the laws.” Proponents of the Equal Protection Clause described its “foundation[al] principle” as “not permit[ing] any distinctions of law based on race or color.” Any “law which operates upon one man,” they maintained, should “operate equally upon all.” Accordingly, as this Court's early decisions inter- preting the Equal Protection Clause explained, the Fourteenth Amend- Page Proof Pending Publication ment guaranteed “that the law in the States shall be the same for the black as for the white; that all persons, whether colored or white, shall stand equal before the laws of the States.” Despite the early recognition of the broad sweep of the Equal Protec- tion Clause, the Court—alongside the country—quickly failed to live up to the Clause's core commitments. For almost a century after the Civil War, state-mandated segregation was in many parts of the Nation a regrettable norm. This Court played its own role in that ignoble his- tory, allowing in Plessy v. Ferguson the separate but equal regime that would come to deface much of America. 163 U. S. 537. After Plessy, “American courts . . . labored with the doctrine [of sepa- rate but equal] for over half a century.” Brown v. Board of Education, 347 U. S. 483, 491. Some cases in this period attempted to curtail the perniciousness of the doctrine by emphasizing that it required States to provide black students educational opportunities equal to—even if formally separate from—those enjoyed by white students. See, e. g., Missouri ex rel. Gaines v. Canada, 305 U. S. 337, 349–350. But the inherent folly of that approach—of trying to derive equality from in- equality—soon became apparent. As the Court subsequently recog- nized, even racial distinctions that were argued to have no palpable effect worked to subordinate the afficted students. See, e. g., McLaurin v. Oklahoma State Regents for Higher Ed., 339 U. S. 637, 184 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT AND FELLOWS OF HARVARD COLLEGE Syllabus

640–642. By 1950, the inevitable truth of the Fourteenth Amendment had thus begun to reemerge: Separate cannot be equal. The culmination of this approach came fnally in Brown v. Board of Education, 347 U. S. 483. There, the Court overturned the separate but equal regime established in Plessy and began on the path of invali- dating all de jure racial discrimination by the States and Federal Gov- ernment. The conclusion reached by the Brown Court was unmistak- ably clear: the right to a public education “must be made available to all on equal terms.” 347 U. S., at 493. The Court reiterated that rule just one year later, holding that “full compliance” with Brown required schools to admit students “on a racially nondiscriminatory basis.” Brown v. Board of Education, 349 U. S. 294, 300–301. In the years that followed, Brown's “fundamental principle that racial discrimination in public education is unconstitutional,” id., at 298, reached other areas of life—for example, state and local laws requiring segregation in busing, Gayle v. Browder, 352 U. S. 903 (per curiam); racial segregation in the enjoyment of public beaches and bathhouses, Mayor and City Council of Baltimore v. Dawson, 350 U. S. 877 (per cu- riam); and antimiscegenation laws, Loving v. Virginia, 388 U. S. 1. These decisions, and others like them, refect the “core purpose” of the Equal Protection Clause: “do[ing] away with all governmentally Page Proof Pending Publication imposed discrimination based on race.” Palmore v. Sidoti, 466 U. S. 429, 432. Eliminating racial discrimination means eliminating all of it. Accord- ingly, the Court has held that the Equal Protection Clause applies “with- out regard to any differences of race, of color, or of nationality”—it is “universal in [its] application.” Yick Wo v. Hopkins, 118 U. S. 356, 369. For “[t]he guarantee of equal protection cannot mean one thing when applied to one individual and something else when applied to a person of another color.” Regents of Univ. of Cal. v. Bakke, 438 U. S. 265, 289– 290 (opinion of Powell, J.). Any exceptions to the Equal Protection Clause's guarantee must sur- vive a daunting two-step examination known as “strict scrutiny,” Ada- rand Constructors, Inc. v. Peña, 515 U. S. 200, 227, which asks frst whether the racial classifcation is used to “further compelling govern- mental interests,” Grutter v. Bollinger, 539 U. S. 306, 326, and second whether the government's use of race is “narrowly tailored,” i. e., “nec- essary,” to achieve that interest, Fisher v. University of Tex. at Austin, 570 U. S. 297, 311–312. Acceptance of race-based state action is rare for a reason: “[d]istinctions between citizens solely because of their an- cestry are by their very nature odious to a free people whose institu- tions are founded upon the doctrine of equality.” Rice v. Cayetano, 528 U. S. 495, 517. Pp. 201–208. Cite as: 600 U. S. 181 (2023) 185

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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

Page Proof Pending Publication could only operate as “a `plus' in a particular applicant's fle,” and even then it had to be weighed in a manner “fexible enough to consider all pertinent elements of diversity in light of the particular qualifcations of each applicant.” Id., at 317. Pp. 208–210. (d) For years following Bakke, lower courts struggled to determine whether Justice Powell's decision was “binding precedent.” Grutter, 539 U. S., at 325. Then, in Grutter v. Bollinger, the Court for the frst time “endorse[d] Justice Powell's view that student body diversity is a compelling state interest that can justify the use of race in university admissions.” Ibid. The Grutter majority's analysis tracked Justice Powell's in many respects, including its insistence on limits on how uni- versities may consider race in their admissions programs. Those limits, Grutter explained, were intended to guard against two dangers that all race-based government action portends. The frst is the risk that the use of race will devolve into “illegitimate . . . stereotyp[ing].” Rich- mond v. J. A. Croson Co., 488 U. S. 469, 493 (plurality opinion). Admis- sions programs could thus not operate on the “belief that minority stu- dents always (or even consistently) express some characteristic minority viewpoint on any issue.” Grutter, 539 U. S., at 333 (internal quotation marks omitted). The second risk is that race would be used not as a plus, but as a negative—to discriminate against those racial groups that were not the benefciaries of the race-based preference. A university's 186 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT AND FELLOWS OF HARVARD COLLEGE Syllabus

use of race, accordingly, could not occur in a manner that “unduly harm[ed] nonminority applicants.” Id., at 341. To manage these concerns, Grutter imposed one fnal limit on race- based admissions programs: At some point, the Court held, they must end. Id., at 342. Recognizing that “[e]nshrining a permanent justif- cation for racial preferences would offend” the Constitution's unambigu- ous guarantee of equal protection, the Court expressed its expectation that, in 25 years, “the use of racial preferences will no longer be neces- sary to further the interest approved today.” Id., at 343. Pp. 211–213. (e) Twenty years have passed since Grutter, with no end to race-based college admissions in sight. But the Court has permitted race-based college admissions only within the confnes of narrow restrictions: such admissions programs must comply with strict scrutiny, may never use race as a stereotype or negative, and must—at some point—end. Re- spondents' admissions systems fail each of these criteria and must there- fore be invalidated under the Equal Protection Clause of the Fourteenth Amendment. Pp. 213–225. (1) Respondents fail to operate their race-based admissions pro- grams in a manner that is “suffciently measurable to permit judicial [review]” under the rubric of strict scrutiny. Fisher v. University of Tex. at Austin, 579 U. S. 365, 381. First, the interests that respondents Page Proof Pending Publication view as compelling cannot be subjected to meaningful judicial review. Those interests include training future leaders, acquiring new knowl- edge based on diverse outlooks, promoting a robust marketplace of ideas, and preparing engaged and productive citizens. While these are commendable goals, they are not suffciently coherent for purposes of strict scrutiny. It is unclear how courts are supposed to measure any of these goals, or if they could, to know when they have been reached so that racial preferences can end. The elusiveness of respondents' as- serted goals is further illustrated by comparing them to recognized com- pelling interests. For example, courts can discern whether the tempo- rary racial segregation of inmates will prevent harm to those in the prison, see Johnson v. California, 543 U. S. 499, 512–513, but the ques- tion whether a particular mix of minority students produces “engaged and productive citizens” or effectively “ train[s] future leaders” is standardless. Second, respondents' admissions programs fail to articulate a mean- ingful connection between the means they employ and the goals they pursue. To achieve the educational benefts of diversity, respondents measure the racial composition of their classes using racial categories that are plainly overbroad (expressing, for example, no concern whether South Asian or East Asian students are adequately represented as “Asian”); arbitrary or undefned (the use of the category “Hispanic”); or Cite as: 600 U. S. 181 (2023) 187

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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 Page Proof Pending Publication beneft provided to some applicants but not to others necessarily advan- tages the former at the expense of the latter. Respondents' admissions programs are infrm for a second reason as well: They require stereotyping—the very thing Grutter foreswore. When a university admits students “on the basis of race, it engages in the offensive and demeaning assumption that [students] of a particular race, because of their race, think alike.” Miller v. Johnson, 515 U. S. 900, 911–912. Such stereotyping is contrary to the “core purpose” of the Equal Protection Clause. Palmore, 466 U. S., at 432. Pp. 218–221. (3) Respondents' admissions programs also lack a “logical end point” as Grutter required. 539 U. S., at 342. Respondents suggest that the end of race-based admissions programs will occur once mean- ingful representation and diversity are achieved on college campuses. Such measures of success amount to little more than comparing the ra- cial breakdown of the incoming class and comparing it to some other metric, such as the racial makeup of the previous incoming class or the population in general, to see whether some proportional goal has been reached. The problem with this approach is well established: “[O]ut- right racial balancing” is “patently unconstitutional.” Fisher, 570 U. S., at 311. Respondents' second proffered end point—when students re- ceive the educational benefts of diversity—fares no better. As ex- plained, it is unclear how a court is supposed to determine if or when 188 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT AND FELLOWS OF HARVARD COLLEGE Syllabus

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

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

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

Counsel

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

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

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

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

Opinion of the Court

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

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

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

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

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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

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

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

academic performance and rigor, standardized testing re- sults, extracurricular involvement, essay quality, personal factors, and student background. Id., at 600. Readers are responsible for providing numerical ratings for the aca- demic, extracurricular, personal, and essay categories. Ibid. During the years at issue in this litigation, underrepre- sented minority students were “more likely to score [highly] on their personal ratings than their white and Asian American peers,” but were more likely to be “rated lower by UNC readers on their academic program, academic perform- ance, . . . extracurricular activities,” and essays. Id., at 616–617. After assessing an applicant's materials along these lines, the reader “formulates an opinion about whether the student should be offered admission” and then “writes a comment defending his or her recommended decision.” Id., at 598 (in- ternal quotation marks omitted). In making that decision, Page Proof Pending Publication readers may offer students a “plus” based on their race, which “may be signifcant in an individual case.” Id., at 601 (internal quotation marks omitted). The admissions deci- sions made by the frst readers are, in most cases, “provision- ally fnal.” Students for Fair Admissions, Inc. v. Uni- versity of N. C. at Chapel Hill, No. 1:14–cv–954 (MDNC, Nov. 9, 2020), ECF Doc. 225, p. 7, ¶52. Following the frst read process, “applications then go to a process called `school group review' . . . where a committee composed of experienced staff members reviews every [ini- tial] decision.” 567 F. Supp. 3d, at 599. The review com- mittee receives a report on each student which contains, among other things, their “class rank, GPA, and test scores; the ratings assigned to them by their initial readers; and their status as residents, legacies, or special recruits.” Ibid. (footnote omitted). The review committee either approves or rejects each admission recommendation made by the frst reader, after which the admissions decisions are fnalized. Ibid. In making those decisions, the review committee may Cite as: 600 U. S. 181 (2023) 197

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

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

race-based admissions programs violated, respectively, Title VI of the Civil Rights Act of 1964, 78 Stat. 252, 42 U. S. C. § 2000d et seq., and the Equal Protection Clause of the Four- teenth Amendment.2 See 397 F. Supp. 3d, at 131–132; 567 F. Supp. 3d, at 585–586. The District Courts in both cases held bench trials to evaluate SFFA's claims. 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). Page Proof Pending Publication II Before turning to the merits, we must assure ourselves of our jurisdiction. See Summers v. Earth Island Institute, 555 U. S. 488, 499 (2009). UNC argues that SFFA lacks standing to bring its claims because it is not a “genuine” membership organization. Brief for University Respond- ents in No. 21–707, pp. 23–26. Every court to have consid- 2 Title VI provides that “[n]o person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefts of, or be subjected to discrimination under any program or activity receiving Federal fnancial assistance.” 42 U. S. C. § 2000d. “We have explained that discrimination that violates the Equal Protection Clause of the Fourteenth Amendment committed by an institu- tion that accepts federal funds also constitutes a violation of Title VI.” Gratz v. Bollinger, 539 U. S. 244, 276, n. 23 (2003). Although Justice Gorsuch questions that proposition, no party asks us to reconsider it. We accordingly evaluate Harvard's admissions program under the stand- ards of the Equal Protection Clause itself. Cite as: 600 U. S. 181 (2023) 199

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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 Cite as: 600 U. S. 181 (2023) 201

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

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

(Cong. Globe). The Constitution, they were determined, “should not permit any distinctions of law based on race or color,” Supp. Brief for United States on Reargument in Brown v. Board of Education, O. T. 1953, No. 1 etc., p. 41 (detailing the history of the adoption of the Equal Protection Clause), because any “law which operates upon one man [should] operate equally upon all,” Cong. Globe 2459 (state- ment of Rep. Stevens). As soon-to-be President James Gar- feld observed, the Fourteenth Amendment would hold “over every American citizen, without regard to color, the protect- ing shield of law.” Id., at 2462. And in doing so, said Sena- tor Jacob Howard of Michigan, the Amendment would give “to the humblest, the poorest, the most despised of the race the same rights and the same protection before the law as it gives to the most powerful, the most wealthy, or the most haughty.” Id., at 2766. For “[w]ithout this principle of equal justice,” Howard continued, “there is no republican Page Proof Pending Publication government and none that is really worth maintaining.” Ibid. At frst, this Court embraced the transcendent aims of the Equal Protection Clause. “What is this,” we said of the Clause in 1880, “but declaring that the law in the States shall be the same for the black as for the white; that all persons, whether colored or white, shall stand equal before the laws of the States?” Strauder v. West Virginia, 100 U. S. 303, 307–309 (1880). “[T]he broad and benign provisions of the Fourteenth Amendment” apply “to all persons,” we unani- mously declared six years later; it is “hostility to . . . race and nationality” “which in the eye of the law is not justifed.” Yick Wo v. Hopkins, 118 U. S. 356, 368–369, 373–374 (1886); see 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- Cite as: 600 U. S. 181 (2023) 203

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try—quickly failed to live up to the Clause's core commit- ments. For almost a century after the Civil War, state- mandated segregation was in many parts of the Nation a regrettable norm. This Court played its own role in that ignoble history, allowing in Plessy v. Ferguson the separate but equal regime that would come to deface much of America. 163 U. S. 537 (1896). The aspirations of the fram- ers of the Equal Protection Clause, “[v]irtually strangled in [their] infancy,” would remain for too long only that—aspira- tions. J. Tussman & J. tenBroek, The Equal Protection of the Laws, 37 Cal. L. Rev. 341, 381 (1949). After Plessy, “American courts . . . labored with the doc- trine [of separate but equal] for over half a century. ” Brown v. Board of Education, 347 U. S. 483, 491 (1954). Some cases in this period attempted to curtail the perni- ciousness of the doctrine by emphasizing that it required States to provide black students educational opportunities Page Proof Pending Publication equal to—even if formally separate from—those enjoyed by white students. See, e. g., Missouri ex rel. Gaines v. Can- ada, 305 U. S. 337, 349–350 (1938) (“The admissibility of laws separating the races in the enjoyment of privileges afforded by the State rests wholly upon the equality of the privileges which the laws give to the separated groups . . . .”). But the inherent folly of that approach—of trying to derive equal- ity from inequality—soon became apparent. As the Court subsequently recognized, even racial distinctions that were ar- gued to have no palpable effect worked to subordinate the af- ficted students. See, e. g., McLaurin v. Oklahoma State Re- gents for Higher Ed., 339 U. S. 637, 640–642 (1950) (“It is said that the separations imposed by the State in this case are in form merely nominal. . . . But they signify that the State . . . sets [petitioner] apart from the other students.”). By 1950, the inevitable truth of the Fourteenth Amendment had thus begun to reemerge: Separate cannot be equal. The culmination of this approach came fnally in Brown v. Board of Education. In that seminal decision, we over- 204 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT AND FELLOWS OF HARVARD COLLEGE Opinion of the Court

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 Cite as: 600 U. S. 181 (2023) 205

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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 AND FELLOWS OF HARVARD COLLEGE Opinion of the Court

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 Cite as: 600 U. S. 181 (2023) 207

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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 AND FELLOWS OF HARVARD COLLEGE Opinion of the Court

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 Cite as: 600 U. S. 181 (2023) 209

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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 210 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT AND FELLOWS OF HARVARD COLLEGE Opinion of the Court

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). Cite as: 600 U. S. 181 (2023) 211

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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 AND FELLOWS OF HARVARD COLLEGE Opinion of the Court

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 Cite as: 600 U. S. 181 (2023) 213

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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 AND FELLOWS OF HARVARD COLLEGE Opinion of the Court

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 Cite as: 600 U. S. 181 (2023) 215

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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 AND FELLOWS OF HARVARD COLLEGE Opinion of the Court

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). Cite as: 600 U. S. 181 (2023) 217

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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

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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 AND FELLOWS OF HARVARD COLLEGE 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

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[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

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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 AND FELLOWS OF HARVARD COLLEGE 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 Cite as: 600 U. S. 181 (2023) 225

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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 AND FELLOWS OF HARVARD COLLEGE 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

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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 AND FELLOWS OF HARVARD COLLEGE 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 Cite as: 600 U. S. 181 (2023) 229

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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 AND FELLOWS OF HARVARD COLLEGE 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

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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 Cite as: 600 U. S. 181 (2023) 233

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the authority conferred by these Amendments, Congress passed two landmark Civil Rights Acts. Throughout the de- bates on each of these measures, their proponents repeatedly affrmed their view of equal citizenship and the racial equal- ity that fows from it. In fact, they held this principle so deeply that their crowning accomplishment—the Fourteenth Amendment—ensures racial equality with no textual refer- ence to race whatsoever. The history of these measures' en- actment renders their motivating principle as clear as their text: All citizens of the United States, regardless of skin color, are equal before the law. I do not contend that all of the individuals who put forth and ratifed the Fourteenth Amendment universally believed this to be true. Some Members of the proposing Congress, for example, opposed the Amendment. And, the historical record—particularly with respect to the debates on ratifca- tion in the States—is sparse. Nonetheless, substantial evi- dence suggests that the Fourteenth Amendment was passed Page Proof Pending Publication to “establis[h] the broad constitutional principle of full and complete equality of all persons under the law,” forbidding “all legal distinctions based on race or color.” Supp. Brief for United States on Reargument in Brown v. Board of Edu- cation, O. T. 1953, No. 1 etc., p. 115 (U. S. Brown Reargu- ment Brief). This was Justice Harlan's view in his lone dissent in Plessy, where he observed that “[o]ur Constitution is color- blind.” 163 U. S., at 559. It was the view of the Court in Brown, which rejected “ `any authority . . . to use race as a factor in affording educational opportunities.' ” Parents Involved in Community Schools v. Seattle School Dist. No. 1, 551 U. S. 701, 747 (2007). And, it is the view adopted in the Court's opinion today, requiring “the absolute equality of all citizens” under the law. Ante, at 201 (internal quota- tion marks omitted). A In its 1864 election platform, the Republican Party pledged to amend the Constitution to accomplish the “utter 234 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT AND FELLOWS OF HARVARD COLLEGE 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 Cite as: 600 U. S. 181 (2023) 235

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Codes. The 1866 Act promised such a sweeping form of equality that it would lead many to say that it exceeded the scope of Congress' authority under the Thirteenth Amend- ment. As enacted, it stated: “Be it enacted by the Senate and House of Repre- sentatives of the United States of America in Congress assembled, That all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States; and such citizens, of every race and color, without regard to any previous condition of slavery or involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall have the same right, in every State and Territory in the United States, to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and Page Proof Pending Publication 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- Page Proof Pending Publication tion, jurists and legislators often connected citizenship with equality,” where “the absence or presence of one entailed the absence or presence of the other.” United States v. Vaello Madero, 596 U. S. –––, ––– (2022) (Thomas, J., concurring). The addition of a citizenship guarantee thus evidenced an intent to broaden the provision, extending beyond recently freed blacks and incorporating a more general view of equal- ity for all Americans. Indeed, the drafters later included a specifc carveout for “Indians not taxed,” demonstrating the breadth of the bill's otherwise general citizenship language. 14 Stat. 27.1 As Trumbull explained, the provision created a bond between all Americans; “any statute which is not equal to all, and which deprives any citizen of civil rights which are secured to other citizens,” was “an unjust en- croachment upon his liberty” and a “badge of servitude” pro- 1 In fact, Indians would not be considered citizens until several decades later. Indian Citizenship Act of 1924, ch. 233, 43 Stat. 253 (declaring that all Indians born in the United States are citizens). Cite as: 600 U. S. 181 (2023) 237

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

B Critically, many of those who believed that Congress lacked the authority to enact the 1866 Act also supported the 238 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT 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- Page Proof Pending Publication 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 Cite as: 600 U. S. 181 (2023) 239

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person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.' ” Id., at 39. This revised text was submitted to the full House on April 30, 1866. Cong. Globe, 39th Cong., 1st Sess., at 2286–2287. Like the eventual frst section of the Fourteenth Amendment, this proposal em- bodied the familiar Privileges or Immunities, Due Process, and Equal Protection Clauses. And, importantly, it also featured an enforcement clause—with text borrowed from the Thirteenth Amendment—conferring upon Congress the power to enforce its provisions. Ibid. Stevens explained that the draft was intended to “allo[w] Congress to correct the unjust legislation of the States, so far that the law which operates upon one man shall operate equally upon all.” Id., at 2459. Moreover, Stevens' later statements indicate that he did not believe there was a dif- ference “in substance between the new proposal and” earlier Page Proof Pending Publication 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 AND FELLOWS OF HARVARD COLLEGE 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- Page Proof Pending Publication 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- Cite as: 600 U. S. 181 (2023) 241

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ing political and legal tradition that closely associated the status of citizenship with the entitlement to legal equality.” Vaello Madero, 596 U. S., at ––– (Thomas, J., concurring) (in- ternal quotation marks omitted). It then confrms that States may not “abridge the rights of national citizenship, including whatever civil equality is guaranteed to `citizens' under the Citizenship Clause.” Id., at –––, n. 3. Finally, it pledges that even noncitizens must be treated equally “as individuals, and not as members of racial, ethnic, or religious groups.” Missouri v. Jenkins, 515 U. S. 70, 120–121 (1995) (Thomas, J., concurring). The drafters and ratifers of the Fourteenth Amendment focused on this broad equality idea, offering surprisingly lit- tle explanation of which term was intended to accomplish which part of the Amendment's overall goal. “The available materials . . . show,” however, “that there were widespread expressions of a general understanding of the broad scope of Page Proof Pending Publication 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- 242 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT AND FELLOWS OF HARVARD COLLEGE Thomas, J., concurring

mary purpose” of the Fourteenth Amendment “was to man- date certain rules of racial equality, especially those con- tained in Section 1 of the Civil Rights Act of 1866”).2 The Amendment's phrasing supports this view, and there does not appear to have been any argument to the contrary pre- dating Brown. Consistent with the Civil Rights Act of 1866's aim, the Amendment defnitively overruled Chief Justice Taney's opinion in Dred Scott that blacks “were not regarded as a portion of the people or citizens of the Government” and “had no rights which the white man was bound to respect.” 19 How., at 407, 411. And, like the 1866 Act, the Amend- ment also clarified that American citizenship conferred rights not just against the Federal Government but also the government of the citizen's State of residence. Unlike the Civil Rights Act, however, the Amendment employed a wholly race-neutral text, extending privileges or immunities Page Proof Pending Publication to all “citizens”—even if its practical effect was to provide all citizens with the same privileges then enjoyed by whites. That citizenship guarantee was often linked with the concept of equality. Vaello Madero, 596 U. S., at ––– (Thomas, J., concurring). Combining the citizenship guarantee with the Privileges or Immunities Clause and the Equal Protection Clause, the Fourteenth Amendment ensures protection for all equal citizens of the Nation without regard to race. Put succinctly, “[o]ur Constitution is color-blind.” Plessy, 163 U. S., at 559 (Harlan, J., dissenting).

2 There is “some support” in the history of enactment for at least “four interpretations of the frst section of the proposed amendment, and in particular of its Privileges [or] Immunities Clause: it would authorize Con- gress to enforce the Privileges and Immunities Clause of Article IV; it would forbid discrimination between citizens with respect to fundamental rights; it would establish a set of basic rights that all citizens must enjoy; and it would make the Bill of Rights applicable to the states.” D. Currie, The Reconstruction Congress, 75 U. Chi. L. Rev. 383, 406 (2008) (citing sources). Notably, those four interpretations are all colorblind. Cite as: 600 U. S. 181 (2023) 243

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C In the period closely following the Fourteenth Amend- ment's ratifcation, Congress passed several statutes de- signed to enforce its terms, eliminating government-based Black Codes—systems of government-imposed segrega- tion—and criminalizing racially motivated violence. The marquee legislation was the Civil Rights Act of 1875, ch. 114, 18 Stat. 335–337, and the justifcations offered by proponents of that measure are further evidence for the colorblind view of the Fourteenth Amendment. The Civil Rights Act of 1875 sought to counteract the sys- tems of racial segregation that had arisen in the wake of the Reconstruction era. Advocates of so-called separate-but- equal systems, which allowed segregated facilities for blacks and whites, had argued that laws permitting or requiring such segregation treated members of both races precisely alike: Blacks could not attend a white school, but symmetri- Page Proof Pending Publication cally, whites could not attend a black school. See Plessy, 163 U. S., at 544 (arguing that, in light of the social circum- stances at the time, racial segregation did not “necessarily imply the inferiority of either race to the other”). Congress was not persuaded. Supporters of the soon-to-be 1875 Act successfully countered that symmetrical restrictions did not constitute equality, and they did so on colorblind terms. For example, they asserted that “free government de- mands the abolition of all distinctions founded on color and race.” 2 Cong. Rec. 4083 (1874). And, they submitted that “[t]he time has come when all distinctions that grew out of slavery ought to disappear.” Cong. Globe, 42d Cong., 2d Sess., 3193 (1872) (“[A]s long as you have distinctions and discriminations between white and black in the enjoyment of legal rights and privileges[,] you will have discontent and parties divided between black and white”). Leading Repub- lican Senator Charles Sumner compellingly argued that “any rule excluding a man on account of his color is an indignity, an insult, and a wrong.” Id., at 242; see also ibid. (“I insist 244 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT AND FELLOWS OF HARVARD COLLEGE Thomas, J., concurring

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 Page Proof Pending Publication 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- Cite as: 600 U. S. 181 (2023) 245

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

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

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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 AND FELLOWS OF HARVARD COLLEGE Thomas, J., concurring

rather, it strove to ensure that freedmen enjoy “equal rights before the law” such that “each man shall have the right to pursue in his own way life, liberty, and happiness.” Cong. Globe, 39th Cong., 1st Sess., at 322, 342. Several additional federal laws cited by respondents ap- pear to classify based on race, rather than previous condition of servitude. For example, an 1866 law adopted special rules and procedures for the payment of “colored” service- men in the Union Army to agents who helped them secure bounties, pensions, and other payments that they were due. 14 Stat. 367–368. At the time, however, Congress believed that many “black servicemen were signifcantly overpaying for these agents' services in part because [the servicemen] did not understand how the payment system operated.” Rappaport 110; see also S. Siegel, The Federal Government's Power To Enact Color-Conscious Laws: An Originalist In- quiry, 92 Nw. U. L. Rev. 477, 561 (1998). Thus, while this Page Proof Pending Publication legislation appears to have provided a discrete race-based beneft, its aim—to prohibit race-based exploitation—may not have been possible at the time without using a racial screen. In other words, the statute's racial classifcations may well have survived strict scrutiny. See Rappaport 111– 112. Another law, passed in 1867, provided funds for “freed- men or destitute colored people” in the District of Columbia. Res. of Mar. 16, 1867, No. 4, 15 Stat. 20. However, when a prior version of this law targeting only blacks was criticized for being racially discriminatory, “it was defended on the grounds that there were various places in the city where former slaves . . . lived in densely populated shantytowns.” Rappaport 104–105 (citing Cong. Globe, 39th Cong., 1st Sess., at 1507). Congress thus may have enacted the measure not because of race, but rather to address a special problem in shantytowns in the District where blacks lived. These laws—even if targeting race as such—likely were also constitutionally permissible examples of Government ac- tion “undo[ing] the effects of past discrimination in [a way] Cite as: 600 U. S. 181 (2023) 249

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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. Page Proof Pending Publication Justice Sotomayor argues otherwise, pointing to “a number of race-conscious” federal laws passed around the time of the Fourteenth Amendment's enactment. Post, at 322 (dissenting opinion). She identifes the Freedmen's Bu- reau Act of 1865, already discussed above, as one such law, but she admits that the programs did not beneft blacks ex- clusively. She also does not dispute that legislation target- ing the needs of newly freed blacks in 1865 could be under- stood as directly remedial. Even today, nothing prevents the States from according an admissions preference to identi- fed victims of discrimination. See Croson, 488 U. S., at 526

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

(opinion of Scalia, J.) (“While most of the benefciaries might be black, neither the benefciaries nor those disadvantaged by the preference would be identifed on the basis of their race” (emphasis in original)); see also ante, at 230. Justice Sotomayor points also to the Civil Rights Act of 1866, which as discussed above, mandated that all citizens have the same rights as those “enjoyed by white citizens.” 14 Stat. 27. But these references to the station of white citizens do not refute the view that the Fourteenth Amend- ment is colorblind. Rather, they specify that, in meeting the Amendment's goal of equal citizenship, States must level up. The Act did not single out a group of citizens for special treatment—rather, all citizens were meant to be treated the same as those who, at the time, had the full rights of citizen- ship. Other provisions of the 1866 Act reinforce this view, providing for equality in civil rights. See Rappaport 97. Most notably, § 14 stated that the basic civil rights of citizen- Page Proof Pending Publication ship shall be secured “without respect to race or color.” 14 Stat. 176–177. And, § 8 required that funds from land sales must be used to support schools “without distinction of color or race, . . . in the parishes of ” the area where the land had been sold. Id., at 175. In addition to these federal laws, Harvard also points to two state laws: a South Carolina statute that placed the bur- den of proof on the defendant when a “colored or black” plaintiff claimed a violation, 1870 S. C. Acts pp. 387–388, and Kentucky legislation that authorized a county superintend- ent to aid “negro paupers” in Mercer County, 1871 Ky. Acts pp. 273–274. Even if these statutes provided race-based benefts, they do not support respondents' and Justice So- tomayor's view that the Fourteenth Amendment was con- temporaneously understood to permit differential treatment based on race, prohibiting only caste legislation while author- izing antisubordination measures. Cf., e. g., O. Fiss, Groups and the Equal Protection Clause, 5 Philos. & Pub. Aff. 107, 147 (1976) (articulating the antisubordination view); Cite as: 600 U. S. 181 (2023) 251

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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 Page Proof Pending Publication seeking to remedy discrimination against a member of the large population of recently freed black Americans. See 1870 S. C. Acts, at 386 (documenting “persist[ent]” racial dis- crimination by state-licensed entities). Most importantly, however, there was a wide range of fed- eral and state statutes enacted at the time of the Fourteenth Amendment's adoption and during the period thereafter that explicitly sought to discriminate against blacks on the basis of race or a proxy for race. See Rappaport 113–115. These laws, hallmarks of the race-conscious Jim Crow era, are pre- cisely the sort of enactments that the Framers of the Four- teenth Amendment sought to eradicate. Yet, proponents of an antisubordination view necessarily do not take those laws as evidence of the Fourteenth Amendment's true meaning. And rightly so. Neither those laws, nor a small number of laws that appear to target blacks for preferred treatment, displace the equality vision refected in the history of the Fourteenth Amendment's enactment. This is particularly true in light of the clear equality requirements present in the 252 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT AND FELLOWS OF HARVARD COLLEGE Thomas, J., concurring

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

4 The Court has remarked that Title VI is coextensive with the Equal Protection Clause. See Gratz v. Bollinger, 539 U. S. 244, 276, n. 23 (2003) (“We have explained that discrimination that violates the Equal Protection Clause of the Fourteenth Amendment committed by an institution that accepts federal funds also constitutes a violation of Title VI”); Regents of Univ. of Cal. v. Bakke, 438 U. S. 265, 287 (1978) (opinion of Powell, J.) (“Title VI . . . proscribe[s] only those racial classifcations that would vio- late the Equal Protection Clause”). As Justice Gorsuch points out, the language of Title VI makes no allowance for racial considerations in uni- versity admissions. See post, at 288 (concurring opinion). Though I con- tinue to adhere to my view in Bostock v. Clayton County, 590 U. S. –––, ––– – ––– (2020) (Alito, J., dissenting), I agree with Justice Gor- such's concurrence in this case. The plain text of Title VI reinforces the colorblind view of the Fourteenth Amendment. Cite as: 600 U. S. 181 (2023) 253

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

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

cause Harvard blinds itself to other forms of applicant diver- sity, such as religion. See 2 App. in No. 20–1199, pp. 734– 743. It may be the case that exposure to different perspec- tives and thoughts can foster debate, sharpen young minds, and hone students' reasoning skills. But, it is not clear how diversity with respect to race, qua race, furthers this goal. Two white students, one from rural Appalachia and one from a wealthy San Francisco suburb, may well have more diverse outlooks on this metric than two students from Manhattan's Upper East Side attending its most elite schools, one of whom is white and the other of whom is black. If Harvard cannot even explain the link between racial diversity and education, then surely its interest in racial diversity cannot be compelling enough to overcome the constitutional limits on race consciousness. UNC fares no better. It asserts, for example, an interest in training students to “live together in a diverse society.” Page Proof Pending Publication Brief for University Respondents in No. 21–707, p. 39. This may well be important to a university experience, but it is a social goal, not an educational one. See Grutter, 539 U. S., at 347–348 (Scalia, J., concurring in part and dissenting in part) (criticizing similar rationales as divorced from edu- cational goals). And, again, UNC offers no reason why seeking a diverse society would not be equally supported by admitting individuals with diverse perspectives and back- grounds, rather than varying skin pigmentation. Nor have amici pointed to any concrete and quantifable educational benefts of racial diversity. The United States focuses on alleged civic benefts, including “increasing toler- ance and decreasing racial prejudice.” Brief for United States as Amicus Curiae 21–22. Yet, when it comes to edu- cational benefts, the Government offers only one study pur- portedly showing that “college diversity experiences are sig- nifcantly and positively related to cognitive development” and that “interpersonal interactions with racial diversity are the most strongly related to cognitive development. ” Cite as: 600 U. S. 181 (2023) 255

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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 AND FELLOWS OF HARVARD COLLEGE Thomas, J., concurring

limb . . . can justify [racial discrimination]”). For this rea- son, “just as the alleged educational benefts of segregation were insuffcient to justify racial discrimination [in the 1950s], see Brown v. Board of Education, the alleged educa- tional benefts of diversity cannot justify racial discrimina- tion today.” Fisher I, 570 U. S., at 320 (Thomas, J., concur- ring) (citation omitted). B The Court also correctly refuses to defer to the universi- ties' own assessments that the alleged benefts of race- conscious admissions programs are compelling. It instead demands that the “interests [universities] view as compel- ling” must be capable of being “subjected to meaningful judi- cial review.” Ante, at 214. In other words, a court must be able to measure the goals asserted and determine when they have been reached. Ante, at 214–215. The Court's opinion today further insists that universities must be able to Page Proof Pending Publication “articulate a meaningful connection between the means they employ and the goals they pursue.” Ante, at 215. Again, I agree. Universities' self-proclaimed righteousness does not afford them license to discriminate on the basis of race. In fact, it is error for a court to defer to the views of an alleged discriminator while assessing claims of racial dis- crimination. See Grutter, 539 U. S., at 362–364 (opinion of Thomas, J.); see also Fisher I, 570 U. S., at 318–319 (Thomas, J., concurring); United States v. Virginia, 518 U. S. 515, 551, n. 19 (1996) (refusing to defer to the Virginia Military Insti- tute's judgment that the changes necessary to accommodate the admission of women would be too great and characteriz- ing the necessary changes as “manageable”). We would not offer such deference in any other context. In employment discrimination lawsuits under Title VII of the Civil Rights Act, for example, courts require only a minimal prima facie showing by a complainant before shifting the burden onto the shoulders of the alleged-discriminator employer. See McDonnell Douglas Corp. v. Green, 411 U. S. 792, 803–805 Cite as: 600 U. S. 181 (2023) 257

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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 AND FELLOWS OF HARVARD COLLEGE Thomas, J., concurring

respondents' histories hardly recommend them as trustwor- thy arbiters of whether racial discrimination is necessary to achieve educational goals. Of course, none of this should matter in any event; courts have an independent duty to interpret and uphold the Con- stitution that no university's claimed interest may override. See ante, at 218, n. 5. The Court today makes clear that, in the future, universities wishing to discriminate based on race in admissions must articulate and justify a compelling and measurable state interest based on concrete evidence. Given the strictures set out by the Court, I highly doubt any will be able to do so. C In an effort to salvage their patently unconstitutional pro- grams, the universities and their amici pivot to argue that the Fourteenth Amendment permits the use of race to bene- ft only certain racial groups—rather than applicants writ Page Proof Pending Publication large. Yet, this is just the latest disguise for discrimination. The sudden narrative shift is not surprising, as it has long been apparent that “ `diversity [was] merely the current ra- tionale of convenience' ” to support racially discriminatory admissions programs. Grutter, 539 U. S., at 393 (Ken- nedy, J., dissenting). Under our precedents, this new ration- ale is also lacking. To start, the case for affrmative action has emphasized a number of rationales over the years, including: (1) restitution to compensate those who have been victimized by past dis- crimination, (2) fostering “diversity,” (3) facilitating “inte- gration” and the destruction of perceived racial castes, and (4) countering longstanding and diffuse racial prejudice. See R. Kennedy, For Discrimination: Race, Affrmative Ac- tion, and the Law 78 (2013); see also P. Schuck, Affrmative Action: Past, Present, and Future, 20 Yale L. & Pol'y Rev. 1, 22–46 (2002). Again, this Court has only recognized one interest as compelling: the educational benefts of diversity Cite as: 600 U. S. 181 (2023) 259

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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 AND FELLOWS OF HARVARD COLLEGE Thomas, J., concurring

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 Cite as: 600 U. S. 181 (2023) 261

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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 AND FELLOWS OF HARVARD COLLEGE Thomas, J., concurring

Constitution abhors classifcations based on race, not only be- cause those classifcations can harm favored races or are based on illegitimate motives, but also because every time the government places citizens on racial registers and makes race relevant to the provision of burdens or benefts, it demeans us all.” Grutter, 539 U. S., at 353 (opinion of Thomas, J.). A The Constitution's colorblind rule refects one of the core principles upon which our Nation was founded: that “all men are created equal.” Those words featured prominently in our Declaration of Independence and were inspired by a rich tradition of political thinkers, from Locke to Montesquieu, who considered equality to be the foundation of a just gov- ernment. See, e. g., J. Locke, Second Treatise of Civil Gov- ernment 48 (J. Gough ed. 1948); T. Hobbes, Leviathan 98 (M. Oakeshott ed. 1962); 1 B. Montesquieu, The Spirit of Laws Page Proof Pending Publication 121 (T. Nugent transl., J. Prichard ed. 1914). Several Con- stitutions enacted by the newly independent States at the founding refected this principle. For example, the Virginia Bill of Rights of 1776 explicitly affrmed “[t]hat all men are by nature equally free and independent, and have certain inherent rights.” Ch. 1, § 1. The State Constitutions of Massachusetts, Pennsylvania, and New Hampshire adopted similar language. Pa. Const., Art. I (1776), in 2 Federal and State Constitutions 1541 (P. Poore ed. 1877); Mass. Const., Art. I (1780), in 1 id., at 957; N. H. Const., Art. I (1784), in 2 id., at 1280.5 And, prominent Founders publicly mused

5 In fact, the Massachusetts Supreme Court in 1783 declared that slavery was abolished in Massachusetts by virtue of the newly enacted Constitu- tion's provision of equality under the law. See The Quock Walker Case, in 1 H. Commager, Documents of American History 110 (9th ed. 1973) (Cushing, C. J.) (“[W]hatever sentiments have formerly prevailed in this particular or slid in upon us by the example of others, a different idea has taken place with the people of America, more favorable to the natural rights of mankind, and to that natural, innate desire of Liberty . . . . And Cite as: 600 U. S. 181 (2023) 263

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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 AND FELLOWS OF HARVARD COLLEGE Thomas, J., concurring

Of course, even the promise of the second founding took time to materialize. Seeking to perpetuate a segregationist system in the wake of the Fourteenth Amendment's ratifca- tion, proponents urged a “separate but equal” regime. They met with initial success, ossifying the segregationist view for over a half century. As this Court said in Plessy: “A statute which implies merely a legal distinction be- tween the white and colored races—a distinction which is founded in the color of the two races, and which must always exist so long as white men are distinguished from the other race by color—has no tendency to de- stroy the legal equality of the two races, or reestablish a state of involuntary servitude.” 163 U. S., at 543.

Such a statement, of course, is precisely antithetical to the notion that all men, regardless of the color of their skin, are born equal and must be treated equally under the law. Only Page Proof Pending Publication one Member of the Court adhered to the equality principle; Justice Harlan, standing alone in dissent, wrote: “Our Consti- tution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law.” Id., at 559. Though Justice Harlan rightly predicted that Plessy would, “in time, prove to be quite as pernicious as the decision made . . . in the Dred Scott case,” the Plessy rule persisted for over a half century. Ibid. While it remained in force, Jim Crow laws prohibiting blacks from entering or utilizing public facilities such as schools, libraries, restaurants, and theaters sprang up across the South. This Court rightly reversed course in Brown v. Board of Education. The Brown appellants—those challenging seg- regated schools—embraced the equality principle, arguing that “[a] racial criterion is a constitutional irrelevance, and is not saved from condemnation even though dictated by a sin- cere desire to avoid the possibility of violence or race fric- tion.” Brief for Appellants in Brown v. Board of Educa- Cite as: 600 U. S. 181 (2023) 265

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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 Cite as: 600 U. S. 181 (2023) 267

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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 AND FELLOWS OF HARVARD COLLEGE 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). Cite as: 600 U. S. 181 (2023) 269

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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”). Cite as: 600 U. S. 181 (2023) 271

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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 AND FELLOWS OF HARVARD COLLEGE 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). Cite as: 600 U. S. 181 (2023) 273

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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

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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

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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

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

link between race—rather than socioeconomic status or any other factor—and individual outcomes. So Justice Jack- son supplies the link herself: the legacy of slavery and the nature of inherited wealth. This, she claims, locks blacks into a seemingly perpetual inferior caste. Such a view is irrational; it is an insult to individual achievement and can- cerous to young minds seeking to push through barriers, rather than consign themselves to permanent victimhood. If an applicant has less fnancial means (because of genera- tional inheritance or otherwise), then surely a university may take that into account. If an applicant has medical struggles or a family member with medical concerns, a uni- versity may consider that too. What it cannot do is use the applicant's skin color as a heuristic, assuming that because the applicant checks the box for “black” he therefore con- forms to the university's monolithic and reductionist view of an abstract, average black person. Page Proof Pending Publication Accordingly, Justice Jackson's race-infused world view falls fat at each step. Individuals are the sum of their unique experiences, challenges, and accomplishments. What matters is not the barriers they face, but how they choose to confront them. And their race is not to blame for every- thing—good or bad—that happens in their lives. A con- trary, myopic world view based on individuals' skin color to the total exclusion of their personal choices is nothing short of racial determinism. Justice Jackson then builds from her faulty premise to call for action, arguing that courts should defer to “experts” and allow institutions to discriminate on the basis of race. Make no mistake: Her dissent is not a vanguard of the innocent and helpless. It is instead a call to empower privileged elites, who will “tell us [what] is required to level the playing feld” among castes and classifcations that they alone can divine. Post, at 408; see also post, at 291–293 (Gorsuch, J., concur- ring) (explaining the arbitrariness of these classifcations). Then, after siloing us all into racial castes and pitting those Cite as: 600 U. S. 181 (2023) 281

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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

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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

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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). Cite as: 600 U. S. 181 (2023) 287

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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 AND FELLOWS OF HARVARD COLLEGE Gorsuch, J., concurring

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 Page Proof Pending Publication 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. Cite as: 600 U. S. 181 (2023) 289

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What does the statute's second critical phrase—“on the ground of ”—mean? Again, the answer is uncomplicated: It means “because of.” See, e. g., Webster's New World Dic- tionary 640 (1960) (“because of ”); Webster's Third New In- ternational Dictionary, at 1002 (defning “grounds” as “a logical condition, physical cause, or metaphysical basis”). “Because of ” is a familiar phrase in the law, one we often apply in cases arising under the Civil Rights Act of 1964, and one that we usually understand to invoke “the `simple' and `traditional' standard of but-for causation.” Bostock, 590 U. S., at ––– (quoting University of Tex. Southwestern Medi- cal Center v. Nassar, 570 U. S. 338, 346, 360 (2013); some internal quotation marks omitted). The but-for-causation standard is a “sweeping” one too. Bostock, 590 U. S., at –––. A defendant's actions need not be the primary or proximate cause of the plaintiff 's injury to qualify. Nor may a defend- ant avoid liability “just by citing some other factor that con- Page Proof Pending Publication tributed to” the plaintiff's loss. Id., at –––. All that mat- ters is that the plaintiff's injury would not have happened but for the defendant's conduct. Ibid. Now put these pieces back together and a clear rule emerges. Title VI prohibits a recipient of federal funds from intentionally treating one person worse than another similarly situated person because of his race, color, or na- tional origin. It does not matter if the recipient can point to “some other . . . factor” that contributed to its decision to disfavor that individual. Id., at ––– – –––. It does not mat- ter if the recipient discriminates in order to advance some further benign “intention” or “motivation.” Id., at –––; see also Automobile Workers v. Johnson Controls, Inc., 499 U. S. 187, 199 (1991) (“the absence of a malevolent motive does not convert a facially discriminatory policy into a neutral policy with a discriminatory effect” or “alter [its] intentionally dis- criminatory character”). Nor does it matter if the recipient discriminates against an individual member of a protected class with the idea that doing so might “favor” the interests 290 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT AND FELLOWS OF HARVARD COLLEGE Gorsuch, J., concurring

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 Page Proof Pending Publication 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- Cite as: 600 U. S. 181 (2023) 291

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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 AND FELLOWS OF HARVARD COLLEGE Gorsuch, J., concurring

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. Cite as: 600 U. S. 181 (2023) 293

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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 294 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT AND FELLOWS OF HARVARD COLLEGE Gorsuch, J., concurring

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. Cite as: 600 U. S. 181 (2023) 295

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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] 296 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT AND FELLOWS OF HARVARD COLLEGE Gorsuch, J., concurring

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 Cite as: 600 U. S. 181 (2023) 297

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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 AND FELLOWS OF HARVARD COLLEGE Gorsuch, J., concurring

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 Cite as: 600 U. S. 181 (2023) 299

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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 AND FELLOWS OF HARVARD COLLEGE Gorsuch, J., concurring

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

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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 AND FELLOWS OF HARVARD COLLEGE Gorsuch, J., concurring

this Court's precedent in Bostock interpreting materially identical language in Title VII. That raises two questions: Do the dissenters think Bostock wrongly decided? Or do they read the same words in neighboring provisions of the same statute—enacted at the same time by the same Con- gress—to mean different things? Apparently, the federal government takes the latter view. The Solicitor General in- sists that there is “ambiguity in the term `discrimination' ” in Title VI but no ambiguity in the term “discriminate” in Title VII. Tr. of Oral Arg. in No. 21–707, at 164. Respect- fully, I do not see it. The words of the Civil Rights Act of 1964 are not like mood rings; they do not change their mes- sage from one moment to the next. Rather than engage with the statutory text or our prece- dent in Bostock, the principal dissent seeks to sow confusion about the facts. It insists that all applicants to Harvard and UNC are “eligible” to receive a race-based tip. Post, at 348, n. 27 (opinion of Sotomayor, J.); cf. post, at 399 (Jackson, J., Page Proof Pending Publication dissenting). But the question in these cases is not who could hypothetically receive a race-based tip. It is who ac- tually receives one. And on that score the lower courts left no doubt. The district court in the Harvard case found that the school's admissions policy “cannot . . . be considered fa- cially neutral from a Title VI perspective given that admis- sions offcers provide [race-based] tips to African American and Hispanic applicants, while white and Asian American applicants are unlikely to receive a meaningful race-based tip.” 397 F. Supp. 3d, at 190, n. 56; see also id., at 189– 190 (“Harvard's admissions process is not facially neutral.”). Likewise, the district court in the UNC case found that admissions offcers “sometimes” award race-based plusses to URM candidates—a category that excludes Asian Ameri- can and white students. 567 F. Supp. 3d, at 591–592, n. 7, 601.6 6 The principal dissent suggests “some Asian American applicants are actually advantaged by Harvard's use of race.” Post, at 375 (opinion of Sotomayor, J.) (internal quotation marks omitted). What is the dissent's Cite as: 600 U. S. 181 (2023) 303

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

basis for that claim? The district court's fnding that “considering appli- cants' race may improve the admission chances of some Asian Americans who connect their racial identities with particularly compelling narra- tives.” 397 F. Supp. 3d, at 178 (emphasis added). The dissent neglects to mention those key qualifcations. Worse, it ignores completely the dis- trict court's further fnding that “overall” Harvard's race-conscious admis- sions policy “results in fewer Asian American[s] . . . being admitted.” Ibid. (emphasis added). So much for affording the district court's “careful factfnding” the “deference it [is] owe[d].” Post, at 345–346, n. 25 (opinion of Sotomayor, J.). 7 See also, e. g., Tr. of Oral Arg. in No. 20–1199, at 67, 84, 91; Tr. of Oral Arg. in No. 21–707, at 70–71, 81, 84, 91–92, 110. 8 Messages among UNC admissions offcers included statements such as these: “[P]erfect 2400 SAT All 5 on AP one B in 11th [grade].” “Brown?!” “Heck no. Asian.” “Of course. Still impressive.”; “If it[']s brown and above a 1300 [SAT] put them in for [the] merit/Excel [scholar- ship].”; “I just opened a brown girl who's an 810 [SAT].”; “I'm going through this trouble because this is a bi-racial (black/white) male.”; “Stel- lar academics for a Native Amer[ican]/African Amer[ican] kid.” 3 App. in No. 21–707, at 1242–1251. 304 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT AND FELLOWS OF HARVARD COLLEGE 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, Page Proof Pending Publication why the parties have devoted years and fortunes litigating other matters, like how much the universities discriminate and why they do so. The answer lies in Bakke. A Bakke concerned admissions to the medical school at the University of California, Davis. That school set aside a cer- 9 Left with no reply on the statute or its application to the facts, the principal dissent suggests that it violates “principles of party presenta- tion” and abandons “judicial restraint” even to look at the text of Title VI. Post, at 342, n. 21 (opinion of Sotomayor, J.). It is a bewildering sugges- tion. SFFA sued Harvard and UNC under Title VI. And when a party seeks relief under a statute, our task is to apply the law's terms as a reasonable reader would have understood them when Congress enacted them. Bostock v. Clayton County, 590 U. S. –––, ––– (2020). To be sure, parties are free to frame their arguments. But they are not free to stipu- late to a statute's meaning and no party may “waiv[e]” the proper inter- pretation of the law by “fail[ing] to invoke it.” EEOC v. FLRA, 476 U. S. 19, 23 (1986) (per curiam) (internal quotation marks omitted); see also Young v. United States, 315 U. S. 257, 258–259 (1942). Cite as: 600 U. S. 181 (2023) 305

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

his race. The University also acknowledges that it was, and still is, receiving federal fnancial assistance. The plain lan- guage of the statute therefore requires” fnding a Title VI violation. Id., at 412 (footnote omitted). In the years following Bakke, this Court hewed to Justice Powell's and Justice Brennan's shared premise that Title VI and the Equal Protection Clause mean the same thing. See Gratz v. Bollinger, 539 U. S. 244, 276, n. 23 (2003); Grutter v. Bollinger, 539 U. S. 306, 343 (2003). Justice Stevens's statute-focused approach receded from view. As a result, for over four decades, every case about racial preferences in school admissions under Title VI has turned into a case about the meaning of the Fourteenth Amendment. And what a confused body of constitutional law followed. For years, this Court has said that the Equal Protection Clause requires any consideration of race to satisfy “strict scrutiny,” meaning it must be “narrowly tailored to further Page Proof Pending Publication compelling governmental interests.” Grutter, 539 U. S., at 326 (internal quotation marks omitted). Outside the context of higher education, “our precedents have identifed only two” interests that meet this demanding standard: “remedi- ating specifc, identifed instances of past discrimination that violated the Constitution or a statute,” and “avoiding immi- nent and serious risks to human safety in prisons.” Ante, at 207 (opinion for the Court). Within higher education, however, an entirely distinct set of rules emerged. Following Bakke, this Court declared that judges may simply “defer” to a school's assertion that “diversity is essential” to its “educational mission.” Grut- ter, 539 U. S., at 328. Not all schools, though—elementary and secondary schools apparently do not qualify for this def- erence. See Parents Involved in Community Schools v. Se- attle School Dist. No. 1, 551 U. S. 701, 724–725 (2007). Only colleges and universities, the Court explained, “occupy a spe- cial niche in our constitutional tradition.” Grutter, 539 Cite as: 600 U. S. 181 (2023) 307

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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 AND FELLOWS OF HARVARD COLLEGE Gorsuch, J., concurring

his civil rights as guaranteed by the supreme law of the land are involved.” Plessy v. Ferguson, 163 U. S. 537, 559 (1896) (dissenting opinion). B If Bakke led to errors in interpreting the Equal Protection Clause, its frst mistake was to take us there. These cases arise under Title VI and that statute is “more than a simple paraphrasing” of the Equal Protection Clause. 438 U. S., at 416 (opinion of Stevens, J.). Title VI has “independent force, with language and emphasis in addition to that found in the Constitution.” Ibid. That law deserves our respect and its terms provide us with all the direction we need. Put the two provisions side by side. Title VI says: “No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefts of, or be subjected to discrimination under any program or activity receiving Federal fnancial Page Proof Pending Publication assistance.” § 2000d. The Equal Protection Clause reads: “No State shall . . . deny to any person within its jurisdiction the equal protection of the laws.” Amdt. 14, § 1. That such differently worded provisions should mean the same thing is implausible on its face. Consider just some of the obvious differences. The Equal Protection Clause operates on States. It does not purport to regulate the conduct of private parties. By contrast, Title VI applies to recipients of federal funds—covering not just many state actors, but many private actors too. In this way, Title VI reaches entities and organizations that the Equal Protection Clause does not. In other respects, however, the relative scope of the two provisions is inverted. The Equal Protection Clause ad- dresses all manner of distinctions between persons and this Court has held that it implies different degrees of judicial scrutiny for different kinds of classifcations. So, for exam- ple, courts apply strict scrutiny for classifcations based on race, color, and national origin; intermediate scrutiny for Cite as: 600 U. S. 181 (2023) 309

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classifcations based on sex; and rational-basis review for classifcations based on more prosaic grounds. See, e. g., Fisher, 579 U. S., at 376; Richmond v. J. A. Croson Co., 488 U. S. 469, 493–495 (1989) (plurality opinion); United States v. Virginia, 518 U. S. 515, 555–556 (1996); Board of Trustees of Univ. of Ala. v. Garrett, 531 U. S. 356, 366–367 (2001). By contrast, Title VI targets only certain classifcations—those based on race, color, or national origin. And that law does not direct courts to subject these classifcations to one de- gree of scrutiny or another. Instead, as we have seen, its rule is as uncomplicated as it is momentous. Under Title VI, it is always unlawful to discriminate among persons even in part because of race, color, or national origin. In truth, neither Justice Powell's nor Justice Brennan's opinion in Bakke focused on the text of Title VI. Instead, both leapt almost immediately to its “voluminous legislative history,” from which they proceeded to divine an implicit Page Proof Pending Publication “congressional intent” to link the statute with the Equal Pro- tection Clause. 438 U. S., at 284–285 (opinion of Powell, J.); id., at 328–336 ( joint opinion of Brennan, White, Marshall, and Blackmun, JJ.). Along the way, as Justice Stevens docu- mented, both opinions did more than a little cherry-picking from the legislative record. 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 AND FELLOWS OF HARVARD COLLEGE Gorsuch, J., concurring

ways been this Court's duty “to give effect, if possible, to every clause and word of a statute,” Montclair v. Ramsdell, 107 U. S. 147, 152 (1883), and of the Constitution itself, see Knowlton v. Moore, 178 U. S. 41, 87 (1900). In this country, “[o]nly the written word is the law, and all persons are enti- tled to its beneft.” Bostock, 590 U. S., at –––. When judges disregard these principles and enforce rules “inspired only by extratextual sources and [their] own imaginations,” they usurp a lawmaking function “reserved for the people's representatives.” Id., at –––. Today, the Court corrects course in its reading of the Equal Protection Clause. With that, courts should now also correct course in their treatment of Title VI. For years, they have read a solo opinion in Bakke like a statute while reading Title VI as a mere suggestion. A proper respect for the law demands the opposite. Title VI bears independ- ent force beyond the Equal Protection Clause. Nothing in Page Proof Pending Publication it grants special deference to university administrators. Nothing in it endorses racial discrimination to any degree or for any purpose. Title VI is more consequential than that. * In the aftermath of the Civil War, Congress took vital steps toward realizing the promise of equality under the law. As important as those initial efforts were, much work re- mained to be done—and much remains today. But by any measure, the Civil Rights Act of 1964 stands as a landmark on this journey and one of the Nation's great triumphs. We have no right to make a blank sheet of any of its provisions. And when we look to the clear and powerful command Con- gress set forth in that law, these cases all but resolve them- selves. Under Title VI, it is never permissible “ `to say “yes” to one person . . . but to say “no” to another person' ” even in part “ `because of the color of his skin.' ” Bakke, 438 U. S., at 418 (opinion of Stevens, J.). Cite as: 600 U. S. 181 (2023) 311

Kavanaugh, J., concurring

Justice Kavanaugh, concurring. I join the Court's opinion in full. I add this concurring opinion to further explain why the Court's decision today is consistent with and follows from the Court's equal protection precedents, including the Court's precedents on race-based affrmative action in higher education. Ratifed in 1868 in the wake of the Civil War, the Equal Protection Clause of the Fourteenth Amendment provides: “No State shall. . . deny to any person within its jurisdiction the equal protection of the laws.” U. S. Const., Amdt. 14, § 1. In accord with the Fourteenth Amendment's text and history, this Court considers all racial classifcations to be constitutionally suspect. See Grutter v. Bollinger, 539 U. S. 306, 326 (2003); Strauder v. West Virginia, 100 U. S. 303, 306– 308 (1880). As a result, the Court has long held that racial classifcations by the government, including race-based af- frmative action programs, are subject to strict judicial Page Proof Pending Publication scrutiny. Under strict scrutiny, racial classifcations are consti- tutionally prohibited unless they are narrowly tailored to further a compelling governmental interest. Grutter, 539 U. S., at 326–327. Narrow tailoring requires courts to ex- amine, among other things, whether a racial classifcation is “necessary”—in other words, whether race-neutral alterna- tives could adequately achieve the governmental interest. Id., at 327, 339–340; Richmond v. J. A. Croson Co., 488 U. S. 469, 507 (1989). Importantly, even if a racial classifcation is otherwise nar- rowly tailored to further a compelling governmental inter- est, a “deviation from the norm of equal treatment of all ra- cial and ethnic groups” must be “a temporary matter”—or stated otherwise, must be “limited in time.” Id., at 510 (plu- rality opinion of O'Connor, J.); Grutter, 539 U. S., at 342. In 1978, fve Members of this Court held that race-based affrmative action in higher education did not violate the Equal Protection Clause or Title VI of the Civil Rights Act, 312 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT AND FELLOWS OF HARVARD COLLEGE 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 Cite as: 600 U. S. 181 (2023) 313

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School will be illegal,” while also stating that “they are, for the reasons I have given, illegal now.” Id., at 375– 376. • Justice Kennedy referred to “the Court's pronouncement that race-conscious admissions programs will be unnec- essary 25 years from now.” Id., at 394 (dissenting opinion). • Justice Ginsburg, joined by Justice Breyer, acknowl- edged the Court's 25-year limit but questioned it, writ- ing that “one may hope, but not frmly forecast, that over the next generation's span, progress toward nondiscrimi- nation and genuinely equal opportunity will make it safe to sunset affrmative action.” Id., at 346 (concurring opinion). In allowing race-based affrmative action in higher educa- tion for another generation—and only for another genera- tion—the Court in Grutter took into account competing con- Page Proof Pending Publication siderations. The Court recognized the barriers that some minority applicants to universities still faced as of 2003, not- withstanding the progress made since Bakke. See Grutter, 539 U. S., at 343. The Court stressed, however, that “there are serious problems of justice connected with the idea of preference itself.” Id., at 341 (internal quotation marks omitted). And the Court added that a “core purpose of the Fourteenth Amendment was to do away with all governmen- tally imposed discrimination based on race.” Ibid. (internal quotation marks omitted). The Grutter Court also emphasized the equal protection principle that racial classifcations, even when otherwise per- missible, must be a “ `temporary matter,' ” and “must be limited in time.” Id., at 342 (quoting Croson, 488 U. S., at 510 (plurality opinion of O'Connor, J.)). The requirement of a time limit “refects that racial classifcations, however com- pelling their goals, are potentially so dangerous that they may be employed no more broadly than the interest de- 314 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT AND FELLOWS OF HARVARD COLLEGE 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 Page Proof Pending Publication race-based affrmative action in higher education could con- tinue only for another generation. 539 U. S., at 342–343. Harvard and North Carolina would prefer that the Court now ignore or discard Grutter's 25-year limit on race-based affrmative action in higher education, or treat it as a mere aspiration. But the 25-year limit constituted an important part of Justice O'Connor's nuanced opinion for the Court in Grutter. Indeed, four of the separate opinions in Grutter discussed the majority opinion's 25-year limit, which belies any suggestion that the Court's reference to it was insignif- cant or not carefully considered. In short, the Court in Grutter expressly recognized the serious issues raised by racial classifcations—particularly permanent or long-term racial classifications. And the Court “assure[d] all citizens” throughout America that “the deviation from the norm of equal treatment” in higher edu- cation could continue for another generation, and only for another generation. Ibid. (internal quotation marks omitted). 316 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT AND FELLOWS OF HARVARD COLLEGE Kavanaugh, J., concurring

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

*The Court's decision will frst apply to the admissions process for the college class of 2028, which is the next class to be admitted. Some might have debated how to calculate Grutter's 25-year period—whether it ends with admissions for the college class of 2028 or instead for the college class of 2032. But neither Harvard nor North Carolina argued that Grutter's 25-year period ends with the class of 2032 rather than the class of 2028. Indeed, notwithstanding the 25-year limit set forth in Grutter, neither university embraced any temporal limit on race-based affrmative action in higher education, or identifed any end date for its continued use of race in admissions. Ante, at 221–225. Cite as: 600 U. S. 181 (2023) 317

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tion programs. In the abstract, it might have been debat- able how long those race-based admissions programs could continue under the “temporary matter”/“limited in time” equal protection principle recognized and applied by this Court. Grutter, 539 U. S., at 342 (internal quotation marks omitted); cf. Dowell, 498 U. S., at 247–248. But in 2003, the Grutter Court applied that temporal equal protection princi- ple and resolved the debate: The Court declared that race- based affrmative action in higher education could continue for another generation, and only for another generation, at least absent something unexpected. Grutter, 539 U. S., at 343. As I have explained, the Court's pronouncement of a 25-year period—as both an extension of and an outer limit to race-based affrmative action in higher education—formed an important part of the carefully constructed Grutter deci- sion. I would abide by that temporal limit rather than dis- carding it, as today's dissents would do. Page Proof Pending Publication To be clear, although progress has been made since Bakke and Grutter, racial discrimination still occurs and the effects of past racial discrimination still persist. Federal and state civil rights laws serve to deter and provide remedies for current acts of racial discrimination. And governments and universities still “can, of course, act to undo the effects of past discrimination in many permissible ways that do not involve classifcation by race.” Croson, 488 U. S., at 526 (Scalia, J., concurring in judgment) (internal quotation marks omitted); 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- Page Proof Pending Publication ground and has improved racial diversity on college campuses. Although progress has been slow and imperfect, race-conscious college admissions policies have advanced the Constitution's guarantee of equality and have promoted Brown's vision of a Nation with more inclusive schools. Today, this Court stands in the way and rolls back decades of precedent and momentous progress. It holds that race can no longer be used in a limited way in college admissions to achieve such critical benefts. In so holding, the Court cements a superfcial rule of colorblindness as a constitu- tional principle in an endemically segregated society where race has always mattered and continues to matter. The Court subverts the constitutional guarantee of equal protec- tion by further entrenching racial inequality in education, the very foundation of our democratic government and plu-

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

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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

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

Congress acted on that recommendation and adopted the Fourteenth Amendment. Proponents of the Amendment declared that one of its key goals was to “protec[t] the black man in his fundamental rights as a citizen with the same shield which it throws over the white man.” Cong. Globe, 39th Cong., 1st Sess., 2766 (1866) (Cong. Globe) (statement of Sen. Howard). That is, the Amendment sought “to secure to a race recently emancipated, a race that through many generations [was] held in slavery, all the civil rights that the superior race enjoy.” Plessy v. Ferguson, 163 U. S. 537, 555–556 (1896) (Harlan, J., dissenting) (internal quotation marks omitted). To promote this goal, Congress enshrined a broad guaran- tee of equality in the Equal Protection Clause of the Amend- ment. That Clause commands that “[n]o State shall . . . deny to any person within its jurisdiction the equal protection of the laws.” Amdt. 14, § 1. Congress chose its words care- Page Proof Pending Publication fully, opting for expansive language that focused on equal protection and rejecting “proposals that would have made the Constitution explicitly color-blind.” A. Kull, The Color- Blind Constitution 69 (1992); see also, e. g., Cong. Globe 1287 (rejecting proposed language providing that “no State . . . shall . . . recognize any distinction between citizens . . . on account of race or color”). This choice makes it clear that the Fourteenth Amendment does not impose a blanket ban on race-conscious policies. Simultaneously with the passage of the Fourteenth Amendment, Congress enacted a number of race-conscious laws to fulfll the Amendment's promise of equality, leaving no doubt that the Equal Protection Clause permits consider- ation of race to achieve its goal. One such law was the Freedmen's Bureau Act, enacted in 1865 and then expanded in 1866, which established a federal agency to provide cer- tain benefts to refugees and newly emancipated freedmen. See Act of Mar. 3, 1865, ch. 90, 13 Stat. 507; Act of July 16, 1866, ch. 200, 14 Stat. 173. For the Bureau, education “was Cite as: 600 U. S. 181 (2023) 323

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

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

Indeed, contemporaries understood that the Freedmen's Bureau Act benefted Black people. Supporters defended the law by stressing its race-conscious approach. See, e. g., Cong. Globe 632 (statement of Rep. Moulton) (“[T]he true object of this bill is the amelioration of the condition of the colored people”); Joint Comm. Rep. 11 (reporting that “the Union men of the south” declared “with one voice” that the Bureau's efforts “protect[ed] the colored people”). Oppo- nents argued that the Act created harmful racial classifca- tions that favored Black people and disfavored white Ameri- cans. See, e. g., Cong. Globe 397 (statement of Sen. Willey) (the Act makes “a distinction on account of color between the two races”), 544 (statement of Rep. Taylor) (the Act is “legislation for a particular class of the blacks to the exclu- sion of all whites”), App. to Cong. Globe, 39th Cong., 1st Sess., 69–70 (statement of Rep. Rousseau) (“You raise a spirit of antagonism between the black race and the white race in Page Proof Pending Publication our country, and the law-abiding will be powerless to control it”). President Andrew Johnson vetoed the bill on the basis that it provided benefts “to a particular class of citizens,” 6 Messages and Papers of the Presidents 1789–1897, p. 425 (J. Richardson ed. 1897) (Messages and Papers) (A. Johnson to House of Rep. July 16, 1866), but Congress overrode his veto. Cong. Globe 3849–3850. Thus, rejecting those opponents' objections, the same Reconstruction Congress that passed the Fourteenth Amendment eschewed the concept of color- blindness as suffcient to remedy inequality in education. Congress also debated and passed the Civil Rights Act of 1866 contemporaneously with the Fourteenth Amendment. The goal of that Act was to eradicate the Black Codes enacted by Southern States following ratifcation of the Thir- teenth Amendment. See id., at 474. Because the Black Codes focused on race, not just slavery-related status, the Civil Rights Act explicitly recognized that white citizens en- joyed certain rights that non-white citizens did not. Section 1 of the Act provided that all persons “of every race and Cite as: 600 U. S. 181 (2023) 325

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color . . . shall have the same right[s]” as those “enjoyed by white citizens.” Act of Apr. 9, 1866, 14 Stat. 27. Similarly, § 2 established criminal penalties for subjecting racial minor- ities to “different punishment . . . by reason of . . . color or race, than is prescribed for the punishment of white per- sons.” Ibid. In other words, the Act was not colorblind. By using white citizens as a benchmark, the law classifed by race and took account of the privileges enjoyed only by white people. As he did with the Freedmen's Bureau Act, Presi- dent Johnson vetoed the Civil Rights Act in part because he viewed it as providing Black citizens with special treatment. See Messages and Papers 408, 413 (the Act is designed “to afford discriminating protection to colored persons,” and its “distinction of race and color . . . operate[s] in favor of the colored and against the white race”). Again, Congress over- rode his veto. Cong. Globe 1861. In fact, Congress reen- acted race-conscious language in the Civil Rights Act of 1870, Page Proof Pending Publication two years after ratifcation of the Fourteenth Amendment, see Act of May 31, 1870, § 16, 16 Stat. 144, where it remains today, 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- Page Proof Pending Publication tunity became the constitutional norm and infected every sector of our society, from bathrooms to military units and, crucially, schools. See Bakke, 438 U. S., at 393–394 (opinion of Marshall, J.); see also generally R. Rothstein, The Color of Law 17–176 (2017) (discussing various federal policies that promoted racial segregation). In a powerful dissent, Justice Harlan explained in Plessy that the Louisiana law at issue, which authorized segregation in railway carriages, perpetuated a “caste” system. 163 U. S., at 559–560. Although the State argued that the law 2 By the time the Fourteenth Amendment was ratifed by the States in 1868, “education had become a right of state citizenship in the constitution of every readmitted state,” including in North Carolina. D. Black, The Fundamental Right to Education, 94 Notre Dame L. Rev. 1059, 1089 (2019); see also Brief for Black Women Law Scholars as Amici Curiae 9 (“The herculean efforts of Black reformers, activists, and lawmakers dur- ing the Reconstruction Era forever transformed State constitutional law; today, thanks to the impact of their work, [nearly] every State constitution contains language guaranteeing the right to public education”). Cite as: 600 U. S. 181 (2023) 327

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“prescribe[d] a rule applicable alike to white and colored citi- zens,” all knew that the law's purpose was not “to exclude white persons from railroad cars occupied by blacks,” but “to exclude colored people from coaches occupied by or assigned to white persons.” Id., at 557. That is, the law “pro- ceed[ed] on the ground that colored citizens are so inferior and degraded that they cannot be allowed to sit in public coaches occupied by white citizens.” Id., at 560. Although “[t]he white race deems itself to be the dominant race . . . in prestige, in achievements, in education, in wealth and in power,” Justice Harlan explained, there is “no superior, dom- inant, ruling class of citizens” in the eyes of the law. Id., at 559. In that context, Justice Harlan thus announced his view that “[o]ur constitution is color-blind.” Ibid. It was not until half a century later, in Brown, that the Court honored the guarantee of equality in the Equal Protec- tion Clause and Justice Harlan's vision of a Constitution that Page Proof Pending Publication “neither knows nor tolerates classes among citizens.” 163 U. S., at 559. Considering the “effect[s] of segregation” and the role of education “in the light of its full development and its present place in American life throughout the Nation,” Brown overruled Plessy. 347 U. S., at 492–495. The Brown Court held that “[s]eparate educational facilities are inher- ently unequal,” and that such racial segregation deprives Black students “of the equal protection of the laws guaranteed by the Fourteenth Amendment.” Id., 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 AND FELLOWS OF HARVARD COLLEGE 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

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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

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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

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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

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(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

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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

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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 Cite as: 600 U. S. 181 (2023) 341

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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

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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

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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

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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

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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

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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- Cite as: 600 U. S. 181 (2023) 353

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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). Cite as: 600 U. S. 181 (2023) 355

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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. Cite as: 600 U. S. 181 (2023) 357

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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

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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 Cite as: 600 U. S. 181 (2023) 361

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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 Cite as: 600 U. S. 181 (2023) 363

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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- Cite as: 600 U. S. 181 (2023) 365

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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. Cite as: 600 U. S. 181 (2023) 367

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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 AND FELLOWS OF HARVARD COLLEGE 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). Cite as: 600 U. S. 181 (2023) 369

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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. Cite as: 600 U. S. 181 (2023) 371

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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 Cite as: 600 U. S. 181 (2023) 373

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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. Cite as: 600 U. S. 181 (2023) 375

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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 AND FELLOWS OF HARVARD COLLEGE 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 Cite as: 600 U. S. 181 (2023) 377

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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- Cite as: 600 U. S. 181 (2023) 379

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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 Cite as: 600 U. S. 181 (2023) 381

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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

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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

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(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

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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

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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

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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. Cite as: 600 U. S. 181 (2023) 393

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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. Cite as: 600 U. S. 181 (2023) 395

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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 AND FELLOWS OF HARVARD COLLEGE 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. Cite as: 600 U. S. 181 (2023) 397

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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 AND FELLOWS OF HARVARD COLLEGE 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. Cite as: 600 U. S. 181 (2023) 399

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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 AND FELLOWS OF HARVARD COLLEGE 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 Cite as: 600 U. S. 181 (2023) 401

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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 AND FELLOWS OF HARVARD COLLEGE 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, Cite as: 600 U. S. 181 (2023) 403

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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 AND FELLOWS OF HARVARD COLLEGE 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

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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 AND FELLOWS OF HARVARD COLLEGE 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). Cite as: 600 U. S. 181 (2023) 407

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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. Cite as: 600 U. S. 181 (2023) 409

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. Page Proof Pending Publication 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.

Page Proof Pending Publication 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”