STUDENTS
FOR FAIR ADMISSIONS, INC., PETITIONER v PRESIDENT AND
FELLOWS OF HARVARD
COLLEGE on writ of certiorari to
the united states court of appeals
for the first circuit STUDENTS
FOR FAIR ADMISSIONS, INC., PETITIONER v UNIVERSITY OF
NORTH CAROLINA on writ of certiorari
before judgment to the united states
court of appeals for the fourth circuit [June 29, 2023] Chief Justice Roberts delivered the
opinion of the Court. In these cases we consider whether the
admissions systems
used by Harvard College and the University of North
Carolina, two of the oldest
institutions of higher learning in the United States, are
lawful under the
Equal Protection Clause of the Fourteenth Amendment. I A Founded in 1636, Harvard College has
one of the most selective
application processes in the country. Over 60,000 people
applied to the school
last year; fewer than 2,000 were admitted. Gaining
admission to Harvard is thus
no easy feat. It can depend on having excellent grades,
glowing recommendation
letters, or overcoming significant adversity. It can also
depend on your race. The admissions process at Harvard works
as follows. Every
application is initially screened by a “first reader,” who
assigns scores in
six categories: academic, extracurricular, athletic,
school support, personal,
and overall. A rating of “1” is the best; a rating of “6”
the worst. In the
academic category, for example, a “1” signifies
“near-perfect standardized test
scores and grades”; in the extracurricular category, it
indicates “truly unusual
achievement”; and in the personal category, it denotes
“outstanding” attributes
like maturity, integrity, leadership, kindness, and
courage. A score of “1” on
the overall rating—a composite of the five other
ratings—“signifies an
exceptional candidate with >90% chance of admission.”
In assigning the
overall rating, the first readers “can and do take an
applicant’s race into
account.” Once the first read process is
complete, Harvard convenes
admissions subcommittees. Each subcommittee meets for
three to five days and
evaluates all applicants from a particular geographic
area. Ibid. The
subcommittees are responsible for making recommendations
to the full admissions
committee. The subcommittees can and do take an
applicant’s race into account
when making their recommendations. 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. 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. Each applicant
considered by the full
committee is discussed one by one, and every member of the
committee must vote
on admission. 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. The final stage of Harvard’s process is
called the “lop,”
during which the list of tentatively admitted students is
winnowed further to
arrive at the final class. Any applicants that Harvard
considers cutting at
this stage are placed on a “lop list,” which contains only
four pieces of
information: legacy status, recruited athlete status,
financial aid
eligibility, and race. The full committee decides as a
group which students to
lop. In doing so, the committee can and does take race
into account. Once the
lop process is complete, Harvard’s admitted class is set.
Ibid. In the Harvard
admissions process, “race is a determinative tip for” a
significant percentage
“of all admitted African American and Hispanic
applicants.” C Petitioner, Students for Fair
Admissions (SFFA), is a
nonprofit organization founded in 2014 whose purpose is
“to defend human and
civil rights secured by law, including the right of
individuals to equal
protection under the law.” In November 2014, SFFA filed
separate lawsuits
against Harvard College and the University of North
Carolina, arguing that
their race-based admissions programs violated,
respectively, Title VI of the
Civil Rights Act of 1964 and the Equal Protection Clause
of the Fourteenth
Amendment. The District Courts in both cases held bench
trials to evaluate
SFFA’s claims. 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.
Similarly, in the UNC case, the District Court concluded
after an eight-day
trial that UNC’s admissions program was permissible under
the Equal Protection
Clause. We granted certiorari in the Harvard
case and certiorari
before judgment in the UNC case. III A In the wake of the Civil War, Congress
proposed and the
States ratified the Fourteenth Amendment, providing that
no State shall “deny
to any person . . . the equal protection of the laws.”
Amdt. 14, §1. To its
proponents, the Equal Protection Clause represented a
“foundation[al]
principle”—“the absolute equality of all citizens of the
United States politically
and civilly before their own laws.” The Constitution, they
were determined,
“should not permit any distinctions of law based on race
or color.” As
soon-to-be President James Garfield observed, the
Fourteenth Amendment would
hold “over every American citizen, without regard to
color, the protecting
shield of law.” At first, this Court embraced the
transcendent aims of the
Equal Protection Clause. “What is this,” we said of the
Clause in 1880, “but
declaring that the law in the States shall be the same for
the black as for the
white; that all persons, whether colored or white, shall
stand equal before the
laws of the States?” Strauder v. West Virginia. “[T]he
broad and benign
provisions of the Fourteenth Amendment” apply “to all
persons,” we unanimously declared
six years later; it is “hostility to . . . race and
nationality” “which in the
eye of the law is not justified.” Despite our early recognition of the
broad sweep of the
Equal Protection Clause, this Court—alongside the
country—quickly failed to live
up to the Clause’s core commitments. For almost a century
after the Civil War,
state-mandated segregation was in many parts of the Nation
a regrettable norm.
This Court played its own role in that ignoble history,
allowing in Plessy v.
Ferguson the separate but equal regime that would come to
deface much of
America. 163 U.S. 537 (1896). After Plessy, “American courts . . .
labored with the
doctrine [of separate but equal] for over half a century.”
. . . By 1950, the
inevitable truth of the Fourteenth Amendment had thus
begun to reemerge:
Separate cannot be equal. The culmination of this approach came
finally in Brown v.
Board of Education. In that seminal decision, we
overturned Plessy for good and
set firmly on the path of invalidating all de jure racial
discrimination by the
States and Federal Government. The conclusion reached by
the Brown Court was
thus unmistakably clear: the right to a public education
“must be made
available to all on equal terms.” In the decades that followed, this
Court continued to
vindicate the Constitution’s pledge of racial equality.
Laws dividing parks and
golf courses; neighborhoods and businesses; buses and
trains; schools and
juries were undone, all by a transformative promise
“stemming from our American
ideal of fairness”: “ ‘the Constitution . . . forbids . .
. discrimination by
the General Government, or by the States, against any
citizen because of his
race.’ ” These decisions reflect the “core
purpose” of the Equal
Protection Clause: “do[ing] away with all governmentally
imposed discrimination
based on race.” 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. Any exception to the Constitution’s
demand for equal
protection must survive a daunting two-step examination
known in our cases as
“strict scrutiny.” Under that standard we ask, first,
whether the racial
classification is used to “further compelling governmental
interests.” Second,
if so, we ask whether the government’s use of race is
“narrowly
tailored”—meaning “necessary”—to achieve that interest. Outside the circumstances of these
cases, our precedents
have identified only two compelling interests that permit
resort to race-based
government action. One is remediating specific, identified
instances of past
discrimination that violated the Constitution or a
statute. The second is
avoiding imminent and serious risks to human safety in
prisons, such as a race
riot. 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.” B These cases involve whether a
university may make admissions
decisions that turn on an applicant’s race. Our Court
first considered that
issue in Regents of University of California v. Bakke,
which involved a set-aside
admissions program used by the University of California,
Davis, medical school.
. . . C In the years that followed our
“fractured decision in
Bakke,” lower courts “struggled to discern whether Justice
Powell’s” opinion
constituted “binding precedent.” 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. There, in
another sharply
divided decision, the Court for the first time “endorse[d]
Justice Powell’s
view that student body diversity is a compelling state
interest that can
justify the use of race in university admissions. . . . But even with these constraints in
place, Grutter expressed
marked discomfort with the use of race in college
admissions. The Court
stressed the fundamental principle that “there are serious
problems of justice
connected with the idea of [racial] preference itself” . .
. . To manage these concerns, Grutter
imposed one final limit on
race-based admissions programs. At some point, the Court
held, they must end. this
requirement was critical, and Grutter emphasized it
repeatedly. “[A]ll
race-conscious admissions programs [must] have a
termination point”; they “must
have reasonable durational limits”; they “must be limited
in time”; they must
have “sunset provisions”; they “must have a logical end
point”; their
“deviation from the norm of equal treatment” must be “a
temporary matter.” The
importance of an end point was not just a matter of
repetition. It was the reason
the Court was willing to dispense temporarily with the
Constitution’s
unambiguous guarantee of equal protection. The Court
recognized as much:
“[e]nshrining a permanent justification for racial
preferences,” the Court
explained, “would offend this fundamental equal protection
principle.” Grutter thus concluded with the
following caution: “It has
been 25 years since Justice Powell first approved the use
of race to further an
interest in student body diversity in the context of
public higher education. .
. . We expect that 25 years from now, the use of racial
preferences will no
longer be necessary to further the interest approved
today.” IV Twenty years later, no end is in sight.
“Harvard’s view
about when [race-based admissions will end] doesn’t have a
date on it.” Neither
does UNC’s. Yet both insist that the use of race in their
admissions programs
must continue. But we have permitted race-based
admissions only within the
confines of narrow restrictions. University programs must
comply with strict
scrutiny, they may never use race as a stereotype or
negative, and—at some
point—they must end. Respondents’ admissions
systems—however well intentioned
and implemented in good faith—fail each of these criteria.
They must therefore
be invalidated under the Equal Protection Clause of the
Fourteenth Amendment. A Because “[r]acial discrimination [is]
invidious in all
contexts,” we have required that universities operate
their race-based
admissions programs in a manner that is “sufficiently
measurable to permit judicial
[review]” under the rubric of strict scrutiny. Respondents have fallen short of
satisfying that burden.
First, the interests they view as compelling cannot be
subjected to meaningful
judicial review. Harvard identifies the following
educational benefits that it
is pursuing: (1) “training future leaders in the public
and private sectors”;
(2) preparing graduates to “adapt to an increasingly
pluralistic society”; (3)
“better educating its students through diversity”; and (4)
“producing new
knowledge stemming from diverse outlooks.” UNC points to
similar benefits. Although these are commendable goals,
they are not
sufficiently coherent for purposes of strict scrutiny. At
the outset, it is
unclear how courts are supposed to measure any of these
goals. How is a court
to know whether leaders have been adequately “train[ed]”;
whether the exchange
of ideas is “robust”; or whether “new knowledge” is being
developed? Even if
these goals could somehow be measured, moreover, how is a
court to know when
they have been reached, and when the perilous remedy of
racial preferences may
cease? There is no particular point at which there exists
sufficient
“innovation and problem-solving,” or students who are
appropriately “engaged
and productive.” Finally, the question in this context is
not one of no
diversity or of some: it is a question of degree. How many
fewer leaders
Harvard would create without racial preferences, or how
much poorer the
education at Harvard would be, are inquiries no court
could resolve. Comparing respondents’ asserted goals
to interests we have
recognized as compelling further illustrates their elusive
nature. In the
context of racial violence in a prison, for example,
courts can ask whether
temporary racial segregation of inmates will prevent harm
to those in the
prison. Nothing like that is possible when it comes to
evaluating the interests
respondents assert here. Unlike discerning whether a
prisoner will be injured,
the question whether a particular mix of minority students
produces “engaged
and productive citizens,” sufficiently “enhance[s]
appreciation, respect, and
empathy,” or effectively “train[s] future leaders” is
standardless. Second, respondents’ admissions
programs fail to articulate
a meaningful connection between the means they employ and
the goals they pursue
. . . . It is far from evident, though, how assigning
students to these racial
categories and making admissions decisions based on them
furthers the
educational benefits that the universities claim to
pursue. For starters, the categories are
themselves imprecise in
many ways. Some of them are plainly overbroad: by grouping
together all Asian
students, for instance, respondents are apparently
uninterested in whether
South Asian or East Asian students are adequately
represented, so long as there
is enough of one to compensate for a lack of the other.
Meanwhile other racial
categories, such as “Hispanic,” are arbitrary or
undefined. And still other
categories are underinclusive. When asked at oral argument
“how are applicants
from Middle Eastern countries classified, [such as]
Jordan, Iraq, Iran, [and]
Egypt,” UNC’s counsel responded, “[I] do not know the
answer to that question.”
Indeed, the use of these opaque racial
categories
undermines, instead of promotes, respondents’ goals. By
focusing on
underrepresentation, respondents would apparently prefer a
class with 15% of
students from Mexico over a class with 10% of students
from several Latin
American countries, simply because the former contains
more Hispanic students
than the latter. Yet “[i]t is hard to understand how a
plan that could allow
these results can be viewed as being concerned with
achieving enrollment that
is ‘broadly diverse.’ ” And given the mismatch between the
means respondents
employ and the goals they seek, it is especially hard to
understand how courts
are supposed to scrutinize the admissions programs that
respondents use. The universities’ main response to
these criticisms is,
essentially, “trust us.” None of the questions recited
above need answering,
they say, because universities are “owed deference” when
using race to benefit
some applicants but not others. It is true that our cases
have recognized a
“tradition of giving a degree of deference to a
university’s academic
decisions.” But we have been unmistakably clear that any
deference must exist
“within constitutionally prescribed limits,” and that
“deference does not imply
abandonment or abdication of judicial review,”
Universities may define their
missions as they see fit. The Constitution defines ours.
Courts may not license
separating students on the basis of race without an
exceedingly persuasive
justification that is measurable and concrete enough to
permit judicial review.
As this Court has repeatedly reaffirmed, “[r]acial
classifications are simply
too pernicious to permit any but the most exact connection
between
justification and classification.” The programs at issue
here do not satisfy
that standard. B The race-based admissions systems that
respondents employ
also fail to comply with the twin commands of the Equal
Protection Clause that
race may never be used as a “negative” and that it may not
operate as a
stereotype. First, our cases have stressed that an
individual’s race may
never be used against him in the admissions process. Here,
however, the First
Circuit found that Harvard’s consideration of race has led
to an 11.1% decrease
in the number of Asian-Americans admitted to Harvard. And
the District Court
observed that Harvard’s “policy of considering applicants’
race . . . overall
results in fewer Asian American and white students being
admitted.” Respondents nonetheless contend that an
individual’s race is
never a negative factor in their admissions programs, but
that assertion cannot
withstand scrutiny. Harvard, for example, draws an analogy
between race and
other factors it considers in admission. “[W]hile
admissions officers may give
a preference to applicants likely to excel in the
Harvard-Radcliffe Orchestra,”
Harvard explains, “that does not mean it is a ‘negative’
not to excel at a
musical instrument.” 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. This
understanding of the admissions process is hard to take
seriously. College
admissions are zero-sum. A benefit provided to some
applicants but not to
others necessarily advantages the former group at the
expense of the latter. Respondents’ admissions programs are
infirm for a second
reason as well. We have long held that universities may
not operate their
admissions programs on the “belief that minority students
always (or even
consistently) express some characteristic minority
viewpoint on any issue.”
That requirement is found throughout our Equal Protection
Clause jurisprudence
more generally. Yet by accepting race-based admissions
programs in which
some students may obtain preferences on the basis of race
alone, respondents’
programs tolerate the very thing that Grutter foreswore:
stereotyping. The
point of respondents’ admissions programs is that there is
an inherent benefit
in race qua race—in race for race’s sake. Respondents
admit as much. Harvard’s
admissions process rests on the pernicious stereotype that
“a black student can
usually bring something that a white person cannot offer.”
UNC is much the
same. It argues that race in itself “says [something]
about who you are.” 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.” The entire
point of the Equal Protection Clause is that treating
someone differently
because of their skin color is not like treating them
differently because they
are from a city or from a suburb, or because they play the
violin poorly or
well. “One of the principal reasons race is
treated as a forbidden
classification is that it demeans the dignity and worth of
a person to be
judged by ancestry instead of by his or her own merit and
essential qualities.”
But when a university admits students “on the basis of
race, it engages in the
offensive and demeaning assumption that [students] of a
particular race,
because of their race, think alike,” —at the very least
alike in the sense of
being different from nonminority students. In doing so,
the university furthers
“stereotypes that treat individuals as the product of
their race, evaluating
their thoughts and efforts—their very worth as
citizens—according to a
criterion barred to the Government by history and the
Constitution.” Such
stereotyping can only “cause[ ] continued hurt and injury”
contrary as it is to
the “core purpose” of the Equal Protection Clause. C If all this were not enough,
respondents’ admissions
programs also lack a “logical end point” . . . . Harvard concedes that its race-based
admissions program has
no end point. 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.
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.” In short, there is no reason to
believe that respondents
will—even acting in good faith—comply with the Equal
Protection Clause any time
soon. V The dissenting opinions resist these
conclusions. They would
instead uphold respondents’ admissions programs based on
their view that the
Fourteenth Amendment permits state actors to remedy the
effects of societal
discrimination through explicitly race-based measures.
Although both opinions
are thorough and thoughtful in many respects, this Court
has long rejected their
core thesis. . . . The principal dissent wrenches our case
law from its
context, going to lengths to ignore the parts of that law
it does not like. The
serious reservations that Bakke, Grutter, and Fisher had
about racial
preferences go unrecognized. The unambiguous requirements
of the Equal
Protection Clause—“the most rigid,” “searching” scrutiny
it entails—go without
note. And the repeated demands that race-based admissions
programs must end go
overlooked—contorted, worse still, into a demand that such
programs never stop. Most troubling of all is what the
dissent must make these
omissions to defend: a judiciary that picks winners and
losers based on the
color of their skin. While the dissent would certainly not
permit university
programs that discriminated against black and Latino
applicants, it is
perfectly willing to let the programs here continue. In
its view, this Court is
supposed to tell state actors when they have picked the
right races to benefit.
Separate but equal is “inherently unequal.” It depends,
says the dissent. That is a remarkable view of the
judicial role—remarkably
wrong. Lost in the false pretense of judicial humility
that the dissent
espouses is a claim to power so radical, so destructive,
that it required a
Second Founding to undo. “Justice Harlan knew better,” one
of the dissents
decrees. Indeed he did: “[I]n view of the Constitution, in the
eye of the law, there
is in this country no superior, dominant, ruling class of
citizens. There is no
caste here. Our Constitution is color-blind, and neither
knows nor tolerates
classes among citizens.” VI For the reasons provided above, the
Harvard and UNC
admissions programs cannot be reconciled with the
guarantees of the Equal
Protection Clause. Both programs lack sufficiently focused
and measurable
objectives warranting the use of race, unavoidably employ
race in a negative
manner, involve racial stereotyping, and lack meaningful
end points. We have
never permitted admissions programs to work in that way,
and we will not do so
today. At the same time, as all parties agree,
nothing in this
opinion should be construed as prohibiting universities
from considering an
applicant’s discussion of how race affected his or her
life, be it through
discrimination, inspiration, or otherwise. But, despite
the dissent’s assertion
to the contrary, universities may not simply establish
through application
essays or other means the regime we hold unlawful today.
(A dissenting opinion
is generally not the best source of legal advice on how to
comply with the majority
opinion.) “[W]hat cannot be done directly cannot be done
indirectly. The
Constitution deals with substance, not shadows,” and the
prohibition against
racial discrimination is “levelled at the thing, not the
name.” A benefit to a
student who overcame racial discrimination, for example,
must be tied to that
student’s courage and determination. Or a benefit to a
student whose heritage
or culture motivated him or her to assume a leadership
role or attain a
particular goal must be tied to that student’s unique
ability to contribute to
the university. In other words, the student must be
treated based on his or her
experiences as an individual—not on the basis of race. Many universities have for too long
done just the opposite.
And in doing so, they have concluded, wrongly, that the
touchstone of an
individual’s identity is not challenges bested, skills
built, or lessons
learned but the color of their skin. Our constitutional
history does not
tolerate that choice. The judgments of the Court of Appeals
for the First Circuit
and of the District Court for the Middle District of North
Carolina are
reversed. Notes 1
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. 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. And in the
third highest decile, 77%
of black applicants were admitted, compared to 48% of
white applicants and 34%
of Asian applicants. The same is true at Harvard. An
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%).” 2
Title VI provides
that “[n]o person in the United States shall, on the
ground of race, color, or
national origin, be excluded from participation in, be
denied the benefits of,
or be subjected to discrimination under any program or
activity receiving
Federal financial assistance.” 42 U. S. C. §2000d. “We
have explained that
discrimination that violates the Equal Protection Clause
of the Fourteenth
Amendment committed by an institution that accepts federal
funds also constitutes
a violation of Title VI.” 4
The United States
as amicus curiae contends that race-based admissions
programs further
compelling interests at our Nation’s military academies.
No military academy is
a party to these cases, however, and none of the courts
below addressed the
propriety of race-based admissions systems in that
context. This opinion also
does not address the issue, in light of the potentially
distinct interests that
military academies may present. 7
The dissent does
not and cannot dispute that the share of black and
Hispanic students at
Harvard—“the primary beneficiaries” of its race-based
admissions policy—has
remained consistent for decades. For all
the talk of holistic and contextual judgments, the racial
preferences at issue
here in fact operate like clockwork. 9
The principal
dissent rebukes the Court for not considering adequately
the reliance interests
respondents and other universities had in Grutter. But as
we have explained,
Grutter itself limited the reliance that could be placed
upon it by insisting,
over and over again, that race-based admissions programs
be limited in time.
Grutter indeed went so far as to suggest a specific period
of reliance—25
years—precluding the indefinite reliance interests that
the dissent
articulates. Those interests are, moreover, vastly
overstated on their own
terms. Three out of every five American universities do
not consider race in
their admissions decisions. And several States—including
some of the most
populous (California, Florida, and Michigan)—have
prohibited race-based
admissions outright. |