Primary Source: Students for Fair Admissions v. Harvard (2023)

These cases involve a constitutional challenge to the use of affirmative action in university admissions. In particular, Students for Fair Admissions brought a Fourteenth Amendment challenge to the race-conscious admissions policies of Harvard University and the University of North Carolina. In prior cases, the Supreme Court had recognized a university’s compelling interest in promoting campus diversity through its admissions process. However, the Court had only permitted universities to consider an applicant’s race as one factor among many in their admissions decisions. In a 6-3 ruling, the Supreme Court—in a majority opinion authored by Chief Justice John Roberts—held that the race-conscious admissions policies of both Harvard and the University of North Carolina violated the Equal Protection Clause of the Fourteenth Amendment.

[Our past decisions, including Brown v. Board of Education,] 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 . . . applies “without regard to any differences of race, of color, or of nationality”—it is “universal in [its] application.”… 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.”…

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….

These cases involve whether a university may make admissions decisions that turn on an applicant’s race….

[Our past cases regarding similar policies] 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. [The Harvard and University of North Carolina] 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….

[T]he 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, namely, “(1) promoting the robust exchange of ideas; (2) broadening and refining understanding; (3) fostering innovation and problem-solving; (4) preparing engaged and productive citizens and leaders; [and] (5) enhancing appreciation, respect, and empathy, cross-racial understanding, and breaking down stereotypes.”…

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? …

[O]ur 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’ 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.” 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 [our precedent] foreswore: stereotyping.…

[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”… 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.”…

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 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 Equal Protection Clause of the Fourteenth Amendment 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 Education… the Court recognized the constitutional necessity of racially integrated schools in light of the harm inflicted by segregation and the “importance of education to our democratic society.”…

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 system wherein Black children receive inferior educational opportunities “solely because of their race,” denoting “inferiority as to their status in the community.”… Moreover, because education is “the very foundation of good citizenship,” segregation in public education harms “our democratic society” more broadly as well…. 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.”…

This compelling interest in student body diversity is grounded not only in the Court’s equal protection jurisprudence but also in principles of “academic freedom,” which “ ‘long [have] been viewed as a special concern of the First Amendment.’… [T]his Court’s precedents recognize the imperative nature of diverse student bodies on American college campuses…. Consistent 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. ”… Indeed, as the Court recently reaffirmed in another school case, “learning how to tolerate diverse expressive activities has always been ‘part of learning how to live in a pluralistic society’ ” under our constitutional tradition….

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… 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 specifically, for Harvard and the University 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.…

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 Protection Clause permits race-conscious measures…. Consistent with that view, the Court has explicitly held that “race-based action” is sometimes “within constitutional constraints.”… The Court has thus upheld the use of race in a variety of contexts….

True equality of educational opportunity in racially diverse 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 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 institutions attempting to remedy their legacies of racial exclusion must operate with a blindfold.

Today, this Court overrules decades of precedent and imposes a superficial 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 segregation in higher education because racial inequality will persist so long as it is ignored….

Justice Sotomayor has persuasively established that nothing in the Constitution… prohibits institutions from taking race into account to ensure the racial diversity of admits in higher education. I join her opinion without qualification. I write separately to expound upon the universal benefits of considering race in this context, in response 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….

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 that anyone is now victimized if a college considers whether that legacy of discrimination has unequally advantaged its applicants fails to acknowledge the well- documented “intergenerational transmission of inequality” that still plagues our citizenry….

With let-them-eat-cake obliviousness, today, the majority pulls the ripcord and announces “colorblindness for all” by legal fiat. But deeming race irrelevant in law does not make it so in life. And having so detached itself from this country’s actual past and present experiences, the Court has now been lured into interfering with the crucial work that [universities] are doing to solve America’s real-world problems.

No one benefits from ignorance. Although formal race-linked legal barriers are gone, race still matters to the lived experiences of all Americans in innumerable ways, and today’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 race will end racism. But if that is its motivation, the majority 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, ultimately, ignoring race just makes it matter more.

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 field 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 colorblind world the majority wistfully touts much more difficult to accomplish….