Cite as: 600 U. S.

____ (2023) 1

SOTOMAYOR, J., dissenting

SUPREME COURT OF THE UNITED STATES

_________________

Nos. 20–1199 and 21–707

_________________

STUDENTS FOR FAIR ADMISSIONS, INC.,

PETITIONER
20–1199 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
21–707 v.
UNIVERSITY OF NORTH CAROLINA, ET AL.
ON WRIT OF CERTIORARI BEFORE JUDGMENT TO THE UNITED
STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
[June 29, 2023]

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 Education,
347 U. S. 483 (1954), the Court recognized the constitu-
tional necessity of racially integrated schools in light of the

——————
*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.
2 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
SOTOMAYOR, J., dissenting

harm inflicted by segregation and the “importance of edu-

cation 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 lim-
ited purpose of promoting the important benefits of racial
diversity. This limited use of race has helped equalize edu-
cational opportunities for all students of every race and
background 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 dec-
ades of precedent and momentous progress. It holds that
race can no longer be used in a limited way in college ad-
missions to achieve such critical benefits. In so holding, the
Court cements a superficial rule of colorblindness as a con-
stitutional principle in an endemically segregated society
where race has always mattered and continues to matter.
The Court subverts the constitutional guarantee of equal
protection by further entrenching racial inequality in edu-
cation, the very foundation of our democratic government
and pluralistic society. Because the Court’s opinion is not
grounded in law or fact and contravenes the vision of equal-
ity embodied 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 ca-
pacity to engage in self-rule were vital. At the same time,
American society was structured around the profitable in-
stitution that was slavery, which the original Constitution
 Cite as: 600 U. S. ____ (2023) 3

SOTOMAYOR, J., dissenting

protected. The Constitution initially limited the power of

Congress to restrict the slave trade, Art. I, §9, cl. 1, ac-
corded Southern States additional electoral power by count-
ing three-fifths of their enslaved population in apportioning
congressional seats, §2, cl. 3, and gave enslavers the right
to retrieve enslaved 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 longevity 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 first Af-
rican enslaved persons were forcibly brought to our shores,
Congress adopted the Thirteenth Amendment to the Con-
stitution, which abolished “slavery” and “involuntary servi-
tude, except as a punishment for crime.” §1. “Like all great
historical transformations,” emancipation was a move-
ment, “not a single event” owed to any single individual, in-
stitution, or political party. E. Foner, The Second Founding
21, 51–54 (2019) (The Second Founding).
The fight 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 inferiority
which slavery forced upon [Black people] fathered an in-
tense desire to rise out of their condition by means of edu-
cation.” W. E. B. Du Bois, Black Reconstruction in America
4 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
SOTOMAYOR, J., dissenting

1860–1880, p. 638 (1935); see J. Anderson, The Education

of Blacks in the South 1860–1935, p. 7 (1988). Black Amer-
icans thus insisted, in the words of Frederick Douglass,
“that in a country governed by the people, like ours, educa-
tion of the youth of all classes is vital to its welfare, pros-
perity, 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 Reconstruction 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-
fication, the Southern States replaced slavery with “a sys-
tem of ‘laws which imposed upon [Black people] onerous
disabilities and burdens, and curtailed their rights in the
pursuit of life, liberty, and property to such an extent that
their freedom 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 the basis of race, regardless of whether they had
been previously enslaved. See, e.g., 1866 N. C. Sess. Laws
pp. 99, 102.
Moreover, the criminal punishment exception in the
Thirteenth Amendment facilitated the creation of a new
system of forced labor in the South. Southern States ex-
panded their criminal laws, which in turn “permitted invol-
untary servitude as a punishment” for convicted Black per-
sons. 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 required, for example, that Black people “sign a la-
bor contract to work for a white employer or face prosecu-
tion for vagrancy.” The Second Founding 48. State laws
 Cite as: 600 U. S. ____ (2023) 5

SOTOMAYOR, J., dissenting

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 benefits to South-
ern whites and was designed to intimidate, subjugate, and
control newly emancipated Black people. See Slavery by
Another Name 5–6, 53. The Thirteenth Amendment, with-
out 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 peo-
ple in the Southern States and the lack of a “general dispo-
sition to place the colored race, constituting at least two-
fifths of the population, upon terms even of civil equality.”
Id., at 11. In light of its findings, the Committee proposed
amending the Constitution to secure the equality of “rights,
civil and political.” Id., at 7.
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 guar-
antee of equality in the Equal Protection Clause of the
6 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
SOTOMAYOR, J., dissenting

Amendment. That Clause commands that “[n]o State shall

. . . deny to any person within its jurisdiction the equal pro-
tection of the laws.” Amdt. 14, §1. Congress chose its words
carefully, 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 citi-
zens . . . 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 fulfill the Amendment’s promise of equality, leav-
ing no doubt that the Equal Protection Clause permits
consideration of race to achieve its goal. One such law was
the Freedmen’s Bureau Act, enacted in 1865 and then ex-
panded in 1866, which established a federal agency to pro-
vide certain benefits 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, ed-
ucation “was the foundation upon which all efforts to assist
the freedmen rested.” E. Foner, Reconstruction: America’s
Unfinished Revolution 1863–1877, p. 144 (1988). Con-
sistent with that view, the Bureau provided essential “fund-
ing for black education during Reconstruction.” Id., at 97.
Black people were the targeted beneficiaries 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
Bureau “educated approximately 100,000 students, nearly
all of them black,” and regardless of “degree of past disad-
vantage.” E. Schnapper, Affirmative Action and the Legis-
lative History of the Fourteenth Amendment, 71 Va. L. Rev.
 Cite as: 600 U. S. ____ (2023) 7

SOTOMAYOR, J., dissenting

753, 781 (1985). The Bureau also provided land and fund-
ing to establish some of our Nation’s Historically Black Col-
leges 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 thousands of dollars to buy property and construct
its campus in our Nation’s capital. 2 O. Howard, Autobiog-
raphy 397–401 (1907). Howard University was designed to
provide “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 con-
dition.” 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 798,
n. 149.
Indeed, contemporaries understood that the Freedmen’s
Bureau Act benefited 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 classifica-
tions that favored Black people and disfavored white Amer-
icans. 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
——————
1 As JUSTICE THOMAS acknowledges, the HBCUs, including Howard

University, account for a high proportion of Black college graduates.

Ante, at 56–57 (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.
8 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
SOTOMAYOR, J., dissenting

“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 our country, and the law-abiding will be powerless
to control it”). President Andrew Johnson vetoed the bill on
the basis that it provided benefits “to a particular class of
citizens,” 6 Messages and Papers of the Presidents 1789–
1897, p. 425 (J. Richardson ed. 1897) (Messages & 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 Con-
gress that passed the Fourteenth Amendment eschewed the
concept of colorblindness as sufficient 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 en-
acted by Southern States following ratification 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
color . . . shall have the same right[s]” as those “enjoyed by
white citizens.” Act of Apr. 9, 1866, 14 Stat. 27. Similarly,
Section 2 established criminal penalties for subjecting ra-
cial minorities to “different punishment . . . by reason of . . .
color or race, than is prescribed for the punishment of white
persons.” Ibid. In other words, the Act was not colorblind.
By using white citizens as a benchmark, the law classified
by race and took account of the privileges enjoyed only by
white people. As he did with the Freedmen’s Bureau Act,
President Johnson vetoed the Civil Rights Act in part be-
cause he viewed it as providing Black citizens with special
treatment. See Messages and Papers 408, 413 (the Act is
 Cite as: 600 U. S. ____ (2023) 9

SOTOMAYOR, J., dissenting

designed “to afford discriminating protection to colored per-

sons,” and its “distinction of race and color . . . operate[s] in
favor of the colored and against the white race”). Again,
Congress overrode his veto. Cong. Globe 1861. In fact, Con-
gress reenacted race-conscious language in the Civil Rights
Act of 1870, two years after ratification 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 benefit of racial minorities. For example,
it appropriated money for “ ‘the relief of destitute colored
women and children,’ ” without regard to prior enslave-
ment. Act of July 28, 1866, 14 Stat. 317. Several times
during and after the passage of the Fourteenth Amend-
ment, Congress also made special appropriations and
adopted special protections for the bounty and prize money
owed to “colored soldiers 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” “applicable 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 “incon-
ceivable” that race-conscious college admissions are uncon-
stitutional. Bakke, 438 U. S., at 398 (opinion of Marshall,
J.).2

——————
2 By the time the Fourteenth Amendment was ratified by the States in

1868, “education had become a right of state citizenship in the constitu-

tion 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 Scholars as Amici Curiae 9 (“The
herculean efforts of Black reformers, activists, and lawmakers during the
Reconstruction Era forever transformed State constitutional law; today,
thanks to the impact of their work, every State constitution contains lan-
guage guaranteeing the right to public education”).
10 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
SOTOMAYOR, J., dissenting

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 “sub-
stantive protections” of the Reconstruction Amendments
and the Civil Rights Acts. Id., at 391–392 (collecting cases).
That endeavor culminated with the Court’s shameful deci-
sion in Plessy v. Ferguson, 163 U. S. 537 (1896), which es-
tablished 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 opportunity became the constitutional norm and in-
fected every sector of our society, from bathrooms to mili-
tary 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 var-
ious federal policies that promoted racial segregation).
In a powerful dissent, Justice Harlan explained in Plessy
that the Louisiana law at issue, which authorized segrega-
tion in railway carriages, perpetuated a “caste” system. 163
U. S., at 559–560. Although the State argued that the law
“prescribe[d] a rule applicable alike to white and colored cit-
izens,” 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 as-
signed 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,
 Cite as: 600 U. S. ____ (2023) 11

SOTOMAYOR, J., dissenting

dominant, 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 Pro-
tection Clause and Justice Harlan’s vision of a Constitution
that “neither knows nor tolerates classes among citizens.”
Ibid. Considering the “effect[s] of segregation” and the role
of education “in the light of its full development and its pre-
sent 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 inherently
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 racially
integrated system of public education “with all deliberate
speed,” “ordering the immediate admission of [Black chil-
dren] to schools previously attended only by white chil-
dren.” 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-
portunities “solely because of their race,” denoting “inferi-
ority as to their status in the community.” 347 U. S., at 494,
and n. 10. Moreover, because education is “the very foun-
dation 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 democ-
racy, Brown recognized the constitutional necessity of a ra-
cially integrated system of schools where education is
“available to all on equal terms.” Ibid.
12 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
SOTOMAYOR, J., dissenting

The desegregation cases that followed Brown confirm

that the ultimate goal of that seminal decision was to
achieve a system of integrated schools that ensured racial
equality of opportunity, 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 allowed “every student, regardless of race,
. . . ‘freely’ [to] choose the school he [would] attend,” was in-
sufficient to effectuate “the command of [Brown].” Id., at
437, 441–442. That command, the Court explained, was
that schools dismantle “well-entrenched dual systems” and
transition “to a unitary, nonracial system of public educa-
tion.” Id., at 435–436. That the board “opened the doors of
the former ‘white’ school to [Black] children and the
[‘Black’] school to white children” on a race-blind basis was
not enough. Id., at 437. Passively eliminating race classi-
fications did not suffice when de facto segregation persisted.
Id., at 440–442 (noting that 85% of Black children in the
school system were still attending an all-Black school). In-
stead, the board was “clearly charged with the affirmative
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. Affirmative
steps, this Court held, are constitutionally necessary when
mere formal neutrality cannot achieve Brown’s promise of
racial equality. See Green, 391 U. S., at 440–442; see also
North Carolina Bd. of Ed. v. Swann, 402 U. S. 43, 45–46
(1971) (holding that North Carolina statute that forbade
the use of race in school busing “exploits an apparently neu-
tral form to control school assignment plans by directing
that they be ‘colorblind’; that requirement, against the
background of segregation, would render illusory the prom-
ise of Brown”); Dayton Bd. of Ed. v. Brinkman, 443 U. S.
526, 538 (1979) (school board “had to do more than abandon
 Cite as: 600 U. S. ____ (2023) 13

SOTOMAYOR, J., dissenting

its prior discriminatory purpose”; it “had an affirmative re-

sponsibility” to integrate); Keyes v. School Dist. No. 1, Den-
ver, 413 U. S. 189, 200 (1973) (“[T]he State automatically
assumes an affirmative 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 suggest-
ing that “restor[ing] race as a criterion in the operation of
the public schools” was at odds with “the Brown decisions.”
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 nondiscrimi-
natory basis.” Id., at 11 (emphasis deleted). Relying on
Justice Harlan’s dissent in Plessy, they argued that the use
of race “is improper” because the “ ‘Constitution is color-
blind.’ ” 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, ar-
guing that the Brown plaintiffs “understood” that Brown’s
“mandate” was colorblindness. Green Brief 17. This Court
rejected 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 decision.
Id., at 440. The ultimate goal is racial equality of oppor-
tunity.
Those rejected arguments mirror the Court’s opinion to-
day. The Court claims that Brown requires that students
——————
3 The majority suggests that “it required a Second Founding to undo”

programs that help ensure racial integration and therefore greater

equality in education. Ante, at 38. At the risk of stating the blindingly
obvious, and as Brown recognized, the Fourteenth Amendment was in-
tended to undo the effects of a world where laws systematically subordi-
nated Black people and created a racial caste system. Cf. Dred Scott v.
Sandford, 19 How. 393, 405 (1857). Brown and its progeny recognized
the need to take affirmative, race-conscious steps to eliminate that sys-
tem.
14 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
SOTOMAYOR, J., dissenting

be admitted “ ‘on a racially nondiscriminatory basis.’ ” Ante,

at 13. It distorts the dissent in Plessy to advance a color-
blindness theory. Ante, at 38–39; see also ante, at 22
(GORSUCH, J., concurring) (“[T]oday’s decision wakes the
echoes of Justice John Marshall Harlan [in Plessy]”); ante,
at 3 (THOMAS, J., concurring) (same). The Court also in-
vokes the Brown litigators, relying on what the Brown
“plaintiffs had argued.” Ante, at 12; ante, at 35–36, 39, n. 7
(opinion of THOMAS, J.).
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
conception of equal protection” endorsed by the Court’s rul-
ing 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 admissions
process.” 438 U. S., at 400. In fact, Justice Marshall’s view
was that Bakke’s holding should have been even more pro-
tective 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 Ameri-
cans]”). The Court’s recharacterization of Brown is nothing
but revisionist history and an affront to the legendary life
of Justice Marshall, a great jurist who was a champion of
true equal opportunity, not rhetorical flourishes 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
 Cite as: 600 U. S. ____ (2023) 15

SOTOMAYOR, J., dissenting

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 file, and each applicant re-
ceives individualized review as part of a holistic admissions
process. Id., at 316–318.
Since Bakke, the Court has reaffirmed numerous times
the constitutionality of limited race-conscious college ad-
missions. First, in Grutter v. Bollinger, 539 U. S. 306
(2003), a majority of the Court endorsed the Bakke plural-
ity’s “view that student body diversity is a compelling state
interest that can justify the use of race in university admis-
sions,” 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 con-
sidered in college admissions “to remedy identified discrim-
ination” and that diversity is “ ‘too open-ended, ill-defined,
and indefinite to constitute a compelling interest’ ”).
Later, in the Fisher litigation, the Court twice reaffirmed
that a limited use of race in college admissions is constitu-
tionally permissible if it satisfies 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 Fourteenth
Amendment if it “is narrowly tailored to obtain the educa-
tional benefits of diversity.” Id., at 314, 337. Several years
later, in Fisher v. University of Texas at Austin, 579 U. S.
365, 376 (2016) (Fisher II), the Court upheld the admissions
program at the University of Texas under this framework.
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
16 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
SOTOMAYOR, J., dissenting

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 in-
creasingly 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 qualified individuals of every
race and ethnicity” instill public confidence in the “legiti-
macy” and “integrity” of those institutions and the diverse
set of graduates that they cultivate. Id., at 332. That is
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 in-
terest” indeed, that universities pursue the benefits 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 associ-
ated with the university environment,” this Court’s prece-
dents recognize the imperative nature of diverse student
bodies on American college campuses. 539 U. S., at 329.
Consistent with the First Amendment, student body diver-
sity 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 omit-
ted). Indeed, as the Court recently reaffirmed in another
 Cite as: 600 U. S. ____ (2023) 17

SOTOMAYOR, J., dissenting

school case, “learning how to tolerate diverse expressive ac-

tivities 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)
(slip op., at 29); cf. Khorrami v. Arizona, 598 U. S. ___, ___
(2022) (GORSUCH, J., dissenting from denial of certiorari)
(slip op., at 8) (collecting research showing that larger juries
are more likely to be racially diverse and “deliberate longer,
recall information better, and pay greater attention to dis-
senting 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
college admissions in service of the educational benefits
that flow from a diverse student body. From Brown to
Fisher, this Court’s cases have sought to equalize educa-
tional opportunity in a society structured by racial segrega-
tion 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 2–17,
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 Uni-
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 re-
quires acknowledgment of inequality.
18 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
SOTOMAYOR, J., dissenting

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 stu-
dent enrollment.4 The share of intensely segregated minor-
ity schools (i.e., schools that enroll 90% to 100% racial mi-
norities) 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
Moreover, underrepresented minority students are
more likely to live in poverty and attend schools with a
high concentration of poverty.7 When combined with resi-
dential 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 (1973) (Marshall, J., dissenting) (noting school fund-
ing disparities that result from local property taxation).8 In

——————
4 See GAO, Report to the Chairman, Committee on Education and La-

bor, House of Representatives, K–12 Education: Student Population Has

Significantly Diversified, but Many Schools Remain Divided Along Ra-
cial, Ethnic, and Economic Lines 13 (GAO–22–104737, June 2022) (here-
inafter GAO Report).
5 G. Orfield, 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 La-

tino schools have at least 75% of their students eligible for free or
reduced-price lunch—a proxy for poverty).
8 See also L. Clark, Barbed Wire Fences: The 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
 Cite as: 600 U. S. ____ (2023) 19

SOTOMAYOR, J., dissenting

turn, underrepresented minorities are more likely to attend

schools with less qualified teachers, less challenging curric-
ula, lower standardized test scores, and fewer extracurric-
ular 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
racial minorities exist beyond school resources. Students of
color, particularly Black students, are disproportionately
disciplined or suspended, interrupting their academic pro-
gress and increasing their risk of involvement with the
criminal 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
Further, low-income children of color are less likely to at-
tend preschool and other early childhood education pro-
grams that increase educational attainment.13 All of these

——————
School Funding: How Housing Discrimination Reproduces Unequal Op-
portunity 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 Disci-

plining 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 Statis-

tics, 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).
13 R. Crosnoe, K. Purtell, P. Davis-Kean, A. Ansari, & A. Benner, The

Selection of Children From Low-Income Families into Preschool, 52 J.

20 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
SOTOMAYOR, J., dissenting

interlocked factors place underrepresented minorities mul-

tiple steps behind 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 un-
derrepresented racial minorities equal access to educa-
tional opportunities, and that racial disparities in public
schooling have increased in recent years, in violation of the
State Constitution. 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
underrepresented backgrounds even applying to” college,
particularly elite universities. Brief for Massachusetts In-
stitute of Technology et al. as Amici Curiae 32. “Because
talent lives everywhere, but opportunity does not, there are
undoubtedly talented students with great academic poten-
tial who have simply not had the opportunity to attain the
traditional 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 rein-
force other forms of inequality in communities of color. See
E. Wilson, Monopolizing Whiteness, 134 Harv. L. Rev.

——————
Developmental Psychology 11 (2016); A. Kenly & A. Klein, Early Child-
hood Experiences of Black Children in a Diverse Midwestern Suburb, 24
J. African American Studies 130, 136 (2020).
14 Dept. of Education, National Center for Education, Institute of Edu-

cational Science, The Condition of Education 2022, p. 24 (2020) (fig. 16).

 Cite as: 600 U. S. ____ (2023) 21

SOTOMAYOR, J., dissenting

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 de-
mocracy”). Stark racial disparities exist, for example, in
unemployment rates,15 income levels,16 wealth and home-
ownership,17 and healthcare access.18 See also Schuette v.
BAMN, 572 U. S. 291, 380–381 (2014) (SOTOMAYOR, J., dis-
senting) (noting the “persistent racial inequality in soci-
ety”); Gratz, 539 U. S., at 299–301 (Ginsburg, J., dissenting)
(cataloging racial disparities in employment, poverty,
healthcare, housing, consumer transactions, and educa-
tion).
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 demo-
cratic system of government.’ ” Plyler v. Doe, 457 U. S. 202,
221, 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.,
——————
15 ProQuest Statistical Abstract of the United States: 2023, p. 402 (Ta-

ble 622) (noting Black and Latino adults are more likely to be unem-
ployed).
16 Id., at 173 (Table 259).
17 A. McCargo & J. Choi, Closing the Gaps: Building Black Wealth

Through Homeownership (2020) (fig. 1).

18 Dept. of Commerce, Census Bureau, Health Insurance Coverage in

the United States: 2021, p. 9 (fig. 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).
22 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
SOTOMAYOR, J., dissenting

at 327, this reality informs the exigency of respondents’ cur-

rent admissions policies and their racial diversity goals.
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 figures in the white su-
premacy campaigns of 1898 and 1900, and many of the
State’s most ardent defenders of Jim Crow and race-based
Social Darwinism in the twentieth century.” 3 App. 1680.
The university excluded all people of color from its faculty
and student body, glorified 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 first Black woman to
enroll at the university in 1963. See Karen L. Parker Col-
lection, 1963–1966, UNC Wilson Special Collections Li-
brary. Even then, the university admitted only a handful
of underrepresented racial minorities, and those students
suffered constant harassment, humiliation, and isolation. 3
App. 1685. UNC officials 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,

——————
19 In 1979, prompted by lawsuits filed by civil rights lawyers under Ti-

tle 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 offi-
cials. Ibid. The litigation ended in 1981, after the Reagan administra-
tion settled with the State. See North Carolina v. Department of Educa-
tion, No. 79–217–CIV–5 (EDNC, July 17, 1981) (Consent Decree).
 Cite as: 600 U. S. ____ (2023) 23

SOTOMAYOR, J., dissenting

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.
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
students identify as white, while only 8% identify as Black.
Id., at 1647. These numbers do not reflect 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 uni-
versities in our country, “stood beside church and state as
the third pillar of a civilization built on bondage.” C. Wil-
der, Ebony & Ivy: Race, Slavery, and the Troubled History
of America’s Universities 11 (2013). From Harvard’s found-
ing, slavery and racial subordination were integral parts of
the institution’s funding, intellectual production, and cam-
pus life. Harvard and its donors had extensive financial
ties to, and profited from, the slave trade, the labor of en-
slaved people, and slavery-related investments. As Har-
vard now recognizes, the accumulation of this wealth was
“vital to the University’s growth” and establishment as an
——————
20 See 1 App. 20–21 (campus climate survey showing inter alia that “91

percent of students heard insensitive or disparaging racial remarks

made by other students”); 2 id., at 1037 (Black student testifying that a
white student called him “the N word” 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 describing that being “the only Latina”
made it “hard to speak up” and made her feel “foreign” and “an outsider”).
24 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
SOTOMAYOR, J., dissenting

elite, national institution. Harvard & the Legacy of Slav-

ery, Report by the President and Fellows of Harvard Col-
lege 7 (2022) (Harvard Report). Harvard suppressed anti-
slavery 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 leader-
ship and prominent professors openly promoted “ ‘race sci-
ence,’ ” racist eugenics, and other theories rooted in racial
hierarchy. Id., at 11. Activities to advance these theories
“took place on campus,” including “intrusive physical exam-
inations” and “photographing of unclothed” students. Ibid.
The university also “prized the admission of academically
able Anglo-Saxon students from elite backgrounds—includ-
ing wealthy white sons of the South.” Id., at 44. By con-
trast, an average of three Black students enrolled at Har-
vard each year during the five decades between 1890 and
1940. Id., at 45. Those Black students who managed to
enroll at Harvard “excelled academically, earning equal or
better academic records 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 College, a separate and overwhelm-
ingly 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 profes-
sors, but “women did not receive Harvard degrees until
1963.” Ibid.; see also S. Bradley, Upending 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 his-
torical 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
 Cite as: 600 U. S. ____ (2023) 25

SOTOMAYOR, J., dissenting

like.” Harvard Report 11. Black and Latino applicants ac-

count for only 20% of domestic applicants to Harvard each
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 aliena-
tion on campus. Brief for 25 Harvard Student and Alumni
Organizations as Amici Curiae 30–31; 2 App. 823, 961. For
years, the university has reported that inequities on cam-
pus 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 hous-
ing system fosters exchanges between students of different
backgrounds,” 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
[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
pursue the well-documented benefits 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
26 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
SOTOMAYOR, J., dissenting

a blind eye to these truths and overruling decades of prece-

dent, “content for now to disguise” its ruling as an applica-
tion of “established law and move on.” Kennedy, 597 U. S.,
at ___ (SOTOMAYOR, J., dissenting) (slip op., at 29). As
JUSTICE THOMAS puts it, “Grutter is, for all intents and pur-
poses, overruled.” Ante, at 58.
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 goalposts, upsetting settled expectations and throwing
admissions programs nationwide into turmoil. In the end,
however, 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 constitu-
tional and comply 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-
nizes. See ante, at 6, n. 2; see also Regents of Univ. of Cal. v. Bakke, 438
U. S. 265, 325 (1978) (Brennan, J., concurring). JUSTICE GORSUCH argues
that “Title VI bears independent force” and holds universities to an even
higher standard than the Equal Protection Clause. Ante, at 25. Because
no party advances JUSTICE GORSUCH’s argument, see ante, at 6, 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) (slip op., at 3). 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 carries “enhanced force,” as it would be up to Congress to “correct
any mistake it sees” with “our interpretive decisions.” Kimble v. Marvel
Entertainment, 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 16. 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
 Cite as: 600 U. S. ____ (2023) 27

SOTOMAYOR, J., dissenting

A
Answering the question whether Harvard’s and UNC’s
policies survive strict scrutiny under settled law is straight-
forward, both because of the procedural posture of these
cases and because of the narrow scope of the issues pre-
sented by petitioner Students for Fair Admissions, Inc.
(SFFA).22
These cases arrived at this Court after two lengthy trials.
Harvard and UNC introduced dozens of fact witnesses, ex-
pert testimony, and documentary evidence in support of
their admissions programs. Brief for Petitioner 20, 40.
SFFA, by contrast, did not introduce a single fact witness
and relied on the testimony of two experts. Ibid.
After making detailed findings 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
2021) (UNC). The First Circuit affirmed in the Harvard
case, finding “no error” in the District Court’s thorough
opinion. 980 F. 3d 157, 204 (2020) (Harvard II ). SFFA then
filed 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
——————
strategic litigation 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).
22 SFFA is a 501(c)(3) nonprofit 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
Richard 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 judg-
ment, 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.
28 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
SOTOMAYOR, J., dissenting

Fisher; or, alternatively, (2) whether UNC’s admissions pro-

gram is narrowly tailored, and (3) whether Harvard’s ad-
missions program is narrowly tailored. See Brief for Peti-
tioner 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 appli-
cation of settled law to the facts of these cases, is simple:
Deferring to the lower courts’ careful findings 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 ad-
missions process because race-neutral alternatives would
promote UNC’s diversity objectives. That issue is so easily
resolved in favor of UNC that SFFA devoted only three
pages to it at the end of its 87-page brief. Brief for Peti-
tioner 83–86.
The use of race is narrowly tailored unless “workable”
and “available” race-neutral approaches exist, meaning
race-neutral alternatives promote the institution’s diver-
sity 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 precedents 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 fulfilling 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 alterna-
tives do not meet those criteria. UNC, 567 F. Supp. 3d,
 Cite as: 600 U. S. ____ (2023) 29

SOTOMAYOR, J., dissenting

at 648. All of SFFA’s proposals are methodologically

flawed because they rest on “ ‘terribly unrealistic’ ” assump-
tions about the applicant pools. Id., at 643–645, 647. For
example, as to one set of proposals, SFFA’s expert “unreal-
istically assumed” that “all of the top students in the candi-
date pools he use[d] would apply, be admitted, and enroll.”
Id., at 647. In addition, some of SFFA’s proposals force
UNC to “abandon its holistic approach” to college admis-
sions, id., at 643–645, n. 43, a result “in deep tension with
the goal of educational diversity as this Court’s cases have
defined 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 pro-
posed 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 stu-
dents.” Ibid. UNC is then supposed to use that index,
which “would change every time any student took a stand-
ardized test,” to rank students based on grades and test
scores. Ibid. One of SFFA’s top percentage plans would
even “nearly erase the Native American incoming class” at
UNC. Id., at 646. The courts below correctly 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 cre-
dentials. 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 factfinding below and

argue that universities in States that have banned the use of race in col-
lege 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 14. Data from those States disprove that
theory. Institutions in those States experienced “ ‘an immediate and pre-
cipitous decline in the rates at which underrepresented-minority stu-
dents applied . . . were admitted . . . and enrolled.’ ” Schuette v. BAMN,
30 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 findings 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 financial 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-
ences for low-income applicants and eliminates the use of
race and legacy preferences. Id., at 193; Brief for Petitioner
——————
572 U. S. 291, 384–390 (2014) (SOTOMAYOR, J., dissenting); see infra, at
63–64. In addition, UNC “already engages” in race-neutral efforts fo-
cused on socioeconomic status, including providing “exceptional levels of
financial 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 14, n. 4. That is precisely the point: SFFA’s argu-
ments were not credited by the court below. “[W]e are a court of review,
not of first view.” Cutter v. Wilkinson, 544 U. S. 709, 718, n. 7 (2005).
JUSTICE GORSUCH also suggests it is inappropriate for the dissent to re-
spond to the majority by relying on materials beyond the findings of fact
below. Ante, at 14, n. 4. There would be no need for the dissent to do
that if the majority stuck to reviewing the District Court’s careful fact-
finding 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 Ameri-

can students. Brief for Petitioner 72–75. As explained below, this claim
does not fit under Grutter’s strict scrutiny framework, and the courts be-
low did not err in rejecting that claim. See infra, at 59–60.
 Cite as: 600 U. S. ____ (2023) 31

SOTOMAYOR, J., dissenting

81. Under SFFA’s model, however, Black representation

would plummet by about 32%, and the admitted share of
applicants with high academic ratings would decrease, as
would the share with high extracurricular and athletic rat-
ings. 980 F. 3d, at 194. SFFA’s proposal, echoed by
JUSTICE GORSUCH, ante, at 14–15, requires Harvard to
“make sacrifices on almost every dimension important to its
admissions process,” 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 op-
erate 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 re-
jected.” Ibid. After all, race-conscious admissions seek to
improve racial diversity. Race cannot, however, be “‘deci-
sive’ for virtually every minimally qualified underrepresented
minority 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 officers, as
well as consideration of a whole range of information, such
as grades, test scores, recommendation letters, and per-
sonal essays, by several committees. Id., at 165–166. Con-
sistent with that “individualized, holistic review process,”
32 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
SOTOMAYOR, J., dissenting

admissions officers 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 compet-
itive review, Harvard typically ends up with about 2,000
tentative admits, more students than the 1,600 or so that
the university can admit. Id., at 170. To choose among
those highly qualified candidates, Harvard considers “plus
factors,” which can help “tip an applicant into Harvard’s ad-
mitted class.” Id., at 170, 191. To diversify its class, Har-
vard awards “tips” for a variety of reasons, including geo-
graphic 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 pro-
cess,” “values all types of diversity,” “does not consider race
exclusively,” and “does not award a fixed amount of points
to applicants because of their race.” Id., at 190.27 Indeed,
Harvard’s admissions process is so competitive and the use
of race is so limited and flexible that, as “SFFA’s own ex-
pert’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 academically promising applicants.” Id., at 191.
The courts below correctly rejected SFFA’s view that Har-
vard’s use of race is unconstitutional because it impacts
overall Hispanic and Black student representation by 45%.
See Brief for Petitioner 79. That 45% figure shows that

——————
27 JUSTICE GORSUCH suggests that only “applicants of certain races may

receive a ‘tip’ in their favor.” Ante, at 9. To the extent JUSTICE GORSUCH

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 officers to evaluate the racial and eth-
nic identity of every student in the context of his or her background and
circumstances.” Harvard I, 397 F. Supp. 3d 126, 190, n. 56 (Mass. 2019).
 Cite as: 600 U. S. ____ (2023) 33

SOTOMAYOR, J., dissenting

eliminating the use of race in admissions “would reduce Af-

rican American representation . . . from 14% to 6% and His-
panic 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 ex-
ample, eliminating the use of race would have reduced the
underrepresented minority population by 72%, a much
greater effect. 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 represen-
tation from 3.5% to 6.8% (a 94% increase). 579 U. S., at
384.28
——————
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 Har-
vard.” Ante, at 27. The Court of Appeals, however, merely noted that
the United States, at the time represented by a different administration,
argued that “absent the consideration of race, [Asian American] repre-
sentation 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 precedents 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 27. The District
Court in the UNC case found that “race plays a role in a very small per-
centage 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 con-
sistent with the Court’s precedents. In addition, contrary to the major-
ity’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 28, n. 6. As the District Court found, UNC
(like Harvard) “engages a highly individualized, holistic review of each
applicant’s file, which considers race flexibly as a ‘plus factor’ as one
among many factors in its individualized consideration of each and every
applicant.” 567 F. Supp. 3d, at 662; see id., at 658 (finding that UNC
“rewards different kinds of diversity, and evaluates a candidate within
34 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
SOTOMAYOR, J., dissenting

Finally, the courts below correctly concluded that Har-

vard complies with this Court’s repeated admonition that
colleges and universities cannot define their diversity inter-
est “as ‘some specified percentage of a particular group
merely because 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 var-
ied considerably year to year, a pattern “inconsistent with
the imposition of a racial quota or racial balancing.” Har-
vard 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 Har-
vard’s applicant pool” during the admissions review process
is perfectly consistent with this Court’s precedents. Id., at
170–171, 189. Consultation of these reports, with no “spe-
cific number firmly in mind,” “does not transform [Har-
vard’s] program into a quota.” Grutter, 539 U. S., at 335–
336. 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 findings and concludes
that Harvard engages in racial balancing because its “focus
on numbers is obvious.” Ante, at 31. Because SFFA failed
to offer an expert and to prove its claim below, the majority
——————
the context of their lived experience”); id., at 659 (“The parties stipulated,
and the evidence shows, that readers evaluate applicants by taking into
consideration 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 defining feature of any individual applica-
tion.” Id., at 662; see also infra, at 48.
 Cite as: 600 U. S. ____ (2023) 35

SOTOMAYOR, J., dissenting

is forced to reconstruct the record and conduct its own fac-

tual 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 factfinding by the District Court, which the First
Circuit upheld on appeal under clear error review. See Har-
vard 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 to
summarize. Id., at 188. As the First Circuit concluded,
what the data actually show is that admissions have in-
creased for all racial minorities, including Asian American
students, whose admissions numbers have “increased
roughly five-fold since 1980 and roughly two-fold since
1990.” Id., at 180, 188. The data also show that the racial
shares of admitted applicants fluctuate more than the cor-
responding racial shares of total applicants, which is “the
opposite 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 ad-
mitted applicants “varies relatively little in absolute terms
for [those classes] is unsurprising and reflects the fact that
the racial makeup of Harvard’s applicant pool also varies
very little over this period.” Id., at 188–189. Thus, properly
understood, the data show that Harvard “does not utilize
quotas and does not engage in racial balancing.” Id., at
189.29
——————
29 The majority does not dispute that it has handpicked data from a

truncated period, ignoring the broader context of that data and what the
data reflect. Instead, the majority insists that its selected data prove
that Harvard’s “precise racial preferences” “operate like clockwork.”
Ante, at 31–32, n. 7. The Court’s conclusion that such racial preferences
must be responsible for an “unyielding demographic composition of [the]
36 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
insufficiently measurable, employ racial categories that are
imprecise and overbroad, rely on racial stereotypes and
disadvantage nonminority groups, and do not have an end
point. Ante, at 21–34, 39. In reaching this conclusion, the
Court claims those supposed issues with respondents’ pro-
grams render the programs insufficiently “narrow” under
the strict scrutiny framework that the Court’s precedents
command. Ante, at 22. In reality, however, “the Court to-
day cuts through the kudzu” and overrules its “higher-
education precedents” following Bakke. Ante, at 22
(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
found in the dissenting opinions filed 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 define with preci-
sion the interest being asserted”); Fisher II, 579 U. S., at
389 (THOMAS, J., dissenting) (race-conscious admissions
——————
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 dif-
ferent 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 hypo-
thetical scenario, Harvard does not consider race in admissions at all. In
other words, the Court’s inference that precise racial preferences must
be the cause of relatively constant racial shares of admitted students is
specious.
 Cite as: 600 U. S. ____ (2023) 37

SOTOMAYOR, J., dissenting

programs “res[t] on pernicious assumptions about race”);

id., at 403 (ALITO, J., joined by ROBERTS, C. J., and
THOMAS, J., dissenting) (diversity 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 “perni-
cious stereotype[s]”).
Lost arguments are not grounds to overrule a case. When
proponents of those arguments, greater now in number on
the Court, return to fight 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 insti-
tutional legitimacy.
The Court offers no justification, much less “a ‘special jus-
tification,’ ” 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) (slip op., at 31) (quoting Gamble v. United States,
587 U. S. ___, ___ (2019) (slip op., at 11)). 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 creates 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) (slip
op., at 31); id., at ___–___ (KAVANAUGH, J., concurring) (slip
38 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
SOTOMAYOR, J., dissenting

op., at 6–7). 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
Protection Clause permits race-conscious measures. See
supra, at 2–9. Consistent with that view, the Court has ex-
plicitly held that “race-based action” is sometimes “within
constitutional 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 disestab-
lish 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 inter-
est 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,
——————
30 In the context of policies that “benefit rather than burden the minor-

ity,” the Court has adhered to a strict scrutiny framework despite multi-
ple Members of this Court urging that “the mandate of the Equal Protec-
tion Clause” favors applying a less exacting standard of review. Schuette,
572 U. S., at 373–374 (SOTOMAYOR, J., dissenting) (collecting cases).
 Cite as: 600 U. S. ____ (2023) 39

SOTOMAYOR, J., dissenting

422 U. S. 873 (1975), for example, the Court held that it is

unconstitutional for border patrol agents to rely on a per-
son’s skin color as “a single factor” to justify a traffic stop
based on reasonable suspicion, but it remarked that “Mexi-
can appearance” could be “a relevant factor” out of many to
justify such a stop “at the border and its functional equiva-
lents.” 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 profiling of Latinos as a
law enforcement tool and did not adopt a race-blind rule.
The Court later extended this reasoning to border patrol
agents selectively referring motorists for secondary inspec-
tion at a checkpoint, concluding that “even if it be assumed
that such referrals are made largely on the basis of appar-
ent Mexican 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 in-
defensible 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 15. Indeed, it
agrees that a limited use of race is permissible in some col-
lege admissions programs. In a footnote, the Court exempts
military academies from its ruling in light of “the poten-
tially distinct interests” they may present. Ante, at 22, n. 4.
——————
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).
40 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
SOTOMAYOR, J., dissenting

To the extent the Court suggests national security interests

are “distinct,” those interests cannot explain the Court’s
narrow exemption, as national security interests are also
implicated at civilian universities. See infra, at 64–65. 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 22, n. 4. Yet the same can be said of many other institu-
tions that are not parties here, including the religious uni-
versities 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 not-
ing that they rely on the use of race in their holistic admis-
sions to further not just their academic goals, but also their
religious missions); see also Harvard II, 980 F. 3d, at 187,
n. 24 (“[S]chools that consider race are diverse on numerous
dimensions, including in terms of religious affiliation, loca-
tion, size, and courses of study offered”). The Court’s carve-
out only highlights the arbitrariness of its decision and fur-
ther proves that the Fourteenth Amendment does not
categorically prohibit the use of race in college admissions.
The concurring opinions also agree that the Constitution
tolerates some racial classifications. JUSTICE GORSUCH
agrees with the majority’s conclusion that racial classifica-
tions are constitutionally permissible if they advance a com-
pelling interest in a narrowly tailored way. Ante, at 23.
JUSTICE KAVANAUGH, too, agrees that the Constitution per-
mits the use of race if it survives strict scrutiny. Ante, at
2.32 JUSTICE THOMAS offers an “originalist defense of the
——————
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 7 (citing 438 U. S., at 395–402). As explained above,
Justice Marshall’s view was that Bakke covered only a portion of the
Fourteenth Amendment’s sweeping reach, such that the Court’s higher
education precedents must be expanded, not constricted. See 438 U. S.,
 Cite as: 600 U. S. ____ (2023) 41

SOTOMAYOR, J., dissenting

colorblind Constitution,” but his historical analysis leads to

the inevitable conclusion that the Constitution is not, in
fact, colorblind. Ante, at 2. Like the majority opinion,
JUSTICE THOMAS agrees that race can be used to remedy
past discrimination and “to equalize treatment against a
concrete baseline of government-imposed inequality.” Ante,
at 18–21. He also argues that race can be used if it satisfies
strict scrutiny more broadly, and he considers compelling
interests those that prevent anarchy, curb violence, and
segregate prisoners. Ante, at 26. Thus, although JUSTICE
THOMAS at times suggests that the Constitution only per-
mits “directly remedial” measures that benefit “identified
victims of discrimination,” ante, at 20, he agrees that the
Constitution tolerates a much wider range of race-conscious
measures.
In the end, when the Court speaks of a “colorblind” Con-
stitution, it cannot really mean it, for it is faced with a body
of law that recognizes that race-conscious measures are
permissible under the Equal Protection Clause. Instead,
what the Court actually lands on is an understanding of the
Constitution 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 sufficiently 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, Grutter,
and Fisher by holding that racial diversity is an “inescapa-
bly imponderable” objective that cannot justify race-conscious
affirmative action, ante, at 24, even though respondents’ ob-
jectives simply “mirror the ‘compelling interest’ this Court

——————
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.
42 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
SOTOMAYOR, J., dissenting

has approved” many times in the past. Fisher II, 579 U. S.,
at 382; see, e.g., UNC, 567 F. Supp. 3d, at 598 (“the [univer-
sity’s admissions policy] repeatedly cites Supreme Court
precedent as guideposts”).33 At bottom, without any new
factual or legal justification, 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 of precision to be deemed sufficiently compelling. In
fact, this Court has recognized as compelling plenty of in-
terests that are equally or more amorphous, including the
“intangible” interest in preserving “public confidence in ju-
dicial integrity,” an interest that “does not easily reduce to
precise definition.” 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) (slip op., at 18) (“[M]aintain-
ing 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 integ-
rity of the Medal of Honor” is a “compelling interes[t]”); Sa-
ble 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 interest”). Thus, although
——————
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 benefits
flow from diversity, including richer and deeper learning, reduced bias,
and more creative problem solving. 2 App. in No. 21–707, p. 546. SFFA’s
counsel also emphatically disclaimed the issue at trial. 2 App. in No. 20–
1199, p. 548 (“Diversity and its benefits are not on trial here”).
 Cite as: 600 U. S. ____ (2023) 43

SOTOMAYOR, J., dissenting

the Members of this majority pay lip service to respondents’

“commendable” and “worthy” racial diversity goals, ante, at
23–24, they make a clear value judgment today: Racial in-
tegration in higher education is not sufficiently important
to them. “Today, the proclivities of individuals rule.”
Dobbs, 597 U. S., at ___ (dissenting opinion) (slip op., at 6).
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 34–35.
Yet as the majority acknowledges, while Bakke rejected
that interest as insufficiently compelling, it upheld a lim-
ited use of race in college admissions to promote the educa-
tional benefits that flow from diversity. 438 U. S., at 311–
315. It is that narrower interest, which the Court has reaf-
firmed numerous times since Bakke and as recently as 2016
in Fisher II, see supra, at 14–15, 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 working. Lower courts have consistently applied them
without issue, as exemplified 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
protection 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-
44 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
SOTOMAYOR, J., dissenting

vantages” underrepresented minority students “at the ex-

pense of ” other students. Ante, at 27.
That is not the role race plays in holistic admissions.
Consistent with the Court’s precedents, respondents’ holis-
tic review 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 multi-
tude of dimensions. Respondents’ policies allow them to se-
lect students with various unique attributes, including tal-
ented athletes, artists, scientists, and musicians. They also
allow respondents to assemble a class with diverse view-
points, including students who have different political ide-
ologies and academic interests, who have struggled with
different types of disabilities, who are from various socioec-
onomic backgrounds, 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 benefits all stu-
dents. In fact, racial groups that are not underrepresented
tend to benefit 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-
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 La-
tino. 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
 Cite as: 600 U. S. ____ (2023) 45

SOTOMAYOR, J., dissenting

18–21, 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
disfavor underrepresented racial minorities. That is pre-
cisely why underrepresented racial minorities remain un-
derrepresented. The Court’s suggestion that an already ad-
vantaged racial group is “disadvantaged” because of a
limited use of race is a myth.
The majority’s true objection appears to be that a lim-
ited 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
unacceptable, the Court says, because racial groups that
are not underrepresented “would be admitted in greater
numbers” without these policies. Ante, at 28. Reduced to
its simplest terms, the Court’s conclusion is that an in-
crease in the representation of racial minorities at institu-
tions 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 against white Americans, the Court says,
which requires the courts and state actors to “pic[k] the
right races to benefit.” Ante, at 38.
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 2–17. In a society
where opportunity is dispensed along racial lines, racial
equality cannot be achieved without making room for un-
derrepresented groups that for far too long were denied ad-
mission through the force of law, including at Harvard and
UNC. Quite the opposite: A racially integrated vision of so-
46 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
SOTOMAYOR, J., dissenting

ciety, in which institutions reflect all sectors of the Ameri-

can 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, 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 individu-
alized 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
Amendment’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 testified at
——————
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 38. The law sometimes requires consideration of race to achieve racial
equality. Just like drawing district lines that comply with the Voting
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 po-
litical persuasion, and a variety of other demographic factors.” Shaw v.
Reno, 509 U. S. 630, 646 (1993) (“[R]ace consciousness does not lead in-
evitably 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 “ad-
vantag[e] . . . at the expense of” white children. Ante, at 27. It simply
enforced the Equal Protection Clause by leveling the playing field.
 Cite as: 600 U. S. ____ (2023) 47

SOTOMAYOR, J., dissenting

trial that racial self-identification was an important com-

ponent of their application because without it they would
not be able to present a full version of themselves. For ex-
ample, Rimel Mwamba, a Black UNC alumna, testified that
it was “really important” that UNC see who she is “holisti-
cally and how the color of [her] skin and the texture of [her]
hair impacted [her] upbringing.” 2 App. in No. 21–707,
p. 1033. Itzel Vasquez-Rodriguez, who identifies as Mexican-
American of Cora descent, testified that her ethnoracial
identity is a “core piece” of who she is and has impacted
“every experience” she has had, such that she could not ex-
plain her “potential contributions to Harvard without any
reference” to it. 2 App. in No. 20–1199, at 906, 908. Sally
Chen, a Harvard alumna who identifies as Chinese Ameri-
can, explained that being the child of Chinese immigrants
was “really fundamental to explaining who” she is. Id., at
968–969. Thang Diep, a Harvard alumnus, testified 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 prohib-
its universities from considering a student’s essay that ex-
plains “how race affected [that student’s] life.” Ante, at 39.
This supposed recognition that universities can, in some sit-
uations, consider race in application essays is nothing but
an attempt to put lipstick on a pig. The Court’s opinion cir-
cumscribes universities’ ability to consider race in any form
by meticulously gutting respondents’ asserted diversity in-
terests. See supra, at 41–43. 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
48 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
SOTOMAYOR, J., dissenting

attuned to reality. No one is fooled.

Further, the Court’s demand that a student’s discussion
of racial self-identification be tied to individual qualities,
such as “courage,” “leadership,” “unique ability,” and “de-
termination,” only serves to perpetuate the false narrative
that Harvard and UNC currently provide “preferences on
the basis of race alone.” Ante, at 28–29, 39; see also ante,
at 28, n. 6 (claiming without support that “race alone . . .
explains the admissions decisions for hundreds if not thou-
sands of applicants”). The Court’s precedents already re-
quire that universities take race into account holistically,
in a limited way, and based on the type of “individualized”
and “flexible” assessment 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 ) (describing how the dozens of application
files in the record “uniformly show that, in line with Har-
vard’s ‘whole-person’ admissions philosophy, Harvard’s ad-
missions officers engage in a highly nuanced assessment of
each applicant’s background and qualifications”). After ex-
tensive discovery and two lengthy trials, neither SFFA nor
the majority can point to a single example of an underrepre-
sented 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 applying precedent but taking on the role of college ad-
ministrators to decide what is better for society. The
Court’s course reflects 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 recognition that Black Americans can offer differ-
ent perspectives than white people amounts to a “stereo-
type.” Ante, at 29.
It is not a stereotype to acknowledge the basic truth that
 Cite as: 600 U. S. ____ (2023) 49

SOTOMAYOR, J., dissenting

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
stereotype. 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’—in-
structing them never to run down the street; always keep
your hands where they can be seen; do not even think of
talking back to a stranger—all out of fear of how an officer
with a gun will react to them.” Utah v. Strieff, 579 U. S.
232, 254 (2016) (SOTOMAYOR, J., dissenting). Those conver-
sations occur regardless of socioeconomic background or
any other aspect of a student’s self-identification. They oc-
cur because of race. As Andrew Brennen, a UNC alumnus,
testified, “running down the neighborhood . . . people don’t
see [him] as someone that is relatively affluent; 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
students on campus, “racial stereotypes lose their force” be-
cause diversity allows students to “learn there is no ‘minor-
ity viewpoint’ but rather a variety of viewpoints among mi-
nority students.” Id., at 319–320. By preventing
respondents from achieving their diversity objectives, it is
the Court’s opinion that facilitates stereotyping on Ameri-
can college 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 classifications. Universi-
ties should continue to use those tools as best they can to
50 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
SOTOMAYOR, J., dissenting

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 first-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-
nelas, a UNC alumna, testifying that her Latina identity,
socioeconomic status, and first-generation college status
are all important but different “parts to getting a full pic-
ture” 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 diversity, percentage plans, plans that increase
community college transfers, and plans that develop part-
nerships with disadvantaged high schools); see also ante, at
51, 53, 55–56 (THOMAS, J., concurring) (arguing universi-
ties 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 first-generation
college applicant,” “financial means,” and “generational in-
heritance or otherwise”); ante, at 8 (KAVANAUGH, J., concur-
ring) (citing SFFA’s briefs and concluding that universities
can use “race-neutral” means); ante, at 14, 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
metrics alone. Using class rank or standardized test scores
as the only admissions criteria would severely undermine
multidimensional diversity in higher education. Such a
system “would exclude the star athlete or musician whose
grades suffered because of daily practices and training. It
 Cite as: 600 U. S. ____ (2023) 51

SOTOMAYOR, J., dissenting

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 find 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
2
As noted above, this Court suggests that the use of race
in college admissions is unworkable because respondents’
objectives are not sufficiently “measurable,” “focused,” “con-
crete,” and “coherent.” Ante, at 23, 26, 39. 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
plans fail. Any increased level of precision runs the risk of
violating the Court’s admonition that colleges and univer-
sities operate their race-conscious admissions policies with
no “ ‘specified percentage[s]’ ” and no “specific number[s]
firmly in mind.” Grutter, 539 U. S., at 324, 335. Thus, the
majority’s holding puts schools in an untenable position. It
creates a legal framework where race-conscious plans must
be measured with precision but also must not be measured
with precision. 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
——————
35 Today’s decision is likely to generate a plethora of litigation by dis-

appointed college applicants who think their credentials and personal

qualities should have secured them admission. By inviting those chal-
lenges, the Court’s opinion promotes chaos and incentivizes universities
to convert their admissions programs into inflexible systems focused on
mechanical factors, which will harm all students.
52 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
SOTOMAYOR, J., dissenting

Constructors, Inc., 515 U. S., at 237). Indeed, the Court

gives the game away when it holds that, to the extent re-
spondents are actually measuring their diversity objectives
with any level of specificity (for example, with a “focus on
numbers” or specific “numerical commitment”), their plans
are unconstitutional. Ante, at 30–31; see also ante, at 29
(THOMAS, J., concurring) (“I highly doubt any [university]
will be able to” 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 25. To start, the racial categories that
the Court finds troubling resemble those used across the
Federal Government for data collection, compliance report-
ing, and program administration purposes, including, for
example, by the U. S. Census Bureau. See, e.g., 62 Fed.
Reg. 58786–58790 (1997). Surely, not all “ ‘federal grant-in-
aid benefits, drafting of legislation, urban and regional
planning, business planning, and academic and social stud-
ies’ ” that flow from census data collection, Department of
Commerce v. New York, 588 U. S. ___, ___ (2019) (slip op.,
at 2), are constitutionally suspect.
The majority presumes that it knows better and appoints
itself as an expert on data collection methods, calling for a
higher level of granularity to fix a supposed problem of
overinclusiveness and underinclusiveness. Yet it does not
identify 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, mul-
tiple, 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, stu-
dents can select subcategories or provide more detail in
 Cite as: 600 U. S. ____ (2023) 53

SOTOMAYOR, J., dissenting

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 identity on her application); id., at 949 (student
respondent testifying he “wrote about [his] Vietnamese
identity on [his] application”). Notwithstanding this
Court’s confusion about racial self-identification, neither
students nor universities are confused. There is no evi-
dence that the racial categories 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 specific ex-
piration date. Ante, at 30–34. This new durational require-
ment is also not grounded in law, facts, or common sense.
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
acknowledges, 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.

——————
36 The Court suggests that the term “Asian American” was developed

by respondents because they are “uninterested” in whether Asian Amer-

ican students “are adequately represented.” Ante, at 25; see also ante, at
5 (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 Amer-
ican’ was coined in the late 1960s by Asian American activists—mostly
college students—to unify Asian ethnic groups that shared common ex-
periences of race-based violence and discrimination and to advocate for
civil rights and visibility.” Brief for Asian American Legal Defense and
Education Fund et al. as Amici Curiae 9 (AALDEF Brief ).
54 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
SOTOMAYOR, J., dissenting

Grutter, according to the majority, requires that universi-

ties identify a specific “end point” for the use of race. Ante,
at 33. JUSTICE KAVANAUGH, for his part, suggests that
Grutter itself automatically expires in 25 years, after either
“the college class of 2028” or “the college class of 2032.”
Ante, at 7, n. 1. A faithful reading of this Court’s precedents
reveals that Grutter held nothing of the sort.
True, Grutter referred to “25 years,” but that arbitrary
number simply reflected the time that had elapsed since the
Court “first 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 vaccum,
as the Court suggests. Id., at 342. Rather than impose a
fixed expiration date, the Court tasked universities with
the responsibility of periodically assessing whether their
race-conscious programs “are still necessary.” Ibid. Grutter
offered as examples sunset provisions, periodic reviews,
and experimenting with “race-neutral alternatives as they
develop.” Ibid. That is precisely how this Court has previ-
ously 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 reflection re-
garding its admissions policies”).
Grutter’s requirement that universities engage in peri-
odic reviews so the use of race can end “as soon as practica-
ble” is well grounded in the need to ensure that race is “em-
ployed no more broadly than the interest demands.” 539
U. S., at 343. That is, it is grounded in strict scrutiny. By
contrast, the Court’s holding is based on the fiction that ra-
cial inequality has a predictable cutoff date. Equality is an
ongoing project in a society where racial inequality persists.
See supra, at 17–25. 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
 Cite as: 600 U. S. ____ (2023) 55

SOTOMAYOR, J., dissenting

why this Court’s precedents have never imposed the major-

ity’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 shallow 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 as-
sess whether changing demographics have undermined the
need for a race-conscious policy; and to identify the effects,
both positive and negative, of the affirmative-action
measures [they] dee[m] necessary.” Fisher II, 579 U. S., at
388. The Court holds, however, that respondents’ attention
to numbers amounts to unconstitutional racial balancing.
Ante, at 30–32. But “ ‘[s]ome attention to numbers’ ” is both
necessary and permissible. Grutter, 539 U. S., at 336 (quot-
ing Bakke, 438 U. S., at 323). Universities cannot blindly
operate their limited race-conscious programs without re-
gard for any quantitative information. “Increasing minor-
ity enrollment [is] instrumental to th[e] educational bene-
fits” that respondents seek to achieve, Fisher II, 579 U. S.,
at 381, and statistics, data, and numbers “have some value

——————
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 7–
8, but at the same time suggests that race-conscious affirmative action
was only necessary in “another generation,” ante, at 4. He attempts to
analogize expiration dates of court-ordered injunctions in desegregation
cases, ante, at 5, but an expiring injunction does not eliminate the un-
derlying constitutional principle. His musings about different college
classes, ante, at 7, n. 1, are also entirely beside the point. Nothing in
Grutter’s analysis 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.
56 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
SOTOMAYOR, J., dissenting

as a gauge of [respondents’] ability to enroll students who

can offer underrepresented perspectives.” Id., at 383–384.
By removing universities’ ability to assess the success of
their programs, the Court obstructs these institutions’ abil-
ity to meet their diversity goals.
5
JUSTICE THOMAS, for his part, offers a multitude of argu-
ments for why race-conscious college admissions policies
supposedly “burden” racial minorities. Ante, at 39. None of
them has any merit.
He first renews his argument that the use of race in ho-
listic admissions leads to the “inevitable” “underperfor-
mance” 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 de-
clined to adopt this so-called “mismatch” hypothesis for
good reason: It was debunked long ago. The decades-old
“studies” advanced by the handful of authors upon whom
JUSTICE THOMAS relies, ante, at 40–41, have “major meth-
odological flaws,” 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 educational institutions on student outcomes, and
have found, among other things, that attending a more se-
lective school is associated with higher graduation rates
and higher earnings for [underrepresented minority] stu-
dents—conclusions directly contrary to mismatch.” Id., at
7–9 (collecting studies). 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-
 Cite as: 600 U. S. ____ (2023) 57

SOTOMAYOR, J., dissenting

conscious admissions programs, and achieved successful le-

gal careers, despite having different educational back-
grounds than their peers. A discredited hypothesis that the
Court previously rejected is no reason to overrule prece-
dent.
JUSTICE THOMAS claims that the weight of this evidence
is overcome by a single more recent article published in
2016. Ante, at 41, n. 8. That article, however, explains that
studies supporting the mismatch hypothesis “yield mislead-
ing conclusions,” “overstate the amount of mismatch,” “pre-
clude one from drawing any concrete conclusions,” and rely
on methodologically flawed assumptions that “lea[d] to an
upwardly-biased estimate of mismatch.” P. Arcidiacono &
M. Lovenheim, Affirmative Action and the Quality-Fit
Trade-off, 54 J. Econ. Lit. 3, 17, 20 (2016); see id., at 6
(“economists should be very skeptical of the mismatch hy-
pothesis”). Notably, 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 affirmative 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 41 (quoting Adarand, 515
U. S., at 241 (THOMAS, J., concurring in part and concurring
in judgment)). Studies disprove this sentiment, which ech-
oes “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
Affirmative 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 attached his-
torically to different groups, regardless of affirmative action’s
existence”). Indeed, equating state-sponsored segregation
with race-conscious admissions policies that promote racial
integration trivializes the harms of segregation and offends
58 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
SOTOMAYOR, J., dissenting

Brown’s transformative legacy. School segregation “has a

detrimental effect” on Black students by “denoting the infe-
riority” of “their status in the community” and by
“ ‘depriv[ing] them of some of the benefits they would re-
ceive in a racial[ly] integrated school system.’ ” 347 U. S.,
at 494. In sharp contrast, race-conscious college admissions
ensure that higher education is “visibly open to” and “inclu-
sive of talented and qualified 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 objection-
able.” Id., at 327.
Relatedly, JUSTICE THOMAS suggests that race-conscious
college admissions policies harm racial minorities by in-
creasing affinity-based activities on college campuses.
Ante, at 46. Not only is there no evidence of a causal con-
nection between the use of race in college admissions and
the supposed rise of those activities, but JUSTICE THOMAS
points to no evidence that affinity groups cause any harm.
Affinity-based activities actually help racial minorities im-
prove their visibility on college campuses and “decreas[e]
racial stigma and vulnerability to stereotypes” caused by
“conditions of racial isolation” and “tokenization.” U. Jaya-
kumar, Why Are All Black Students Still Sitting Together
in the Proverbial College Cafeteria?, Higher Education Re-
search Institute at UCLA (Oct. 2015); see also Brief for Re-
spondent-Students in No. 21–707, p. 42 (collecting student
testimony demonstrating that “affinity groups beget im-
portant academic and social benefits” for racial minorities);
4 App. in No. 20–1199, at 1591 (Harvard Working Group on
Diversity and Inclusion Report) (noting that concerns “that
culturally specific spaces or affinity-themed housing will
isolate” student minorities are misguided because those
spaces allow students “to come together . . . to deal with in-
tellectual, emotional, and social challenges”).
Citing no evidence, JUSTICE THOMAS also suggests that
race-conscious admissions programs discriminate against
 Cite as: 600 U. S. ____ (2023) 59

SOTOMAYOR, J., dissenting

Asian American students. Ante, at 43–44. It is true that

SFFA “allege[d]” that Harvard discriminates against Asian
American students. Ante, at 43. Specifically, SFFA argued
that Harvard discriminates against Asian American appli-
cants 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 even fall under the strict scrutiny framework in Grutter
and its progeny, which concerns the use of racial classifica-
tions. The personal rating is a facially race-neutral compo-
nent of Harvard’s admissions policy.38 Therefore, even as-
suming for the sake of argument that Harvard engages in
racial discrimination 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 assessing the credibility of fact witnesses
and considering extensive documentary evidence and ex-
pert 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.
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
——————
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 modified its instructions to say explicitly that “ ‘an
applicant’s race or ethnicity should not be considered in assigning the
personal rating.’ ” Ibid.
60 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
SOTOMAYOR, J., dissenting

race in college admissions to achieve racially diverse classes

is critical to improving cross-racial understanding and
breaking down racial stereotypes. See supra, at 16. 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 significantly disadvantage at least some Asian Amer-
ican 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 perspec-
tive.” Id., at 195. Because the Asian American community
is not a monolith, race-conscious holistic admissions allow
colleges and universities to “consider the vast differences
within [that] community.” AALDEF Brief 4–14. Harvard’s
application files show that race-conscious holistic admis-
sions allow Harvard to “valu[e ] the diversity of Asian Amer-
ican applicants’ experiences.” Harvard College Brief 23.
Moreover, the admission rates of Asian Americans at in-
stitutions with race-conscious admissions policies, includ-
ing at Harvard, have “been steadily increasing for decades.”
Harvard II, 980 F. 3d, at 198.39 By contrast, Asian Ameri-
can enrollment declined at elite universities that are pro-
hibited by state law from considering race. See AALDEF
Brief 27; Brief for 25 Diverse, California-Focused Bar As-
sociations et al. as Amici Curiae 19–20, 23. At bottom, race-
conscious admissions benefit 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
——————
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 pop-
ulation is Asian American.” Harvard I, 397 F. Supp. 3d, at 203.
 Cite as: 600 U. S. ____ (2023) 61

SOTOMAYOR, J., dissenting

motivated Dred Scott and Plessy” are the ones who support
race conscious admissions. Ante, at 39. The plethora of
young students of color who testified in favor of race-
consciousness proves otherwise. See supra, at 46–47; see
also infra, at 64–67 (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 decision testified 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 ___
(dissenting opinion) (slip op., at 53). Significant rights and
expectations will be affected by today’s decision nonethe-
less. Those interests supply “added force” in favor of stare
decisis. Hilton 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
provide diverse, cross-cultural experiences that will better
prepare 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 con-
crete reliance interests because they have spent significant
resources in an effort to comply with this Court’s prece-
dents. “Universities have designed courses that draw on
the benefits of a diverse student body,” “hired faculty whose
research is enriched by the diversity of the student body,”
and “promoted their learning environments to prospective
students who have enrolled based on the understanding
that they could obtain the benefits of diversity of all kinds.”
Brief for Respondent in No. 20–1199, at 40–41 (internal
62 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
SOTOMAYOR, J., dissenting

quotation marks omitted). Universities also have “ex-

pended vast financial and other resources” in “training
thousands of application readers on how to faithfully apply
this Court’s guardrails on the use of race in admissions.”
Brief for University Respondents in No. 21–707, p. 44. Yet
today’s decision abruptly forces them “to fundamentally al-
ter their admissions practices.” Id., at 45; see also Brief for
Massachusetts Institute of Technology et al. as Amici Cu-
riae 25–26; Brief for Amherst College et al. as Amici Curiae
23–25 (Amherst Brief ). As to Title VI in particular, colleges
and universities have relied on Grutter for decades in ac-
cepting federal funds. See Brief for United States as Ami-
cus 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
___ (dissenting opinion) (slip op., at 55).
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
progress society has made. The fact that affirmative 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., dissent-
ing) (“[It] is like throwing away your umbrella in a rain-
storm because you are not getting wet”).
Experience teaches that the consequences of today’s deci-
sion will be destructive. The two lengthy trials below
simply confirmed what we already knew: Superficial color-
blindness in a society that systematically segregates oppor-
tunity will cause a sharp decline in the rates at which un-
derrepresented minority students enroll in our Nation’s
 Cite as: 600 U. S. ____ (2023) 63

SOTOMAYOR, J., dissenting

colleges and universities, turning the clock back and undo-

ing the slow yet significant progress already achieved. See
Schuette, 572 U. S., at 384–390 (SOTOMAYOR, J., dissenting)
(collecting statistics from States that have banned the use
of race in college admissions); see also Amherst Brief 13
(noting that eliminating the use of race in college admis-
sions will take Black student enrollment at elite universi-
ties 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 exam-
ple, “freshmen enrollees from underrepresented minority
groups dropped precipitously” in California public universi-
ties. Brief for President and Chancellors of the University
of California as Amici Curiae 4, 9, 11–13. The decline was
particularly devastating at California’s most selective cam-
puses, where the rates of admission of underrepresented
groups “dropped by 50% or more.” Id., at 4, 12. At the Uni-
versity of California, Berkeley, a top public university not
just in California but also nationally, the percentage of
Black students in the freshman class dropped from 6.32%
in 1995 to 3.37% in 1998. Id., at 12–13. Latino representa-
tion similarly 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 “reflect[s] a persistent inability to increase opportuni-
ties” 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 pre-constitutional amendment level
in 1996, which was 6.32%. Ibid. Latinos composed about
15% of freshmen students at Berkeley in 2019, despite mak-
ing up 52% of all California public high school graduates.
Id., at 24; see also Brief for University of Michigan as Ami-
cus Curiae 21–24 (noting similar trends at the University
of Michigan from 2006, the last admissions cycle before
Michigan’s ban on race-conscious admissions took effect,
64 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
SOTOMAYOR, J., dissenting

through present); id., at 24–25 (explaining that the univer-

sity’s “experience is largely consistent with other schools
that do not consider race as a factor in admissions,” includ-
ing, for example, the University of Oklahoma’s most pres-
tigious campus).
The costly result of today’s decision harms not just re-
spondents and students but also our institutions and dem-
ocratic 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 di-
verse 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 Office of the Direc-
tor of National Intelligence). The United States explains
that “the Nation’s military strength and readiness depend
on a pipeline of officers who are both highly qualified and
racially diverse—and who have been educated in diverse
environments that prepare them to lead increasingly di-
verse forces.” Id., at 12. That is true not just at the military
service academies but “at civilian universities, including
Harvard, that host Reserve Officers’ Training Corps
(ROTC) programs and educate students who go on to be-
come officers.” 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 univer-
sities 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 perfor-
 Cite as: 600 U. S. ____ (2023) 65

SOTOMAYOR, J., dissenting

mance of the Nation’s military” because it fueled “percep-

tions of racial/ethnic minorities serving as ‘cannon fodder’
for white military leaders.” Military Leadership Diversity
Comm’n, From Representation to Inclusion: Diversity
Leadership for the 21st-Century Military xvi, 15 (2011); see
also, e.g., R. Stillman, Racial Unrest in the Military: The
Challenge and the Response, 34 Pub. Admin. Rev. 221, 221–
222 (1974) (discussing other examples of racial unrest).
Based on “lessons from decades of battlefield experience,” it
has been the “longstanding military judgment” across ad-
ministrations 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 (internal quotation marks omitted). The majority recog-
nizes the compelling need for diversity in the military and
the national security implications at stake, see ante, at 22,
n. 4, but it ends race-conscious college admissions at civil-
ian universities 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 un-
derrepresented backgrounds who join “the ranks of medical
professionals” improves “healthcare access and health out-
comes in medically underserved communities.” Brief for
Massachusetts et al. as Amici Curiae 10; see Brief for Asso-
ciation of American Medical Colleges et al. as Amici Curiae
5 (noting also that all physicians become better practition-
ers when they learn in a racially diverse environment). So
too, greater diversity within the teacher workforce im-
proves student academic achievement in primary public
66 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
SOTOMAYOR, J., dissenting

schools. Brief for Massachusetts et al. as Amici Curiae 15–

17; see Brief for American Federation of Teachers as Ami-
cus Curiae 8 (“[T]here are few professions with broader so-
cial 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 inclusive manner.” Brief for American Bar Asso-
ciation as Amicus Curiae 18; see also Brief for Law Firm
Antiracism Alliance as Amicus Curiae 1, 6 (more than 300
law firms in all 50 States supporting race-conscious college
admissions in light of the “influence and power” that law-
yers wield “in the American system of government”).
Examples of other industries and professions that benefit
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 econ-
omy. 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 collaboration. Brief for Individual Scientists as
Amici Curiae 13–14. It creates a more equitable and inclu-
sive media industry that communicates diverse viewpoints
and perspectives. Brief for Multicultural Media, Telecom
and Internet Council, Inc., et al. as Amici Curiae 6. It also
drives innovation in an increasingly global science and
technology industry. 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 benefit 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
 Cite as: 600 U. S. ____ (2023) 67

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 dis-
parities 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 reflect the diversity
of the People. A system of government that visibly lacks a
path to leadership open to every race cannot withstand
scrutiny “in the eyes of the citizenry.” Grutter, 539 U. S., at
332. “[G]ross disparity in representation” leads the public
to wonder whether they can ever belong in our Nation’s in-
stitutions, including this one, and whether those institu-
tions work for them. Tr. of Oral Arg. in No. 21–707, p. 171
(“The Court is going to hear from 27 advocates in this sit-
ting 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 Solic-
itor 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 Officers, J. of

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
68 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
SOTOMAYOR, J., dissenting

By ending race-conscious college admissions, this Court

closes the door of opportunity that the Court’s precedents
helped open to young students of every race. It creates a
leadership pipeline that is less diverse than our increas-
ingly diverse society, reserving “positions of influence, af-
fluence, and prestige in America” for a predominantly white
pool of college graduates. Bakke, 438 U. S., at 401 (opinion
of Marshall, J.). At its core, today’s decision exacerbates
segregation and diminishes the inclusivity of our Nation’s
institutions in service of superficial neutrality that pro-
motes 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 pro-
tection 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 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 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
——————
(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).
 Cite as: 600 U. S. ____ (2023) 69

SOTOMAYOR, 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
continue to use all available tools to meet society’s needs for
diversity in education. Despite the Court’s unjustified ex-
ercise of power, the opinion today will serve only to high-
light the Court’s own impotence in the face of an America
whose cries for equality resound. As has been the case be-
fore 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).
 Cite as: 600 U. S. ____ (2023) 1

JACKSON, J., dissenting

SUPREME COURT OF THE UNITED STATES

_________________

Nos. 20–1199 and 21–707

_________________

STUDENTS FOR FAIR ADMISSIONS, INC.,

PETITIONER
20–1199 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
21–707 v.
UNIVERSITY OF NORTH CAROLINA, ET AL.
ON WRIT OF CERTIORARI BEFORE JUDGMENT TO THE UNITED
STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
[June 29, 2023]

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 genera-
tions. 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

——————
*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.
2 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
JACKSON, J., dissenting

holistic admissions programs like the one that the Univer-

sity of North Carolina (UNC) has operated, consistent with
Grutter v. Bollinger, 539 U. S. 306 (2003), are a problem
with respect to achievement of that aspiration, rather than
a viable solution (as has long been evident to historians, so-
ciologists, and policymakers alike).
JUSTICE SOTOMAYOR has persuasively established that
nothing in the Constitution or Title VI prohibits institu-
tions from taking race into account to ensure the racial di-
versity 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 ac-
tion 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 his-
tory 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 ad-
vantaged its applicants fails to acknowledge the well-
documented “intergenerational 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 benefit of us all. Because the
majority’s judgment stunts that progress without any basis
in law, history, logic, or justice, I dissent.

——————
1 M. Oliver & T. Shapiro, Black Wealth/White Wealth: A New Perspec-

tive on Racial Inequality 128 (1997) (Oliver & Shapiro) (emphasis de-
leted).
 Cite as: 600 U. S. ____ (2023) 3

JACKSON, J., dissenting

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
State and want great things for its people. Both want to
honor their family’s legacy by attending the State’s flagship
educational institution. John, however, would be the sev-
enth generation to graduate from UNC. He is White.
James would be the first; 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 major-
ity have issued in this case.
Justice Thurgood Marshall recounted the genesis:
“Three hundred and fifty 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. It was unlawful to teach him to read; he could
be sold away from his family and friends at the whim
of his master; and killing or maiming him was not a
crime. The system of slavery brutalized and dehuman-
ized both master 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
4 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
JACKSON, J., dissenting

breaking up the Union.”2 After the war, Senator John Sher-

man defended the proposed Fourteenth Amendment in a
manner that encapsulated our Reconstruction Framers’
highest sentiments: “We are bound by every obligation, by
[Black Americans’] service on the battlefield, by their he-
roes 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 asso-
ciated legislation) that transformed our Constitution and
society.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 “discrim-
inat[ed] . . . in favor of the negro.”5
That attitude, and the Nation’s associated retreat from
Reconstruction, made prophesy out of Congressman Thad-
deus Stevens’s fear that “those States will all . . . keep up

——————
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).
3 Speech of Sen. John Sherman (Sept. 28, 1866) (Sherman), in id., at

276; see also W. 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.
 Cite as: 600 U. S. ____ (2023) 5

JACKSON, J., dissenting

this discrimination, and crush to death the hated freed-

men.”6 And this Court facilitated that retrenchment.7 Not
just in Plessy v. Ferguson, 163 U. S. 537 (1896), but “in al-
most 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 Court invalidated Congress’s attempt to enforce the
Reconstruction Amendments via the Civil Rights Act of
1875, lecturing 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 na-
tion, through Congress, has sought to accomplish in refer-
ence 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 financial security.10
Still, White southerners often “simply refused to sell land
to blacks,” even when not selling was economically foolish.11
To bolster private exclusion, States sometimes passed laws
forbidding such sales.12 The inability to build wealth
——————
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.
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.
6 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
JACKSON, J., dissenting

through that most American of means forced Black people

into sharecropping roles, where they somehow always
tended to find 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
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
fishing 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
laborer to leave his employer, and penalizing those who
prompted Black southerners to migrate northward) en-
sured that Black people could not freely seek better lives
elsewhere.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 exploi-
tation to replace the Black Codes, which themselves had re-
placed slavery’s form of comprehensive economic exploita-
tion.18 Meanwhile, as Jim Crow ossified, the Federal

——————
13 R. Rothstein, The Color of Law: A Forgotten History of How Our Gov-

ernment Segregated America 154 (2017) (Rothstein); Baradaran 33–34;

Wilkerson 53–55.
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.
 Cite as: 600 U. S. ____ (2023) 7

JACKSON, J., dissenting

Government was “giving away land” on the western fron-

tier, and with it “the opportunity for upward mobility and a
more 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 benefits, which by
one calculation may have advantaged approximately 46
million Americans living today.20
Despite these barriers, Black people persisted. Their so-
called Great Migration northward accelerated during and
after the First World War.21 Like clockwork, American cit-
ies 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 givea-
way, it is no surprise that, when the Great Depression ar-
rived, race-based wealth, health, and opportunity gaps
were the norm.25
Federal and State Governments’ selective intervention
further exacerbated the disparities. Consider, for example,

——————
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.
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 Affirmative Action Was White: An Untold His-

tory of Racial Inequality in Twentieth-Century America 29–35 (2005)

(Katznelson).
8 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
JACKSON, J., dissenting

the federal Home Owners’ Loan Corporation (HOLC), cre-

ated in 1933.26 HOLC purchased mortgages threatened
with foreclosure and issued new, amortized mortgages in
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
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,” irrespective
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 dispropor-
tionately large number of Black people due to housing seg-
regation) sometimes being deemed ineligible for FHA inter-
vention on racial grounds.33 The Veterans Administration
operated similarly.34
One more example: the Federal Home Loan Bank Board

——————
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.
30 Rothstein 64.
31 Ibid.
32 Id., at 67.
33 Baradaran 108; see Rothstein 69–75.
34 Id., at 9, 13, 70.
 Cite as: 600 U. S. ____ (2023) 9

JACKSON, J., dissenting

“chartered, insured, and regulated savings and loan associ-

ations 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 ineffec-
tively).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-
based opportunity for wealth accumulation in American
history.”38
For present purposes, it is significant that, in so exclud-
ing Black people, government policies affirmatively oper-
ated—one could say, affirmatively acted—to dole out pref-
erences to those who, if nothing else, were not Black. Those
past preferences carried forward and are reinforced today
by (among other things) the benefits that flow to homeown-
ers 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 benefits 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 . . .
——————
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.

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 53; see id., at 22, 29, 42–48, 53–61; Rothstein 31, 155–

156.
10 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
JACKSON, J., dissenting

middle-class America” (by giving $95 billion to veterans and

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
consumer credit market—a market that helped White peo-
ple who could access it build and protect wealth.42 Nor will
time and space permit my elaborating how local officials’
racial hostility meant that even those benefits that Black
people could formally obtain were unequally distributed
along racial lines.43 And I could not possibly discuss every
way in which, in light of this history, facially race-blind pol-
icies still work race-based harms today (e.g., racially dispar-
ate tax-system treatment; the disproportionate location of
toxic-waste facilities in Black communities; or the deliber-
ate action of governments at all levels in designing inter-
state highways to bisect and segregate Black urban commu-
nities).44
The point is this: Given our history, the origin of persis-
tent race-linked gaps should be no mystery. It has never
been a deficiency of Black Americans’ desire or ability to, in
Frederick Douglass’s words, “stand on [their] own legs.”45
Rather, it was always simply what Justice Harlan recog-
nized 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 (dis-
senting opinion).
——————
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.
44 Id., at 54–56, 65, 127–131, 217; Stanford Institute for Economic Pol-

icy 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).
 Cite as: 600 U. S. ____ (2023) 11

JACKSON, J., dissenting

B
History speaks. In some form, it can be heard forever.
The race-based gaps that first 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).47 These
wealth disparities “exis[t] at every income and education
level,” so, “[o]n average, white families with college degrees
have over $300,000 more wealth than black families with
college 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 financial gaps are unsurprising in light of the link
——————
46 Dickerson 1086 (citing data from 2019 Federal Reserve Survey of

Consumer 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 rela-

tive gap in 2017 of $134,000 to $11,000).

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 (re-

porting similarly stark White/Black income gap numbers in 2017). Early

returns suggest that the COVID–19 pandemic exacerbated these dispar-
ities. 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 Affirmative Action 103 (2023) (Bollinger & Stone).
12 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
JACKSON, J., dissenting

between home ownership and wealth. Today, as was true

50 years ago, Black home ownership trails White home
ownership by approximately 25 percentage points.51 More-
over, Black Americans’ homes (relative to White Ameri-
cans’) constitute 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 financial unwellness
flow others. In most state flagship higher educational in-
stitutions, 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 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 college find 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 officers
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

——————
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.
54 Id., at 99, and n. 58.
55 Dickerson 1088; Bollinger & Stone 100, and n. 63.
56 ABA, Profile of the Legal Profession 33 (2020).
57 Bollinger & Stone 106; Brief for HR Policy Association as Amicus

Curiae 18–19.
 Cite as: 600 U. S. ____ (2023) 13

JACKSON, J., dissenting

than White-owned small businesses, partly due to the dis-

proportionate denial of the forgivable loans needed to sur-
vive the economic downturn.58
Health gaps track financial ones. When tested, Black
children have blood lead levels that are twice the rate of
White children—“irreversible” contamination working irre-
mediable 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 dis-
parity has also persisted, and is highest among infants.61
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, in-
fant mortality, stroke, and asthma.”66 These and other dis-
parities—the predictable result of opportunity disparities—

——————
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).
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).
14 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
JACKSON, J., dissenting

lead to at least 50,000 excess deaths a year for Black Amer-

icans 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 overall
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 typ-
ical Black American “pay[s] more for medical care and in-
cur[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
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 first. 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 university’s campus, James’s family was enslaved and
laboring in North Carolina’s fields. 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 cit-
izenship.71 Five generations ago, the North Carolina Red
Shirts finished the job.72 Four (and three) generations ago,
Jim Crow was so entrenched in the State of North Carolina
——————
67 Caraballo 1667.
68 Ibid.
69 AMC Brief 9.
70 Bollinger & Stone 100.
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.
 Cite as: 600 U. S. ____ (2023) 15

JACKSON, J., dissenting

that UNC “enforced its own Jim Crow regulations.”73 Two

generations ago, North Carolina’s Governor still railed
against “ ‘integration for integration’s sake’ ”—and UNC
Black enrollment was minuscule.74 So, at bare minimum,
one generation ago, James’s family was six generations be-
hind 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 find themselves today—is not only an af-
front to the dignity of those students for whom race mat-
ters.75 It also condemns our society to never escape the past
that explains 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

——————
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).
16 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
JACKSON, J., dissenting

must submit standardized test scores and other conven-

tional information.76 But applicants are not required to
submit demographic information like gender and race.77
UNC considers whatever information each applicant sub-
mits using a nonexhaustive list of 40 criteria grouped into
eight categories: “academic performance, academic pro-
gram, standardized testing, extracurricular activity, spe-
cial talent, essay criteria, background, and personal crite-
ria.”78
Drawing on those 40 criteria, a UNC staff member eval-
uating John and James would consider, with respect to
each, his “engagement outside the classroom; persistence of
commitment; demonstrated capacity for leadership; contri-
butions to family, school, and community; work history;
[and his] unique or unusual interests.”79 Relevant, too,
would be his “relative advantage or disadvantage, as indi-
cated by family income level, education history of family
members, impact of parents/guardians in the home, or for-
mal education environment; experience of growing up in ru-
ral or center-city locations; [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—re-
ceive a ‘plus’ in the evaluation process depending on the in-

——————
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.
80 Id., at 1415.
81 Id., at 1416; see also 2 id., at 706; Rosenberg ¶22.
 Cite as: 600 U. S. ____ (2023) 17

JACKSON, J., dissenting

dividual circumstances revealed in the student’s applica-

tion.”82 Stephen Farmer, the head of UNC’s Office of Un-
dergraduate Admissions, confirmed 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,
just as any student who chooses to disclose his or her unu-
sual interests can be credited for what those interests might
add to UNC. The record supports no intimation to the con-
trary. Eligibility is just that; a plus is never automatically
awarded, never considered in numerical terms, and never
automatically results in an offer of admission.84 There are
no race-based quotas in UNC’s holistic review process.85 In
fact, during the admissions cycle, the school prevents any-
one 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, first-generation college status . . . polit-
ical beliefs, religious beliefs . . . diversity of thoughts, expe-
riences, ideas, and talents.”88
——————
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 underrepre-
sented minority students,” pointing to a North Carolinian applicant,
originally from Vietnam, who identified as “Asian and Montagnard”); id.,
at 639 (Farmer stating that “the whole of [that student’s] background
was appealing 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.
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.
18 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
JACKSON, J., dissenting

A plus, by its nature, can certainly matter to an admis-

sions 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 consid-
ered alongside any other factor that sheds light on what at-
tributes applicants will bring to the campus and whether
they are likely to excel once there.90 A reader of today’s ma-
jority opinion could be forgiven for misunderstanding how
UNC’s program really works, or for missing that, under
UNC’s holistic review process, a White student could re-
ceive a diversity plus while a Black student might not.91
UNC does not do all this to provide handouts to either
John or James. It does this to ascertain who among its tens

——————
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 pre-
sented at trial) that everyone, no matter their race, is eligible for a
diversity-linked plus. Compare ante, at 5, and n. 1, with 3 App. 1416,
and supra, at 17. The majority also repeatedly mischaracterizes UNC’s
holistic admissions-review process as a “race-based admissions system,”
and insists that UNC’s program involves “separating students on the ba-
sis of race” and “pick[ing only certain] races to benefit.” Ante, at 5, and
n. 1, 26, 38. These claims would be concerning if they had any basis in
the record. The majority appears to have misunderstood (or categorically
rejected) the established fact that UNC treats race as merely one of the
many aspects of an applicant that, in the real world, matter to under-
standing the whole person. Moreover, its holistic review process involves
reviewing a wide variety of personal criteria, not just race. Every appli-
cant 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 applicants to UNC, each of whom has potentially plus-conferring
qualities that a given SFFA member does not.
 Cite as: 600 U. S. ____ (2023) 19

JACKSON, J., dissenting

of thousands of applicants has the capacity to take full ad-

vantage 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 expe-
rience bears on his capacity and merit. In this way, UNC
is able to value what it means for James, whose ancestors
received no race-based advantages, to make himself com-
petitive for admission to a flagship school nevertheless.
Moreover, recognizing this aspect of James’s story does not
preclude UNC from valuing John’s legacy or any obstacles
that his story reflects.
So, to repeat: UNC’s program permits, but does not re-
quire, admissions officers to value both John’s and James’s
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 first-generation White student from Appalachia whose
family struggled to make ends meet during the Great Re-
cession). 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 sys-
tem, to a personalized assessment of the advantages and
disadvantages that every applicant might have received by
accident of birth plus all that has happened to them since.
It ensures a full accounting of everything that bears on the
——————
92 See 3 App. 1409, 1414, 1416.
93 Id., at 1414–1415.
20 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
JACKSON, J., dissenting

individual’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
contribution 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 person, regardless of race).
Furthermore, and importantly, the fact that UNC’s holis-
tic process ensures a full accounting makes it far from clear
that any particular applicant of color will finish ahead of
any particular nonminority applicant. For example, as the
District Court found, a higher percentage of the most aca-
demically excellent in-state Black candidates (as SFFA’s
expert defined academic excellence) were denied admission
than similarly qualified White and Asian American appli-
cants.94 That, if nothing else, is indicative of a genuinely
——————
94 See 567 F. Supp. 3d, at 617, 619; 3 App. 1078–1080. The majority

cannot deny this factual finding. 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
conclusion. Ante, at 5, n. 1. I am inclined to stick with the District
Court’s findings over the majority’s unauthenticated calculations. Even
when the majority’s ad hoc statistical analysis is taken at face value, it
hardly supports what the majority wishes to intimate: that Black stu-
dents are being admitted based on UNC’s myopic focus on “race—and
race alone.” Ante, at 28, n. 6. As the District Court observed, if these
Black students “were largely defined in the admissions process by their
race, one would expect to find that every” such student “demonstrating
academic excellence . . . would be admitted.” 567 F. Supp. 3d, at 619 (em-
phasis added). Contrary to the majority’s narrative, “race does not even
act as a tipping point for some students with otherwise exceptional qual-
ifications.” Ibid. Moreover, as the District Court also found, UNC does
not even use the bespoke “academic excellence” metric that SFFA’s ex-
pert “ ‘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 process actually works (a recurring theme in its opin-
ion).
 Cite as: 600 U. S. ____ (2023) 21

JACKSON, J., dissenting

holistic process; it is evidence that, both in theory and in

practice, UNC recognizes 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 finish 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 op-
portunity gap between applicants like John and James will
inevitably widen that gap, not narrow it. It will delay the
day that every American has an equal opportunity to
thrive, regardless of race.
SFFA similarly asks us to consider how much longer
UNC will be able to justify considering race in its admis-
sions process. Whatever the answer to that question was
yesterday, today’s decision will undoubtedly extend the du-
ration of our country’s need for such race consciousness, be-
cause the justification for admissions programs that ac-
count for race is inseparable 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).
To be sure, while the gaps are stubborn and pernicious,
Black people, and other minorities, have generally been do-
ing better.95 But those improvements have only been made
possible because institutions like UNC have been willing to
grapple forthrightly with the burdens of history. SFFA’s
complaint about the “indefinite” use of race-conscious ad-
missions programs, then, is a non sequitur. These pro-
grams respond to deep-rooted, objectively measurable prob-
lems; their definite end will be when we succeed, together,
in solving those problems.

——————
95 See Bollinger & Stone 86, 103.
22 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
JACKSON, J., dissenting

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, his prog-
eny—and therefore all Americans—can compete without
race mattering in the future. That intergenerational pro-
ject 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 re-
search shows that it matters for students’ ability to learn
and succeed 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 charac-
teristic.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 each other’s stories, which
amici tell us improves cognitive abilities and critical-
thinking skills, reduces prejudice, and better prepares stu-
dents for postgraduate life.97
Beyond campus, the diversity that UNC pursues for the
betterment of its students and society is not a trendy slo-
gan. It saves lives. For marginalized communities in North
Carolina, it is critically important that UNC and other area
institutions produce highly educated professionals of color.
Research shows that Black physicians are more likely to ac-
curately assess Black patients’ pain tolerance and treat
——————
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 ).
97 Id., at 14–20, 23–27.
 Cite as: 600 U. S. ____ (2023) 23

JACKSON, J., dissenting

them accordingly (including, for example, prescribing them

appropriate amounts of pain medication).98 For high-risk
Black newborns, having a Black physician more than dou-
bles the likelihood that the baby will live, and not die.99
Studies also confirm what common sense counsels: Closing
wealth disparities through programs like UNC’s—which,
beyond diversifying the medical profession, open doors to
every sort of opportunity—helps address the aforemen-
tioned health disparities (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 disad-
vantages 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
equality.101 The larger economy benefits, too: When it
comes down to the brass tacks of dollars and cents, ensuring
diversity 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.

——————
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 benefits” 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.
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
findings in this case with respect to these benefits).
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).
24 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
JACKSON, J., dissenting

The flagship educational institution of a former Confeder-

ate State has embraced its constitutional obligation to af-
ford genuine equal protection to applicants, and, by exten-
sion, to the broader polity that its students will serve after
graduation. Surely that is progress for a university that
once engaged in the kind of patently offensive race-
dominated admissions 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
meant he had no shot at getting in (the ultimate race-linked
uneven playing field). Holistic programs like UNC’s reflect
the reality that Black students have only relatively recently
been permitted to get into the admissions game at all. Such
programs also reflect universities’ clear-eyed optimism
that, one day, race will no longer matter.
So much upside. Universal benefits ensue from holistic
admissions programs that allow consideration of all factors
material to merit (including race), and that thereby facili-
tate diverse student populations. Once trained, those UNC
students who have thrived in the university’s diverse learn-
ing environment are well equipped to make lasting contri-
butions in a variety of realms and with a variety of col-
leagues, 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 beneficial
path. In fact, all that they have needed to continue moving
this country forward (toward full achievement of our Na-
tion’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
 Cite as: 600 U. S. ____ (2023) 25

JACKSON, J., dissenting

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 flatness. The majority and concurring opin-
ions rehearse this Court’s idealistic vision of racial equality,
from Brown forward, with appropriate lament for past in-
discretions. See, e.g., ante, at 11. But the race-linked gaps
that the law (aided by this Court) previously founded and
fostered—which indisputably define 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 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 UNC and other institutions of higher learning are do-
ing 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 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 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, ulti-
mately, ignoring race just makes it matter more.103

——————
103 JUSTICE THOMAS’s prolonged attack, ante, at 49–55 (concurring opin-

ion), responds to a dissent I did not write in order to assail an admissions

program that is not the one UNC has crafted. He does not dispute 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 achieve-
26 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
JACKSON, J., dissenting

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 dif-
ficult to accomplish.
* * *
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

——————
ment,” ante, at 51. JUSTICE THOMAS’s opinion also demonstrates an ob-
session with race consciousness that far outstrips my or UNC’s holistic
understanding that race can be a factor that affects applicants’ unique
life experiences. How else can one explain his detection of “an organizing
principle based on race,” a claim that our society is “fundamentally rac-
ist,” and a desire for Black “victimhood” or racial “silo[s],” ante, at 49–52,
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 aspects of identity, supra, at 18? 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 Nation’s full potential. Worse still, by insisting that obvious truths
be ignored, they prevent our problem-solving institutions from directly
addressing the real import and impact of “social racism” and
“government-imposed racism,” ante, at 55 (THOMAS, J., concurring),
thereby deterring our collective progression toward becoming a society
where race no longer matters.
 Cite as: 600 U. S. ____ (2023) 27

JACKSON, J., dissenting

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
SOTOMAYOR correctly and amply explains, UNC’s holistic
review program pursues a righteous end—legitimate “ ‘be-
cause it is defined 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)).
Viewed from this perspective, beleaguered admissions
programs such as UNC’s are not pursuing a patently unfair,
ends-justified 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
ability to succeed in an institute of higher learning and ul-
timately 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
mobility for long excluded and historically disempowered
racial groups. Our Nation’s history more than justifies this
course of action. And our present reality indisputably
establishes that such programs are still needed—for the
general public good—because after centuries of state-
sanctioned (and enacted) race discrimination, the afore-
mentioned intergenerational race-based gaps in health,
wealth, and well-being stubbornly persist.
Rather than leaving well enough alone, today, the major-
ity is having none of it. Turning back the clock (to a time
before the legal arguments and evidence establishing the
——————
104 Foner 179.
28 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT
AND FELLOWS OF HARVARD COLLEGE
JACKSON, J., dissenting

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 for-
ward is unmoored from critical real-life circumstances.
Thus, the Court’s meddling not only arrests the noble gen-
erational project that America’s universities are attempt-
ing, it also launches, in effect, a dismally misinformed soci-
ological experiment.
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 dis-
counts the primary reason that the racial-diversity objec-
tives it excoriates are needed, consigning race-related his-
torical happenings to the Court’s own analytical dustbin.
Also, by latching onto arbitrary timelines and professing in-
security about missing metrics, the Court sidesteps unre-
futed proof of the compelling benefits of holistic admissions
programs that factor in race (hard to do, for there is plenty),
simply proceeding as if no such evidence exists. Then, ulti-
mately, the Court surges to vindicate equality, but Don
Quixote style—pitifully perceiving itself as the sole van-
guard of legal high ground when, in reality, its perspective
is not constitutionally compelled and will hamper the best
judgments of our world-class educational institutions about
who they need to bring onto their campuses right now to
benefit every American, no matter their race.105
——————
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 beneficial.
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
 Cite as: 600 U. S. ____ (2023) 29

JACKSON, J., dissenting

The Court has come to rest on the bottom-line conclusion

that racial diversity in higher education is only worth po-
tentially 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
awkward 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,
ahistorical, 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.

——————
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 22, n. 4, with ante, at 22–30, and supra, at 3–4,

and nn. 2–3.