Students for Fair Admissions, Inc. v. President and Fellows oF Harvard College

Table of Contents

Follow Up

Notable Items:

Sotomayor dissent shows that the majority opinion adopts that of those in Congress, and elsewhere, that opposed the Civil Rights Acts of 1866 and 1870, etc. Hence, the majority eschews citing "text, history, and tradition" in support of its claims.

• Majority insists on an end-date rather than an end-state.
• Constitutionality of conscious admissions policies are limited in time as in ShelbyCounty-Holder (2013) . O'Connor's expectation that the need would end within 25 years Grutter
• Equal Protection Clause of the 14th Amendment allows for multi-decade "limited in time" violations. [Which other clauses may be suspended.]
• Review of "representational or organizational standing" on page 199
• Does not apply to our Nation's military academies.
• Allowable admission preferences:
  • A benefit to a student who overcame racial discrimination, for example, must be tied to that student's courage and determination. [compare legacy admissions] (231)
  • Or a benefit to a student whose heritage or culture motivated him or her to assume a leadership role or attain a particular goal must be tied to that student's unique ability to contribute to the university. [compare legacy admissions]
  • In other words, the student must be treated based on his or her experiences as an individual--not on the basis of race.

Issue(s) Before the Court:

Petitioner's Claim(s):

Respondent's Claim(s):

Holding(s) and Disposition:

Material Facts:

• A full recounting of the facts is available below

Procedural History:

• Part I C (197)
• In November 2014, SFFA fled separate lawsuits against Harvard College and the University of North Carolina, arguing that their race-based admissions programs violated, respectively, Title VI of the Civil Rights Act of 1964, 78 Stat. 252, 42 U. S. C. § 2000d et seq., and the Equal Protection Clause of the Four- teenth Amendment.
• The District Courts in both cases held bench trials to evaluate SFFA's claims.
• ... the [District] Court concluded that Harvard's admissions program comported with our precedents on the use of race in college admissions.
• ... the District Court concluded after an eight-day trial that UNC's admissions program was permissible under the Equal Protection Clause.
• We granted certiorari in the Harvard case and certiorari before judgment in the UNC case. [skipping Courts of Appeals]

Rationale

Roberts Majority Opinion (Thomas, Alito, Gorsuch, Kavanaugh, Barrett)

• (a) The Court rejects UNC’s argument that SFFA lacks standing because it is not a “genuine” membership organization. Pp. 6–9.
• (b) Proponents of the Equal Protection Clause described its “foundation[al] principle” as “not permit[ing] any distinctions of law based on race or color.”
• Any exceptions to the Equal Protection Clause’s guarantee must survive a daunting two-step examination known as “strict scrutiny,” Adarand Constructors, Inc. v. Peña, 515 U. S. 200, 227, which asks first whether the racial classification is used to “further compelling governmental interests,” Grutter v. Bollinger, 539 U. S. 306, 326, and second whether the government’s use of race is “narrowly tailored,” i.e., “necessary,” to achieve that interest, Fisher v. University of Tex. at Austin, 570 U. S. 297, 311–312. Pp. 9–16.
• (c) Justice Powell ... compelling [interest]--obtaining the educational benefits that flow from a racially diverse student body. Pp. 16–19.
• (d) Grutter v. Bollinger, the Court for the first time “endorse[d] Justice Powell’s view that student body diversity is a compelling state interest that can justify the use of race in university admissions.”
• The first is the risk that the use of race will devolve into “illegitimate ... stereotyp[ing].” Richmond v. J. A. Croson Co., 488 U. S. 469, 493 (plurality opinion).
• The second risk is that race would be used not as a plus, but as a negative--to discriminate against those racial groups that were not the beneficiaries of the race-based preference.
• Grutter imposed one final limit on race-based admissions programs: At some point, the Court held, they must end. Pp. 19– 21.
• (e) But the Court has permitted race-based college admissions only within the confines of narrow restrictions: such admissions programs must comply with strict scrutiny, may never use race as a stereotype or negative, and must—at some point—end.
• Respondents’ admissions systems fail each of these criteria and must therefore be invalidated under the Equal Protection Clause of the Fourteenth Amendment. Pp. 21–34.
• (1) First, the interests that respondents view as compelling cannot be subjected to meaningful judicial review.
• Second, respondents’ admissions programs fail to articulate a meaningful connection between the means they employ and the goals they pursue. Pp. 22–26.
• (2) Respondents’ race-based admissions systems also fail to comply with the Equal Protection Clause’s twin commands that race may never be used as a “negative” and that it may not operate as a stereotype. Pp. 26–29.
• (3) Respondents’ admissions programs also lack a “logical end point” .... Pp. 29–34.
• (f) Because Harvard’s and UNC’s admissions ... programs cannot be reconciled with the guarantees of the Equal Protection Clause. Pp. 39–40.
• University programs must comply with strict scrutiny, they may never use race as a stereotype or negative, and--at some point--they must end. (213)
• Respondents' admissions systems--however well intentioned and implemented in good faith--fail each of these criteria.
• They must therefore be invalidated under the Equal Protection Clause of the Fourteenth Amendment.
• Because Harvard's and UNC's admissions programs
  • lack suffciently focused and measurable objectives warranting the use of race,
  • unavoidably employ race in a negative manner,
  • involve racial stereotyping, and
  • lack meaningful end points,
  those admissions programs cannot be reconciled with the guarantees of the Equal Protection Clause.
• ... a university was entitled as a matter of academic freedom "to make its own judgments as to ... the selection of its student body." Bakke at 312
  • A university could not employ a quota system, for example, reserving "a specifed number of seats in each class for individuals from the preferred ethnic groups." Id., at 315.
  • Nor could it impose a "multi-track program with a prescribed number of seats set aside for each identifable category of applicants." Ibid.
  • And neither still could it use race to foreclose an individual "from all consideration ... simply because he was not the right color." Id., at 318.
• ... the Court for the frst time "endorse[d] Justice Powell's view that student body diversity is a compelling state interest that can justify the use of race in university admissions." Grutter v. Bollinger at 325 (211)
• [Bakke/Grutter limits] ... were intended to guard against two dangers ....
  • ... race will devolve into "illegitimate ... stereotyp[ing]."
  • ... race would be used not as a plus, but as a negative--to discriminate against those racial groups that were not the benefciaries of the race-based preference. (212)
  • ... Grutter imposed one final limit on race-based admissions programs. At some point, the Court held, they must end. Id., at 342.
• First, the interests they [respondents] view as compelling cannot be subjected to meaningful judicial review. (214)
• Second, respondents' admissions programs fail to articulate a meaningful connection between the means they employ and the goals they pursue.
• College admissions are zero-sum. A beneft provided to some applicants but not to others necessarily advantages the former group at the expense of the latter. (27)
• If all this were not enough, respondents' admissions programs also lack a "logical end point." Grutter, 539 U. S., at 342. (221) [when the "lop" no longer changes the make up of the incoming class]
• A benefit to a student who overcame racial discrimination, for example, must be tied to that student's courage and determination. [compare legacy admissions] (231)
• Or a benefit to a student whose heritage or culture motivated him or her to assume a leadership role or attain a particular goal must be tied to that student's unique ability to contribute to the university. [compare legacy admissions]
• A full description of the rationale is available below

Thomas Concurrance (??) (231)

Gorsuch Concurrance (Thomas) (107)

• For some time, both universities [Harvard and UNC] have decided which applicants to admit or reject based in part on race. Today, the Court holds that the Equal Protection Clause of the Fourteenth Amendment does not tolerate this practice.
• I write to emphasize that Title VI of the Civil Rights Act of 1964 does not either.
• Part I -- (1)
• Title VI of that law [the Civil Rights Act of 1964] contains terms as powerful as they are easy to understand: “No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 42 U. S. C. §2000d.
• And the trial records reveal that both schools routinely discriminate on the basis of race when choosing new students—exactly what the law forbids.
• Part I A -- (2)

Kavanaugh Concurrance (none) (311)

• I add this concurring opinion to further explain why the Court's decision today is consistent with and follows from the Court's equal protection precedents, including the Court's precedents on race-based affrmative action in higher education. [Did Roberts fail to do so in the Majority opinion?]
• Under strict scrutiny, racial classifcations are constitutionally prohibited unless they are narrowly tailored to further a compelling governmental interest. Grutter, 539 U. S., at 326–327.
• Narrow tailoring requires courts to examine, among other things, whether a racial classifcation is “necessary”--in other words, whether race-neutral alternatives could adequately achieve the governmental interest. Id., at 327, 339–340; Richmond v. J. A. Croson Co., 488 U. S. 469, 507 (1989).
• Importantly, even if a racial classifcation is otherwise narrowly tailored to further a compelling governmental interest, a "deviation from the norm of equal treatment of all racial and ethnic groups" must be "a temporary matter"--or stated otherwise, must be "limited in time." Id., at 510 (plurality opinion of O'Connor); Grutter, 539 U. S., at 342. [temporarily unconstitutional actions are just fine.]
• O'Connor: "We expect that 25 years from now ... will no longer be necessary ...." (312)
• Thomas: race-based affrmative action in higher education "will be unconstitutional in 25 years"
• Kennedy: "race-conscious admissions programs will be unnecessary 25 years from now." (313)
• Ginsburg: "one may hope, but not firmly forecast, that over the next generation's span, progress toward nondiscrimination and genuinely equal opportunity will make it safe to sunset affrmative action."
• The Grutter Court's conclusion that race-based affrmative action in higher education must be limited in time followed not only from fundamental equal protection principles, but also from this Court's equal protection precedents applying those principles. (314)

Sotomayor Dissent (Kagan, Jackson re: UNC) (1)

• The Equal Protection Clause of the Fourteenth Amendment enshrines a guarantee of racial equality.
• The Court long ago concluded that this guarantee can be enforced through race-conscious means in a society that is not, and has never been, colorblind.
• The Court subverts the constitutional guarantee of equal protection by further entrenching racial inequality in education, the very foundation of our democratic government and pluralistic society. (2)
• Part I A -- Reconstruction (2)
• Congress chose its words [in the Fourteenth Amendment] carefully, opting for expansive language that focused on equal protection and rejecting “proposals that would have made the Constitution explicitly color-blind.” (2)
• This choice makes it clear that the Fourteenth Amendment does not impose a blanket ban on race-conscious policies. (6)
• Simultaneously with the passage of the Fourteenth Amendment, Congress enacted a number of race-conscious laws to fulfll the Amendment's promise of equality, leaving no doubt that the Equal Protection Clause permits consideration of race to achieve its goal. [Freedman's Bureau, Funds and land for Historically Black Colleges and Universities (HBCU), funding for destitute colored women and children, ...]
• Opponents argued that the [Freedman's Bureau] Act created harmful racial classifications that favored Black people and disfavored white Americans. (7)
• ... the Act makes “a distinction on account of color between the two races” ... [compare Majority statements regarding Constitutionality of race-conscious policies]
• Thus, rejecting those opponents’ objections, the same Reconstruction Congress that passed the Fourteenth Amendment eschewed the concept of colorblindness as sufficient to remedy inequality in education. (8)
• In fact, Congress 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). (9)
• Part I B -- Brown Requires Affirmative Action (10)
• In a series of decisions, the Court “sharply curtailed” the “substantive protections” of the Reconstruction Amendments and the Civil Rights Acts. Id., at 391–392 (collecting cases).
• 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. (Green v. School Bd. of New Kent Cty., 391 U. S. 430 (1968); North Carolina Bd. of Ed. v. Swann, 402 U. S. 43, 45–46 (1971); Keyes v. School Dist. No. 1, Denver, 413 U. S. 189, 200 (1973); Dayton Bd. of Ed. v. Brinkman, 443 U. S. 526, 538 (1979); etc.) (12)
• Affirmative steps, this Court held, are constitutionally necessary when mere formal neutrality cannot achieve Brown’s promise of racial equality.
• In so holding, this Court’s post-Brown decisions rejected arguments advanced by opponents of integration suggesting that “restor[ing] race as a criterion in the operation of the public schools” was at odds with “the Brown decisions.” (13)
• 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. (14)
• Part I C -- Bakke and Later Decisions (14)
• Since Bakke, the Court has reaffirmed numerous times the constitutionality of limited race-conscious college admissions. (15)
• 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. (17)
• Part I D -- (17)
• Today, the Court concludes that indifference to race is the only constitutionally permissible means to achieve racial equality in college admissions.
• Part I D 1 -- Disparities (18)
• After more than a century of government policies enforcing racial segregation by law, society remains highly segregated. About half of all Latino and Black students attend a racially homogeneous school with at least 75% minority student enrollment. (18)
• When combined with residential segregation and school funding systems that rely heavily on local property taxes, this leads to racial minority students attending schools with fewer resources. See San Antonio Independent School Dist. v. Rodriguez, 411 U. S. 1, 72–86 (1973) (Marshall, dissenting) (noting school funding disparities that result from local property taxation).
• Part I D 2 -- Racism at UNC and Harvard (21)
• Part I D 2 i -- UNC History of Racism (22)
• Part I D 2 ii -- Harvard History of Racism (23)
• Part II --
• 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.
• Under a faithful application of the Court’s settled legal framework, Harvard and UNC’s admissions programs are constitutional and comply with Title VI of the Civil Rights Act of 1964, 42 U. S. C. §2000d et seq.
• Part II A -- Questions before the Court
• The Court granted certiorari on three questions:
  1. whether the Court should overrule Bakke, Grutter, and Fisher; or, alternatively,
  2. whether UNC’s admissions program is narrowly tailored, and
  3. whether Harvard’s admissions program is narrowly tailored.
• Answering the last two questions, which call for application of settled law to the facts of these cases, is simple: Deferring to the lower courts’ careful findings of fact and credibility determinations, Harvard’s and UNC’s policies are narrowly tailored.
• Part II B 1 -- UNC Narrow Tailoring
• The use of race is narrowly tailored unless “workable” and “available” race-neutral approaches exist, meaning race-neutral alternatives promote the institution’s diversity goals and do so at “ ‘tolerable administrative expense.’ ” Fisher I, 570 U. S., at 312
• All of SFFA’s proposals are methodologically flawed because they rest on “ ‘terribly unrealistic’ ” assumptions about the applicant pools. UNC, 567 F. Supp. 3d, at 643–645, 647.
• Part II B 2 -- Harvard Narrow Tailoring
• SFFA’s proposal, echoed by 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.
• 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. Grutter, at 342; Fisher II, 579 U. S., at 388. (34)
• Because SFFA failed to offer an expert and to prove its claim below, the majority ... relies on a single chart from SFFA’s brief that truncates relevant data in the record. (35)
• The data also show that the racial shares of admitted applicants fluctuate more than the corresponding racial shares of total applicants, which is “the opposite of what one would expect if Harvard imposed a quota.” Harvard II, 980 F. 3d, at 188. (35)
• Part III -- Precedent (36)
• “Every one of the arguments made by the majority can be found in the dissenting opinions filed in [the] cases” the majority now overrules. (36)
• Lost arguments are not grounds to overrule a case. [But a change in court personnel is.]
• At bottom, the six unelected members of today’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.
• Part III A 1 -- Use of Race (38)
• A limited use of race in college admissions is consistent with the Fourteenth Amendment and this Court’s broader equal protection jurisprudence.
• Consistent with that view, the Court has explicitly held that “race-based action” is sometimes “within constitutional constraints.”
• Tellingly, in sharp contrast with today’s decision, the Court has allowed the use of race when that use burdens minority populations. (United States v. Brignoni-Ponce and United States v. Martinez-Fuerte border patrol actions) (38)
• 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. (39)
• Part III A 2 -- Repudiation of Precedent (39)
• The majority does not dispute that some uses of race are constitutionally permissible. See ante, at 15. (39)
• At bottom, without any new factual or legal justification, the Court overrides its longstanding holding that diversity in higher education is of compelling value. (42)
• 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. (42)
• Yet as the majority acknowledges, ... Bakke ... upheld a limited use of race in college admissions to promote the educational benefits that flow from diversity. (43)
• Part III B -- Regarding Majority Objections to Admissions Policies (43)
• 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.
• Part III B 1 -- Unfair to Some Racial Groups (43)
• The majority’s true objection appears to be that a limited use of race in college admissions does, in fact, achieve what it is designed to achieve: It helps equalize opportunity and advances respondents’ objectives by increasing the number of underrepresented racial minorities on college campuses, particularly Black and Latino students. (45)
• This is unacceptable, the Court says, because racial groups that are not underrepresented “would be admitted in greater numbers” without these policies.
• 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). (46)
• To be clear, today’s decision leaves intact holistic college admissions and recruitment efforts that seek to enroll diverse classes without using racial classifications. (49)
• Universities should continue to use those tools as best they can to recruit and admit students from different backgrounds based on all the other factors the Court’s opinion does not, and cannot, touch.
• Colleges and universities can continue to consider socioeconomic diversity and to recruit and enroll students who are first-generation college applicants or who speak multiple languages, for example.
• The Court today also does not adopt SFFA’s suggestion that college admissions should be a function of academic metrics alone. (50)
• Part III B 2 -- Measurable Catch-22 (51)
• As noted above, this Court suggests that the use of race in college admissions is unworkable because respondents’ objectives are not sufficiently “measurable,” “focused,” “concrete,” and “coherent.” Ante, at 23, 26, 39.
• Any increased level of precision runs the risk of violating the Court’s admonition that colleges and universities 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.
• Part III B 3 -- Imprecise Racial Groups (52)
• 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 “arbitrary.” Ante, at 25.
• Notwithstanding this Court’s confusion about racial self-identification, neither students nor universities are confused. There is no evidence that the racial categories that respondents use are unworkable. (53)
• Part III B 4 -- End-date Constitutionality (53)
• ... the Court also holds that Harvard’s and UNC’s race-conscious programs are unconstitutional because they do not have a specific expiration date. Ante, at 30–34.
• 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.” (54)
• Grutter’s requirement that universities engage in periodic reviews so the use of race can end “as soon as practicable” is well grounded in the need to ensure that race is “employed no more broadly than the interest demands.” 539 U. S., at 343. That is, it is grounded in strict scrutiny.
• By removing universities’ ability to assess the success of their programs, the Court obstructs these institutions’ ability to meet their diversity goals. (56)
• Part III B 5 -- Contra-Thomas (56)
• The Court previously declined to adopt this [his] so-called “mismatch” hypothesis [See Fisher I, 570 U. S., at 332 concurring opinion)] for good reason: It was debunked long ago.
• Citing nothing but his own long-held belief, Thomas also equates affirmative action in higher education with segregation .... Studies disprove this sentiment, which echoes “tropes of stigma” that “were employed to oppose Reconstruction policies.” (57)
• Thomas suggests that race-conscious college admissions policies harm racial minorities by increasing affinity-based activities on college campuses. Ante, at 46. Affinity-based activities actually help racial minorities improve their visibility on college campuses and “decreas[e] racial stigma and vulnerability to stereotypes” caused by “conditions of racial isolation” and “tokenization.(58)
• Citing no evidence, Thomas also suggests that race-conscious admissions programs discriminate against Asian American students. Ante, at 43-44. ... there was a lengthy trial to test those allegations, which SFFA lost. (59)
• Finally, Thomas belies reality by suggesting that “experts and elites” with views similar to those “that 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. (61)
• Part III C -- Reliance Interests (stare decisis) 61
• In its “radical claim to power,” the Court does not even acknowledge the important reliance interests that this Court’s precedents have generated. (61)
• Part IV -- (62)

Jackson Dissent re: UNC (Sotomayor, Kagan) (209)

• Justice Sotomayor has persuasively established that nothing in the Constitution or Title VI prohibits institutions from taking race into account to ensure the racial diversity of admits in higher education.
• I write separately to expound upon the universal benefits of considering race in this context, in response to a suggestion that has permeated this legal action from the start.
• Part I A -- History of Pervasive Discrimination
• [Civil Rights Cases, Homestead Act, Jim Crow laws, zoning in the North, Home Owners' Loan Corporation policy, Federal Housing Administration policy, Veterans Administration policy, Federal Home Loan Bank Board policy, not to mention Social Security excluding agricultural and in-home workers, G.I. Bill.]
• For present purposes, it is significant that, in so excluding Black people, government policies affirmatively operated—one could say, affirmatively acted—to dole out preferences to those who, if nothing else, were not Black. (9)
• Part I B -- Detailing Consequent Discrepancies
• 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.
• Part I C -- Detailing Multi-generational Discrimination
• [Detailing UNC and North Carolina policies of discrimination in each generation]
• To demand that colleges ignore race in today’s admissions practices .... condemns our society to never escape the past that explains how and why race matters to the very concept of who “merits” admission.
• Part II -- UNC Admissions Process
• UNC considers whatever information each applicant submits using a nonexhaustive list of 40 criteria grouped into eight categories: “academic performance, academic program, standardized testing, extracurricular activity, special talent, essay criteria, background, and personal criteria.” (16)
• 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 unusual interests can be credited for what those interests might add to UNC. (17)
• More than that, every applicant is also eligible for a diversity-linked plus (beyond race) more generally. And, notably, UNC understands diversity broadly, including “socioeconomic status, first-generation college status ... political beliefs, religious beliefs ... diversity of thoughts, experiences, ideas, and talents.”
• Furthermore, and importantly, the fact that UNC’s holistic process ensures a full accounting makes it far from clear that any particular applicant of color will finish ahead of any particular nonminority applicant. (20)
• For example, as the District Court found, a higher percentage of the most academically excellent in-state Black candidates (as SFFA’s expert defined academic excellence) were denied admission than similarly qualified White and Asian American applicants.
• Part III A -- Advantages of Existing Admissions Process
• The majority seems to think that race blindness solves the problem of race-based disadvantage. (21)
• To be sure, while the gaps are stubborn and pernicious, Black people, and other minorities, have generally been doing better.95 But those improvements have only been made possible because institutions like UNC have been willing to grapple forthrightly with the burdens of history. SFFA’s complaint about the “indefinite” use of race-conscious admissions programs, then, is a non sequitur. These programs respond to deep-rooted, objectively measurable problems; their definite end will be when we succeed, together, in solving those problems. [end-state not end-date]
• 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 disadvantages with respect to their health, wealth, and well-being. (23)
• 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 history: 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). (24)
• Part III V B -- Re: Majority Opinion
• 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. (25)
• It is no small irony that the judgment the majority hands down today will forestall the end of race-based disparities in this country, making the colorblind world the majority wistfully touts much more difficult to accomplish. (26)
• [Conclusion]
• 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. (27)
• 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.
• Also, by latching onto arbitrary timelines and professing insecurity about missing metrics, the Court sidesteps unrefuted 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. (28)
• [Note 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 programs that factor in race are warranted, just, and universally beneficial.

Full Recounting of Facts

• Part I A (192)
• [Harvard] Every application is initially screened by a "frst reader," who assigns scores in six categories: academic, extracurricular, athletic, school support, personal, and overall. (194)
• In assigning the overall rating, the frst readers "can and do take an applicant's race into account.
• ... Harvard convenes admissions subcommittees. ... evaluates all applicants from a particular geographic area.
• The subcommittees can and do take an applicant's race into account when making their recommendations.
• ... full committee .... discusses the relative breakdown of applicants by race.
• At the end of the full committee meeting, the racial composition of the pool of tentatively admitted students is disclosed to the committee. (195)
• The final stage ... the "lop" .... "lop list," which contains only four pieces of information: legacy status, recruited athlete status, financial aid eligibility, and race. [discrimination by birth: race and legacy]
• ... the [full] committee can and does take race into account.
• Part I B (195)
• [UNC] ... initially reviewed by one of approximately 40 admissions offce readers .... Readers are required to consider "[r]ace and ethnicity ... as one factor" in their review.
• Other factors include academic performance and rigor, standardized testing results, extracurricular involvement, essay quality, personal factors, and student background. (196)
• ... readers may offer students a "plus" based on their race, which "may be signifcant in an individual case."
• ... review committee receives a report on each student which contains, among other things, their "class rank, GPA, and test scores; the ratings assigned to them by their initial readers; and their status as residents, legacies, or special recruits."
• ... the review committee may also consider the applicant's race.
• A list of the material facts is available above

Roberts Majority Full Argument (Thomas, Alito, Gorsuch, Kavanaugh, Barrett)

• See Material Facts
• See Procedural History
• Part II -- Jurisdiction, Standing
• ... requires a plaintiff to demonstrate that it has "(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision." Spokeo, Inc. v. Robins, 578 U. S. 330, 338 (2016). (199)
• Either the organization can claim that it suffered an injury in its own right or, alternatively, it can assert "standing solely as the representative of its members." Warth v. Seldin, 422 U. S. 490, 511 (1975) [representational or organizational standing]
• ... an organization must demonstrate that "(a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization's purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit." Hunt v. Washington State Apple Advertising Comm'n, 432 U. S. 333, 343 (1977).
• The indicia of membership analysis employed in Hunt has no applicability in these cases. Here, SFFA is indisputably a voluntary membership organization with identifable members .... [unlike the Washington State Apple Advertising Comm'n which had no members, rather the commission was made up of growers and dealers elected and financed by other growers and dealers] (201)
• [SFFA members include four] high school graduates who were denied admission to UNC.
• Where, as here, an organization has identifed members and represents them in good faith, our cases do not require further scrutiny into how the organization [SFFA] operates.
• Part III A -- History (201)
• [recite history from Strauder v. West Virginia (1880), Yick Wo v. Hopkins (1886), Plessy v. Ferguson (1896), and Brown v. Bd. of Education (1954)]
• [In Brown, w]e overturned Plessy for good and set firmly on the path of invalidating all de jure racial discrimination by the States and Federal Government. 347 U. S., at 494–495. (203)
• The conclusion reached by the Brown Court was thus unmistakably clear: the right to a public education "must be made available to all on equal terms." (204)
• Any exception to the Constitution's demand for equal protection must survive a daunting two-step examination known in our cases as "strict scrutiny." Adarand Constructors, Inc. v. Peña, 515 U. S. 200, 227 (1995). (206)
• ... first, whether the racial classifcation is used to "further compelling governmental interests." Grutter v. Bollinger, 539 U. S. 306, 326 (2003).
• Second, if so, we ask whether the government's use of race is "narrowly tailored"--meaning "necessary"--to achieve that interest. Fisher v. University of Tex. at Austin, 570 U. S. 297, 311–312 (2013) (Fisher I)
• ... our precedents have identifed only two compelling interests that permit resort to race-based government action. (207)
• One is remediating specific, identifed instances of past discrimination that violated the Constitution or a statute. See, e. g., Parents Involved in Community Schools v. Seattle School Dist. No. 1, 551 U. S. 701, 720 (2007) ....
• The second is avoiding imminent and serious risks to human safety in prisons, such as a race riot. See Johnson v. California, 543 U. S. 499, 512–513 (2005).
• Part III B -- Bakke
• [Regents of University of California v. Bakke rejected] "reducing the historic defcit of traditionally disfavored minorities in medical schools,"; "remedying ... the effects of 'societal discrimination' " [deemed amorphous]; "virtually no evidence in the record indicating that [the school's] special admissions program" would, as the school had argued, increase the number of doctors working in underserved areas. (208)
• [Constitutionally permissible] ... obtaining the educational benefts that fow from a racially diverse student body. (209) [Source of "diversity" Lewis Powell ?]
• ... a university was entitled as a matter of academic freedom "to make its own judgments as to ... the selection of its student body." Bakke at 312
  • A university could not employ a quota system, for example, reserving "a specifed num-er of seats in each class for individuals from the preferred ethnic groups." Id., at 315.
  • Nor could it impose a "multi-track program with a prescribed number of seats set aside for each identifable category of applicants." Ibid.
  • And neither still could it use race to foreclose an individual "from all consideration ... simply because he was not the right color." Id., at 318.
• Part III C -- Grutter
• ... the Court for the frst time "endorse[d] Justice Powell's view that student body diversity is a compelling state interest that can justify the use of race in university admissions." Grutter v. Bollinger at 325 (211)
• [Bakke/Grutter limits] ... were intended to guard against two dangers ....
  • ... race will devolve into "illegitimate ... stereotyp[ing]."
  • ... race would be used not as a plus, but as a negative--to discriminate against those racial groups that were not the benefciaries of the race-based preference. (212)
  • ... Grutter imposed one final limit on race-based admissions programs. At some point, the Court held, they must end. Id., at 342.
• Part IV -- Decision
• University programs must comply with strict scrutiny, they may never use race as a stereotype or negative, and--at some point--they must end. (213)
• Respondents' admissions systems--however well intentioned and implemented in good faith--fail each of these criteria.
• They must therefore be invalidated under the Equal Protection Clause of the Fourteenth Amendment.
• Part IV A -- Violates Racial Discrimination
• First, the interests they [respondents] view as compelling cannot be subjected to meaningful judicial review. (214) [UNC interests] (1) promoting the robust exchange of ideas; (2) broadening and refning understanding; (3) fostering innovation and problem-solving; (4) preparing engaged and productive citizens and leaders; [and] (5) enhancing appreciation, respect, and empathy, cross-racial understanding, and breaking down stereotypes.
• Even if these goals could somehow be measured, moreover, how is a court to know when they have been reached .... (214)
• Second, respondents' admissions programs fail to articulate a meaningful connection between the means they employ and the goals they pursue.
• Courts may not license separating students on the basis of race without an exceedingly persuasive justifcation that is measurable and concrete enough to permit judicial review. (217)
• Part IV B -- Violates Equal Protection
• The race-based admissions systems that respondents employ also fail to comply with the twin commands of the Equal Protection Clause that race may never be used as a "negative" and that it may not operate as a stereotype.
• First, .... results in fewer Asian American and white students being admitted." (218)
• College admissions are zero-sum. A beneft provided to some applicants but not to others necessarily advantages the former group at the expense of the latter. (27)
• "One of the principal reasons race is treated as a forbidden classifcation is that it demeans the dignity and worth of a person to be judged by ancestry instead of by his or her own merit and essential qualities." Rice v. Cayetano, 528 U. S., at 517.
• Part IV C -- Lack of End-Date [vs End-State]
• If all this were not enough, respondents' admissions programs also lack a "logical end point." Grutter, 539 U. S., at 342. (221) [when the "lop" no longer changes the make up of the incoming class]
• [R]espondents' race-based admissions programs will end when, in their absence, there is "meaningful representation and meaningful diversity" on college campuses.
• Respondents' second proffered end point fares no better. Respondents assert that universities will no longer need to engage in race-based admissions when, in their absence, students nevertheless receive the educational benefts of diversity.
• Third,<>/b> respondents suggest that race-based preferences must be allowed to continue for at least five more years, based on the Court's statement in Grutter ....
• Finally,<>/b> respondents argue that their programs need not have an end point at all because they frequently review them to determine whether they remain necessary.
• In short, there is no reason to believe that respondents will—even acting in good faith—comply with the Equal Protection Clause any time soon.
• Part V -- Contra Dissent
• [Dissents] would instead uphold respondents' admissions programs based on their view that the Fourteenth Amendment permits state actors to remedy the effects of societal discrimination through explicitly race-based measures.
• Although both opinions are thorough and thoughtful in many respects, this Court has long rejected their core thesis.
• "[A]n effort to alleviate the effects of societal discrimination is not a compelling interest," we said plainly in [Shaw v.] Hunt, a 1996 case about the Voting Rights Act. 517 U. S., at 909–910.
• [Dissents] fail to mention that the entirety of their analysis of the Equal Protection Clause--the statistics, the cases, the history--has been considered and rejected before.
• The serious reservations that Bakke, Grutter, and Fisher had about racial preferences go unrecognized.
• And the repeated demands that race-based admissions programs must end go overlooked ....
• Part VI -- Conclusion
• Both programs lack suffciently focused and measurable objectives warranting the use of race, unavoidably employ race in a negative manner, involve racial stereotyping, and lack meaningful end points.
• At the same time, as all parties agree, nothing in this opinion should be construed as prohibiting universities from considering an applicant's discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise. (230)
• ... universities may not simply establish through application essays or other means the regime we hold unlawful today.
• A benefit to a student who overcame racial discrimination, for example, must be tied to that student's courage and determination. [compare legacy admissions] (231)
• Or a benefit to a student whose heritage or culture motivated him or her to assume a leadership role or attain a particular goal must be tied to that student's unique ability to contribute to the university. [compare legacy admissions]
• In other words, the student must be treated based on his or her experiences as an individual--not on the basis of race.
• The core of the rationale is available above