We Annotated the Supreme Court's Decision on Affirmative Action
With Reed's early action deadline recently passed on November 1st, the Quest turned to the Supreme Court's June decision on affirmative action to understand the new limits placed on Reed's admissions policies this cycle. It is hard to overestimate the impact of this decision, which Reed VP for Admission and Financial Aid Milyon Trulove recently said "changes the face of our nation." So, rather than briefly summarize such an important document, the Quest is running it in full, alongside annotations from the editorial board – which seek to put the decision in context with recent news articles and details specific to Reed's campus.
The following is the full text of the court's majority decision, although the extensive in text citations common to Supreme Court opinions have been removed to promote readability. Where you see a piece of underlined text, click to view an annotation with news context or commentary. Where you see a colored footnote like this one0, click to see a footnote from the Justices of the Supreme Court as it appears in the original opinion.
In these cases we consider whether the admissions systems used by Harvard College and the University of North Carolina, two of the oldest institutions of higher learning in the United States, are lawful under the Equal Protection Clause of the Fourteenth Amendment.
I.
A
Founded in 1636, Harvard College has one of the most selective application processes in the country.Over 60,000 people applied to the school last year; fewer than 2,000 were admitted. Gaining admission to Harvard isthus no easy feat. It can depend on having excellent grades, glowing recommendation letters, or overcoming significantadversity. It can also depend on your race. The admissions process at Harvard works as follows. Every application isinitially screened by a “first reader,” who assigns scores in six categories: academic, extracurricular, athletic,school support, personal, and overall. A rating of “1” is the best; a rating of “6” the worst. In the academic category,for example, a “1” signifies “nearperfect standardized test scores and grades”; in the extracurricular category, itindicates “truly unusual achievement”; and in the personal category, it denotes “outstanding” attributes like maturity,integrity, leadership, kindness, and courage. A score of “1” on the overall rating—a composite of the five otherratings— “signifies an exceptional candidate with >90% chance of admission.” In assigning the overall rating, thefirst readers “can and do take an applicant’s race into account.” Once the first read process is complete, Harvardconvenes admissions subcommittees. Each subcommittee meets for three to five days and evaluates all applicants froma particular geographic area. The subcommittees are responsible for making recommendations to the full admissionscommittee. The subcommittees can and do take an applicant’s race into account when making their recommendations. Thenext step of the Harvard process is the full committee meeting. The committee has 40 members, and its discussioncenters around the applicants who have been recommended by the regional subcommittees. At the beginning of the meeting,the committee discusses the relative breakdown of applicants by race. The “goal,” according to Harvard’s director ofadmissions, “is to make sure that [Harvard does] not hav[e] a dramatic drop-off” in minority admissions from the priorclass. Each applicant considered by the full committee is discussed one by one, and every member of the committee mustvote on admission. Only when an applicant secures a majority of the full committee’s votes is he or she tentativelyaccepted for admission. At the end of the full committee meeting, the racial composition of the pool of tentativelyadmitted students is disclosed to the committee. The final stage of Harvard’s process is called the “lop,” duringwhich the list of tentatively admitted students is winnowed further to arrive at the final class. Any applicants thatHarvard considers cutting at this stage are placed on a “lop list,” which contains only four pieces of information:legacy status, recruited athlete status, financial aid eligibility, and race. The full committee decides as a groupwhich students to lop. In doing so, the committee can and does take race into account. Once the lop process is complete,Harvard’s admitted class is set. In the Harvard admissions process, “race is a determinative tip for” a significantpercentage “of all admitted African American and Hispanic applicants.”
B
Founded shortly after the Constitution was ratified, the University of North Carolina (UNC) prides itself on being the “nation’s first public university.” Like Harvard, UNC’s “admissions process is highly selective”: In a typical year, the school “receives approximately 43,500 applications for its freshman class of 4,200.” Every application the University receives is initially reviewed by one of approximately 40 admissions office readers, each of whom reviews roughly five applications per hour. 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. Readers are responsible for providing numerical ratings for the academic, extracurricular, personal, and essay categories. During the years at issue in this litigation, underrepresented minority students were “more likely to score [highly] on their personal ratings than their white and Asian American peers,” but were more likely to be “rated lower by UNC readers on their academic program, academic performance, . . . extracurricular activities,” and essays. After assessing an applicant’s materials along these lines, the reader “formulates an opinion about whether the student should be offered admission” and then “writes a comment defending his or her recommended decision.” In making that decision, readers may offer students a “plus” based on their race, which “may be significant in an individual case.” The admissions decisions made by the first readers are, in most cases, “provisionally final.” Following the first read process, “applications then go to a process called ‘school group review’ . . . where a committee composed of experienced staff members reviews every [initial] decision.” The 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 either approves or rejects each admission recommendation made by the first reader, after which the admissions decisions are finalized. In making those decisions, the review committee may also consider the applicant’s race.1
C
Petitioner, Students for Fair Admissions (SFFA), is a nonprofit organization founded in 2014 whose purpose is“to defend human and civil rights secured by law, including the right of individuals to equal protection under thelaw.” In November 2014, SFFA filed separate lawsuits against Harvard College and the University of North Carolina,arguing that their race-based admissions programs violated, respectively, Title VI of the Civil Rights Act of 1964,and the Equal Protection Clause of the Fourteenth Amendment2. The District Courts in both cases held bench trials toevaluate SFFA’s claims. Trial in the Harvard case lasted 15 days and included testimony from 30 witnesses, after whichthe Court concluded that Harvard’s admissions program comported with our precedents on the use of race in collegeadmissions. The First Circuit affirmed that determination. Similarly, in the UNC case, the District Court concludedafter an eight-day trial that UNC’s admissions program was permissible under the Equal Protection Clause. We grantedcertiorari in the Harvard case and certiorari before judgment in the UNC case.
II
Before turning to the merits, we must assure ourselves of our jurisdiction. UNC argues that SFFA lacks standing to bring its claims because it is not a “genuine” membership organization. Article III of the Constitution limits “[t]he judicial power of the United States” to “cases” or “controversies,” ensuring that federal courts act only “as a necessity in the determination of real, earnest and vital” disputes. “To state a case or controversy under Article III, a plaintiff must establish standing.” That, in turn, requires a plaintiff to demonstrate that it has “(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.” In cases like these, where the plaintiff is an organization, the standing requirements of Article III can be satisfied in two ways. Either the organization can claim that it suffered an injury in its own right or, alternatively, it can assert “standing solely as the representative of its members.” The latter approach is known as representational or organizational standing. To invoke it, an organization must demonstrate that “(a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization’s purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.” Respondents do not contest that SFFA satisfies the threepart test for organizational standing articulated in Hunt, and like the courts below, we find no basis in the record to conclude otherwise. Respondents instead argue that SFFA was not a “genuine ‘membership organization’” when it filed suit, and thus that it could not invoke the doctrine of organizational standing in the first place. According to respondents, our decision in Hunt established that groups qualify as genuine membership organizations only if they are controlled and funded by their members. And because SFFA’s members did neither at the time this litigation commenced, respondents’ argument goes, SFFA could not represent its members for purposes of Article III standing. Hunt involved the Washington State Apple Advertising Commission, a state agency whose purpose was to protect the local apple industry. The Commission brought suit challenging a North Carolina statute that imposed a labeling requirement on containers of apples sold in that State. The Commission argued that it had standing to challenge the requirement on behalf of Washington’s apple industry. We recognized, however, that as a state agency, “the Commission [wa]s not a traditional voluntary membership organization . . . , for it ha[d] no members at all.” As a result, we could not easily apply the three-part test for organizational standing, which asks whether an organization’s members have standing. We nevertheless concluded that the Commission had standing because the apple growers and dealers it represented were effectively members of the Commission. The growers and dealers “alone elect[ed] the members of the Commission,” “alone . . . serve[d] on the Commission,” and “alone finance[d] its activities”—they possessed, in other words, “all of the indicia of membership.” The Commission was therefore a genuine membership organization in substance, if not in form. And it was “clearly” entitled to rely on the doctrine of organizational standing under the three-part test recounted above. The indicia of membership analysis employed in Hunt has no applicability in these cases. Here, SFFA is indisputably a voluntary membership organization with identifiable members—it is not, as in Hunt, a state agency that concededly has no members. As the First Circuit in the Harvard litigation observed, at the time SFFA filed suit, it was “a validly incorporated 501(c)(3) nonprofit with forty-seven members who joined voluntarily to support its mission.” Meanwhile in the UNC litigation, SFFA represented four members in particular—high school graduates who were denied admission to UNC. Those members filed declarations with the District Court stating “that they have voluntarily joined SFFA; they support its mission; they receive updates about the status of the case from SFFA’s President; and they have had the opportunity to have input and direction on SFFA’s case.” Where, as here, an organization has identified members and represents them in good faith, our cases do not require further scrutiny into how the organization operates. Because SFFA complies with the standing requirements demanded of organizational plaintiffs in Hunt, its obligations under Article III are satisfied.
III
A
In the wake of the Civil War, Congress proposed and the States ratified the Fourteenth Amendment, providing that no State shall “deny to any person . . . the equal protection of the laws.” To its proponents, the Equal Protection Clause represented a “foundation[al] principle”—“the absolute equality of all citizens of the United States politically and civilly before their own laws.” The Constitution, they were determined, “should not permit any distinctions of law based on race or color.” As soon-to-be President James Garfield observed, the Fourteenth Amendment would hold “over every American citizen, without regard to color, the protecting shield of law.” And in doing so, said Senator Jacob Howard of Michigan, the Amendment would give “to the humblest, the poorest, the most despised of the race the same rights and the same protection before the law as it gives to the most powerful, the most wealthy, or the most haughty.” For “[w]ithout this principle of equal justice,” Howard continued, “there is no republican government and none that is really worth maintaining.” At first, this Court embraced the transcendent aims of the Equal Protection Clause. “What is this,” we said of the Clause in 1880, “but declaring that the law in the States shall be the same for the black as for the white; that all persons, whether colored or white, shall stand equal before the laws of the States?” “[T]he broad and benign provisions of the Fourteenth Amendment” apply “to all persons,” we unanimously declared six years later; it is “hostility to . . . race and nationality” “which in the eye of the law is not justified.” Despite our early recognition of the broad sweep of the Equal Protection Clause, this Court—alongside the country—quickly failed to live up to the Clause’s core commitments. For almost a century after the Civil War, statemandated segregation was in many parts of the Nation a regrettable norm. This Court played its own role in that ignoble history, allowing in Plessy v. Ferguson the separate but equal regime that would come to deface much of America. The aspirations of the framers of the Equal Protection Clause, “[v]irtually strangled in [their] infancy,” would remain for too long only that—aspirations. After Plessy, “American courts . . . labored with the doctrine [of separate but equal] for over half a century.” Some cases in this period attempted to curtail the perniciousness of the doctrine by emphasizing that it required States to provide black students educational opportunities equal to—even if formally separate from—those enjoyed by white students. But the inherent folly of that approach—of trying to derive equality from inequality—soon became apparent. As the Court subsequently recognized, even racial distinctions that were argued to have no palpable effect worked to subordinate the afflicted students. By 1950, the inevitable truth of the Fourteenth Amendment had thus begun to reemerge: Separate cannot be equal. The culmination of this approach came finally in Brown v. Board of Education. In that seminal decision, we overturned Plessy for good and set firmly on the path of invalidating all de jure racial discrimination by the States and Federal Government. Brown concerned the permissibility of racial segregation in public schools. The school district maintained that such segregation was lawful because the schools provided to black students and white students were of roughly the same quality. But we held such segregation impermissible “even though the physical facilities and other ‘tangible’ factors may be equal.” The mere act of separating “children . . . because of their race,” we explained, itself “generate[d] a feeling of inferiority.” 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.” As the plaintiffs had argued, “no State has any authority under the equal-protection clause of the Fourteenth Amendment to use race as a factor in affording educational opportunities among its citizens.” The Court reiterated that rule just one year later, holding that “full compliance” with Brown required schools to admit students “on a racially nondiscriminatory basis.” The time for making distinctions based on race had passed. Brown, the Court observed, “declar[ed] the fundamental principle that racial discrimination in public education is unconstitutional.” So too in other areas of life. Immediately after Brown, we began routinely affirming lower court decisions that invalidated all manner of race-based state action. In Gayle v. Browder, for example, we summarily affirmed a decision invalidating state and local laws that required segregation in busing. As the lower court explained, “[t]he equal protection clause requires equality of treatment before the law for all persons without regard to race or color.” And in Mayor and City Council of Baltimore v. Dawson, we summarily affirmed a decision striking down racial segregation at public beaches and bathhouses maintained by the State of Maryland and the city of Baltimore. “It is obvious that racial segregation in recreational activities can no longer be sustained,” the lower court observed. “[T]he ideal of equality before the law which characterizes our institutions” demanded as much. In the decades that followed, this Court continued to vindicate the Constitution’s pledge of racial equality. Laws dividing parks and golf courses; neighborhoods and businesses; buses and trains; schools and juries were undone, all by a transformative promise “stemming from our American ideal of fairness”: “ ’the Constitution . . . forbids . . . discrimination by the General Government, or by the States, against any citizen because of his race.’ ” As we recounted in striking down the State of Virginia’s ban on interracial marriage 13 years after Brown, the Fourteenth Amendment “proscri[bes] . . . all invidious racial discriminations.” Our cases had thus “consistently denied the constitutionality of measures which restrict the rights of citizens on account of race.” These decisions reflect the “core purpose” of the Equal Protection Clause: “do[ing] away with all governmentally imposed discrimination based on race.” We have recognized that repeatedly. “The clear and central purpose of the Fourteenth Amendment was to eliminate all official state sources of invidious racial discrimination in the States.” Loving, 388; see also Washington v. Davis, (1976) (“The central purpose of the Equal Protection Clause of the Fourteenth Amendment is the prevention of official conduct discriminating on the basis of race.”); McLaughlin v. Florida, (1964) (“[T]he historical fact [is] that the central purpose of the Fourteenth Amendment was to eliminate racial discrimination.”).
Eliminating racial discrimination means eliminating all of it. And the Equal Protection Clause, we have accordingly held,applies “without regard to any differences of race, of color, or of nationality”—it is “universal in [its] application.”For “[t]he guarantee of equal protection cannot mean one thing when applied to one individual and something else whenapplied to a person of another color.” “If both are not accorded the same protection, then it is not equal.” Any exceptionto the Constitution’s demand for equal protection must survive a daunting two-step examination known in our cases as“strict scrutiny.” Under that standard we ask, first, whether the racial classification is used to “further compellinggovernmental interests.” Second, if so, we ask whether the government’s use of race is “narrowly tailored”—meaning“necessary”—to achieve that interest. Outside the circumstances of these cases, our precedents have identified only twocompelling interests that permit resort to race-based government action. One is remediating specific, identified instancesof past discrimination that violated the Constitution or a statute. The second is avoiding imminent and serious risks tohuman safety in prisons, such as a race riot.3
Our acceptance of race-based state action has been rare for a reason. “Distinctions between citizens solely because of their ancestry are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality.” That principle cannot be overridden except in the most extraordinary case.
B
These cases involve whether a university may make admissions decisions that turn on an applicant’s race. Our Court first considered that issue in Regents of University of California v. Bakke, which involved a set-aside admissions program used by the University of California, Davis, medical school. Each year, the school held 16 of its 100 seats open for members of certain minority groups, who were reviewed on a special admissions track separate from those in the main admissions pool.
The plaintiff, Allan Bakke, was denied admission two years in a row, despite the admission of minority applicants with lowergrade point averages and MCAT scores. Bakke subsequently sued the school, arguing that its set-aside program violated theEqual Protection Clause. In a deeply splintered decision that produced six different opinions—none of which commanded amajority of the Court—we ultimately ruled in part in favor of the school and in part in favor of Bakke. Justice Powellannounced the Court’s judgment, and his opinion—though written for himself alone—would eventually come to “serv[e] as thetouchstone for constitutional analysis of race-conscious admissions policies.” Justice Powell began by finding three of theschool’s four justifications for its policy not sufficiently compelling. The school’s first justification of “reducing thehistoric deficit of traditionally disfavored minorities in medical schools,” he wrote, was akin to “[p]referring membersof any one group for no reason other than race or ethnic origin.” Yet that was “discrimination for its own sake,” which“the Constitution forbids.” Justice Powell next observed that the goal of “remedying . . . the effects of ‘societaldiscrimination’” was also insufficient because it was “an amorphous concept of injury that may be ageless in its reachinto the past.” Finally, Justice Powell found there was “virtually no evidence in the record indicating that [the school’s]special admissions program” would, as the school had argued, increase the number of doctors working in underserved areas.Justice Powell then turned to the school’s last interest asserted to be compelling—obtaining the educational benefits thatflow from a racially diverse student body. That interest, in his view, was “a constitutionally permissible goal for aninstitution of higher education.” And that was so, he opined, because a university was entitled as a matter of academicfreedom “to make its own judgments as to . . . the selection of its student body.” But a university’s freedom was notunlimited. “Racial and ethnic distinctions of any sort are inherently suspect,” Justice Powell explained, and antipathytoward them was deeply “rooted in our Nation’s constitutional and demographic history.” A university could not employ aquota system, for example, reserving “a specified number of seats in each class for individuals from the preferred ethnicgroups.” Nor could it impose a “multitrack program with a prescribed number of seats set aside for each identifiablecategory of applicants.” And neither still could it use race to foreclose an individual “from all consideration . . .simply because he was not the right color.” The role of race had to be cabined. It could operate only as “a ‘plus’ in aparticular applicant’s file.” And even then, race was to be weighed in a manner “flexible enough to consider all pertinent elements of diversity in light of the particular qualifications of each applicant.” Justice Powell derived this approachfrom what he called the “illuminating example” of the admissions system then used by Harvard College. Under that system,as described by Harvard in a brief it had filed with the Court, “the race of an applicant may tip the balance in his favorjust as geographic origin or a life [experience] may tip the balance in other candidates’ cases.” Harvard continued:“A farm boy from Idaho can bring something to Harvard College that a Bostonian cannot offer. Similarly, a black studentcan usually bring something that a white person cannot offer.” The result, Harvard proclaimed, was that “race hasbeen”—and should be—“a factor in some admission decisions.” No other Member of the Court joined Justice Powell’s opinion.Four Justices instead would have held that the government may use race for the purpose of “remedying the effects of pastsocietal discrimination.” Four other Justices, meanwhile, would have struck down the Davis program as violative of TitleVI. In their view, it “seem[ed] clear that the proponents of Title VI assumed that the Constitution itself required acolorblind standard on the part of government.” The Davis program therefore flatly contravened a core “principle imbeddedin the constitutional and moral understanding of the times”: the prohibition against “racial discrimination.”
C
In the years that followed our “fractured decision in Bakke,” lower courts “struggled to discern whether Justice Powell’s”opinion constituted “binding precedent.” We accordingly took up the matter again in 2003, in the case Grutter v. Bollinger,which concerned the admissions system used by the University of Michigan law school. There, in another sharply divideddecision, 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 Court’s analysis tracked Justice Powell’sin many respects. As for compelling interest, the Court held that “[t]he Law School’s educational judgment that suchdiversity is essential to its educational mission is one to which we defer.” In achieving that goal, however, the Courtmade clear—just as Justice Powell had—that the law school was limited in the means that it could pursue. The schoolcould not “establish quotas for members of certain racial groups or put members of those groups on separate admissionstracks.” Neither could it “insulate applicants who belong to certain racial or ethnic groups from the competition foradmission.” Nor still could it desire “some specified percentage of a particular group merely because of its race orethnic origin.” These limits, Grutter explained, were intended to guard against two dangers that all race-based governmentaction portends. The first is the risk that the use of race will devolve into “illegitimate . . . stereotyp[ing].”Universities were thus not permitted to operate their admissions programs on the “belief that minority students always(or even consistently) express some characteristic minority viewpoint on any issue.” The second risk is that race wouldbe used not as a plus, but as a negative—to discriminate against those racial groups that were not the beneficiaries ofthe race-based preference. A university’s use of race, accordingly, could not occur in a manner that “unduly harm[ed]nonminority applicants.” But even with these constraints in place, Grutter expressed marked discomfort with the use ofrace in college admissions. The Court stressed the fundamental principle that “there are serious problems of justiceconnected with the idea of [racial] preference itself.” It observed that all “racial classifications, however compellingtheir goals,” were “dangerous.” And it cautioned that all “race-based governmental action” should “remai[n] subject tocontinuing oversight to assure that it will work the least harm possible to other innocent persons competing for the benefit.”To manage these concerns, Grutter imposed one final limit on race-based admissions programs. At some point, the Court held,they must end. This requirement was critical, and Grutter emphasized it repeatedly. “[A]ll race-conscious admissions programs [must] have a termination point”; they “must have reasonable durational limits”; they “must be limited in time”;they must have “sunset provisions”; they “must have a logical end point”; their “deviation from the norm of equal treatment”must be “a temporary matter.” The importance of an end point was not just a matter of repetition. It was the reason theCourt was willing to dispense temporarily with the Constitution’s unambiguous guarantee of equal protection. The Courtrecognized as much: “[e]nshrining a permanent justification for racial preferences,” the Court explained, “would offendthis fundamental equal protection principle.” Grutter thus concluded with the following caution: “It has been 25 yearssince Justice Powell first approved the use of race to further an interest in student body diversity in the context ofpublic higher education. . . . We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”
IV
Twenty years later, no end is in sight. “Harvard’s view about when [race-based admissions will end] doesn’t have adate on it.” Neither does UNC’s. Yet both insist that the use of race in their admissions programs must continue.But we have permitted race-based admissions only within the confines of narrow restrictions. University programs must comply with strict scrutiny, they may never use race as a stereotype or negative, and—at some point—they must end. Respondents’ admissions systems—however well intentioned and implemented in good faith—fail each of these criteria. They must therefore be invalidated under the Equal Protection Clause of the Fourteenth Amendment.4
A
Because “[r]acial discrimination [is] invidious in all contexts,” we have required that universities operate their race-based admissions programs in a manner that is “sufficiently measurable to permit judicial [review]” under the rubric of strict scrutiny. “Classifying and assigning” students based on their race “requires more than . . . an amorphous end to justify it.” Respondents have fallen short of satisfying that burden.
First, the interests they view as compelling cannot be subjected to meaningful judicial review. Harvard identifies thefollowing educational benefits that it is pursuing: (1) “training future leaders in the public and private sectors”;(2) preparing graduates to “adapt to an increasingly pluralistic society”; (3) “better educating its students throughdiversity”; and (4) “producing new knowledge stemming from diverse outlooks.” UNC points to similar benefits, namely,“(1) promoting the robust exchange of ideas; (2) broadening and refining understanding; (3) fostering innovation andproblem-solving; (4) preparing engaged and productive citizens and leaders; [and] (5) enhancing appreciation, respect,and empathy, cross-racial understanding, and breaking down stereotypes.” Although these are commendable goals, they arenot sufficiently coherent for purposes of strict scrutiny. At the outset, it is unclear how courts are supposed tomeasure any of these goals. How is a court to know whether leaders have been adequately “train[ed]”; whether theexchange of ideas is “robust”; or whether “new knowledge” is being developed? Even if these goals could somehow bemeasured, moreover, how is a court to know when they have been reached, and when the perilous remedy of racialpreferences may cease? There is no particular point at which there exists sufficient “innovation and problem solving,”or students who are appropriately “engaged and productive.” Finally, the question in this context is not one of nodiversity or of some: it is a question of degree. How many fewer leaders Harvard would create without racial preferences, or how much poorer the education at Harvard would be, are inquiries no court could resolve. Comparingrespondents’ asserted goals to interests we have recognized as compelling further illustrates their elusive nature.In the context of racial violence in a prison, for example, courts can ask whether temporary racial segregation ofinmates will prevent harm to those in the prison. When it comes to workplace discrimination, courts can ask whethera race-based benefit makes members of the discriminated class “whole for [the] injuries [they] suffered.” And inschool segregation cases, courts can determine whether any race-based remedial action produces a distribution ofstudents “compar[able] to what it would have been in the absence of such constitutional violations.” Nothing likethat is possible when it comes to evaluating the interests respondents assert here. Unlike discerning whether aprisoner will be injured or whether an employee should receive backpay, the question whether a particular mix ofminority students produces “engaged and productive citizens,” sufficiently “enhance[s] appreciation, respect, andempathy,” or effectively “train[s] future leaders” is standardless. The interests that respondents seek, thoughplainly worthy, are inescapably imponderable. Second, respondents’ admissions programs fail to articulate ameaningful connection between the means they employ and the goals they pursue. To achieve the educational benefitsof diversity, UNC works to avoid the underrepresentation of minority groups, while Harvard likewise “guard[s ]against inadvertent drop-offs in representation” of certain minority groups from year to year. To accomplish bothof those goals, in turn, the universities measure the racial composition of their classes using the followingcategories: (1) Asian; (2) Native Hawaiian or Pacific Islander; (3) Hispanic; (4) White; (5) African American; and (6) Native American.
It is far from evident, though, how assigning students to these racial categories and making admissionsdecisions based on them furthers the educational benefits that the universities claim to pursue. Forstarters, the categories are themselves imprecise in many ways. Some of them are plainly overbroad: by groupingtogether all Asian students, for instance, respondents are apparently uninterested in whether South Asian orEast Asian students are adequately represented, so long as there is enough of one to compensate for a lackof the other. Meanwhile other racial categories, such as “Hispanic,” are arbitrary or undefined. And still other categories are underinclusive. When asked at oral argument “how are applicants from Middle Eastern countries classified, [such as] Jordan, Iraq, Iran, [and] Egypt,” UNC’s counsel responded, “[I] do not know the answer to that question.” Indeed, the use of these opaque racial categories undermines, insteadof promotes, respondents’ goals. By focusing on underrepresentation, respondents would apparently prefera class with 15% of students from Mexico over a class with 10% of students from several Latin Americancountries, simply because the former contains more Hispanic students than the latter. Yet “[i]t is hardto understand how a plan that could allow these results can be viewed as being concerned with achievingenrollment that is ’broadly diverse.’” And given the mismatch between the means respondents employ andthe goals they seek, it is especially hard to understand how courts are supposed to scrutinize the admissionsprograms that respondents use. The universities’ main response to these criticisms is, essentially, “trust us.”None of the questions recited above need answering, they say, because universities are “owed deference”when using race to benefit some applicants but not others. It is true that our cases have recognized a“tradition of giving a degree of deference to a university’s academic decisions.” But we have been unmistakablyclear that any deference must exist “within constitutionally prescribed limits,” and that “deference doesnot imply abandonment or abdication of judicial review.” Universities may define their missions as theysee fit. The Constitution defines ours. Courts may not license separating students on the basis of racewithout an exceedingly persuasive justification that is measurable and concrete enough to permit judicialreview. As this Court has repeatedly reaffirmed, “[r]acial classifications are simply too pernicious topermit any but the most exact connection between justification and classification.” The programs at issuehere do not satisfy that standard.5
The race-based admissions systems that respondents employ also fail to comply with the twin commands of the Equal Protection Clause that race may never be used as a “negative” and that it may not operate as a stereotype. First, our cases have stressed that an individual’s race may never be used against him in the admissions process. Here, however, the First Circuit found that Harvard’s consideration of race has led to an 11.1% decrease in the number of Asian-Americans admitted to Harvard. And the District Court observed that Harvard’s “policy of considering applicants’ race . . . overall results in fewer Asian American and white students being admitted.” Respondents nonetheless contend that an individual’s race is never a negative factor in their admissions programs, but that assertion cannot withstand scrutiny. Harvard, for example, draws an analogy between race and other factors it considers in admission. “[W]hile admissions officers may give a preference to applicants likely to excel in the Harvard-Radcliffe Orchestra,” Harvard explains, “that does not mean it is a ‘negative’ not to excel at a musical instrument.” But on Harvard’s logic, while it gives preferences to applicants with high grades and test scores, “that does not mean it is a ‘negative’” to be a student with lower grades and lower test scores. This understanding of the admissions process is hard to take seriously. College admissions are zero-sum. A benefit provided to some applicants but not to others necessarily advantages the former group at the expense of the latter. Respondents also suggest that race is not a negative factor because it does not impact many admissions decisions. Yet, at the same time, respondents also maintain that the demographics of their admitted classes would meaningfully change if race-based admissions were abandoned. And they acknowledge that race is determinative for at least some—if not many—of the students they admit. How else but “negative” can race be described if, in its absence, members of some racial groups would be admitted in greater numbers than they otherwise would have been? The “[e]qual protection of the laws is not achieved through indiscriminate imposition of inequalities.”6
Yet by accepting race-based admissions programs in which some students may obtain preferences on the basis of race alone, respondents’ programs tolerate the very thing that Grutter foreswore: stereotyping. The point of respondents’ admissions programs is that there is an inherent benefit in race qua race—in race for race’s sake. Respondents admit as much. Harvard’s admissions process rests on the pernicious stereotype that “a black student can usually bring something that a white person cannot offer.” UNC is much the same. It argues that race in itself “says [something] about who you are.” We have time and again forcefully rejected the notion that government actors may intentionally allocate preference to those “who may have little in common with one another but the color of their skin.” The entire point of the Equal Protection Clause is that treating someone differently because of their skin color is not like treating them differently because they are from a city or from a suburb, or because they play the violin poorly or well. “One of the principal reasons race is treated as a forbidden classification is that it demeans the dignity and worth of a person to be judged by ancestry instead of by his or her own merit and essential qualities.” But when a university admits students “on the basis of race, it engages in the offensive and demeaning assumption that [students] of a particular race, because of their race, think alike,” —at the very least alike in the sense of being different from nonminority students. In doing so, the university furthers “stereotypes that treat individuals as the product of their race, evaluating their thoughts and efforts—their very worth as citizens—according to a criterion barred to the Government by history and the Constitution.” Such stereotyping can only “cause[] continued hurt and injury,” contrary as it is to the “core purpose” of the Equal Protection Clause.
C
If all this were not enough, respondents’ admissions programs also lack a “logical end point.” Respondents and the Government first suggest that respondents’ race-based admissions programs will end when, in their absence, there is “meaningful representation and meaningful diversity” on college campuses. The metric of meaningful representation, respondents assert, does not involve any “strict numerical benchmark,” or “precise number or percentage,” or “specified percentage.” So what does it involve? Numbers all the same. At Harvard, each full committee meeting begins with a discussion of “how the breakdown of the class compares to the prior year in terms of racial identities.” And “if at some point in the admissions process it appears that a group is notably underrepresented or has suffered a dramatic drop off relative to the prior year, the Admissions Committee may decide to give additional attention to applications from students within that group.” See also id., at 147 (District Court finding that Harvard uses race to “trac[k] how each class is shaping up relative to previous years with an eye towards achieving a level of racial diversity”)
The results of the Harvard admissions process reflect this numerical commitment. For the admitted classes of 2009 to 2018, black students represented a tight band of 10.0%– 11.7% of the admitted pool. The same theme held true for other minority groups: Harvard’s focus on numbers is obvious.7
UNC’s admissions program operates similarly. The University frames the challenge it faces as “the admission and enrollment of underrepresented minorities,” a metric that turns solely on whether a group’s “percentage enrollment within the undergraduate student body is lower than their percentage within the general population in North Carolina.” The University “has not yet fully achieved its diversity-related educational goals,” it explains, in part due to its failure to obtain closer to proportional representation. The problem with these approaches is well established. “[O]utright racial balancing” is “patently unconstitutional.” That is so, we have repeatedly explained, because “[a]t the heart of the Constitution’s guarantee of equal protection lies the simple command that the Government must treat citizens as individuals, not as simply components of a racial, religious, sexual or national class.” By promising to terminate their use of race only when some rough percentage of various racial groups is admitted, respondents turn that principle on its head. Their admissions programs “effectively assure[ ] that race will always be relevant . . . and that the ultimate goal of eliminating” race as a criterion “will never be achieved.”
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 benefits of diversity. But as we have already explained, it is not clear how a court is supposed to determine when stereotypes have broken down or “productive citizens and leaders” have been created. Nor is there any way to know whether those goals would adequately be met in the absence of a race-based admissions program. As UNC itself acknowledges, these “qualitative standard[s]” are “difficult to measure.” Third, 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 that it “expect[ed] that 25 years from now, the use of racial preferences will no longer be necessary.” The 25-year mark articulated in Grutter, however, reflected only that Court’s view that race-based preferences would, by 2028, be unnecessary to ensure a requisite level of racial diversity on college campuses. That expectation was oversold. Neither Harvard nor UNC believes that racebased admissions will in fact be unnecessary in five years, and both universities thus expect to continue using race as a criterion well beyond the time limit that Grutter suggested. Indeed, the high school applicants that Harvard and UNC will evaluate this fall using their race-based admissions systems are expected to graduate in 2028—25 years after Grutter was decided. Finally, respondents argue that their programs need not have an end point at all because they frequently review them to determine whether they remain necessary. Respondents point to language in Grutter that, they contend, permits “the durational requirement [to] be met” with “periodic reviews to determine whether racial preferences are still necessary to achieve student body diversity.” But Grutter never suggested that periodic review could make unconstitutional conduct constitutional. To the contrary, the Court made clear that race-based admissions programs eventually had to end—despite whatever periodic review universities conducted. Here, however, Harvard concedes that its race-based admissions program has no end point. And it acknowledges that the way it thinks about the use of race in its admissions process “is the same now as it was” nearly 50 years ago. UNC’s race-based admissions program is likewise not set to expire any time soon—nor, indeed, any time at all. The University admits that it “has not set forth a proposed time period in which it believes it can end all race-conscious admissions practices.” And UNC suggests that it might soon use race to a greater extent than it currently does. In short, there is no reason to believe that respondents will—even acting in good faith—comply with the Equal Protection Clause any time soon.
V
The dissenting opinions resist these conclusions. They would instead uphold respondents’ admissions programsbased on their view that the Fourteenth Amendment permits state actors to remedy the effects of societaldiscrimination through explicitly race-based measures. Although both opinions are thorough and thoughtful inmany respects, this Court has long rejected their core thesis. The dissents’ interpretation of the EqualProtection Clause is not new. In Bakke, four Justices would have permitted race-based admissions programs toremedy the effects of societal discrimination. But that minority view was just that—a minority view. JusticePowell, who provided the fifth vote and controlling opinion in Bakke, firmly rejected the notion that societaldiscrimination constituted a compelling interest. Such an interest presents “an amorphous concept of injurythat may be ageless in its reach into the past,” he explained. It cannot “justify a [racial] classificationthat imposes disadvantages upon persons . . . who bear no responsibility for whatever harm the beneficiariesof the [race-based] admissions program are thought to have suffered.” The Court soon adopted Justice Powell’sanalysis as its own. In the years after Bakke, the Court repeatedly held that ameliorating societal discriminationdoes not constitute a compelling interest that justifies race-based state action. “[A]n effort to alleviatethe effects of societal discrimination is not a compelling interest,” we said plainly in Hunt, a 1996 caseabout the Voting Rights Act. We reached the same conclusion in Croson, a case that concerned a preferentialgovernment contracting program. Permitting “past societal discrimination” to “serve as the basis for rigidracial preferences would be to open the door to competing claims for ‘remedial relief’ for every disadvantagedgroup.” Opening that door would shutter another—“[t]he dream of a Nation of equal citizens . . . would belost,” we observed, “in a mosaic of shifting preferences based on inherently unmeasurable claims of pastwrongs.” “[S]uch a result would be contrary to both the letter and spirit of a constitutional provision whosecentral command is equality.” The dissents here do not acknowledge any of this. They fail to cite Hunt.They fail to cite Croson. They fail to mention that the entirety of their analysis of the Equal ProtectionClause—the statistics, the cases, the history—has been considered and rejected before. There is a reason theprincipal dissent must invoke Justice Marshall’s partial dissent in Bakke nearly a dozen times whilementioning Justice Powell’s controlling opinion barely once (JUSTICE JACKSON’s opinion ignores JusticePowell altogether). For what one dissent denigrates as “rhetorical flourishes about colorblindness,”(opinion of SOTOMAYOR, J.), are in fact the proud pronouncements of cases like Loving and Yick Wo, likeShelley and Bolling—they are defining statements of law. We understand the dissents want that law to bedifferent. They are entitled to that desire. But they surely cannot claim the mantle of stare decisiswhile pursuing it.8 The dissents are no more faithful to our precedent on race-based admissions. To hearthe principal dissent tell it, Grutter blessed such programs indefinitely, until “racial inequality willend.” (opinion of SOTOMAYOR, J.). But Grutter did no such thing. It emphasized—not once or twice, butat least six separate times—that race-based admissions programs “must have reasonable durational limits”and that their “deviation from the norm of equal treatment” must be “a temporary matter.”
The Court also disclaimed “[e]nshrining a permanent justification for racial preferences.” Yet thejustification for race-based admissions that the dissent latches on to is just that—unceasing. Theprincipal dissent’s reliance on Fisher II is similarly mistaken. There, by a 4-to-3 vote, the Courtupheld a “sui generis” race-based admissions program used by the University of Texas, whose “goal” it was to enroll a “critical mass” of certain minority students. But neither Harvard nor UNC claimsto be using the critical mass concept—indeed, the universities admit they do not even know what itmeans. (“[N]o one has directed anybody to achieve a critical mass, and I’m not even sure we would know what it is.”(testimony of UNC administrator). Fisher II also recognized the “enduring challenge” that race-basedadmissions systems place on “the constitutional promise of equal treatment.” The Court thus reaffirmedthe “continuing obligation” of universities “to satisfy the burden of strict scrutiny.” To drive thepoint home, Fisher II limited itself just as Grutter had—in duration. The Court stressed that itsdecision did “not necessarily mean the University may rely on the same policy” going forward. And theCourt openly acknowledged that its decision offered limited “prospective guidance.”9 The principaldissent wrenches our case law from its context, going to lengths to ignore the parts of that law itdoes not like. The serious reservations that Bakke, Grutter, and Fisher had about racial preferencesgo unrecognized. The unambiguous requirements of the Equal Protection Clause—“the most rigid,”“searching” scrutiny it entails— go without note. And the repeated demands that race-based admissionsprograms must end go overlooked—contorted, worse still, into a demand that such programs never stop.Most troubling of all is what the dissent must make these omissions to defend: a judiciary that pickswinners and losers based on the color of their skin. While the dissent would certainly not permituniversity programs that discriminated against black and Latino applicants, it is perfectly willingto let the programs here continue. In its view, this Court is supposed to tell state actors whenthey have picked the right races to benefit. Separate but equal is “inherently unequal,” said Brown. It depends, says the dissent.
That is a remarkable view of the judicial role—remarkably wrong. Lost in the false pretense of judicial humility that the dissent espouses is a claim to power so radical, so destructive, that it required a Second Founding to undo. “Justice Harlan knew better,” one of the dissents decrees. (opinion of JACKSON, J.) Indeed he did: “[I]n view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens.” Plessy, (Harlan, J., dissenting).
VI
For the reasons provided above, the Harvard and UNC admissions programs cannot be reconciled with theguarantees of the Equal Protection Clause. Both programs lack sufficiently focused and measurableobjectives warranting the use of race, unavoidably employ race in a negative manner, involve racialstereotyping, and lack meaningful end points. We have never permitted admissions programs to work inthat way, and we will not do so today. At the same time, as all parties agree, nothing in this opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise.But, despite the dissent’s assertion to the contrary, universities may not simply establish through application essays or other means the regime we hold unlawful today. (A dissenting opinionis generally not the best source of legal advice on how to comply with the majority opinion.)“[W]hat cannot be done directly cannot be done indirectly. The Constitution deals with substance,not shadows,” and the prohibition against racial discrimination is “levelled at the thing, not thename.” Cummings v. Missouri (1867). A benefit to a student who overcame racial discrimination, forexample, must be tied to that student’s courage and determination. Or a benefit to a student whoseheritage or culture motivated him or her to assume a leadership role or attain a particular goalmust be tied to that student’s unique ability to contribute to the university. In other words, thestudent must be treated based on his or her experiences as an individual—not on the basis of race.Many universities have for too long done just the opposite. And in doing so, they have concluded,wrongly, that the touchstone of an individual’s identity is not challenges bested, skills built, orlessons learned but the color of their skin. Our constitutional history does not tolerate that choice.The judgments of the Court of Appeals for the First Circuit and of the District Court for the MiddleDistrict of North Carolina are reversed. It is so ordered. JUSTICE JACKSON took no part in theconsideration or decision of the case.