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STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT AND FELLOWS OF HARVARD COLLEGE

Gorsuch, J., concurring

p. 756.^[1]

Even beyond all this, the parties debate the availability of alternatives. SFFA contends that both Harvard and UNC could obtain significant racial diversity without resorting to race-based admissions practices. Many other universities across the country, SFFA points out, have sought to do just that by reducing legacy preferences, increasing financial aid, and the like. Brief for Petitioner 85–86; see also Brief for Oklahoma et al. as Amici Curiae 9–19.^[2] As part of its affirmative case, SFFA also submitted evidence that Harvard could nearly replicate the current racial composition of its student body without resorting to race-based practices if it: (1) provided socioeconomically

↑ See also E. Bazelon, Why Is Affirmative Action in Peril? One Man’s Decision, N. Y. Times Magazine, Feb. 15, 2023, p. 41 (“In the Ivy League, children whose parents are in the top 1 percent of the income distribution are 77 times as likely to attend as those whose parents are in the bottom 20 percent of the income bracket.”); ibid. (“[A] common critique … is that schools have made a bargain with economic elites of all races, with the exception of Asian Americans, who are underrepresented compared with their level of academic achievement.”).
↑ The principal dissent chides me for “reach[ing] beyond the factfinding below” by acknowledging SFFA’s argument that other universities have employed various race-neutral tools. Post, at 29–30, n. 25 (opinion of Sotomayor, J.). Contrary to the dissent’s suggestion, however, I do not purport to find facts about those practices; all I do here is recount what SFFA has argued every step of the way. See, e.g., Brief for Petitioner 55, 66–67; 1 App. in No. 20–1199, pp. 415–416, 440; 2 App. in No. 21–707, pp. 551–552. Nor, of course, is it somehow remarkable to acknowledge the parties’ arguments. The principal dissent itself recites SFFA’s arguments about Harvard’s and other universities’ practices too. See, e.g., post, at 30–31, 50 (opinion of Sotomayor, J.). In truth, it is the dissent that reaches beyond the factfinding below when it argues from studies recited in a dissenting opinion in a different case decided almost a decade ago. Post, at 29–30, n. 25 (opinion of Sotomayor, J.); see also post, at 18–21 (opinion of Sotomayor, J.) (further venturing beyond the trial records to discuss data about employment, income, wealth, home ownership, and healthcare).

[1] See also E. Bazelon, Why Is Affirmative Action in Peril? One Man’s Decision, N. Y. Times Magazine, Feb. 15, 2023, p. 41 (“In the Ivy League, children whose parents are in the top 1 percent of the income distribution are 77 times as likely to attend as those whose parents are in the bottom 20 percent of the income bracket.”); ibid. (“[A] common critique … is that schools have made a bargain with economic elites of all races, with the exception of Asian Americans, who are underrepresented compared with their level of academic achievement.”).

[2] The principal dissent chides me for “reach[ing] beyond the factfinding below” by acknowledging SFFA’s argument that other universities have employed various race-neutral tools. Post, at 29–30, n. 25 (opinion of Sotomayor, J.). Contrary to the dissent’s suggestion, however, I do not purport to find facts about those practices; all I do here is recount what SFFA has argued every step of the way. See, e.g., Brief for Petitioner 55, 66–67; 1 App. in No. 20–1199, pp. 415–416, 440; 2 App. in No. 21–707, pp. 551–552. Nor, of course, is it somehow remarkable to acknowledge the parties’ arguments. The principal dissent itself recites SFFA’s arguments about Harvard’s and other universities’ practices too. See, e.g., post, at 30–31, 50 (opinion of Sotomayor, J.). In truth, it is the dissent that reaches beyond the factfinding below when it argues from studies recited in a dissenting opinion in a different case decided almost a decade ago. Post, at 29–30, n. 25 (opinion of Sotomayor, J.); see also post, at 18–21 (opinion of Sotomayor, J.) (further venturing beyond the trial records to discuss data about employment, income, wealth, home ownership, and healthcare).

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