Page:Students for Fair Admissions v. President and Fellows of Harvard College.pdf/169

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

Sotomayor, J., dissenting

2

Harvard’s admissions program is also narrowly tailored under settled law. SFFA argues that Harvard’s program is not narrowly tailored because the university “has workable race-neutral alternatives,” “does not use race as a mere plus,” and “engages in racial balancing.” Brief for Petitioner 75–83. As the First Circuit concluded, there was “no error” in the District Court’s findings on any of these issues. Harvard II, 980 F. 3d, at 204.^[1]

Like UNC, Harvard has already implemented many of SFFA’s proposals, such as increasing recruitment efforts and financial aid for low-income students. Id., at 193. Also like UNC, Harvard “carefully considered” other race-neutral ways to achieve its diversity goals, but none of them are “workable.” Id., at 193–194. SFFA’s argument before this Court is that Harvard should adopt a plan designed by SFFA’s expert for purposes of trial, which increases preferences for low-income applicants and eliminates the use of race and legacy preferences. Id., at 193; Brief for Petitioner

572 U. S. 291, 384–390 (2014) (Sotomayor, J., dissenting); see infra, at 63–64. In addition, UNC “already engages” in race-neutral efforts focused on socioeconomic status, including providing “exceptional levels of financial aid” and “increased and targeted recruiting.” UNC, 567 F. Supp. 3d, at 665.

Justice Gorsuch argues that he is simply “recount[ing] what SFFA has argued.” Ante, at 14, n. 4. That is precisely the point: SFFA’s arguments were not credited by the court below. “[W]e are a court of review, not of first view.” Cutter v. Wilkinson, 544 U. S. 709, 718, n. 7 (2005). Justice Gorsuch also suggests it is inappropriate for the dissent to respond to the majority by relying on materials beyond the findings of fact below. Ante, at 14, n. 4. There would be no need for the dissent to do that if the majority stuck to reviewing the District Court’s careful factfinding with the deference it owes to the trial court. Because the majority has made a different choice, the dissent responds.

↑ SFFA also argues that Harvard discriminates against Asian American students. Brief for Petitioner 72–75. As explained below, this claim does not fit under Grutter’s strict scrutiny framework, and the courts below did not err in rejecting that claim. See infra, at 59–60.

[2] SFFA also argues that Harvard discriminates against Asian American students. Brief for Petitioner 72–75. As explained below, this claim does not fit under Grutter’s strict scrutiny framework, and the courts below did not err in rejecting that claim. See infra, at 59–60.

[1]