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

Sotomayor, J., dissenting

ciety, in which institutions reflect all sectors of the American public and where “the sons of former slaves and the sons of former slave owners [are] able to sit down together at the table of brotherhood,” is precisely what the Equal Protection Clause commands. Martin Luther King “I Have a Dream” Speech (Aug. 28, 1963). It is “essential if the dream of one Nation, indivisible, is to be realized.” Grutter, 539 U. S., at 332.^[1]

By singling out race, the Court imposes a special burden on racial minorities for whom race is a crucial component of their identity. Holistic admissions require “truly individualized consideration” of the whole person. Id., at 334. Yet, “by foreclosing racial considerations, colorblindness denies those who racially self-identify the full expression of their identity” and treats “racial identity as inferior” among all “other forms of social identity.” E. Boddie, The Indignities of Colorblindness, 64 UCLA L. Rev. Discourse, 64, 67 (2016). The Court’s approach thus turns the Fourteenth Amendment’s equal protection guarantee on its head and creates an equal protection problem of its own.

There is no question that minority students will bear the burden of today’s decision. Students of color testified at

↑ The Court suggests that promoting the Fourteenth Amendment’s vision of equality is a “radical” claim of judicial power and the equivalent of “pick[ing] winners and losers based on the color of their skin.” Ante, at 38. The law sometimes requires consideration of race to achieve racial equality. Just like drawing district lines that comply with the Voting Rights Act may require consideration of race along with other demographic factors, achieving racial diversity in higher education requires consideration of race along with “age, economic status, religious and political persuasion, and a variety of other demographic factors.” Shaw v. Reno, 509 U. S. 630, 646 (1993) (“[R]ace consciousness does not lead inevitably to impermissible race discrimination”). Moreover, in ordering the admission of Black children to all-white schools “with all deliberate speed” in Brown v. Board of Education, 349 U. S. 294, 301 (1955), this Court did not decide that the Black children should receive an “advantag[e] … at the expense of” white children. Ante, at 27. It simply enforced the Equal Protection Clause by leveling the playing field.

[1] The Court suggests that promoting the Fourteenth Amendment’s vision of equality is a “radical” claim of judicial power and the equivalent of “pick[ing] winners and losers based on the color of their skin.” Ante, at 38. The law sometimes requires consideration of race to achieve racial equality. Just like drawing district lines that comply with the Voting Rights Act may require consideration of race along with other demographic factors, achieving racial diversity in higher education requires consideration of race along with “age, economic status, religious and political persuasion, and a variety of other demographic factors.” Shaw v. Reno, 509 U. S. 630, 646 (1993) (“[R]ace consciousness does not lead inevitably to impermissible race discrimination”). Moreover, in ordering the admission of Black children to all-white schools “with all deliberate speed” in Brown v. Board of Education, 349 U. S. 294, 301 (1955), this Court did not decide that the Black children should receive an “advantag[e] … at the expense of” white children. Ante, at 27. It simply enforced the Equal Protection Clause by leveling the playing field.

[1]