Page:Students for Fair Admissions v. President and Fellows of Harvard College.pdf/194

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Cite as: 600 U. S. ____ (2023)

55

Sotomayor, J., dissenting

why this Court’s precedents have never imposed the majority’s strict deadline: Institutions cannot predict the future. Speculating about a day when consideration of race will become unnecessary is arbitrary at best and frivolous at worst. There is no constitutional duty to engage in that type of shallow guesswork.^[1]

Harvard and UNC engage in the ongoing review that the Court’s precedents demand. They “use [their] data to scrutinize the fairness of [their] admissions program[s]; to assess whether changing demographics have undermined the need for a race-conscious policy; and to identify the effects, both positive and negative, of the affirmative-action measures [they] dee[m] necessary.” Fisher II, 579 U. S., at 388. The Court holds, however, that respondents’ attention to numbers amounts to unconstitutional racial balancing. Ante, at 30–32. But “ ‘[s]ome attention to numbers’ ” is both necessary and permissible. Grutter, 539 U. S., at 336 (quoting Bakke, 438 U. S., at 323). Universities cannot blindly operate their limited race-conscious programs without regard for any quantitative information. “Increasing minority enrollment [is] instrumental to th[e] educational benefits” that respondents seek to achieve, Fisher II, 579 U. S., at 381, and statistics, data, and numbers “have some value

↑ Justice Kavanaugh’s reading, in particular, is quite puzzling. Unlike the majority, which concludes that respondents’ programs should have an end point, Justice Kavanaugh suggests that Grutter itself has an expiration date. He agrees that racial inequality persists, ante, at 7–8, but at the same time suggests that race-conscious affirmative action was only necessary in “another generation,” ante, at 4. He attempts to analogize expiration dates of court-ordered injunctions in desegregation cases, ante, at 5, but an expiring injunction does not eliminate the underlying constitutional principle. His musings about different college classes, ante, at 7, n. 1, are also entirely beside the point. Nothing in Grutter’s analysis turned on whether someone was applying for the class of 2028 or 2032. That reading of Grutter trivializes the Court’s precedent by reducing it to an exercise in managing academic calendars. Grutter is no such thing.

[1] Justice Kavanaugh’s reading, in particular, is quite puzzling. Unlike the majority, which concludes that respondents’ programs should have an end point, Justice Kavanaugh suggests that Grutter itself has an expiration date. He agrees that racial inequality persists, ante, at 7–8, but at the same time suggests that race-conscious affirmative action was only necessary in “another generation,” ante, at 4. He attempts to analogize expiration dates of court-ordered injunctions in desegregation cases, ante, at 5, but an expiring injunction does not eliminate the underlying constitutional principle. His musings about different college classes, ante, at 7, n. 1, are also entirely beside the point. Nothing in Grutter’s analysis turned on whether someone was applying for the class of 2028 or 2032. That reading of Grutter trivializes the Court’s precedent by reducing it to an exercise in managing academic calendars. Grutter is no such thing.

[1]