Students for Fair Admissions v. President and Fellows of Harvard College/Opinion of Justice Gorsuch
SUPREME COURT OF THE UNITED STATES
Nos. 20–1199 and 21–707
STUDENTS FOR FAIR ADMISSIONS, INC., PETITIONER
20–1199v.20–1199
PRESIDENT AND FELLOWS OF HARVARD COLLEGE
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
STUDENTS FOR FAIR ADMISSIONS, INC., PETITIONER
21–707v.21–707
UNIVERSITY OF NORTH CAROLINA, ET AL.
ON WRIT OF CERTIORARI BEFORE JUDGMENT TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
[June 29, 2023]
Justice Gorsuch, with whom Justice Thomas joins, concurring.
For many students, an acceptance letter from Harvard or the University of North Carolina is a ticket to a brighter future. Tens of thousands of applicants compete for a small number of coveted spots. For some time, both universities have decided which applicants to admit or reject based in part on race. Today, the Court holds that the Equal Protection Clause of the Fourteenth Amendment does not tolerate this practice. I write to emphasize that Title VI of the Civil Rights Act of 1964 does not either.
I
“[F]ew pieces of federal legislation rank in significance with the Civil Rights Act of 1964.” Bostock v. Clayton County, 590 U. S. ___, ___ (2020) (slip op., at 2). Title VI of that law contains terms as powerful as they are easy to understand: “No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 42 U. S. C. §2000d. The message for these cases is unmistakable. Students for Fair Admissions (SFFA) brought claims against Harvard and UNC under Title VI. That law applies to both institutions, as they elect to receive millions of dollars of federal assistance annually. And the trial records reveal that both schools routinely discriminate on the basis of race when choosing new students—exactly what the law forbids.
A
When a party seeks relief under a statute, our task is to apply the law’s terms as a reasonable reader would have understood them at the time Congress enacted them. “After all, only the words on the page constitute the law adopted by Congress and approved by the President.” Bostock, 590 U. S., at ___ (slip op., at 4).
The key phrases in Title VI at issue here are “subjected to discrimination” and “on the ground of.” Begin with the first. To “discriminate” against a person meant in 1964 what it means today: to “trea[t] that individual worse than others who are similarly situated.” Id., at ___ (slip op., at 7); see also Webster’s New International Dictionary 745 (2d ed. 1954) (“[t]o make a distinction” or “[t]o make a difference in treatment or favor (of one as compared with others)”); Webster’s Third New International Dictionary 648 (1961) (“to make a difference in treatment or favor on a class or categorical basis”). The provision of Title VI before us, this Court has also held, “prohibits only intentional discrimination.” Alexander v. Sandoval, 532 U. S. 275, 280 (2001). From this, we can safely say that Title VI forbids a recipient of federal funds from intentionally treating one person worse than another similarly situated person on the ground of race, color, or national origin.
What does the statute’s second critical phrase—“on the ground of”—mean? Again, the answer is uncomplicated: It means “because of.” See, e.g., Webster’s New World Dictionary 640 (1960) (“because of”); Webster’s Third New International Dictionary, at 1002 (defining “grounds” as “a logical condition, physical cause, or metaphysical basis”). “Because of” is a familiar phrase in the law, one we often apply in cases arising under the Civil Rights Act of 1964, and one that we usually understand to invoke “the ‘simple’ and ‘traditional’ standard of but-for causation.” Bostock, 590 U. S., at ___ (slip op., at 5) (quoting University of Tex. Southwestern Medical Center v. Nassar, 570 U. S. 338, 346, 360 (2013); some internal quotation marks omitted). The but-for-causation standard is a “sweeping” one too. Bostock, 590 U. S., at ___ (slip op., at 5). A defendant’s actions need not be the primary or proximate cause of the plaintiff’s injury to qualify. Nor may a defendant avoid liability “just by citing some other factor that contributed to” the plaintiff’s loss. Id., at ___ (slip op., at 6). All that matters is that the plaintiff’s injury would not have happened but for the defendant’s conduct. Ibid.
Now put these pieces back together and a clear rule emerges. Title VI prohibits a recipient of federal funds from intentionally treating one person worse than another similarly situated person because of his race, color, or national origin. It does not matter if the recipient can point to “some other … factor” that contributed to its decision to disfavor that individual. Id., at ___–___ (slip op., at 14–15). It does not matter if the recipient discriminates in order to advance some further benign “intention” or “motivation.” Id., at ___ (slip op., at 13); see also Automobile Workers v. Johnson Controls, Inc., 499 U. S. 187, 199 (1991) (“the absence of a malevolent motive does not convert a facially discriminatory policy into a neutral policy with a discriminatory effect” or “alter [its] intentionally discriminatory character”). Nor does it matter if the recipient discriminates against an individual member of a protected class with the idea that doing so might “favor” the interests of that “class” as a whole or otherwise “promot[e] equality at the group level.” Bostock, 590 U. S., at ___, ___ (slip op., at 13, 15). Title VI prohibits a recipient of federal funds from intentionally treating any individual worse even in part because of his race, color, or national origin and without regard to any other reason or motive the recipient might assert. Without question, Congress in 1964 could have taken the law in various directions. But to safeguard the civil rights of all Americans, Congress chose a simple and profound rule. One holding that a recipient of federal funds may never discriminate based on race, color, or national origin—period.
If this exposition of Title VI sounds familiar, it should. Just next door, in Title VII, Congress made it “unlawful … for an employer … to discriminate against any individual … because of such individual’s race, color, religion, sex, or national origin.” §2000e–2(a)(1). Appreciating the breadth of this provision, just three years ago this Court read its essentially identical terms the same way. See Bostock, 590 U. S., at ___–___ (slip op., at 4–9). This Court has long recognized, too, that when Congress uses the same terms in the same statute, we should presume they “have the same meaning.” IBP, Inc. v. Alvarez, 546 U. S. 21, 34 (2005). And that presumption surely makes sense here, for as Justice Stevens recognized years ago, “[b]oth Title VI and Title VII” codify a categorical rule of “individual equality, without regard to race.” Regents of Univ. of Cal. v. Bakke, 438 U. S. 265, 416, n. 19 (1978) (opinion concurring in judgment in part and dissenting in part) (emphasis deleted).
B
Applying Title VI to the cases now before us, the result is plain. The parties debate certain details of Harvard’s and UNC’s admissions practices. But no one disputes that both universities operate “program[s] or activit[ies] receiving Federal financial assistance.” §2000d. No one questions that both institutions consult race when making their admissions decisions. And no one can doubt that both schools intentionally treat some applicants worse than others at least in part because of their race.
1
Start with how Harvard and UNC use race. Like many colleges and universities, those schools invite interested students to complete the Common Application. As part of that process, the trial records show, applicants are prompted to tick one or more boxes to explain “how you identify yourself.” 4 App. in No. 21–707, p. 1732. The available choices are American Indian or Alaska Native; Asian; Black or African American; Native Hawaiian or Other Pacific Islander; Hispanic or Latino; or White. Applicants can write in further details if they choose. Ibid.; see also 397 F. Supp. 3d 126, 137 (Mass. 2019); 567 F. Supp. 3d 580, 596 (MDNC 2021).
Where do these boxes come from? Bureaucrats. A federal interagency commission devised this scheme of classifications in the 1970s to facilitate data collection. See D. Bernstein, The Modern American Law of Race, 94 S. Cal. L. Rev. 171, 196–202 (2021); see also 43 Fed. Reg. 19269 (1978). That commission acted “without any input from anthropologists, sociologists, ethnologists, or other experts.” Brief for David E. Bernstein as Amicus Curiae 3 (Bernstein Amicus Brief). Recognizing the limitations of their work, federal regulators cautioned that their classifications “should not be interpreted as being scientific or anthropological in nature, nor should they be viewed as determinants of eligibility for participation in any Federal program.” 43 Fed. Reg. 19269 (emphasis added). Despite that warning, others eventually used this classification system for that very purpose—to “sor[t] out winners and losers in a process that, by the end of the century, would grant preference[s] in jobs … and university admissions.” H. Graham, The Origins of Official Minority Designation, in The New Race Question: How the Census Counts Multiracial Individuals 289 (J. Perlmann & M. Waters eds. 2002).
These classifications rest on incoherent stereotypes. Take the “Asian” category. It sweeps into one pile East Asians (e.g., Chinese, Korean, Japanese) and South Asians (e.g., Indian, Pakistani, Bangladeshi), even though together they constitute about 60% of the world’s population. Bernstein Amicus Brief 2, 5. This agglomeration of so many peoples paves over countless differences in “language,” “culture,” and historical experience. Id., at 5–6. It does so even though few would suggest that all such persons share “similar backgrounds and similar ideas and experiences.” Fisher v. University of Tex. at Austin, 579 U. S. 365, 414 (2016) (Alito, J., dissenting). Consider, as well, the development of a separate category for “Native Hawaiian or Other Pacific Islander.” It seems federal officials disaggregated these groups from the “Asian” category only in the 1990s and only “in response to political lobbying.” Bernstein Amicus Brief 9–10. And even that category contains its curiosities. It appears, for example, that Filipino Americans remain classified as “Asian” rather than “Other Pacific Islander.” See 4 App. in No. 21–707, at 1732.
The remaining classifications depend just as much on irrational stereotypes. The “Hispanic” category covers those whose ancestral language is Spanish, Basque, or Catalan—but it also covers individuals of Mayan, Mixtec, or Zapotec descent who do not speak any of those languages and whose ancestry does not trace to the Iberian Peninsula but bears deep ties to the Americas. See Bernstein Amicus Brief 10–11. The “White” category sweeps in anyone from “Europe, Asia west of India, and North Africa.” Id., at 14. That includes those of Welsh, Norwegian, Greek, Italian, Moroccan, Lebanese, Turkish, or Iranian descent. It embraces an Iraqi or Ukrainian refugee as much as a member of the British royal family. Meanwhile, “Black or African American” covers everyone from a descendant of enslaved persons who grew up poor in the rural South, to a first-generation child of wealthy Nigerian immigrants, to a Black-identifying applicant with multiracial ancestry whose family lives in a typical American suburb. See id., at 15–16.
If anything, attempts to divide us all up into a handful of groups have become only more incoherent with time. American families have become increasingly multicultural, a fact that has led to unseemly disputes about whether someone is really a member of a certain racial or ethnic group. There are decisions denying Hispanic status to someone of Italian-Argentine descent, Marinelli Constr. Corp. v. New York, 200 App. Div. 2d 294, 296–297, 613 N. Y. S. 2d 1000, 1002 (1994), as well as someone with one Mexican grandparent, Major Concrete Constr., Inc. v. Erie County, 134 App. Div. 2d 872, 873, 521 N. Y. S. 2d 959, 960 (1987). Yet there are also decisions granting Hispanic status to a Sephardic Jew whose ancestors fled Spain centuries ago, In re Rothschild-Lynn Legal & Fin. Servs., SBA No. 499, 1995 WL 542398, *2–*4 (Apr. 12, 1995), and bestowing a “sort of Hispanic” status on a person with one Cuban grandparent, Bernstein, 94 S. Cal. L. Rev., at 232 (discussing In re Kist Corp., 99 F. C. C. 2d 173, 193 (1984)).
Given all this, is it any surprise that members of certain groups sometimes try to conceal their race or ethnicity? Or that a cottage industry has sprung up to help college applicants do so? We are told, for example, that one effect of lumping so many people of so many disparate backgrounds into the “Asian” category is that many colleges consider “Asians” to be “overrepresented” in their admission pools. Brief for Asian American Coalition for Education et al. as Amici Curiae 12–14, 18–19. Paid advisors, in turn, tell high school students of Asian descent to downplay their heritage to maximize their odds of admission. “ ‘We will make them appear less Asian when they apply,’ ” one promises. Id., at 16. “ ‘If you’re given an option, don’t attach a photograph to your application,’ ” another instructs. Ibid.[1] It is difficult to imagine those who receive this advice would find comfort in a bald (and mistaken) assurance that “race-conscious admissions benefit … the Asian American community,” post, at 60 (Sotomayor, J., dissenting). See 397 F. Supp. 3d, at 178 (district court finding that “overall” Harvard’s race-conscious admissions policy “results in fewer Asian American[s]” being admitted). And it is hard not to wonder whether those left paying the steepest price are those least able to afford it—children of families with no chance of hiring the kind of consultants who know how to play this game.[2]
2
Just as there is no question Harvard and UNC consider race in their admissions processes, there is no question both schools intentionally treat some applicants worse than others because of their race. Both schools frequently choose to award a “tip” or a “plus” to applicants from certain racial groups but not others. These tips or plusses are just what they sound like—“factors that might tip an applicant into [an] admitted class.” 980 F. 3d 157, 170 (CA1 2020). And in a process where applicants compete for a limited pool of spots, “[a] tip for one race” necessarily works as “a penalty against other races.” Brief for Economists as Amici Curiae 20. As the trial court in the Harvard case put it: “Race conscious admissions will always penalize to some extent the groups that are not being advantaged by the process.” 397 F. Supp. 3d, at 202–203.
Consider how this plays out at Harvard. In a given year, the university’s undergraduate program may receive 60,000 applications for roughly 1,600 spots. Tr. of Oral Arg. in No. 20–1199, p. 60. Admissions officers read each application and rate students across several categories: academic, extracurricular, athletic, school support, personal, and overall. 980 F. 3d, at 167. Harvard says its admissions officers “should not” consider race or ethnicity when assigning the “personal” rating. Id., at 169 (internal quotation marks omitted). But Harvard did not make this instruction explicit until after SFFA filed this suit. Ibid. And, in any event, Harvard concedes that its admissions officers “can and do take an applicant’s race into account when assigning an overall rating.” Ibid. (emphasis added). At that stage, the lower courts found, applicants of certain races may receive a “tip” in their favor. Ibid.
The next step in the process is committee review. Regional subcommittees may consider an applicant’s race when deciding whether to recommend admission. Id., at 169–170. So, too, may the full admissions committee. Ibid. As the Court explains, that latter committee “discusses the relative breakdown of applicants by race.” Ante, at 2–3. 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 [committee] may decide to give additional attention to applications from students within that group.” 397 F. Supp. 3d, at 146.
The last step is “lopping,” where the admissions committee trims the list of “prospective admits” before settling on a final class. Id., at 144 (internal quotation marks omitted). At this stage, again, the committee considers the “characteristics of the admitted class,” including its “racial composition.” Ibid. Once more, too, the committee may consider each applicant’s race in deciding whom to “lop off.” Ibid.
All told, the district court made a number of findings about Harvard’s use of race-based tips. For example: “[T]he tip[s] given for race impac[t] who among the highly-qualified students in the applicant pool will be selected for admission.” Id., at 178. “At least 10% of Harvard’s admitted class … would most likely not be admitted in the absence of Harvard’s race-conscious admissions process.” Ibid. Race-based tips are “determinative” in securing favorable decisions for a significant percentage of “African American and Hispanic applicants,” the “primary beneficiaries” of this system. Ibid. There are clear losers too. “[W]hite and Asian American applicants are unlikely to receive a meaningful race-based tip,” id., at 190, n. 56, and “overall” the school’s race-based practices “resul[t] in fewer Asian American and white students being admitted,” id., at 178. For these reasons and others still, the district court concluded that “Harvard’s admissions process is not facially neutral” with respect to race. Id., at 189–190; see also id., at 190, n. 56 (“The policy cannot … be considered facially neutral from a Title VI perspective.”).
Things work similarly at UNC. In a typical year, about 44,000 applicants vie for 4,200 spots. 567 F. Supp. 3d, at 595. Admissions officers read each application and rate prospective students along eight dimensions: academic programming, academic performance, standardized tests, extracurriculars, special talents, essays, background, and personal. Id., at 600. The district court found that “UNC’s admissions policies mandate that race is taken into consideration” in this process as a “ ‘plus’ facto[r].” Id., at 594–595. It is a plus that is “sometimes” awarded to “underrepresented minority” or “URM” candidates—a group UNC defines to include “ ‘those students identifying themselves as African American or [B]lack; American Indian or Alaska Native; or Hispanic, Latino, or Latina,’ ” but not Asian or white students. Id., at 591–592, n. 7, 601.
At UNC, the admissions officers’ decisions to admit or deny are “ ‘provisionally final.’ ” Ante, at 4 (opinion for the Court). The decisions become truly final only after a committee approves or rejects them. 567 F. Supp. 3d, at 599. That committee may consider an applicant’s race too. Id., at 607. In the end, the district court found that “race plays a role”—perhaps even “a determinative role”—in the decision to admit or deny some “URM students.” Id., at 634; see also id., at 662 (“race may tip the scale”). Nor is this an accident. As at Harvard, officials at UNC have made a “deliberate decision” to employ race-conscious admissions practices. Id., at 588–589.
While the district courts’ findings tell the full story, one can also get a glimpse from aggregate statistics. Consider the chart in the Court’s opinion collecting Harvard’s data for the period 2009 to 2018. Ante, at 31. The racial composition of each incoming class remained steady over that time—remarkably so. The proportion of African Americans hovered between 10% and 12%; the proportion of Hispanics between 8% and 12%; and the proportion of Asian Americans between 17% and 20%. Ibid. Might this merely reflect the demographics of the school’s applicant pool? Cf. post, at 35 (opinion of Sotomayor, J.). Perhaps—at least assuming the applicant pool looks much the same each year and the school rather mechanically admits applicants based on objective criteria. But the possibility that it instead betrays the school’s persistent focus on numbers of this race and numbers of that race is entirely consistent with the findings recounted above. See, e.g., 397 F. Supp. 3d, at 146 (“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 [committee] may decide to give additional attention to applications from students within that group”); cf. ante, at 31–32, n. 7 (opinion for the Court).
C
Throughout this litigation, the parties have spent less time contesting these facts than debating other matters.
For example, the parties debate how much of a role race plays in admissions at Harvard and UNC. Both schools insist that they consider race as just one of many factors when making admissions decisions in their self-described “holistic” review of each applicant. SFFA responds with trial evidence showing that, whatever label the universities use to describe their processes, they intentionally consult race and, by design, their race-based tips and plusses benefit applicants of certain groups to the detriment of others. See Brief for Petitioner 20–35, 40–45.
The parties also debate the reasons both schools consult race. SFFA observes that, in the 1920s, Harvard began moving away from “test scores” and toward “plac[ing] greater emphasis on character, fitness, and other subjective criteria.” Id., at 12–13 (internal quotation marks omitted). Harvard made this move, SFFA asserts, because President A. Lawrence Lowell and other university leaders had become “alarmed by the growing number of Jewish students who were testing in,” and they sought some way to cap the number of Jewish students without “ ‘stat[ing] frankly’ ” that they were “ ‘directly excluding all [Jews] beyond a certain percentage.’ ” Id., at 12; see also 3 App. in No. 20–1199, pp. 1131–1133. SFFA contends that Harvard’s current “holistic” approach to admissions works similarly to disguise the school’s efforts to assemble classes with a particular racial composition—and, in particular, to limit the number of Asian Americans it admits. Brief for Petitioner 12–14, 25–32. For its part, Harvard expresses regret for its past practices while denying that they resemble its current ones. Tr. of Oral Arg. in No. 20–1199, at 51. And both schools insist that their student bodies would lack sufficient diversity without race-conscious admissions. Brief for Respondent in No. 20–1199, pp. 52–54; Brief for University Respondents in No. 21–707, pp. 54–59.
When it comes to defining and measuring diversity, the parties spar too. SFFA observes that the racial categories the universities employ in the name of diversity do not begin to reflect the differences that exist within each group. See Part I–B–1, supra. Instead, they lump together white and Asian students from privileged backgrounds with “Jewish, Irish, Polish, or other ‘white’ ethnic groups whose ancestors faced discrimination” and “descendants of those Japanese-American citizens interned during World War II.” Ante, at 45, n. 10 (Thomas, J., concurring). Even putting all that aside, SFFA stresses that neither Harvard nor UNC is willing to quantify how much racial and ethnic diversity they think sufficient. And, SFFA contends, the universities may not wish to do so because their stated goal implies a desire to admit some fixed number (or quota) of students from each racial group. See Brief for Petitioner 77, 80; Tr. of Oral Arg. in No. 21–707, p. 180. Besides, SFFA asks, if it is diversity the schools are after, why do they exhibit so little interest in other (non-racial) markers of it? See Brief for Petitioner 78, 83–86. While Harvard professes interest in socioeconomic diversity, for example, SFFA points to trial testimony that there are “23 times as many rich kids on campus as poor kids.” 2 App. in No. 20–1199, p. 756.[3]
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.[4] 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 disadvantaged applicants just half of the tip it gives recruited athletes; and (2) eliminated tips for the children of donors, alumni, and faculty. Brief for Petitioner 33–34, 81; see 2 App. in No. 20–1199, at 763–765, 774–775. Doing these two things would barely affect the academic credentials of each incoming class. Brief for Petitioner 33–34. And it would not require Harvard to end tips for recruited athletes, who as a group are much weaker academically than non-athletes.[5]
At trial, however, Harvard resisted this proposal. Its preferences for the children of donors, alumni, and faculty are no help to applicants who cannot boast of their parents’ good fortune or trips to the alumni tent all their lives. While race-neutral on their face, too, these preferences undoubtedly benefit white and wealthy applicants the most. See 980 F. 3d, at 171. Still, Harvard stands by them. See Brief for Respondent in No. 20–1199, at 52–54; Tr. of Oral Arg. in No. 21–1199, at 48–49. As a result, athletes and the children of donors, alumni, and faculty—groups that together “make up less than 5% of applicants to Harvard”—constitute “around 30% of the applicants admitted each year.” 980 F. 3d, at 171.
To be sure, the parties’ debates raise some hard-to-answer questions. Just how many admissions decisions turn on race? And what really motivates the universities’ race-conscious admissions policies and their refusal to modify other preferential practices? Fortunately, Title VI does not require an answer to any of these questions. It does not ask how much a recipient of federal funds discriminates. It does not scrutinize a recipient’s reasons or motives for discriminating. Instead, the law prohibits covered institutions from intentionally treating any individual worse even in part because of race. So yes, of course, the universities consider many non-racial factors in their admissions processes too. And perhaps they mean well when they favor certain candidates over others based on the color of their skin. But even if all that is true, their conduct violates Title VI just the same. See Part I–A, supra; see also Bostock, 590 U. S., at ___, ___–___ (slip op., at 6, 12–15).
D
The principal dissent contends that this understanding of Title VI is contrary to precedent. Post, at 26–27, n. 21 (opinion of Sotomayor, J.). But the dissent does not dispute that everything said here about the meaning of Title VI tracks this Court’s precedent in Bostock interpreting materially identical language in Title VII. That raises two questions: Do the dissenters think Bostock wrongly decided? Or do they read the same words in neighboring provisions of the same statute—enacted at the same time by the same Congress—to mean different things? Apparently, the federal government takes the latter view. The Solicitor General insists that there is “ambiguity in the term ‘discrimination’ ” in Title VI but no ambiguity in the term “discriminate” in Title VII. Tr. of Oral Arg. in No. 21–707, at 164. Respectfully, I do not see it. The words of the Civil Rights Act of 1964 are not like mood rings; they do not change their message from one moment to the next.
Rather than engage with the statutory text or our precedent in Bostock, the principal dissent seeks to sow confusion about the facts. It insists that all applicants to Harvard and UNC are “eligible” to receive a race-based tip. Post, at 32, n. 27 (opinion of Sotomayor, J.); cf. post, at 17 (Jackson, J., dissenting). But the question in these cases is not who could hypothetically receive a race-based tip. It is who actually receives one. And on that score the lower courts left no doubt. The district court in the Harvard case found that the school’s admissions policy “cannot … be considered facially neutral from a Title VI perspective given that admissions officers provide [race-based] tips to African American and Hispanic applicants, while white and Asian American applicants are unlikely to receive a meaningful race-based tip.” 397 F. Supp. 3d, at 190, n. 56; see also id., at 189–190 (“Harvard’s admissions process is not facially neutral.”). Likewise, the district court in the UNC case found that admissions officers “sometimes” award race-based plusses to URM candidates—a category that excludes Asian American and white students. 567 F. Supp. 3d, at 591–592, n. 7, 601.[6]
Nor could anyone doubt that these cases are about intentional discrimination just because Harvard in particular “ ‘does not explicitly prioritize any particular racial group over any other.’ ” Post, at 32, n. 27 (opinion of Sotomayor, J.) (emphasis added). Forget for a moment the universities’ concessions about how they deliberately consult race when deciding whom to admit. See supra, at 12–13.[7] Look past the lower courts’ findings recounted above about how the universities intentionally give tips to students of some races and not others. See supra, at 8–12, 16–17. Put to the side telling evidence that came out in discovery.[8] Ignore, too, our many precedents holding that it does not matter how a defendant “label[s]” its practices, Bostock, 590 U. S., at ___ (slip op., at 14); that intentional discrimination between individuals is unlawful whether “motivated by a wish to achieve classwide equality” or any other purpose, id., at ___ (slip op., at 13); and that “the absence of a malevolent motive does not convert a facially discriminatory policy into a neutral policy with a [merely] discriminatory effect,” Johnson Controls, 499 U. S., at 199. Consider just the dissents in these cases. From start to finish and over the course of nearly 100 pages, they defend the universities’ purposeful discrimination between applicants based on race. “[N]eutrality,” they insist, is not enough. Post, at 12, 68 (opinion of Sotomayor, J.); cf. post, at 21 (opinion of Jackson, J.). “[T]he use of race,” they stress, “is critical.” Post, at 59–60 (opinion of Sotomayor, J.); see id., at 2, 33, 39, 43–45; cf. post, at 2, 26 (opinion of Jackson, J.). Plainly, Harvard and UNC choose to treat some students worse than others in part because of race. To suggest otherwise—or to cling to the fact that the schools do not always say the quiet part aloud—is to deny reality.[9]
II
So far, we have seen that Title VI prohibits a recipient of federal funds from discriminating against individuals even in part because of race. We have seen, too, that Harvard and UNC do just what the law forbids. One might wonder, then, why the parties have devoted years and fortunes litigating other matters, like how much the universities discriminate and why they do so. The answer lies in Bakke.
A
Bakke concerned admissions to the medical school at the University of California, Davis. That school set aside a certain number of spots in each class for minority applicants. See 438 U. S., at 272–276 (opinion of Powell, J.). Allan Bakke argued that the school’s policy violated Title VI and the Equal Protection Clause of the Fourteenth Amendment. Id., at 270. The Court agreed with Mr. Bakke. In a fractured decision that yielded six opinions, a majority of the Court held that the school’s set-aside system went too far. At the same time, however, a different coalition of five Justices ventured beyond the facts of the case to suggest that, in other circumstances not at issue, universities may sometimes permissibly use race in their admissions processes. See ante, at 16–19 (opinion for the Court).
As important as these conclusions were some of the interpretive moves made along the way. Justice Powell (writing only for himself) and Justice Brennan (writing for himself and three others) argued that Title VI is coterminous with the Equal Protection Clause. Put differently, they read Title VI to prohibit recipients of federal funds from doing whatever the Equal Protection Clause prohibits States from doing. Justice Powell and Justice Brennan then proceeded to evaluate racial preferences in higher education directly under the Equal Protection Clause. From there, however, their paths diverged. Justice Powell thought some racial preferences might be permissible but that the admissions program at issue violated the promise of equal protection. 438 U. S., at 315–320. Justice Brennan would have given a wider berth to racial preferences and allowed the challenged program to proceed. Id., at 355–379.
Justice Stevens (also writing for himself and three others) took an altogether different approach. He began by noting the Court’s “settled practice” of “avoid[ing] the decision of a constitutional issue if a case can be fairly decided on a statutory ground.” Id., at 411. He then turned to the “broad prohibition” of Title VI, id., at 413, and summarized his views this way: “The University … excluded Bakke from participation in its program of medical education because of his race. The University also acknowledges that it was, and still is, receiving federal financial assistance. The plain language of the statute therefore requires” finding a Title VI violation. Id., at 412 (footnote omitted).
In the years following Bakke, this Court hewed to Justice Powell’s and Justice Brennan’s shared premise that Title VI and the Equal Protection Clause mean the same thing. See Gratz v. Bollinger, 539 U. S. 244, 276, n. 23 (2003); Grutter v. Bollinger, 539 U. S. 306, 343 (2003). Justice Stevens’s statute-focused approach receded from view. As a result, for over four decades, every case about racial preferences in school admissions under Title VI has turned into a case about the meaning of the Fourteenth Amendment.
And what a confused body of constitutional law followed. For years, this Court has said that the Equal Protection Clause requires any consideration of race to satisfy “strict scrutiny,” meaning it must be “narrowly tailored to further compelling governmental interests.” Grutter, 539 U. S., at 326 (internal quotation marks omitted). Outside the context of higher education, “our precedents have identified only two” interests that meet this demanding standard: “remediating specific, identified instances of past discrimination that violated the Constitution or a statute,” and “avoiding imminent and serious risks to human safety in prisons.” Ante, at 15 (opinion for the Court).
Within higher education, however, an entirely distinct set of rules emerged. Following Bakke, this Court declared that judges may simply “defer” to a school’s assertion that “diversity is essential” to its “educational mission.” Grutter, 539 U. S., at 328. Not all schools, though—elementary and secondary schools apparently do not qualify for this deference. See Parents Involved in Community Schools v. Seattle School Dist. No. 1, 551 U. S. 701, 724–725 (2007). Only colleges and universities, the Court explained, “occupy a special niche in our constitutional tradition.” Grutter, 539 U. S., at 329. Yet even they (wielding their “special niche” authority) cannot simply assert an interest in diversity and discriminate as they please. Fisher, 579 U. S., at 381. Instead, they may consider race only as a “plus” factor for the purpose of “attaining a critical mass of underrepresented minority students” or “a diverse student body.” Grutter, 539 U. S., at 335–336 (internal quotation marks omitted). At the same time, the Court cautioned, this practice “must have a logical end point.” Id., at 342. And in the meantime, “outright racial balancing” and “quota system[s]” remain “patently unconstitutional.” Id., at 330, 334. Nor may a college or university ever provide “mechanical, predetermined diversity bonuses.” Id., at 337 (internal quotation marks omitted). Only a “tip” or “plus” is constitutionally tolerable, and only for a limited time. Id., at 338–339, 341.
If you cannot follow all these twists and turns, you are not alone. See, e.g., Fisher, 579 U. S., at 401–437 (Alito, J., dissenting); Grutter, 539 U. S., at 346–349 (Scalia, J., joined by Thomas, J., concurring in part and dissenting in part); 1 App. in No. 21–707, pp. 401–402 (testimony from UNC administrator: “[M]y understanding of the term ‘critical mass’ is that it’s a … I’m trying to decide if it’s an analogy or a metaphor[.] I think it’s an analogy. … I’m not even sure we would know what it is.”); 3 App. in No. 20–1199, at 1137–1138 (similar testimony from a Harvard administrator). If the Court’s post-Bakke higher-education precedents ever made sense, they are by now incoherent.
Recognizing as much, the Court today cuts through the kudzu. It ends university exceptionalism and returns this Court to the traditional rule that the Equal Protection Clause forbids the use of race in distinguishing between persons unless strict scrutiny’s demanding standards can be met. In that way, today’s decision wakes the echoes of Justice John Marshall Harlan: “The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved.” Plessy v. Ferguson, 163 U. S. 537, 559 (1896) (dissenting opinion).
B
If Bakke led to errors in interpreting the Equal Protection Clause, its first mistake was to take us there. These cases arise under Title VI and that statute is “more than a simple paraphrasing” of the Equal Protection Clause. 438 U. S., at 416 (opinion of Stevens, J.). Title VI has “independent force, with language and emphasis in addition to that found in the Constitution.” Ibid. That law deserves our respect and its terms provide us with all the direction we need.
Put the two provisions side by side. Title VI says: “No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” §2000d. The Equal Protection Clause reads: “No State shall … deny to any person within its jurisdiction the equal protection of the laws.” Amdt. 14, §1. That such differently worded provisions should mean the same thing is implausible on its face.
Consider just some of the obvious differences. The Equal Protection Clause operates on States. It does not purport to regulate the conduct of private parties. By contrast, Title VI applies to recipients of federal funds—covering not just many state actors, but many private actors too. In this way, Title VI reaches entities and organizations that the Equal Protection Clause does not.
In other respects, however, the relative scope of the two provisions is inverted. The Equal Protection Clause addresses all manner of distinctions between persons and this Court has held that it implies different degrees of judicial scrutiny for different kinds of classifications. So, for example, courts apply strict scrutiny for classifications based on race, color, and national origin; intermediate scrutiny for classifications based on sex; and rational-basis review for classifications based on more prosaic grounds. See, e.g., Fisher, 579 U. S., at 376; Richmond v. J. A. Croson Co., 488 U. S. 469, 493–495 (1989) (plurality opinion); United States v. Virginia, 518 U. S. 515, 555–556 (1996); Board of Trustees of Univ. of Ala. v. Garrett, 531 U. S. 356, 366–367 (2001). By contrast, Title VI targets only certain classifications—those based on race, color, or national origin. And that law does not direct courts to subject these classifications to one degree of scrutiny or another. Instead, as we have seen, its rule is as uncomplicated as it is momentous. Under Title VI, it is always unlawful to discriminate among persons even in part because of race, color, or national origin.
In truth, neither Justice Powell’s nor Justice Brennan’s opinion in Bakke focused on the text of Title VI. Instead, both leapt almost immediately to its “voluminous legislative history,” from which they proceeded to divine an implicit “congressional intent” to link the statute with the Equal Protection Clause. 438 U. S., at 284–285 (opinion of Powell, J.); id., at 328–336 (joint opinion of Brennan, White, Marshall, and Blackmun, JJ.). Along the way, as Justice Stevens documented, both opinions did more than a little cherry-picking from the legislative record. See id., at 413–417. Justice Brennan went so far as to declare that “any claim that the use of racial criteria is barred by the plain language of the statute must fail in light of the remedial purpose of Title VI and its legislative history.” Id., at 340. And once liberated from the statute’s firm rule against discrimination based on race, both opinions proceeded to devise their own and very different arrangements in the name of the Equal Protection Clause.
The moves made in Bakke were not statutory interpretation. They were judicial improvisation. Under our Constitution, judges have never been entitled to disregard the plain terms of a valid congressional enactment based on surmise about unenacted legislative intentions. Instead, it has always been this Court’s duty “to give effect, if possible, to every clause and word of a statute,” Montclair v. Ramsdell, 107 U. S. 147, 152 (1883), and of the Constitution itself, see Knowlton v. Moore, 178 U. S. 41, 87 (1900). In this country, “[o]nly the written word is the law, and all persons are entitled to its benefit.” Bostock, 590 U. S., at ___ (slip op., at 2). When judges disregard these principles and enforce rules “inspired only by extratextual sources and [their] own imaginations,” they usurp a lawmaking function “reserved for the people’s representatives.” Id., at ___ (slip op., at 4).
Today, the Court corrects course in its reading of the Equal Protection Clause. With that, courts should now also correct course in their treatment of Title VI. For years, they have read a solo opinion in Bakke like a statute while reading Title VI as a mere suggestion. A proper respect for the law demands the opposite. Title VI bears independent force beyond the Equal Protection Clause. Nothing in it grants special deference to university administrators. Nothing in it endorses racial discrimination to any degree or for any purpose. Title VI is more consequential than that. * In the aftermath of the Civil War, Congress took vital steps toward realizing the promise of equality under the law. As important as those initial efforts were, much work remained to be done—and much remains today. But by any measure, the Civil Rights Act of 1964 stands as a landmark on this journey and one of the Nation’s great triumphs. We have no right to make a blank sheet of any of its provisions. And when we look to the clear and powerful command Congress set forth in that law, these cases all but resolve themselves. Under Title VI, it is never permissible “ ‘to say “yes” to one person … but to say “no” to another person’ ” even in part “ ‘because of the color of his skin.’ ” Bakke, 438 U. S., at 418 (opinion of Stevens, J.).
- ↑ See also A. Qin, Aiming for an Ivy and Trying to Seem ‘Less Asian,’ N. Y. Times, Dec. 3, 2022, p. A18, col. 1 (“[T]he rumor that students can appear ‘too Asian’ has hardened into a kind of received wisdom within many Asian American communities,” and “college admissions consultants [have] spoke[n] about trying to steer their Asian American clients away from so-called typically Asian activities such as Chinese language school, piano and Indian classical instruments.”).
- ↑ Though the matter did not receive much attention in the proceedings below, it appears that the Common Application has evolved in recent years to allow applicants to choose among more options to describe their backgrounds. The decisions below do not disclose how much Harvard or UNC made use of this further information (or whether they make use of it now). But neither does it make a difference. Title VI no more tolerates discrimination based on 60 racial categories than it does 6.
- ↑ 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).
- ↑ See Brief for Defense of Freedom Institute for Policy Studies as Amicus Curiae 11 (recruited athletes make up less than 1% of Harvard’s applicant pool but represent more than 10% of the admitted class); P. Arcidiacono, J. Kinsler, & T. Ransom, Legacy and Athlete Preferences at Harvard, 40 J. Lab. Econ. 133, 141, n. 17 (2021) (recruited athletes were the only applicants admitted with the lowest possible academic rating and 79% of recruited athletes with the next lowest rating were admitted compared to 0.02% of other applicants with the same rating).
- ↑ The principal dissent suggests “some Asian American applicants are actually advantaged by Harvard’s use of race.” Post, at 60 (opinion of Sotomayor, J.) (internal quotation marks omitted). What is the dissent’s basis for that claim? The district court’s finding that “considering applicants’ race may improve the admission chances of some Asian Americans who connect their racial identities with particularly compelling narratives.” 397 F. Supp. 3d, at 178 (emphasis added). The dissent neglects to mention those key qualifications. Worse, it ignores completely the district court’s further finding that “overall” Harvard’s race-conscious admissions policy “results in fewer Asian American[s] … being admitted.” Ibid. (emphasis added). So much for affording the district court’s “careful factfinding” the “deference it [is] owe[d].” Post, at 29–30, n. 25 (opinion of Sotomayor, J.).
- ↑ See also, e.g., Tr. of Oral Arg. in No. 20–1199, at 67, 84, 91; Tr. of Oral Arg. in No. 21–707, at 70–71, 81, 84, 91–92, 110.
- ↑ Messages among UNC admissions officers included statements such as these: “[P]erfect 2400 SAT All 5 on AP one B in 11th [grade].” “Brown?!” “Heck no. Asian.” “Of course. Still impressive.”; “If it[’]s brown and above a 1300 [SAT] put them in for [the] merit/Excel [scholarship].”; “I just opened a brown girl who’s an 810 [SAT].”; “I’m going through this trouble because this is a bi-racial (black/white) male.”; “[S]tellar academics for a Native Amer[ican]/African Amer[ican] kid.” 3 App. in No. 21–707, pp. 1242–1251.
- ↑ Left with no reply on the statute or its application to the facts, the principal dissent suggests that it violates “principles of party presentation” and abandons “judicial restraint” even to look at the text of Title VI. Post, at 26–27, n. 21 (opinion of Sotomayor, J.). It is a bewildering suggestion. SFFA sued Harvard and UNC under Title VI. And when a party seeks relief under a statute, our task is to apply the law’s terms as a reasonable reader would have understood them when Congress enacted them. Bostock v. Clayton County, 590 U. S. ___, ___ (2020) (slip op., at 4). To be sure, parties are free to frame their arguments. But they are not free to stipulate to a statute’s meaning and no party may “waiv[e]” the proper interpretation of the law by “fail[ing] to invoke it.” EEOC v. FLRA, 476 U. S. 19, 23 (1986) (per curiam) (internal quotation marks omitted); see also Young v. United States, 315 U. S. 257, 258–259 (1942).