Page:Students for Fair Admissions v. President and Fellows of Harvard College.pdf/172

Rh eliminating the use of race in admissions “would reduce African American representation … from 14% to 6% and Hispanic representation from 14% to 9%.” Harvard II, 980 F. 3d, at 180, 191. Such impact of Harvard’s limited use of race on the makeup of the class is less than this Court has previously upheld as narrowly tailored. In Grutter, for example, eliminating the use of race would have reduced the underrepresented minority population by 72%, a much greater effect. 539 U. S., at 320. And in Fisher II, the use of race helped increase Hispanic representation from 11% to 16.9% (a 54% increase) and African-American representation from 3.5% to 6.8% (a 94% increase). 579 U. S., at 384. Relying on a single footnote in the First Circuit’s opinion, the Court claims that Harvard’s program is unconstitutional because it “has led to an 11.1% decrease in the number of Asian-Americans admitted to Harvard.” The Court of Appeals, however, merely noted that the United States, at the time represented by a different administration, argued that “absent the consideration of race, [Asian American] representation would increase from 24% to 27%,” an 11% increase. Harvard II, 980 F. 3d, at 191, n. 29. Taking those calculations as correct, the Court of Appeals recognized that such an impact from the use of race on the overall makeup of the class is consistent with the impact that this Court’s precedents have tolerated. Ibid.

The Court also notes that “race is determinative for at least some—if not many—of the students” admitted at UNC. The District Court in the UNC case found that “race plays a role in a very small percentage of decisions: 1.2% for in-state students and 5.1% for out-of-state students.” 567 F. Supp. 3d 580, 634 (MDNC 2021). The limited use of race at UNC thus has a smaller effect than at Harvard and is also consistent with the Court’s precedents. In addition, contrary to the majority’s suggestion, such effect does not prove that “race alone … explains the admissions decisions for hundreds if not thousands of applicants to UNC each year.” As the District Court found, UNC (like Harvard) “engages a highly individualized, holistic review of each applicant’s file, which considers race flexibly as a ‘plus factor’ as one among many factors in its individualized consideration of each and every applicant.” 567 F. Supp. 3d, at 662; see id., at 658 (finding that UNC “rewards different kinds of diversity, and evaluates a candidate within