Page:Students for Fair Admissions v. President and Fellows of Harvard College.pdf/177

38 ). At bottom, the six unelected members of today’s majority upend the status quo based on their policy preferences about what race in America should be like, but is not, and their preferences for a veneer of colorblindness in a society where race has always mattered and continues to matter in fact and in law.

A limited use of race in college admissions is consistent with the Fourteenth Amendment and this Court’s broader equal protection jurisprudence. The text and history of the Fourteenth Amendment make clear that the Equal Protection Clause permits race-conscious measures. See. Consistent with that view, the Court has explicitly held that “race-based action” is sometimes “within constitutional constraints.” Adarand Constructors, Inc. v. Peña, 515 U. S. 200, 237 (1995). The Court has thus upheld the use of race in a variety of contexts. See, e.g., Parents Involved in Community Schools v. Seattle School Dist. No. 1, 551 U. S. 701, 737 (2007) (“[T]he obligation to disestablish a school system segregated by law can include race-conscious remedies—whether or not a court had issued an order to that effect”); Johnson v. California, 543 U. S. 499, 512 (2005) (use of race permissible to further prison’s interest in “ ‘security’ ” and “ ‘discipline’ ”); Cooper v. Harris, 581 U. S. 285, 291–293 (2017) (use of race permissible when drawing voting districts in some circumstances).

Tellingly, in sharp contrast with today’s decision, the Court has allowed the use of race when that use burdens minority populations. In United States v. Brignoni-Ponce,