Page:Students for Fair Admissions v. President and Fellows of Harvard College.pdf/35

Rh The race-based admissions systems that respondents employ also fail to comply with the twin commands of the Equal Protection Clause that race may never be used as a “negative” and that it may not operate as a stereotype.

First, our cases have stressed that an individual’s race may never be used against him in the admissions process. Here, however, the First Circuit found that Harvard’s consideration of race has led to an 11.1% decrease in the number of Asian-Americans admitted to Harvard. 980 F. 3d, at 170, n. 29. And the District Court observed that Harvard’s “policy of considering applicants’ race … overall results in fewer Asian American and white students being admitted.” 397 F. Supp. 3d, at 178.

Respondents nonetheless contend that an individual’s race is never a negative factor in their admissions programs, but that assertion cannot withstand scrutiny. Harvard, for example, draws an analogy between race and other factors it considers in admission. “[W]hile admissions officers may give a preference to applicants likely to excel in the Harvard-Radcliffe Orchestra,” Harvard explains, “that does not mean it is a ‘negative’ not to excel at a musical instrument.” Brief for Respondent in No. 20–1199, at 51. But on Harvard’s logic, while it gives preferences to applicants with high grades and test scores, “that does not mean it is a ‘negative’ ” to be a student with lower grades and lower test scores. Ibid. This understanding of the admissions process is hard to take seriously. College admissions are zero-sum. A benefit provided to some applicants but not to others necessarily advantages the former group at the expense of the latter.

Respondents also suggest that race is not a negative factor because it does not impact many admissions decisions. See id., at 49; Brief for University Respondents in No. 21–707, at 2. Yet, at the same time, respondents also maintain that the demographics of their admitted classes would