Page:Students for Fair Admissions v. President and Fellows of Harvard College.pdf/42

34 them to determine whether they remain necessary. See Brief for Respondent in No. 20–1199, at 52; Brief for University Respondents in No. 21–707, at 58–59. Respondents point to language in Grutter that, they contend, permits “the durational requirement [to] be met” with “periodic reviews to determine whether racial preferences are still necessary to achieve student body diversity.” 539 U. S., at 342. But Grutter never suggested that periodic review could make unconstitutional conduct constitutional. To the contrary, the Court made clear that race-based admissions programs eventually had to end—despite whatever periodic review universities conducted. Ibid.; see also.

Here, however, Harvard concedes that its race-based admissions program has no end point. Brief for Respondent in No. 20–1199, at 52 (Harvard “has not set a sunset date” for its program (internal quotation marks omitted)). And it acknowledges that the way it thinks about the use of race in its admissions process “is the same now as it was” nearly 50 years ago. Tr. of Oral Arg. in No. 20–1199, at 91. UNC’s race-based admissions program is likewise not set to expire any time soon—nor, indeed, any time at all. The University admits that it “has not set forth a proposed time period in which it believes it can end all race-conscious admissions practices.” 567 F. Supp. 3d, at 612. And UNC suggests that it might soon use race to a greater extent than it currently does. See Brief for University Respondents in No. 21–707, at 57. In short, there is no reason to believe that respondents will—even acting in good faith—comply with the Equal Protection Clause any time soon.

The dissenting opinions resist these conclusions. They would instead uphold respondents’ admissions programs based on their view that the Fourteenth Amendment permits state actors to remedy the effects of societal discrimination through explicitly race-based measures. Although