Page:Students for Fair Admissions v. President and Fellows of Harvard College.pdf/50

2 and ushering in the Jim Crow era, the Court finally corrected course in Brown v. Board of Education, 347 U. S. 483 (1954), announcing that primary schools must either desegregate with all deliberate speed or else close their doors. See also Brown v. Board of Education, 349 U. S. 294 (1955) (Brown II). It then pulled back in Grutter v. Bollinger, 539 U. S. 306 (2003), permitting universities to discriminate based on race in their admissions process (though only temporarily) in order to achieve alleged “educational benefits of diversity.” Id., at 319. Yet, the Constitution continues to embody a simple truth: Two discriminatory wrongs cannot make a right.

I wrote separately in Grutter, explaining that the use of race in higher education admissions decisions—regardless of whether intended to help or to hurt—violates the Fourteenth Amendment. Id., at 351 (opinion concurring in part and dissenting in part). In the decades since, I have repeatedly stated that Grutter was wrongly decided and should be overruled. Fisher v. University of Tex. at Austin, 570 U. S. 297, 315, 328 (2013) (concurring opinion) (Fisher I); Fisher v. University of Tex. at Austin, 579 U. S. 365, 389 (2016) (dissenting opinion). Today, and despite a lengthy interregnum, the Constitution prevails.

Because the Court today applies genuine strict scrutiny to the race-conscious admissions policies employed at Harvard and the University of North Carolina (UNC) and finds that they fail that searching review, I join the majority opinion in full. I write separately to offer an originalist defense of the colorblind Constitution; to explain further the flaws of the Court’s Grutter jurisprudence; to clarify that all forms of discrimination based on race—including so-called affirmative action—are prohibited under the Constitution; and to emphasize the pernicious effects of all such discrimination.