Page:Students for Fair Admissions v. President and Fellows of Harvard College.pdf/77

Rh See. The Court today makes clear that, in the future, universities wishing to discriminate based on race in admissions must articulate and justify a compelling and measurable state interest based on concrete evidence. Given the strictures set out by the Court, I highly doubt any will be able to do so.

In an effort to salvage their patently unconstitutional programs, the universities and their amici pivot to argue that the Fourteenth Amendment permits the use of race to benefit only certain racial groups—rather than applicants writ large. Yet, this is just the latest disguise for discrimination. The sudden narrative shift is not surprising, as it has long been apparent that “ ‘diversity [was] merely the current rationale of convenience’ ” to support racially discriminatory admissions programs. Grutter, 539 U. S., at 393 (Kennedy, J., dissenting). Under our precedents, this new rationale is also lacking.

To start, the case for affirmative action has emphasized a number of rationales over the years, including: (1) restitution to compensate those who have been victimized by past discrimination, (2) fostering “diversity,” (3) facilitating “integration” and the destruction of perceived racial castes, and (4) countering longstanding and diffuse racial prejudice. See R. Kennedy, For Discrimination: Race, Affirmative Action, and the Law 78 (2013); see also P. Schuck, Affirmative Action: Past, Present, and Future, 20 Yale L. & Pol’y Rev. 1, 22–46 (2002). Again, this Court has only recognized one interest as compelling: the educational benefits of diversity embraced in Grutter. Yet, as the universities define the “diversity” that they practice, it encompasses social and aesthetic goals far afield from the education-based interest discussed in Grutter. See. The dissents too attempt to stretch the diversity rationale, suggesting that it supports broad remedial interests. See, e.g.,