(6) The Use of Race-Based Discrimination in Favor of Black Admission Candidates to Higher Education Was Always Only Temporary
[Roberts Majority Slip Op at p. 21] ”To manage these concerns, Grutter imposed one final limit on race-based admissions programs. At some point, the Court held, they must end. Id., at 342. This requirement was critical, and Grutter emphasized it repeatedly. ‘[A]ll race-conscious admissions programs [must] have a termination point’; they ‘must have reasonable durational limits’; they ‘must be limited in time’; they must have ‘sunset provisions’; they ‘must have a logical end point’ [sic]; their ‘deviation from the norm of equal treatment’ must be ‘a temporary matter.’ Ibid. [internal quotation marks omitted]. The importance of an end point [sic] was not just a matter of repetition. It was the reason the Court was willing to dispense temporarily with the Constitution’s unambiguous guarantee of equal protection. The Court recognized as much: ’[e]nshrining a permanent justification for racial preferences,’ the Court explained, ’would offend this fundamental equal protection principle.’ Ibid.; see also id., at 342–343 (quoting N. Nathanson & C. Bartnik, The Constitutionality of Preferential Treatment for Minority Applicants to Professional Schools, 58 Chi. Bar Rec. 282, 293 (May–June 1977), for the proposition that ’[i]t would be a sad day indeed, were America to become a quota-ridden society, with each identifiable minority assigned proportional representation in every desirable walk of life’).
Grutter thus concluded with the following caution: ‘It has been 25 years since Justice Powell first approved the use of race to further an interest in student body diversity in the context of public higher education. . . . We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.’” 539 U. S., at 343.
[Kavanaugh Concurring Slip Op at pp. 2-3] “In 2003, 25 years after Bakke, five Members of this Court again held that race-based affirmative action in higher education did not violate the Equal Protection Clause or Title VI. Grutter, 539 U. S., at 343. This time, however, the Court also specifically indicated—despite the reservations of Justice Ginsburg and Justice Breyer—that race-based affirmative action in higher education would not be constitutionally justified after another 25 years, at least absent something not ‘expect[ed].’ Ibid. And various Members of the Court wrote separate opinions explicitly referencing the Court’s 25-year limit.
- Justice O’Connor’s opinion for the Court stated: ‘We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.’ Ibid.
- Justice Thomas expressly concurred in ‘the Court’s holding that racial discrimination in higher education admissions will be illegal in 25 years.’ Id., at 351 (opinion concurring in part and dissenting in part).
- Justice Thomas, joined here by Justice Scalia, reiterated ‘the Court’s holding’ that race-based affirmative action in higher education ‘will be unconstitutional in 25 years’ and ‘that in 25 years the practices of the Law School will be illegal,’ while also stating that ‘they are, for the reasons I have given, illegal now.’ Id., at 375–376.
- Justice Kennedy referred to ’the Court’s pronouncement that race-conscious admissions programs will be unnecessary 25 years from now.’ Id., at 394 (dissenting opinion).
- Justice Ginsburg, joined by Justice Breyer, acknowledged the Court’s 25-year limit but questioned it, writing that ‘one may hope, but not firmly forecast, that over the next generation’s span, progress toward nondiscrimination and genuinely equal opportunity will make it safe to sunset affirmative action.’ Id., at 346 (concurring opinion).
In allowing race-based affirmative action in higher education for another generation—and only for another generation—the Court in Grutter took into account competing considerations. The Court recognized the barriers that some minority applicants to universities still faced as of 2003, notwithstanding the progress made since Bakke. See Grutter, 539 U. S., at 343. The Court stressed, however, that’“there are serious problems of justice connected with the idea of preference itself.’ Id., at 341 [internal quotation marks omitted]. And the Court added that a ‘core purpose of the Fourteenth Amendment was to do away with all governmentally imposed discrimination based on race.’ Ibid. [internal quotation marks omitted].
The Grutter Court also emphasized the equal protection principle that racial classifications, even when otherwise permissible, must be a ‘temporary matter,’ and ’must be limited in time.’ Id., at 342 (quoting Croson, 488 U. S., at 510 (plurality opinion of O’Connor, J.)). The requirement of a time limit ‘reflects that racial classifications, however compelling their goals, are potentially so dangerous that they may be employed no more broadly than the interest demands. Enshrining a permanent justification for racial preferences would offend this fundamental equal protection principle.’ Grutter, 539 U. S., at 342. Importantly, the Grutter Court saw ’no reason to exempt race-conscious admissions programs from the requirement that all governmental use of race must have a logical end point.’ [sic] Ibid. The Court reasoned that the ‘requirement that all race-conscious admissions programs have a termination point assures all citizens that the deviation from the norm of equal treatment of all racial and ethnic groups is a temporary matter, a measure taken in the service of the goal of equality itself.’ Ibid. [internal quotation marks and alteration omitted]. The Court therefore concluded that race-based affirmative action programs in higher education, like other racial classifications, must be ‘limited in time.’ Ibid.
The Grutter Court’s conclusion that race-based affirmative action in higher education must be limited in time followed not only from fundamental equal protection principles, but also from this Court’s equal protection precedents applying those principles. Under those precedents, racial classifications may not continue indefinitely. For example, in the elementary and secondary school context after Brown v. Board of Education, 347 U. S. 483 (1954), the Court authorized race-based student assignments for several decades—but not indefinitely into the future. [citations omitted].
In those decisions, this Court ruled that the race-based ‘injunctions entered in school desegregation cases’ could not ‘operate in perpetuity.’ Dowell, 498 U. S., at 248. Consistent with those decisions, the Grutter Court ruled that race-based affirmative action in higher education likewise could not operate in perpetuity. As of 2003, when Grutter was decided, many race-based affirmative action programs in higher education had been operating for about 25 to 35 years. Pointing to the Court’s precedents requiring that racial classifications be ‘temporary,’ Croson, 488 U. S., at 510 (plurality opinion of O’Connor, J.), the petitioner in Grutter, joined by the United States, argued that race-based affirmative action in higher education could continue no longer. See Brief for Petitioner 21–22, 30–31, 33, 42, Brief for United States 26–27, in Grutter v. Bollinger, O. T. 2002, No. 02–241.
The Grutter Court rejected those arguments for ending race-based affirmative action in higher education in 2003. But in doing so, the Court struck a careful balance. The Court ruled that narrowly tailored race-based affirmative action in higher education could continue for another generation. But the Court also explicitly rejected any ’permanent justification for racial preferences,’ and therefore ruled that race-based affirmative action in higher education could continue only for another generation. 539 U. S., at 342–343.
Harvard and North Carolina would prefer that the Court now ignore or discard 25-year limit on race-based affirmative action in higher education, or treat it as a mere aspiration. But the 25-year limit constituted an important part of Justice O’Connor’s nuanced opinion for the Court in Grutter. Indeed, four of the separate opinions in Grutter discussed the majority opinion’s 25-year limit, which belies any suggestion that the Court’s reference to it was insignificant or not carefully considered. In short, the Court in Grutter expressly recognized the serious issues raised by racial classifications—particularly permanent or long-term racial classifications. And the Court ‘assure[d] all citizens’ throughout America that ‘the deviation from the norm of equal treatment’ in higher education could continue for another generation, and only for another generation. Ibid. [internal quotation marks omitted].
A generation has now passed since Grutter, and about 50 years have gone by since the era of Bakke and DeFunis v. Odegaard, 416 U. S. 312 (1974), when race-based affirmative action programs in higher education largely began. In light of the Constitution’s text, history, and precedent, the Court’s decision today appropriately respects and abides by Grutter’s explicit temporal limit on the use of race-based affirmative action in higher education.”