Examining Noem v. Vasquez Perdomo Through the Students for Fair Admissions Equal Protection Framework

by Emmy Blane, Associate Member, University of Cincinnati Law Review Vol. 94

I. Introduction

In 2023, the Supreme Court of the United States delivered a landmark decision in Students for Fair Admissions v. Harvard College (“SFFA”).¹ By setting forth significantly narrow confines for the constitutionality of race-based decision-making in government action under the Fourteenth Amendment, the Court altered the way in which universities could consider applicants’ race as a relevant factor in admissions.² Since President Trump took office in 2025, the federal government has enforced the Court’s notion that race cannot be considered in government actors’ decision-making.³ In the September 2025 case of Noem v. Vasquez Perdomo, the Court granted the federal government’s application for stay pending appeal of the lower courts’ order enjoining the federal government from considering individuals’ apparent race or ethnicity as a relevant factor in forming reasonable suspicion for immigration stops and arrests.⁴

This Article examines Noem v. Vasquez Perdomo through an Equal Protection lens by applying the elements for race-based decision-making in government action set forth in the Court’s SFFA decision. Part II summarizes Noem v. Vasquez Perdomo, Equal Protection Clause jurisprudence, and the SFFA decision. Part III applies the SFFA elements to Noem v. Vasquez Perdomo, in which the federal government uses apparent race or ethnicity as a relevant factor in forming reasonable suspicion in immigration investigations. Part III ultimately argues that the government’s race-based immigration enforcement is unconstitutional pursuant to SFFA. Part IV briefly summarizes the Court’s current stance on race-based considerations in government action.

II. Background

A. Noem v. Vasquez Perdomo

Noem v. Vasquez Perdomo is a current class action litigation in which the named plaintiffs, five individuals and three membership organizations, allege that the federal government is using unlawful tactics to achieve its immigration-related arrest quotas in violation of the Fourth and Fifth Amendments and federal statutes.⁵ The named, individual plaintiffs are California residents of Latino ethnicity who were arrested by federal immigration enforcement agents at bus stops and workplaces.⁶ The plaintiffs are comprised of two classes: the “Stop/Arrest Plaintiffs” and the “Access/Detention Plaintiffs.”⁷ Both classes are seeking declaratory and injunctive relief, as well as relief under the Administrative Procedure Act, for themselves and others who are similarly situated.⁸ This Article focuses on the Stop/Arrest class, which specifically alleges that the government has demonstrated a policy, pattern, and practice of stopping individuals without reasonable suspicion that they are unlawfully in the United States, as the Fourth Amendment demands.⁹

The Central District of California granted the Stop/Arrest Plaintiffs’ Ex Parte Application for a Temporary Restraining Order (“TRO”).¹⁰ As a result, the court enjoined the government from conducting stops unless officers have reasonable suspicion that the person they wish to stop is in violation of United States immigration law.¹¹ In particular, the court held that the defendants may not solely rely on the following factors to form reasonable suspicion for a stop, alone or in combination, except as permitted by law: i) apparent race or ethnicity, ii) speaking Spanish or speaking English with an accent, iii) presence at a particular location (e.g. bus stop, car wash, tow yard, day laborer pick up site, agricultural site, etc.), or iv) the type of work one does.¹²

The government appealed to the Ninth Circuit, which affirmed the district court’s decision.¹³ The government then applied to the Supreme Court of the United States for stay of the TRO pending appeal.¹⁴

In a shadow docket decision, featuring Justice Kavanaugh’s concurring opinion and Justice Sotomayor’s dissent, the Court granted the government’s application for stay.¹⁵ Justice Kavanaugh found that apparent ethnicity alone cannot provide a basis for reasonable suspicion, but it can be a relevant factor considered among other factors, including the locations in which undocumented persons tend to gather and work and whether the individuals speak fluent English.¹⁶ Explaining that these circumstances, when considered together, constitute reasonable suspicion of illegal presence in the United States, Justice Kavanaugh found that the government demonstrated a fair prospect of success on the merits and voted to grant the government’s application for stay.¹⁷ This decision pauses the district court’s injunction and allows law enforcement to continue conducting immigration stops and arrests based on individuals’ apparent race or ethnicity, language, location, and workplace while an appeal on the merits of the plaintiffs’ constitutional challenges pends in the Ninth Circuit and a disposition of a petition for certiorari pends in the Supreme Court of the United States.¹⁸

B. Equal Protection Clause and Strict Scrutiny

The Fourteenth Amendment prohibits states from denying any person within its jurisdiction the equal protection of the laws.¹⁹ In Strauder v. West Virginia, the Court ruled that the Equal Protection Clause of the Fourteenth Amendment prohibits state government actors from discriminatorily applying state laws based on individuals’ race.²⁰ In that case, the Court famously inquired,

“What is this but declaring that the law in the States shall be the same for the black as for the white; that all persons, whether colored or white, shall stand equal before the laws of the States, and, in regard to [people of color], for whose protection the amendment was primarily designed, that no discrimination shall be made against them by law because of their color?”²¹

Several decades later in Bolling v. Sharpe, the Supreme Court extended the equal protection doctrine to federal government actions through the Fifth Amendment’s Due Process Clause.²²

When reviewing violations of the Equal Protection Clause, the Supreme Court analyzes cases under differing tiers of scrutiny depending on the type of government discrimination.²³ In U.S. v. Carolene Products, the Supreme Court first introduced the idea of applying “strict scrutiny” when reviewing cases of government discrimination based on race or national origin.²⁴ In footnote four of that decision, the Supreme Court wrote, “[P]rejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry.”²⁵ Since then, the Supreme Court has articulated that for race or national origin-based classifications to survive this “more searching judicial inquiry,” otherwise known as strict scrutiny, the action must be a narrowly tailored (necessary) measure that furthers a compelling governmental interest.²⁶

The Court traditionally defers to the executive branch’s national security concerns, especially in immigration and foreign affairs cases.²⁷ For example, in the 2018 Trump v. Hawaii case which involved federal government policies that restricted individuals’ entry into the United States from Muslim-majority countries, the Court found that the government’s interest in enforcing counter-terrorism objectives prevailed over the plaintiffs’ constitutional and statutory challenges.²⁸ However, the Court responds differently to national security arguments when race-based immigration enforcement inside the United States is concerned.²⁹ In Trump v. Hawaii, the Court overruled Korematsu v. United States, declaring that it was unconstitutional for the government to detain U.S. citizens of Japanese descent during war time solely because of their race.³⁰

C. Students for Fair Admissions, Inc. v. President & Fellows of Harvard College

In SFFA v. Harvard, the plaintiffs argued that Harvard and the University of North Carolina’s (“UNC”) race-based admissions programs (commonly referred to as affirmative action) violated Title VI of the Civil Rights Act of 1964 and the Equal Protection Clause of the Fourteenth Amendment, respectively.³¹ The Court struck down Harvard and UNC’s admissions processes, finding that the universities’ race-based decision making failed to comply with the following narrow confines: the government action must comply with strict scrutiny, race must not operate as a stereotype or as a negative, and the racial classifications must include a logical endpoint.³²

1. Government Actors’ Use of Race-Based Classifications Must Comply With Strict Scrutiny

The Court ruled that for race-based considerations to survive strict scrutiny, the government’s asserted interests must be measurable and concrete to allow courts to determine when the goals are reached and, thus, when the “perilous remedy of racial preferences may cease[.]”³³ However, the Court’s precedent prohibits the use of a quota system to satisfy this burden.³⁴ The Court also found that the universities’ asserted interests did not align with those that the court had traditionally considered compelling, such as preventing physical harm and compensating for past government discrimination.³⁵ Even if the Court had found the asserted interests compelling, it ruled that the universities’ consideration of applicants’ race in admissions was not narrowly tailored to achieve their interests, emphasizing that “[r]acial classifications are simply too pernicious to permit any but the most exact connection between justification and classification.”³⁶ For these reasons, the Court held that the universities’ race-conscious admissions did not survive strict scrutiny.³⁷

2. Race Must Never Operate as a Stereotype or Negative

Next, the Court ruled that race may never be used as a stereotype or as a negative.³⁸ For the stereotype prong, the Court explained that it has consistently rejected the assertion that “members of the same racial group—regardless of their age, education, economic status, or the community in which they live—think alike,” as well as the notion that the government can implement classifications of those “who may have little in common with one another but the color of their skin.”³⁹ Additionally, the Court held that government action which uses individuals’ race against them, or as a negative, is impermissible because a benefit provided to one group of people, but not to others, necessarily benefits the former group and disadvantages the latter.⁴⁰ The Court ruled that these are the “twin commands” of the Equal Protection Clause.⁴¹

3. Race-based Classifications Must Include a Logical Endpoint

Finally, the Court held that the government’s use of race-based considerations must have a logical endpoint.⁴² This concept originated from Justice O’Connor’s assertion in Grutter v. Bollinger that “[e]nshrining a permanent justification for racial preferences would offend this fundamental equal protection principle.” Justice O’Connor hypothesized that twenty-five years after her 2003 decision in Grutter, the use of racial preferences would not be necessary to further the government’s interests, which informed the Court’s decision to require the government to determine an endpoint for the constitutional use of race-based classifications under the Equal Protection Clause of the Fourteenth Amendment.⁴³

Purportedly motivating the Court’s decision in SFFA was the assertion that “[e]liminating racial discrimination means eliminating all of it.”⁴⁴ As such, the Court ruled that the Equal Protection Clause of the Fourteenth Amendment was “universal in its application” and that “[t]he guarantee of equal protection cannot mean one thing when applied to one individual and something else when applied to a person of another color.”⁴⁵

III. Discussion

A. SFFA Elements Applied to Noem v. Vasquez Perdomo

The same Court that decided that universities could not participate in race-conscious admissions in 2023 permitted the federal government in the 2025 case of Noem v. Vasquez Perdomo to continue to use individuals’ apparent race or ethnicity as a basis for reasonable suspicion of their unauthorized presence in the United States.⁴⁶ Applying the SFFA elements to the government’s consideration of race or ethnicity in immigration enforcement demonstrates that the government action in Noem v. Vasquez Perdomo is unconstitutional under the Court’s Equal Protection Clause jurisprudence.

1. The Government’s Immigration Tactics Fail Strict Scrutiny

The government’s asserted interest in utilizing individuals’ apparent race or ethnicity, location and workplace, and ability to speak English to form reasonable suspicion is to “enforce immigration laws by detaining and removing [undocumented persons.]”⁴⁷ This asserted interest includes a measurable standard by nature, as courts could refer to records of how many people had been detained and removed from the United States. However, the White House and the Department of Homeland Security imposed a quota of 3,000 immigration-related arrests per day, adding that there would be consequences if immigration agents did not meet this standard.⁴⁸ Implementing a quota would be a fatal factor under strict scrutiny.⁴⁹

Next, the Court would likely find that enforcing immigration law is a compelling interest.⁵⁰ The main issue is whether the government’s employed means––arresting 3,000 persons of apparent Latino ethnicity per day––are narrowly tailored to achieve its asserted interests. One person associated with Immigration and Customs Enforcement (“ICE”) stated, “[a]ll that matters is numbers, pure numbers. Quantity over quality.”⁵¹ Former ICE Director John Sandweg reported that the agency’s ability to focus on undocumented persons who have committed serious crimes is hindered because agents now must spend time stopping as many people of Latino origin as possible to meet the quotas, rather than spending extensive time on one arrest that significantly impacts public safety.⁵² In fact, the New York Times disclosed that at least fifteen U.S. citizens have been arrested or detained since January.⁵³

For example, Andrea Velez, a U.S. citizen, had been dropped off at work in downtown Los Angeles when federal agents arrested her without asking for her identification or providing justification.⁵⁴ Her mother, who witnessed the incident stated, “The only thing wrong with her…was the color of her skin.”⁵⁵ This illustrates that arresting 3,000 people per day on the basis of their apparent race, workplace, location, and ability to speak English not only results in the arrests of U.S. citizens, but also undermines agents’ ability to investigate serious crimes related to immigration.

Returning to the Court’s directive in SFFA––that only “the most exact connection between justification and classification” permits race-based considerations in government action––it is clear that the government’s tactics for making widespread arrests is not narrowly tailored to achieve its interest of enforcing immigration laws by detaining and removing undocumented persons. Accordingly, the government’s race/national origin-based considerations in immigration investigations likely fail strict scrutiny.

2. The Government is Using Race as a Stereotype and as a Negative

By associating people of Latino origin with certain occupations and gathering places––and ultimately with illegal presence in the United States––the government is utilizing race as a stereotype.⁵⁶ White House advisor Stephen Miller instructed ICE to focus on Home Depot stores and 7-Eleven convenience stores to increase its arrest numbers.⁵⁷ In the month of June, federal agents raided Home Depot stores in at least fifteen cities in California alone and at least nine car washes in five days.⁵⁸ The fact that federal agents have arrested U.S. citizens and valid visa holders at these locations violates the Court’s demand that the government may not create classifications of individuals “who may have little in common with one another but the color of their skin.”⁵⁹

Additionally, the government is using individuals’ race or ethnicity against them, as “apparent race or ethnicity” is a relevant factor that may provide agents with reasonable suspicion to stop and arrest individuals.⁶⁰ This consideration clearly benefits groups of people whose skin color does not lead officers to believe that they are of Latino origin, while harming those––by giving officers a reason to arrest them––who look like they could be of Latino origin. According to the Court in SFFA, such race-conscious government action fails the twin commands of the Equal Protection Clause.

3. The Government’s Use of Race or Ethnicity Has an Unknown Endpoint

At this time, government actors have not stated when they plan to cease their use of race-based decision-making in immigration efforts. Would it be once the government achieves its stated goal of deporting 1 million immigrants each year?⁶¹ Or would it be once the government feels that it has enforced immigration laws to its satisfaction? Indefinitely? It is currently unclear, but if this government action were challenged on Equal Protection grounds, the government would have to provide a logical endpoint to comply with the Court’s ruling in SFFA that employing a permanent justification for racial preferences violates the Equal Protection Clause.

4. Noem v. Vasquez Perdomo Fails the SFFA Test

The government’s use of apparent race or ethnicity as a relevant factor for reasonable suspicion in immigration investigations is likely unconstitutional pursuant to the Court’s decision in SFFA. Specifically, the government’s quota system of arrests per day is likely a fatal factor under strict scrutiny. Regardless, the government’s tactics are not narrowly tailored to achieve its asserted compelling interest, which is crucial for a government action to survive strict scrutiny. Additionally, using apparent race or ethnicity to inform federal agents of who is eligible for immigration-related arrests necessarily operates as a stereotype and as a negative, rendering this action impermissible under SFFA. The government would also have to state a logical endpoint for its use of race-based classifications to be constitutional. Although that endpoint is currently unclear, the government action would fail SFFA-styled strict scrutiny under the Court’s first two requirements.

The government would likely argue that it overcomes strict scrutiny through the Court’s well-known national security exception.⁶² However, unlike the visa restriction policy in Trump v. Hawaii in which the Court deferred to the government, the immigration enforcement policy in Noem v. Vasquez Perdomo is facially discriminatory on the basis of race or ethnicity and overbroad in that it includes U.S. citizens in its application.⁶³ Also, individuals’ liberty interests are at stake when they can be arrested and detained primarily because of their apparent race or ethnicity, which bolsters their constitutional interests.⁶⁴ Additionally, the government could continue enforcing immigration laws and achieve its compelling interest in a more narrowly tailored manner without utilizing apparent race or ethnicity as a relevant factor. Accordingly, application of the SFFA elements to the government’s use of apparent race or ethnicity as a relevant factor in forming reasonable suspicion for individuals’ undocumented presence in the United States demonstrates that the government action is unconstitutional under the Equal Protection Clause.

IV. Conclusion

In SFFA, the Supreme Court set forth significantly narrow restrictions for race-conscious considerations in government action to be constitutional under the Fourteenth Amendment’s Equal Protection Clause: they must pass strict scrutiny, they must not use race as a stereotype or negative, and, at some point, they must end.⁶⁵ If the federal government’s use of apparent race or ethnicity in conducting immigration investigations were challenged on Equal Protection grounds, it would not pass constitutional muster when examined under the Court’s SFFA criteria. This case begs the question of whether the Supreme Court would be consistent in its application of strict scrutiny. If it is unconstitutional for universities to practice race-conscious admissions, then surely it is unconstitutional for the federal government to rely on apparent race or ethnicity as a relevant factor in immigration investigations. For, in the Court’s own words, “[t]he guarantee of equal protection cannot mean one thing when applied to one individual and something else when applied to a person of another color.”⁶⁶

Cover Photo by Tingey Injury Law Firm on Unsplash

Emmy Blane

References

1
Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 600 U.S. 181 (2023).
2
Id. at 213.
3
Exec. Order No. 14,173, 90 Fed. Reg. 8633 (Jan. 21, 2025); Exec. Order No. 14,151, 90 Fed. Reg. 8339 (Jan. 20, 2025).
4
Noem v. Vasquez Perdomo, No. 25A169, 2025 WL 2585637, at *1 (U.S. Sept. 8, 2025) (mem.).
5
Complaint, ¶¶ 8, 220, 224, 233, 236, 241, 244, 247, Vasquez Perdomo v. Noem, No. 2:25-cv-05605-MEMF-SP (C.D. Cal. July 2, 2025).
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Id. ¶¶ 12–18.
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Id. ¶ 8.
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9
Id. ¶¶ 216–20.
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Order Granting Plaintiffs’ Ex Parte Applications for Temporary Restraining Order and Order to Show Cause Regarding Preliminary Injunction, Vasquez Perdomo v. Noem, No. 2:25-cv-05605-MEMF-SP, at 50 (C.D. Cal July 11, 2025).
11
Id.
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13
Vasquez Perdomo v. Noem, 148 F.4th 656, 690 (9th Cir. 2025).
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Noem v. Vasquez Perdomo, No. 25A169, 2025 WL 2585637, at *1 (U.S. Sept. 8, 2025) (mem.).
15
Id. The shadow, or emergency, docket consists of applications for immediate action from the court. Emergency Docket, SCOTUS Blog, https://www.scotusblog.com/case-files/emergency/emergency-docket-2024/ [https://perma.cc/9SSV-JTE2] (last visited Oct. 20, 2025). The Court often resolves cases on the shadow docket after minimal briefing and no oral arguments and usually without issuing signed orders. Id.
16
Noem v. Vasquez Perdomo, No. 25A169, 2025 WL 2585637, at *3 (U.S. Sept. 8, 2025) (Kavanaugh, J., concurring in grant of stay).
17
Id. at *5.
18
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19
U.S. Const. amend. XIV, § 1.
20
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21
Id. at 307.
22
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48
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49
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56
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58
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Id. ¶ 148–64; Nidia Cavazos, Americans Detained During Immigration Enforcement Speak Out About Treatment by Federal Agents, CBS News (Sept. 23, 2025), https://www.cbsnews.com/news/us-citizens-arrested-immigration-enforcement-treatment-agents/[https://perma.cc/BRG5-K3ZL].
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Noem v. Vasquez Perdomo, No. 25A169, 2025 WL 2585637, at *3 (U.S. Sept. 8, 2025) (Kavanaugh, J., concurring in grant of stay).
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62
Trump v. Hawaii, 585 U.S. 667, 703–04 (2018).
63
Id. at 706; Noem v. Vasquez Perdomo, No. 25A169, 2025 WL 2585637, at *1-3 (U.S. Sept. 8, 2025) (Kavanaugh, J., concurring in grant of stay); Complaint ¶ 148–64, Vasquez Perdomo v. Noem, No. 2:25-cv-05605-MEMF-SP (C.D. Cal. July 2, 2025); Cavazos, supra note 59.
64
United States v. Carolene Products Co., 304 U.S. 144, 155 n.4 (1938).
65
Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 600 U.S. 181, 213 (2023).
66
Id. at 206.