Ipsofactoj.com: International Cases  Part 11 Case 14 [USSC]
SUPREME COURT OF THE UNITED STATES
- vs -
23 JUNE 2003
Chief Justice Rehnquist
(delivered the opinion of the Court)
We granted certiorari in this case to decide whether “the University of Michigan’s use of racial preferences in undergraduate admissions violate[s] the Equal Protection Clause of the Fourteenth Amendment, Title VI of the Civil Rights Act of 1964 (42 U.S.C. § 2000d), or 42 U.S.C. § 1981.” Brief for Petitioners. Because we find that the manner in which the University considers the race of applicants in its undergraduate admissions guidelines violates these constitutional and statutory provisions, we reverse that portion of the District Court’s decision upholding the guidelines.
Petitioners Jennifer Gratz and Patrick Hamacher both applied for admission to the University of Michigan’s (University) College of Literature, Science, and the Arts (LSA) as residents of the State of Michigan. Both petitioners are Caucasian. Gratz, who applied for admission for the fall of 1995, was notified in January of that year that a final decision regarding her admission had been delayed until April. This delay was based upon the University’s determination that, although Gratz was “‘well qualified,’” she was “‘less competitive than the students who ha[d] been admitted on first review.’” App. to Pet. for Cert. 109a. Gratz was notified in April that the LSA was unable to offer her admission. She enrolled in the University of Michigan at Dearborn, from which she graduated in the spring of 1999.
Hamacher applied for admission to the LSA for the fall of 1997. A final decision as to his application was also postponed because, though his “‘academic credentials [were] in the qualified range, they [were] not at the level needed for first review admission.’” Ibid. Hamacher’s application was subsequently denied in April 1997, and he enrolled at Michigan State University.
In October 1997, Gratz and Hamacher filed a lawsuit in the United States District Court for the Eastern District of Michigan against the University of Michigan, the LSA, James Duderstadt, and Lee Bollinger. Petitioners’ complaint was a class-action suit alleging “violations and threatened violations of the rights of the plaintiffs and the class they represent to equal protection of the laws under the Fourteenth Amendment ...., and for racial discrimination in violation of 42 U.S.C. § 1981 1983, and 2000d et seq.” App. 33. Petitioners sought, inter alia, compensatory and punitive damages for past violations, declaratory relief finding that respondents violated petitioners’ “rights to nondiscriminatory treatment,” an injunction prohibiting respondents from “continuing to discriminate on the basis of race in violation of the Fourteenth Amendment,” and an order requiring the LSA to offer Hamacher admission as a transfer student. Id., at 40.
The District Court granted petitioners’ motion for class certification after determining that a class action was appropriate pursuant to Federal Rule of Civil Procedure 23(b)(2). The certified class consisted of “those individuals who applied for and were not granted admission to the College of Literature, Science and the Arts of the University of Michigan for all academic years from 1995 forward and who are members of those racial or ethnic groups, including Caucasian, that defendants treated less favorably on the basis of race in considering their application for admission.” App. 70—71. And Hamacher, whose claim the District Court found to challenge a “‘practice of racial discrimination pervasively applied on a class wide basis,’” was designated as the class representative. Id., at 67, 70. The court also granted petitioners’ motion to bifurcate the proceedings into a liability and damages phase. Id., at 71. The liability phase was to determine “whether [respondents’] use of race as a factor in admissions decisions violates the Equal Protection Clause of the Fourteenth Amendment to the Constitution.” Id., at 70.
The University has changed its admissions guidelines a number of times during the period relevant to this litigation, and we summarize the most significant of these changes briefly. The University’s Office of Undergraduate Admissions (OUA) oversees the LSA admissions process. In order to promote consistency in the review of the large number of applications received, the OUA uses written guidelines for each academic year. Admissions counselors make admissions decisions in accordance with these guidelines.
OUA considers a number of factors in making admissions decisions, including high school grades, standardized test scores, high school quality, curriculum strength, geography, alumni relationships, and leadership. OUA also considers race. During all periods relevant to this litigation, the University has considered African-Americans, Hispanics, and Native Americans to be “under-represented minorities,” and it is undisputed that the University admits “virtually every qualified .... applicant” from these groups. App. to Pet. for Cert. 111a.
During 1995 and 1996, OUA counselors evaluated applications according to grade point average combined with what were referred to as the “SCUGA” factors. These factors included
the quality of an applicant’s high school (S),
the strength of an applicant’s high school curriculum (C),
an applicant’s unusual circumstances (U),
an applicant’s geographical residence (G), and
an applicant’s alumni relationships (A).
After these scores were combined to produce an applicant’s “GPA 2” score, the reviewing admissions counselors referenced a set of “Guidelines” tables, which listed GPA 2 ranges on the vertical axis, and American College Test/Scholastic Aptitude Test (ACT/SAT) scores on the horizontal axis. Each table was divided into cells that included one or more courses of action to be taken, including admit, reject, delay for additional information, or postpone for reconsideration.
In both years, applicants with the same GPA 2 score and ACT/SAT score were subject to different admissions outcomes based upon their racial or ethnic status. For example, as a Caucasian in-state applicant, Gratz’s GPA 2 score and ACT score placed her within a cell calling for a postponed decision on her application. An in-state or out-of-state minority applicant with Gratz’s scores would have fallen within a cell calling for admission.
In 1997, the University modified its admissions procedure. Specifically, the formula for calculating an applicant’s GPA 2 score was restructured to include additional point values under the “U” category in the SCUGA factors. Under this new system, applicants could receive points for under-represented minority status, socioeconomic disadvantage, or attendance at a high school with a predominantly under-represented minority population, or under-representation in the unit to which the student was applying (for example, men who sought to pursue a career in nursing). Under the 1997 procedures, Hamacher’s GPA 2 score and ACT score placed him in a cell on the in-state applicant table calling for postponement of a final admissions decision. An under-represented minority applicant placed in the same cell would generally have been admitted.
Beginning with the 1998 academic year, the OUA dispensed with the Guidelines tables and the SCUGA point system in favor of a “selection index,” on which an applicant could score a maximum of 150 points. This index was divided linearly into ranges generally calling for admissions dispositions as follows:
(admit or postpone)
(postpone or admit)
(delay or postpone)
74 and below
(delay or reject)
Each application received points based on high school grade point average, standardized test scores, academic quality of an applicant’s high school, strength or weakness of high school curriculum, in-state residency, alumni relationship, personal essay, and personal achievement or leadership. Of particular significance here, under a “miscellaneous” category, an applicant was entitled to 20 points based upon his or her membership in an under-represented racial or ethnic minority group. The University explained that the “‘development of the selection index for admissions in 1998 changed only the mechanics, not the substance of how race and ethnicity were considered in admissions.’” App. to Pet. for Cert. 116a.
In all application years from 1995 to 1998, the guidelines provided that qualified applicants from under-represented minority groups be admitted as soon as possible in light of the University’s belief that such applicants were more likely to enroll if promptly notified of their admission. Also from 1995 through 1998, the University carefully managed its rolling admissions system to permit consideration of certain applications submitted later in the academic year through the use of “protected seats.” Specific groups – including athletes, foreign students, ROTC candidates, and under-represented minorities – were “protected categories” eligible for these seats. A committee called the Enrollment Working Group (EWG) projected how many applicants from each of these protected categories the University was likely to receive after a given date and then paced admissions decisions to permit full consideration of expected applications from these groups. If this space was not filled by qualified candidates from the designated groups toward the end of the admissions season, it was then used to admit qualified candidates remaining in the applicant pool, including those on the waiting list.
During 1999 and 2000, the OUA used the selection index, under which every applicant from an under-represented racial or ethnic minority group was awarded 20 points. Starting in 1999, however, the University established an Admissions Review Committee (ARC), to provide an additional level of consideration for some applications. Under the new system, counselors may, in their discretion, “flag” an application for the ARC to review after determining that the applicant
is academically prepared to succeed at the University,
has achieved a minimum selection index score, and
possesses a quality or characteristic important to the University’s composition of its freshman class, such as high class rank, unique life experiences, challenges, circumstances, interests or talents, socioeconomic disadvantage, and under-represented race, ethnicity, or geography.
After reviewing “flagged” applications, the ARC determines whether to admit, defer, or deny each applicant.
The parties filed cross-motions for summary judgment with respect to liability. Petitioners asserted that the LSA’s use of race as a factor in admissions violates Title VI of the Civil Rights Act of 1964, 78 Stat. 252, 42 U.S.C. § 2000d and the Equal Protection Clause of the Fourteenth Amendment. Respondents relied on Justice Powell’s opinion in Regents of Univ. of Cal. v Bakke, 438 U.S. 265 (1978), to respond to petitioners’ arguments. As discussed in greater detail in the Court’s opinion in Grutter v Bollinger, post, at 10—13, Justice Powell, in Bakke, expressed the view that the consideration of race as a factor in admissions might in some cases serve a compelling government interest. See 438 U.S., at 317. Respondents contended that the LSA has just such an interest in the educational benefits that result from having a racially and ethnically diverse student body and that its program is narrowly tailored to serve that interest. Respondent-intervenors asserted that the LSA had a compelling interest in remedying the University’s past and current discrimination against minorities.
The District Court began its analysis by reviewing this Court’s decision in Bakke. See 122 F.Supp. 2d 811, 817 (ED Mich. 2001). Although the court acknowledged that no decision from this Court since Bakke has explicitly accepted the diversity rationale discussed by Justice Powell, see 122 F.Supp. 2d, at 820—821, it also concluded that this Court had not, in the years since Bakke, ruled out such a justification for the use of race. 122 F.Supp. 2d, at 820—821. The District Court concluded that respondents and their amici curiae had presented “solid evidence” that a racially and ethnically diverse student body produces significant educational benefits such that achieving such a student body constitutes a compelling governmental interest. See id., at 822—824.
The court next considered whether the LSA’s admissions guidelines were narrowly tailored to achieve that interest. See id., at 824. Again relying on Justice Powell’s opinion in Bakke, the District Court determined that the admissions program the LSA began using in 1999 is a narrowly tailored means of achieving the University’s interest in the educational benefits that flow from a racially and ethnically diverse student body. See 122 F.Supp. 2d, at 827. The court emphasized that the LSA’s current program does not utilize rigid quotas or seek to admit a predetermined number of minority students. See ibid. The award of 20 points for membership in an under-represented minority group, in the District Court’s view, was not the functional equivalent of a quota because minority candidates were not insulated from review by virtue of those points. See id., at 828. Likewise, the court rejected the assertion that the LSA’s program operates like the two-track system Justice Powell found objectionable in Bakke on the grounds that LSA applicants are not competing for different groups of seats. See 122 F. Supp. 2d, at 828—829. The court also dismissed petitioners’ assertion that the LSA’s current system is nothing more than a means by which to achieve racial balancing. See id., at 831. The court explained that the LSA does not seek to achieve a certain proportion of minority students, let alone a proportion that represents the community. See ibid.
The District Court found the admissions guidelines the LSA used from 1995 through 1998 to be more problematic. In the court’s view, the University’s prior practice of “protecting” or “reserving” seats for under-represented minority applicants effectively kept non-protected applicants from competing for those slots. See id., at 832. This system, the court concluded, operated as the functional equivalent of a quota and ran afoul of Justice Powell’s opinion in Bakke. See 122 F.Supp. 2d, at 832.
Based on these findings, the court granted petitioners’ motion for summary judgment with respect to the LSA’s admissions programs in existence from 1995 through 1998, and respondents’ motion with respect to the LSA’s admissions programs for 1999 and 2000. See id., at 833. Accordingly, the District Court denied petitioners’ request for injunctive relief. See id., at 814.
The District Court issued an order consistent with its rulings and certified two questions for interlocutory appeal to the Sixth Circuit pursuant to 28 U.S.C. § 1292(b). Both parties appealed aspects of the District Court’s rulings, and the Court of Appeals heard the case en banc on the same day as Grutter v Bollinger. The Sixth Circuit later issued an opinion in Grutter, upholding the admissions program used by the University of Michigan Law School, and the petitioner in that case sought a writ of certiorari from this Court. Petitioners asked this Court to grant certiorari in this case as well, despite the fact that the Court of Appeals had not yet rendered a judgment, so that this Court could address the constitutionality of the consideration of race in university admissions in a wider range of circumstances. We did so. See 537 U.S. 1044 (2002).
As they have throughout the course of this litigation, petitioners contend that the University’s consideration of race in its undergraduate admissions decisions violates §1 of the Equal Protection Clause of the Fourteenth Amendment, Title VI, and 42 U.S.C. § 1981. We consider first whether petitioners have standing to seek declaratory and injunctive relief, and, finding that they do, we next consider the merits of their claims.
Although no party has raised the issue, Justice Stevens argues that petitioners lack Article III standing to seek injunctive relief with respect to the University’s use of race in undergraduate admissions. He first contends that because Hamacher did not “actually appl[y] for admission as a transfer student[,] [h]is claim of future injury is at best ‘conjectural or hypothetical’ rather than ‘real and immediate.’” Post, at 5 (dissenting opinion). But whether Hamacher “actually applied” for admission as a transfer student is not determinative of his ability to seek injunctive relief in this case. If Hamacher had submitted a transfer application and been rejected, he would still need to allege an intent to apply again in order to seek prospective relief. If Justice Stevens means that because Hamacher did not apply to transfer, he must never really have intended to do so, that conclusion directly conflicts with the finding of fact entered by the District Court that Hamacher “intends to transfer to the University of Michigan when defendants cease the use of race as an admission preference.” App. 67.
It is well established that intent may be relevant to standing in an Equal Protection challenge.
In Clements v Fashing, 457 U.S. 957 (1982), for example, we considered a challenge to a provision of the Texas Constitution requiring the immediate resignation of certain state office-holders upon their announcement of candidacy for another office. We concluded that the plaintiff office-holders had Article III standing because they had alleged that they would have announced their candidacy for other offices were it not for the “automatic resignation” provision they were challenging. Id., at 962; accord, Turner v Fouche, 396 U.S. 346, 361—362, n.23 (1970) (plaintiff who did not own property had standing to challenge property ownership requirement for membership on school board even though there was no evidence that plaintiff had applied and been rejected); Quinn v Millsap, 491 U.S. 95, 103, n.8 (1989) (plaintiffs who did not own property had standing to challenge property ownership requirement for membership on government board even though they lacked standing to challenge the requirement “as applied”).
Likewise, in Northeastern Fla. Chapter, Associated Gen. Contractors of America v Jacksonville, 508 U.S. 656 (1993), we considered whether an association challenging an ordinance that gave preferential treatment to certain minority-owned businesses in the award of city contracts needed to show that one of its members would have received a contract absent the ordinance in order to establish standing. In finding that no such showing was necessary, we explained that “[t]he ‘injury in fact’ in an equal protection case of this variety is the denial of equal treatment resulting from the imposition of the barrier, not the ultimate inability to obtain the benefit .... And in the context of a challenge to a set-aside program, the ‘injury in fact’ is the inability to compete on an equal footing in the bidding process, not the loss of contract.” Id., at 666. We concluded that in the face of such a barrier, “[t]o establish standing, a party challenging a set-aside program like Jacksonville’s need only demonstrate that it is able and ready to bid on contracts and that a discriminatory policy prevents it from doing so on an equal basis.” Ibid.
In bringing his equal protection challenge against the University’s use of race in undergraduate admissions, Hamacher alleged that the University had denied him the opportunity to compete for admission on an equal basis. When Hamacher applied to the University as a freshman applicant, he was denied admission even though an under-represented minority applicant with his qualifications would have been admitted. See App. to Pet. for Cert. 115a. After being denied admission, Hamacher demonstrated that he was “able and ready” to apply as a transfer student should the University cease to use race in undergraduate admissions. He therefore has standing to seek prospective relief with respect to the University’s continued use of race in undergraduate admissions.
Justice Stevens raises a second argument as to standing. He contends that the University’s use of race in undergraduate transfer admissions differs from its use of race in undergraduate freshman admissions, and that therefore Hamacher lacks standing to represent absent class members challenging the latter. Post, at 5 (dissenting opinion). As an initial matter, there is a question whether the relevance of this variation, if any, is a matter of Article III standing at all or whether it goes to the propriety of class certification pursuant to Federal Rule of Civil Procedure 23(a). The parties have not briefed the question of standing versus adequacy, however, and we need not resolve the question today: Regardless of whether the requirement is deemed one of adequacy or standing, it is clearly satisfied in this case.
From the time petitioners filed their original complaint through their brief on the merits in this Court, they have consistently challenged the University’s use of race in undergraduate admissions and its asserted justification of promoting “diversity.” See, e.g., App. 38; Brief for Petitioners 13. Consistent with this challenge, petitioners requested injunctive relief prohibiting respondent “from continuing to discriminate on the basis of race.” App. 40. They sought to certify a class consisting of all individuals who were not members of an under-represented minority group who either had applied for admission to the LSA and been rejected or who intended to apply for admission to the LSA, for all academic years from 1995 forward. Id., at 35—36. The District Court determined that the proposed class satisfied the requirements of the Federal Rules of Civil Procedure, including the requirements of numerosity, commonality, and typicality. See Fed. Rule Civ. Proc. 23(a); App. 70. The court further concluded that Hamacher was an adequate representative for the class in the pursuit of compensatory and injunctive relief for purposes of Rule 23(a)(4), see App. 61—69, and found “the record utterly devoid of the presence of .... antagonism between the interests of .... Hamacher, and the members of the class which [he] seek[s] to represent,” id., at 61. Finally, the District Court concluded that petitioners’ claim was appropriate for class treatment because the University’s “‘practice of racial discrimination pervasively applied on a class wide basis.’” Id., at 67. The court certified the class pursuant to Federal Rule of Civil Procedure 23(b)(2), and designated Hamacher as the class representative. App. 70.
Justice Stevens cites Blum v Yaretsky, 457 U.S. 991 (1982), in arguing that the District Court erred. Post, at 8. In Blum, we considered a class action suit brought by Medicaid beneficiaries. The named representatives in Blum challenged decisions by the State’s Medicaid Utilization Review Committee (URC) to transfer them to lower levels of care without, in their view, sufficient procedural safeguards. After a class was certified, the plaintiffs obtained an order expanding class certification to include challenges to URC decisions to transfer patients to higher levels of care as well. The defendants argued that the named representatives could not represent absent class members challenging transfers to higher levels of care because they had not been threatened with such transfers. We agreed. We noted that “[n]othing in the record .... suggests that any of the individual respondents have been either transferred to more intensive care or threatened with such transfers.” 457 U.S., at 1001. And we found that transfers to lower levels of care involved a number of fundamentally different concerns than did transfers to higher ones. Id., at 1001—1002 (noting, for example, that transfers to lower levels of care implicated beneficiaries’ property interests given the concomitant decrease in Medicaid benefits, while transfers to higher levels of care did not).
In the present case, the University’s use of race in undergraduate transfer admissions does not implicate a significantly different set of concerns than does its use of race in undergraduate freshman admissions. Respondents challenged Hamacher’s standing at the certification stage, but never did so on the grounds that the University’s use of race in undergraduate transfer admissions involves a different set of concerns than does its use of race in freshman admissions. Respondents’ failure to allege any such difference is simply consistent with the fact that no such difference exists. Each year the OUA produces a document entitled “COLLEGE OF LITERATURE SCIENCE AND THE ARTS GUIDELINES FOR ALL TERMS,” which sets forth guidelines for all individuals seeking admission to the LSA, including freshman applicants, transfer applicants, international student applicants, and the like. See, e.g., 2 App. in No. 01—1333 etc. (CA6), pp.507—542. The guidelines used to evaluate transfer applicants specifically cross-reference factors and qualifications considered in assessing freshman applicants. In fact, the criteria used to determine whether a transfer applicant will contribute to the University’s stated goal of diversity are identical to that used to evaluate freshman applicants. For example, in 1997, when the class was certified and the District Court found that Hamacher had standing to represent the class, the transfer guidelines contained a separate section entitled “CONTRIBUTION TO A DIVERSE STUDENT BODY.” 2 id., at 531. This section explained that any transfer applicant who could “contribut[e] to a diverse student body” should “generally be admitted” even with substantially lower qualifications than those required of other transfer applicants. Ibid. (emphasis added). To determine whether a transfer applicant was capable of “contribut[ing] to a diverse student body,” admissions counselors were instructed to determine whether that transfer applicant met the “criteria as defined in Section IV of the ‘U’ category of [the] SCUGA” factors used to assess freshman applicants. Ibid. Section IV of the “U” category, entitled “Contribution to a Diverse Class,” explained that “[t]he University is committed to a rich educational experience for its students. A diverse, as opposed to a homogenous, student population enhances the educational experience for all students. To insure a diverse class, significant weight will be given in the admissions process to indicators of students contribution to a diverse class.” 1 id., at 432. These indicators, used in evaluating freshman and transfer applicants alike, list being a member of an under-represented minority group as establishing an applicant’s contribution to diversity. See 3 id., at 1133—1134, 1153—1154. Indeed, the only difference between the University’s use of race in considering freshman and transfer applicants is that all under-represented minority freshman applicants receive 20 points and “virtually” all who are minimally qualified are admitted, while “generally” all minimally qualified minority transfer applicants are admitted outright. While this difference might be relevant to a narrow tailoring analysis, it clearly has no effect on petitioners’ standing to challenge the University’s use of race in undergraduate admissions and its assertion that diversity is a compelling state interest that justifies its consideration of the race of its undergraduate applicants.
Particularly instructive here is our statement in
General Telephone Co.
of Southwest v Falcon, 457 U.S. 147 (1982), that “[i]f [defendant-employer]
used a biased testing procedure to evaluate both applicants for employment and
incumbent employees, a class action on behalf of every applicant or employee
who might have been prejudiced by the test clearly would satisfy the ....
requirements of Rule 23(a).” Id., at 159, n.15 (emphasis added). Here,
the District Court found that the sole rationale the University had provided
for any of its race-based preferences in undergraduate admissions was the interest
in “the educational benefits that result from having a diverse student body.”
App. to Pet. for Cert. 8a. And petitioners argue that an interest in “diversity”
is not a compelling state interest that is ever capable of justifying
the use of race in undergraduate admissions. See, e.g., Brief for Petitioners
11—13. In sum, the same set of concerns is implicated by the University’s use
of race in evaluating all undergraduate admissions applications under the guidelines.
We therefore agree with the District Court’s carefully considered decision to
certify this class-action challenge to the University’s consideration of race
in undergraduate admissions. See App. 67 (“‘It is a singular policy .... applied
on a class wide basis’”); cf. Coopers & Lybrand v Livesay,
437 U.S. 463, 469 (1978) (“[T]he class determination generally involves considerations
that are enmeshed in the factual and legal issues comprising the plaintiff’s
cause of action” (internal quotation marks omitted)). Indeed, class action treatment
was particularly important in this case because “the claims of the individual
students run the risk of becoming moot” and the “[t]he class action vehicle
.... provides a mechanism for ensuring that a justiciable claim is before the Court.”
App. 69. Thus, we think it clear that Hamacher’s personal stake, in view
of both his past injury and the potential injury he faced at the time of certification,
demonstrates that he may maintain this class-action challenge to the University’s
use of race in undergraduate
Petitioners argue, first and foremost, that the University’s use of race in undergraduate admissions violates the Fourteenth Amendment. Specifically, they contend that this Court has only sanctioned the use of racial classifications to remedy identified discrimination, a justification on which respondents have never relied. Brief for Petitioners 15—16. Petitioners further argue that “diversity as a basis for employing racial preferences is simply too open-ended, ill-defined, and indefinite to constitute a compelling interest capable of supporting narrowly-tailored means.” Id., at 17—18, 40—41. But for the reasons set forth today in Grutter v Bollinger, post, at 15—21, the Court has rejected these arguments of petitioners.
Petitioners alternatively argue that even if the University’s interest in diversity can constitute a compelling state interest, the District Court erroneously concluded that the University’s use of race in its current freshman admissions policy is narrowly tailored to achieve such an interest. Petitioners argue that the guidelines the University began using in 1999 do not “remotely resemble the kind of consideration of race and ethnicity that Justice Powell endorsed in Bakke.” Brief for Petitioners 18. Respondents reply that the University’s current admissions program is narrowly tailored and avoids the problems of the Medical School of the University of California at Davis program (U.C. Davis) rejected by Justice Powell. They claim that their program “hews closely” to both the admissions program described by Justice Powell as well as the Harvard College admissions program that he endorsed. Brief for Respondents 32. Specifically, respondents contend that the LSA’s policy provides the individualized consideration that “Justice Powell considered a hallmark of a constitutionally appropriate admissions program.” Id., at 35. For the reasons set out below, we do not agree.
It is by now well established that “all racial classifications reviewable under the Equal Protection Clause must be strictly scrutinized.” Adarand Constructors, Inc. v Peña, 515 U.S. 200, 224 (1995). This “‘standard of review .... is not dependent on the race of those burdened or benefited by a particular classification.’” Ibid. (quoting Richmond v J. A. Croson Co., 488 U.S. 469, 494 (1989) (plurality opinion)). Thus, “any person, of whatever race, has the right to demand that any governmental actor subject to the Constitution justify any racial classification subjecting that person to unequal treatment under the strictest of judicial scrutiny.” Adarand, 515 U.S., at 224.
To withstand our strict scrutiny analysis, respondents must demonstrate that the University’s use of race in its current admission program employs “narrowly tailored measures that further compelling governmental interests.” Id., at 227. Because “[r]acial classifications are simply too pernicious to permit any but the most exact connection between justification and classification,” Fullilove v Klutznick, 448 U.S. 448, 537 (1980) (Stevens, J., dissenting), our review of whether such requirements have been met must entail “‘a most searching examination.’” Adarand, supra, at 223 (quoting Wygant v Jackson Bd. of Ed., 476 U.S. 267, 273 (1986) (plurality opinion of Powell, J.)). We find that the University’s policy, which automatically distributes 20 points, or one-fifth of the points needed to guarantee admission, to every single “under-represented minority” applicant solely because of race, is not narrowly tailored to achieve the interest in educational diversity that respondents claim justifies their program.
In Bakke, Justice Powell reiterated that “[p]referring members of any one group for no reason other than race or ethnic origin is discrimination for its own sake.” 438 U.S., at 307. He then explained, however, that in his view it would be permissible for a university to employ an admissions program in which “race or ethnic background may be deemed a ‘plus’ in a particular applicant’s file.” Id., at 317. He explained that such a program might allow for “[t]he file of a particular black applicant [to] be examined for his potential contribution to diversity without the factor of race being decisive when compared, for example, with that of an applicant identified as an Italian-American if the latter is thought to exhibit qualities more likely to promote beneficial educational pluralism.” Ibid. Such a system, in Justice Powell’s view, would be “flexible enough to consider all pertinent elements of diversity in light of the particular qualifications of each applicant.” Ibid.
Justice Powell’s opinion in Bakke emphasized the importance of considering each particular applicant as an individual, assessing all of the qualities that individual possesses, and in turn, evaluating that individual’s ability to contribute to the unique setting of higher education. The admissions program Justice Powell described, however, did not contemplate that any single characteristic automatically ensured a specific and identifiable contribution to a university’s diversity. See id., at 315. See also Metro Broadcasting, Inc. v FCC, 497 U.S. 547, 618 (1990) (O’Connor, J., dissenting) (concluding that the FCC’s policy, which “embodie[d] the related notions that a particular applicant, by virtue of race or ethnicity alone, is more valued than other applicants because [the applicant is] ‘likely to provide [a] distinct perspective,’ “impermissibly value[d] individuals” based on a presumption that “persons think in a manner associated with their race”). Instead, under the approach Justice Powell described, each characteristic of a particular applicant was to be considered in assessing the applicant’s entire application.
The current LSA policy does not provide such individualized consideration. The LSA’s policy automatically distributes 20 points to every single applicant from an “under-represented minority” group, as defined by the University. The only consideration that accompanies this distribution of points is a factual review of an application to determine whether an individual is a member of one of these minority groups. Moreover, unlike Justice Powell’s example, where the race of a “particular black applicant” could be considered without being decisive, see Bakke, 438 U.S., at 317, the LSA’s automatic distribution of 20 points has the effect of making “the factor of race .... decisive” for virtually every minimally qualified under-represented minority applicant. Ibid.
Also instructive in our consideration of the LSA’s system is the example provided in the description of the Harvard College Admissions Program, which Justice Powell both discussed in, and attached to, his opinion in Bakke. The example was included to “illustrate the kind of significance attached to race” under the Harvard College program. Id., at 324. It provided as follows:
The Admissions Committee, with only a few places left to fill, might find itself forced to choose between A, the child of a successful black physician in an academic community with promise of superior academic performance, and B, a black who grew up in an inner-city ghetto of semi-literate parents whose academic achievement was lower but who had demonstrated energy and leadership as well as an apparently abiding interest in black power. If a good number of black students much like A but few like B had already been admitted, the Committee might prefer B; and vice versa. If C, a white student with extraordinary artistic talent, were also seeking one of the remaining places, his unique quality might give him an edge over both A and B. Thus, the critical criteria are often individual qualities or experience not dependent upon race but sometimes associated with it.
[Ibid., emphasis added]
This example further demonstrates the problematic nature of the LSA’s admissions system. Even if student C’s “extraordinary artistic talent” rivaled that of Monet or Picasso, the applicant would receive, at most, five points under the LSA’s system. See App. 234—235. At the same time, every single under-represented minority applicant, including students A and B, would automatically receive 20 points for submitting an application. Clearly, the LSA’s system does not offer applicants the individualized selection process described in Harvard’s example. Instead of considering how the differing backgrounds, experiences, and characteristics of students A, B, and C might benefit the University, admissions counselors reviewing LSA applications would simply award both A and B 20 points because their applications indicate that they are African-American, and student C would receive up to 5 points for his “extraordinary talent.”
Respondents emphasize the fact that the LSA has created the possibility of an applicant’s file being flagged for individualized consideration by the ARC. We think that the flagging program only emphasizes the flaws of the University’s system as a whole when compared to that described by Justice Powell. Again, students A, B, and C illustrate the point. First, student A would never be flagged. This is because, as the University has conceded, the effect of automatically awarding 20 points is that virtually every qualified under-represented minority applicant is admitted. Student A, an applicant “with promise of superior academic performance,” would certainly fit this description. Thus, the result of the automatic distribution of 20 points is that the University would never consider student A’s individual background, experiences, and characteristics to assess his individual “potential contribution to diversity,” Bakke, supra, at 317. Instead, every applicant like student A would simply be admitted.
It is possible that students B and C would be flagged and considered as individuals. This assumes that student B was not already admitted because of the automatic 20-point distribution, and that student C could muster at least 70 additional points. But the fact that the “review committee can look at the applications individually and ignore the points,” once an application is flagged, Tr. of Oral Arg. 42, is of little comfort under our strict scrutiny analysis. The record does not reveal precisely how many applications are flagged for this individualized consideration, but it is undisputed that such consideration is the exception and not the rule in the operation of the LSA’s admissions program. See App. to Pet. for Cert. 117a (“The ARC reviews only a portion of all of the applications. The bulk of admissions decisions are executed based on selection index score parameters set by the EWG”). Additionally, this individualized review is only provided after admissions counselors automatically distribute the University’s version of a “plus” that makes race a decisive factor for virtually every minimally qualified under-represented minority applicant.
Respondents contend that “[t]he volume of applications and the presentation of applicant information make it impractical for [LSA] to use the .... admissions system” upheld by the Court today in Grutter. Brief for Respondents 6, n.8. But the fact that the implementation of a program capable of providing individualized consideration might present administrative challenges does not render constitutional an otherwise problematic system. See J.A. Croson Co., 488 U.S., at 508 (citing Frontiero v Richardson, 411 U.S. 677, 690 (1973) (plurality opinion of Brennan, J.) (rejecting “‘administrative convenience’” as a determinant of constitutionality in the face of a suspect classification)). Nothing in Justice Powell’s opinion in Bakke signaled that a university may employ whatever means it desires to achieve the stated goal of diversity without regard to the limits imposed by our strict scrutiny analysis.
We conclude, therefore, that because the University’s use of race in its current freshman admissions policy is not narrowly tailored to achieve respondents’ asserted compelling interest in diversity, the admissions policy violates the Equal Protection Clause of the Fourteenth Amendment. We further find that the admissions policy also violates Title VI and 42 U.S.C. § 1981. Accordingly, we reverse that portion of the District Court’s decision granting respondents summary judgment with respect to liability and remand the case for proceedings consistent with this opinion.
It is so ordered.
Unlike the law school admissions policy the Court upholds today in Grutter v Bollinger, post, p.1, the procedures employed by the University of Michigan’s (University) Office of Undergraduate Admissions do not provide for a meaningful individualized review of applicants. Cf. Regents of Univ. of Cal. v Bakke, 438 U.S. 265 (1978) (principal opinion of Powell, J.). The law school considers the various diversity qualifications of each applicant, including race, on a case-by-case basis. See Grutter v Bollinger, post, at 24. By contrast, the Office of Undergraduate Admissions relies on the selection index to assign every under-represented minority applicant the same, automatic 20-point bonus without consideration of the particular background, experiences, or qualities of each individual applicant. Cf. ante, at 23, 25. And this mechanized selection index score, by and large, automatically determines the admissions decision for each applicant. The selection index thus precludes admissions counselors from conducting the type of individualized consideration the Court’s opinion in Grutter, supra, at 25, requires: consideration of each applicant’s individualized qualifications, including the contribution each individual’s race or ethnic identity will make to the diversity of the student body, taking into account diversity within and among all racial and ethnic groups. Cf. ante, at 24 (citing Bakke, supra, at 324)).
On cross-motions for summary judgment, the District Court held that the admissions policy the University instituted in 1999 and continues to use today passed constitutional muster. See 122 F.Supp. 2d 811, 827 (ED Mich. 2001). In their proposed summary of undisputed facts, the parties jointly stipulated to the admission policy’s mechanics. App. to Pet. for Cert. 116a—118a. When the university receives an application for admission to its incoming class, an admissions counselor turns to a Selection Index Worksheet to calculate the applicant’s selection index score out of 150 maximum possible points – a procedure the University began using in 1998. App. 256. Applicants with a score of over 100 are automatically admitted; applicants with scores of 95 to 99 are categorized as “admit or postpone”; applicants with 90—94 points are postponed or admitted; applicants with 75—89 points are delayed or postponed; and applicants with 74 points or fewer are delayed or rejected. The Office of Undergraduate Admissions extends offers of admission on a rolling basis and acts upon the applications it has received through periodic “[m]ass [a]ction[s].” App. 256.
In calculating an applicant’s selection index score, counselors assign numerical values to a broad range of academic factors, as well as to other variables the University considers important to assembling a diverse student body, including race. Up to 110 points can be assigned for academic performance, and up to 40 points can be assigned for the other, non-academic factors. Michigan residents, for example, receive 10 points, and children of alumni receive 4. Counselors may assign an outstanding essay up to 3 points and may award up to 5 points for an applicant’s personal achievement, leadership, or public service. Most importantly for this case, an applicant automatically receives a 20 point bonus if he or she possesses any one of the following “miscellaneous” factors: membership in an under-represented minority group; attendance at a predominantly minority or disadvantaged high school; or recruitment for athletics.
In 1999, the University added another layer of review to its admissions process. After an admissions counselor has tabulated an applicant’s selection index score, he or she may “flag” an application for further consideration by an Admissions Review Committee, which is composed of members of the Office of Undergraduate Admissions and the Office of the Provost. App. to Pet. for Cert. 117a. The review committee meets periodically to discuss the files of “flagged” applicants not already admitted based on the selection index parameters. App. 275. After discussing each flagged application, the committee decides whether to admit, defer, or deny the applicant. Ibid.
Counselors may flag an applicant for review by the committee if he or she is academically prepared, has a selection index score of at least 75 (for non-Michigan residents) or 80 (for Michigan residents), and possesses one of several qualities valued by the University. These qualities include “high class rank, unique life experiences, challenges, circumstances, interests or talents, socioeconomic disadvantage, and under-represented race, ethnicity, or geography.” App. to Pet. for Cert. 117a. Counselors also have the discretion to flag an application if, notwithstanding a high selection index score, something in the applicant’s file suggests that the applicant may not be suitable for admission. App. 274. Finally, in “rare circumstances,” an admissions counselor may flag an applicant with a selection index score below the designated levels if the counselor has reason to believe from reading the entire file that the score does not reflect the applicant’s true promise. Ibid.
Although the Office of Undergraduate Admissions does assign 20 points to some “soft” variables other than race, the points available for other diversity contributions, such as leadership and service, personal achievement, and geographic diversity, are capped at much lower levels. Even the most outstanding national high school leader could never receive more than five points for his or her accomplishments – a mere quarter of the points automatically assigned to an under-represented minority solely based on the fact of his or her race. Of course, as Justice Powell made clear in Bakke, a university need not “necessarily accor[d]” all diversity factors “the same weight,” 438 U.S., at 317, and the “weight attributed to a particular quality may vary from year to year depending on the ‘mix’ both of the student body and the applicants for the incoming class,” id., at 317—318. But the selection index, by setting up automatic, predetermined point allocations for the soft variables, ensures that the diversity contributions of applicants cannot be individually assessed. This policy stands in sharp contrast to the law school’s admissions plan, which enables admissions officers to make nuanced judgments with respect to the contributions each applicant is likely to make to the diversity of the incoming class. See Grutter v Bollinger, post, at 22 (“[T]he Law School’s race-conscious admissions program adequately ensures that all factors that may contribute to student body diversity are meaningfully considered alongside race in admissions decisions”).
The only potential source of individualized consideration appears to be the Admissions Review Committee. The evidence in the record, however, reveals very little about how the review committee actually functions. And what evidence there is indicates that the committee is a kind of afterthought, rather than an integral component of a system of individualized review. As the Court points out, it is undisputed that the “‘[committee] reviews only a portion of all the applications. The bulk of admissions decisions are executed based on selection index score parameters set by the [Enrollment Working Group].’” Ante, at 26 (quoting App. to Pet for Cert. 117a). Review by the committee thus represents a necessarily limited exception to the Office of Undergraduate Admissions’ general reliance on the selection index. Indeed, the record does not reveal how many applications admissions counselors send to the review committee each year, and the University has not pointed to evidence demonstrating that a meaningful percentage of applicants receives this level of discretionary review. In addition, eligibility for consideration by the committee is itself based on automatic cut-off levels determined with reference to selection index scores. And there is no evidence of how the decisions are actually made – what type of individualized consideration is or is not used. Given these circumstances, the addition of the Admissions Review Committee to the admissions process cannot offset the apparent absence of individualized consideration from the Office of Undergraduate Admissions’ general practices.
For these reasons, the record before us does not support the conclusion that the University of Michigan’s admissions program for its College of Literature, Science, and the Arts – to the extent that it considers race – provides the necessary individualized consideration. The University, of course, remains free to modify its system so that it does so. Cf. Grutter v Bollinger, post, p. 1. But the current system, as I understand it, is a non-individualised, mechanical one. As a result, I join the Court’s opinion reversing the decision of the District Court.
[Justice Breyer joins this opinion, except for the last sentence.]
I join the Court’s opinion because I believe it correctly applies our precedents, including today’s decision in Grutter v Bollinger, post, p.___. For similar reasons to those given in my separate opinion in that case, see post, p.___ (opinion concurring in part and dissenting in part), however, I would hold that a State’s use of racial discrimination in higher education admissions is categorically prohibited by the Equal Protection Clause.
I make only one further observation. The University of Michigan’s College of Literature, Science, and the Arts (LSA) admissions policy that the Court today invalidates does not suffer from the additional constitutional defect of allowing racial “discriminat[ion] among [the] groups” included within its definition of under-represented minorities, Grutter, post, at 24 (opinion of the Court); post, at 27 (Thomas, J., concurring in part and dissenting in part), because it awards all under-represented minorities the same racial preference. The LSA policy falls, however, because it does not sufficiently allow for the consideration of non-racial distinctions among under-represented minority applicants. Under today’s decisions, a university may not racially discriminate between the groups constituting the critical mass. See ibid.; Grutter, post, at 17 (opinion of the Court) (stating that such “racial balancing .... is patently unconstitutional”). An admissions policy, however, must allow for consideration of these non-racial distinctions among applicants on both sides of the single permitted racial classification. See ante, at 24 (opinion of the Court); ante, at 1—2 (O’Connor, J., concurring).
I concur in the judgment of the Court though I do not join its opinion. I join Justice O’Connor’s opinion except insofar as it joins that of the Court. I join Part I of Justice Ginsburg’s dissenting opinion, but I do not dissent from the Court’s reversal of the District Court’s decision. I agree with Justice Ginsburg that, in implementing the Constitution’s equality instruction, government decision makers may properly distinguish between policies of inclusion and exclusion, post, at 4, for the former are more likely to prove consistent with the basic constitutional obligation that the law respect each individual equally, see U.S. Const., Amdt. 14.
(dissenting, with whom Justice Souter joins)
Petitioners seek forward-looking relief enjoining the University of Michigan from continuing to use its current race-conscious freshman admissions policy. Yet unlike the plaintiff in Grutter v Bollinger, post, p.1, the petitioners in this case had already enrolled at other schools before they filed their class-action complaint in this case. Neither petitioner was in the process of reapplying to Michigan through the freshman admissions process at the time this suit was filed, and neither has done so since. There is a total absence of evidence that either petitioner would receive any benefit from the prospective relief sought by their lawyer. While some unidentified members of the class may very well have standing to seek prospective relief, it is clear that neither petitioner does. Our precedents therefore require dismissal of the action.
Petitioner Jennifer Gratz applied in 1994 for admission to the University of Michigan’s (University) College of Literature, Science, and the Arts (LSA) as an undergraduate for the 1995—1996 freshman class. After the University delayed action on her application and then placed her name on an extended waiting list, Gratz decided to attend the University of Michigan at Dearborn instead; she graduated in 1999. Petitioner Patrick Hamacher applied for admission to LSA as an undergraduate for the 1997—1998 freshman class. After the University postponed decision on his application and then placed his name on an extended waiting list, he attended Michigan State University, graduating in 2001. In the complaint that petitioners filed on October 14, 1997, Hamacher alleged that “[h]e intends to apply to transfer [to the University of Michigan] if the discriminatory admissions system described herein is eliminated.” App. 34.
At the class certification stage, petitioners sought to have Hamacher represent a class pursuant to Federal Rule Civil Procedure23(b)(2). See App. 71, n.3. In response, Michigan contended that “Hamacher lacks standing to represent a class seeking declaratory and injunctive relief.” Id., at 63. Michigan submitted that Hamacher suffered “‘no threat of imminent future injury’” given that he had already enrolled at another undergraduate institution. Id., at 64. The District Court rejected Michigan’s contention, concluding that Hamacher had standing to seek injunctive relief because the complaint alleged that he intended to apply to Michigan as a transfer student. See id., at 67 (“To the extent that plaintiff Hamacher reapplies to the University of Michigan, he will again face the same ‘harm’ in that race will continue to be a factor in admissions”). The District Court, accordingly, certified Hamacher as the sole class representative and limited the claims of the class to injunctive and declaratory relief. See id., at 70—71.
In subsequent proceedings, the District Court held that the 1995—1998 admissions system, which was in effect when both petitioners’ applications were denied, was unlawful but that Michigan’s new 1999—2000 admissions system was lawful. When petitioners sought certiorari from this Court, Michigan did not cross-petition for review of the District Court’s judgment concerning the admissions policies that Michigan had in place when Gratz and Hamacher applied for admission in 1994 and 1996 respectively. See Brief for Respondents 5, n.7. Accordingly, we have before us only that portion of the District Court’s judgment that upheld Michigan’s new freshman admissions policy.
Both Hamacher and Gratz, of course, have standing to seek damages as compensation for the alleged wrongful denial of their respective applications under Michigan’s old freshman admissions system. However, like the plaintiff in Los Angeles v Lyons, 461 U.S. 95 (1983), who had standing to recover damages caused by “chokeholds” administered by the police in the past but had no standing to seek injunctive relief preventing future chokeholds, petitioners’ past injuries do not give them standing to obtain injunctive relief to protect third parties from similar harms. See id., at 102 (“[P]ast exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief .... if unaccompanied by any continuing, present adverse effects” (quoting O’Shea v Littleton, 414 U.S. 488, 495—496 (1974))). To seek forward-looking, injunctive relief, petitioners must show that they face an imminent threat of future injury. See Adarand Constructors, Inc. v Peña, 515 U.S. 200, 210—211 (1995). This they cannot do given that when this suit was filed, neither faced an impending threat of future injury based on Michigan’s new freshman admissions policy.
Even though there is not a scintilla of evidence that the freshman admissions program now being administered by respondents will ever have any impact on either Hamacher or Gratz, petitioners nonetheless argue that Hamacher has a personal stake in this suit because at the time the complaint was filed, Hamacher intended to apply to transfer to Michigan once certain admission policy changes occurred. See App. 34; see also Tr. of Oral Arg. 4—5.
Petitioners’ attempt to base Hamacher’s standing in this suit on a hypothetical transfer application fails for several reasons.
First, there is no evidence that Hamacher ever actually applied for admission as a transfer student at Michigan. His claim of future injury is at best “conjectural or hypothetical” rather than “real and immediate.” O’Shea v Littleton, 414 U.S., at 494 (internal quotation marks omitted); see also Lujan v Defenders of Wildlife, 504 U.S. 555, 560 (1992).
Second, as petitioners’ counsel conceded at oral argument, the transfer policy is not before this Court and was not addressed by the District Court. See Tr. of Oral Arg. 4—5 (admitting that “[t]he transfer admissions policy itself is not before you – the Court”). Unlike the University’s freshman policy, which is detailed at great length in the Joint Appendix filed with this Court, the specifics of the transfer policy are conspicuously missing from the Joint Appendix filed with this Court. Furthermore, the transfer policy is not discussed anywhere in the parties’ briefs. Nor is it ever even referenced in the District Court’s Dec. 13, 2000, opinion that upheld Michigan’s new freshman admissions policy and struck down Michigan’s old policy. Nonetheless, evidence filed with the District Court by Michigan demonstrates that the criteria used to evaluate transfer applications at Michigan differ significantly from the criteria used to evaluate freshman undergraduate applications. Of special significance, Michigan’s 2000 freshman admissions policy, for example, provides for 20 points to be added to the selection index scores of minority applicants. See ante, at 23. In contrast, Michigan does not use points in its transfer policy; some applicants, including minority and socio-economically disadvantaged applicants, “will generally be admitted” if they possess certain qualifications, including a 2.5 undergraduate grade point average (GPA), sophomore standing, and a 3.0 high school GPA. 10 Record 16 (Exh. C). Because of these differences, Hamacher cannot base his right to complain about the freshman admissions policy on his hypothetical injury under a wholly separate transfer policy. For “[i]f the right to complain of one administrative deficiency automatically conferred the right to complain of all administrative deficiencies, any citizen aggrieved in one respect could bring the whole structure of state administration before the courts for review.” Lewis v Casey, 518 U.S. 343, 358—359, n.6 (1996) (emphasis in original); see also Blum v Yaretsky, 457 U.S. 991, 999 (1982) (“[A] plaintiff who has been subject to injurious conduct of one kind [does not] possess by virtue of that injury the necessary stake in litigating conduct of another kind, although similar”).
Third, the differences between the freshman and the transfer admissions policies make it extremely unlikely, at best, that an injunction requiring respondents to modify the freshman admissions program would have any impact on Michigan’s transfer policy. See Allen v Wright, 468 U.S. 737, 751 (1984) (“[R]elief from the injury must be ‘likely’ to follow from a favorable decision”); Schlesinger v Reservists Comm. to Stop the War, 418 U.S. 208, 222 (1974) (“[T]he discrete factual context within which the concrete injury occurred or is threatened insures the framing of relief no broader than required by the precise facts to which the court’s ruling would be applied”). This is especially true in light of petitioners’ unequivocal disavowal of any request for equitable relief that would totally preclude the use of race in the processing of all admissions applications. See Tr. of Oral Arg. 14—15.
The majority asserts that petitioners “have challenged any use of race by the University in undergraduate admissions” – freshman and transfer alike. Ante, at 18, n.16 (emphasis in original). Yet when questioned at oral argument about whether petitioners’ challenge would impact both private and public universities, petitioners’ counsel stated: “Your Honor, I want to be clear about what it is that we’re arguing for here today. We are not suggesting an absolute rule forbidding any use of race under any circumstances. What we are arguing is that the interest asserted here by the University, this amorphous, ill-defined, unlimited interest in diversity is not a compelling interest.” Tr. of Oral Arg. 14 (emphasis added). In addition, when asked whether petitioners took the position that the only permissible use of race is as a remedy for past discrimination, petitioners’ lawyer stated: “I would not go that far .... [T]here may be other reasons. I think they would have to be extraordinary and rare ....” Id., at 15. Consistent with these statements, petitioners’ briefs filed with this Court attack the University’s asserted interest in “diversity” but acknowledge that race could be considered for remedial reasons. See, e.g., Brief for Petitioners 16—17.
Because Michigan’s transfer policy was not challenged by petitioners and is not before this Court, see supra, at 5, we do not know whether Michigan would defend its transfer policy on diversity grounds, or whether it might try to justify its transfer policy on other grounds, such as a remedial interest. Petitioners’ counsel was therefore incorrect in asserting at oral argument that if the University’s asserted interest in “diversity” were to be “struck down as a rationale, then the law would be [the] same with respect to the transfer policy as with respect to the original [freshman admissions] policy.” Tr. of Oral Arg. 7—8. And the majority is likewise mistaken in assuming that “the University’s use of race in undergraduate transfer admissions does not implicate a significantly different set of concerns than does its use of race in undergraduate freshman admissions.” Ante, at 16. Because the transfer policy has never been the subject of this suit, we simply do not know
whether Michigan would defend its transfer policy on “diversity” grounds or some other grounds, or
how the absence of a point system in the transfer policy might impact a narrow tailoring analysis of that policy.
At bottom, petitioners’ interest in obtaining an injunction for the benefit of younger third parties is comparable to that of the unemancipated minor who had no standing to litigate on behalf of older women in H. L. v Matheson, 450 U.S. 398, 406—407 (1981), or that of the Medicaid patients transferred to less intensive care who had no standing to litigate on behalf of patients objecting to transfers to more intensive care facilities in Blum v Yaretsky, 457 U.S., at 1001. To have standing, it is elementary that the petitioners’ own interests must be implicated. Because neither petitioner has a personal stake in this suit for prospective relief, neither has standing.
It is true that the petitioners’ complaint was filed as a class action and that Hamacher has been certified as the representative of a class, some of whose members may well have standing to challenge the LSA freshman admissions program that is presently in effect. But the fact that “a suit may be a class action .... adds nothing to the question of standing, for even named plaintiffs who represent a class ‘must allege and show that they personally have been injured, not that injury has been suffered by other, unidentified members of the class to which they belong and which they purport to represent.’” Simon v Eastern Ky. Welfare Rights Organization, 426 U.S. 26, 40, n.20 (1976) (quoting Warth v Seldin, 422 U.S. 490, 502 (1975)); see also 1 A. Conte & H. Newberg, Class Actions §2:5 (4th ed. 2002) (“[O]ne cannot acquire individual standing by virtue of bringing a class action”). Thus, in Blum, we squarely held that the interests of members of the class could not satisfy the requirement that the class representatives have a personal interest in obtaining the particular equitable relief being sought. The class in Blum included patients who wanted a hearing before being transferred to facilities where they would receive more intensive care. The class representatives, however, were in the category of patients threatened with a transfer to less intensive care facilities. In explaining why the named class representatives could not base their standing to sue on the injury suffered by other members of the class, we stated:
Respondents suggest that members of the class they represent have been transferred to higher levels of care as a result of [utilization review committee] decisions. Respondents, however, ‘must allege and show that they personally have been injured, not that injury has been suffered by other, unidentified members of the class to which they belong and which they purport to represent.’ Warth v Seldin, 422 U.S. 490, 502 (1975). Unless these individuals ‘can thus demonstrate the requisite case or controversy between themselves personally and [petitioners], “none may seek relief on behalf of himself or any other member of the class.” O’Shea v Littleton, 414 U.S. 488, 494 (1974).’ Ibid.
[457 U.S., at 1001, n.13]
Much like the class representatives in Blum, Hamacher – the sole class representative in this case – cannot meet Article III’s threshold personal-stake requirement. While unidentified members of the class he represents may well have standing to challenge Michigan’s current freshman admissions policy, Hamacher cannot base his standing to sue on injuries suffered by other members of the class.
As this case comes to us, our precedents leave us no alternative but to dismiss the writ for lack of jurisdiction. Neither petitioner has a personal stake in the outcome of the case, and neither has standing to seek prospective relief on behalf of unidentified class members who may or may not have standing to litigate on behalf of themselves. Accordingly, I respectfully dissent.
(dissenting, with whom Justice Ginsburg joins as to Part II)
I agree with Justice Stevens that Patrick Hamacher has no standing to seek declaratory or injunctive relief against a freshman admissions policy that will never cause him any harm. I write separately to note that even the Court’s new gloss on the law of standing should not permit it to reach the issue it decides today. And because a majority of the Court has chosen to address the merits, I also add a word to say that even if the merits were reachable, I would dissent from the Court’s judgment.
The Court’s finding of Article III standing rests on two propositions:
first, that both the University of Michigan’s undergraduate college’s transfer policy and its freshman admissions policy seek to achieve student body diversity through the “use of race,” ante, at 12—20, and
second, that Hamacher has standing to challenge the transfer policy on the grounds that diversity can never be a “compelling state interest” justifying the use of race in any admissions decision, freshman or transfer, ante, at 18.
The Court concludes that, because Hamacher’s argument, if successful, would seal the fate of both policies, his standing to challenge the transfer policy also allows him to attack the freshman admissions policy. Ante, at 18, n.16 (“[P]etitioners challenged any use of race by the University to promote diversity, including through the transfer policy”); ibid. (“‘[T]he University considers race for a purpose to achieve a diversity that we believe is not compelling, and if that is struck down as a rationale, then the [result] would be [the] same with respect to the transfer policy as with respect to the [freshman] admissions policy, Your Honor’” (quoting Tr. of Oral Arg. 7—8)). I agree with Justice Stevens’s critique that the Court thus ignores the basic principle of Article III standing that a plaintiff cannot challenge a government program that does not apply to him. See ante, at 6, and n. 6 (dissenting opinion).
But even on the Court’s indulgent standing theory, the decision should not go beyond a recognition that diversity can serve as a compelling state interest justifying race-conscious decisions in education. Ante, at 20 (citing Grutter v Bollinger, post, at 105—111). Since, as the Court says, “petitioners did not raise a narrow tailoring challenge to the transfer policy,” ante, at 18, n.16, our decision in Grutter is fatal to Hamacher’s sole attack upon the transfer policy, which is the only policy before this Court that he claims aggrieved him. Hamacher’s challenge to that policy having failed, his standing is presumably spent. The further question whether the freshman admissions plan is narrowly tailored to achieving student body diversity remains legally irrelevant to Hamacher and should await a plaintiff who is actually hurt by it.
The cases now contain two pointers toward the line between the valid and the unconstitutional in race-conscious admissions schemes. Grutter reaffirms the permissibility of individualized consideration of race to achieve a diversity of students, at least where race is not assigned a preordained value in all cases. On the other hand, Justice Powell’s opinion in Regents of Univ of Cal. v Bakke, 438 U.S. 265 (1978), rules out a racial quota or set-aside, in which race is the sole fact of eligibility for certain places in a class. Although the freshman admissions system here is subject to argument on the merits, I think it is closer to what Grutter approves than to what Bakke condemns, and should not be held unconstitutional on the current record.
The record does not describe a system with a quota like the one struck down in Bakke, which “insulate[d]” all non-minority candidates from competition from certain seats. Bakke, supra, at 317 (opinion of Powell, J.); see also Richmond v J. A. Croson Co., 488 U.S. 469, 496 (1989) (plurality opinion) (stating that Bakke invalidated “a plan that completely eliminated non-minorities from consideration for a specified percentage of opportunities”). The Bakke plan “focused solely on ethnic diversity” and effectively told non-minority applicants that “[n]o matter how strong their qualifications, quantitative and extracurricular, including their own potential for contribution to educational diversity, they are never afforded the chance to compete with applicants from the preferred groups for the [set-aside] special admissions seats.” Bakke, supra, at 315, 319 (opinion of Powell, J.) (emphasis in original).
The plan here, in contrast, lets all applicants compete for all places and values an applicant’s offering for any place not only on grounds of race, but on grades, test scores, strength of high school, quality of course of study, residence, alumni relationships, leadership, personal character, socioeconomic disadvantage, athletic ability, and quality of a personal essay. Ante, at 6. A non-minority applicant who scores highly in these other categories can readily garner a selection index exceeding that of a minority applicant who gets the 20-point bonus. Cf. Johnson v Transportation Agency, Santa Clara Cty., 480 U.S. 616, 638 (1987) (upholding a program in which gender “was but one of numerous factors [taken] into account in arriving at [a] decision” because “[n]o persons are automatically excluded from consideration; all are able to have their qualifications weighed against those of other applicants” (emphasis deleted)).
Subject to one qualification to be taken up below, this scheme of considering, through the selection index system, all of the characteristics that the college thinks relevant to student diversity for every one of the student places to be filled fits Justice Powell’s description of a constitutionally acceptable program: one that considers “all pertinent elements of diversity in light of the particular qualifications of each applicant” and places each element “on the same footing for consideration, although not necessarily according them the same weight.” Bakke, supra, at 317. In the Court’s own words, “each characteristic of a particular applicant [is] considered in assessing the applicant’s entire application.” Ante, at 23. An unsuccessful non-minority applicant cannot complain that he was rejected “simply because he was not the right color”; an applicant who is rejected because “his combined qualifications .... did not outweigh those of the other applicant” has been given an opportunity to compete with all other applicants. Bakke, supra, at 318 (opinion of Powell, J.).
The one qualification to this description of the admissions process is that membership in an under-represented minority is given a weight of 20 points on the 150-point scale. On the face of things, however, this assignment of specific points does not set race apart from all other weighted considerations. Non-minority students may receive 20 points for athletic ability, socioeconomic disadvantage, attendance at a socio-economically disadvantaged or predominantly minority high school, or at the Provost’s discretion; they may also receive 10 points for being residents of Michigan, 6 for residence in an under-represented Michigan county, 5 for leadership and service, and so on.
The Court nonetheless finds fault with a scheme that “automatically” distributes 20 points to minority applicants because “[t]he only consideration that accompanies this distribution of points is a factual review of an application to determine whether an individual is a member of one of these minority groups.” Ante, at 23. The objection goes to the use of points to quantify and compare characteristics, or to the number of points awarded due to race, but on either reading the objection is mistaken.
The very nature of a college’s permissible practice of awarding value to racial diversity means that race must be considered in a way that increases some applicants’ chances for admission. Since college admission is not left entirely to inarticulate intuition, it is hard to see what is inappropriate in assigning some stated value to a relevant characteristic, whether it be reasoning ability, writing style, running speed, or minority race. Justice Powell’s plus factors necessarily are assigned some values. The college simply does by a numbered scale what the law school accomplishes in its “holistic review,” Grutter, post, at 25; the distinction does not imply that applicants to the undergraduate college are denied individualized consideration or a fair chance to compete on the basis of all the various merits their applications may disclose.
Nor is it possible to say that the 20 points convert race into a decisive factor comparable to reserving minority places as in Bakke. Of course we can conceive of a point system in which the “plus” factor given to minority applicants would be so extreme as to guarantee every minority applicant a higher rank than every non-minority applicant in the university’s admissions system, see 438 U.S., at 319, n. 53 (opinion of Powell, J.). But petitioners do not have a convincing argument that the freshman admissions system operates this way. The present record obviously shows that non-minority applicants may achieve higher selection point totals than minority applicants owing to characteristics other than race, and the fact that the university admits “virtually every qualified under-represented minority applicant,” App. to Pet. for Cert. 111a, may reflect nothing more than the likelihood that very few qualified minority applicants apply, Brief for Respondents Bollinger et al. 39, as well as the possibility that self-selection results in a strong minority applicant pool. It suffices for me, as it did for the District Court, that there are no Bakke-like set-asides and that consideration of an applicant’s whole spectrum of ability is no more ruled out by giving 20 points for race than by giving the same points for athletic ability or socio-economic disadvantage.
Any argument that the “tailoring” amounts to a set-aside, then, boils down to the claim that a plus factor of 20 points makes some observers suspicious, where a factor of 10 points might not. But suspicion does not carry petitioners’ ultimate burden of persuasion in this constitutional challenge, Wygant v Jackson Bd. of Ed., 476 U.S. 267, 287—288 (1986) (plurality opinion of Powell, J.), and it surely does not warrant condemning the college’s admissions scheme on this record. Because the District Court (correctly, in my view) did not believe that the specific point assignment was constitutionally troubling, it made only limited and general findings on other characteristics of the university’s admissions practice, such as the conduct of individualized review by the Admissions Review Committee. 122 F.Supp. 2d 811, 829—830 (ED Mich. 2000). As the Court indicates, we know very little about the actual role of the review committee. Ante, at 26 (“The record does not reveal precisely how many applications are flagged for this individualized consideration [by the committee]”); see also ante, at 4 (O’Connor, J., concurring) (“The evidence in the record .... reveals very little about how the review committee actually functions”). The point system cannot operate as a de facto set-aside if the greater admissions process, including review by the committee, results in individualized review sufficient to meet the Court’s standards. Since the record is quiet, if not silent, on the case-by-case work of the committee, the Court would be on more defensible ground by vacating and remanding for evidence about the committee’s specific determinations.
Without knowing more about how the Admissions Review Committee actually functions, it seems especially unfair to treat the candor of the admissions plan as an Achilles’ heel. In contrast to the college’s forthrightness in saying just what plus factor it gives for membership in an under-represented minority, it is worth considering the character of one alternative thrown up as preferable, because supposedly not based on race. Drawing on admissions systems used at public universities in California, Florida, and Texas, the United States contends that Michigan could get student diversity in satisfaction of its compelling interest by guaranteeing admission to a fixed percentage of the top students from each high school in Michigan. Brief for United States as Amicus Curiae 18; Brief for United States as Amicus Curiae in Grutter v Bollinger, O. T. 2002, No. 02—241, pp. 13—17.
While there is nothing unconstitutional about such a practice, it nonetheless suffers from a serious disadvantage. It is the disadvantage of deliberate obfuscation. The “percentage plans” are just as race conscious as the point scheme (and fairly so), but they get their racially diverse results without saying directly what they are doing or why they are doing it. In contrast, Michigan states its purpose directly and, if this were a doubtful case for me, I would be tempted to give Michigan an extra point of its own for its frankness. Equal protection cannot become an exercise in which the winners are the ones who hide the ball.
If this plan were challenged by a plaintiff with proper standing under Article III, I would affirm the judgment of the District Court granting summary judgment to the college. As it is, I would vacate the judgment for lack of jurisdiction, and I respectfully dissent.
(dissenting, with whom Justice Souter joins: And Justice Breyer joins Part I of this opinion)
Educational institutions, the Court acknowledges, are not barred from any and all consideration of race when making admissions decisions. Ante, at 20; see Grutter v Bollinger, post, at 13—21. But the Court once again maintains that the same standard of review controls judicial inspection of all official race classifications. Ante, at 21 (quoting Adarand Constructors, Inc. v Peña, 515 U.S. 200, 224 (1995); Richmond v J. A. Croson Co., 488 U.S. 469, 494 (1989) (plurality opinion)). This insistence on “consistency,” Adarand, 515 U.S., at 224, would be fitting were our Nation free of the vestiges of rank discrimination long reinforced by law, see id., at 274—276, and n.8 (Ginsburg, J., dissenting). But we are not far distant from an overtly discriminatory past, and the effects of centuries of law-sanctioned inequality remain painfully evident in our communities and schools.
In the wake “of a system of racial caste only recently ended,” id., at 273 (Ginsburg, J., dissenting), large disparities endure. Unemployment, poverty, and access to health care vary disproportionately by race. Neighborhoods and schools remain racially divided. African-American and Hispanic children are all too often educated in poverty-stricken and under-performing institutions. Adult African-Americans and Hispanics generally earn less than whites with equivalent levels of education. Equally credentialed job applicants receive different receptions depending on their race. Irrational prejudice is still encountered in real estate markets and consumer transactions. “Bias both conscious and unconscious, reflecting traditional and unexamined habits of thought, keeps up barriers that must come down if equal opportunity and nondiscrimination are ever genuinely to become this country’s law and practice.” Id., at 274 (Ginsburg, J., dissenting); see generally Krieger, Civil Rights Perestroika: Inter-group Relations After Affirmative Action, 86 Calif. L.Rev. 1251, 1276—1291 (1998).
The Constitution instructs all who act for the government that they may not “deny to any person .... the equal protection of the laws.” Amdt. 14, §1. In implementing this equality instruction, as I see it, government decision makers may properly distinguish between policies of exclusion and inclusion. See Wygant v Jackson Bd. of Ed., 476 U.S. 267, 316 (1986) (Stevens, J., dissenting). Actions designed to burden groups long denied full citizenship stature are not sensibly ranked with measures taken to hasten the day when entrenched discrimination and its after effects have been extirpated. See Carter, When Victims Happen To Be Black, 97 Yale L.J. 420, 433—434 (1988) (“[T]o say that two centuries of struggle for the most basic of civil rights have been mostly about freedom from racial categorization rather than freedom from racial oppressio[n] is to trivialize the lives and deaths of those who have suffered under racism. To pretend .... that the issue presented in [Regents of Univ of Cal. v Bakke, 438 U.S. 265 (1978)] was the same as the issue in [Brown v Board of Education, 347 U.S. 483 (1954)] is to pretend that history never happened and that the present doesn’t exist.”).
Our jurisprudence ranks race a “suspect” category, “not because [race] is inevitably an impermissible classification, but because it is one which usually, to our national shame, has been drawn for the purpose of maintaining racial inequality.” Norwalk Core v Norwalk Redevelopment Agency, 395 F.2d 920, 931—932 (CA2 1968) (footnote omitted). But where race is considered “for the purpose of achieving equality,” id., at 932, no automatic proscription is in order. For, as insightfully explained, “[t]he Constitution is both color blind and color conscious. To avoid conflict with the equal protection clause, a classification that denies a benefit, causes harm, or imposes a burden must not be based on race. In that sense, the Constitution is color blind. But the Constitution is color conscious to prevent discrimination being perpetuated and to undo the effects of past discrimination.” United States v Jefferson County Bd. of Ed., 372 F.2d 836, 876 (CA5 1966) (Wisdom, J.); see Wechsler, The Nationalization Of Civil Liberties And Civil Rights, Supp. to 12 Tex. Q. 10, 23 (1968) (Brown may be seen as disallowing racial classifications that “impl[y] an invidious assessment” while allowing such classifications when “not invidious in implication” but advanced to “correct inequalities”). Contemporary human rights documents draw just this line; they distinguish between policies of oppression and measures designed to accelerate de facto equality. See Grutter, post, at 1 (Ginsburg, J., concurring) (citing the United Nations-initiated Conventions on the Elimination of All Forms of Racial Discrimination and on the Elimination of All Forms of Discrimination against Women).
The mere assertion of a laudable governmental purpose, of course, should not immunize a race-conscious measure from careful judicial inspection. See Jefferson County, 372 F.2d, at 876 (“The criterion is the relevancy of color to a legitimate governmental purpose.”). Close review is needed “to ferret out classifications in reality malign, but masquerading as benign,” Adarand, 515 U.S., at 275 (Ginsburg, J., dissenting), and to “ensure that preferences are not so large as to trammel unduly upon the opportunities of others or interfere too harshly with legitimate expectations of persons in once-preferred groups,” id., at 276.
Examining in this light the admissions policy employed by the University of Michigan’s College of Literature, Science, and the Arts (College), and for the reasons well stated by Justice Souter, I see no constitutional infirmity. See ante, at 3—8 (dissenting opinion). Like other top-ranking institutions, the College has many more applicants for admission than it can accommodate in an entering class. App. to Pet. for Cert. 108a. Every applicant admitted under the current plan, petitioners do not here dispute, is qualified to attend the College. Id., at 111a. The racial and ethnic groups to which the College accords special consideration (African-Americans, Hispanics, and Native-Americans) historically have been relegated to inferior status by law and social practice; their members continue to experience class-based discrimination to this day, see supra, at 1—4. There is no suggestion that the College adopted its current policy in order to limit or decrease enrollment by any particular racial or ethnic group, and no seats are reserved on the basis of race. See Brief for Respondents 10; Tr. of Oral Arg. 41—42 (in the range between 75 and 100 points, the review committee may look at applications individually and ignore the points). Nor has there been any demonstration that the College’s program unduly constricts admissions opportunities for students who do not receive special consideration based on race. Cf. Liu, The Causation Fallacy: Bakke and the Basic Arithmetic of Selective Admissions, 100 Mich. L.Rev. 1045, 1049 (2002) (“In any admissions process where applicants greatly outnumber admittees, and where white applicants greatly outnumber minority applicants, substantial preferences for minority applicants will not significantly diminish the odds of admission facing white applicants.”).
The stain of generations of racial oppression is still visible in our society, see Krieger, 86 Calif. L.Rev., at 1253, and the determination to hasten its removal remains vital. One can reasonably anticipate, therefore, that colleges and universities will seek to maintain their minority enrollment – and the networks and opportunities thereby opened to minority graduates – whether or not they can do so in full candor through adoption of affirmative action plans of the kind here at issue. Without recourse to such plans, institutions of higher education may resort to camouflage. For example, schools may encourage applicants to write of their cultural traditions in the essays they submit, or to indicate whether English is their second language. Seeking to improve their chances for admission, applicants may highlight the minority group associations to which they belong, or the Hispanic surnames of their mothers or grandparents. In turn, teachers’ recommendations may emphasize who a student is as much as what he or she has accomplished. See, e.g., Steinberg, Using Synonyms for Race, College Strives for Diversity, N.Y. Times, Dec. 8, 2002, section 1, p.1, col. 3 (describing admissions process at Rice University); cf. Brief for United States as Amicus Curiae 14—15 (suggesting institutions could consider, inter alia, “a history of overcoming disadvantage,” “reputation and location of high school,” and “individual outlook as reflected by essays”). If honesty is the best policy, surely Michigan’s accurately described, fully disclosed College affirmative action program is preferable to achieving similar numbers through winks, nods, and disguises.
For the reasons stated, I would affirm the judgment of the District Court.
- vs -
(delivered the opinion of the Court)
This case requires us to decide whether the use of race as a factor in student admissions by the University of Michigan Law School (Law School) is unlawful.
The Law School ranks among the Nation’s top law schools. It receives more than 3,500 applications each year for a class of around 350 students. Seeking to “admit a group of students who individually and collectively are among the most capable,” the Law School looks for individuals with “substantial promise for success in law school” and “a strong likelihood of succeeding in the practice of law and contributing in diverse ways to the well-being of others.” App. 110. More broadly, the Law School seeks “a mix of students with varying backgrounds and experiences who will respect and learn from each other.” Ibid. In 1992, the dean of the Law School charged a faculty committee with crafting a written admissions policy to implement these goals. In particular, the Law School sought to ensure that its efforts to achieve student body diversity complied with this Court’s most recent ruling on the use of race in university admissions. See Regents of Univ. of Cal. v Bakke, 438 U.S. 265 (1978). Upon the unanimous adoption of the committee’s report by the Law School faculty, it became the Law School’s official admissions policy.
The hallmark of that policy is its focus on academic ability coupled with a flexible assessment of applicants’ talents, experiences, and potential “to contribute to the learning of those around them.” App. 111. The policy requires admissions officials to evaluate each applicant based on all the information available in the file, including a personal statement, letters of recommendation, and an essay describing the ways in which the applicant will contribute to the life and diversity of the Law School. Id., at 83—84, 114—121. In reviewing an applicant’s file, admissions officials must consider the applicant’s undergraduate grade point average (GPA) and Law School Admissions Test (LSAT) score because they are important (if imperfect) predictors of academic success in law school. Id., at 112. The policy stresses that “no applicant should be admitted unless we expect that applicant to do well enough to graduate with no serious academic problems.” Id., at 111.
The policy makes clear, however, that even the highest possible score does not guarantee admission to the Law School. Id., at 113. Nor does a low score automatically disqualify an applicant. Ibid. Rather, the policy requires admissions officials to look beyond grades and test scores to other criteria that are important to the Law School’s educational objectives. Id., at 114. So-called “‘soft’ variables” such as “the enthusiasm of recommenders, the quality of the undergraduate institution, the quality of the applicant’s essay, and the areas and difficulty of undergraduate course selection” are all brought to bear in assessing an “applicant’s likely contributions to the intellectual and social life of the institution.” Ibid.
The policy aspires to “achieve that diversity which has the potential to enrich everyone’s education and thus make a law school class stronger than the sum of its parts.” Id., at 118. The policy does not restrict the types of diversity contributions eligible for “substantial weight” in the admissions process, but instead recognizes “many possible bases for diversity admissions.” Id., at 118, 120. The policy does, however, reaffirm the Law School’s longstanding commitment to “one particular type of diversity,” that is, “racial and ethnic diversity with special reference to the inclusion of students from groups which have been historically discriminated against, like African-Americans, Hispanics and Native Americans, who without this commitment might not be represented in our student body in meaningful numbers.” Id., at 120. By enrolling a “‘critical mass’ of [under-represented] minority students,” the Law School seeks to “ensur[e] their ability to make unique contributions to the character of the Law School.” Id., at 120—121.
The policy does not define diversity “solely in terms of racial and ethnic status.” Id., at 121. Nor is the policy “insensitive to the competition among all students for admission to the [L]aw [S]chool.” Ibid. Rather, the policy seeks to guide admissions officers in “producing classes both diverse and academically outstanding, classes made up of students who promise to continue the tradition of outstanding contribution by Michigan Graduates to the legal profession.” Ibid.
Petitioner Barbara Grutter is a white Michigan resident who applied to the Law School in 1996 with a 3.8 grade point average and 161 LSAT score. The Law School initially placed petitioner on a waiting list, but subsequently rejected her application. In December 1997, petitioner filed suit in the United States District Court for the Eastern District of Michigan against the Law School, the Regents of the University of Michigan, Lee Bollinger (Dean of the Law School from 1987 to 1994, and President of the University of Michigan from 1996 to 2002), Jeffrey Lehman (Dean of the Law School), and Dennis Shields (Director of Admissions at the Law School from 1991 until 1998). Petitioner alleged that respondents discriminated against her on the basis of race in violation of the Fourteenth Amendment; Title VI of the Civil Rights Act of 1964, 78 Stat. 252, 42 U.S.C. § 2000d; and Rev. Stat. §1977, as amended, 42 U.S.C. § 1981.
Petitioner further alleged that her application was rejected because the Law School uses race as a “predominant” factor, giving applicants who belong to certain minority groups “a significantly greater chance of admission than students with similar credentials from disfavored racial groups.” App. 33—34. Petitioner also alleged that respondents “had no compelling interest to justify their use of race in the admissions process.” Id., at 34. Petitioner requested compensatory and punitive damages, an order requiring the Law School to offer her admission, and an injunction prohibiting the Law School from continuing to discriminate on the basis of race. Id., at 36. Petitioner clearly has standing to bring this lawsuit. Northeastern Fla. Chapter, Associated Gen. Contractors of America v Jacksonville, 508 U.S. 656, 666 (1993).
The District Court granted petitioner’s motion for class certification and for bifurcation of the trial into liability and damages phases. The class was defined as “‘all persons who (A) applied for and were not granted admission to the University of Michigan Law School for the academic years since (and including) 1995 until the time that judgment is entered herein; and (B) were members of those racial or ethnic groups, including Caucasian, that Defendants treated less favorably in considering their applications for admission to the Law School.’” App. to Pet. for Cert. 191a—192a.
The District Court heard oral argument on the parties’ cross-motions for summary judgment on December 22, 2000. Taking the motions under advisement, the District Court indicated that it would decide as a matter of law whether the Law School’s asserted interest in obtaining the educational benefits that flow from a diverse student body was compelling. The District Court also indicated that it would conduct a bench trial on the extent to which race was a factor in the Law School’s admissions decisions, and whether the Law School’s consideration of race in admissions decisions constituted a race-based double standard.
During the 15-day bench trial, the parties introduced extensive evidence concerning the Law School’s use of race in the admissions process. Dennis Shields, Director of Admissions when petitioner applied to the Law School, testified that he did not direct his staff to admit a particular percentage or number of minority students, but rather to consider an applicant’s race along with all other factors. Id., at 206a. Shields testified that at the height of the admissions season, he would frequently consult the so-called “daily reports” that kept track of the racial and ethnic composition of the class (along with other information such as residency status and gender). Id., at 207a. This was done, Shields testified, to ensure that a critical mass of under-represented minority students would be reached so as to realize the educational benefits of a diverse student body. Ibid. Shields stressed, however, that he did not seek to admit any particular number or percentage of under-represented minority students. Ibid.
Erica Munzel, who succeeded Shields as Director of Admissions, testified that
“‘critical mass’” means “‘meaningful numbers’
The current Dean of the Law School, Jeffrey Lehman, also testified. Like the other Law School witnesses, Lehman did not quantify critical mass in terms of numbers or percentages. Id., at 211a. He indicated that critical mass means numbers such that under-represented minority students do not feel isolated or like spokespersons for their race. Ibid. When asked about the extent to which race is considered in admissions, Lehman testified that it varies from one applicant to another. Ibid. In some cases, according to Lehman’s testimony, an applicant’s race may play no role, while in others it may be a “‘determinative’” factor. Ibid.
The District Court heard extensive testimony from Professor Richard Lempert, who chaired the faculty committee that drafted the 1992 policy. Lempert emphasized that the Law School seeks students with diverse interests and backgrounds to enhance classroom discussion and the educational experience both inside and outside the classroom. Id., at 213a. When asked about the policy’s “‘commitment to racial and ethnic diversity with special reference to the inclusion of students from groups which have been historically discriminated against,’” Lempert explained that this language did not purport to remedy past discrimination, but rather to include students who may bring to the Law School a perspective different from that of members of groups which have not been the victims of such discrimination. Ibid. Lempert acknowledged that other groups, such as Asians and Jews, have experienced discrimination, but explained they were not mentioned in the policy because individuals who are members of those groups were already being admitted to the Law School in significant numbers. Ibid.
Kent Syverud was the final witness to testify about the Law School’s use of race in admissions decisions. Syverud was a professor at the Law School when the 1992 admissions policy was adopted and is now Dean of Vanderbilt Law School. In addition to his testimony at trial, Syverud submitted several expert reports on the educational benefits of diversity. Syverud’s testimony indicated that when a critical mass of under-represented minority students is present, racial stereotypes lose their force because non-minority students learn there is no “‘minority viewpoint’” but rather a variety of viewpoints among minority students. Id., at 215a.
In an attempt to quantify the extent to which the Law School actually considers race in making admissions decisions, the parties introduced voluminous evidence at trial. Relying on data obtained from the Law School, petitioner’s expert, Dr. Kinley Larntz, generated and analyzed “admissions grids” for the years in question (1995—2000). These grids show the number of applicants and the number of admittees for all combinations of GPAs and LSAT scores. Dr. Larntz made “‘cell-by-cell’” comparisons between applicants of different races to determine whether a statistically significant relationship existed between race and admission rates. He concluded that membership in certain minority groups “‘is an extremely strong factor in the decision for acceptance,’” and that applicants from these minority groups “‘are given an extremely large allowance for admission’” as compared to applicants who are members of non-favored groups. Id., at 218a—220a. Dr. Larntz conceded, however, that race is not the predominant factor in the Law School’s admissions calculus. 12 Tr. 11—13 (Feb. 10, 2001).
Dr. Stephen Raudenbush, the Law School’s expert, focused on the predicted effect of eliminating race as a factor in the Law School’s admission process. In Dr. Raudenbush’s view, a race-blind admissions system would have a “‘very dramatic’”, negative effect on under-represented minority admissions. App. to Pet. for Cert. 223a. He testified that in 2000, 35 percent of under-represented minority applicants were admitted. Ibid. Dr. Raudenbush predicted that if race were not considered, only 10 percent of those applicants would have been admitted. Ibid. Under this scenario, under-represented minority students would have comprised 4 percent of the entering class in 2000 instead of the actual figure of 14.5 percent. Ibid.
In the end, the District Court concluded that the Law School’s use of race as a factor in admissions decisions was unlawful. Applying strict scrutiny, the District Court determined that the Law School’s asserted interest in assembling a diverse student body was not compelling because “the attainment of a racially diverse class .... was not recognized as such by Bakke and is not a remedy for past discrimination.” Id., at 246a. The District Court went on to hold that even if diversity were compelling, the Law School had not narrowly tailored its use of race to further that interest. The District Court granted petitioner’s request for declaratory relief and enjoined the Law School from using race as a factor in its admissions decisions. The Court of Appeals entered a stay of the injunction pending appeal.
Sitting en banc, the Court of Appeals reversed the District Court’s judgment and vacated the injunction. The Court of Appeals first held that Justice Powell’s opinion in Bakke was binding precedent establishing diversity as a compelling state interest. According to the Court of Appeals, Justice Powell’s opinion with respect to diversity comprised the controlling rationale for the judgment of this Court under the analysis set forth in Marks v United States, 430 U.S. 188 (1977). The Court of Appeals also held that the Law School’s use of race was narrowly tailored because race was merely a “potential ‘plus’ factor” and because the Law School’s program was “virtually identical” to the Harvard admissions program described approvingly by Justice Powell and appended to his Bakke opinion. 288 F.3d 732, 746, 749 (CA6 2002).
Four dissenting judges would have held the Law School’s use of race unconstitutional. Three of the dissenters, rejecting the majority’s Marks analysis, examined the Law School’s interest in student body diversity on the merits and concluded it was not compelling. The fourth dissenter, writing separately, found it unnecessary to decide whether diversity was a compelling interest because, like the other dissenters, he believed that the Law School’s use of race was not narrowly tailored to further that interest.
We granted certiorari, 537 U.S. 1043 (2002), to resolve the disagreement among the Courts of Appeals on a question of national importance: Whether diversity is a compelling interest that can justify the narrowly tailored use of race in selecting applicants for admission to public universities. Compare Hopwood v Texas, 78 F.3d 932 (CA5 1996) (Hopwood I) (holding that diversity is not a compelling state interest), with Smith v University of Wash. Law School, 233 F.3d 1188 (CA9 2000) (holding that it is).
We last addressed the use of race in public higher education over 25 years ago. In the landmark Bakke case, we reviewed a racial set-aside program that reserved 16 out of 100 seats in a medical school class for members of certain minority groups. 438 U.S. 265 (1978). The decision produced six separate opinions, none of which commanded a majority of the Court. Four Justices would have upheld the program against all attack on the ground that the government can use race to “remedy disadvantages cast on minorities by past racial prejudice.” Id., at 325 (joint opinion of Brennan, White, Marshall, and Blackmun, JJ., concurring in judgment in part and dissenting in part). Four other Justices avoided the constitutional question altogether and struck down the program on statutory grounds. Id., at 408 (opinion of Stevens, J., joined by Burger, C.J., and Stewart and Rehnquist, JJ., concurring in judgment in part and dissenting in part). Justice Powell provided a fifth vote not only for invalidating the set-aside program, but also for reversing the state court’s injunction against any use of race whatsoever. The only holding for the Court in Bakke was that a “State has a substantial interest that legitimately may be served by a properly devised admissions program involving the competitive consideration of race and ethnic origin.” Id., at 320. Thus, we reversed that part of the lower court’s judgment that enjoined the university “from any consideration of the race of any applicant.” Ibid.
Since this Court’s splintered decision in Bakke, Justice Powell’s opinion announcing the judgment of the Court has served as the touchstone for constitutional analysis of race-conscious admissions policies. Public and private universities across the Nation have modeled their own admissions programs on Justice Powell’s views on permissible race-conscious policies. See, e.g., Brief for Judith Areen et al. as Amici Curiae 12—13 (law school admissions programs employ “methods designed from and based on Justice Powell’s opinion in Bakke”); Brief for Amherst College et al. as Amici Curiae 27 (“After Bakke, each of the amici (and undoubtedly other selective colleges and universities as well) reviewed their admissions procedures in light of Justice Powell’s opinion .... and set sail accordingly”). We therefore discuss Justice Powell’s opinion in some detail.
Justice Powell began by stating 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. If both are not accorded the same protection, then it is not equal.” Bakke, 438 U.S., at 289—290. In Justice Powell’s view, when governmental decisions “touch upon an individual’s race or ethnic background, he is entitled to a judicial determination that the burden he is asked to bear on that basis is precisely tailored to serve a compelling governmental interest.” Id., at 299. Under this exacting standard, only one of the interests asserted by the university survived Justice Powell’s scrutiny.
First, Justice Powell rejected an interest in “‘reducing the historic deficit of traditionally disfavored minorities in medical schools and in the medical profession’” as an unlawful interest in racial balancing. Id., at 306—307.
Second, Justice Powell rejected an interest in remedying societal discrimination because such measures would risk placing unnecessary burdens on innocent third parties “who bear no responsibility for whatever harm the beneficiaries of the special admissions program are thought to have suffered.” Id., at 310.
Third, Justice Powell rejected an interest in “increasing the number of physicians who will practice in communities currently underserved,” concluding that even if such an interest could be compelling in some circumstances the program under review was not “geared to promote that goal.” Id., at 306, 310.
Justice Powell approved the university’s use of race to further only one interest: “the attainment of a diverse student body.” Id., at 311. With the important proviso that “constitutional limitations protecting individual rights may not be disregarded,” Justice Powell grounded his analysis in the academic freedom that “long has been viewed as a special concern of the First Amendment.” Id., at 312, 314. Justice Powell emphasized that nothing less than the “‘nation’s future depends upon leaders trained through wide exposure’ to the ideas and mores of students as diverse as this Nation of many peoples.” Id., at 313 (quoting Keyishian v Board of Regents of Univ. of State of N. Y., 385 U.S. 589, 603 (1967)). In seeking the “right to select those students who will contribute the most to the ‘robust exchange of ideas,’” a university seeks “to achieve a goal that is of paramount importance in the fulfillment of its mission.” 438 U.S., at 313. Both “tradition and experience lend support to the view that the contribution of diversity is substantial.” Ibid.
Justice Powell was, however, careful to emphasize that in his view race “is only one element in a range of factors a university properly may consider in attaining the goal of a heterogeneous student body.” Id., at 314. For Justice Powell, “[i]t is not an interest in simple ethnic diversity, in which a specified percentage of the student body is in effect guaranteed to be members of selected ethnic groups,” that can justify the use of race. Id., at 315. Rather, “[t]he diversity that furthers a compelling state interest encompasses a far broader array of qualifications and characteristics of which racial or ethnic origin is but a single though important element.” Ibid.
In the wake of our fractured decision in Bakke, courts have struggled to discern whether Justice Powell’s diversity rationale, set forth in part of the opinion joined by no other Justice, is nonetheless binding precedent under Marks. In that case, we explained that “[w]hen a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.” 430 U.S., at 193 (internal quotation marks and citation omitted). As the divergent opinions of the lower courts demonstrate, however, “[t]his test is more easily stated than applied to the various opinions supporting the result in [Bakke].” Nichols v United States, 511 U.S. 738, 745—746 (1994). Compare, e.g., Johnson v Board of Regents of Univ. of Ga., 263 F.3d 1234 (CA11 2001) (Justice Powell’s diversity rationale was not the holding of the Court); Hopwood v Texas, 236 F.3d 256, 274—275 (CA5 2000) (Hopwood II) same); Hopwood I, 78 F.3d 932 (same), with Smith v University of Wash. Law School, 233 F.3d 1199 (Justice Powell’s opinion, including the diversity rationale, is controlling under Marks).
We do not find it necessary to decide whether Justice Powell’s opinion is binding under Marks. It does not seem “useful to pursue the Marks inquiry to the utmost logical possibility when it has so obviously baffled and divided the lower courts that have considered it.” Nichols v United States, supra, at 745—746. More important, for the reasons set out below, today we endorse Justice Powell’s view that student body diversity is a compelling state interest that can justify the use of race in university admissions.
The Equal Protection Clause provides that no State shall “deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const., Amdt. 14, §2. Because the Fourteenth Amendment “protect[s] persons, not groups,” all “governmental action based on race – a group classification long recognized as in most circumstances irrelevant and therefore prohibited – should be subjected to detailed judicial inquiry to ensure that the personal right to equal protection of the laws has not been infringed.” Adarand Constructors, Inc. v Peña, 515 U.S. 200, 227 (1995) (emphasis in original; internal quotation marks and citation omitted). We are a “free people whose institutions are founded upon the doctrine of equality.” Loving v Virginia, 388 U.S. 1, 11 (1967) (internal quotation marks and citation omitted). It follows from that principle that “government may treat people differently because of their race only for the most compelling reasons.” Adarand Constructors, Inc. v Peña, 515 U.S., at 227.
We have held that all racial classifications imposed by government “must be analyzed by a reviewing court under strict scrutiny.” Ibid. This means that such classifications are constitutional only if they are narrowly tailored to further compelling governmental interests. “Absent searching judicial inquiry into the justification for such race-based measures,” we have no way to determine what “classifications are ‘benign’ or ‘remedial’ and what classifications are in fact motivated by illegitimate notions of racial inferiority or simple racial politics.” Richmond v J.A. Croson Co., 488 U.S. 469, 493 (1989) (plurality opinion). We apply strict scrutiny to all racial classifications to “‘smoke out’ illegitimate uses of race by assuring that [government] is pursuing a goal important enough to warrant use of a highly suspect tool.” Ibid.
Strict scrutiny is not “strict in theory, but fatal in fact.” Adarand Constructors, Inc. v Peña, supra, at 237 (internal quotation marks and citation omitted). Although all governmental uses of race are subject to strict scrutiny, not all are invalidated by it. As we have explained, “whenever the government treats any person unequally because of his or her race, that person has suffered an injury that falls squarely within the language and spirit of the Constitution’s guarantee of equal protection.” 515 U.S., at 229—230. But that observation “says nothing about the ultimate validity of any particular law; that determination is the job of the court applying strict scrutiny.” Id., at 230. When race-based action is necessary to further a compelling governmental interest, such action does not violate the constitutional guarantee of equal protection so long as the narrow-tailoring requirement is also satisfied.
Context matters when reviewing race-based governmental action under the Equal Protection Clause. See Gomillion v Lightfoot, 364 U.S. 339, 343—344 (1960) (admonishing that, “in dealing with claims under broad provisions of the Constitution, which derive content by an interpretive process of inclusion and exclusion, it is imperative that generalizations, based on and qualified by the concrete situations that gave rise to them, must not be applied out of context in disregard of variant controlling facts”). In Adarand Constructors, Inc. v Peña, we made clear that strict scrutiny must take “‘relevant differences’ into account.” 515 U.S., at 228. Indeed, as we explained, that is its “fundamental purpose.” Ibid. Not every decision influenced by race is equally objectionable and strict scrutiny is designed to provide a framework for carefully examining the importance and the sincerity of the reasons advanced by the governmental decision maker for the use of race in that particular context.
With these principles in mind, we turn to the question whether the Law School’s use of race is justified by a compelling state interest. Before this Court, as they have throughout this litigation, respondents assert only one justification for their use of race in the admissions process: obtaining “the educational benefits that flow from a diverse student body.” Brief for Respondents Bollinger et al. i. In other words, the Law School asks us to recognize, in the context of higher education, a compelling state interest in student body diversity.
We first wish to dispel the notion that the Law School’s argument has been foreclosed, either expressly or implicitly, by our affirmative-action cases decided since Bakke. It is true that some language in those opinions might be read to suggest that remedying past discrimination is the only permissible justification for race-based governmental action. See, e.g., Richmond v J. A. Croson Co., supra, at 493 (plurality opinion) (stating that unless classifications based on race are “strictly reserved for remedial settings, they may in fact promote notions of racial inferiority and lead to a politics of racial hostility”). But we have never held that the only governmental use of race that can survive strict scrutiny is remedying past discrimination. Nor, since Bakke, have we directly addressed the use of race in the context of public higher education. Today, we hold that the Law School has a compelling interest in attaining a diverse student body.
The Law School’s educational judgment that such diversity is essential to its educational mission is one to which we defer. The Law School’s assessment that diversity will, in fact, yield educational benefits is substantiated by respondents and their amici. Our scrutiny of the interest asserted by the Law School is no less strict for taking into account complex educational judgments in an area that lies primarily within the expertise of the university. Our holding today is in keeping with our tradition of giving a degree of deference to a university’s academic decisions, within constitutionally prescribed limits. See Regents of Univ. of Mich. v Ewing, 474 U.S. 214, 225 (1985); Board of Curators of Univ. of Mo. v Horowitz, 435 U.S. 78, 96, n. 6 (1978); Bakke, 438 U.S., at 319, n. 53 (opinion of Powell, J.).
We have long recognized that, given the important purpose of public education and the expansive freedoms of speech and thought associated with the university environment, universities occupy a special niche in our constitutional tradition. See, e.g., Wieman v Updegraff, 344 U.S. 183, 195 (1952) (Frankfurter, J., concurring); Sweezy v New Hampshire, 354 U.S. 234, 250 (1957); Shelton v Tucker, 364 U.S. 479, 487 (1960); Keyishian v Board of Regents of Univ. of State of N. Y., 385 U.S., at 603. In announcing the principle of student body diversity as a compelling state interest, Justice Powell invoked our cases recognizing a constitutional dimension, grounded in the First Amendment, of educational autonomy: “The freedom of a university to make its own judgments as to education includes the selection of its student body.” Bakke, supra, at 312. From this premise, Justice Powell reasoned that by claiming “the right to select those students who will contribute the most to the ‘robust exchange of ideas,’” a university “seek[s] to achieve a goal that is of paramount importance in the fulfillment of its mission.” 438 U.S., at 313 (quoting Keyishian v Board of Regents of Univ. of State of N. Y., supra, at 603). Our conclusion that the Law School has a compelling interest in a diverse student body is informed by our view that attaining a diverse student body is at the heart of the Law School’s proper institutional mission, and that “good faith” on the part of a university is “presumed” absent “a showing to the contrary.” 438 U.S., at 318—319.
As part of its goal of “assembling a class that is both exceptionally academically qualified and broadly diverse,” the Law School seeks to “enroll a ‘critical mass’ of minority students.” Brief for Respondents Bollinger et al. 13. The Law School’s interest is not simply “to assure within its student body some specified percentage of a particular group merely because of its race or ethnic origin.” Bakke, 438 U.S., at 307 (opinion of Powell, J.). That would amount to outright racial balancing, which is patently unconstitutional. Ibid.; Freeman v Pitts, 503 U.S. 467, 494 (1992) (“Racial balance is not to be achieved for its own sake”); Richmond v J. A. Croson Co., 488 U.S., at 507. Rather, the Law School’s concept of critical mass is defined by reference to the educational benefits that diversity is designed to produce.
These benefits are substantial. As the District Court emphasized, the Law School’s admissions policy promotes “cross-racial understanding,” helps to break down racial stereotypes, and “enables [students] to better understand persons of different races.” App. to Pet. for Cert. 246a. These benefits are “important and laudable,” because “classroom discussion is livelier, more spirited, and simply more enlightening and interesting” when the students have “the greatest possible variety of backgrounds.” Id., at 246a, 244a.
The Law School’s claim of a compelling interest is further bolstered by its amici, who point to the educational benefits that flow from student body diversity. In addition to the expert studies and reports entered into evidence at trial, numerous studies show that student body diversity promotes learning outcomes, and “better prepares students for an increasingly diverse workforce and society, and better prepares them as professionals.” Brief for American Educational Research Association et al. as Amici Curiae 3; see, e.g., W. Bowen & D. Bok, The Shape of the River (1998); Diversity Challenged: Evidence on the Impact of Affirmative Action (G. Orfield & M. Kurlaender eds. 2001); Compelling Interest: Examining the Evidence on Racial Dynamics in Colleges and Universities (M. Chang, D. Witt, J. Jones, & K. Hakuta eds. 2003).
These benefits are not theoretical but real, as major American businesses have made clear that the skills needed in today’s increasingly global marketplace can only be developed through exposure to widely diverse people, cultures, ideas, and viewpoints. Brief for 3M et al. as Amici Curiae 5; Brief for General Motors Corp. as Amicus Curiae 3—4. What is more, high-ranking retired officers and civilian leaders of the United States military assert that, “[b]ased on [their] decades of experience,” a “highly qualified, racially diverse officer corps .... is essential to the military’s ability to fulfill its principle mission to provide national security.” Brief for Julius W. Becton, Jr. et al. as Amici Curiae 27. The primary sources for the Nation’s officer corps are the service academies and the Reserve Officers Training Corps (ROTC), the latter comprising students already admitted to participating colleges and universities. Id., at 5. At present, “the military cannot achieve an officer corps that is both highly qualified and racially diverse unless the service academies and the ROTC used limited race-conscious recruiting and admissions policies.” Ibid. (emphasis in original). To fulfill its mission, the military “must be selective in admissions for training and education for the officer corps, and it must train and educate a highly qualified, racially diverse officer corps in a racially diverse setting.” Id., at 29 (emphasis in original). We agree that “[i]t requires only a small step from this analysis to conclude that our country’s other most selective institutions must remain both diverse and selective.” Ibid.
We have repeatedly acknowledged the overriding importance of preparing students for work and citizenship, describing education as pivotal to “sustaining our political and cultural heritage” with a fundamental role in maintaining the fabric of society. Plyler v Doe, 457 U.S. 202, 221 (1982). This Court has long recognized that “education .... is the very foundation of good citizenship.” Brown v Board of Education, 347 U.S. 483, 493 (1954). For this reason, the diffusion of knowledge and opportunity through public institutions of higher education must be accessible to all individuals regardless of race or ethnicity. The United States, as amicus curiae, affirms that “[e]nsuring that public institutions are open and available to all segments of American society, including people of all races and ethnicities, represents a paramount government objective.” Brief for United States as Amicus Curiae 13. And, “[n]owhere is the importance of such openness more acute than in the context of higher education.” Ibid. Effective participation by members of all racial and ethnic groups in the civic life of our Nation is essential if the dream of one Nation, indivisible, is to be realized.
Moreover, universities, and in particular, law schools, represent the training ground for a large number of our Nation’s leaders. Sweatt v Painter, 339 U.S. 629, 634 (1950) (describing law school as a “proving ground for legal learning and practice”). Individuals with law degrees occupy roughly half the state governorships, more than half the seats in the United States Senate, and more than a third of the seats in the United States House of Representatives. See Brief for Association of American Law Schools as Amicus Curiae 5—6. The pattern is even more striking when it comes to highly selective law schools. A handful of these schools accounts for 25 of the 100 United States Senators, 74 United States Courts of Appeals judges, and nearly 200 of the more than 600 United States District Court judges. Id., at 6.
In order to cultivate a set of leaders with legitimacy in the eyes of the citizenry, it is necessary that the path to leadership be visibly open to talented and qualified individuals of every race and ethnicity. All members of our heterogeneous society must have confidence in the openness and integrity of the educational institutions that provide this training. As we have recognized, law schools “cannot be effective in isolation from the individuals and institutions with which the law interacts.” See Sweatt v Painter, supra, at 634. Access to legal education (and thus the legal profession) must be inclusive of talented and qualified individuals of every race and ethnicity, so that all members of our heterogeneous society may participate in the educational institutions that provide the training and education necessary to succeed in America.
The Law School does not premise its need for critical mass on “any belief that minority students always (or even consistently) express some characteristic minority viewpoint on any issue.” Brief for Respondent Bollinger et al. 30. To the contrary, diminishing the force of such stereotypes is both a crucial part of the Law School’s mission, and one that it cannot accomplish with only token numbers of minority students. Just as growing up in a particular region or having particular professional experiences is likely to affect an individual’s views, so too is one’s own, unique experience of being a racial minority in a society, like our own, in which race unfortunately still matters. The Law School has determined, based on its experience and expertise, that a “critical mass” of under-represented minorities is necessary to further its compelling interest in securing the educational benefits of a diverse student body.
Even in the limited circumstance when drawing racial distinctions is permissible to further a compelling state interest, government is still “constrained in how it may pursue that end: [T]he means chosen to accomplish the [government’s] asserted purpose must be specifically and narrowly framed to accomplish that purpose.” Shaw v Hunt, 517 U.S. 899, 908 (1996) (internal quotation marks and citation omitted). The purpose of the narrow tailoring requirement is to ensure that “the means chosen ‘fit’ .... th[e] compelling goal so closely that there is little or no possibility that the motive for the classification was illegitimate racial prejudice or stereotype.” Richmond v J. A. Croson Co., 488 U.S., at 493 (plurality opinion).
Since Bakke, we have had no occasion to define the contours of the narrow-tailoring inquiry with respect to race-conscious university admissions programs. That inquiry must be calibrated to fit the distinct issues raised by the use of race to achieve student body diversity in public higher education. Contrary to Justice Kennedy’s assertions, we do not “abandon[ ] strict scrutiny,” see post, at 8 (dissenting opinion). Rather, as we have already explained, ante, at 15, we adhere to Adarand’s teaching that the very purpose of strict scrutiny is to take such “relevant differences into account.” 515 U.S., at 228 (internal quotation marks omitted).
To be narrowly tailored, a race-conscious admissions program cannot use a quota system – it cannot “insulat[e] each category of applicants with certain desired qualifications from competition with all other applicants.” Bakke, supra, at 315 (opinion of Powell, J.). Instead, a university may consider race or ethnicity only as a “‘plus’ in a particular applicant’s file,” without “insulat[ing] the individual from comparison with all other candidates for the available seats.” Id., at 317. In other words, an admissions program must be “flexible enough to consider all pertinent elements of diversity in light of the particular qualifications of each applicant, and to place them on the same footing for consideration, although not necessarily according them the same weight.” Ibid.
We find that the Law School’s admissions program bears the hallmarks of a narrowly tailored plan. As Justice Powell made clear in Bakke, truly individualized consideration demands that race be used in a flexible, non-mechanical way. It follows from this mandate that universities cannot establish quotas for members of certain racial groups or put members of those groups on separate admissions tracks. See id., at 315—316. Nor can universities insulate applicants who belong to certain racial or ethnic groups from the competition for admission. Ibid. Universities can, however, consider race or ethnicity more flexibly as a “plus” factor in the context of individualized consideration of each and every applicant. Ibid.
We are satisfied that the Law School’s admissions program, like the Harvard plan described by Justice Powell, does not operate as a quota. Properly understood, a “quota” is a program in which a certain fixed number or proportion of opportunities are “reserved exclusively for certain minority groups.” Richmond v J. A. Croson Co., supra, at 496 (plurality opinion). Quotas “‘impose a fixed number or percentage which must be attained, or which cannot be exceeded,’” Sheet Metal Workers v EEOC, 478 U.S. 421, 495 (1986) (O’Connor, J., concurring in part and dissenting in part), and “insulate the individual from comparison with all other candidates for the available seats.” Bakke, supra, at 317 (opinion of Powell, J.). In contrast, “a permissible goal .... require[s] only a good-faith effort .... to come within a range demarcated by the goal itself,” Sheet Metal Workers v EEOC, supra, at 495, and permits consideration of race as a “plus” factor in any given case while still ensuring that each candidate “compete[s] with all other qualified applicants,” Johnson v Transportation Agency, Santa Clara Cty., 480 U.S. 616, 638 (1987).
Justice Powell’s distinction between the medical school’s rigid 16-seat quota and Harvard’s flexible use of race as a “plus” factor is instructive. Harvard certainly had minimum goals for minority enrollment, even if it had no specific number firmly in mind. See Bakke, supra, at 323 (opinion of Powell, J.) (“10 or 20 black students could not begin to bring to their classmates and to each other the variety of points of view, backgrounds and experiences of blacks in the United States”). What is more, Justice Powell flatly rejected the argument that Harvard’s program was “the functional equivalent of a quota” merely because it had some “‘plus’” for race, or gave greater “weight” to race than to some other factors, in order to achieve student body diversity. 438 U.S., at 317—318.
The Law School’s goal of attaining a critical mass of under-represented minority students does not transform its program into a quota. As the Harvard plan described by Justice Powell recognized, there is of course “some relationship between numbers and achieving the benefits to be derived from a diverse student body, and between numbers and providing a reasonable environment for those students admitted.” Id., at 323. “[S]ome attention to numbers,” without more, does not transform a flexible admissions system into a rigid quota. Ibid. Nor, as Justice Kennedy posits, does the Law School’s consultation of the “daily reports,” which keep track of the racial and ethnic composition of the class (as well as of residency and gender), “suggest[ ] there was no further attempt at individual review save for race itself” during the final stages of the admissions process. See post, at 6 (dissenting opinion). To the contrary, the Law School’s admissions officers testified without contradiction that they never gave race any more or less weight based on the information contained in these reports. Brief for Respondents Bollinger et al. 43, n. 70 (citing App. in Nos. 01—1447 and 01—1516 (CA6), p. 7336). Moreover, as Justice Kennedy concedes, see post, at 4, between 1993 and 2000, the number of African-American, Latino, and Native-American students in each class at the Law School varied from 13.5 to 20.1 percent, a range inconsistent with a quota.
The Chief Justice believes that the Law School’s policy conceals an attempt to achieve racial balancing, and cites admissions data to contend that the Law School discriminates among different groups within the critical mass. Post, at 3—9 (dissenting opinion). But, as The Chief Justice concedes, the number of under-represented minority students who ultimately enroll in the Law School differs substantially from their representation in the applicant pool and varies considerably for each group from year to year. See post, at 8 (dissenting opinion).
That a race-conscious admissions program does not operate as a quota does not, by itself, satisfy the requirement of individualized consideration. When using race as a “plus” factor in university admissions, a university’s admissions program must remain flexible enough to ensure that each applicant is evaluated as an individual and not in a way that makes an applicant’s race or ethnicity the defining feature of his or her application. The importance of this individualized consideration in the context of a race-conscious admissions program is paramount. See Bakke, supra, at 318, n. 52 (opinion of Powell, J.) (identifying the “denial .... of th[e] right to individualized consideration” as the “principal evil” of the medical school’s admissions program).
Here, the Law School engages in a highly individualized, holistic review of each applicant’s file, giving serious consideration to all the ways an applicant might contribute to a diverse educational environment. The Law School affords this individualized consideration to applicants of all races. There is no policy, either de jure or de facto, of automatic acceptance or rejection based on any single “soft” variable. Unlike the program at issue in Gratz v Bollinger, ante, the Law School awards no mechanical, predetermined diversity “bonuses” based on race or ethnicity. See ante, at 23 (distinguishing a race-conscious admissions program that automatically awards 20 points based on race from the Harvard plan, which considered race but “did not contemplate that any single characteristic automatically ensured a specific and identifiable contribution to a university’s diversity”). Like the Harvard plan, the Law School’s admissions policy “is flexible enough to consider all pertinent elements of diversity in light of the particular qualifications of each applicant, and to place them on the same footing for consideration, although not necessarily according them the same weight.” Bakke, supra, at 317 (opinion of Powell, J.).
We also find that, like the Harvard plan Justice Powell referenced in Bakke, the Law School’s race-conscious admissions program adequately ensures that all factors that may contribute to student body diversity are meaningfully considered alongside race in admissions decisions. With respect to the use of race itself, all under-represented minority students admitted by the Law School have been deemed qualified. By virtue of our Nation’s struggle with racial inequality, such students are both likely to have experiences of particular importance to the Law School’s mission, and less likely to be admitted in meaningful numbers on criteria that ignore those experiences. See App. 120.
The Law School does not, however, limit in any way the broad range of qualities and experiences that may be considered valuable contributions to student body diversity. To the contrary, the 1992 policy makes clear “[t]here are many possible bases for diversity admissions,” and provides examples of admittees who have lived or traveled widely abroad, are fluent in several languages, have overcome personal adversity and family hardship, have exceptional records of extensive community service, and have had successful careers in other fields. Id., at 118—119. The Law School seriously considers each “applicant’s promise of making a notable contribution to the class by way of a particular strength, attainment, or characteristic – e.g., an unusual intellectual achievement, employment experience, nonacademic performance, or personal background.” Id., at 83—84. All applicants have the opportunity to highlight their own potential diversity contributions through the submission of a personal statement, letters of recommendation, and an essay describing the ways in which the applicant will contribute to the life and diversity of the Law School.
What is more, the Law School actually gives substantial weight to diversity factors besides race. The Law School frequently accepts non-minority applicants with grades and test scores lower than under-represented minority applicants (and other non-minority applicants) who are rejected. See Brief for Respondents Bollinger et al. 10; App. 121—122. This shows that the Law School seriously weighs many other diversity factors besides race that can make a real and dispositive difference for non-minority applicants as well. By this flexible approach, the Law School sufficiently takes into account, in practice as well as in theory, a wide variety of characteristics besides race and ethnicity that contribute to a diverse student body. Justice Kennedy speculates that “race is likely outcome determinative for many members of minority groups” who do not fall within the upper range of LSAT scores and grades. Post, at 3 (dissenting opinion). But the same could be said of the Harvard plan discussed approvingly by Justice Powell in Bakke, and indeed of any plan that uses race as one of many factors. See 438 U.S., at 316 (“‘When the Committee on Admissions reviews the large middle group of applicants who are “admissible” and deemed capable of doing good work in their courses, the race of an applicant may tip the balance in his favor’”).
Petitioner and the United States argue that the Law School’s plan is not narrowly tailored because race-neutral means exist to obtain the educational benefits of student body diversity that the Law School seeks. We disagree. Narrow tailoring does not require exhaustion of every conceivable race-neutral alternative. Nor does it require a university to choose between maintaining a reputation for excellence or fulfilling a commitment to provide educational opportunities to members of all racial groups. See Wygant v Jackson Bd. of Ed., 476 U.S. 267, 280, n.6 (1986) (alternatives must serve the interest “‘about as well’”); Richmond v J. A. Croson Co., 488 U.S., at 509—510 (plurality opinion) (city had a “whole array of race-neutral” alternatives because changing requirements “would have [had] little detrimental effect on the city’s interests”). Narrow tailoring does, however, require serious, good faith consideration of workable race-neutral alternatives that will achieve the diversity the university seeks. See id., at 507 (set-aside plan not narrowly tailored where “there does not appear to have been any consideration of the use of race-neutral means”); Wygant v Jackson Bd. of Ed., supra, at 280, n.6 (narrow tailoring “require[s] consideration” of “lawful alternative and less restrictive means”).
We agree with the Court of Appeals that the Law School sufficiently considered workable race-neutral alternatives. The District Court took the Law School to task for failing to consider race-neutral alternatives such as “using a lottery system” or “decreasing the emphasis for all applicants on undergraduate GPA and LSAT scores.” App. to Pet. for Cert. 251a. But these alternatives would require a dramatic sacrifice of diversity, the academic quality of all admitted students, or both.
The Law School’s current admissions program considers race as one factor among many, in an effort to assemble a student body that is diverse in ways broader than race. Because a lottery would make that kind of nuanced judgment impossible, it would effectively sacrifice all other educational values, not to mention every other kind of diversity. So too with the suggestion that the Law School simply lower admissions standards for all students, a drastic remedy that would require the Law School to become a much different institution and sacrifice a vital component of its educational mission. The United States advocates “percentage plans,” recently adopted by public undergraduate institutions in Texas, Florida, and California to guarantee admission to all students above a certain class-rank threshold in every high school in the State. Brief for United States as Amicus Curiae 14—18. The United States does not, however, explain how such plans could work for graduate and professional schools. Moreover, even assuming such plans are race-neutral, they may preclude the university from conducting the individualized assessments necessary to assemble a student body that is not just racially diverse, but diverse along all the qualities valued by the university. We are satisfied that the Law School adequately considered race-neutral alternatives currently capable of producing a critical mass without forcing the Law School to abandon the academic selectivity that is the cornerstone of its educational mission.
We acknowledge that “there are serious problems of justice connected with the idea of preference itself.” Bakke, 438 U.S., at 298 (opinion of Powell, J.). Narrow tailoring, therefore, requires that a race-conscious admissions program not unduly harm members of any racial group. Even remedial race-based governmental action generally “remains subject to continuing oversight to assure that it will work the least harm possible to other innocent persons competing for the benefit.” Id., at 308. To be narrowly tailored, a race-conscious admissions program must not “unduly burden individuals who are not members of the favored racial and ethnic groups.” Metro Broadcasting, Inc. v FCC, 497 U.S. 547, 630 (1990) (O’Connor, J., dissenting).
We are satisfied that the Law School’s admissions program does not. Because the Law School considers “all pertinent elements of diversity,” it can (and does) select non-minority applicants who have greater potential to enhance student body diversity over under-represented minority applicants. See Bakke, supra, at 317 (opinion of Powell, J.). As Justice Powell recognized in Bakke, so long as a race-conscious admissions program uses race as a “plus” factor in the context of individualized consideration, a rejected applicant
will not have been foreclosed from all consideration for that seat simply because he was not the right color or had the wrong surname .... His qualifications would have been weighed fairly and competitively, and he would have no basis to complain of unequal treatment under the Fourteenth Amendment.
[438 U.S., at 318]
We agree that, in the context of its individualized inquiry into the possible diversity contributions of all applicants, the Law School’s race-conscious admissions program does not unduly harm non-minority applicants.
We are mindful, however, that “[a] core purpose of the Fourteenth Amendment was to do away with all governmentally imposed discrimination based on race.” Palmore v Sidoti, 466 U.S. 429, 432 (1984). Accordingly, race-conscious admissions policies must be limited in time. This requirement 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. We see no reason to exempt race-conscious admissions programs from the requirement that all governmental use of race must have a logical end point. The Law School, too, concedes that all “race-conscious programs must have reasonable durational limits.” Brief for Respondents Bollinger et al. 32.
In the context of higher education, the durational requirement can be met by sunset provisions in race-conscious admissions policies and periodic reviews to determine whether racial preferences are still necessary to achieve student body diversity. Universities in California, Florida, and Washington State, where racial preferences in admissions are prohibited by state law, are currently engaged in experimenting with a wide variety of alternative approaches. Universities in other States can and should draw on the most promising aspects of these race-neutral alternatives as they develop. Cf. United States v Lopez, 514 U.S. 549, 581 (1995) (Kennedy, J., concurring) (“[T]he States may perform their role as laboratories for experimentation to devise various solutions where the best solution is far from clear”).
The requirement that all race-conscious admissions programs have a termination point “assure[s] 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.” Richmond v J. A. Croson Co., 488 U.S., at 510 (plurality opinion); see also Nathanson & Bartnik, The Constitutionality of Preferential Treatment for Minority Applicants to Professional Schools, 58 Chicago Bar Rec. 282, 293 (May—June 1977) (“It 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. But that is not the rationale for programs of preferential treatment; the acid test of their justification will be their efficacy in eliminating the need for any racial or ethnic preferences at all”).
We take the Law School at its word that it would “like nothing better than to find a race-neutral admissions formula” and will terminate its race-conscious admissions program as soon as practicable. See Brief for Respondents Bollinger et al. 34; Bakke, supra, at 317—318 (opinion of Powell, J.) (presuming good faith of university officials in the absence of a showing to the contrary). 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. Since that time, the number of minority applicants with high grades and test scores has indeed increased. See Tr. of Oral Arg. 43. We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.
In summary, the Equal Protection Clause does not prohibit the Law School’s narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body. Consequently, petitioner’s statutory claims based on Title VI and 42 U.S.C. § 1981 also fail. See Bakke, supra, at 287 (opinion of Powell, J.) (“Title VI .... proscribe[s] only those racial classifications that would violate the Equal Protection Clause or the Fifth Amendment”); General Building Contractors Assn., Inc. v Pennsylvania, 458 U.S. 375, 389—391 (1982) (the prohibition against discrimination in §1981 is co-extensive with the Equal Protection Clause). The judgment of the Court of Appeals for the Sixth Circuit, accordingly, is affirmed.
It is so ordered.
(with whom Justice Breyer joins, concurring)
The Court’s observation that race-conscious programs “must have a logical end point,” ante, at 29, accords with the international understanding of the office of affirmative action. The International Convention on the Elimination of All Forms of Racial Discrimination, ratified by the United States in 1994, see State Dept., Treaties in Force 422—423 (June 1996), endorses “special and concrete measures to ensure the adequate development and protection of certain racial groups or individuals belonging to them, for the purpose of guaranteeing them the full and equal enjoyment of human rights and fundamental freedoms.” Annex to G.A. Res. 2106, 20 U.N. GAOR Res. Supp. (No. 14) 47, U.N. Doc. A/6014, Art. 2(2) (1965). But such measures, the Convention instructs, “shall in no case entail as a consequence the maintenance of unequal or separate rights for different racial groups after the objectives for which they were taken have been achieved.” Ibid; see also Art. 1(4) (similarly providing for temporally limited affirmative action); Convention on the Elimination of All Forms of Discrimination against Women, Annex to G.A. Res. 34/180, 34 U.N. GAOR Res. Supp. (No. 46) 194, U.N. Doc. A/34/46, Art. 4(1) (1979) (authorizing “temporary special measures aimed at accelerating de facto equality” that “shall be discontinued when the objectives of equality of opportunity and treatment have been achieved”).
The Court further observes that “[i]t has been 25 years since Justice Powell [in Regents of Univ. of Cal. v Bakke, 438 U.S. 265 (1978)] first approved the use of race to further an interest in student body diversity in the context of public higher education.” Ante, at 31. For at least part of that time, however, the law could not fairly be described as “settled,” and in some regions of the Nation, overtly race-conscious admissions policies have been proscribed. See Hopwood v Texas, 78 F.3d 932 (CA5 1996); cf. Wessmann v Gittens, 160 F.3d 790 (CA1 1998); Tuttle v Arlington Cty. School Bd., 195 F.3d 698 (CA4 1999); Johnson v Board of Regents of Univ. of Ga., 263 F.3d 1234 (CA11 2001). Moreover, it was only 25 years before Bakke that this Court declared public school segregation unconstitutional, a declaration that, after prolonged resistance, yielded an end to a law-enforced racial caste system, itself the legacy of centuries of slavery. See Brown v Board of Education, 347 U.S. 483 (1954); cf. Cooper v Aaron, 358 U.S. 1 (1958).
is well documented that conscious and unconscious race bias, even rank
discrimination based on race, remain alive in our land, impeding realization
of our highest values and ideals. See, e.g., Gratz v Bollinger,
ante, at 1—4 (Ginsburg, J., dissenting); Adarand Constructors,
Inc. v Peña, 515 U.S. 200, 272—274 (1995) (Ginsburg, J.,
dissenting); Krieger, Civil Rights Perestroika: Inter-group Relations after
Affirmative Action, 86 Calif. L.Rev. 1251, 1276—1291, 1303 (1998). As to
public education, data for the years 2000—2001 show that 71.6% of
African-American children and 76.3% of Hispanic children attended a school
in which minorities made up a majority of the student body. See E.
Frankenberg, C. Lee, & G. Orfield, A Multiracial Society with Segregated
Schools: Are We Losing the Dream? p. 4 (Jan. 2003),
harvard.edu / research / reseg03/AreWeLosingtheDream.pdf (as visited June 16, 2003, and available in Clerk of Court’s case file). And schools in predominantly minority communities lag far behind others measured by the educational resources available to them. See id., at 11; Brief for National Urban League et al. as Amici Curiae 11—12 (citing General Accounting Office, Per-Pupil Spending Differences Between Selected Inner City and Suburban Schools Varied by Metropolitan Area, 17 (2002)).
However strong the public’s desire for improved education systems may be, see P. Hart & R. Teeter, A National Priority: Americans Speak on Teacher Quality 2, 11 (2002) (public opinion research conducted for Educational Testing Service); The No Child Left Behind Act of 2001, Pub. L. 107—110, 115 Stat. 1425 , 20 U.S.C. A. §7231 (2003 Supp. Pamphlet), it remains the current reality that many minority students encounter markedly inadequate and unequal educational opportunities. Despite these inequalities, some minority students are able to meet the high threshold requirements set for admission to the country’s finest undergraduate and graduate educational institutions. As lower school education in minority communities improves, an increase in the number of such students may be anticipated. From today’s vantage point, 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.
Chief Justice Rehnquist
(dissenting, with whom Justice Scalia, Justice Kennedy, and Justice Thomas join)
I agree with the Court that, “in the limited circumstance when drawing racial distinctions is permissible,” the government must ensure that its means are narrowly tailored to achieve a compelling state interest. Ante, at 21; see also Fullilove v Klutznick, 448 U.S. 448, 498 (1980) (Powell, J., concurring) (“[E]ven if the government proffers a compelling interest to support reliance upon a suspect classification, the means selected must be narrowly drawn to fulfill the governmental purpose”). I do not believe, however, that the University of Michigan Law School’s (Law School) means are narrowly tailored to the interest it asserts. The Law School claims it must take the steps it does to achieve a “‘critical mass’” of under-represented minority students. Brief for Respondents Bollinger et al. 13. But its actual program bears no relation to this asserted goal. Stripped of its “critical mass” veil, the Law School’s program is revealed as a naked effort to achieve racial balancing.
As we have explained many times, “‘“[a]ny preference based on racial or ethnic criteria must necessarily receive a most searching examination.”’” Adarand Constructors, Inc. v Peña, 515 U.S. 200, 223 (1995) (quoting Wygant v Jackson Bd. of Ed., 476 U.S. 267, 273 (1986) (plurality opinion of Powell, J.)). Our cases establish that, in order to withstand this demanding inquiry, respondents must demonstrate that their methods of using race “‘fit’” a compelling state interest “with greater precision than any alternative means.” Id., at 280, n.6; Regents of Univ. of Cal. v Bakke, 438 U.S. 265, 299 (1978) (opinion of Powell, J.) (“When [political judgments] touch upon an individual’s race or ethnic background, he is entitled to a judicial determination that the burden he is asked to bear on that basis is precisely tailored to serve a compelling governmental interest”).
Before the Court’s decision today, we consistently applied the same strict scrutiny analysis regardless of the government’s purported reason for using race and regardless of the setting in which race was being used. We rejected calls to use more lenient review in the face of claims that race was being used in “good faith” because “‘[m]ore than good motives should be required when government seeks to allocate its resources by way of an explicit racial classification system.’” Adarand, supra, at 226; Fullilove, supra, at 537 (Stevens, J., dissenting) (“Racial classifications are simply too pernicious to permit any but the most exact connection between justification and classification”). We likewise rejected calls to apply more lenient review based on the particular setting in which race is being used. Indeed, even in the specific context of higher education, we emphasized that “constitutional limitations protecting individual rights may not be disregarded.” Bakke, supra, at 314.
Although the Court recites the language of our strict scrutiny analysis, its application of that review is unprecedented in its deference.
Respondents’ asserted justification for the Law School’s use of race in the admissions process is “obtaining ‘the educational benefits that flow from a diverse student body.’” Ante, at 15 (quoting Brief for Respondents Bollinger et al. i). They contend that a “critical mass” of under-represented minorities is necessary to further that interest. Ante, at 17. Respondents and school administrators explain generally that “critical mass” means a sufficient number of under-represented minority students to achieve several objectives: To ensure that these minority students do not feel isolated or like spokespersons for their race; to provide adequate opportunities for the type of interaction upon which the educational benefits of diversity depend; and to challenge all students to think critically and reexamine stereotypes. See App. to Pet. for Cert. 211a; Brief for Respondents Bollinger et al. 26. These objectives indicate that “critical mass” relates to the size of the student body. Id., at 5 (claiming that the Law School has enrolled “critical mass,” or “enough minority students to provide meaningful integration of its classrooms and residence halls”). Respondents further claim that the Law School is achieving “critical mass.” Id., at 4 (noting that the Law School’s goals have been “greatly furthered by the presence of .... a ‘critical mass’ of ” minority students in the student body).
In practice, the Law School’s program bears little or no relation to its asserted goal of achieving “critical mass.” Respondents explain that the Law School seeks to accumulate a “critical mass” of each under-represented minority group. See, e.g., id., at 49, n.79 (“The Law School’s .... current policy .... provide[s] a special commitment to enrolling a ‘critical mass’ of ‘Hispanics’”). But the record demonstrates that the Law School’s admissions practices with respect to these groups differ dramatically and cannot be defended under any consistent use of the term “critical mass.”
1995 through 2000, the Law School admitted between 1,130 and 1,310 students.
Of those, between 13 and 19 were Native American, between 91 and 108 were
African-Americans, and between 47 and 56 were Hispanic. If the Law School is
admitting between 91 and 108 African-Americans in order to achieve
“critical mass,” thereby preventing African-American students from
feeling “isolated or like spokespersons for their race,” one would think
that a number of the same order of magnitude would be necessary to
accomplish the same purpose for Hispanics and Native Americans. Similarly,
even if all of the Native American applicants admitted in a given year
matriculate, which the record demonstrates is not at all the case,
These different numbers, moreover, come only as a result of substantially different treatment among the three under-represented minority groups, as is apparent in an example offered by the Law School and highlighted by the Court: The school asserts that it “frequently accepts non-minority applicants with grades and test scores lower than under-represented minority applicants (and other non-minority applicants) who are rejected.” Ante, at 26 (citing Brief for Respondents Bollinger et al. 10). Specifically, the Law School states that “[s]ixty-nine minority applicants were rejected between 1995 and 2000 with at least a 3.5 [Grade Point Average (GPA)] and a [score of] 159 or higher on the [Law School Admissions Test (LSAT)]” while a number of Caucasian and Asian-American applicants with similar or lower scores were admitted. Brief for Respondents Bollinger et al. 10.
Review of the record reveals only 67 such individuals. Of these 67 individuals, 56 were Hispanic, while only 6 were African-American, and only 5 were Native American. This discrepancy reflects a consistent practice. For example, in 2000, 12 Hispanics who scored between a 159—160 on the LSAT and earned a GPA of 3.00 or higher applied for admission and only 2 were admitted. App. 200—201. Meanwhile, 12 African-Americans in the same range of qualifications applied for admission and all 12 were admitted. Id., at 198. Likewise, that same year, 16 Hispanics who scored between a 151—153 on the LSAT and earned a 3.00 or higher applied for admission and only 1 of those applicants was admitted. Id., at 200—201. Twenty-three similarly qualified African-Americans applied for admission and 14 were admitted. Id., at 198.
These statistics have a significant bearing on petitioner’s case. Respondents have never offered any race-specific arguments explaining why significantly more individuals from one under-represented minority group are needed in order to achieve “critical mass” or further student body diversity. They certainly have not explained why Hispanics, who they have said are among “the groups most isolated by racial barriers in our country,” should have their admission capped out in this manner. Brief for Respondents Bollinger et al. 50. True, petitioner is neither Hispanic nor Native American. But the Law School’s disparate admissions practices with respect to these minority groups demonstrate that its alleged goal of “critical mass” is simply a sham. Petitioner may use these statistics to expose this sham, which is the basis for the Law School’s admission of less qualified under-represented minorities in preference to her. Surely strict scrutiny cannot permit these sort of disparities without at least some explanation.
Only when the “critical mass” label is discarded does a likely explanation for these numbers emerge. The Court states that the Law School’s goal of attaining a “critical mass” of under-represented minority students is not an interest in merely “‘assur[ing] within its student body some specified percentage of a particular group merely because of its race or ethnic origin.’” Ante, at 17 (quoting Bakke, 438 U.S., at 307 (opinion of Powell, J.)). The Court recognizes that such an interest “would amount to outright racial balancing, which is patently unconstitutional.” Ante, at 17. The Court concludes, however, that the Law School’s use of race in admissions, consistent with Justice Powell’s opinion in Bakke, only pays “‘[s]ome attention to numbers.’” Ante, at 23 (quoting Bakke, supra, at 323).
But the correlation between the percentage of the Law School’s pool of applicants who are members of the three minority groups and the percentage of the admitted applicants who are members of these same groups is far too precise to be dismissed as merely the result of the school paying “some attention to [the] numbers.” As the tables below show, from 1995 through 2000 the percentage of admitted applicants who were members of these minority groups closely tracked the percentage of individuals in the school’s applicant pool who were from the same groups.
For example, in 1995, when 9.7% of the applicant pool was African-American, 9.4% of the admitted class was African-American. By 2000, only 7.5% of the applicant pool was African-American, and 7.3% of the admitted class was African-American. This correlation is striking. Respondents themselves emphasize that the number of under-represented minority students admitted to the Law School would be significantly smaller if the race of each applicant were not considered. See App. to Pet. for Cert. 223a; Brief for Respondents Bollinger et al. 6 (quoting App. to Pet. for Cert. of Bollinger et al. 299a). But, as the examples above illustrate, the measure of the decrease would differ dramatically among the groups. The tight correlation between the percentage of applicants and admittees of a given race, therefore, must result from careful race based planning by the Law School. It suggests a formula for admission based on the aspirational assumption that all applicants are equally qualified academically, and therefore that the proportion of each group admitted should be the same as the proportion of that group in the applicant pool. See Brief for Respondents Bollinger et al. 43, n.70 (discussing admissions officers’ use of “periodic reports” to track “the racial composition of the developing class”).
Not only do respondents fail to explain this phenomenon, they attempt to obscure it. See id., at 32, n.50 (“The Law School’s minority enrollment percentages .... diverged from the percentages in the applicant pool by as much as 17.7% from 1995—2000”). But the divergence between the percentages of under-represented minorities in the applicant pool and in the enrolled classes is not the only relevant comparison. In fact, it may not be the most relevant comparison. The Law School cannot precisely control which of its admitted applicants decide to attend the university. But it can and, as the numbers demonstrate, clearly does employ racial preferences in extending offers of admission. Indeed, the ostensibly flexible nature of the Law School’s admissions program that the Court finds appealing, see ante, at 24—26, appears to be, in practice, a carefully managed program designed to ensure proportionate representation of applicants from selected minority groups.
I do not believe that the Constitution gives the Law School such free rein in the use of race. The Law School has offered no explanation for its actual admissions practices and, unexplained, we are bound to conclude that the Law School has managed its admissions program, not to achieve a “critical mass,” but to extend offers of admission to members of selected minority groups in proportion to their statistical representation in the applicant pool. But this is precisely the type of racial balancing that the Court itself calls “patently unconstitutional”. Ante, at 17.
Finally, I believe that the Law School’s program fails strict scrutiny because it is devoid of any reasonably precise time limit on the Law School’s use of race in admissions. We have emphasized that we will consider “the planned duration of the remedy” in determining whether a race-conscious program is constitutional. Fullilove, 448 U.S., at 510 (Powell, J. concurring); see also United States v Paradise, 480 U.S. 149, 171 (1987) (“In determining whether race-conscious remedies are appropriate, we look to several factors, including the .... duration of the relief ”). Our previous cases have required some limit on the duration of programs such as this because discrimination on the basis of race is invidious.
The Court suggests a possible 25-year limitation on the Law School’s current program. See ante, at 30. Respondents, on the other hand, remain more ambiguous, explaining that “the Law School of course recognizes that race-conscious programs must have reasonable durational limits, and the Sixth Circuit properly found such a limit in the Law School’s resolve to cease considering race when genuine race-neutral alternatives become available.” Brief for Respondents Bollinger et al. 32. These discussions of a time limit are the vaguest of assurances. In truth, they permit the Law School’s use of racial preferences on a seemingly permanent basis. Thus, an important component of strict scrutiny – that a program be limited in time – is casually subverted.
The Court, in an unprecedented display of deference under our strict scrutiny analysis, upholds the Law School’s program despite its obvious flaws. We have said that when it comes to the use of race, the connection between the ends and the means used to attain them must be precise. But here the flaw is deeper than that; it is not merely a question of “fit” between ends and means. Here the means actually used are forbidden by the Equal Protection Clause of the Constitution.
The separate opinion by Justice Powell in Regents of Univ of Cal. v Bakke is based on the principle that a university admissions program may take account of race as one, non-predominant factor in a system designed to consider each applicant as an individual, provided the program can meet the test of strict scrutiny by the judiciary. 438 U.S. 265, 289—291, 315—318 (1978). This is a unitary formulation. If strict scrutiny is abandoned or manipulated to distort its real and accepted meaning, the Court lacks authority to approve the use of race even in this modest, limited way. The opinion by Justice Powell, in my view, states the correct rule for resolving this case. The Court, however, does not apply strict scrutiny. By trying to say otherwise, it undermines both the test and its own controlling precedents.
Justice Powell’s approval of the use of race in university admissions reflected a tradition, grounded in the First Amendment, of acknowledging a university’s conception of its educational mission. Bakke, supra, at 312—314; ante, at 16—17. Our precedents provide a basis for the Court’s acceptance of a university’s considered judgment that racial diversity among students can further its educational task, when supported by empirical evidence. Ante, at 17—19.
It is unfortunate, however, that the Court takes the first part of Justice Powell’s rule but abandons the second. Having approved the use of race as a factor in the admissions process, the majority proceeds to nullify the essential safeguard Justice Powell insisted upon as the precondition of the approval. The safeguard was rigorous judicial review, with strict scrutiny as the controlling standard. Bakke, supra, at 291 (“Racial and ethnic distinctions of any sort are inherently suspect and thus call for the most exacting judicial examination”). This Court has reaffirmed, subsequent to Bakke, the absolute necessity of strict scrutiny when the state uses race as an operative category. Adarand Constructors, Inc. v Peña, 515 U.S. 200, 224 (1995) (“[A]ny person, of whatever race, has the right to demand that any governmental actor subject to the Constitution justify any racial classification subjecting that person to unequal treatment under the strictest judicial scrutiny”); Richmond v J. A. Croson Co., 488 U.S. 469, 493—494 (1989); see id., at 519 (Kennedy, J., concurring in part and concurring in judgment) (“[A]ny racial preference must face the most rigorous scrutiny by the courts”). The Court confuses deference to a university’s definition of its educational objective with deference to the implementation of this goal. In the context of university admissions the objective of racial diversity can be accepted based on empirical data known to us, but deference is not to be given with respect to the methods by which it is pursued. Preferment by race, when resorted to by the State, can be the most divisive of all policies, containing within it the potential to destroy confidence in the Constitution and in the idea of equality. The majority today refuses to be faithful to the settled principle of strict review designed to reflect these concerns.
The Court, in a review that is nothing short of perfunctory, accepts the University of Michigan Law School’s assurances that its admissions process meets with constitutional requirements. The majority fails to confront the reality of how the Law School’s admissions policy is implemented. The dissenting opinion by The Chief Justice, which I join in full, demonstrates beyond question why the concept of critical mass is a delusion used by the Law School to mask its attempt to make race an automatic factor in most instances and to achieve numerical goals indistinguishable from quotas. An effort to achieve racial balance among the minorities the school seeks to attract is, by the Court’s own admission, “patently unconstitutional.” Ante, at 17; see also Bakke, 438 U.S, at 307 (opinion of Powell, J.). It remains to point out how critical mass becomes inconsistent with individual consideration in some more specific aspects of the admissions process.
About 80 to 85 percent of the places in the entering class are given to applicants in the upper range of Law School Admissions Test scores and grades. An applicant with these credentials likely will be admitted without consideration of race or ethnicity. With respect to the remaining 15 to 20 percent of the seats, race is likely outcome determinative for many members of minority groups. That is where the competition becomes tight and where any given applicant’s chance of admission is far smaller if he or she lacks minority status. At this point the numerical concept of critical mass has the real potential to compromise individual review.
The Law School has not demonstrated how individual consideration is, or can be, preserved at this stage of the application process given the instruction to attain what it calls critical mass. In fact the evidence shows otherwise. There was little deviation among admitted minority students during the years from 1995 to 1998. The percentage of enrolled minorities fluctuated only by 0.3%, from 13.5% to 13.8%. The number of minority students to whom offers were extended varied by just a slightly greater magnitude of 2.2%, from the high of 15.6% in 1995 to the low of 13.4% in 1998.
The District Court relied on this uncontested fact to draw an inference that the Law School’s pursuit of critical mass mutated into the equivalent of a quota. 137 F.Supp. 2d 821, 851 (ED Mich. 2001). Admittedly, there were greater fluctuations among enrolled minorities in the preceding years, 1987—1994, by as much as 5 or 6%. The percentage of minority offers, however, at no point fell below 12%, historically defined by the Law School as the bottom of its critical mass range. The greater variance during the earlier years, in any event, does not dispel suspicion that the school engaged in racial balancing. The data would be consistent with an inference that the Law School modified its target only twice, in 1991 (from 13% to 19%), and then again in 1995 (back from 20% to 13%). The intervening year, 1993, when the percentage dropped to 14.5%, could be an aberration, caused by the school’s miscalculation as to how many applicants with offers would accept or by its redefinition, made in April 1992, of which minority groups were entitled to race-based preference. See Brief for Respondents Bollinger et al. 49, n. 79.
Percentage of enrolled minority students
The Law School has the burden of proving, in conformance with the standard of strict scrutiny, that it did not utilize race in an unconstitutional way. Adarand Constructors, 515 U.S., at 224. At the very least, the constancy of admitted minority students and the close correlation between the racial breakdown of admitted minorities and the composition of the applicant pool, discussed by The Chief Justice, ante, at 3—9, require the Law School either to produce a convincing explanation or to show it has taken adequate steps to ensure individual assessment. The Law School does neither.
The obvious tension between the pursuit of critical mass and the requirement of individual review increased by the end of the admissions season. Most of the decisions where race may decide the outcome are made during this period. See supra, at 3. The admissions officers consulted the daily reports which indicated the composition of the incoming class along racial lines. As Dennis Shields, Director of Admissions from 1991 to 1996, stated, “the further [he] went into the [admissions] season the more frequently [he] would want to look at these [reports] and see the change from day-to-day.” These reports would “track exactly where [the Law School] st[ood] at any given time in assembling the class,” and so would tell the admissions personnel whether they were short of assembling a critical mass of minority students. Shields generated these reports because the Law School’s admissions policy told him the racial make-up of the entering class was “something [he] need[ed] to be concerned about,” and so he had “to find a way of tracking what’s going on.”
The consultation of daily reports during the last stages in the admissions process suggests there was no further attempt at individual review save for race itself. The admissions officers could use the reports to recalibrate the plus factor given to race depending on how close they were to achieving the Law School’s goal of critical mass. The bonus factor of race would then become divorced from individual review; it would be premised instead on the numerical objective set by the Law School.
The Law School made no effort to guard against this danger. It provided no guidelines to its admissions personnel on how to reconcile individual assessment with the directive to admit a critical mass of minority students. The admissions program could have been structured to eliminate at least some of the risk that the promise of individual evaluation was not being kept. The daily consideration of racial breakdown of admitted students is not a feature of affirmative-action programs used by other institutions of higher learning. The Little Ivy League colleges, for instance, do not keep ongoing tallies of racial or ethnic composition of their entering students. See Brief for Amherst College et al. as Amici Curiae 10.
To be constitutional, a university’s compelling interest in a diverse student body must be achieved by a system where individual assessment is safeguarded through the entire process. There is no constitutional objection to the goal of considering race as one modest factor among many others to achieve diversity, but an educational institution must ensure, through sufficient procedures, that each applicant receives individual consideration and that race does not become a predominant factor in the admissions decision making. The Law School failed to comply with this requirement, and by no means has it carried its burden to show otherwise by the test of strict scrutiny.
The Court’s refusal to apply meaningful strict scrutiny will lead to serious consequences. By deferring to the law schools’ choice of minority admissions programs, the courts will lose the talents and resources of the faculties and administrators in devising new and fairer ways to ensure individual consideration. Constant and rigorous judicial review forces the law school faculties to undertake their responsibilities as state employees in this most sensitive of areas with utmost fidelity to the mandate of the Constitution. Dean Allan Stillwagon, who directed the Law School’s Office of Admissions from 1979 to 1990, explained the difficulties he encountered in defining racial groups entitled to benefit under the School’s affirmative action policy. He testified that faculty members were “breathtakingly cynical” in deciding who would qualify as a member of under-represented minorities. An example he offered was faculty debate as to whether Cubans should be counted as Hispanics: One professor objected on the grounds that Cubans were Republicans. Many academics at other law schools who are “affirmative action’s more forthright defenders readily concede that diversity is merely the current rationale of convenience for a policy that they prefer to justify on other grounds.” Schuck, Affirmative Action: Past, Present, and Future, 20 Yale L. & Pol’y Rev. 1, 34 (2002) (citing Levinson, Diversity, 2 U.Pa. J. Const. L. 573, 577—578 (2000); Rubenfeld, Affirmative Action, 107 Yale L.J. 427, 471 (1997)). This is not to suggest the faculty at Michigan or other law schools do not pursue aspirations they consider laudable and consistent with our constitutional traditions. It is but further evidence of the necessity for scrutiny that is real, not feigned, where the corrosive category of race is a factor in decision making. Prospective students, the courts, and the public can demand that the State and its law schools prove their process is fair and constitutional in every phase of implementation.
It is difficult to assess the Court’s pronouncement that race-conscious admissions programs will be unnecessary 25 years from now. Ante, at 30—31. If it is intended to mitigate the damage the Court does to the concept of strict scrutiny, neither petitioners nor other rejected law school applicants will find solace in knowing the basic protection put in place by Justice Powell will be suspended for a full quarter of a century. Deference is antithetical to strict scrutiny, not consistent with it.
As to the interpretation that the opinion contains its own self-destruct mechanism, the majority’s abandonment of strict scrutiny undermines this objective. Were the courts to apply a searching standard to race-based admissions schemes, that would force educational institutions to seriously explore race-neutral alternatives. The Court, by contrast, is willing to be satisfied by the Law School’s profession of its own good faith. The majority admits as much: “We take the Law School at its word that it would ‘like nothing better than to find a race-neutral admissions formula’ and will terminate its race-conscious admissions program as soon as practicable.” Ante, at 30 (quoting Brief for Respondent Bollinger et al. 34).
If universities are given the latitude to administer programs that are tantamount to quotas, they will have few incentives to make the existing minority admissions schemes transparent and protective of individual review. The unhappy consequence will be to perpetuate the hostilities that proper consideration of race is designed to avoid. The perpetuation, of course, would be the worst of all outcomes. Other programs do exist which will be more effective in bringing about the harmony and mutual respect among all citizens that our constitutional tradition has always sought. They, and not the program under review here, should be the model, even if the Court defaults by not demanding it.
It is regrettable the Court’s important holding allowing racial minorities to have their special circumstances considered in order to improve their educational opportunities is accompanied by a suspension of the strict scrutiny which was the predicate of allowing race to be considered in the first place. If the Court abdicates its constitutional duty to give strict scrutiny to the use of race in university admissions, it negates my authority to approve the use of race in pursuit of student diversity. The Constitution cannot confer the right to classify on the basis of race even in this special context absent searching judicial review. For these reasons, though I reiterate my approval of giving appropriate consideration to race in this one context, I must dissent in the present case.
(with whom Justice Thomas joins, concurring in part and dissenting in part)
I join the opinion of The Chief Justice. As he demonstrates, the University of Michigan Law School’s mystical “critical mass” justification for its discrimination by race challenges even the most gullible mind. The admissions statistics show it to be a sham to cover a scheme of racially proportionate admissions.
also join Parts I through VII of Justice Thomas’s opinion.
I add the following: The “educational benefit” that the University of Michigan seeks to achieve by racial discrimination consists, according to the Court, of “‘cross-racial understanding,’” ante, at 18, and “‘better prepar[ation of] students for an increasingly diverse workforce and society,’” ibid., all of which is necessary not only for work, but also for good “citizenship,” ante, at 19. This is not, of course, an “educational benefit” on which students will be graded on their Law School transcript (Works and Plays Well with Others: B+) or tested by the bar examiners (Q: Describe in 500 words or less your cross-racial understanding). For it is a lesson of life rather than law – essentially the same lesson taught to (or rather learned by, for it cannot be “taught” in the usual sense) people three feet shorter and twenty years younger than the full-grown adults at the University of Michigan Law School, in institutions ranging from Boy Scout troops to public-school kindergartens. If properly considered an “educational benefit” at all, it is surely not one that is either uniquely relevant to law school or uniquely “teachable” in a formal educational setting. And therefore: If it is appropriate for the University of Michigan Law School to use racial discrimination for the purpose of putting together a “critical mass” that will convey generic lessons in socialization and good citizenship, surely it is no less appropriate – indeed, particularly appropriate – for the civil service system of the State of Michigan to do so. There, also, those exposed to “critical masses” of certain races will presumably become better Americans, better Michiganders, better civil servants. And surely private employers cannot be criticized – indeed, should be praised – if they also “teach” good citizenship to their adult employees through a patriotic, all-American system of racial discrimination in hiring. The non-minority individuals who are deprived of a legal education, a civil service job, or any job at all by reason of their skin color will surely understand.
Unlike a clear constitutional holding that racial preferences in state educational institutions are impermissible, or even a clear anti-constitutional holding that racial preferences in state educational institutions are OK, today’s Grutter-Gratz split double header seems perversely designed to prolong the controversy and the litigation. Some future lawsuits will presumably focus on whether the discriminatory scheme in question contains enough evaluation of the applicant “as an individual,” ante, at 24, and sufficiently avoids “separate admissions tracks” ante, at 22, to fall under Grutter rather than Gratz. Some will focus on whether a university has gone beyond the bounds of a “‘good faith effort’” and has so zealously pursued its “critical mass” as to make it an unconstitutional de facto quota system, rather than merely “‘a permissible goal.’” Ante, at 23 (quoting Sheet Metal Workers v EEOC, 478 U.S 421, 495 (1986) (O’Connor, J., concurring in part and dissenting in part)). Other lawsuits may focus on whether, in the particular setting at issue, any educational benefits flow from racial diversity. (That issue was not contested in Grutter; and while the opinion accords “a degree of deference to a university’s academic decisions,” ante, at 16, “deference does not imply abandonment or abdication of judicial review,” Miller-El v Cockrell, 537 U.S. 322, 340 (2003).) Still other suits may challenge the bona fides of the institution’s expressed commitment to the educational benefits of diversity that immunize the discriminatory scheme in Grutter. (Tempting targets, one would suppose, will be those universities that talk the talk of multiculturalism and racial diversity in the courts but walk the walk of tribalism and racial segregation on their campuses – through minority-only student organizations, separate minority housing opportunities, separate minority student centers, even separate minority-only graduation ceremonies.) And still other suits may claim that the institution’s racial preferences have gone below or above the mystical Grutter-approved “critical mass.” Finally, litigation can be expected on behalf of minority groups intentionally short changed in the institution’s composition of its generic minority “critical mass.” I do not look forward to any of these cases. The Constitution proscribes government discrimination on the basis of race, and state-provided education is no exception.
(with whom Justice Scalia joins as to Parts I—VII, concurring in part and dissenting in part)
Frederick Douglass, speaking to a group of abolitionists almost 140 years ago, delivered a message lost on today’s majority:
[I]n regard to the colored people, there is always more that is benevolent, I perceive, than just, manifested towards us. What I ask for the negro is not benevolence, not pity, not sympathy, but simply justice. The American people have always been anxious to know what they shall do with us .... I have had but one answer from the beginning. Do nothing with us! Your doing with us has already played the mischief with us. Do nothing with us! If the apples will not remain on the tree of their own strength, if they are worm-eaten at the core, if they are early ripe and disposed to fall, let them fall! .... And if the negro cannot stand on his own legs, let him fall also. All I ask is, give him a chance to stand on his own legs! Let him alone! .... [Y]our interference is doing him positive injury.
What the Black Man Wants: An Address Delivered in Boston, Massachusetts, on 26 January 1865, reprinted in 4 The Frederick Douglass Papers 59, 68 (J. Blassingame & J. McKivigan eds. 1991) (emphasis in original).
Like Douglass, I believe blacks can achieve in every avenue of American life without the meddling of university administrators. Because I wish to see all students succeed whatever their color, I share, in some respect, the sympathies of those who sponsor the type of discrimination advanced by the University of Michigan Law School (Law School). The Constitution does not, however, tolerate institutional devotion to the status quo in admissions policies when such devotion ripens into racial discrimination. Nor does the Constitution countenance the unprecedented deference the Court gives to the Law School, an approach inconsistent with the very concept of “strict scrutiny.”
No one would argue that a university could set up a lower general admission standard and then impose heightened requirements only on black applicants. Similarly, a university may not maintain a high admission standard and grant exemptions to favored races. The Law School, of its own choosing, and for its own purposes, maintains an exclusionary admissions system that it knows produces racially disproportionate results. Racial discrimination is not a permissible solution to the self-inflicted wounds of this elitist admissions policy.
The majority upholds the Law School’s racial discrimination not by interpreting the people’s Constitution, but by responding to a faddish slogan of the cognoscenti. Nevertheless, I concur in part in the Court’s opinion.
First, I agree with the Court insofar as its decision, which approves of only one racial classification, confirms that further use of race in admissions remains unlawful.
Second, I agree with the Court’s holding that racial discrimination in higher education admissions will be illegal in 25 years. See ante, at 31 (stating that racial discrimination will no longer be narrowly tailored, or “necessary to further” a compelling state interest, in 25 years).
I respectfully dissent from the remainder of the Court’s opinion and the judgment, however, because I believe that the Law School’s current use of race violates the Equal Protection Clause and that the Constitution means the same thing today as it will in 300 months.
The majority agrees that the Law School’s racial discrimination should be subjected to strict scrutiny. Ante, at 14. Before applying that standard to this case, I will briefly revisit the Court’s treatment of racial classifications.
The strict scrutiny standard that the Court purports to apply in this case was first enunciated in Korematsu v United States, 323 U.S. 214 (1944). There the Court held that “[p]ressing public necessity may sometimes justify the existence of [racial discrimination]; racial antagonism never can.” Id., at 216. This standard of “pressing public necessity” has more frequently been termed “compelling governmental interest,” see, e.g., Regents of Univ. of Cal. v Bakke, 438 U.S. 265, 299 (1978) (opinion of Powell, J.). A majority of the Court has validated only two circumstances where “pressing public necessity” or a “compelling state interest” can possibly justify racial discrimination by state actors.
First, the lesson of Korematsu is that national security constitutes a “pressing public necessity,” though the government’s use of race to advance that objective must be narrowly tailored.
Second, the Court has recognized as a compelling state interest a government’s effort to remedy past discrimination for which it is responsible. Richmond v J. A. Croson Co., 488 U.S. 469, 504 (1989).
The contours of “pressing public necessity” can be further discerned from those interests the Court has rejected as bases for racial discrimination. For example, Wygant v Jackson Bd. of Ed., 476 U.S. 267 (1986), found unconstitutional a collective-bargaining agreement between a school board and a teachers’ union that favored certain minority races. The school board defended the policy on the grounds that minority teachers provided “role models” for minority students and that a racially “diverse” faculty would improve the education of all students. See Brief for Respondents, O.T. 1984, No. 84—1340, pp. 27—28; 476 U.S., at 315 (Stevens, J., dissenting) (“[A]n integrated faculty will be able to provide benefits to the student body that could not be provided by an all-white, or nearly all-white faculty”). Nevertheless, the Court found that the use of race violated the Equal Protection Clause, deeming both asserted state interests insufficiently compelling. Id., at 275—276 (plurality opinion); id., at 295 (White, J., concurring in judgment) (“None of the interests asserted by the [school board] .... justify this racially discriminatory layoff policy”).
An even greater governmental interest involves the sensitive role of courts in child custody determinations. In Palmore v Sidoti, 466 U.S. 429 (1984), the Court held that even the best interests of a child did not constitute a compelling state interest that would allow a state court to award custody to the father because the mother was in a mixed-race marriage. Id., at 433 (finding the interest “substantial” but holding the custody decision could not be based on the race of the mother’s new husband).
Finally, the Court has rejected an interest in remedying general societal discrimination as a justification for race discrimination. See Wygant, supra, at 276 (plurality opinion); Croson, 488 U.S., at 496—498 (plurality opinion); id., at 520—521 (Scalia, J., concurring in judgment). “Societal discrimination, without more, is too amorphous a basis for imposing a racially classified remedy” because a “court could uphold remedies that are ageless in their reach into the past, and timeless in their ability to affect the future.” Wygant, supra, at 276 (plurality opinion). But see Gratz v Bollinger, ante, p. ___ (Ginsburg, J., dissenting).
Where the Court has accepted only national security, and rejected even the best interests of a child, as a justification for racial discrimination, I conclude that only those measures the State must take to provide a bulwark against anarchy, or to prevent violence, will constitute a “pressing public necessity.” Cf. Lee v Washington, 390 U.S. 333, 334 (1968) (per curiam) (Black, J., concurring) (indicating that protecting prisoners from violence might justify narrowly tailored racial discrimination); Croson, supra, at 521 (Scalia, J., concurring in judgment) (“At least where state or local action is at issue, only a social emergency rising to the level of imminent danger to life and limb .... can justify [racial discrimination]”).
The Constitution abhors classifications based on race, not only because those classifications can harm favored races or are based on illegitimate motives, but also because every time the government places citizens on racial registers and makes race relevant to the provision of burdens or benefits, it demeans us all. “Purchased at the price of immeasurable human suffering, the equal protection principle reflects our Nation’s understanding that such classifications ultimately have a destructive impact on the individual and our society.” Adarand Construction, Inc. v Peña,, 515 U.S. 200, 240 (1995) (Thomas, J., concurring in part and concurring in judgment).
Unlike the majority, I seek to define with precision the interest being asserted by the Law School before determining whether that interest is so compelling as to justify racial discrimination. The Law School maintains that it wishes to obtain “educational benefits that flow from student body diversity,” Brief for Respondents Bollinger et al. 14. This statement must be evaluated carefully, because it implies that both “diversity” and “educational benefits” are components of the Law School’s compelling state interest. Additionally, the Law School’s refusal to entertain certain changes in its admissions process and status indicates that the compelling state interest it seeks to validate is actually broader than might appear at first glance.
Undoubtedly there are other ways to “better” the education of law students aside from ensuring that the student body contains a “critical mass” of under-represented minority students. Attaining “diversity,” whatever it means, is the mechanism by which the Law School obtains educational benefits, not an end of itself. The Law School, however, apparently believes that only a racially mixed student body can lead to the educational benefits it seeks. How, then, is the Law School’s interest in these allegedly unique educational “benefits” not simply the forbidden interest in “racial balancing,” ante, at 17, that the majority expressly rejects?
A distinction between these two ideas (unique educational benefits based on racial aesthetics and race for its own sake) is purely sophistic – so much so that the majority uses them interchangeably. Compare ante, at 16 (“[T]he Law School has a compelling interest in attaining a diverse student body”), with ante, at 21 (referring to the “compelling interest in securing the educational benefits of a diverse student body” (emphasis added)). The Law School’s argument, as facile as it is, can only be understood in one way: Classroom aesthetics yields educational benefits, racially discriminatory admissions policies are required to achieve the right racial mix, and therefore the policies are required to achieve the educational benefits. It is the educational benefits that are the end, or allegedly compelling state interest, not “diversity.” But see ante, at 20 (citing the need for “openness and integrity of the educational institutions that provide [legal] training” without reference to any consequential educational benefits).
One must also consider the Law School’s refusal to entertain changes to its current admissions system that might produce the same educational benefits. The Law School adamantly disclaims any race-neutral alternative that would reduce “academic selectivity,” which would in turn “require the Law School to become a very different institution, and to sacrifice a core part of its educational mission.” Brief for Respondents Bollinger et al. 33—36. In other words, the Law School seeks to improve marginally the education it offers without sacrificing too much of its exclusivity and elite status.
The proffered interest that the majority vindicates today, then, is not simply “diversity.” Instead the Court upholds the use of racial discrimination as a tool to advance the Law School’s interest in offering a marginally superior education while maintaining an elite institution. Unless each constituent part of this state interest is of pressing public necessity, the Law School’s use of race is unconstitutional. I find each of them to fall far short of this standard.
A close reading of the Court’s opinion reveals that all of its legal work is done through one conclusory statement: The Law School has a “compelling interest in securing the educational benefits of a diverse student body.” Ante, at 21. No serious effort is made to explain how these benefits fit with the state interests the Court has recognized (or rejected) as compelling, see Part I, supra, or to place any theoretical constraints on an enterprising court’s desire to discover still more justifications for racial discrimination. In the absence of any explanation, one might expect the Court to fall back on the judicial policy of stare decisis. But the Court eschews even this weak defense of its holding, shunning an analysis of the extent to which Justice Powell’s opinion in Regents of Univ. of Cal. v Bakke, 438 U.S. 265 (1978), is binding, ante, at 13, in favor of an unfounded wholesale adoption of it.
Justice Powell’s opinion in Bakke and the Court’s decision today rest on the fundamentally flawed proposition that racial discrimination can be contextualised so that a goal, such as classroom aesthetics, can be compelling in one context but not in another. This “we know it when we see it” approach to evaluating state interests is not capable of judicial application. Today, the Court insists on radically expanding the range of permissible uses of race to something as trivial (by comparison) as the assembling of a law school class. I can only presume that the majority’s failure to justify its decision by reference to any principle arises from the absence of any such principle. See Part VI, infra.
Under the proper standard, there is no pressing public necessity in maintaining a public law school at all and, it follows, certainly not an elite law school. Likewise, marginal improvements in legal education do not qualify as a compelling state interest.
While legal education at a public university may be good policy or otherwise laudable, it is obviously not a pressing public necessity when the correct legal standard is applied. Additionally, circumstantial evidence as to whether a state activity is of pressing public necessity can be obtained by asking whether all States feel compelled to engage in that activity. Evidence that States, in general, engage in a certain activity by no means demonstrates that the activity constitutes a pressing public necessity, given the expansive role of government in today’s society. The fact that some fraction of the States reject a particular enterprise, however, creates a presumption that the enterprise itself is not a compelling state interest. In this sense, the absence of a public, American Bar Association (ABA) accredited, law school in Alaska, Delaware, Massachusetts, New Hampshire, and Rhode Island, see ABA—LSAC Official Guide to ABA-Approved Law Schools (W. Margolis, B. Gordon, J. Puskarz, & D. Rosenlieb, eds. 2004) (hereinafter ABA—LSAC Guide), provides further evidence that Michigan’s maintenance of the Law School does not constitute a compelling state interest.
As the foregoing makes clear, Michigan has no compelling interest in having a law school at all, much less an elite one. Still, even assuming that a State may, under appropriate circumstances, demonstrate a cognizable interest in having an elite law school, Michigan has failed to do so here.
This Court has limited the scope of equal protection review to interests and activities that occur within that State’s jurisdiction. The Court held in Missouri ex rel. Gaines v Canada, 305 U.S. 337 (1938), that Missouri could not satisfy the demands of “separate but equal” by paying for legal training of blacks at neighboring state law schools, while maintaining a segregated law school within the State. The equal protection
obligation is imposed by the Constitution upon the States severally as governmental entities – each responsible for its own laws establishing the rights and duties of persons within its borders. It is an obligation the burden of which cannot be cast by one State upon another, and no State can be excused from performance by what another State may do or fail to do. That separate responsibility of each State within its own sphere is of the essence of statehood maintained under our dual system.
[Id., at 350 (emphasis added)]
The Equal Protection Clause, as interpreted by the Court in Gaines, does not permit States to justify racial discrimination on the basis of what the rest of the Nation “may do or fail to do.” The only interests that can satisfy the Equal Protection Clause’s demands are those found within a State’s jurisdiction.
The only cognizable state interests vindicated by operating a public law school are, therefore, the education of that State’s citizens and the training of that State’s lawyers. James Campbell’s address at the opening of the Law Department at the University of Michigan on October 3, 1859, makes this clear:
It not only concerns the State that every one should have all reasonable facilities for preparing himself for any honest position in life to which he may aspire, but it also concerns the community that the Law should be taught and understood .... There is not an office in the State in which serious legal inquiries may not frequently arise .... In all these matters, public and private rights are constantly involved and discussed, and ignorance of the Law has frequently led to results deplorable and alarming .... [I]n the history of this State, in more than one instance, that ignorance has led to unlawful violence, and the shedding of innocent blood.
[E. Brown, Legal Education at Michigan 1859—1959, pp. 404—406 (1959) (emphasis added)]
The Law School today, however, does precious little training of those attorneys who will serve the citizens of Michigan. In 2002, graduates of the University of Michigan Law School made up less than 6% of applicants to the Michigan bar, Michigan Lawyers Weekly, available at http: // www.michiganlawyersweekly.com / barpassers0202.cfm, barpassers0702.cfm (all Internet materials as visited June 13, 2003, and available in Clerk of Court’s case file), even though the Law School’s graduates constitute nearly 30% of all law students graduating in Michigan. Ibid. Less than 16% of the Law School’s graduating class elects to stay in Michigan after law school. ABA—LSAC Guide 427. Thus, while a mere 27% of the Law School’s 2002 entering class are from Michigan, see University of Michigan Law School Website, available at http:// www.law.umich.edu / prospectivestudents /Admissions/index.htm, only half of these, it appears, will stay in Michigan.
In sum, the Law School trains few Michigan residents and overwhelmingly serves students, who, as lawyers, leave the State of Michigan. By contrast, Michigan’s other public law school, Wayne State University Law School, sends 88% of its graduates on to serve the people of Michigan. ABA—LSAC Guide 775. It does not take a social scientist to conclude that it is precisely the Law School’s status as an elite institution that causes it to be a way-station for the rest of the country’s lawyers, rather than a training ground for those who will remain in Michigan. The Law School’s decision to be an elite institution does little to advance the welfare of the people of Michigan or any cognizable interest of the State of Michigan.
Again, the fact that few States choose to maintain elite law schools raises a strong inference that there is nothing compelling about elite status. Arguably, only the public law schools of the University of Texas, the University of California, Berkeley (Boalt Hall), and the University of Virginia maintain the same reputation for excellence as the Law School. Two of these States, Texas and California, are so large that they could reasonably be expected to provide elite legal training at a separate law school to students who will, in fact, stay in the State and provide legal services to its citizens. And these two schools far outshine the Law School in producing in-state lawyers. The University of Texas, for example, sends over three-fourths of its graduates on to work in the State of Texas, vindicating the State’s interest (compelling or not) in training Texas’ lawyers. Id., at 691.
Finally, even if the Law School’s racial tinkering produces tangible educational benefits, a marginal improvement in legal education cannot justify racial discrimination where the Law School has no compelling interest in either its existence or in its current educational and admissions policies.
The interest in remaining elite and exclusive that the majority thinks so obviously critical requires the use of admissions “standards” that, in turn, create the Law School’s “need” to discriminate on the basis of race. The Court validates these admissions standards by concluding that alternatives that would require “a dramatic sacrifice of .... the academic quality of all admitted students,” ante, at 27, need not be considered before racial discrimination can be employed. In the majority’s view, such methods are not required by the “narrow tailoring” prong of strict scrutiny because that inquiry demands, in this context, that any race-neutral alternative work “‘about as well.’” Ante, at 26—27 (quoting Wygant, 476 U.S., at 280, n.6). The majority errs, however, because race-neutral alternatives must only be “workable,” ante, at 27, and do “about as well” in vindicating the compelling state interest. The Court never explicitly holds that the Law School’s desire to retain the status quo in “academic selectivity” is itself a compelling state interest, and, as I have demonstrated, it is not. See Part III—B, supra. Therefore, the Law School should be forced to choose between its classroom aesthetic and its exclusionary admissions system – it cannot have it both ways.
With the adoption of different admissions methods, such as accepting all students who meet minimum qualifications, see Brief for United States as Amicus Curiae 13—14, the Law School could achieve its vision of the racially aesthetic student body without the use of racial discrimination. The Law School concedes this, but the Court holds, implicitly and under the guise of narrow tailoring, that the Law School has a compelling state interest in doing what it wants to do. I cannot agree.
First, under strict scrutiny, the Law School’s assessment of the benefits of racial discrimination and devotion to the admissions status quo are not entitled to any sort of deference, grounded in the First Amendment or anywhere else.
Second, even if its “academic selectivity” must be maintained at all costs along with racial discrimination, the Court ignores the fact that other top law schools have succeeded in meeting their aesthetic demands without racial discrimination.
The Court bases its unprecedented deference to the Law School – a deference antithetical to strict scrutiny – on an idea of “educational autonomy” grounded in the First Amendment. Ante, at 17. In my view, there is no basis for a right of public universities to do what would otherwise violate the Equal Protection Clause.
The constitutionalisation of “academic freedom” began with the concurring opinion of Justice Frankfurter in Sweezy v New Hampshire, 354 U.S. 234 (1957). Sweezy, a Marxist economist, was investigated by the Attorney General of New Hampshire on suspicion of being a subversive. The prosecution sought, inter alia, the contents of a lecture Sweezy had given at the University of New Hampshire. The Court held that the investigation violated due process. Id., at 254.
Justice Frankfurter went further, however, reasoning that the First Amendment created a right of academic freedom that prohibited the investigation. Id., at 256—267 (opinion concurring in result). Much of the rhetoric in Justice Frankfurter’s opinion was devoted to the personal right of Sweezy to free speech. See, e.g., id., at 265 (“For a citizen to be made to forgo even a part of so basic a liberty as his political autonomy, the subordinating interest of the State must be compelling”). Still, claiming that the United States Reports “need not be burdened with proof,” Justice Frankfurter also asserted that a “free society” depends on “free universities” and “[t]his means the exclusion of governmental intervention in the intellectual life of a university.” Id., at 262. According to Justice Frankfurter: “[I]t is the business of a university to provide that atmosphere which is most conducive to speculation, experiment and creation. It is an atmosphere in which there prevail ‘the four essential freedoms’ of a university – to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study.’” Id., at 263 (citation omitted).
In my view, “[i]t is the business” of this Court to explain itself when it cites provisions of the Constitution to invent new doctrines – including the idea that the First Amendment authorizes a public university to do what would otherwise violate the Equal Protection Clause. The majority fails in its summary effort to prove this point. The only source for the Court’s conclusion that public universities are entitled to deference even within the confines of strict scrutiny is Justice Powell’s opinion in Bakke. Justice Powell, for his part, relied only on Justice Frankfurter’s opinion in Sweezy and the Court’s decision in Keyishian v Board of Regents of Univ. of State of N. Y., 385 U.S. 589 (1967), to support his view that the First Amendment somehow protected a public university’s use of race in admissions. Bakke, 438 U.S., at 312. Keyishian provides no answer to the question whether the Fourteenth Amendment’s restrictions are relaxed when applied to public universities. In that case, the Court held that state statutes and regulations designed to prevent the “appointment or retention of ‘subversive’ persons in state employment,” 385 U.S., at 592, violated the First Amendment for vagueness. The statutes covered all public employees and were not invalidated only as applied to university faculty members, although the Court appeared sympathetic to the notion of academic freedom, calling it a “special concern of the First Amendment.” Id., at 603. Again, however, the Court did not relax any independent constitutional restrictions on public universities.
I doubt that when Justice Frankfurter spoke of governmental intrusions into the independence of universities, he was thinking of the Constitution’s ban on racial discrimination. The majority’s broad deference to both the Law School’s judgment that racial aesthetics leads to educational benefits and its stubborn refusal to alter the status quo in admissions methods finds no basis in the Constitution or decisions of this Court.
The Court’s deference to the Law School’s conclusion that its racial experimentation leads to educational benefits will, if adhered to, have serious collateral consequences. The Court relies heavily on social science evidence to justify its deference. See ante, at 18—20; but see also Rothman, Lipset, & Nevitte, Racial Diversity Reconsidered, 151 Public Interest 25 (2003) (finding that the racial mix of a student body produced by racial discrimination of the type practiced by the Law School in fact hinders students’ perception of academic quality). The Court never acknowledges, however, the growing evidence that racial (and other sorts) of heterogeneity actually impairs learning among black students. See, e.g., Flowers & Pascarella, Cognitive Effects of College Racial Composition on African American Students After 3 Years of College, 40 J. of College Student Development 669, 674 (1999) (concluding that black students experience superior cognitive development at Historically Black Colleges (HBCs) and that, even among blacks, “a substantial diversity moderates the cognitive effects of attending an HBC”); Allen, The Color of Success: African-American College Student Outcomes at Predominantly White and Historically Black Public Colleges and Universities, 62 Harv. Educ. Rev. 26, 35 (1992) (finding that black students attending HBCs report higher academic achievement than those attending predominantly white colleges).
At oral argument in Gratz v Bollinger, ante, p. ___, counsel for respondents stated that “most every single one of [the HBCs] do have diverse student bodies.” Tr. of Oral Arg. in No. 02—516, p. 52. What precisely counsel meant by “diverse” is indeterminate, but it is reported that in 2000 at Morehouse College, one of the most distinguished HBC’s in the Nation, only 0.1% of the student body was white, and only 0.2% was Hispanic. College Admissions Data Handbook 2002—2003, p. 613 (43d ed. 2002) (hereinafter College Admissions Data Handbook). And at Mississippi Valley State University, a public HBC, only 1.1% of the freshman class in 2001 was white. Id., at 603. If there is a “critical mass” of whites at these institutions, then “critical mass” is indeed a very small proportion.
The majority grants deference to the Law School’s “assessment that diversity will, in fact, yield educational benefits,” ante, at 16. It follows, therefore, that an HBC’s assessment that racial homogeneity will yield educational benefits would similarly be given deference. An HBC’s rejection of white applicants in order to maintain racial homogeneity seems permissible, therefore, under the majority’s view of the Equal Protection Clause. But see United States v Fordice, 505 U.S. 717, 748 (1992) (Thomas, J., concurring) (“Obviously, a State cannot maintain .... traditions by closing particular institutions, historically white or historically black, to particular racial groups”). Contained within today’s majority opinion is the seed of a new constitutional justification for a concept I thought long and rightly rejected – racial segregation.
Moreover one would think, in light of the Court’s decision in United States v Virginia, 518 U.S. 515 (1996), that before being given license to use racial discrimination, the Law School would be required to radically reshape its admissions process, even to the point of sacrificing some elements of its character. In Virginia, a majority of the Court, without a word about academic freedom, accepted the all-male Virginia Military Institute’s (VMI) representation that some changes in its “adversative” method of education would be required with the admission of women, id., at 540, but did not defer to VMI’s judgment that these changes would be too great. Instead, the Court concluded that they were “manageable.” Id., at 551, n.19. That case involved sex discrimination, which is subjected to intermediate, not strict, scrutiny. Id., at 533; Craig v Boren, 429 U.S 190, 197 (1976). So in Virginia, where the standard of review dictated that greater flexibility be granted to VMI’s educational policies than the Law School deserves here, this Court gave no deference. Apparently where the status quo being defended is that of the elite establishment – here the Law School – rather than a less fashionable Southern military institution, the Court will defer without serious inquiry and without regard to the applicable legal standard.
Virginia is also notable for the fact that the Court relied on the “experience” of formerly single-sex institutions, such as the service academies, to conclude that admission of women to VMI would be “manageable.” 518 U.S., at 544—545. Today, however, the majority ignores the “experience” of those institutions that have been forced to abandon explicit racial discrimination in admissions.
The sky has not fallen at Boalt Hall at the University of California, Berkeley, for example. Prior to Proposition 209’s adoption of Cal. Const., Art. 1, §31(a), which bars the State from “grant[ing] preferential treatment .... on the basis of race .... in the operation of .... public education,” Boalt Hall enrolled 20 blacks and 28 Hispanics in its first-year class for 1996. In 2002, without deploying express racial discrimination in admissions, Boalt’s entering class enrolled 14 blacks and 36 Hispanics. University of California Law and Medical School Enrollments, available at http://www.ucop.edu/acadadv/ datamgmt/ lawmed/ law-enrolls-etp.html. Total under-represented minority student enrollment at Boalt Hall now exceeds 1996 levels. Apparently the Law School cannot be counted on to be as resourceful. The Court is willfully blind to the very real experience in California and elsewhere, which raises the inference that institutions with “reputation[s] for excellence,” ante, at 16, 26, rivaling the Law School’s have satisfied their sense of mission without resorting to prohibited racial discrimination.
Putting aside the absence of any legal support for the majority’s reflexive deference, there is much to be said for the view that the use of tests and other measures to “predict” academic performance is a poor substitute for a system that gives every applicant a chance to prove he can succeed in the study of law. The rallying cry that in the absence of racial discrimination in admissions there would be a true meritocracy ignores the fact that the entire process is poisoned by numerous exceptions to “merit.” For example, in the national debate on racial discrimination in higher education admissions, much has been made of the fact that elite institutions utilize a so-called “legacy” preference to give the children of alumni an advantage in admissions. This, and other, exceptions to a “true” meritocracy give the lie to protestations that merit admissions are in fact the order of the day at the Nation’s universities. The Equal Protection Clause does not, however, prohibit the use of unseemly legacy preferences or many other kinds of arbitrary admissions procedures. What the Equal Protection Clause does prohibit are classifications made on the basis of race. So while legacy preferences can stand under the Constitution, racial discrimination cannot. I will not twist the Constitution to invalidate legacy preferences or otherwise impose my vision of higher education admissions on the Nation. The majority should similarly stay its impulse to validate faddish racial discrimination the Constitution clearly forbids.
In any event, there is nothing ancient, honorable, or constitutionally protected about “selective” admissions. The University of Michigan should be well aware that alternative methods have historically been used for the admission of students, for it brought to this country the German certificate system in the late-19th century. See H. Wechsler, The Qualified Student 16—39 (1977) (hereinafter Qualified Student). Under this system, a secondary school was certified by a university so that any graduate who completed the course offered by the school was offered admission to the university. The certification regime supplemented, and later virtually replaced (at least in the Midwest), the prior regime of rigorous subject-matter entrance examinations. Id., at 57—58. The facially race-neutral “percent plans” now used in Texas, California, and Florida, see ante, at 28, are in many ways the descendents of the certificate system.
Certification was replaced by selective admissions in the beginning of the 20th century, as universities sought to exercise more control over the composition of their student bodies. Since its inception, selective admissions has been the vehicle for racial, ethnic, and religious tinkering and experimentation by university administrators. The initial driving force for the relocation of the selective function from the high school to the universities was the same desire to select racial winners and losers that the Law School exhibits today. Columbia, Harvard, and others infamously determined that they had “too many” Jews, just as today the Law School argues it would have “too many” whites if it could not discriminate in its admissions process. See Qualified Student 155—168 (Columbia); H. Broun & G. Britt, Christians Only: A Study in Prejudice 53—54 (1931) (Harvard).
Columbia employed intelligence tests precisely because Jewish applicants, who were predominantly immigrants, scored worse on such tests. Thus, Columbia could claim (falsely) that “‘[w]e have not eliminated boys because they were Jews and do not propose to do so. We have honestly attempted to eliminate the lowest grade of applicant [through the use of intelligence testing] and it turns out that a good many of the low grade men are New York City Jews.’” Letter from Herbert E. Hawkes, dean of Columbia College, to E. B. Wilson, June 16, 1922 (reprinted in Qualified Student 160—161). In other words, the tests were adopted with full knowledge of their disparate impact. Cf. DeFunis v Odegaard, 416 U.S. 312, 335 (1974) (per curiam) (Douglas, J., dissenting).
Similarly no modern law school can claim ignorance of the poor performance of blacks, relatively speaking, on the Law School Admissions Test (LSAT). Nevertheless, law schools continue to use the test and then attempt to “correct” for black underperformance by using racial discrimination in admissions so as to obtain their aesthetic student body. The Law School’s continued adherence to measures it knows produce racially skewed results is not entitled to deference by this Court. See Part IV, supra. The Law School itself admits that the test is imperfect, as it must, given that it regularly admits students who score at or below 150 (the national median) on the test. See App. 156—203 (showing that, between 1995 and 2000, the Law School admitted 37 students – 27 of whom were black; 31 of whom were “under-represented minorities” – with LSAT scores of 150 or lower). And the Law School’s amici cannot seem to agree on the fundamental question whether the test itself is useful. Compare Brief for Law School Admission Council as Amicus Curiae 12 (“LSAT scores .... are an effective predictor of students’ performance in law school”) with Brief for Harvard Black Law Students Association et al. as Amici Curiae 27 (“Whether [the LSAT] measure[s] objective merit .... is certainly questionable”).
Having decided to use the LSAT, the Law School must accept the constitutional burdens that come with this decision. The Law School may freely continue to employ the LSAT and other allegedly merit-based standards in whatever fashion it likes. What the Equal Protection Clause forbids, but the Court today allows, is the use of these standards hand-in-hand with racial discrimination. An infinite variety of admissions methods are available to the Law School. Considering all of the radical thinking that has historically occurred at this country’s universities, the Law School’s intractable approach toward admissions is striking.
The Court will not even deign to make the Law School try other methods, however, preferring instead to grant a 25-year license to violate the Constitution. And the same Court that had the courage to order the desegregation of all public schools in the South now fears, on the basis of platitudes rather than principle, to force the Law School to abandon a decidedly imperfect admissions regime that provides the basis for racial discrimination.
The absence of any articulated legal principle supporting the majority’s principal holding suggests another rationale. I believe what lies beneath the Court’s decision today are the benighted notions that one can tell when racial discrimination benefits (rather than hurts) minority groups, see Adarand, 515 U.S., at 239 (Scalia, J., concurring in part and concurring in judgment), and that racial discrimination is necessary to remedy general societal ills. This Court’s precedents supposedly settled both issues, but clearly the majority still cannot commit to the principle that racial classifications are per se harmful and that almost no amount of benefit in the eye of the beholder can justify such classifications.
Putting aside what I take to be the Court’s implicit rejection of Adarand’s holding that beneficial and burdensome racial classifications are equally invalid, I must contest the notion that the Law School’s discrimination benefits those admitted as a result of it. The Court spends considerable time discussing the impressive display of amicus support for the Law School in this case from all corners of society. Ante, at 18—19. But nowhere in any of the filings in this Court is any evidence that the purported “beneficiaries” of this racial discrimination prove themselves by performing at (or even near) the same level as those students who receive no preferences. Cf. Thernstrom & Thernstrom, Reflections on the Shape of the River, 46 UCLA L. Rev. 1583, 1605—1608 (1999) (discussing the failure of defenders of racial discrimination in admissions to consider the fact that its “beneficiaries” are under-performing in the classroom).
The silence in this case is deafening to those of us who view higher education’s purpose as imparting knowledge and skills to students, rather than a communal, rubber-stamp, credentialing process. The Law School is not looking for those students who, despite a lower LSAT score or undergraduate grade point average, will succeed in the study of law. The Law School seeks only a facade – it is sufficient that the class looks right, even if it does not perform right.
The Law School tantalizes unprepared students with the promise of a University of Michigan degree and all of the opportunities that it offers. These overmatched students take the bait, only to find that they cannot succeed in the cauldron of competition. And this mismatch crisis is not restricted to elite institutions. See T. Sowell, Race and Culture 176—177 (1994) (“Even if most minority students are able to meet the normal standards at the ‘average’ range of colleges and universities, the systematic mismatching of minority students begun at the top can mean that such students are generally overmatched throughout all levels of higher education”). Indeed, to cover the tracks of the aestheticists, this cruel farce of racial discrimination must continue – in selection for the Michigan Law Review, see University of Michigan Law School Student Handbook 2002—2003, pp. 39—40 (noting the presence of a “diversity plan” for admission to the review), and in hiring at law firms and for judicial clerkships–until the “beneficiaries” are no longer tolerated. While these students may graduate with law degrees, there is no evidence that they have received a qualitatively better legal education (or become better lawyers) than if they had gone to a less “elite” law school for which they were better prepared. And the aestheticists will never address the real problems facing “under-represented minorities,” instead continuing their social experiments on other people’s children.
Beyond the harm the Law School’s racial discrimination visits upon its test subjects, no social science has disproved the notion that this discrimination “engender[s] attitudes of superiority or, alternatively, provoke[s] resentment among those who believe that they have been wronged by the government’s use of race.” Adarand, 515 U.S., at 241 (Thomas, J., concurring in part and concurring in judgment). “These programs stamp minorities with a badge of inferiority and may cause them to develop dependencies or to adopt an attitude that they are ‘entitled’ to preferences.” Ibid.
It is uncontested that each year, the Law School admits a handful of blacks who would be admitted in the absence of racial discrimination. See Brief for Respondents Bollinger et al. 6. Who can differentiate between those who belong and those who do not? The majority of blacks are admitted to the Law School because of discrimination, and because of this policy all are tarred as undeserving. This problem of stigma does not depend on determinacy as to whether those stigmatized are actually the “beneficiaries” of racial discrimination. When blacks take positions in the highest places of government, industry, or academia, it is an open question today whether their skin color played a part in their advancement. The question itself is the stigma – because either racial discrimination did play a role, in which case the person may be deemed “otherwise unqualified,” or it did not, in which case asking the question itself unfairly marks those blacks who would succeed without discrimination. Is this what the Court means by “visibly open”? Ante, at 20.
Finally, the Court’s disturbing reference to the importance of the country’s law schools as training grounds meant to cultivate “a set of leaders with legitimacy in the eyes of the citizenry,” ibid., through the use of racial discrimination deserves discussion. As noted earlier, the Court has soundly rejected the remedying of societal discrimination as a justification for governmental use of race. Wygant, 476 U.S., at 276 (plurality opinion); Croson, 488 U.S., at 497 (plurality opinion); id., at 520—521 (Scalia, J., concurring in judgment). For those who believe that every racial disproportionality in our society is caused by some kind of racial discrimination, there can be no distinction between remedying societal discrimination and erasing racial disproportionalities in the country’s leadership caste. And if the lack of proportional racial representation among our leaders is not caused by societal discrimination, then “fixing” it is even less of a pressing public necessity.
The Court’s civics lesson presents yet another example of judicial selection of a theory of political representation based on skin color – an endeavor I have previously rejected. See Holder v Hall, 512 U.S. 874, 899 (1994) (Thomas, J., concurring in judgment). The majority appears to believe that broader utopian goals justify the Law School’s use of race, but “[t]he Equal Protection Clause commands the elimination of racial barriers, not their creation in order to satisfy our theory as to how society ought to be organized.” DeFunis, 416 U.S., at 342 (Douglas, J., dissenting).
As the foregoing makes clear, I believe the Court’s opinion to be, in most respects, erroneous. I do, however, find two points on which I agree.
First, I note that the issue of unconstitutional racial discrimination among the groups the Law School prefers is not presented in this case, because petitioner has never argued that the Law School engages in such a practice, and the Law School maintains that it does not. See Brief for Respondents Bollinger et al. 32, n. 50, and 6—7, n.7. I join the Court’s opinion insofar as it confirms that this type of racial discrimination remains unlawful. Ante, at 13—15. Under today’s decision, it is still the case that racial discrimination that does not help a university to enroll an unspecified number, or “critical mass,” of under-represented minority students is unconstitutional. Thus, the Law School may not discriminate in admissions between similarly situated blacks and Hispanics, or between whites and Asians. This is so because preferring black to Hispanic applicants, for instance, does nothing to further the interest recognized by the majority today. Indeed, the majority describes such racial balancing as “patently unconstitutional.” Ante, at 17. Like the Court, ante, at 24, I express no opinion as to whether the Law School’s current admissions program runs afoul of this prohibition.
The Court also holds that racial discrimination in admissions should be given another 25 years before it is deemed no longer narrowly tailored to the Law School’s fabricated compelling state interest. Ante, at 30. While I agree that in 25 years the practices of the Law School will be illegal, they are, for the reasons I have given, illegal now. The majority does not and cannot rest its time limitation on any evidence that the gap in credentials between black and white students is shrinking or will be gone in that timeframe. In recent years there has been virtually no change, for example, in the proportion of law school applicants with LSAT scores of 165 and higher who are black. In 1993 blacks constituted 1.1% of law school applicants in that score range, though they represented 11.1% of all applicants. Law School Admission Council, National Statistical Report (1994) (hereinafter LSAC Statistical Report). In 2000 the comparable numbers were 1.0% and 11.3%. LSAC Statistical Report (2001). No one can seriously contend, and the Court does not, that the racial gap in academic credentials will disappear in 25 years. Nor is the Court’s holding that racial discrimination will be unconstitutional in 25 years made contingent on the gap closing in that time.
Indeed, the very existence of racial discrimination of the type practiced by the Law School may impede the narrowing of the LSAT testing gap. An applicant’s LSAT score can improve dramatically with preparation, but such preparation is a cost, and there must be sufficient benefits attached to an improved score to justify additional study. Whites scoring between 163 and 167 on the LSAT are routinely rejected by the Law School, and thus whites aspiring to admission at the Law School have every incentive to improve their score to levels above that range. See App. 199 (showing that in 2000, 209 out of 422 white applicants were rejected in this scoring range). Blacks, on the other hand, are nearly guaranteed admission if they score above 155. Id., at 198 (showing that 63 out of 77 black applicants are accepted with LSAT scores above 155). As admission prospects approach certainty, there is no incentive for the black applicant to continue to prepare for the LSAT once he is reasonably assured of achieving the requisite score. It is far from certain that the LSAT test-taker’s behavior is responsive to the Law School’s admissions policies. Nevertheless, the possibility remains that this racial discrimination will help fulfill the bigot’s prophecy about black underperformance – just as it confirms the conspiracy theorist’s belief that “institutional racism” is at fault for every racial disparity in our society.
I therefore can understand the imposition of a 25-year time limit only as a holding that the deference the Court pays to the Law School’s educational judgments and refusal to change its admissions policies will itself expire. At that point these policies will clearly have failed to “‘eliminat[e] the [perceived] need for any racial or ethnic’” discrimination because the academic credentials gap will still be there. Ante, at 30 (quoting Nathanson & Bartnika, The Constitutionality of Preferential Treatment for Minority Applicants to Professional Schools, 58 Chicago Bar Rec. 282, 293 (May—June 1977)). The Court defines this time limit in terms of narrow tailoring, see ante, at 30, but I believe this arises from its refusal to define rigorously the broad state interest vindicated today. Cf. Part II, supra. With these observations, I join the last sentence of Part III of the opinion of the Court.
For the immediate future, however, the majority has placed its imprimatur on a practice that can only weaken the principle of equality embodied in the Declaration of Independence and the Equal Protection Clause. “Our Constitution is color-blind, and neither knows nor tolerates classes among citizens.” Plessy v Ferguson, 163 U.S. 537, 559 (1896) (Harlan, J., dissenting). It has been nearly 140 years since Frederick Douglass asked the intellectual ancestors of the Law School to “[d]o nothing with us!” and the Nation adopted the Fourteenth Amendment. Now we must wait another 25 years to see this principle of equality vindicated. I therefore respectfully dissent from the remainder of the Court’s opinion and the judgment.
 Although Hamacher indicated that he “intend[ed] to apply to transfer if the [LSA’s] discriminatory admissions system [is] eliminated,” he has since graduated from Michigan State University. App. 34.
 The University of Michigan Board of Regents was subsequently named as the proper defendant in place of the University and the LSA. See id., at 17.
 Duderstadt was the president of the University during the time that Gratz’s application was under consideration. He has been sued in his individual capacity. Bollinger was the president of the University when Hamacher applied for admission. He was originally sued in both his individual and official capacities, but he is no longer the president of the University. Id., at 35.
 A group of African-American and Latino students who applied for, or intended to apply for, admission to the University, as well as the Citizens for Affirmative Action’s Preservation, a nonprofit organization in Michigan, sought to intervene pursuant to Federal Rule of Civil Procedure 24. See App. 13—14. The District Court originally denied this request, see id., at 14—15, but the Sixth Circuit reversed that decision. See Gratz v Bollinger, 188 F.3d 394 (1999).
 The District Court decided also to consider petitioners’ request for injunctive and declaratory relief during the liability phase of the proceedings. App. 71.
 Our description is taken, in large part, from the “Joint Proposed Summary of Undisputed Facts Regarding Admissions Process” filed by the parties in the District Court. App. to Pet. for Cert. 108a—117a.
 In 1995, counselors used four such tables for different groups of applicants: (1) in-state, non-minority applicants; (2) out-of-state, non-minority applicants; (3) in-state, minority applicants; and (4) out-of-state, minority applicants. In 1996, only two tables were used, one for in-state applicants and one for out-of-state applicants. But each cell on these two tables contained separate courses of action for minority applicants and non-minority applicants whose GPA 2 scores and ACT/SAT scores placed them in that cell.
 LSA applicants who are Michigan residents must accumulate 80 points from the selection index criteria to be flagged, while out-of-state applicants need to accumulate 75 points to be eligible for such consideration. See App. 257.
 The District Court considered and rejected respondent-intervenors’ arguments in a supplemental opinion and order. See 135 F.Supp. 2d 790 (ED Mich. 2001). The court explained that respondent-intervenors “failed to present any evidence that the discrimination alleged by them, or the continuing effects of such discrimination, was the real justification for the LSA’s race-conscious admissions programs.” Id., at 795. We agree, and to the extent respondent-intervenors reassert this justification, a justification the University has never asserted throughout the course of this litigation, we affirm the District Court’s disposition of the issue.
 The District Court determined that respondents Bollinger and Duderstadt, who were sued in their individual capacities under Rev. Stat. §1979, 42 U.S.C. § 1983 were entitled to summary judgment based on the doctrine of qualified immunity. See 122 F.Supp. 2d, at 833—834. Petitioners have not asked this Court to review this aspect of the District Court’s decision. The District Court denied the Board of Regents’ motion for summary judgment with respect to petitioners’ Title VI claim on Eleventh Amendment immunity grounds. See id., at 834—836. Respondents have not asked this Court to review this aspect of the District Court’s decision.
 The Equal Protection Clause of the Fourteenth Amendment explains that “[n]o State shall .... deny to any person within its jurisdiction the equal protection of the laws.”
 Title VI provides that “[n]o person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 42 U.S.C. § 2000d.
 Section 1981(a) provides that: “All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, .... and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens.”
 This finding is further corroborated by Hamacher’s request that the District Court “[r]equir[e] the LSA College to offer [him] admission as a transfer student.” App. 40.
 Although we do not resolve here whether such an inquiry in this case is appropriately addressed under the rubric of standing or adequacy, we note that there is tension in our prior cases in this regard. See, e.g., Burns, Standing and Mootness in Class Actions: A Search for Consistency, 22 U.C. D. L.Rev. 1239, 1240—1241 (1989); General Telephone Co. of Southwest v Falcon, 457 U.S. 147, 149 (1982) (Mexican-American plaintiff alleging that he was passed over for a promotion because of race was not an adequate representative to “maintain a class action on behalf of Mexican-American applicants” who were not hired by the same employer); Blum v Yaretsky, 457 U.S. 991 (1982) (class representatives who had been transferred to lower levels of medical care lacked standing to challenge transfers to higher levels of care).
 Because the University’s guidelines concededly use race in evaluating both freshman and transfer applications, and because petitioners have challenged any use of race by the University in undergraduate admissions, the transfer admissions policy is very much before this Court. Although petitioners did not raise a narrow tailoring challenge to the transfer policy, as counsel for petitioners repeatedly explained, the transfer policy is before this Court in that petitioners challenged any use of race by the University to promote diversity, including through the transfer policy. See Tr. of Oral Arg. 4 (“[T]he [transfer] policy is essentially the same with respect to the consideration of race”); id., at 5 (“The transfer policy considers race”); id., at 6 (same); id., at 7 (“[T]he transfer policy and the [freshman] admissions policy are fundamentally the same in the respect that they both consider race in the admissions process in a way that is discriminatory”); id., at 7—8 (“[T]he University considers race for a purpose to achieve a diversity that we believe is not compelling, and if that is struck down as a rationale, then the [result] would be [the] same with respect to the transfer policy as with respect to the [freshman] admissions policy, Your Honor”).
 Indeed, as the litigation history of this case demonstrates, “the class-action device save[d] the resources of both the courts and the parties by permitting an issue potentially affecting every [class member] to be litigated in an economical fashion.” Califano v Yamasaki, 442 U.S. 682, 701 (1979). This case was therefore quite unlike General Telephone Co. of Southwest v Falcon, 457 U.S. 147 (1982), in which we found that the named representative, who had been passed over for a promotion, was not an adequate representative for absent class members who were never hired in the first instance. As we explained, the plaintiff’s “evidentiary approaches to the individual and class claims were entirely different. He attempted to sustain his individual claim by proving intentional discrimination. He tried to prove the class claims through statistical evidence of disparate impact .... It is clear that the maintenance of respondent’s action as a class action did not advance ‘the efficiency and economy of litigation which is a principal purpose of the procedure.’” Id., at 159 (quoting American Pipe & Constr. Co. v Utah, 414 U.S. 538, 553 (1974)).
 U.C. Davis set aside 16 of the 100 seats available in its first year medical school program for “economically and/or educationally disadvantaged” applicants who were also members of designated “minority groups” as defined by the university. “To the extent that there existed a pool of at least minimally qualified minority applicants to fill the 16 special admissions seats, white applicants could compete only for 84 seats in the entering class, rather than the 100 open to minority applicants.” Regents of Univ. of Cal. v Bakke, 438 U.S. 265, 274, 289 (1978) (principal opinion). Justice Powell found that the program employed an impermissible two-track system that “disregard[ed] . . . individual rights as guaranteed by the Fourteenth Amendment.” Id., at 315. He reached this conclusion even though the university argued that “the reservation of a specified number of seats in each class for individuals from the preferred ethnic groups” was “the only effective means of serving the interest of diversity.” Ibid. Justice Powell concluded that such arguments misunderstood the very nature of the diversity he found to be compelling. See ibid.
 Justice Souter recognizes that the LSA’s use of race is decisive in practice, but he attempts to avoid that fact through unsupported speculation about the self-selection of minorities in the applicant pool. See Post, at 6 (dissenting opinion).
 Justice Souter is therefore wrong when he contends that “applicants to the undergraduate college are [not] denied individualized consideration.” Post, at 6. As Justice O’Connor explains in her concurrence, the LSA’s program “ensures that the diversity contributions of applicants cannot be individually assessed.” Post, at 4.
 Justice Souter is mistaken in his assertion that the Court “take[s] it upon itself to apply a newly formulated legal standard to an undeveloped record.” Post, at 7, n.3. He ignores the fact that the respondents have told us all that is necessary to decide this case. As explained above, respondents concede that only a portion of the applications are reviewed by the ARC and that the “bulk of admissions decisions” are based on the point system. It should be readily apparent that the availability of this review, which comes after the automatic distribution of points, is far more limited than the individualized review given to the “large middle group of applicants” discussed by Justice Powell and described by the Harvard plan in Bakke. 438 U.S., at 316 (internal quotation marks omitted).
 Justice Ginsburg in her dissent observes that “[o]ne can reasonably anticipate .... that colleges and universities will seek to maintain their minority enrollment .... whether or not they can do so in full candor through adoption of affirmative action plans of the kind here at issue.” Post, at 7-8. She goes on to say that “[i]f honesty is the best policy, surely Michigan’s accurately described, fully disclosed College affirmative action program is preferable to achieving similar numbers through winks, nods, and disguises.” Post, at 8. These observations are remarkable for two reasons. First, they suggest that universities – to whose academic judgment we are told in Grutter v Bollinger, post, at 16, we should defer – will pursue their affirmative-action programs whether or not they violate the United States Constitution. Second, they recommend that these violations should be dealt with, not by requiring the universities to obey the Constitution, but by changing the Constitution so that it conforms to the conduct of the universities.
 We have explained that discrimination that violates the Equal Protection Clause of the Fourteenth Amendment committed by an institution that accepts federal funds also constitutes a violation of Title VI. See Alexander v Sandoval, 532 U.S. 275, 281 (2001); United States v Fordice, 505 U.S. 717, 732, n.7 (1992); Alexander v Choate, 469 U.S. 287, 293 (1985). Likewise, with respect to §1981, we have explained that the provision was “meant, by its broad terms, to proscribe discrimination in the making or enforcement of contracts against, or in favor of, any race.” McDonald v Santa Fe Trail Transp. Co., 427 U.S. 273, 295—296 (1976). Furthermore, we have explained that a contract for educational services is a “contract” for purposes of §1981. See Runyon v McCrary, 427 U.S. 160, 172 (1976). Finally, purposeful discrimination that violates the Equal Protection Clause of the Fourteenth Amendment will also violate §1981. See General Building Contractors Assn., Inc. v Pennsylvania, 458 U.S. 375, 389—390 (1982).
 In challenging the use of race in admissions at Michigan’s law school, Barbara Grutter alleged in her complaint that she “has not attended any other law school” and that she “still desires to attend the Law School and become a lawyer.” App. in No. 02—241, p. 30.
 Petitioners did not seek to have Gratz represent the class pursuant to Federal Rule Civil Procedure23(b)(2). See App. 71, n.3.
 In arguing that Hamacher lacked standing, Michigan also asserted that Hamacher “would need to achieve a 3.0 grade point average to attempt to transfer to the University of Michigan.” Id., at 64, n. 2. The District Court rejected this argument, concluding that “Hamacher’s present grades are not a factor to be considered at this time.” Id., at 67.
 In responding to questions about petitioners’ standing at oral argument, petitioners’ counsel alluded to the fact that Michigan might continually change the details of its admissions policy. See Tr. of Oral Arg. 9. The change in Michigan’s freshman admissions policy, however, is not the reason why petitioners cannot establish standing to seek prospective relief. Rather, the reason they lack standing to seek forward-looking relief is that when this suit was filed, neither faced a “real and immediate threat” of future injury under Michigan’s freshman admissions policy given that they had both already enrolled at other institutions. Adarand Constructors, Inc. v Peña, 515 U.S. 200, 210 (1995) (quoting Los Angeles v Lyons, 461 U.S. 95, 105 (1983)). Their decision to obtain a college education elsewhere distinguishes this case from Allan Bakke’s single-minded pursuit of a medical education from the University of California at Davis. See Regents of Univ of Cal. v Bakke, 438 U.S. 265 (1978); cf. DeFunis v Odegaard, 416 U.S. 312 (1974) (per curiam).
 Hamacher clearly can no longer claim an intent to transfer into Michigan’s undergraduate program given that he graduated from college in 2001. However, this fact alone is not necessarily fatal to the instant class action because we have recognized that, if a named class representative has standing at the time a suit is initiated, class actions may proceed in some instances following mootness of the named class representative’s claim. See, e.g., Sosna v Iowa, 419 U.S. 393, 402 (1975) (holding that the requisite Article III “case or controversy” may exist “between a named defendant and a member of the class represented by the named plaintiff, even though the claim of the named plaintiff has become moot”); Franks v Bowman Transp. Co., 424 U.S. 747 (1976). The problem in this case is that neither Gratz nor Hamacher had standing to assert a forward-looking, injunctive claim in federal court at the time this suit was initiated.
 Under the majority’s view of standing, there would be no end to Hamacher’s ability to challenge any use of race by the University in a variety of programs. For if Hamacher’s right to complain about the transfer policy gives him standing to challenge the freshman policy, presumably his ability to complain about the transfer policy likewise would enable him to challenge Michigan’s law school admissions policy, as well as any other race-based admissions policy used by Michigan.
 Of course, the injury to Hamacher would give him standing to claim damages for past harm on behalf of class members, but he was certified as the class representative for the limited purpose of seeking injunctive and declaratory relief.
 The Court’s holding arguably exposes a weakness in the rule of Blum v Yaretsky, 457 U.S. 991 (1982), that Article III standing may not be satisfied by the unnamed members of a duly certified class. But no party has invited us to reconsider Blum, and I follow Justice Stevens in approaching the case on the assumption that Blum is settled law.
 For that matter, as the Court suggests, narrow tailoring challenges against the two policies could well have different outcomes. Ante, at 18. The record on the decision making process for transfer applicants is understandably thin, given that petitioners never raised a narrow tailoring challenge against it. Most importantly, however, the transfer policy does not use a points-based “selection index” to evaluate transfer applicants, but rather considers race as one of many factors in making the general determination whether the applicant would make a “‘contribution to a diverse student body.’” Ante, at 17 (quoting 2 App. in No. 01—1333 etc. (CA6), p. 531 (capitalization omitted)). This limited glimpse into the transfer policy at least permits the inference that the University engages in a “holistic review” of transfer applications consistent with the program upheld today in Grutter v Bollinger, post, at 25.
 The Court surmises that the committee does not contribute meaningfully to the University’s individualized review of applications. Ante, at 25—26. The Court should not take it upon itself to apply a newly-formulated legal standard to an undeveloped record. Given the District Court’s statement that the committee may examine “any number of applicants, including applicants other than under-represented minority applicants,” 122 F.Supp. 2d 811, 830 (ED Mich. 2000), it is quite possible that further factual development would reveal the committee to be a “source of individualized consideration” sufficient to satisfy the Court’s rule, ante, at 4 (O’Connor, J., concurring). Determination of that issue in the first instance is a job for the District Court, not for this Court on a record that is admittedly lacking.
 Of course it might be pointless in the State of Michigan, where minorities are a much smaller fraction of the population than in California, Florida, or Texas. Brief for Respondents Bollinger et al. 48—49.
 See, e.g., U.S. Dept. of Commerce, Bureau of Census, Statistical Abstract of the United States: 2002, p.368 (2002) (Table 562) (hereinafter Statistical Abstract) (unemployment rate among whites was 3.7% in 1999, 3.5% in 2000, and 4.2% in 2001; during those years, the unemployment rate among African-Americans was 8.0%, 7.6%, and 8.7%, respectively; among Hispanics, 6.4%, 5.7%, and 6.6%).
 See, e.g., U.S. Dept of Commerce, Bureau of Census, Poverty in the United States: 2000, p.291 (2001) (Table A) (In 2000, 7.5% of non-Hispanic whites, 22.1% of African-Americans, 10.8% of Asian-Americans, and 21.2% of Hispanics were living in poverty); S. Staveteig & A. Wigton, Racial and Ethnic Disparities: Key Findings from the National Survey of America’s Families 1 (Urban Institute Report B—5, 2000) (“Blacks, Hispanics, and Native Americans .... each have poverty rates almost twice as high as Asians and almost three times as high as whites.”).
 See, e.g., U.S. Dept. of Commerce, Bureau of Census, Health Insurance Coverage: 2000, p.391 (2001) (Table A) (In 2000, 9.7% of non-Hispanic whites were without health insurance, as compared to 18.5% of African-Americans, 18.0% of Asian-Americans, and 32.0% of Hispanics.); Waidmann & Rajan, Race and Ethnic Disparities in Health Care Access and Utilization: An Examination of State Variation, 57 Med. Care Res. and Rev. 55, 56 (2000) (“On average, Latinos and African Americans have both worse health and worse access to effective health care than do non-Hispanic whites ....”).
 See, e.g., U.S. Dept. of Commerce, Bureau of Census, Racial and Ethnic Residential Segregation in the United States: 1980—2000 (2002) (documenting residential segregation); E. Frankenberg, C. Lee, & G. Orfield, A Multiracial Society with Segregated Schools: Are We Losing the Dream? 4 (Jan. 2003), http://www.civilrightsproject.harvard.edu/ research/reseg03/ AreWeLosingtheDream.pdf (all Internet materials as visited June 2, 2003, and available in Clerk of Court’s case file), (“[W]hites are the most segregated group in the nation’s public schools; they attend schools, on average, where eighty percent of the student body is white.”); id., at 28 (“[A]lmost three-fourths of black and Latino students attend schools that are predominantly minority .... More than one in six black children attend a school that is 99—100% minority .... One in nine Latino students attend virtually all minority schools.”).
 See, e.g., Ryan, Schools, Race, and Money, 109 Yale L.J. 249, 273—274 (1999) (“Urban public schools are attended primarily by African-American and Hispanic students”; students who attend such schools are disproportionately poor, score poorly on standardized tests, and are far more likely to drop out than students who attend non-urban schools.).
 See, e.g., Statistical Abstract 140 (Table 211).
 See, e.g., Holzer, Career Advancement Prospects and Strategies for Low-Wage Minority Workers, in Low-Wage Workers in the New Economy 228 (R. Kazis & M. Miller eds. 2001) (“[I]n studies that have sent matched pairs of minority and white applicants with apparently equal credentials to apply for jobs, whites routinely get more interviews and job offers than either black or Hispanic applicants.”); M. Bertrand & S. Mullainathan, Are Emily and Brendan More Employable than Lakisha and Jamal?: A Field Experiment on Labor Market Discrimination (Nov. 18, 2002), http://gsb.uchicago.edu/pdf/bertrand.pdf; Mincy, The Urban Institute Audit Studies: Their Research and Policy Context, in Clear and Convincing Evidence: Measurement of Discrimination in America 165—186 (M. Fix & R. Struyk eds. 1993).
 See, e.g., M. Turner et al., Discrimination in Metropolitan Housing Markets: National Results from Phase I HDS 2000, pp. i, iii (Nov. 2002), http://www.huduser.org/Publications/pdf/Phase1_Report.pdf (paired testing in which “two individuals – one minority and the other white – pose as otherwise identical home-seekers, and visit real estate or rental agents to inquire about the availability of advertised housing units” revealed that “discrimination still persists in both rental and sales markets of large metropolitan areas nationwide”); M. Turner & F. Skidmore, Mortgage Lending Discrimination: A Review of Existing Evidence 2 (1999) (existing research evidence shows that minority homebuyers in the United States “face discrimination from mortgage lending institutions.”).
 See, e.g., Ayres, Further Evidence of Discrimination in New Car Negotiations and Estimates of its Cause, 94 Mich. L.Rev. 109, 109—110 (1995) (study in which 38 testers negotiated the purchase of more than 400 automobiles confirmed earlier finding “that dealers systematically offer lower prices to white males than to other tester types”).
 The United States points to the “percentage plans” used in California, Florida, and Texas as one example of a “race-neutral alternativ[e]” that would permit the College to enroll meaningful numbers of minority students. Brief for United States as Amicus Curiae 14; see Commission on Civil Rights, Beyond Percentage Plans: The Challenge of Equal Opportunity in Higher Education 1 (Nov. 2002), http://www.usccr.gov/pubs/percent2/percent2.pdf (percentage plans guarantee admission to state universities for a fixed percentage of the top students from high schools in the State). Calling such 10 or 20% plans “race-neutral” seems to me disingenuous, for they “unquestionably were adopted with the specific purpose of increasing representation of African-Americans and Hispanics in the public higher education system.” Brief for Respondents 44; see C. Horn & S. Flores, Percent Plans in College Admissions: A Comparative Analysis of Three States’ Experiences 14—19 (2003), http://www.civilrightsproject.harvard.edu/research/affirmativeaction/tristate.pdf. Percentage plans depend for their effectiveness on continued racial segregation at the secondary school level: They can ensure significant minority enrollment in universities only if the majority-minority high school population is large enough to guarantee that, in many schools, most of the students in the top 10 or 20% are minorities. Moreover, because such plans link college admission to a single criterion – high school class rank – they create perverse incentives. They encourage parents to keep their children in low-performing segregated schools, and discourage students from taking challenging classes that might lower their grade point averages. See Selingo, What States Aren’t Saying About the ‘X-Percent Solution,’ Chronicle of Higher Education, June 2, 2000, p. A31. And even if percentage plans could boost the sheer numbers of minority enrollees at the undergraduate level, they do not touch enrollment in graduate and professional schools.
 Contrary to the Court’s contention, I do not suggest “changing the Constitution so that it conforms to the conduct of the universities.” Ante, at 27, n. 22. In my view, the Constitution, properly interpreted, permits government officials to respond openly to the continuing importance of race. See supra, at 4—5. Among constitutionally permissible options, those that candidly disclose their consideration of race seem to me preferable to those that conceal it.
 As the Court explains, the admissions policy challenged here survives review under the standards stated in Adarand Constructors, Inc . v Peña, 515 U.S. 200 (1995), Richmond v J. A. Croson Co., 488 U.S. 469 (1989), and Justice Powell’s opinion in Regents of Univ of Cal. v Bakke, 438 U.S. 265 (1978). This case therefore does not require the Court to revisit whether all governmental classifications by race, whether designed to benefit or to burden a historically disadvantaged group, should be subject to the same standard of judicial review. Cf. Gratz, ante, at 4—5 (Ginsburg, J., dissenting); Adarand, 515 U.S., at 274, n.8 (Ginsburg, J., dissenting). Nor does this case necessitate reconsideration whether interests other than “student body diversity,” ante, at 13, rank as sufficiently important to justify a race-conscious government program. Cf. Gratz, ante, at 5 (Ginsburg, J., dissenting); Adarand, 515 U.S., at 273—274 (Ginsburg, J., dissenting).
 Indeed, during this 5-year time period, enrollment of Native American students dropped to as low as three such students. Any assertion that such a small group constituted a “critical mass” of Native Americans is simply absurd.
 Throughout I will use the two phrases interchangeably.
 The Court’s refusal to address Wygant’s rejection of a state interest virtually indistinguishable from that presented by the Law School is perplexing. If the Court defers to the Law School’s judgment that a racially mixed student body confers educational benefits to all, then why would the Wygant Court not defer to the school board’s judgment with respect to the benefits a racially mixed faculty confers?
 “[D]iversity,” for all of its devotees, is more a fashionable catchphrase than it is a useful term, especially when something as serious as racial discrimination is at issue. Because the Equal Protection Clause renders the color of one’s skin constitutionally irrelevant to the Law School’s mission, I refer to the Law School’s interest as an “aesthetic.” That is, the Law School wants to have a certain appearance, from the shape of the desks and tables in its classrooms to the color of the students sitting at them. I also use the term “aesthetic” because I believe it underlines the ineffectiveness of racially discriminatory admissions in actually helping those who are truly underprivileged. Cf. Orr v Orr, 440 U.S. 268, 283 (1979) (noting that suspect classifications are especially impermissible when “the choice made by the State appears to redound .... to the benefit of those without need for special solicitude”). It must be remembered that the Law School’s racial discrimination does nothing for those too poor or uneducated to participate in elite higher education and therefore presents only an illusory solution to the challenges facing our Nation.
 The Law School believes both that the educational benefits of a racially engineered student body are large and that adjusting its overall admissions standards to achieve the same racial mix would require it to sacrifice its elite status. If the Law School is correct that the educational benefits of “diversity” are so great, then achieving them by altering admissions standards should not compromise its elite status. The Law School’s reluctance to do this suggests that the educational benefits it alleges are not significant or do not exist at all.
 Cf. U.S. News & World Report, America’s Best Graduate Schools 28 (2004 ed.) (placing these schools in the uppermost 15 in the Nation).
 The Court refers to this component of the Law School’s compelling state interest variously as “academic quality,” avoiding “sacrifice [of] a vital component of its educational mission,” and “academic selectivity.” Ante, at 27—28.
 For example, North Carolina A&T State University, which is currently 5.4% white, College Admissions Data Handbook 643, could seek to reduce the representation of whites in order to gain additional educational benefits.
 Cal. Const., Art. 1, §31(a), states in full: “The state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.” See Coalition for Economic Equity v Wilson, 122 F.3d 692 (CA9 1997).
 Given the incredible deference the Law School receives from the Court, I think it appropriate to indulge in the presumption that Boalt Hall operates without violating California law.
 Were this Court to have the courage to forbid the use of racial discrimination in admissions, legacy preferences (and similar practices) might quickly become less popular – a possibility not lost, I am certain, on the elites (both individual and institutional) supporting the Law School in this case.
 For example, there is no recognition by the Law School in this case that even with their racial discrimination in place, black men are “under-represented” at the Law School. See ABA—LSAC Guide 426 (reporting that the Law School has 46 black women and 28 black men). Why does the Law School not also discriminate in favor of black men over black women, given this under-representation? The answer is, again, that all the Law School cares about is its own image among know-it-all elites, not solving real problems like the crisis of black male underperformance.
 That interest depends on enrolling a “critical mass” of under-represented minority students, as the majority repeatedly states. Ante, at 3, 5, 7, 17, 20, 21, 23, 28; cf. ante, at 21 (referring to the unique experience of being a “racial minority,” as opposed to being black, or Native American); ante, at 24 (rejecting argument that the Law School maintains a disguised quota by referring to the total number of enrolled under-represented minority students, not specific races). As it relates to the Law School’s racial discrimination, the Court clearly approves of only one use of race – the distinction between under-represented minority applicants and those of all other races. A relative preference awarded to a black applicant over, for example, a similarly situated Native American applicant, does not lead to the enrollment of even one more under-represented minority student, but only balances the races within the “critical mass.”
 I agree with Justice Ginsburg that the Court’s holding that racial discrimination in admissions will be illegal in 25 years is not based upon a “forecast,” post, at 3 (concurring opinion). I do not agree with Justice Ginsburg’s characterization of the Court’s holding as an expression of “hope.” Ibid.
 I use a score of 165 as the benchmark here because the Law School feels it is the relevant score range for applicant consideration (absent race discrimination). See Brief for Respondents Bollinger et al. 5; App. to Pet. for Cert. 309a (showing that the median LSAT score for all accepted applicants from 1995—1998 was 168); id., at 310a—311a (showing the median LSAT score for accepted applicants was 167 for the years 1999 and 2000); University of Michigan Law School Website, available at http://www.law.umich.edu/prospectivestudents/Admissions/ index.htm (showing that the median LSAT score for accepted applicants in 2002 was 166).
 The majority’s non sequitur observation that since 1978 the number of blacks that have scored in these upper ranges on the LSAT has grown, ante, at 30, says nothing about current trends. First, black participation in the LSAT until the early 1990’s lagged behind black representation in the general population. For instance, in 1984 only 7.3% of law school applicants were black, whereas in 2000 11.3% of law school applicants were black. See LSAC Statistical Reports (1984 and 2000). Today, however, unless blacks were to begin applying to law school in proportions greater than their representation in the general population, the growth in absolute numbers of high scoring blacks should be expected to plateau, and it has. In 1992, 63 black applicants to law school had LSAT scores above 165. In 2000, that number was 65. See LSAC Statistical Reports (1992 and 2000).
 I use the LSAT as an example, but the same incentive structure is in place for any admissions criteria, including undergraduate grades, on which minorities are consistently admitted at thresholds significantly lower than whites.
Regents of Univ. of Cal. v Bakke, 438 U.S. 265 (1978); Grutter v Bollinger, post; Clements v Fashing, 457 U.S. 957 (1982); Turner v Fouche, 396 U.S. 346 (1970); Quinn v Millsap, 491 U.S. 95 (1989); Northeastern Fla. Chapter, Associated Gen. Contractors of America v Jacksonville, 508 U.S. 656 (1993); Blum v Yaretsky, 457 U.S. 991 (1982); General Telephone Co. of Southwest v Falcon, 457 U.S. 147 (1982); Coopers & Lybrand v Livesay, 437 U.S. 463 (1978); Adarand Constructors, Inc. v Peña, 515 U.S. 200; Richmond v J. A. Croson Co., 488 U.S. 469 (1989); Fullilove v Klutznick, 448 U.S. 448 (1980); Wygant v Jackson Bd. of Ed., 476 U.S. 267 (1986); Frontiero v Richardson, 411 U.S. 677 (1973); Los Angeles v Lyons, 461 U.S. 95 (1983); O’Shea v Littleton, 414 U.S. 488 (1974); Lujan v Defenders of Wildlife, 504 U.S. 555 (1992); Allen v Wright, 468 U.S. 737 (1984); Schlesinger v Reservists Comm. to Stop the War, 418 U.S. 208 (1974); H. L. v Matheson, 450 U.S. 398 (1981); Simon v Eastern Ky. Welfare Rights Organization, 426 U.S. 26 (1976); Warth v Seldin, 422 U.S. 490 (1975); Johnson v Transportation Agency, Santa Clara Cty., 480 U.S. 616 (1987); Norwalk Core v Norwalk Redevelopment Agency, 395 F.2d 920 (CA2 1968); United States v Jefferson County Bd. of Ed., 372 F.2d 836 (CA5 1966); Northeastern Fla. Chapter, Associated Gen. Contractors of America v. Jacksonville, 508 U.S. 656 (1993); Marks v United States, 430 U.S. 188 (1977); Hopwood v. Texas, 78 F.3d 932 (CA5 1996); Smith v. University of Wash. Law School, 233 F.3d 1188 (CA9 2000) ; Keyishian v. Board of Regents of Univ. of State of N. Y., 385 U.S. 589 (1967); Loving v. Virginia, 388 U.S. 1 (1967); Gomillion v. Lightfoot, 364 U.S. 339 (1960); Regents of Univ. of Mich. v. Ewing, 474 U.S. 214 (1985); Board of Curators of Univ. of Mo. v. Horowitz, 435 U.S. 78 (1978); Wieman v. Updegraff, 344 U.S. 183 (1952); Sweezy v. New Hampshire, 354 U.S. 234 (1957); Plyler v. Doe, 457 U.S. 202 (1982); Brown v. Board of Education, 347 U.S. 483 (1954); Sweatt v. Painter, 339 U.S. 629 (1950); Shaw v. Hunt, 517 U.S. 899 (1996); Sheet Metal Workers v. EEOC, 478 U.S. 421 (1986); Metro Broadcasting, Inc. v. FCC, 497 U.S. 547 (1990); Palmore v. Sidoti, 466 U.S. 429 (1984); United States v. Lopez, 514 U.S. 549 (1995); General Building Contractors Assn., Inc. v. Pennsylvania, 458 U.S. 375 (1982); Wessmann v Gittens, 160 F.3d 790 (CA1 1998); Tuttle v Arlington Cty. School Bd., 195 F.3d 698 (CA4 1999); Johnson v Board of Regents of Univ. of Ga., 263 F.3d 1234 (CA11 2001); Cooper v Aaron, 358 U.S. 1 (1958); United States v Paradise, 480 U.S. 149 (1987); Miller-El v Cockrell, 537 U.S. 322 (2003); Korematsu v United States, 323 U.S. 214 (1944); Lee v Washington, 390 U.S. 333 (1968); Missouri ex rel. Gaines v Canada, 305 U.S. 337 (1938); United States v Fordice, 505 U.S. 717 (1992); United States v Virginia, 518 U.S. 515 (1996); Craig v Boren, 429 U.S 190 (1976); DeFunis v Odegaard, 416 U.S. 312 (1974); Holder v Hall, 512 U.S. 874 (1994); Plessy v Ferguson, 163 U.S. 537 (1896); General Telephone Co. of Southwest v Falcon, 457 U.S. 147 (1982); Califano v Yamasaki, 442 U.S. 682 (1979); General Telephone Co. of Southwest v Falcon, 457 U.S. 147 (1982); American Pipe & Constr. Co. v Utah, 414 U.S. 538 (1974); Alexander v Sandoval, 532 U.S. 275 (2001); Alexander v Choate, 469 U.S. 287 (1985); McDonald v Santa Fe Trail Transp. Co., 427 U.S. 273 (1976); Runyon v McCrary, 427 U.S. 160 (1976); DeFunis v Odegaard, 416 U.S. 312 (1974); Sosna v Iowa, 419 U.S. 393 (1975); Franks v Bowman Transp. Co., 424 U.S. 747 (1976); Orr v Orr, 440 U.S. 268 (1979); Coalition for Economic Equity v Wilson, 122 F.3d 692 (CA9 1997)
Fourteenth Amendment: Equal Protection Clause
Civil Rights Act of 1964 (42 U.S.C.): § 2000d: Title VI
Federal Rule of Civil Procedure: Rule 23(b)(2)
International Convention on the Elimination of All Forms of Racial Discrimination Annex to G.A. Res. 2106, 20 U.N. GAOR Res. Supp. (No. 14) 47, U.N. Doc. A/6014, (1965): Art. 1(4), Art. 2(2)
Convention on the Elimination of All Forms of Discrimination against Women, Annex to G.A. Res. 34/180, 34 U.N. GAOR Res. Supp. (No. 46) 194, U.N. Doc. A/34/46, (1979): Art. 4(1)
Authors and other references
1 A. Conte & H. Newberg, Class Actions §2:5 (4th ed. 2002)
Krieger, "Civil Rights Perestroika: Inter-group Relations After Affirmative Action", 86 Calif. L.Rev. 1251 (1998)
Carter, "When Victims Happen To Be Black", 97 Yale L.J. 420 (1988)
Wechsler, "The Nationalization Of Civil Liberties And Civil Rights", Supp. to 12 Tex. Q. 10 (1968)
Liu, "The Causation Fallacy: Bakke and the Basic Arithmetic of Selective Admissions", 100 Mich. L.Rev. 1045 (2002)
Steinberg, "Using Synonyms for Race, College Strives for Diversity", N.Y. Times, Dec. 8, 2002
W. Bowen & D. Bok, The Shape of the River (1998)
Diversity Challenged: Evidence on the Impact of Affirmative Action (G. Orfield & M. Kurlaender eds. 2001)
Compelling Interest: Examining the Evidence on Racial Dynamics in Colleges and Universities (M. Chang, D. Witt, J. Jones, & K. Hakuta eds. 2003)
Nathanson & Bartnik, "The Constitutionality of Preferential Treatment for Minority Applicants to Professional Schools", 58 Chicago Bar Rec. 282 (May—June 1977)
E. Frankenberg, C. Lee, & G. Orfield, "A Multiracial Society with Segregated Schools: Are We Losing the Dream?" (Jan. 2003), http://www.civilrightsproject. harvard.edu / research / reseg03/AreWeLosingtheDream.pdf
General Accounting Office, Per-Pupil Spending Differences Between Selected Inner City and Suburban Schools Varied by Metropolitan Area, 17 (2002)
P. Hart & R. Teeter, A National Priority: Americans Speak on Teacher Quality 2 (2002)
Schuck, "Affirmative Action: Past, Present, and Future", 20 Yale L. & Pol’y Rev. 1 (2002)
Levinson, "Diversity", 2 U.Pa. J. Const. L. 573 (2000)
Rubenfeld, "Affirmative Action", 107 Yale L.J. 427 (1997)
"What the Black Man Wants": An Address Delivered in Boston, Massachusetts, on 26 January 1865, reprinted in 4 The Frederick Douglass Papers 59, 68 (J. Blassingame & J. McKivigan eds. 1991)
LSAC Official Guide to ABA-Approved Law Schools (W. Margolis, B. Gordon, J. Puskarz, & D. Rosenlieb, eds. 2004)
E. Brown, Legal Education at Michigan 1859—1959 (1959)
Rothman, Lipset, & Nevitte, "Racial Diversity Reconsidered", 151 Public Interest 25 (2003)
Flowers & Pascarella, "Cognitive Effects of College Racial Composition on African American Students After 3 Years of College", 40 J. of College Student Development (1999)
Allen, "The Color of Success: African-American College Student Outcomes at Predominantly White and Historically Black Public Colleges and Universities", 62 Harv. Educ. Rev. 26 (1992)
H. Wechsler, The Qualified Student (1977)
H. Broun & G. Britt, Christians Only: A Study in Prejudice (1931) (Harvard)
Thernstrom & Thernstrom, "Reflections on the Shape of the River", 46 UCLA L. Rev. 1583 (1999)
T. Sowell, Race and Culture 176—177 (1994)
University of Michigan Law School Student Handbook 2002—2003
Law School Admission Council, National Statistical Report (1994)
LSAC Statistical Report (2001)
Burns, Standing and Mootness in Class Actions: A Search for Consistency, 22 U.C. D. L.Rev. 1239 (1989)
U.S. Dept. of Commerce, Bureau of Census, Statistical Abstract of the United States
U.S. Dept. of Commerce, Bureau of Census, Racial and Ethnic Residential Segregation in the United States: 1980—2000 (2002)
all rights reserved