(Cite as: 438 U.S. 265, 98 S.Ct. 2733)
REGENTS OF the UNIVERSITY OF CALIFORNIA,
Petitioner,
v.
Allan BAKKE.
No. 76‑811.
Supreme Court of the United States
Argued Oct. 12, 1977.
Decided June 28, 1978.
White
male whose application to state medical school was rejected brought action
challenging legality of the school's special admissions program under which 16
of the 100 positions in the class were reserved for "disadvantaged"
minority students. School cross‑claimed for declaratory judgment that its
program was legal. The trial court declared the program illegal but refused to
order the school to admit the applicant. The California Supreme Court, 18
Cal.3d 34, 132 Cal.Rptr. 680, 553 P.2d 1152, affirmed the finding that the
program was illegal and ordered the student admitted and the school sought
certiorari. The Supreme Court, Mr. Justice Powell, held that: (1) the special
admissions program was illegal, but (2) race may be one of a number of factors
considered by school in passing on applications, and (3) since the school could
not show that the white applicant would not have been admitted even in the
absence of the special admissions program, the applicant was entitled to be
admitted.
Affirmed
in part and reversed in part.
Mr.
Justice Brennan, Mr. Justice White, Mr. Justice Marshall and Mr. Justice
Blackmun filed an opinion concurring in the judgment in part and dissenting.
Mr.
Justice White filed a separate opinion.
Mr.
Justice Marshall filed a separate opinion.
Mr.
Justice Blackmun filed a separate opinion.
Mr.
Justice Stevens concurred in the judgment in part and dissented in part and
filed an opinion in which Mr. Chief Justice Burger, Mr. Justice Stewart and Mr.
Justice Rehnquist joined.
**2735 *265 Syllabus [FN*]
FN* The syllabus constitutes no part of the
opinion of the Court but has been prepared by the Reporter of Decisions for the
convenience of the reader. See United States v. Detroit Timber & Lumber
Co., 200 U.S. 321, 337, 26 S.Ct. 282, 287, 50 L.Ed. 499.
The
Medical School of the University of California at Davis (hereinafter Davis) had
two admissions programs for the entering **2736 class of 100 students‑‑the
regular admissions program and the special admissions program. Under the
regular procedure, candidates whose overall undergraduate grade point averages
fell below 2.5 on a scale of 4.0 were summarily rejected. About one out of six
applicants was then given an interview, following which he was rated on a scale
of 1 to 100 by each of the committee members (five in 1973 and six in 1974),
his rating being based on the interviewers' summaries, his overall grade point
average, his science courses grade point average, his Medical College
Admissions Test (MCAT) scores, letters of recommendation, extracurricular
activities, and other biographical data, all of which resulted in a total
"benchmark score." The full admissions committee then made offers of
admission on the basis of their review of the applicant's file and his score,
considering and acting upon applications as they were received. The committee
chairman was responsible for placing names on the waiting list and had
discretion to include persons with "special skills." A separate
committee, a majority of whom were members of minority groups, operated the
special admissions program. The 1973 and 1974 application forms, respectively,
asked candidates whether they wished to be considered as"economically
and/or educationally disadvantaged" applicants and members of a
"minority group" (blacks, Chicanos, Asians, American Indians). If an
applicant of a minority group was found to be "disadvantaged," he
would be rated in a manner similar to the one employed by the general
admissions committee. Special candidates, however, did not have to meet the 2.5
grade point cutoff and were not ranked against candidates in the general
admissions process. About one‑fifth of the special applicants were
invited for interviews in 1973 and 1974, following which they were given
benchmark scores, and the top choices were then given to the general admissions
committee, which could reject special candidates for failure to meet course
requirements or other specific deficiencies. The special committee continued to
recommend candidates until 16 special admission selections had been made.
During a four‑year period 63 minority *266 students were admitted to
Davis under the special program and 44 under the general program. No
disadvantaged whites were admitted under the special program, though many
applied. Respondent, a white male, applied to Davis in 1973 and 1974, in both
years being considered only under the general admissions program. Though he had
a 468 out of 500 score in 1973, he was rejected since no general applicants
with scores less than 470 were being accepted after respondent's application,
which was filed late in the year, had been processed and completed. At that
time four special admission slots were still unfilled. In 1974 respondent
applied early, and though he had a total score of 549 out of 600, he was again
rejected. In neither year was his name placed on the discretionary waiting
list. In both years special applicants were admitted with significantly lower
scores than respondent's. After his second rejection, respondent filed this
action in state court for mandatory, injunctive, and declaratory relief to
compel his admission to Davis, alleging that the special admissions program
operated to exclude him on the basis of his race in violation of the Equal
Protection Clause of the Fourteenth Amendment, a provision of the California
Constitution, and § 601 of Title VI of the Civil Rights Act of 1964, which
provides, inter alia, that no person shall on the ground of race or color be
excluded from participating in any program receiving federal financial
assistance. Petitioner cross‑claimed for a declaration that its special
admissions program was lawful. The trial court found that the special program
operated as a racial quota, because minority applicants in that program were
rated only against one another, and 16 places in the class of 100 were reserved
for them. Declaring that petitioner could not take race into account in making
admissions decisions, the program was held to violate the Federal and State
Constitutions and Title VI. Respondent's admission was not ordered, however,
for lack of proof that he would have **2737 been admitted but for the special
program. The California Supreme Court, applying a strict‑ scrutiny
standard, concluded that the special admissions program was not the least
intrusive means of achieving the goals of the admittedly compelling state
interests of integrating the medical profession and increasing the number of
doctors willing to serve minority patients. Without passing on the state
constitutional or federal statutory grounds the court held that petitioner's
special admissions program violated the Equal Protection Clause. Since
petitioner could not satisfy its burden of demonstrating that respondent,
absent the special program, would not have been admitted, the court ordered his
admission to Davis.
Held: The
judgment below is affirmed insofar as it orders respondent's admission to Davis
and invalidates petitioner's special admissions program, *267 but is reversed
insofar as it prohibits petitioner from taking race into account as a factor in
its future admissions decisions.
18 Cal.3d
34, 132 Cal.Rptr. 680, 553 P.2d 1152, affirmed in part and reversed in part.
Mr.
Justice POWELL concluded:
1. Title
VI proscribes only those racial classifications that would violate the Equal
Protection Clause if employed by a State or its agencies. Pp. 2744‑ 2747.
2. Racial
and ethnic classifications of any sort are inherently suspect and call for the
most exacting judicial scrutiny. While the goal of achieving a diverse student
body is sufficiently compelling to justify consideration of race in admissions
decisions under some circumstances, petitioner's special admissions program,
which forecloses consideration to persons like respondent, is unnecessary to
the achievement of this compelling goal and therefore invalid under the Equal
Protection Clause. Pp. 2747‑2764.
3. Since
petitioner could not satisfy its burden of proving that respondent would not
have been admitted even if there had been no special admissions program, he
must be admitted. P. 2764.
Mr.
Justice BRENNAN, Mr. Justice WHITE, Mr. Justice MARSHALL, and Mr. Justice
BLACKMUN concluded:
1. Title
VI proscribes only those racial classifications that would violate the Equal
Protection Clause if employed by a State or its agencies. Pp. 2768‑ 2781.
2. Racial
classifications call for strict judicial scrutiny. Nonetheless, the purpose of
overcoming substantial, chronic minority underrepresentation in the medical
profession is sufficiently important to justify petitioner's remedial use of
race. Thus, the judgment below must be reversed in that it prohibits race from
being used as a factor in university admissions. Pp. 2782‑ 2794.
Mr.
Justice STEVENS, joined by THE CHIEF JUSTICE, Mr. Justice STEWART, and Mr.
Justice REHNQUIST, being of the view that whether race can ever be a factor in
an admissions policy is not an issue here; that Title VI applies; and that
respondent was excluded from Davis in violation of Title VI, concurs in the
Court's judgment insofar as it affirms the judgment of the court below ordering
respondent admitted to Davis. Pp. 2809‑2815.
*268
Archibald Cox, Cambridge, Mass., for petitioner.
Sol. Gen.
Wade H. McCree, Jr., Washington, D. C., for United States, as amicus curiae, by
special leave of Court.
Reynold H.
Colvin, San Francisco, Cal., for respondent.
*269 Mr. Justice POWELL announced the judgment
of the Court.
[1] This
case presents a challenge to the special admissions program of the petitioner,
the Medical School of the University of California at Davis, which is designed
to assure the admission *270 of a specified number of students from certain
minority groups. The Superior Court of California sustained respondent's
challenge, holding that petitioner's program violated the California
Constitution, Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et
seq., and the Equal Protection Clause of the Fourteenth **2738 Amendment. The
court enjoined petitioner from considering respondent's race or the race of any
other applicant in making admissions decisions. It refused, however, to order
respondent's admission to the Medical School, holding that he had not carried
his burden of proving that he would have been admitted but for the
constitutional and statutory violations. The Supreme Court of California
affirmed those portions of the trial court's judgment declaring the special
admissions program unlawful and enjoining petitioner from considering the race
of any applicant. [FN**]*271 It
modified that portion of the judgment denying respondent's requested injunction
and directed the trial court to order his admission.
FN** Mr. Justice STEVENS views the judgment of the
California court as limited to prohibiting the consideration of race only in
passing upon Bakke's application. Post, at 2809‑2810. It must be
remembered, however, that petitioner here cross‑complained in the trial
court for a declaratory judgment that its special program was constitutional
and it lost. The trial court's judgment that the special program was unlawful
was affirmed by the California Supreme Court in an opinion which left no doubt
that the reason for its holding was petitioner's use of race in consideration
of any candidate's application. Moreover, in explaining the scope of its
holding, the court quite clearly stated that petitioner was prohibited from taking
race into account in any way in making admissions decisions:
"In addition, the University may properly as
it in fact does, consider other factors in evaluating an applicant, such as the
personal interview, recommendations, character, and matters relating to the
needs of the profession and society, such as an applicant's professional goals.
In short, the standards for admission employed by the University are not
constitutionally infirm except to the extent that they are utilized in a
racially discriminatory manner. Disadvantaged applicants of all races must be
eligible for sympathetic consideration, and no applicant may be rejected
because of his race, in favor of another who is less qualified, as measured by standards applied without regard to
race. We reiterate, in view of the dissent's misinterpretation, that we do not
compel the University to utilize only 'the highest objective academic
credentials' as the criterion for admission." 18 Cal.3d 34, 54‑55,
132 Cal.Rptr. 680, 693‑694, 553 P.2d 1152, 1166 (1976) (footnote
omitted).
This explicit statement makes it unreasonable to
assume that the reach of the California court's judgment can be limited in the
manner suggested by Mr. Justice STEVENS.
For the
reasons stated in the following opinion, I believe that so much of the judgment
of the California court as holds petitioner's special admissions program
unlawful and directs that respondent be admitted to the Medical School must be
affirmed. For the reasons expressed in a separate opinion, my Brothers THE CHIEF
JUSTICE, Mr. Justice STEWART, Mr. Justice REHNQUIST and Mr. Justice STEVENS
concur in this judgment.
*272 I
also conclude for the reasons stated in the following opinion that the portion
of the court's judgment enjoining petitioner from according any consideration
to race in its admissions process must be reversed. For reasons expressed in
separate opinions, my Brothers Mr. Justice BRENNAN, Mr. Justice WHITE, Mr.
Justice MARSHALL, and Mr. Justice BLACKMUN concur in this judgment.
Affirmed
in part and reversed in part.
I [FN*]
FN* Mr. Justice BRENNAN, Mr. Justice WHITE, Mr.
Justice MARSHALL, and Mr. Justice BLACKMUN join Parts I and V‑C of this
opinion. Mr. Justice WHITE also joins Part III‑A of this opinion.
The
Medical School of the University of California at Davis opened in 1968 with an
entering class of 50 students. In 1971, the size of the entering class was
increased to 100 students, a level at which it remains. No admissions program
for disadvantaged or minority students existed when the school opened, and the
first class contained three Asians but no blacks, no Mexican‑Americans,
and no American Indians. Over the next two years, the faculty devised a special
admissions program to increase the representation of "disadvantaged"
students in each Medical School class. [FN1] The special **2739 program
consisted of *273 a separate admissions system operating in coordination with
the regular admissions process.
FN1. Material distributed to applicants for the
class entering in 1973 described the special admissions program as follows:
"A special subcommittee of the Admissions
Committee, made up of faculty and medical students from minority groups,
evaluates applications from
economically and/or educationally disadvantaged backgrounds. The applicant may
designate on the application form that he or she requests such an evaluation.
Ethnic minorities are not categorically considered under the Task Force Program
unless they are from disadvantaged backgrounds. Our goals are: 1) A short range
goal in the identification and recruitment of potential candidates for
admission to medical school in the near future, and 2) Our long‑range
goal is to stimulate career interest in health professions among junior high
and high school students.
"After receiving all pertinent information
selected applicants will receive a letter inviting them to our School of
Medicine in Davis for an interview. The interviews are conducted by at least
one faculty member and one student member of the Task Force Committee.
Recommendations are then made to the Admissions Committee of the medical
school. Some of the Task Force Faculty are also members of the Admissions
Committee.
"Long‑range goals will be approached by
meeting with counselors and students of schools with large minority populations,
as well as with local youth and adult community groups.
"Applications for financial aid are available
only after the applicant has been accepted and can only be awarded after
registration. Financial aid is available to students in the form of scholarships
and loans. In addition to the Regents' Scholarships and President's Scholarship
programs, the medical school
participates in the Health Professions Scholarship Program, which makes funds
available to students who otherwise might not be able to pursue a medical
education. Other scholarships and awards are available to students who meet
special eligibility qualifications. Medical students are also eligible to
participate in the Federally Insured Student Loan Program and the American
Medical Association Education and Research Foundation Loan Program.
"Applications for Admissions are available
from:
"Admissions Office
School of Medicine
University of California
Davis, California 95616"
Record 195. The letter distributed the following
year was virtually identical, except that the third paragraph was omitted.
Under the
regular admissions procedure, a candidate could submit his application to the
Medical School beginning in July of the year preceding the academic year for
which admission was sought. Record 149. Because of the large number of
applications, [FN2] the admissions committee screened each one to select
candidates for further consideration. Candidates whose overall undergraduate
grade point averages fell below 2.5 on a scale of 4.0 were summarily rejected.
Id., at 63. About *274 one out of six applicants was invited for a personal
interview. Ibid. Following the interviews, each candidate was rated on a scale
of 1 to 100 by his interviewers and four other members of the admissions
committee. The rating embraced the interviewers' summaries, the candidate's
overall grade point average, grade point average in science courses, scores on
the Medical College Admissions Test (MCAT), letters of recommendation,
extracurricular activities, and other biographical data. Id., at 62. The
ratings were added together to arrive at each candidate's "benchmark"
score. Since five committee members rated each candidate in 1973, a perfect
score was 500; in 1974, six members rated each candidate, so that a perfect
score was 600. The full committee then reviewed the file and scores of each
applicant and made offers of admission on a "rolling" basis. [FN3]
The chairman was responsible for placing names on the waiting list. They were
not placed in strict numerical order; instead, the chairman had discretion to
include persons with "special skills." Id., at 63‑64.
FN2. For the 1973 entering class of 100 seats, the
Davis Medical School received 2,464 applications. Id., at 117. For the 1974
entering class, 3,737 applications were submitted. Id., at 289.
FN3. That is, applications were considered and
acted upon as they were
received, so that the process of filling the class took place over a period of
months, with later applications being considered against those still on file
from earlier in the year. Id., at 64.
The
special admissions program operated with a separate committee, a majority of
whom were members of minority groups. Id., at 163. On the 1973 application
form, **2740 candidates were asked to indicate whether they wished to be
considered as "economically and/or educationally disadvantaged"
applicants; on the 1974 form the questionwas whether they wished to be
considered as members of a "minority group," which the Medical School
apparently viewed as "Blacks," "Chicanos,"
"Asians," and "American Indians." Id., at 65‑66, 146,
197, 203‑205, 216‑218. If these questions were answered
affirmatively, the application was forwarded to the special admissions
committee. No formal definition of "disadvantaged" *275 was ever
produced, id., at 163‑164, but the chairman of the special committee
screened each application to see whether it reflected economic or educational
deprivation. [FN4] Having passed this initial hurdle, the applications then
were rated by the special committee in a fashion similar to that used by the
general admissions committee, except that special candidates did not have to
meet the 2.5 grade point average cutoff applied to regular applicants. About
one‑fifth of the total number of special applicants were invited for
interviews in 1973 and 1974. [FN5] Following each interview, the special
committee assigned each special applicant a benchmark score. The special
committee then presented its top choices to the general admissions committee.
The latter did not rate or compare the special candidates against the general
applicants, id., at 388, but could reject recommended special candidates for
failure to meet course requirements or other specific deficiencies. Id., at 171‑172.
The special committee continued to recommend special applicants until a number
prescribed by faculty vote were admitted. While the overall class size was
still 50, the prescribed number was 8; in 1973 and 1974, when the class size
had doubled to 100, the prescribed number of special admissions also doubled,
to 16. Id., at 164, 166.
FN4. The chairman normally checked to see if,
among other things, the applicant had been granted a waiver of the school's
application fee, which required a means test; whether the applicant had worked
during college or interrupted his education to support himself or his family;
and whether the applicant was a member of a minority group. Id., at 65‑66.
FN5. For the class entering in 1973, the total
number of special applicants was 297, of whom 73 were white. In 1974, 628 persons
applied to the special committee, of whom 172 were white. Id., at 133‑134.
From the
year of the increase in class size‑‑1971‑‑through 1974,
the special program resulted in the admission of 21 black students, 30 Mexican‑Americans,
and 12 Asians, for a total of 63 minority students. Over the same period, the
regular admissions program produced 1 black, 6 Mexican‑Americans, *276
and 37 Asians, for a total of 44 minority students. [FN6] Although
disadvantaged whites applied to the special program in large numbers, see n. 5,
supra, none received an offer of admission through that process. Indeed, in
1974, at least, the special committee explicitly considered only
"disadvantaged" special applicants who were members of one of the
designated minority groups. Record 171.
FN6. The following table provides a year‑by‑year
comparison of minority admissions at the Davis Medical School:
Special Admissions Program General Admissions Total
‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑ ‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑ ‑‑‑‑‑
Blacks Chicanos Asians Total Blacks Chicanos Asians
Total
1970.... 5 3
0 8 0 0 4
4 12
1971.... 4
9 2 15 1 0
8 9 24
1972.... 5
6 5 16 0 0
11 11 27
1973.... 6
8 2 16 0 2
13 15 31
1974.... 6
7 3 16 0 4
5 9 25
Id., at 216‑218. Sixteen persons were
admitted under the special program in 1974, ibid., but one Asian withdrew
before the start of classes, and the vacancy was filled by a candidate from the
general admissions waiting list. Brief for Petitioner 4 n. 5.
**2741
Allan Bakke is a white male who applied to the Davis Medical School in both
1973 and 1974. In both years Bakke's application was considered under the
general admissions program, and he received an interview. His 1973 interview
was with Dr. Theodore C. West, who considered Bakke "a very desirable
applicant to [the] medical school." Id., at 225. Despite a strong
benchmark score of 468 out of 500, Bakke was rejected. His application had come
late in the year, and no applicants in the general admissions process with
scores below 470 were accepted after Bakke's application was completed. Id., at
69. There were four special admissions slots unfilled at that time however, for
which Bakke was not considered. Id., at 70. After his 1973 rejection, Bakke
wrote to Dr. George H. Lowrey, Associate Dean and Chairman of the Admissions
Committee, protesting that the special admissions program operated as a racial
and ethnic quota. id., AT 259.
*277 Bakke's 1974 application was completed
early in the year. Id., at 70. His
student interviewer gave him an overall rating of 94, finding him
"friendly, well tempered, conscientious and delightful to speak
with." Id., at 229. His faculty interviewer was, by coincidence, the same
Dr. Lowrey to whom he had written in protest of the special admissions program.
Dr. Lowrey found Bakke "rather limited in his approach" to the
problems of the medical profession and found disturbing Bakke's "very
definite opinions which were based more on his personal viewpoints than upon a
study of the total problem." Id., at 226. Dr. Lowrey gave Bakke the lowest
of his six ratings, an 86; his total was 549 out of 600. Id., at 230. Again,
Bakke's application was rejected. In neither year did the chairman of the
admissions committee, Dr. Lowrey, exercise his discretion to place Bakke on the
waiting list. Id., at 64. In both
years, applicants were admitted under the special program with grade point
averages, MCAT scores, and benchmark scores significantly lower than Bakke's.
[FN7]
FN7. The following table compares Bakke's science
grade point average, overall grade point average, and MCAT scores with the
average scores of regular admittees and of special admittees in both 1973 and
1974. Record 210, 223, 231, 234:
Class Entering in 1973
MCAT (percentiles)
Gen.
SGPA OGPA Verbal Quantitative Science Infor.
Bakke ............... 3.44
3.46 96 94
97 72
Average of regular
admittees .......... 3.51
3.49 81 76
83 69
Average of special
admittees .......... 2.62
2.88 46 24
35 33
Class Entering in 1974
MCAT (Percentiles)
Gen.
SGPA OGPA Verbal Quantitative Science Infor.
Bakke ............... 3.44
3.46 96 94
97 72
Average of regular
admittees .......... 3.36
3.29 69 67
82 72
Average of special
admittees .......... 2.42
2.62 34 30
37 18
Applicants admitted under the special program also
had benchmark scores significantly lower than many students, including Bakke,
rejected under the general admissions program, even though the special rating system
apparently gave credit for overcoming "disadvantage." Id., at 181,
388.
After the
second rejection, Bakke filed the instant suit in the Superior Court of
California. [FN8] He sought mandatory, injunctive, **2742 and declaratory
relief compelling his admission to the Medical School. He alleged that the
Medical School's special admissions program operated to exclude him from the
*278 school on the basis of his race, in violation of his rights under the
Equal Protection Clause of the Fourteenth Amendment, [FN9] Art. I, § 21, of the
California Constitution, [FN10] and § 601 of Title VI of the Civil Rights Act
of 1964, 78 Stat. 252, 42 U.S.C. § 2000d. [FN11] The University cross‑complained
for a declaration that its special admissions program was lawful. The trial
*279 court found that the special program operated as a racial quota, because
minority applicants in the special program were rated only against one another.
Record 388 and 16 places in the class of 100 were reserved for them. Id., at
295‑296. Declaring that the University could not take race into account
in making admissions decisions, the trial court held the challenged program
violative of the Federal Constitution, the State Constitution, and Title VI.
The court refused to order Bakke's admission, however, holding that he had
failed to carry his burden of proving that he would have been admitted but for
the existence of the special program.
FN8. Prior to the actual filing of the suit, Bakke
discussed his intentions with Peter C. Storandt, Assistant to the Dean of
Admissions at the Davis Medical School. Id., at 259‑269. Storandt
expressed sympathy for Bakke's position and offered advice on litigation
strategy. Several amici imply that these discussions render Bakke's suit
"collusive." There is no indication, however, that Storandt's views
were those of the Medical School or that anyone else at the school even was
aware of Storandt's correspondence and conversations with Bakke. Storandt is no
longer with the University.
FN9. "[N]or shall any State . . . deny to any
person within its jurisdiction the equal protection of the laws."
FN10. "No special privileges or immunities
shall ever be granted which may not be altered, revoked, or repealed by the
Legislature; nor shall any
citizen, or class of citizens, be granted privileges or immunities which, upon
the same terms, shall not be granted to all citizens."
This section was recently repealed and its
provisions added to Art. I, § 7, of the State Constitution.
FN11. Section 601 of Title VI, 78 Stat. 252,
provides as follows:
"No 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."
Bakke
appealed from the portion of the trial court judgment denying him admission,
and the University appealed from the decision that its special admissions
program was unlawful and the order enjoining it from considering race in the
processing of applications. The Supreme Court of California transferred the
case directly from the trial court, "because of the importance of the
issues involved." 18 Cal.3d 34, 39, 132 Cal.Rptr. 680, 684, 553 P.2d 1152,
1156 (1976). The California court accepted the findings of the trial court with
respect to the University's program. [FN12] Because the special admissions
program involved a racial classification, the Supreme Court held itself bound
to apply strict scrutiny. Id., at 49, 132 Cal.Rptr., at 690, 553 P.2d, at 1162‑1163.
It then turned to the goals the University presented as justifying the special
program. Although the court agreed that the goals of integrating the medical
profession and increasing the number of physicians willing to serve members of
minority groups were compelling state interests, id., at 53, 132 Cal.Rptr., at
693, 553 P.2d, at 1165, it concluded that the special admissions program was
not the least intrusive means of achieving those goals. Without passing on the
state constitutional or the federal statutory grounds cited in the trial
court's judgment, the California court held *280 that the Equal Protection
Clause of the Fourteenth Amendment required that "no applicant may be
rejected because of his race, in favor of another who is less qualified, as
measured by standards applied without regard to race." Id., at 55, 132
Cal.Rptr., at 694, 553 P.2d, at 1166.
FN12. Indeed, the University did not challenge the
finding that applicants who were not members of a minority group were excluded
from consideration in the special admissions process. 18 Cal.3d, at 44, 132
Cal.Rptr., at 687, 553 P.2d, at 1159.
**2743
[2][3][4][5][6] Turning to Bakke's appeal, the court ruled that since Bakke had
established that the University had discriminated against him on the basis of
his race, the burden of proof shifted to the University to demonstrate that he
would not have been admitted even in the absence of the special admissions
program. [FN13] Id., at 63‑64, 132 Cal.Rptr., at 699‑ 700, 553 P.2d,
at 1172. The court analogized Bakke's situation to that of a plaintiff under
Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e‑17 (1970
ed., Supp. V), see, e. g., Franks v. Bowman Transportation Co., 424 U.S. 747,
772, 96 S.Ct. 1251, 1267, 47 L.Ed.2d 444 (1976). 18 Cal.3d, at 63‑64, 132
Cal.Rptr., at 700, 553 P.2d, at 1172. On this basis, the court initially
ordered a remand for the purpose of determining whether, under the newly
allocated burden of proof, Bakke would have been admitted to either the 1973 or
the 1974 entering class in the absence of the special admissions program. App.
A to Application for Stay 48. In its petition for rehearing below, however, the
University conceded its inability to carry that burden. App. B to Application for
Stay A19‑A20. [FN14] The *281 California court thereupon amended its
opinion to direct that the trial court enter judgment ordering Bakke's
admission to the Medical School. 18 Cal.3d, at 64, 132 Cal.Rptr., at 700, 553
P.2d, at 1172. That order was stayed pending review in this Court. 429 U.S.
953, 97 S.Ct. 573, 50 L.Ed.2d 321 (1976). We granted certiorari to consider the
important constitutional issue. 429 U.S. 1090, 97 S.Ct. 1098, 51 L.Ed.2d 535
(1977).
FN13. Petitioner has not challenged this aspect of
the decision. The issue of the
proper placement of the burden of proof, then, is not before us.
FN14. Several amici suggest that Bakke lacks
standing, arguing that he never showed that his injury‑‑exclusion
from the Medical School‑‑will be redressed by a favorable decision,
and that the petitioner "fabricated" jurisdiction by conceding its
inability to meet its burden of proof. Petitioner does not object to Bakke's
standing, but inasmuch as this charge concerns our jurisdiction under Art. III,
it must be considered and rejected. First, there appears to be no reason to
question the petitioner's concession. It was not an attempt to stipulate to a
conclusion of law or to disguise actual facts of record. Cf. Swift & Co. v.
Hocking Valley R. Co., 243 U.S. 281, 37 S.Ct. 287, 61 L.Ed. 722 (1917).
Second, even if Bakke had been unable to prove
that he would have been admitted in the absence of the special program, it
would not follow that he lacked standing. The constitutional element of
standing is plaintiff's demonstration of any injury to himself that is likely
to be redressed by favorable decision of his claim. Warth v. Seldin, 422 U.S.
490, 498, 95 S.Ct. 2197, 2204, 45 L.Ed.2d 243 (1975). The trial court found
such an injury, apart from failure to be admitted, in the University's decision
not to permit Bakke to compete
for all 100 places in the class, simply because of his race. Record 323. Hence
the constitutional requirements of Art. III were met. The question of Bakke's
admission vel non is merely one of relief.
Nor is it fatal to Bakke's standing that he was
not a "disadvantaged" applicant. Despite the program's purported
emphasis on disadvantage, it was a minority enrollment program with a secondary
disadvantage element. White disadvantaged students were never considered under
the special program, and the University acknowledges that its goal in devising
the program was to increase minority enrollment.
II
In this
Court the parties neither briefed nor argued the applicability of Title VI of
the Civil Rights Act of 1964. Rather, as had the California court, they focused
exclusively upon the validity of the special admissions program under the Equal
Protection Clause. Because it was possible, however, that a decision on Title
VI might obviate resort to constitutional interpretation, see Ashwander v. TVA,
297 U.S. 288, 346‑348, 56 S.Ct. 466, 80 L.Ed. 688 (1936) (concurring
opinion), we requested supplementary briefing on the statutory issue. 434 U.S.
900, 98 S.Ct. 293, 54 L.Ed.2d 186 (1977).
A
At the outset
we face the question whether a right of action for private parties exists under
Title VI. Respondent argues that there is a private right of action, invoking
**2744 the test set forth in Cort v. Ash, 422 U.S. 66, 78, 95 S.Ct. 2080, 45
L.Ed.2d 26 (1975). He contends *282 that the statute creates a federal right in
his favor, that legislative history reveals an intent to permit private
actions, [FN15] that such actions would further the remedial purposes of the
statute, and that enforcement of federal rights under the Civil Rights Act
generally is not relegated to the States. In addition, he cites several lower
court decisions which have recognized or assumed the existence of a private
right of action. [FN16] Petitioner denies the existence of a private right of
action, arguing that the sole function of § 601, see n. 11, supra, was to
establish a predicate for administrative action under § 602, 78 Stat. 252, 42
U.S.C. § 2000d‑1. [FN17] In its view, administrative curtailment of
federal funds under that section was the only sanction to be imposed upon
recipients that *283 violated § 601. Petitioner also points out that Title VI
contains no explicit grant of a private right of action, in contrast to Titles
II, III, IV, and VII, of the same statute, 42 U.S.C. §§ 2000a‑3(a), 2000b‑2,
2000c‑8, and 2000e‑ 5(f) (1970 ed. and Supp. V). [FN18]
FN15. See, e. g., 110 Cong.Rec. 5255 (1964)
(remarks of Sen. Case).
FN16. E. g., Bossier Parish School Board v. Lemon,
370 F.2d 847, 851‑ 852 (CA5), cert. denied, 388 U.S. 911, 87 S.Ct. 2116,
18 L.Ed.2d 1350 (1967); Natonabah v. Board of Education, 355 F.Supp. 716, 724
(NM 1973); cf. Lloyd v. Regional Transportation Authority, 548 F.2d 1277, 1284‑1287
(C.A.7 1977) (Title V of Rehabilitation Act of 1973, 29 U.S.C. § 790 et seq. (1976
ed.)); Piascik v. Cleveland Museum of Art, 426 F.Supp. 779, 780 n. 1 (N.D.Ohio
1976) (Title IX of Education Amendments of 1972, 20 U.S.C. § 1681 et seq. (1976
ed.)).
FN17. Section 602, as set forth in 42 U.S.C. §
2000d‑1, reads as follows:
"Each Federal department and agency which is
empowered to extend Federal financial assistance to any program or activity, by
way of grant, loan, or contract other than a contract of insurance or guaranty,
is authorized and directed to effectuate the provisions of section 2000d of
this title with respect to such program or activity by issuing rules,
regulations, or orders of general applicability which shall be consistent with
achievement of the objectives of the statute authorizing the financial
assistance in connection with which the action is taken. No such rule,
regulation, or order shall become effective unless and until approved by the
President. Compliance with any
requirement adopted pursuant to this section may be effected (1) by the
termination of or refusal to grant or to continue assistance under such program
or activity to any recipient as to whom there has been an express finding on
the record, after opportunity for hearing, of a failure to comply with such
requirement, but such termination or refusal shall be limited to the particular
political entity, or part thereof, or other recipient as to whom such a finding
has been made and, shall be limited in its effect to the particular program, or
part thereof, in which such noncompliance has been so found, or (2) by any
other means authorized by law: Provided, however, That no such action shall be
taken until the department or agency concerned has advised the appropriate
person or persons of the failure to comply with the requirement and has
determined that compliance cannot be secured by voluntary means. In the case of
any action terminating, or refusing to grant or continue, assistance because of
failure to comply with a requirement imposed pursuant to this section, the head
of the Federal department or agency shall file with the committees of the House
and Senate having legislative jurisdiction over the program or activity
involved a full written report of the circumstances and the grounds for such
action. No such action shall become effective until thirty days have elapsed
after the filing of such report."
FN18. Several comments in the debates cast doubt
on the existence of any intent to create a private right of action. For
example, Representative Gill stated that no private right of action was
contemplated:
"Nowhere in this section do you find a
comparable right of legal action for a person who feels he has been denied his
rights to participate in the benefits of Federal funds. Nowhere. Only those who
have been cut off can go to court and present their claim." 110 Cong.Rec.
2467 (1964).
Accord, id., at 7065 (remarks of Sen. Keating);
6562 (remarks of Sen. Kuchel).
We find it
unnecessary to resolve this question in the instant case. The question of
respondent's right to bring an action under Title VI was neither argued nor
decided in either of the courts below, and this Court has been hesitant to
review questions not addressed below. McGoldrick v. Compagnie Generale
Transatlantique, 309 U.S. 430, 434‑435, 60 S.Ct. 670, 672‑673, 84
L.Ed. 849 (1940). See also Massachusetts v. Westcott, **2745 431 U.S. 322, 97
S.Ct. 1755, 52 L.Ed.2d 349 (1977); Cardinale v. Louisiana, 394 U.S. 437, 439,
89 S.Ct. 1161, 1163, 22 L.Ed.2d 398 (1969). Cf. Singleton v. Wulff, 428 U.S.
106, 121, 96 S.Ct. 2868, 2877, 49 L.Ed.2d 826 (1976). We therefore do not
address this difficult issue. Similarly, we need not pass *284 upon
petitioner's claim that private plaintiffs under Title VI must exhaust
administrative remedies. We assume, only for the purposes of this case, that
respondent has a right of action under Title VI. See Lau v. Nichols, 414 U.S.
563, 571 n. 2, 94 S.Ct. 786, 790, 39 L.Ed.2d 1 (1974) (STEWART, J., concurring
in result).
B
[7] The
language of § 601, 78 Stat. 252, like that of the Equal Protection Clause, is
majestic in its sweep:
"No 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."
The
concept of "discrimination," like the phrase "equal protection
of the laws," is susceptible of varying interpretations, for as Mr.
Justice Holmes declared, "[a] word is not a crystal, transparent and
unchanged, it is the skin of a living thought and may vary greatly in color and
content according to the circumstances and the time in which it is used."
Towne v. Eisner, 245 U.S. 418, 425, 38 S.Ct. 158, 159, 62 L.Ed. 372 (1918). We
must, therefore, seek whatever aid is available in determining the precise
meaning of the statute before us. Train v. Colorado Public Interest Research
Group, 426 U.S. 1, 10, 96 S.Ct. 1938, 1942, 48 L.Ed.2d 434 (1976), quoting
United States v. American Trucking Assns., 310 U.S. 534, 543‑544, 60
S.Ct. 1059, 1063‑1064, 84 L.Ed. 1345 (1940). Examination of the
voluminous legislative history of Title VI reveals a congressional intent to
halt federal funding of entities that violate a prohibition of racial
discrimination similar to that of the Constitution. Although isolated
statements of various legislators taken out of context, can be marshaled in
support of the proposition that § 601 enacted a purely color‑blind
scheme, [FN19] without regard to the reach of the Equal Protection *285 Clause,
these comments must be read against the background of both the problem that
Congress was addressing and the broader view of the statute that emerges from a
full examination of the legislative debates.
FN19. For example, Senator Humphrey stated as
follows:
"Racial discrimination or segregation in the
administration of disaster relief is particularly shocking; and offensive to
our sense of justice and fair play. Human suffering draws no color lines, and
the administration of help to the sufferers should not." Id., at 6547.
See also id., at 12675 (remarks of Sen. Allott);
6561 (remarks of Sen. Kuchel); 2494, 6047 (remarks of Sen. Pastore). But see
id., at 15893 (remarks of Rep. MacGregor); 13821 (remarks of Sen. Saltonstall);
10920 (remarks of Sen. Javits); 5266, 5807 (remarks of Sen. Keating).
The
problem confronting Congress was discrimination against Negro citizens at the
hands of recipients of federal moneys. Indeed, the color blindness
pronouncements cited in the margin at n. 19, generally occur in the midst of
extended remarks dealing with the evils of segregation in federally funded
programs. Over and over again, proponents of the bill detailed the plight of
Negroes seeking equal treatment in such programs. [FN20] There simply was no
reason for Congress to consider the validity of hypothetical preferences that
might be accorded minority citizens; the legislators were dealing with the real
and pressing problem of how to guarantee those citizens equal treatment.
FN20. See, e. g., id., at 7064‑7065 (remarks
of Sen. Ribicoff); 7054‑ 7055 (remarks of Sen. Pastore); 6543‑6544
(remarks of Sen. Humphrey); 2595 (remarks of Rep. Donohue); 2467‑2468
(remarks of Rep. Celler); 1643, 2481‑2482 (remarks of Rep. Ryan);
H.Rep.No.914, 88th Cong., 1st Sess., pt. 2, pp. 24‑25 (1963), U.S.Code
Cong. & Admin.News 1964, p. 2355.
In
addressing that problem, supporters of Title VI repeatedly declared that the
bill enacted constitutional principles. For example,**2746 Representative
Celler, the Chairman of the House Judiciary Committee and floor manager of the
legislation in the House, emphasized this in introducing the bill:
"The bill would offer assurance that
hospitals financed by Federal money would not deny adequate care to Negroes. It
would prevent abuse of food distribution programs whereby Negroes have been
known to be denied food *286 surplus supplies when white persons were given
such food. It would assure Negroes the benefits now accorded only white
students in programs of high[er] education financed by Federal funds. It would,
in short, assure the existing right to equal treatment in the enjoyment of
Federal funds. It would not destroy any rights of private property or freedom
of association." 110 Cong.Rec. 1519 (1964) (emphasis added).
Other
sponsors shared Representative Celler's view that Title VI embodied
constitutional principles. [FN21]
FN21. See, e. g., 110 Cong.Rec. 2467 (1964)
(remarks of Rep. Lindsay). See also id., at 2766 (remarks of Rep. Matsunaga);
2731‑2732 (remarks of Rep. Dawson); 2595 (remarks of Rep. Donohue); 1527‑1528
(remarks of Rep. Celler).
In the
Senate, Senator Humphrey declared that the purpose of Title VI was "to
insure that Federal funds are spent in accordance with the Constitution and the
moral sense of the Nation." Id., at 6544. Senator Ribicoff agreed that
Title VI embraced the constitutional standard: "Basically, there is a
constitutional restriction against discrimination in the use of federal funds;
and title VI simply spells out the procedure to be used in enforcing that
restriction." Id., at 13333. Other Senators expressed similar views.
[FN22]
FN22. See, e. g., id., at 12675, 12677 (remarks of
Sen. Allott); 7064 (remarks of Sen. Pell); 7057, 7062‑7064 (remarks of
Sen. Pastore); 5243 (remarks of Sen. Clark).
Further
evidence of the incorporation of a constitutional standard into Title VI
appears in the repeated refusals of the legislation's supporters precisely to
define the term "discrimination." Opponents sharply criticized this
failure, [FN23] but proponents of the bill merely replied that the meaning of
*287 "discrimination" would be made clear by reference to the
Constitution or other existing law. For example, Senator Humphrey noted the
relevance of the Constitution:
FN23. See, e. g., id., at 6052 (remarks of Sen.
Johnston); 5863 (remarks of Sen. Eastland); 5612 (remarks of Sen. Ervin); 5251
(remarks of Sen. Talmadge); 1632 (remarks of Rep. Dowdy); 1619 (remarks of Rep.
Abernethy).
"As I have said, the bill has a simple
purpose. That purpose is to give fellow citizens‑‑Negroes‑‑the
same rights and opportunities that white people take for granted. This is no
more than what was preached by the prophets, and by Christ Himself. It is no
more than what our Constitution guarantees." Id., at 6553. [FN24]
FN24. See also id., at 7057, 13333 (remarks of
Sen. Ribicoff); 7057 (remarks of Sen. Pastore); 5606‑5607 (remarks of
Sen. Javits); 5253, 5863‑5864, 13442 (remarks of Sen. Humphrey).
[8] In
view of the clear legislative intent, Title VI must be held to proscribe only
those racial classifications that would violate the Equal Protection Clause or
the Fifth Amendment.
III
A
Petitioner
does not deny that decisions based on race or ethnic origin by faculties and
administrations of state universities are reviewable under the Fourteenth
Amendment. See, e. g., Missouri ex rel. Gaines v. Canada, 305 U.S. 337, 59
S.Ct. 232, 83 L.Ed. 208 (1938); Sipuel v. Board of Regents, 332 U.S. 631, 68
S.Ct. 299, 92 L.Ed. 247 (1948); Sweatt v. Painter, 339 U.S. 629, 70 S.Ct. 848,
94 L.Ed. 1114 (1950); McLaurin v. Oklahoma State Regents, 339 U.S. 637, 70
S.Ct. 851, 94 L.Ed. 1149 (1950). For his part, respondent does not argue that
all racial or ethnic classifications are per se invalid. See, e. g.,
Hirabayashi v. United States, 320 U.S. 81, 63 S.Ct. 1375, 87 L.Ed. 1774 (1943);
Korematsu v. United States, 323 U.S. 214, 65 S.Ct. 193, 89 L.Ed. 194 (1944);
Lee v. Washington, 390 U.S. 333, **2747 334, 88 S.Ct. 994, 995, 19 L.Ed.2d 1212
(1968) (Black, Harlan, and Stewart, JJ., concurring); United Jewish
Organizations v. Carey, 430 U.S. 144, 97 S.Ct. 996, 51 L.Ed.2d 229 (1977). The
parties do disagree as to the level of judicial scrutiny to be applied to the
special admissions program. Petitioner argues that the court below erred in
applying strict scrutiny, as this inexact term has been *288 applied in our
cases. That level of review, petitioner asserts, should be reserved for
classifications that disadvantage "discrete and insular minorities."
SeeUnited States v. Carolene Products Co., 304 U.S. 144, 152 n. 4, 58 S.Ct.
778, 783, 82 L.Ed. 1234 (1938). Respondent, on the other hand, contends that
the California court correctly rejected the notion that the degree of judicial
scrutiny accorded a particular racial or ethnic classification hinges upon
membership in a discrete and insular minority and duly recognized that the
"rights established [by the Fourteenth Amendment] are personal
rights." Shelley v. Kraemer, 334 U.S. 1, 22, 68 S.Ct. 836, 846, 92 L.Ed.
1161 (1948).
En route
to this crucial battle over the scope of judicial review, [FN25] the parties
fight a sharp preliminary action over the proper characterization of the
special admissions program. Petitioner prefers to view it as establishing a
"goal" of minority representation in the Medical School. Respondent,
echoing the courts below, labels it a racial quota. [FN26]
FN25. That issue has generated a considerable
amount of scholarly controversy. See, e. g., Ely, The Constitutionality of
Reverse Racial Discrimination, 41 U.Chi.L.Rev. 723 (1974); Greenawalt, Judicial
Scrutiny of "Benign" Racial Preference in Law School Admissions, 75
Colum.L.Rev. 559 (1975); Kaplan, Equal Justice in an Unequal World: Equality
for the Negro, 61 Nw.U.L.Rev. 363 (1966); Karst & Horowitz, Affirmative
Action and Equal Protection, 60 Va.L.Rev. 955 (1974); O'Neil, Racial Preference
and Higher Education: The Larger Context, 60 Va.L.Rev. 925 (1974); Posner, The
DeFunis Case and the Constitutionality of Preferential Treatment of Racial
Minorities, 1974 Sup.Ct.Rev. 1; Redish, Preferential Law School Admissions and
the Equal Protection Clause: An Analysis of the CompetingArguments, 22 UCLA
L.Rev. 343 (1974); Sandalow, Racial Preferences in Higher Education: Political
Responsibility and the Judicial Role, 42 U.Chi.L.Rev. 653 (1975); Sedler,
Racial Preference, Reality and the Constitution: Bakke v. Regents of the
University of California, 17 Santa Clara L.Rev. 329 (1977); Seeburger, A Heuristic Argument Against
Preferential Admissions, 39 U.Pitt.L.Rev. 285 (1977).
FN26. Petitioner defines "quota" as a
requirement which must be met but can never be exceeded, regardless of the
quality of the minority applicants. Petitioner declares that there is no
"floor" under the total number of minority students admitted;
completely unqualified students will not be admitted simply to meet a "quota."
Neither is there a "ceiling," since an unlimited number could be
admitted through the general admissions process. On this basis the special
admissions program does not meet petitioner's definition of a quota.
The court below found‑‑and petitioner
does not deny‑‑that white applicants could not compete for the 16
places reserved solely for the special admissions program. 18 Cal.3d, at 44,
132 Cal.Rptr., at 687, 553 P.2d, at 1159. Both courts below characterized this
as a "quota" system.
*289 This semantic distinction is beside the
point: The special admissions program is undeniably a classification based on
race and ethnic background. 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. Whether this limitation is
described as a quota or a goal, it is a line drawn on the basis of race and
ethnic status. [FN27]
FN27. Moreover, the University's special
admissions program involves a purposeful, acknowledged use of racial criteria.
This is not a situation in which the classification on its face is racially
neutral, but has a disproportionate racial impact. In that situation, plaintiff
must establish an intent to discriminate. Arlington Heights v. Metropolitan
Housing Dev. Corp., 429 U.S. 252, 264‑265, 97 S.Ct. 555, 562‑563,
50 L.Ed.2d 450 (1977); Washington v. Davis, 426 U.S. 229, 242, 96 S.Ct. 2040,
2048, 48 L.Ed.2d 597 (1976); see Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct.
1064, 30 L.Ed. 220 (1886).
[9] The
guarantees of the Fourteenth Amendment extend to all persons. Its language
**2748 is explicit: "No State shall . . . deny to any person within its
jurisdiction the equal protection of the laws." It is settled beyond
question that the "rights created by the first section of the Fourteenth
Amendment are, by its terms, guaranteed to the individual. The rights
established are personal rights." Shelley v. Kraemer, supra, at 22, 68
S.Ct., at 846. Accord,Missouri ex rel. Gaines v. Canada, supra, 305 U.S., at
351, 57 S.Ct., at 237; McCabe v. Atchison, T. & S.F.R. Co., 235 U.S. 151,
161‑162, 35 S.Ct. 69, 71, 59 L.Ed. 169 (1914). The guarantee of equal
protection cannot mean one thing when applied to one individual and something
else when *290 applied to a person of another color. If both are not accorded
the same protection, then it is not equal.
[10]
Nevertheless, petitioner argues that the court below erred in applying strict
scrutiny to the special admissions program because white males, such as
respondent, are not a "discrete and insular minority" requiring
extraordinary protection from the majoritarian political process. Carolene
Products Co., supra, 304 U.S., at 152‑153 n. 4, 58 S.Ct., at 783‑784.
This rationale, however, has never been invoked in our decisions as a
prerequisite to subjecting racial or ethnic distinctions to strict scrutiny.
Nor has this Court held that discreteness and insularity constitute necessary
preconditions to a holding that a particular classification is invidious.
[FN28] See, e. g., Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541,
62 S.Ct. 1110, 1113, 86 L.Ed. 1655 (1942); Carrington v. Rash, 380 U.S. 89, 94‑97,
85 S.Ct. 775, 779‑780, 13 L.Ed.2d 675 (1965). These characteristics may
be relevant in deciding whether or not to add new types of classifications to
the list of "suspect" categories or whether a particular
classification survives close examination. See, e. g., Massachusetts Board of
Retirement v. Murgia, 427 U.S. 307, 313, 96 S.Ct. 2562, 2566, 49 L.Ed.2d 520
(1976) (age); San Antonio Independent School Dist. v. Rodriquez, 411 U.S. 1,
28, 93 S.Ct. 1278, 1293, 36 L.Ed.2d 16 (1973) (wealth); Graham v. Richardson,
403 U.S. 365, 372, 91 S.Ct. 1848, 1852, 29 L.Ed.2d 534 (1971) (aliens). Racial
and ethnic classifications, however, are subject to stringent examination
without regard to these additional characteristics. We declared as much in the
first cases explicitly to recognize racial distinctions as suspect:
FN28. After Carolene Products, the first specific
reference in our decisions to the elements of "discreteness and
insularity" appears in Minersville School District v. Gobitis, 310 U.S.
586, 606, 60 S.Ct. 1010, 1018, 84 L.Ed. 1375 (1940) (Stone, J., dissenting).
The next does not appear until 1970. Oregon v. Mitchell, 400 U.S. 112, 295 n.
14, 91 S.Ct. 260, 349, 27 L.Ed.2d 91 (STEWART, J., concurring in part and
dissenting in part). These elements have been relied upon in recognizing a
suspect class in only one group of cases, those involving aliens. E. g., Graham
v. Richardson, 403 U.S. 365, 372, 91 S.Ct. 1848, 1852, 29 L.Ed.2d 534 (1971).
"Distinctions between citizens solely because
of their ancestry are by their very nature odious to a free people *291 whose
institutions are founded upon the doctrine of equality." Hirabayashi, 320
U.S., at 100, 63 S.Ct., at 1385.
"[A]ll legal restrictions which curtail the
civil rights of a single racial group are immediately suspect. That is not to
say that all such restrictions are unconstitutional. It is to say that courts
must subject them to the most rigid scrutiny." Korematsu, 323 U.S., at
216, 65 S.Ct., at 194.
The Court
has never questioned the validity of those pronouncements. Racial and ethnic
distinctions of any sort are inherently suspect and thus call for the most
exacting judicial examination.
B
This
perception of racial and ethnic distinctions is rooted in our Nation's
constitutional and demographic history. The Court's initial view of the
Fourteenth Amendment was that its "one pervading purpose" was
"the freedom of the slave race, the security and firm establishment of
thatfreedom, and the protection of the newly‑made freeman and citizen
from the **2749 oppressions of those who had formerly exercised dominion over
him." Slaughter‑House Cases, 16 Wall. 36, 71, 21 L.Ed. 394 (1873).
The Equal Protection Clause, however, was "[v]irtually strangled in
infancy by post‑civil‑war judicial reactionism." [FN29] It was
relegated to decades of relative desuetude while the Due Process Clause of the
Fourteenth Amendment, after a short germinal period, flourished as a
cornerstone in the Court's defense of property and liberty of contract. See, e.
g., Mugler v. Kansas, 123 U.S. 623, 661, 8 S.Ct. 273, 297, 31 L.Ed. 205 (1887);
Allgeyer v. Louisiana, 165 U.S. 578, 17 S.Ct. 427, 41 L.Ed. 832 (1897); Lochner
v. New York, 198 U.S. 45, 25 S.Ct. 539, 49 L.Ed. 937 (1905). In that cause, the
Fourteenth Amendment's "one pervading purpose" was displaced. See, e.
g., Plessy v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256 (1896). It
was only as the era of substantive due process came to a close, see, e. g.,
Nebbia v. New *292 York, 291 U.S. 502, 54 S.Ct. 505, 78 L.Ed. 940 (1934); West
Coast Hotel Co. v. Parrish, 300 U.S. 379, 57 S.Ct. 578, 81 L.Ed. 703 (1937),
that the Equal Protection Clause began to attain a genuine measure of vitality,
see, e. g., United States v. Carolene Products, 304 U.S. 144, 58 S.Ct. 778, 82
L.Ed. 1234 (1938); Skinner v. Oklahoma ex rel. Williamson, supra.
FN29. Tussman & tenBroek, The Equal Protection
of the Laws, 37 Calif.L.Rev. 341, 381 (1949).
By that
time it was no longer possible to peg the guarantees of the Fourteenth
Amendment to the struggle for equality of one racial minority. During the
dormancy of the Equal Protection Clause, the United States had become a Nation
of minorities. [FN30] Each had to struggle [FN31]‑‑and to some
extent struggles still [FN32]‑‑to overcome the prejudices not of a
monolithic majority, but of a "majority" composed of various minority
groups of whom it was said‑‑perhaps unfairly in many cases‑‑that
a shared characteristic was a willingness to disadvantage other groups. [FN33]
As the Nation filled with the stock of many lands, the reach of the Clause was
gradually extended to all ethnic groups seeking protection from official
discrimination. See Strauder v. West Virginia, 100 U.S. 303, 308, 25 L.Ed. 664
(1880) (Celtic Irishmen) (dictum); Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct.
1064, 30 L.Ed. 220 (1886) (Chinese); Truax v. Raich, 239 U.S. 33, 41, 36 S.Ct.
7, 10, 60 L.Ed. 131 (1915) (Austrian resident aliens); Korematsu, supra
(Japanese); Hernandez v. Texas, 347 U.S. 475, 74 S.Ct. 667, 98 L.Ed. 866 (1954)
(Mexican‑Americans). The guarantees of equal protection, said the Court
in *293 Yick Wo, "are universal in their application, to all persons
within the territorial jurisdiction, without regard to any differences of race,
of color, or of nationality; and the equal protection of the laws is a pledge
of the protection of equal laws." 118 U.S., at 369, 6 S.Ct., at 1070.
FN30. M. Jones, American Immigration 177‑246
(1960).
FN31. J. Higham, Strangers in the Land (1955); G.
Abbott, The Immigrant and the Community (1917); P. Roberts, The New Immigration
66‑73, 86‑91, 248‑261 (1912). See also E. Fenton, Immigrants
and Unions: A Case Study 561‑562 (1975).
FN32. "Members of various religious and
ethnic groups, primarily but not exclusively of Eastern, Middle, and Southern
European ancestry, such as Jews, Catholics, Italians, Greeks, and Slavic
groups, continue to be excluded from executive, middle‑management, and
other job levels because of discrimination based upon their religion and/or
national origin." 41 CFR § 60‑50.1(b) (1977).
FN33. E. g., Roberts, supra n. 31, at 75; Abbott,
supra n. 31, at 270‑271. See generally n. 31, supra.
Although
many of the Framers of the Fourteenth Amendment conceived of its primary
function as bridging the vast distance between members of the Negro race and
the white "majority," Slaughter‑House Cases, supra, the
Amendment itself was framed in universal terms, without reference to color,
ethnic origin, or condition of prior servitude. As this Court recently remarked
in interpreting the 1866 Civil Rights Act to extend to claims of racial
discrimination against white persons, "the 39th Congress was intent upon
establishing **2750 in the federal law a broader principle than would have been
necessary simply to meet the particular and immediate plight of the newly freed
Negro slaves." McDonald v. Santa Fe Trail Transportation Co., 427 U.S.
273, 296, 96 S.Ct. 2574, 2586, 49 L.Ed.2d 493 (1976). And that legislation was
specifically broadened in 1870 to ensure that "all persons," not
merely "citizens," would enjoy equal rights under the law. See Runyon
v. McCrary, 427 U.S. 160, 192‑202, 96 S.Ct. 2586, 2605‑2609, 49
L.Ed.2d 415 (1976) (WHITE, J., dissenting). Indeed, it is not unlikely that
among the Framers were many who would have applauded a reading of the Equal
Protection Clause that states a principle of universal application and is
responsive to the racial, ethnic, and cultural diversity of the Nation. See, e.
g., Cong.Globe, 39th Cong., 1st Sess., 1056 (1866) (remarks of Rep. Niblack);
id., at 2891‑2892 (remarks of Sen. Conness); id., 40th Cong., 2d Sess.,
883 (1868) (remarks of Sen. Howe) (Fourteenth Amendment "protect[s]
classes from class legislation"). See also Bickel, The Original
Understanding and the Segregation Decision, 69 Harv.L.Rev. 1, 60‑63
(1955).
Over the past
30 years, this Court has embarked upon the crucial mission of interpreting the
Equal Protection Clause with the view of assuring to all persons "the
protection of *294 equal laws," Yick Wo, supra, 118 U.S., at 369, 6 S.Ct.,
at 1070, in a Nation confronting a legacy of slavery and racial discrimination.
See, e. g., Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161 (1948);
Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954);
Hills v. Gautreaux, 425 U.S. 284, 96 S.Ct. 1538, 47 L.Ed.2d 792 (1976). Because
the landmark decisions in this area arose in response to the continued
exclusion of Negroes from the mainstream of American society, they could be
characterized as involving discrimination by the "majority" white
race against the Negro minority. But they need not be read as depending upon
that characterization for their results. It suffices to say that "[o]ver
the years, this Court has consistently repudiated '[d]istinctions between
citizens solely because of their ancestry' as being 'odious to a free people
whose institutions are founded upon the doctrine of equality.' " Loving v.
Virginia, 388 U.S. 1, 11, 87 S.Ct. 1817, 1823, 18 L.Ed.2d 1010 (1967), quoting
Hirabayashi, 320 U.S., at 100, 63 S.Ct., at 1385.
Petitioner
urges us to adopt for the first time a more restrictive view of the Equal
Protection Clause and hold that discrimination against members of the white
"majority" cannot be suspect if its purpose can be characterized as
"benign." [FN34] *295 The clock of our liberties, however, cannot be
turned back to 1868. Brown v. Board of Education, supra, 347 U.S., at 492, 74
S.Ct., at 690; accord, Loving v. Virginia, supra, 388 U.S., at 9, 87 S.Ct., at
1822. It is far too late to argue that the guarantee of equal protection **2751
to all persons permits the recognition of special wards entitled to a degree of
protection greater than that accorded others. [FN35] "The Fourteenth
Amendment is not directed solely against discrimination due to a 'two‑class
theory'‑‑that is, based upon differences between 'white' and
Negro." Hernandez, 347 U.S., at 478, 74 S.Ct., at 670.
FN34. In the view of Mr. Justice BRENNAN, Mr.
Justice WHITE, Mr. Justice MARSHALL, and Mr. Justice BLACKMUN, the pliable
notion of "stigma" is the crucial element in analyzing racial
classifications. See, e. g., post, at 2785. The Equal Protection Clause is not
framed in terms of "stigma." Certainly the word has no clearly
defined constitutional meaning. It reflects a subjective judgment that is standardless.
All state‑imposed classifications that rearrange burdens and benefits on
the basis of race are likely to be viewed with deep resentment by the
individuals burdened. The denial to innocent persons of equal rights and
opportunities may outrage those so deprived and therefore may be perceived as
invidious. These individuals are likely to find little comfort in the notion
that the deprivation they are asked to endure is merely the price of membership
in the dominant majority and that its imposition is inspired by the supposedly
benign purpose of aiding others. One should not lightly dismiss the inherent
unfairness of, and the perception of mistreatment that accompanies, a system of
allocating benefits and privileges on the basis of skin color and ethnic
origin. Moreover, Mr. Justice BRENNAN, Mr. Justice WHITE, Mr. Justice MARSHALL,
and Mr. Justice BLACKMUN offer no principle for deciding whether preferential
classifications reflect a benign remedial purpose or a malevolent stigmatic
classification, since they are willing in
this case to accept mere post hoc declarations by an isolated state entity‑‑a
medical school faculty‑‑unadorned by particularized findings of
past discrimination, to establish such a remedial purpose.
FN35. Professor Bickel noted the self‑contradiction
of that view:
"The lesson of the great decisions of the
Supreme Court and the lesson of contemporary history have been the same for at
least a generation: discrimination on the basis of race is illegal, immoral,
unconstitutional, inherently wrong, and destructive of democratic society. Now
this is to be unlearned and we are told that this is not a matter of
fundamental principle but only a matter of whose ox is gored. Those for whom
racial equality was demanded are to be more equal than others. Having found
support in the Constitution for equality, they now claim support for inequality
under the same Constitution." A. Bickel, The Morality of Consent 133
(1975).
Once the
artificial line of a "two‑class theory" of the Fourteenth
Amendment is put aside, the difficulties entailed in varying the level of
judicial review according to a perceived "preferred" status of a
particular racial or ethnic minority are intractable. The concepts of
"majority" and "minority" necessarily reflect temporary
arrangements and political judgments. As observed above, the white
"majority" itself is composed of various minority groups, most of
which can lay claim to a history of prior discrimination at the hands of the
State and private individuals. Not all of these groups can receive preferential
treatment and corresponding judicial tolerance *296 of distinctions drawn in
terms of race and nationality, for then the only "majority" left
would be a new minority of white Anglo‑Saxon Protestants. There is no
principled basis for deciding which groups would merit "heightened
judicial solicitude" and which would not. [FN36] Courts would be asked to
evaluate the extent of the prejudice and consequent *297 harm suffered by
various minority groups. Those whose societal injury is thought to exceed some
arbitrary level of tolerability then would be entitled to preferential
classifications at the expense of individuals belonging to other groups. Those
classifications would be free from exacting judicial scrutiny. As these
preferences began to have their desired effect, and the consequences of past
discrimination were undone, new judicial rankings would be necessary. The kind
of variable sociological and political **2752 analysis necessary to produce
such rankings simply does not lie within the judicial competence‑‑even
if they otherwise were politically feasible and socially desirable. [FN37]
FN36. As I am in agreement with the view that race
may be taken into account as a factor in an admissions program, I agree with my
Brothers BRENNAN, WHITE, MARSHALL, and
BLACKMUN that the portion of the judgment that would proscribe all
consideration of race must be reversed. See Part V, infra. But I disagree with
much that is said in their opinion.
They would require as a justification for a
program such as petitioner's, only two findings: (i) that there has been some
form of discrimination against the preferred minority groups by "society
at large," post, at 2789 (it being conceded that petitioner had no history
of discrimination), and (ii) that "there is reason to believe" that
the disparate impact sought to be rectified by the program is the
"product" of such discrimination:
"If it was reasonable to conclude‑‑as
we hold that it was‑‑that the failure of minorities to qualify for
admission at Davis under regular procedures was due principally to the effects
of past discrimination, then there is a reasonable likelihood that, but for
pervasive racial discrimination, respondent would have failed to qualify for
admission even in the absence of Davis' special admissions program." Post,
at 2787.
The breadth of this hypothesis is unprecedented in
our constitutional system. The first step is easily taken. No one denies the
regrettable fact that there has been societal discrimination in this country
against various racial and ethnic groups. The second step, however, involves a
speculative leap: but for this discrimination by society at large, Bakke
"would have failed to qualify for admission" because Negro applicants‑‑ nothing is said about Asians, cf., e. g., post,
at 2791 n. 57‑‑would have made better scores. Not one word in the
record supports this conclusion, and the authors of the opinion offer no
standard for courts to use in applying such a presumption of causation to other
racial or ethnic classifications. This failure is a grave one, since if it may
be concluded on this record that each of the minority groups preferred by the
petitioner's special program is entitled to the benefit of the presumption, it
would seem difficult to determine that any of the dozens of minority groups
that have suffered "societal discrimination" cannot also claim it, in
any area of social intercourse. See Part IV‑B, infra.
FN37. Mr. Justice Douglas has noted the problems
associated with such inquiries:
"The reservation of a proportion of the law
school class for members of selected minority groups is fraught with . . .
dangers, for one must immediately determine which groups are to receive such
favored treatment and which are to be excluded, the proportions of the class
that are to be allocated to each, and even the criteria by which to determine
whether an individual is a member of a favored group. [Cf. Plessy v. Ferguson,
163 U.S. 537, 549, 552, 16 S.Ct. 1138, 1142, 1143, 41 L.Ed. 256 (1896).] There
is no assurance that a common agreement can be reached, and first the schools, and then the courts, will be
buffeted with the competing claims. The University of Washington included
Filipinos, but excluded Chinese and Japanese; another school may limit its
program to blacks, or to blacks and Chicanos. Once the Court sanctioned racial
preferences such as these, it could not then wash its hands of the matter,
leaving it entirely in the discretion of the school, for then we would have
effectively overruled Sweatt v. Painter, 339 U.S. 629, 70 S.Ct. 848, 94 L.Ed.
620, and allowed imposition of a 'zero' allocation. But what standard is the
Court to apply when a rejected applicant of Japanese ancestry brings suit to
require the University of Washington to extend the same privileges to his group?
The Committee might conclude that the population of Washington is now 2%
Japanese, and that Japanese also constitute 2% of the Bar, but that had they
not been handicapped by a history of discrimination, Japanese would now
constitute 5% of the Bar, or 20%. Or, alternatively, the Court could attempt to
assess how grievously each group has suffered from discrimination, and allocate
proportions accordingly; if that were the standard the current University of
Washington policy would almost surely fall, for there is no Western State which
can claim that it has always treated Japanese and Chinese in a fair and
evenhanded manner. See, e. g., Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064,
30 L.Ed. 220; Terrace v. Thompson, 263 U.S. 197, 44 S.Ct. 15, 68 L.Ed. 255; Oyama v. California, 332 U.S. 633, 68
S.Ct. 269, 92 L.Ed. 249. This Court has not sustained a racial classification
since the wartime cases of Korematsu v. United States, 323 U.S. 214, 65 S.Ct.
193, 89 L.Ed. 194, and Hirabayashi v. United States, 320 U.S. 81, 63 S.Ct.
1375, 87 L.Ed. 1774, involving curfews and relocations imposed upon Japanese‑Americans.
"Nor obviously will the problem be solved if
next year the Law School included only Japanese and Chinese, for then
Norwegians and Swedes, Poles and Italians, Puerto Ricans and Hungarians, and
all other groups which form this diverse Nation would have just
complaints." DeFunis v. Odegaard, 416 U.S. 312, 337‑340, 94 S.Ct.
1704, 1716, 1717, 40 L.Ed.2d 164 (1974) (dissenting opinion) (footnotes
omitted).
*298 Moreover, there are serious problems of
justice connected with the idea of preference itself. First, it may not always
be clear that a so‑called preference is in fact benign. Courts may be
asked to validate burdens imposed upon individual members of a particular group
in order to advance the group's general interest. See United Jewish
Organizations v. Carey, 430 U.S., at 172‑173, 97 S.Ct., at 1013.
(BRENNAN, J., concurring in part). Nothing in the Constitution supports the
notion that individuals may be asked to suffer otherwise impermissible burdens
in order to enhance the societal standing of their ethnic groups. Second,
preferential programs may only reinforce common stereotypes holding that
certain groups are unable to achieve success without special protection based
on a factor having no relationship to individual worth. See DeFunis v.
Odegaard, 416 U.S. 312, 343, 94 S.Ct. 1704, 1719, 40 L.Ed.2d 164 (1974)
(Douglas, J., dissenting). Third, there is a measure of inequity in forcing
innocent persons in respondent's position to bear the burdens of redressing
grievances not of their making.
By
hitching the meaning of the Equal Protection Clause to these transitory
considerations, we would be holding, as a constitutional principle, that
judicial scrutiny of classifications touching on racial and ethnic background
may vary with the ebb and flow of political forces. Disparate constitutional
tolerance of such classifications well may serve to exacerbate *299 racial and
ethnic antagonisms rather than alleviate them. United Jewish Organizations,
supra, 430 U.S., at 173‑174, 97 S.Ct., at 1013‑1014 (BRENNAN, J.,
concurring in part). Also, the mutability of a constitutional principle, based
upon shifting political and social judgments, undermines the chances for consistent
application of the Constitution from **2753 one generation to the next, a
critical feature of its coherent interpretation. Pollock v. Farmers' Loan &
Trust Co., 157 U.S. 429, 650‑651, 15 S.Ct. 673, 716, 39 L.Ed. 759 (1895)
(White, J., dissenting). In expounding the Constitution, the Court's role is to
discern "principles sufficiently absolute to give them roots throughout
the community and continuity over significant periods of time, and to lift them
above the level of the pragmatic political judgments of a particular time and
place." A. Cox, The Role of the Supreme Court in American Government 114
(1976).
If it is
the individual who is entitled to judicial protection against classifications
based upon his racial or ethnic background because such distinctions impinge
upon personal rights, rather than the individual only because of his membership
in a particular group, then constitutional standards may be applied
consistently. Political judgments regarding the necessity for the particular
classification may be weighed in the constitutional balance, Korematsu v.
United States, 323 U.S. 214, 65 S.Ct. 193, 89 L.Ed. 194 (1944), but the
standard of justification will remain constant. This is as it should be, since
those political judgments are the product of rough compromise struck by
contending groups within the democratic process. [FN38] When they 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. The Constitution
guarantees that right to every person regardless of his background. Shelley v.
Kraemer, 334 U.S., at 22, 68 S.Ct., at 846; Missouri ex rel. Gaines v. Canada,
305 U.S., at 351, 59 S.Ct., at 237.
FN38. R. Dahl, A Preface to Democratic Theory
(1956); Posner, supra n. 25, at 27.
*300 C
Petitioner
contends that on several occasions this Court has approved preferential
classifications without applying the most exacting scrutiny. Most of the cases
upon which petitioner relies are drawn from three areas: school desegregation,
employment discrimination, and sex discrimination. Each of the cases cited
presented a situation materially different from the facts of this case.
The school
desegregation cases are inapposite. Each involved remedies for clearly
determined constitutional violations. E. g., Swann v. Charlotte‑
Mecklenburg Board of Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554
(1971); McDaniel v. Barresi, 402 U.S. 39, 91 S.Ct. 1287, 28 L.Ed.2d 582 (1971);
Green v. County School Board, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716
(1968). Racial classifications thus were designed as remedies for the
vindication of constitutional entitlement. [FN39] Moreover, the scope of the
remedies was not permitted to exceed the extent of the *301 violations. E. g.,
Dayton Board of Education v. Brinkman, 433 U.S. 406, 97 S.Ct. 2766, 53 L.Ed.2d
851 **2754 (1977); Milliken v. Bradley, 418 U.S. 717, 94 S.Ct. 3112, 41 L.Ed.2d
1069 (1974); see Pasadena City Board of Education v. Spangler, 427 U.S. 424, 96
S.Ct. 2697, 49 L.Ed.2d 599 (1976). See also Austin Independent School Dist. v.
United States, 429 U.S. 990, 991‑995, 97 S.Ct. 517‑519, 50 L.Ed.2d
603 (1976) (POWELL, J., concurring). Here, there was no judicial determination
of constitutional violation as a predicate for the formulation of a remedial
classification.
FN39. Petitioner cites three lower court decisions
allegedly deviating from this general rule in school desegregation cases:
Offermann v. Nitkowski, 378 F.2d 22 (C.A.2 1967); Wanner v. County School
Board, 357 F.2d 452 (C.A.4 1966); Springfield School Committee v. Barksdale,
348 F.2d 261 (C.A.1 1965). Of these, Wanner involved a school system held to
have been de jure segregated and enjoined from maintaining segregation; racial
districting was deemed necessary. 357 F.2d, at 454. Cf. United Jewish
Organizations v. Carey, 430 U.S. 144, 97 S.Ct. 996, 51 L.Ed.2d 229 (1977). In
Barksdale and Offermann, courts did approve voluntary districting designed to
eliminate discriminatory attendance patterns. In neither, however, was there
any showing that the school board planned extensive pupil transportation that
might threaten liberty or privacy interests. See Keyes v. School District No.
1, 413 U.S. 189, 240‑250, 93 S.Ct. 2686, 2713, 2718, 37 L.Ed.2d 548
(1973) (POWELL, J., concurring in part and dissenting in part). Nor were white
students deprived of an equal
opportunity for education.
Respondent's position is wholly dissimilar to that
of a pupil bused from his neighborhood school to a comparable school in another
neighborhood in compliance with a desegregation decree. Petitioner did not
arrange for respondent to attend a different medical school in order to
desegregate Davis Medical School; instead, it denied him admission and may have
deprived him altogether of a medical education.
The
employment discrimination cases also do not advance petitioner's cause. For
example, in Franks v. Bowman Transportation Co., 424 U.S. 747, 96 S.Ct. 1251,
47 L.Ed.2d 444 (1976), we approved a retroactive award of seniority to a class
of Negro truckdrivers who had been the victims of discrimination‑‑not
just by society at large, but by the respondent in that case. While this relief
imposed some burdens on other employees, it was held necessary " 'to make
[the victims] whole for injuries suffered on account of unlawful employment
discrimination.' " Id., at 763, 96 S.Ct., at 1264, quoting Albemarle Paper
Co. v. Moody, 422 U.S. 405, 418, 95 S.Ct. 2362, 2372, 45 L.Ed.2d 280 (1975).
The Courts of Appeals have fashioned various types of racial preferences as
remedies for constitutional or statutory violations resulting in identified,
race‑based injuries to individuals held entitled to the preference. E.
g., Bridgeport Guardians, Inc. v. Bridgeport Civil Service Commission, 482 F.2d
1333 (CA2 1973); Carter v. Gallagher, 452 F.2d 315 (CA8 1972), modified on
rehearing en banc, id., at 327. Such preferences also have been upheld where a
legislative or administrative body charged with the responsibility made
determinations of past discrimination by the industries affected, and fashioned
remedies deemed appropriate to rectify the discrimination. E. g., Contractors
Association of Eastern Pennsylvania v. Secretary of Labor, 442 F.2d 159
(C.A.3), cert. denied, 404 U.S. 854, 92 S.Ct. 98, 30 L.Ed.2d 95 (1971); [FN40]
Associated General *302 iContractors of Massachusetts, Inc. v. Altshuler, 490
F.2d 9 (C.A.1 1973), cert. denied, 416 U.S. 957, 94 S.Ct. 1971, 40 L.Ed.2d 307
(1974); cf. Katzenbach v. Morgan, 384 U.S. 641, 86 S.Ct. 1717, 16 L.Ed.2d 828
(1966). But we have never approved preferential classifications in the absence
of proved constitutional or statutory violations. [FN41]
FN40. Every decision upholding the requirement of
preferential hiring under the authority of Exec. Order No. 11246, 3 CFR 339
(1964‑1965 Comp.), has emphasized the existence of previous
discrimination as a predicate for the imposition of a preferential remedy.
Contractors Association of Eastern Pennsylvania; Southern Illinois Builders
Assn. v. Ogilvie, 471 F.2d 680 (C.A.7 1972); Joyce v. McCrane, 320 F.Supp. 1284
(NJ 1970); Weiner v. Cuyahoga Community College District, 19 Ohio St.2d 35, 249 N.E.2d 907, cert. denied, 396 U.S.
1004, 90 S.Ct. 554, 24 L.Ed.2d 495 (1970). See also Rosetti Contracting Co. v.
Brennan, 508 F.2d 1039, 1041 (C.A.7 1975); Associated General Contractors of
Massachusetts, Inc. v. Altshuler, 490 F.2d 9 (C.A.1 1973), cert. denied, 416
U.S. 957, 94 S.Ct. 1971, 40 L.Ed.2d 307 (1974); Northeast Constr. Co. v.
Romney, 157 U.S.App.D.C. 381, 383, 390, 485 F.2d 752, 754, 761 (1973).
FN41. This case does not call into question
congressionally authorized administrative actions, such as consent decrees
under Title VII or approval of reapportionment plans under § 5 of the Voting
Rights Act of 1965, 42 U.S.C. § 1973c (1970 ed., Supp. V). In such cases, there
has been detailed legislative consideration of the various indicia of previous
constitutional or statutory violations, e. g., South Carolina v. Katzenbach,
383 U.S. 301, 308‑310, 86 S.Ct. 803, 808‑809, 15 L.Ed.2d 769 (1966)
(§ 5), and particular administrative bodies have been charged with monitoring
various activities in order to detect such violations and formulate appropriate
remedies. See Hampton v. Mow Sun Wong, 426 U.S. 88, 103, 96 S.Ct. 1895, 1905,
48 L.Ed.2d 495 (1976).
Furthermore, we are not here presented with an
occasion to review legislation by Congress pursuant to its powers under § 2 of
the Thirteenth Amendment and § 5 of
the Fourteenth Amendment to remedy the effects of prior discrimination.
Katzenbach v. Morgan, 384 U.S. 641, 86 S.Ct. 1717, 16 L.Ed.2d 828 (1966); Jones
v. Alfred H. Mayer Co., 392 U.S. 409, 88 S.Ct. 2186, 20 L.Ed.2d 1189 (1968). We
have previously recognized the special competence of Congress to make findings
with respect to the effects of identified past discrimination and its
discretionary authority to take appropriate remedial measures.
Nor is
petitioner's view as to the applicable standard supported by the fact that **2755
gender‑based classifications are not subjected to this level of scrutiny.
E.G., Califano v. Webster, 430 U.S. 313, 316‑317, 97 S.Ct. 1192, 1194‑1195,
51 L.Ed.2d 360 (1977); Craig v. Boren, 429 U.S. 190, 211, 97 S.Ct. 451, 464, 50
L.Ed.2d 397 (1976) (POWELL, J., concurring). Gender‑ based distinctions
are less likely to create the analytical and practical *303 problems present in
preferential programs premised on racial or ethnic criteria. With respect to
gender there are only two possible classifications. The incidence of the
burdens imposed by preferential classifications is clear. There are no rival
groups which can claim that they, too, are entitled to preferential treatment.
Classwide questions as to the group suffering previous injury and groups which
fairly can be burdened are relatively manageable for reviewing courts. See, e.
g., Califano v. Goldfarb, 430 U.S. 199, 212‑217, 97 S.Ct. 1021, 1029‑1032,
51 L.Ed.2d 270 (1977); Weinberger v. Wiesenfeld, 420 U.S. 636, 645, 95 S.Ct.
1225, 1231, 43 L.Ed.2d 514 (1975). The resolution of these same questions in
the context of racial and ethnic preferences presents far more complex and
intractable problems than gender‑based classifications. More importantly,
the perception of racial classifications as inherently odious stems from a
lengthy and tragic history that gender‑based classifications do not
share. In sum, the Court has never viewed such classification as inherently
suspect or as comparable to racial or ethnic classifications for the purpose of
equal protection analysis.
Petitioner
also cites Lau v. Nichols, 414 U.S. 563, 94 S.Ct. 786, 39 L.Ed.2d 1 (1974), in
support of the proposition that discrimination favoring racial or ethnic
minorities has received judicial approval without the exacting inquiry ordinarily
accorded "suspect" classifications. In Lau, we held that the failure
of the San Francisco school system to provide remedial English instruction for
some 1,800 students of oriental ancestry who spoke no English amounted to a
violation of Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, and
the regulations promulgated thereunder. Those regulations required remedial
instruction where inability to understand English excluded children of foreign
ancestry from participation in educational programs. 414 U.S., at 568, 94
S.Ct., at 789. Because we found that the students in Lau were denied "a
meaningful opportunity to participate in the educational program," ibid.,
we remanded for the fashioning of a remedial order.
*304 Lau provides little support for
petitioner's argument. The decision rested solely on the statute, which had
been construed by the responsible administrative agency to reach educational
practices "which have the effect of subjecting individuals to
discrimination," ibid. We stated: "Under these state‑imposed
standards there is no equality of treatment merely by providing students with
the same facilities, textbooks, teachers, and curriculum; for students who do
not understand English are effectively foreclosed from any meaningful
education." Id., at 566, 94 S.Ct., at 788. Moreover, the
"preference" approved did not result in the denial of the relevant
benefit‑‑"meaningful opportunity to participate in the
educational program"‑‑to anyone else. No other student was
deprived by that preference of the ability to participate in San Francisco's
school system, and the applicable regulations required similar assistance for
all students who suffered similar linguistic deficiencies. Id., at 570‑571,
94 S.Ct., at 790 (STEWART, J., concurring in result).
In a
similar vein, [FN42] petitioner contends that our recent decision in United
Jewish **2756 Organizations v. Carey, 430 U.S. 144, 97 S.Ct. 996, 51 L.Ed.2d
229 (1977), indicates a willingness to approve racial classifications designed
to benefit certain minorities, without denominating the classifications as
"suspect." The State of New York had redrawn its reapportionment plan
to meet objections of the Department of Justice under § 5 of the Voting Rights
Act of 1965, 42 U.S.C. § 1973c (1970 ed., Supp. V). Specifically, voting
districts were redrawn to enhance the electoral power *305 of certain
"nonwhite" voters found to have been the victims of unlawful
"dilution" under the original reapportionment plan. United Jewish Organizations,
like Lau, properly is viewed as a case in which the remedy for an
administrative finding of discrimination encompassed measures to improve the
previously disadvantaged group's ability to participate, without excluding
individuals belonging to any other group from enjoyment of the relevant
opportunity‑‑meaningful participation in the electoral process.
FN42. Petitioner also cites our decision in Morton
v. Mancari, 417 U.S. 535, 94 S.Ct. 2474, 41 L.Ed.2d 290 (1974), for the
proposition that the State may prefer members of traditionally disadvantaged
groups. In Mancari, we approved a hiring preference for qualified Indians in
the Bureau of Indian Affairs of the Department of the Interior (BIA). We
observed in that case, however, that the legal status of the BIA is sui
generis. Id., at 554, 94 S.Ct., at 2484. Indeed, we found that the preference
was not racial at all, but "an employment criterion reasonably designed to
further the cause of Indian self‑government and to make the BIA more
responsive to the needs of its constituent . . . groups . . . whose lives and activities are
governed by the BIA in a unique fashion." Ibid.
In this
case, unlike Lau and United Jewish Organizations, there has been no
determination by the legislature or a responsible administrative agency that
the University engaged in a discriminatory practice requiring remedial efforts.
Moreover, the operation of petitioner's special admissions program is quite
different from the remedial measures approved in those cases. It prefers the
designated minority groups at the expense of other individuals who are totally
foreclosed from competition for the 16 special admissions seats in every
Medical School class. Because of that foreclosure, some individuals are
excluded from enjoyment of a state‑provided benefit‑‑admission
to the Medical School‑‑they otherwise would receive. When a
classification denies an individual opportunities or benefits enjoyed by others
solely because of his race or ethnic background, it must be regarded as
suspect. E. g., McLaurin v. Oklahoma State Regents, 339 U.S., at 641‑642,
70 S.Ct., at 853‑854.
IV
We have
held that in "order to justify the use of a suspect classification, a
State must show that its purpose or interest is both constitutionally
permissible and substantial, and that its use of the classification is
'necessary . . . to the accomplishment' of its purpose or the safeguarding of
its interest." In re Griffiths, 413 U.S. 717, 721‑722, 93 S.Ct.
2851, 2855, 37 L.Ed.2d 910 (1973) (footnotes omitted); Loving v. Virginia, 388
U.S., at 11, 87 S.Ct., at 1823; McLaughlin v. Florida, 379 U.S. 184, 196, 85
S.Ct. 283, 290, 13 L.Ed.2d 222 (1964). The special admissions *306 program
purports to serve the purposes of: (i) "reducing the historic deficit of
traditionally disfavored minorities in medical schools and in the medical
profession," Brief for Petitioner 32; (ii) countering the effects of
societal discrimination; [FN43] (iii) increasing **2757 the number of
physicians who will practice in communities currently underserved; and (iv)
obtaining the educational benefits that flow from an ethnically diverse student
body. It is necessary to decide which, if any, of these purposes is substantial
enough to support the use of a suspect classification.
FN43. A number of distinct subgoals have been
advanced as falling under the rubric of "compensation for past
discrimination." For example, it is said that preferences for Negro
applicants may compensate for harm done them personally, or serve to place them
at economic levels they might have attained but for discrimination against
their forebears. Greenawalt, supra n. 25, at 581‑586. Another view of the
"compensation" goal is that it serves as a form of reparation by the
"majority" to a victimized group as a whole. B. Bittker, The Case for
Black Reparations (1973). That
justification for racial or ethnic preference has been subjected to much
criticism. E. g., Greenawalt, supra n. 25, at 581; Posner, supra, n. 25 at 16‑17,
and n. 33. Finally, it has been argued that ethnic preferences "compensate"
the group by providing examples of success whom other members of the group will
emulate, thereby advancing the group's interest and society's interest in
encouraging new generations to overcome the barriers and frustrations of the
past. Redish, supra n. 25, at 391. For purposes of analysis these subgoals need
not be considered separately.
Racial classifications in admissions conceivably
could serve a fifth purpose, one which petitioner does not articulate: fair
appraisal of each individual's academic promise in the light of some cultural
bias in grading or testing procedures. To the extent that race and ethnic
background were considered only to the extent of curing established
inaccuracies in predicting academic performance, it might be argued that there
is no "preference" at all. Nothing in this record, however, suggests
either that any of the quantitative factors considered by the Medical School
were culturally biased or that petitioner's special admissions program was
formulated to correct for any such biases. Furthermore, if race or ethnic
background were used solely to arrive at an unbiased prediction of academic
success, the reservation of fixed numbers of seats would be inexplicable.
*307 A
[11] If
petitioner's purpose is to assure within its student body some specified
percentage of a particular group merely because of its race or ethnic origin,
such a preferential purpose must be rejected not as insubstantial but as
facially invalid. Preferring members of any one group for no reason other than
race or ethnic origin is discrimination for its own sake. This the Constitution
forbids. E. g., Loving v. Virginia, supra, 388 U.S., at 11, 87 S.Ct., at 1823;
McLaughlin v. Florida, supra, 379 U.S., at 196, 85 S.Ct., at 290; Brown v.
Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954).
B
The State
certainly has a legitimate and substantial interest in ameliorating, or
eliminating where feasible, the disabling effects of identified discrimination.
The line of school desegregation cases, commencing with Brown, attests to the
importance of this state goal and the commitment of the judiciary to affirm all
lawful means toward its attainment. In the school cases, the States were
required by court order to redress the wrongs worked by specific instances of
racial discrimination. That goal was far more focused than the remedying of the
effects of "societal discrimination," an amorphous concept of injury
that may be ageless in its reach into the past.
[12] We
have never approved a classification that aids persons perceived as members of
relatively victimized groups at the expense of other innocent individuals in
the absence of judicial, legislative, or administrative findings of
constitutional or statutory violations. See, e. g., Teamsters v. United States,
431 U.S. 324, 367‑376, 97 S.Ct. 1843, 1870‑1875, 52 L.Ed.2d 396
(1977); United Jewish Organizations, 430 U.S., at 155‑156, 97 S.Ct., at
1004‑1005; South Carolina v. Katzenbach, 383 U.S. 301, 308, 86 S.Ct. 803,
808, 15 L.Ed.2d 769 (1966). After such findings have been made, the
governmental interest in preferring members of the injured groups at the
expense of others is substantial, since the legal rights of the victims must be
vindicated. In such a case, the *308 extent of the injury and the consequent
remedy will have been judicially, legislatively, or administratively defined.
Also, the remedial action usually remains subject to continuing oversight to
assure that it will work the least harm possible to other innocent persons
competing for the benefit. Without such findings of constitutional or statutory
violations, [FN44] it cannot be *309 said that **2758 the government has any
greater interest in helping one individual than in refraining from harming
another. Thus, the government has no compelling justification for inflicting
such harm.
FN44. Mr. Justice BRENNAN, Mr. Justice WHITE, Mr.
Justice MARSHALL, and Mr. Justice
BLACKMUN misconceive the scope of this Court's holdings under Title VII when
they suggest that "disparate impact" alone is sufficient to establish
a violation of that statute and, by analogy, other civil rights measures. See
post, at 2786‑2787, and n. 42. That this was not the meaning of Title VII
was made quite clear in the seminal decision in this area, Griggs v. Duke Power
Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971):
"Discriminatory preference for any group,
minority or majority, is precisely and only what Congress has proscribed. What
is required by Congress is the removal of artificial, arbitrary, and
unnecessary barriers to employment when the barriers operate invidiously to
discriminate on the basis of racial or other impermissible
classification." Id., at 431, 91 S.Ct., at 853 (emphasis added).
Thus, disparate impact is a basis for relief under
Title VII only if the practice in question is not founded on "business
necessity," ibid., or lacks "a manifest relationship to the
employment in question," id., at 432, 91 S.Ct., at 854. See also McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802‑803, 805‑806, 93 S.Ct. 1817,
1824, 1825, 1826, 36 L.Ed.2d 668 (1973). Nothing in this record ‑‑as
opposed to some of the general literature cited by Mr. Justice BRENNAN, Mr.
Justice WHITE, Mr. Justice MARSHALL, and Mr. Justice BLACKMUN‑‑even
remotely suggests that the disparate
impact of the general admissions program at Davis Medical School, resulting
primarily from the sort of disparate test scores and grades set forth in n. 7,
supra, is without educational justification.
Moreover, the presumption in Griggs ‑‑that
disparate impact without any showing of business justification established the
existence of discrimination in violation of the statute‑‑was based
on legislative determinations, wholly absent here, that past discrimination had
handicapped various minority groups to such an extent that disparate impact
could be traced to identifiable instances of past discrimination:
"[Congress sought] to achieve equality of
employment opportunities and remove barriers that have operated in the past to
favor an identifiable group of white employees over other employees. Under the
Act, practices, procedures, or tests neutral on their face, and even neutral in
terms of intent, cannot be maintained if they operate to 'freeze' the status
quo of prior discriminatory employment practices." Griggs, supra, 401
U.S., at 429‑430, 91 S.Ct., at 853.
See, e. g., H.R.Rep. No. 914, 88th Cong., 1st
Sess., pt. 2, p. 26 (1963) ("Testimony supporting the fact of
discrimination in employment is overwhelming"). See generally Vaas, Title
VII: The Legislative History, 7 B.C.Ind. & Com.L.Rev. 431 (1966). The Court
emphasized that "the Act does not command that any person be hired simply
because he was formerly the subject
of discrimination, or because he is a member of a minority group." 401
U.S., at 430‑431, 91 S.Ct., at 853. Indeed, § 703(j) of the Act makes it
clear that preferential treatment for an individual or minority group to
correct an existing "imbalance" may not be required under Title VII.
42 U.S.C. § 2000e‑2(j). Thus, Title VII principles support the proposition
that findings of identified discrimination must precede the fashioning of
remedial measures embodying racial classifications.
Petitioner
does not purport to have made, and is in no position to make, such findings.
Its broad mission is education, not the formulation of any legislative policy
or the adjudication of particular claims of illegality. For reasons similar to
those stated in Part III of this opinion, isolated segments of our vast
governmental structures are not competent to make those decisions, at least in
the absence of legislative mandates and legislatively determined criteria.
[FN45] Cf. Hampton v. Mow Sun Wong, 426 U.S. 88, 96 S.Ct. 1895, 48 L.Ed.2d 495
(1976); n. 41, supra. Before relying upon these sorts of findings in establishing
a racial classification, a governmental body must have the authority and
capability to establish, in the record, that the classification is responsive
to identified discrimination. See, e. g., Califano v. Webster, 430 U.S., at 316‑321,
97 S.Ct., at 1194‑1197; Califano *310 v. Goldfarb, 430 U.S., at 212‑217,
97 S.Ct., at 1029‑ 1032. Lacking this capability, petitioner has not
carried its burden of justification on this issue.
FN45. For example, the University is unable to
explain its selection of only the four favored groups‑‑Negroes,
Mexican‑Americans, American‑Indians, and Asians‑‑for
preferential treatment. The inclusion of the last group is especially curious
in light of the substantial numbers of Asians admitted through the regular
admissions process. See also n. 37, supra.
[13]
Hence, the purpose of helping certain groups whom the faculty of the Davis
Medical School perceived as victims of "societal discrimination" does
not justify a classification that imposes disadvantages upon persons like respondent,
who bear no responsibility for whatever harm the beneficiaries of the special
admissions program are thought to have suffered. To hold otherwise would be to
convert a remedy heretofore reserved for violations of legal rights into a
privilege that all institutions throughout the Nation could grant at their
pleasure to whatever groups are perceived as victims of societal
discrimination. That is a step we have never approved. Cf. Pasadena City Board
of Education v. Spangler, 427 U.S. 424, 96 S.Ct. 2697, 49 L.Ed.2d 599 (1976).
C
Petitioner
identifies, as another purpose of its program, improving the delivery of **2759
health‑care services to communities currently underserved. It may be
assumed that in some situations a State's interest in facilitating the health
care of its citizens is sufficiently compelling to support the use of a suspect
classification. But there is virtually no evidence in the record indicating
that petitioner's special admissions program is either needed or geared to
promote that goal. [FN46] The court below addressed this failure of proof:
FN46. The only evidence in the record with respect
to such underservice is a newspaper article. Record 473.
"The University concedes it cannot assure
that minority doctors who entered under the program, all of whom expressed an
'interest' in practicing in a disadvantaged community, will actually do so. It
may be correct to assume that some of them will carry out this intention, and
that it is more likely they will practice in minority *311 communities than the
average white doctor. (See Sandalow, Racial Preferences in Higher Education:
Political Responsibility and the Judicial Role (1975) 42 U.Chi.L.Rev. 653,
688). Nevertheless, there are more precise and reliable ways to identify
applicants who are genuinely interested in the medical problems of minorities
than by race. An applicant of whatever race who has demonstrated his concern
for disadvantaged minorities in the past and who declares that practice in such
a community is his primary professional goal would be more likely to contribute
to alleviation of the medical shortage than one who is chosen entirely on the
basis of race and disadvantage. In short, there is no empirical data to
demonstrate that any one race is more selflessly socially oriented or by
contrast that another is more selfishly acquisitive." 18 Cal.3d, at 56,
132 Cal.Rptr., at 695, 553 P.2d, at 1167.
Petitioner
simply has not carried its burden of demonstrating that it must prefer members
of particular ethnic groups over all other individuals in order to promote
better health‑care delivery to deprived citizens. Indeed, petitioner has
not shown that its preferential classification is likely to have any
significant effect on the problem. [FN47]
FN47. It is not clear that petitioner's two‑track
system, even if adopted throughout the country, would substantially increase
representation of blacks in the medical profession. That is the finding of a
recent study by Sleeth & Mishell, Black Under‑Representation in
United States Medical Schools, 297 New England J. of Med. 1146 (1977). Those
authors maintain that the cause of black underrepresentation lies in the small
size of the national pool of qualified black applicants. In their view, this
problem is traceable to the poor
premedical experiences of black undergraduates, and can be remedied effectively
only by developing remedial programs for black students before they enter
college.
D
[14] The
fourth goal asserted by petitioner is the attainment of a diverse student body.
This clearly is a constitutionally permissible *312 goal for an institution of
higher education. Academic freedom, though not a specifically enumerated
constitutional right, long has been viewed as a special concern of the First
Amendment. The freedom of a university to make its own judgments as to
education includes the selection of its student body. Mr. Justice Frankfurter
summarized the "four essential freedoms" that constitute academic
freedom:
" 'It 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.' " Sweezy v. New Hampshire, 354 U.S. 234, 263, 77
S.Ct. 1203, 1218, 1 L.Ed.2d 1311 (1957) (concurring in result).
Our
national commitment to the safeguarding of these freedoms within university
communities was emphasized in Keyishian v. Board of Regents, 385 U.S. 589, 603,
87 S.Ct. 675, 683, 17 L.Ed.2d 629 (1967):
**2760 "Our Nation is deeply committed to
safeguarding academic freedom which is of transcendent value to all of us and
not merely to the teachers concerned. That freedom is therefore a special
concern of the First Amendment . . . . The Nation's future depends upon leaders
trained through wide exposure to that robust exchange of ideas which discovers
truth 'out of a multitude of tongues, [rather] than through any kind of
authoritative selection.' United States v. Associated Press, D.C., 52 F.Supp.
362, 372."
The
atmosphere of "speculation, experiment and creation"‑‑so
essential to the quality of higher education‑‑is widely believed to
be promoted by a diverse student body. [FN48] As the Court *313 noted in
Keyishian, it is not too much to say that 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.
FN48. The president of Princeton University has
described some of the benefits derived from a diverse student body:
"[A] great deal of learning occurs
informally. It occurs through interactions among students of both sexes; of
different races, religions, and backgrounds; who come from cities and rural
areas, from various states and
countries; who have a wide variety of interests, talents, and perspectives; and
who are able, directly or indirectly, to learn from their differences and to
stimulate one another to reexamine even their most deeply held assumptions
about themselves and their world. As a wise graduate of ours observed in
commenting on this aspect of the educational process, 'People do not learn very
much when they are surrounded only by the likes of themselves.'
* * *
"In the nature of things, it is hard to know
how, and when, and even if, this informal 'learning through diversity' actually
occurs. It does not occur for everyone. For many, however, the unplanned,
casual encounters with roommates, fellow sufferers in an organic chemistry
class, student workers in the library, teammates on a basketball squad, or
other participants in class affairs or student government can be subtle and yet
powerful sources of improved understanding and personal growth." Bowen,
Admissions and the Relevance of Race, Princeton Alumni Weekly 7, 9 (Sept. 26,
1977).
Thus, in
arguing that its universities must be accorded the right to select those
students who will contribute the most to the "robust exchange of
ideas," petitioner invokes a countervailing constitutional interest, that
of the First Amendment. In this light, petitioner must be viewed as seeking to
achieve a goal that is of paramount importance in the fulfillment of its
mission.
It may be
argued that there is greater force to these views at the undergraduate level
than in a medical school where the training is centered primarily on
professional competency. But even at the graduate level, our tradition and
experience lend support to the view that the contribution of diversity is
substantial. In Sweatt v. Painter, 339 U.S., at 634, 70 S.Ct., at 850, the *314
Court made a similar point with specific reference to legal education:
"The law school, the proving ground for legal
learning and practice, cannot be effective in isolation from the individuals
and institutions with which the law interacts. Few students and no one who has
practiced law would choose to study in an academic vacuum, removed from the
interplay of ideas and the exchange of views with which the law is concerned."
Physicians
serve a heterogeneous population. An otherwise qualified medical student with a
particular background‑‑whether it be ethnic, geographic, culturally
advantaged or disadvantaged‑‑may bring to a professional school of
medicine experiences, outlooks, and ideas that enrich the training of its
student body and better equip its graduates to render with understanding their
vital service to humanity. [FN49]
FN49. Graduate admissions decisions, like those at
the undergraduate level, are concerned with "assessing the potential
contributions to the society of each individual candidate following his or her
graduation‑‑ contributions defined in the broadest way to include
the doctor and the poet, the most active participant in business or government
affairs and the keenest critic of all things organized, the solitary scholar
and the concerned parent." Id., at 10.
Ethnic
diversity, however, is only one element in a range of factors a university
**2761 properly may consider in attaining the goal of a heterogeneous student
body. Although a university must have wide discretion in making the sensitive
judgments as to who should be admitted, constitutional limitations protecting
individual rights may not be disregarded. Respondent urges‑‑and the
courts below have held‑‑that petitioner's dual admissions program
is a racial classification that impermissibly infringes his rights under the
Fourteenth Amendment. As the interest of diversity is compelling in the context
of a university's admissions program, the question remains whether the *315
program's racial classification is necessary to promote this interest. In Re
Griffiths, 413 u.s., at 721‑722, 93 s.ct., at 2854‑2855.
V
A
It may be
assumed that the reservation of a specified number of seats in each class for
individuals from the preferred ethnic groups would contribute to the attainment
of considerable ethnic diversity in the student body. But petitioner's argument
that this is the only effective means of serving the interest of diversity is
seriously flawed. In a most fundamental sense the argument misconceives the
nature of the state interest that would justify consideration of race or ethnic
background. It 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, with the remaining percentage an undifferentiated
aggregation of students. The 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.
Petitioner's special admissions program, focused solely on ethnic diversity,
would hinder rather than further attainment of genuine diversity. [FN50]
FN50. See Manning, The Pursuit of Fairness in
Admissions to Higher Education, in Carnegie Council on Policy Studies in Higher
Education, Selective Admissions in Higher Education 19, 57‑59 (1977).
Nor would
the state interest in genuine diversity be served by expanding petitioner's two‑track
system into a multitrack program with a prescribed number of seats set aside
for each identifiable category of applicants. Indeed, it is inconceivable that
a university would thus pursue the logic of petitioner's two‑track
program to the illogical end of insulating each category of applicants with
certain desired qualifications from competition with all other applicants.
*316
[15] The experience of other
university admissions programs, which take race into account in achieving the
educational diversity valued by the First Amendment, demonstrates that the
assignment of a fixed number of places to a minority group is not a necessary
means toward that end. An illuminating example is found in the Harvard College
program:
"In recent years Harvard College has expanded
the concept of diversity to include students from disadvantaged economic,
racial and ethnic groups. Harvard College now recruits not only Californians or
Louisianans but also blacks and Chicanos and other minority students. . . .
"In practice, this new definition of
diversity has meant that race has been a factor in some admission decisions.
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 just as geographic
origin or a life spent on a farm may tip the balance in other candidates'
cases. A farm boy from Idaho can bring something to Harvard College that a
Bostonian cannot offer. Similarly, a black student can usually bring something
that a white person cannot offer. [See Appendix hereto.] . . .
"In Harvard College admissions the Committee
has not set target‑quotas for **2762 the number of blacks, or of
musicians, football players, physicists or Californians to be admitted in a
given year. . . . But that awareness [of the necessity of including more than a
token number of black students] does not mean that the Committee sets a minimum
number of blacks or of people from west of the Mississippi who are to be
admitted. It means only that in choosing among thousands of applicants who are
not only 'admissible' academically but have other strong qualities, the
Committee, with a number of criteria in mind, pays some attention to distribution
among many *317 types and categories of students." App. to Brief for
Columbia University, Harvard University, Stanford University, and the
University of Pennsylvania, as Amici Curiae 2‑3.
In such an
admissions program, [FN51] race or ethnic background may be deemed a
"plus" in a particular applicant's file, yet it does not insulate the
individual from comparison with all other candidates for the available seats.
The file of a particular black applicant may 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. Such qualities could include exceptional
personal talents, unique work or service experience, leadership potential,
maturity, demonstrated compassion, a history of overcoming disadvantage,
ability to communicate with the poor, or other qualifications deemed important.
In short, an admissions program operated in this way 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. Indeed,
the weight attributed to a *318 particular quality may vary from year to year
depending upon the "mix" both of the student body and the applicants
for the incoming class.
FN51. The admissions program at Princeton has been
described in similar terms:
"While race is not in and of itself a
consideration in determining basic qualifications, and while there are
obviously significant differences in background and experience among applicants
of every race, in some situations race can be helpful information in enabling
the admission officer to understand more fully what a particular candidate has
accomplished‑‑and against what odds. Similarly, such factors as
family circumstances and previous educational opportunities may be relevant, either in conjunction with race or
ethnic background (with which they may be associated) or on their own."
Bowen, supra n. 48, at 8‑9.
For an illuminating discussion of such flexible
admissions systems, see Manning, supra n. 50, at 57‑59.
[16] This
kind of program treats each applicant as an individual in the admissions
process. The applicant who loses out on the last available seat to another
candidate receiving a "plus" on the basis of ethnic background will
not have been foreclosed from all consideration for that seat simply because he
was not the right color or had the wrong surname. It would mean only that his
combined qualifications, which may have included similar nonobjective factors,
did not outweigh those of the other applicant. His qualifications would have
been weighed fairly and competitively, and he would have no basis to complain
of unequal treatment under the Fourteenth Amendment. [FN52]
FN52. The denial to respondent of this right to
individualized consideration without regard to his race is the principal evil
of petitioner's special admissions program. Nowhere in the opinion of Mr.
Justice BRENNAN, Mr. Justice WHITE, Mr. Justice MARSHALL, and Mr. Justice
BLACKMUN is this denial even addressed.
It has
been suggested that an admissions program which considers race only as one
factor is simply a subtle and more sophisticated‑‑but no less
effective‑‑ means of according racial preference than the Davis
program. A facial intent to discriminate, however, is evident in petitioner's
preference program and not denied in this case. No such facial infirmity exists
in an admissions**2763 program where race or ethnic background is simply one
element‑‑to be weighed fairly against other elements‑‑in
the selection process. "A boundary line," as Mr. Justice Frankfurter
remarked in another connection, "is none the worse for being narrow."
McLeod v. Dilworth, 322 U.S. 327, 329, 64 S.Ct. 1023, 1025, 88 L.Ed. 1304
(1944). And a court would not assume that a university, professing to employ a
facially nondiscriminatory admissions policy, would operate it as a cover for
the functional equivalent of a quota system. In short, good faith *319 would be
presumed in the absence of a showing to the contrary in the manner permitted by
our cases. See e. g., Arlington Heights v. Metropolitan Housing Dev. Corp., 429
U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977); Washington v. Davis, 426 U.S.
229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976); Swain v. Alabama, 380 U.S. 202, 85
S.Ct. 824, 13 L.Ed.2d 759 (1965). [FN53]
FN53. Universities, like the prosecutor in Swain,
may make individualized decisions, in which ethnic background plays a part,
under a presumption of legality and
legitimate educational purpose. So long as the university proceeds on an
individualized, case‑by‑case basis, there is no warrant for
judicial interference in the academic process. If an applicant can establish
that the institution does not adhere to a policy of individual comparisons, or
can show that a systematic exclusion of certain groups results, the presumption
of legality might be overcome, creating the necessity of proving legitimate
educational purpose.
There also are strong policy reasons that
correspond to the constitutional distinction between petitioner's preference
program and one that assures a measure of competition among all applicants.
Petitioner's program will be viewed as inherently unfair by the public
generally as well as by applicants for admission to state universities.
Fairness in individual competition for opportunities, especially those provided
by the State, is a widely cherished American ethic. Indeed, in a broader sense,
an underlying assumption of the rule of law is the worthiness of a system of
justice based on fairness to the individual. As Mr. Justice Frankfurter declared
in another connection, "[j]ustice must satisfy the appearance of
justice." Offutt v. United States, 348 U.S. 11, 14, 75 S.Ct. 11, 13, 99
L.Ed. 11 (1954).
B
In
summary, it is evident that the Davis special admissions program involves the
use of an explicit racial classification never before countenanced by this
Court. It tells applicants who are not Negro, Asian, or Chicano that they are
totally excluded from a specific percentage of the seats in an entering class.
No 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 special admissions seats. At the same time, the preferred *320
applicants have the opportunity to compete for every seat in the class.
The fatal
flaw in petitioner's preferential program is its disregard of individual rights
as guaranteed by the Fourteenth Amendment. Shelley v. Kraemer, 334 U.S., at 22,
68 S.Ct., at 846. Such rights are not absolute. But when a State's distribution
of benefits or imposition of burdens hinges on ancestry or the color of a
person's skin, that individual is entitled to a demonstration that the
challenged classification is necessary to promote a substantial state interest.
Petitioner has failed to carry this burden. For this reason, that portion of
the California court's judgment holding petitioner's special admissions program
invalid under the Fourteenth Amendment must be affirmed.
C
[17] In
enjoining petitioner from ever considering the race of any applicant, however,
the courts below failed to recognize that the 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. For this
reason, so much of the California court's judgment as enjoins petitioner from
any consideration of the race of any applicant must be reversed.
VI
[18][19]
With respect to respondent's entitlement to an injunction directing his
admission **2764 to the Medical School, petitioner has conceded that it could
not carry its burden of proving that, but for the existence of its unlawful
special admissions program, respondent still would not have been admitted.
Hence, respondent is entitled to the injunction, and that portion of the
judgment must be affirmed. [FN54]
FN54. There is no occasion for remanding the case
to permit petitioner to reconstruct what might have happened if it had been
operating the type of program described as legitimate in Part V, supra. Cf. Mt.
Healthy City Board of Ed. v. Doyle, 429 U.S. 274, 284‑287, 97 S.Ct. 568,
575‑576, 50 L.Ed.2d 471 (1977). In Mt. Healthy, there was considerable
doubt whether protected First Amendment activity had been the "but
for" cause of Doyle's protested discharge. Here, in contrast, there is no
question as to the sole reason
for respondent's rejection‑‑purposeful racial discrimination in the
form of the special admissions program. Having injured respondent solely on the
basis of an unlawful classification, petitioner cannot now hypothesize that it
might have employed lawful means of achieving the same result. See Arlington
Heights v. Metropolitan Housing Dev. Corp., 429 U.S., at 265‑266, 97
S.Ct., at 563‑564. No one can say how‑‑or even if‑‑petitioner
would have operated its admissions process if it had known that legitimate
alternatives were available. Nor is there a record revealing that legitimate
alternative grounds for the decision existed, as there was in Mt. Healthy. In
sum, a remand would result in fictitious recasting of past conduct.
*321
APPENDIX TO OPINION OF POWELL, J.
Harvard
College Admissions Program [FN55]
FN55. This statement appears in the Appendix to
the Brief for Columbia University, Harvard University, Stanford University, and
the University of Pennsylvania, as Amici Curiae.
For the
past 30 years Harvard College has received each year applications for admission
that greatly exceed the number of places in the freshman class. The number of
applicants who are deemed to be not "qualified" is comparatively
small. The vast majority of applicants demonstrate through test scores, high
school records and teachers' recommendations that they have the academic ability
to do adequate work at Harvard, and perhaps to do it with distinction. Faced
with the dilemma of choosing among a large number of "qualified"
candidates, the Committee on Admissions could use the single criterion of
scholarly excellence and attempt to determine who among the candidates were
likely to perform best academically. But for the past 30 years the Committee on
Admissions has never adopted this approach. The belief has been that if
scholarly excellence were the sole or even predominant criterion, Harvard
College would lose a great deal of its vitality and intellectual excellence and
that the quality of the educational *322 experience offered to all students
would suffer. Final Report of W. J. Bender, Chairman of the Admission and
Scholarship Committee and Dean of Admissions and Financial Aid, pp. 20 et seq.
(Cambridge, 1960). Consequently, after selecting those students whose
intellectual potential will seem extraordinary to the faculty‑‑perhaps
150 or so out of an entering class of over 1,100‑‑the Committee
seeks‑‑
variety in making its choices. This has seemed
important . . . in part because it adds a critical ingredient to the
effectiveness of the educational experience [in Harvard College]. . . . The
effectiveness of our students' educational experience has seemed to the
Committee to be affected as importantly by a wide variety of interests,
talents, backgrounds and career goals as it is by a fine faculty and our
libraries, laboratories and housing arrangements. (Dean of Admissions Fred L.
Glimp, Final Report to the Faculty of Arts and Sciences, 65 Official Register
of Harvard University No. 25, 93, 104‑105 (1968) (emphasis supplied).
The belief
that diversity adds an essential ingredient to the educational process has long
been a tenet of Harvard College admissions. Fifteen or twenty years ago,
however, diversity meant students from California, New York, and Massachusetts;
city dwellers and farm boys; violinists, painters and football players;
biologists, historians and classicists; potential stockbrokers, academics and
politicians. The result **2765 was that very few ethnic or racial minorities
attended Harvard College. In recent years Harvard College has expanded the
concept of diversity to include students from disadvantaged economic, racial
and ethnic groups. Harvard College now recruits not only Californians or
Louisianans but also blacks and Chicanos and other minority students.
Contemporary conditions in the United States mean that if Harvard College is to
continue to offer a first‑rate education to its students, *323 minority
representation in the undergraduate body cannot be ignored by the Committee on
Admissions.
In
practice, this new definition of diversity has meant that race has been a
factor in some admission decisions. 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 just as geographic origin or a life spent on a farm
may tip the balance in other candidates' cases. A farm boy from Idaho can bring
something to Harvard College that a Bostonian cannot offer. Similarly, a black
student can usually bring something that a white person cannot offer. The
quality of the educational experience of all the students in Harvard College
depends in part on these differences in the background and outlook that
students bring with them.
In Harvard
College admissions the Committee has not set target‑quotas for the number
of blacks, or of musicians, football players, physicists or Californians to be
admitted in a given year. At the same time the Committee is aware that if
Harvard College is to provide a truly heterogen[e]ous environment that reflects
the rich diversity of the United States, it cannot be provided without some
attention to numbers. It would not make sense, for example, to have 10 or 20
students out of 1,100 whose homes are west of the Mississippi. Comparably, 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. Their small numbers might also create a sense of isolation
among the black students themselves and thus make it more difficult for them to
develop and achieve their potential. Consequently, when making its decisions,
the Committee on Admissions is aware that there is 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. But *324 that awareness does not mean that the Committee sets a
minimum number of blacks or of people from west of the Mississippi who are to
be admitted. It means only that in choosing among thousands of applicants who
are not only "admissible" academically but have other strong
qualities, the Committee, with a number of criteria in mind, pays some
attention to distribution among many types and categories of students.
The
further refinements sometimes required help to illustrate the kind of
significance attached to race. 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.
Opinion of
Mr. Justice BRENNAN, Mr. Justice WHITE, Mr. Justice MARSHALL, and Mr. Justice
BLACKMUN, concurring in the judgment in part and dissenting in part.
[12] The
Court today, in reversing in part the judgment of the Supreme Court of **2766
California, affirms the constitutional power of Federal and State Governments
to act affirmatively to achieve equal opportunity for all. The difficulty of
the issue presented‑‑whether government may use race‑
conscious programs to redress the continuing effects of past discrimination‑‑*325 and the mature consideration which each
of our Brethren has brought to it have resulted in many opinions, no single one
speaking for the Court. But this should not and must not mask the central
meaning of today's opinions: Government may take race into account when it acts
not to demean or insult any racial group, but to remedy disadvantages cast on
minorities by past racial prejudice, at least when appropriate findings have
been made by judicial, legislative, or administrative bodies with competence to
act in this area.
THE CHIEF
JUSTICE and our Brothers STEWART, REHNQUIST, and STEVENS, have concluded that
Title VI of the Civil Rights Act of 1964, 78 Stat. 252, as amended, 42 U.S.C. §
2000d et seq., prohibits programs such as that at the Davis Medical School. On
this statutory theory alone, they would hold that respondent Allan Bakke's
rights have been violated and that he must, therefore, be admitted to the
Medical School. Our Brother POWELL, reaching the Constitution, concludes that,
although race may be taken into account in university admissions, the particular
special admissions program used by petitioner, which resulted in the exclusion
of respondent Bakke, was not shown to be necessary to achieve petitioner's
stated goals. Accordingly, these Members of the Court form a majority of five
affirming the judgment of the Supreme Court of California insofar as it holds
that respondent Bakke "is entitled to an order that he be admitted to the
University." 18 Cal.3d 34, 64, 132 Cal.Rptr. 680, 700, 553 P.2d 1152, 1172
(1976).
[8][1][15]
We agree with Mr. Justice POWELL that, as applied to the case before us, Title
VI goes no further in prohibiting the use of race than the Equal Protection
Clause of the Fourteenth Amendment itself. We also agree that the effect of the
California Supreme Court's affirmance of the judgment of the Superior Court of
California would be to prohibit the University from establishing in the future
affirmative‑action programs that take race into account. See ante, at
2738 n. **. Since we conclude that the affirmative admissions program at the
Davis *326 Medical School is constitutional, we would reverse the judgment
below in all respects. Mr. Justice POWELL agrees that some uses of race in
university admissions are permissible and, therefore, he joins with us to make
five votes reversing the judgment below insofar as it prohibits the University
from establishing race‑conscious programs in the future. [FN1]
FN1. We also agree with Mr. Justice POWELL that a
plan like the "Harvard" plan, see ante, at 2762‑2763, is
constitutional under our approach, at least so long as the use of race to
achieve an integrated student body is necessitated by the lingering effects of
past discrimination.
I
Our Nation
was founded on the principle that "all Men are created equal." Yet
candor requires acknowledgment that the Framers of our Constitution, to forge
the 13 Colonies into one Nation, openly compromised this principle of equality
with its antithesis: slavery. The consequences of this compromise are well
known and have aptly been called our "American Dilemma." Still, it is
well to recount how recent the time has been, if it has yet come, when the
promise of our principles has flowered into the actuality of equal opportunity
for all regardless of race or color.
The
Fourteenth Amendment, the embodiment in the Constitution of our abiding belief
in human equality, has been the law of our land for only slightly more than
half its 200 years. And for half of that half, the Equal Protection Clause of
the Amendment was largely moribund so that, as late as **2767 1927, Mr. Justice
Holmes could sum up the importance of that Clause by remarking that it was the
"last resort of constitutional arguments." Buck v. Bell, 274 U.S.
200, 208, 47 S.Ct. 584, 585, 71 L.Ed. 1000 (1927). Worse than desuetude, the Clause
was early turned against those whom it was intended to set free, condemning
them to a "separate but equal" [FN2] status before the law, a status
*327 always separate but seldom equal. Not until 1954‑‑only 24
years ago‑‑ was this odious doctrine interred by our decision in
Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (Brown I
), and its progeny, [FN3] which proclaimed that separate schools and public
facilities of all sorts were inherently unequal and forbidden under our
Constitution. Even then inequality was not eliminated with "all deliberate
speed." Brown v. Board of Education, 349 U.S. 294, 301, 75 S.Ct. 753, 756,
99 L.Ed. 1083 (1955). In 1968 [FN4] and again in 1971, [FN5] for example, we
were forced to remind school boards of their obligation to eliminate racial
discrimination root and branch. And a glance at our docket [FN6] and at dockets
of lower courts will show that even today officially sanctioned discrimination
is not a thing of the past.
FN2. See Plessy v. Ferguson, 163 U.S. 537, 16
S.Ct. 1138, 41 L.Ed. 256 (1896).
FN3. New Orleans City Park Improvement Assn. v.
Detiege, 358 U.S. 54, 79 S.Ct. 99, 3 L.Ed.2d 46 (1958); Muir v. Louisville Park
Theatrical Assn., 347 U.S. 971, 74 S.Ct. 783, 98 L.Ed. 1112 (1954); Mayor of
Baltimore v. Dawson, 350 U.S. 877, 76 S.Ct. 133, 100 L.Ed. 774 (1955); Holmes
v. Atlanta, 350 U.S. 879, 76 S.Ct. 141, 100 L.Ed. 776 (1955); Gayle v. Browder,
352 U.S. 903, 77 S.Ct. 145, 1 L.Ed.2d 114 (1956).
FN4. See Green v. County School Board, 391 U.S.
430, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968).
FN5. See Swann v. Charlotte‑Mecklenburg
Board of Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971); Davis v.
School Comm'rs of Mobile County, 402 U.S. 33, 91 S.Ct. 1289, 28 L.Ed.2d 577
(1971); North Carolina Board of
Education v. Swann, 402 U.S. 43, 91 S.Ct. 1284, 28 L.Ed.2d 586 (1971).
FN6. See, e. g., cases collected in Monell v. New
York City Dept. of Social Services, 436 U.S. 658, 663 n. 5, 98 S.Ct. 2018,
2022, 56 L.Ed.2d 611 (1978).
Against
this background, claims that law must be"color‑blind" or that
the datum of race is no longer relevant to public policy must be seen as
aspiration rather than as description of reality. This is not to denigrate
aspiration; for reality rebukes us that race has too often been used by those
who would stigmatize and oppress minorities. Yet we cannot‑‑and, as
we shall demonstrate, need not under our Constitution or Title VI, which merely
extends the constraints of the Fourteenth Amendment to private parties who
receive federal funds‑‑let color blindness become myopia which
masks the reality that many "created equal" have been treated within
our lifetimes as inferior both by the law and by their fellow citizens.
*328 II
The
threshold question we must decide is whether Title VI of the Civil Rights Act
of 1964 bars recipients of federal funds from giving preferential consideration
to disadvantaged members of racial minorities as part of a program designed to
enable such individuals to surmount the obstacles imposed by racial discrimination.
[FN7] We join Parts I and V‑C of our Brother POWELL's opinion and three
of us agree with his conclusion in Part II that this case does not require us
to resolve the question whether there is a private right of action under Title
VI. [FN8]
FN7. Section 601 of Title VI provides:
"No 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.
FN8. Mr. Justice WHITE believes we should address
the private‑right‑of‑ action issue. Accordingly, he has filed
a separate opinion stating his view that there is no private right of action
under Title VI. See post, p. 2794.
In our
view, Title VI prohibits only those uses of racial criteria that would violate
the Fourteenth Amendment if employed by a **2768 State or its agencies; it does
not bar the preferential treatment of racial minorities as a means of remedying
past societal discrimination to the extent that such action is consistent with
the Fourteenth Amendment. The legislative history of Title VI, administrative
regulations interpreting the statute, subsequent congressional and executive
action, and the prior decisions of this Court compel this conclusion. None of
these sources lends support to the proposition that Congress intended to bar
all race‑conscious efforts to extend the benefits of federally financed
programs to minorities who have been historically excluded from the full
benefits of American life.
A
[7] The
history of Title VI‑‑from President Kennedy's request that Congress
grant executive departments and agencies authority *329 to cut off federal
funds to programs that discriminate against Negroes through final enactment of
legislation incorporating his proposals‑‑reveals one fixed purpose:
to give the Executive Branch of Government clear authority to terminate federal
funding of private programs that use race as a means of disadvantaging
minorities in a manner that would be prohibited by the Constitution if engaged
in by government.
This
purpose was first expressed in President Kennedy's June 19, 1963, message to
Congress proposing the legislation that subsequently became the Civil Rights
Act of 1964. [FN9] *330 Representative Celler, the Chairman of the House
Judiciary Committee, and the floor manager of the legislation in the House,
introduced Title VI in words unequivocally expressing the intent to provide the
Federal Government with the means of assuring that its funds were not used to
subsidize racial discrimination inconsistent with the standards imposed by the
Fourteenth and Fifth Amendments upon state and federal action.
FN9. "Simple justice requires that public
funds, to which all taxpayers of all races contribute, not be spent in any
fashion which encourages, entrenches, subsidizes or results in racial
discrimination. Direct discrimination by Federal, State or local governments is
prohibited by the Constitution. But indirect discrimination, through the use of
Federal funds, is just as invidious; and it should not be necessary to resort
to the courts to prevent each individual violation. Congress and the Executive
have their responsibilities to uphold the Constitution also . . ..
"Many statutes providing Federal financial
assistance, however, define with such precision both the Administrator's role
and the conditions upon which specified amounts shall be given to designated
recipients that the amount of
administrative discretion remaining‑‑which might be used to
withhold funds if discrimination were not ended‑‑is at best
questionable. No administrator has the unlimited authority to invoke the
Constitution in opposition to the mandate of the Congress. Nor would it always
be helpful to require unconditionally‑‑as is often proposed‑‑the
withdrawal of all Federal funds from programs urgently needed by Negroes as
well as whites; for this may only penalize those who least deserve it without
ending discrimination.
"Instead of permitting this issue to become a
political device often exploited by those opposed to social or economic
progress, it would be better at this time to pass a single comprehensive
provision making it clear that the Federal Government is not required, under
any statute, to furnish any kind of financial assistance‑‑by way of
grant, loan, contract, guaranty, insurance, or otherwise‑‑to any
program or activity in which racial discrimination occurs. This would not
permit the Federal Government to cut off all Federal aid of all kinds as a
means of punishing an area for the discrimination occurring therein‑‑but
it would clarify the authority of any administrator with respect to Federal
funds or financial assistance and discriminatory practices." 109 Cong.Rec.
11161 (1963).
"The bill would offer assurance that
hospitals financed by Federal money would not deny adequate care to Negroes. It
would prevent abuse of food distribution programs whereby Negroes have been
known to be denied food surplus supplies when white persons were given such
food. It would assure Negroes the benefits now accorded only white students in
programs of high[er] education financed by Federal funds. It would, in short,
assure the existing right to equal treatment in the enjoyment of Federal funds.
It would not destroy any rights of private property or freedom of
association." 110 Cong.Rec. 1519 (1964).
**2769 It
was clear to Representative Celler that Title VI, apart from the fact that it
reached all federally funded activities even in the absence of sufficient state
or federal control to invoke the Fourteenth or Fifth Amendments, was not
placing new substantive limitations upon the use of racial criteria, but rather
was designed to extend to such activities "the existing right to equal
treatment" enjoyed by Negroes under those Amendments, and he later
specifically defined the purpose of Title VI in this way:
"In general, it seems rather anomalous that
the Federal Government should aid and abet discrimination on the basis of race,
color, or national origin by granting money *331 and other kinds of financial
aid. It seems rather shocking, moreover, that while we have on the one hand the
14th amendment, which is supposed to do away with discrimination since it
provides for equal protection of the laws, on the other hand, we have the
Federal Government aiding and abetting those who persist in practicing racial
discrimination.
"It is for these reasons that we bring forth
title VI. The enactment of title VI will serve to override specific provisions
of law which contemplate Federal assistance to racially segregated
institutions." Id., at 2467.
Representative Celler also filed a memorandum setting forth the
legal basis for the enactment of Title VI which reiterated the theme of his
oral remarks: "In exercising its authority to fix the terms on which
Federal funds will be disbursed . . ., Congress clearly has power to legislate
so as to insure that the Federal Government does not become involved in a
violation of the Constitution." Id., at 1528.
Other
sponsors of the legislation agreed with Representative Celler that the function
of Title VI was to end the Federal Government's complicity in conduct,
particularly the segregation or exclusion of Negroes, inconsistent with the
standards to be found in the antidiscrimination provisions of the Constitution.
Representative Lindsay, also a member of the Judiciary Committee, candidly
acknowledged, in the course of explaining why Title VI was necessary, that it
did not create any new standard of equal treatment beyond that contained in the
Constitution: "Both the Federal
Government and the States are under constitutional mandates not to
discriminate. Many have raised the question as to whether legislation is
required at all. Does not the Executive already have the power in the
distribution of Federal funds to apply those conditions which will enable the
Federal Government itself to live up to the mandate of the Constitution and to
require *332 States and local government entities to live up to the
Constitution, most especially the 5th and 14th amendments?" Id., at 2467.
He then
explained that legislation was needed to authorize the termination of funding
by the Executive Branch because existing legislation seemed to contemplate the
expenditure of funds to support racially segregated institutions. Ibid. The
views of Representatives Celler and Lindsay concerning the purpose and function
of Title VI were shared by other sponsors and proponents of the legislation in
the House. [FN10] Nowhere is there any suggestion that Title VI was intended to
terminate federal funding for any reason other than consideration of race or
national origin by the recipient institution in a manner inconsistent with the
standards incorporated in the Constitution.
FN10. See, e. g., 110 Cong.Rec. 2732 (1964) (Rep.
Dawson); id., at 2481‑2482 (Rep.
Ryan); id., at 2766 (Rep. Matsunaga); id., at 2595 (Rep. Donahue).
The
Senate's consideration of Title VI reveals an identical understanding
concerning the purpose and scope of the legislation. Senator Humphrey, the
Senate floor manager, opened the Senate debate with a section‑by‑section
analysis of the Civil Rights Act in which he succinctly stated the purpose of
Title VI:
"The purpose of title VI is to make sure that
funds of the United States are **2770 not used to support racial
discrimination. In many instances the practices of segregation or
discrimination, which title VI seeks to end, are unconstitutional. This is
clearly so wherever Federal funds go to a State agency which engages in racial
discrimination. It may also be so where Federal funds go to support private,
segregated institutions, under the decision in Simkins v. Moses H. Cone
Memorial Hospital, 323 F.2d 959 (C.A.4, 1963), [cert. denied, 376 U.S. 938, 84
S.Ct. 793, 11 L.Ed.2d 659 (1964)]. In all cases, such discrimination is
contrary to national policy, and to the moral sense of the Nation. Thus, title
VI is simply *333 designed to insure that Federal funds are spent in accordance
with the Constitution and the moral sense of the Nation." Id., at 6544.
Senator Humphrey, in words echoing statements in the House, explained that
legislation was needed to accomplish this objective because it was necessary to
eliminate uncertainty concerning the power of federal agencies to terminate
financial assistance to programs engaging in racial discrimination in the face
of various federal statutes which appeared to authorize grants to racially
segregated institutions. Ibid. Although Senator Humphrey realized that Title VI
reached conduct which, because of insufficient governmental action, might be
beyond the reach of the Constitution, it was clear to him that the substantive
standard imposed by the statute was that of the Fifth and Fourteenth
Amendments.
Senate
supporters of Title VI repeatedly expressed agreement with Senator Humphrey's
description of the legislation as providing the explicit authority and
obligation to apply the standards of the Constitution to all recipients of
federal funds. Senator Ribicoff described the limited function of Title VI:
"Basically, there is a constitutional
restriction against discrimination in the use of Federal funds; and title VI
simply spells out the procedure to be used in enforcing that restriction."
Id., at 13333.
Other
strong proponents of the legislation in the Senate repeatedly expressed their
intent to assure that federal funds would only be spent in accordance with
constitutional standards. See remarks of Senator Pastore, id., at 7057, 7062;
Senator Clark, id., at 5243; Senator Allott, id., at 12675, 12677. [FN11]
FN11. There is also language in 42 U.S.C. § 2000d‑5,
enacted in 1966, which supports the conclusion that Title VI's standard is that
of the Constitution. Section 2000d‑5 provides that "for the purpose
of determining whether a local educational agency is in compliance with [Title
VI], compliance by such agency with a final order or judgment of a Federal
court for the desegregation of the school or school system operated by such
agency shall be deemed to be compliance with [Title VI], insofar as the matters
covered in the order or judgment are concerned." This provision was
clearly intended to avoid subjecting local educational agencies simultaneously
to the jurisdiction of the federal courts and the federal administrative
agencies in connection with the imposition of remedial measures designed to end
school segregation. Its inclusion reflects the congressional judgment that the
requirements imposed by Title VI are identical to those imposed by the
Constitution as interpreted by the federal courts.
*334 Respondent's contention that Congress
intended Title VI to bar affirmative‑action programs designed to enable
minorities disadvantaged by the effects of discrimination to participate in
federally financed programs is also refuted by an examination of the type of
conduct which Congress thought it was prohibiting by means of Title VI. The
debates reveal that the legislation was motivated primarily by a desire to
eradicate a very specific evil: federal financial support of programs which
disadvantaged Negroes by excluding them from participation or providing them
with separate facilities. Again and again supporters of Title VI emphasized
that the purpose of the statute was to end segregation in federally funded
activities and to end other discriminatory uses of race disadvantaging Negroes.
Senator Humphrey set the theme in his speech presenting Title VI to the Senate:
"Large sums of money are contributed by the
United States each year for the construction, operation, and maintenance of
segregated schools.
* * *
**2771 "Similarly, under the Hill‑Burton
Act, Federal grants are made to hospitals which admit whites only or Negroes
only. . . .
"In higher education also, a substantial part
of the Federal grants to colleges, medical schools and so forth, in the South
is still going to segregated institutions.
*335
"Nor is this all. In several States, agricultural extension
services, supported by Federal funds, maintain racially segregated offices for
Negroes and whites. . . .
". . . Vocational training courses, supported
with Federal funds, are given in segregated schools and institutions and often
limit Negroes to training in less skilled occupations. In particular localities
it is reported that Negroes have been cut off from relief rolls, or denied
surplus agricultural commodities, or otherwise deprived of the benefit of
federally assisted programs, in retaliation for their participation in voter
registration drives, sit‑indemonstrations and the like." Id., at
6543‑6544.
See also
the remarks of Senator Pastore (id., at 7054‑7055); Senator Ribicoff
(id., at 7064‑7065); Senator Clark (id., at 5243, 9086); Senator Javits
(id., at 6050, 7102). [FN12]
FN12. As has already been seen, the proponents of
Title VI in the House were motivated by the identical concern. See remarks of
Representative Celler (110 Cong. Rec. at 2467 (1964)); Representative Ryan
(id., at 1643, 2481‑2482); H.R.Rep. No. 914, 88th Cong., 1st Sess., pt.
2, Additional Views of Seven Representatives 24‑25 (1963).
The
conclusion to be drawn from the foregoing is clear. Congress recognized that
Negroes, in some cases with congressional acquiescence, were being
discriminated against in the administration of programs and denied the full
benefits of activities receiving federal financial support. It was aware that
there were many federally funded programs and institutions which discriminated
against minorities in a manner inconsistent with the standards of the Fifth and
Fourteenth Amendments but whose activities might not involve sufficient state
or federal action so as to be in violation of these Amendments. Moreover,
Congress believed that it was questionable whether the Executive Branch
possessed legal authority to terminate the funding of activities on the ground
that they discriminated racially against Negroes in a manner violative of the
standards contained in the Fourteenth and Fifth *336 Amendments. Congress'
solution was to end the Government's complicity in constitutionally forbidden
racial discrimination by providing the Executive Branch with the authority and
the obligation to terminate its financial support of any activity which
employed racial criteria in a manner condemned by the Constitution.
Of course,
it might be argued that the Congress which enacted Title VI understood the
Constitution to require strict racial neutrality or color blindness, and then
enshrined that concept as a rule of statutory law. Later interpretation and
clarification of the Constitution to permit remedial use of race would then not
dislodge Title VI's prohibition of race‑conscious action. But there are
three compelling reasons to reject such a hypothesis.
First, no
decision of this Court has ever adopted the proposition that the Constitution
must be colorblind. See infra, at 2781‑2782.
Second,
even if it could be argued in 1964 that the Constitution might conceivably
require color blindness, Congress surely would not have chosen to codify such a
view unless the Constitution clearly required it. The legislative history of
Title VI, as well as the statute itself, reveals a desire to induce voluntary
compliance with the requirement of nondiscriminatory treatment. [FN13] See §
602 of the Act, 42 U.S.C. § 2000d‑1 (no funds shall be terminated unless
and until it has been "determined that compliance cannot be secured by
voluntary means"); H.R.Rep. No. 914, 88th Cong., 1st Sess., pt. 1, p.
**2772 25 (1963), U.S.Code Cong. & Admin.News 1964, p. 2355; 110 Cong.Rec.
13700 (1964) (Sen. Pastore); id., at 6546 (Sen. Humphrey). It is inconceivable
that Congress intended to encourage voluntary efforts to eliminate the evil of
racial discrimination while at the same time forbidding the voluntary use of
race‑conscious remedies to cure acknowledged or obvious statutory
violations. Yet a reading of Title VI as prohibiting all action predicated upon
race which adversely *337 affects any individual would require recipients
guilty of discrimination to await the imposition of such remedies by the
Executive Branch. Indeed, such an interpretation of Title VI would prevent
recipients of federal funds from taking race into account even when necessary
to bring their programs into compliance with federal constitutional
requirements. This would be a remarkable reading of a statute designed to
eliminate constitutional violations, especially in light of judicial decisions
holding that under certain circumstances the remedial use of racial criteria is
not only permissible but is constitutionally required to eradicate
constitutional violations. For example, in Board of Education v. Swann, 402
U.S. 43, 91 S.Ct. 1284, 28 L.Ed.2d 586 (1971), the Court held that a statute
forbidding the assignment of students on the basis of race was unconstitutional
because it would hinder the implementation of remedies necessary to accomplish
the desegregation of a school system: "Just as the race of students must
be considered in determining whether a constitutional violation has occurred,
so also must race be considered in formulating a remedy." Id., at 46, 91
S.Ct., at 1286. Surely Congress did not intend to prohibit the use of racial
criteria when constitutionally required or to terminate the funding of any
entity which implemented such a remedy. It clearly desired to encourage all
remedies, including the use of race, necessary to eliminate racial
discrimination in violation of the Constitution rather than requiring the
recipient to await a judicial adjudication of unconstitutionality and the
judicial imposition of a racially oriented remedy.
FN13. See separate opinion of Mr. Justice WHITE,
post, at 2795‑2796, n. 2.
Third, the
legislative history shows that Congress specifically eschewed any static
definition of discrimination in favor of broad language that could be shaped by
experience, administrative necessity, and evolving judicial doctrine. Although
it is clear from the debates that the supporters of Title VI intended to ban
uses of race prohibited by the Constitution and, more specifically, the
maintenance of segregated *338 facilities, they never precisely defined the
term "discrimination," or what constituted an exclusion from
participation or a denial of benefits on the ground of race. This failure was
not lost upon its opponents. Senator Ervin complained:
"The word 'discrimination,' as used in this
reference, has no contextual explanation whatever, other than the provision
that the discrimination 'is to be against' individuals participating in or
benefiting from federally assisted programs and activities on the ground
specified. With this context, the discrimination condemned by this reference
occurs only when an individual is treated unequally or unfairly because of his
race, color, religion, or national origin. What constitutes unequal or unfair
treatment? Section 601 and section 602 of title VI do not say. They leave the
determination of that question to the executive department or agencies
administering each program, without any guideline whatever to point out what is
the congressional intent." 110 Cong.Rec. 5612 (1964).
See also
remarks of Representative Abernethy (id., at 1619); Representative Dowdy (id.,
at 1632); Senator Talmadge (id., at 5251); Senator Sparkman (id., at 6052).
Despite these criticisms, the legislation's supporters refused to include in
the statute or even provide in debate a more explicit definition of what Title
VI prohibited.
The
explanation for this failure is clear. Specific definitions were undesirable,
in the views of the legislation's principal backers, because Title VI's
standard was that of the Constitution and one that could and should be
administratively and judicially applied. **2773 See remarks of Senator Humphrey
(id., at 5253, 6553); Senator Ribicoff (id., at 7057, 13333); Senator Pastore
(id., at 7057); Senator Javits (id., at 5606‑ 5607, 6050). [FN14] Indeed,
there was a strong emphasis throughout *339 Congress' consideration of Title VI
on providing the Executive Branch with considerable flexibility in interpreting
and applying the prohibition against racial discrimination. Attorney General
Robert Kennedy testified that regulations had not been written into the
legislation itself because the rules and regulations defining discrimination
might differ from one program to another so that the term would assume
different meanings in different contexts. [FN15] This determination to preserve
flexibility in the administration of Title VI was shared by the legislation's
supporters. When Senator Johnston offered an amendment that would have
expressly authorized federal grantees to take race into account in placing
children in adoptive and foster homes, Senator Pastore opposed the amendment, which
was ultimately defeated by a 56‑29 vote, on the ground that federal
administrators could be trusted to act reasonably and that there was no danger
that they would prohibit the use of racial criteria under such circumstances.
Id., at 13695.
FN14. These remarks also reflect the expectations
of Title VI's proponents that the application of the Constitution to the
conduct at the core of their concern‑‑the segregation of Negroes in
federally funded programs and their exclusion from the full benefits of such
programs‑‑was clear. See supra, at 2770‑2772; infra, at 2774‑2775,
n. 17.
FN15. Testimony of Attorney General Kennedy in
Hearings before the Senate Committee on the Judiciary on S. 1731 and S. 1750,
88th Cong., 1st Sess., 398‑399 (1963).
Congress'
resolve not to incorporate a static definition of discrimination into Title VI
is not surprising. In 1963 and 1964, when Title VI was drafted and debated, the
courts had only recently applied the Equal Protection Clause to strike down
public racial discrimination in America, and the scope of that Clause's
nondiscrimination principle was in a state of flux and rapid evolution. Many
questions, such as whether the Fourteenth Amendment barred only de jure
discrimination or in at least some circumstances reached de facto
discrimination, had not yet received an authoritative judicial resolution. The
congressional debate reflects an awareness of the evolutionary *340 change that
constitutional law in the area of racial discrimination was undergoing in 1964.
[FN16]
FN16. See, e. g., 110 Cong.Rec. 6544, 13820 (1964)
(Sen. Humphrey); id., at 6050 (Sen. Javits); id., at 12677 (Sen. Allott).
In sum,
Congress' equating of Title VI's prohibition with the commands of the Fifth and
Fourteenth Amendments, its refusal precisely to define that racial
discrimination which it intended to prohibit, and its expectation that the
statute would be administered in a flexible manner, compel the conclusion that
Congress intended the meaning of the statute's prohibition to evolve with the interpretation
of the commands of the Constitution. Thus, any claim that the use of racial
criteria is barred by the plain language of the statute must fail in light of
the remedial purpose of Title VI and its legislative history. The cryptic
nature of the language employed in Title VI merely reflects Congress' concern
with the then‑prevalent use of racial standards as a means of excluding
or disadvantaging Negroes and its determination to prohibit absolutely such
discrimination. We have recently held that " '[w]hen aid to construction
of the meaning of words, as used in the statute, is available, there certainly
can be no "rule of law" which forbids its use, however clear the
words may appear on "superficial examination." ' " Train v.
Colorado Public Interest Research Group, 426 U.S. 1, 10, 96 S.Ct. 1938, 1942,
48 L.Ed.2d 434 (1976), quoting United States v. American Trucking Assns., 310
U.S. 534, 543‑544, 60 S.Ct. 1059, 1063‑1064, 84 L.Ed. 1345 (1940).
This is especially so when, as is the case here, the literal application of
what is believed to be the **2774 plain language of the statute, assuming that
it is so plain, would lead to results in direct conflict with Congress'
unequivocally expressed legislative purpose. [FN17]
FN17. Our Brother STEVENS finds support for a
colorblind theory of Title VI in its legislative history, but his
interpretation gives undue
weight to a few isolated passages from among the thousands of pages of the
legislative history of Title VI. See id., at 6547 (Sen. Humphrey); id., at
6047, 7055 (Sen. Pastore); id., at 12675 (Sen. Allott); id., at 6561 (Sen.
Kuchel). These fragmentary comments fall far short of supporting a
congressional intent to prohibit a racially conscious admissions program
designed to assist those who are likely to have suffered injuries from the
effects of past discrimination. In the first place, these statements must be
read in the context in which they were made. The concern of the speakers was
far removed from the incidental injuries which may be inflicted upon
nonminorities by the use of racial preferences. It was rather with the evil of
the segregation of Negroes in federally financed programs and, in some cases,
their arbitrary exclusion on account of race from the benefits of such
programs. Indeed, in this context there can be no doubt that the Fourteenth
Amendment does command color blindness and forbids the use of racial criteria.
No consideration was given by these legislators, however, to the permissibility
of racial preference designed to redress the effects of injuries suffered as a
result of one's color. Significantly one of the legislators, Senator Pastore,
and perhaps also Senator Kuchel, who described Title VI as proscribing
decisionmaking based upon skin color, also made it clear that Title VI does not outlaw the use of racial
criteria in all circumstances. See supra, at 2773‑2774; 110 Cong.Rec.
6562 (1964). See also id., at 2494 (Rep. Celler). Moreover, there are many
statements in the legislative history explicitly indicating that Congress intended
neither to require nor to prohibit the remedial use of racial preferences where
not otherwise required or prohibited by the Constitution. Representative
MacGregor addressed directly the problem of preferential treatment:
"Your mail and mine, your contacts and mine
with our constituents, indicates a great degree of misunderstanding about this
bill. People complain about racial 'balancing' in the public schools, about
open occupancy in housing, about preferential treatment or quotas in
employment. There is a mistaken belief that Congress is legislating in these
areas in this bill. When we drafted this bill we excluded these issues largely
because the problems raised by these controversial questions are more properly
handled at a governmental level close to the American people and by communities
and individuals themselves. The Senate has spelled out our intentions more
specifically." Id., at 15893.
Other legislators explained that the achievement
of racial balance in elementary and secondary schools where there had been no
segregation by law was not compelled by Title VI but was rather left to the
judgment of state and local
communities. See, e. g., id., at 10920 (Sen. Javits); id., at 5807, 5266 (Sen.
Keating); id., at 13821 (Sens. Humphrey and Saltonstall). See also, id., at
6562 (Sen. Kuchel); id., at 13695 (Sen. Pastore).
Much the same can be said of the scattered remarks
to be found in the legislative history of Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e et seq. (1970 ed. and Supp. V), which prohibits
employment discrimination on the basis of race in terms somewhat similar to
those contained in Title VI, see 42 U.S.C. § 2000e‑2(a)(1) (unlawful
"to fail or refuse to hire" any applicant "because of such
individual's race, color, religion, sex, or national origin . . . ."), to
the effect that any deliberate attempt by an employer to maintain a racial
balance is not required by the statute and might in fact violate it. See, e.
g., 110 Cong.Rec. 7214 (1964) (Sens. Clark and Case); id., at 6549 (Sen.
Humphrey); id., at 2560 (Rep. Goodell). Once again, there is no indication that
Congress intended to bar the voluntary use of racial preferences to assist
minorities to surmount the obstacles imposed by the remnants of past
discrimination. Even assuming that Title VII prohibits employers from
deliberately maintaining a particular racial composition in their work force as
an end in itself, this does not imply, in the absence of any consideration of the question, that Congress intended to
bar the use of racial preferences as a tool for achieving the objective of
remedying past discrimination or other compelling ends. The former may well be
contrary to the requirements of the Fourteenth Amendment (where state action is
involved), while the latter presents very different constitutional
considerations. Indeed, as discussed infra, at 2780‑ 2781, this Court has
construed Title VII as requiring the use of racial preferences for the purpose
of hiring and advancing those who have been adversely affected by past
discriminatory employment practices, even at the expense of other employees
innocent of discrimination. Franks v. Bowman Transportation Co., 424 U.S. 747,
767‑768, 96 S.Ct. 1251, 1265‑1266, 47 L.Ed.2d 444 (1976). Although
Title VII clearly does not require employers to take action to remedy the
disadvantages imposed upon racial minorities by hands other than their own,
such an objective is perfectly consistent with the remedial goals of the
statute. See id., at 762‑770, 96 S.Ct., at 1263‑1267; Albemarle Paper
Co. v. Moody, 422 U.S. 405, 418, 95 S.Ct. 2362, 2372, 45 L.Ed.2d 280 (1975).
There is no more indication in the legislative history of Title VII than in
that of Title VI that Congress desired to prohibit such affirmative action to
the extent that it is permitted by the Constitution, yet judicial decisions as
well as subsequent executive
and congressional action clearly establish that Title VII does not forbid race‑conscious
remedial action. See infra, at 2780‑2782, and n. 28.
*341
**2775 B
Section
602 of Title VI, 42 U.S.C. § 2000d‑1, instructs federal agencies to
promulgate regulations interpreting Title *342 VI. These regulations, which,
under the terms of the statute, require Presidential approval, are entitled to
considerable deference in construing Title VI. See, e. g., Lau v. Nichols, *343
414 U.S. 563, 94 S.Ct. 786, 39 L.Ed.2d 1 (1974); Mourning v. Family
Publications Service, Inc., 411 U.S. 356, 369, 93 S.Ct. 1652, 1660, 36 L.Ed.2d
318 (1973); Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 381, 89 S.Ct. 1794,
1801, 23 L.Ed.2d 371 (1969). Consequently, it is most significant that the
Department of Health, Education, and Welfare (HEW), which provides much of the
federal assistance to institutions of higher education, has adopted regulations
requiring affirmative measures designed to enable racial minorities which have
been previously discriminated against by a federally funded institution or
program to overcome the effects of such actions and authorizing the voluntary
undertaking of affirmative‑action programs by federally funded
institutions that have not been guilty of prior discrimination in order to
overcome the effects of conditions which have adversely affected the degree of
participation by persons of a particular race.
Title 45
CFR § 80.3(b)(6)(i) (1977) provides:
"In administering a program regarding which
the recipient has previously discriminated against persons on the ground of
race, color, or national origin, the recipient must take affirmative action to
overcome the effects of prior discrimination."
Title 45
CFR § 80.5(i) (1977) elaborates upon this requirement:
"In some situations, even though past
discriminatory practices attributable to a recipient or applicant have been
abandoned, the consequences of such practices continue to impede the full
availability of a benefit. If the efforts required of the applicant or
recipient under § 80.6(d), to provide information as to the availability of the
program or activity and the rights of beneficiaries under this regulation, have
failed to overcome these consequences, it will become necessary under the
requirement stated in (i) of § 80.3(b)(6) for such applicant or recipient to
take additional steps to make the benefits *344 fully available to racial and
nationality groups previously subject to discrimination. This action might take
the form, for example, of special arrangements for obtaining referrals or
making selections which will insure that groups previously subjected to
discrimination are adequately served."
These
regulations clearly establish that where there is a need to overcome the
effects of past racially discriminatory or exclusionary practices engaged in by
a federally funded institution, race‑conscious action is not only
permitted but required to accomplish the remedial objectives of Title VI.
[FN18] Of course, there is no evidence that the Medical School has been guilty
of past discrimination and consequently these regulations would not compel it
to employ a program of preferential admissions in behalf of racial minorities.
It would be difficult to explain from the language of Title VI, however, much
less from its legislative history, why the statute compels race‑conscious
remedies where a recipient institution has engaged in past discrimination but
prohibits such remedial action where racial minorities, as a result of the
effects of past discrimination imposed by entities other than the recipient,
are excluded from the benefits of federally funded programs. HEW was fully
aware of the incongruous nature of such an interpretation of Title VI.
FN18. HEW has stated that the purpose of these
regulations is "to specify that affirmative steps to make services more
equitably available are not prohibited and that such steps are required when
necessary to overcome the
consequences of prior discrimination." 36 Fed.Reg. 23494 (1971). Other
federal agencies which provide financial assistance pursuant to Title VI have
adopted similar regulations. See Supplemental Brief for United States as Amicus
Curiae 16 n. 14.
**2776
Title 45 CFR § 80.3(b)(6)(ii) (1977) provides:
"Even in the absence of such prior
discrimination, a recipient in administering a program may take affirmative
action to overcome the effects of conditions which resulted *345 in limiting
participation by persons of a particular race, color, or national origin."
An
explanatory regulation explicitly states that the affirmative action which §
80.3(b)(6)(ii) contemplates includes the use of racial preferences:
"Even though an applicant or recipient has
never used discriminatory policies, the services and benefits of the program or
activity it administers may not in fact be equally available to some racial or
nationality groups. In such circumstances, an applicant or recipient may
properly give special consideration to race, color, or national origin to make
the benefits of its program more widely available to such groups, not then
being adequately served. For example, where a university is not adequately
serving members of a particular racial or nationality group, it may establish special
recruitment policies to make its program better known and more readily
available to such group, and take other steps to provide that group with more
adequate service." 45 CFR § 80.5(j) (1977).
This
interpretation of Title VI is fully consistent with the statute's emphasis upon
voluntary remedial action and reflects the views of an agency [FN19]
responsible for achieving its objectives. [FN20]
FN19. Moreover, the President has delegated to the
Attorney General reponsibility for coordinating the enforcement of Title VI by
federal departments and agencies and has directed him to 'assist the
departments and agencies in accomplishing effective implementation.' Exec.
Order No. 11764, 3 CFR 849 (1971‑1975 Comp.). Accordingly, the views of
the Solicitor General, as well as those of HEW, that the use of racial
preferences for remedial purposes is consistent with Title VI are entitled to
considerable respect.
FN20. HEW administers at least two explicitly race‑conscious
programs. Details concerning them may be found in the Office of Management and
Budget, 1977 Catalogue of Federal Domestic Assistance 205‑206, 401‑402.
The first program, No. 13.375, 'Minority Biomedical Support.' has as its objectives:
"To increase the number of ethnic minority
faculty, students, and investigators engaged in biomedical research. To broaden
the opportunities for participation in biomedical research of ethnic minority
faculty, students, and investigators by providing support for biomedical
research programs at eligible institutions."
Eligibility for grants under this program is
limited to (1) four‑year colleges, universities, and health professional
schools with over 50% minority enrollments; (2) four‑year institutions
with significant but not necessarily over 50% minority enrollment provided they
have a history of encouragement and assistance to minorities; (3) two‑year
colleges with 50% minority enrollment; and (4) American Indian Tribal Councils.
Grants made pursuant to this program are estimated to total $9,711,000 for
1977.
The second program, No. 13.880, entitled
"Minority Access To Research Careers," has as its objective to
"assist minority institutions to train greater numbers of scientists and
teachers in health related fields." Grants under this program are made
directly to individuals and to institutions for the purpose of enabling them to
make grants to individuals.
*346 The Court has recognized that the
construction of a statute by those charged with its execution is particularly
deserving of respect where Congress has directed its attention to the
administrative construction and left it unaltered. Cf. Red Lion Broadcasting
Co. v. FCC, 395 U.S., at 381, 89 S.Ct., at 1801; Zemel v. Rusk, 381 U.S. 1, 11‑12,
85 S.Ct. 1271, 1278‑1279, 14 L.Ed.2d 179 (1965). Congress recently took
just this kind of action when it considered anamendment to the Departments of
Labor and Health, Education, and Welfare appropriation bill for 1978, which
would have restricted significantly the remedial use of race in programs funded
by the appropriation. The amendment, as originally submitted by Representative
Ashbrook, provided that "[n]one of the funds appropriated in this Act may
be used to initiate, carry out or enforce any program of affirmative action or
any other system of quotas or goals in regard to admission policies or
employment practices which encourage or require any discrimination on the basis
of race, creed, religion, sex or age." 123 *347 Rec. 19715 (1977). In
support of the measure, Representative Ashbrook argued that the 1964 Civil
Rights Act never authorized the imposition of affirmative action and that this
was a creation of the bureaucracy. Id., at 19722. He explicitly stated,
however, that **2777 he favored permitting universities to adopt affirmative
action programs giving consideration to racial identity but opposed the
imposition of such programs by the Government. Id., at 19715. His amendment was
itself amended to reflect this position by only barring the imposition of race‑
conscious remedies by HEW:
"None of the funds appropriated in this Act
may be obligated or expended in connection with the issuance, implementation,
or enforcement of any rule, regulation, standard, guideline, recommendation, or
order issued by the Secretary of Health, Education, and Welfare which for
purposes of compliance with any ratio, quota, or other numerical requirement
related to race, creed, color, national origin, or sex requires any individual
or entity to take any action with respect to (1) the hiring or promotion
policies or practices of such individual or entity, or (2) the admissions
policies or practices of such individual or entity." Id., at 19722.
This
amendment was adopted by the House. Ibid. The Senate bill, however, contained
no such restriction upon HEW's authority to impose race‑conscious
remedies and the Conference Committee, upon the urging of the Secretary of HEW,
deleted the House provision from the bill. [FN21] More significant for present
purposes, however, is the fact that even the proponents of imposing limitations
upon HEW's implementation of Title VI did not challenge the right of federally
funded educational institutions voluntarily to extend preferences to racial
minorities.
FN21. H.R.Conf.Rep. No. 95‑538, p. 22
(1977); 123 Cong.Rec. 26188 (1977). See H.J.Res. 662, 95th Cong., 1st Sess.
(1977); Pub.L. 95‑205, 91 Stat. 1460.
*348 Finally, congressional action subsequent
to the passage of Title VI eliminates any possible doubt about Congress' views
concerning the permissibility of racial preferences for the purpose of
assisting disadvantaged racial minorities. It confirms that Congress did not
intend to prohibit and does not now believe that Title VI prohibits the
consideration of race as part of a remedy for societal discrimination even
where there is no showing that the institution extending the preference has
been guilty of past discrimination nor any judicial finding that the particular
beneficiaries of the racial preference have been adversely affected by societal
discrimination.
Just last
year Congress enacted legislation [FN22] explicitly requiring that no grants
shall be made "for any local public works project unless the applicant
gives satisfactory assurance to the Secretary [of Commerce] that at least 10
per centum of the amount of each grant shall be expended for minority business
enterprises." The statute defines the term "minority business
enterprise" as "a business, at least 50 per centum of which is owned
by minority group members or, in case of a publicly owned business, at least 51
per centum of the stock of which is owned by minority group members." The
term "minority group members" is defined in explicitly racial terms:
"citizens of the United States who are Negroes, Spanish‑speaking,
Orientals, Indians, Eskimos, and Aleuts." Although the statute contains an
exemption from this requirement "to the extent that the Secretary
determines otherwise," this escape clause was provided only to deal with
the possibility that certain areas of the country might not contain sufficient
qualified "minority business enterprises" to permit compliance with
the quota provisions of the legislation. [FN23]
FN22. 91 Stat. 117, 42 U.S.C. § 6705 (f)(2) (1976
ed.).
FN23. 123 Cong.Rec. 7156 (1977); id., at 5327‑5330
(1977).
The
legislative history of this race‑conscious legislation reveals that it
represents a deliberate attempt to deal with *349 the excessive rate of
unemployment among minority citizens and to encourage the development of viable
minority controlled enterprises. [FN24] **2778 It was believed that such a "set‑aside"
was required in order to enable minorities, still "new on the scene"
and "relatively small," to compete with larger and more established
companies which would always be successful in underbidding minority
enterprises. 123 Cong.Rec. 5327 (1977) (Rep. Mitchell). What is most
significant about the congressional consideration of the measure is that
although the use of a racial quota or "set‑aside" by a
recipient of federal funds would constitute a direct violation of Title VI if
that statute were read to prohibit race‑conscious action, no mention was
made during the debates in either the House or the Senate of even the
possibility that the quota provisions for minority contractors might in any way
conflict with or modify Title VI. It is inconceivable that such a purported
conflict would have escaped congressional attention through an inadvertent
failure to recognize the relevance of Title VI. Indeed, the Act of which this
affirmative‑action provision is a part also contains a provision barring
discrimination on the basis of sex which states that this prohibition
"will be enforced through agency provisions and rules similar to those
already established, with respect to racial and other discrimination under
Title VI of the Civil Rights Act of 1964." 42 U.S.C. § 6709 (1976 ed.).
Thus Congress was fully aware of the applicability of Title VI to the funding
of public works projects. Under these circumstances, the enactment of the 10%
"set‑aside" for minority enterprises reflects a congressional
judgment that the remedial use of race is permissible under Title VI. We have
repeatedly recognized that subsequent legislation reflecting an interpretation
of an earlier Act is entitled to great weight in determining the meaning of the
earlier statute. Red Lion Broadcasting Co. v. FCC, 395 U.S., at 380‑*350
381, Y 89 S.Ct., at 1801‑ 1802; Erlenbaugh v. United States, 409 U.S.
239, 243‑244, 93 S.Ct. 477, 480‑481, 34 L.Ed.2d 446 (1972). See
also United States v. Stewart, 311 U.S. 60, 64‑65, 61 S.Ct. 102, 105‑106
85 L.Ed. 40 (1940). [FN25]
FN24. See id., at 7156 (1977) (Sen. Brooke).
FN25. In addition to the enactment of the 10%
quota provision discussed supra, Congress has also passed other Acts mandating
race‑conscious measures to overcome disadvantages experienced by racial
minorities. Although these statutes have less direct bearing upon the meaning
of Title VI, they do demonstrate that Congress believes race‑conscious
remedial measures to be both permissible and desirable under at least some
circumstances. This in turn undercuts the likelihood that Congress intended to
limit voluntary efforts to implement similar measures. For example, § 7(a) of
the National Science Foundation Authorization Act, 1977, provides: "The Director of the National
Science Foundation shall initiate an intensive search for qualified women,
members of minority groups, and handicapped individuals to fill executive level
positions in the National Science Foundation. In carrying out the requirement
of this subsection, the Director shall work closely with organizations which
have been active in seeking greater recognition and utilization of the
scientific and technical capabilities of minorities, women, and handicapped
individuals. The Director shall improve the representation of minorities,
women, and handicapped individuals on advisory committees, review panels, and
all other mechanisms by which the scientific community provides assistance to
the Foundation." 90 Stat. 2056, note following 42 U.S.C. § 1873 (1976
ed.).
Perhaps more importantly, the Act also authorizes
the funding of Minority Centers for Graduate Education. Section 7(c)(2) of the
Act, 90 Stat. 2056, requires that these Centers:
"(A) have substantial minority student
enrollment;
"(B) are geographically located near minority
population centers;
"(C) demonstrate a commitment to encouraging
and assisting minority students, researchers, and faculty;
* * *
"(F) will serve as a regional resource in
science and engineering for the minority community which the Center is designed
to serve; and
"(G) will develop joint educational programs
with nearby undergraduate institutions of higher education which have a
substantial minority student enrollment."
Once again, there is no indication in the
legislative history of this Act or elsewhere that Congress saw any
inconsistency between the race‑conscious nature of such legislation and
the meaning of Title VI. And, once again, it is unlikely in the extreme that a
Congress which believed that it had commanded recipients of federal funds to be
absolutely color‑blind would itself expend federal funds in such a race‑conscious
manner. See also theRailroad Revitalization and Regulatory Reform Act of 1976,
45 U.S.C. § 801 et seq. (1976 ed.), 49 U.S.C. § 1657a et seq. (1976 ed.); the
Emergency School Aid Act, 20 U.S.C. § 1601 et seq. (1976 ed.).
**2779 C
Prior
decisions of this Court also strongly suggest that Title VI does not prohibit
the remedial use of race where such action is constitutionally permissible. In
Lau v. Nichols, 414 U.S. 563, 94 S.Ct. 786, 39 L.Ed.2d 1 (1974), the Court held
that the failure of the San *351 Francisco school system to provide English‑language
instruction to students of Chinese ancestry who do not speak English, or to
provide them with instruction in Chinese, constituted a violation of Title VI.
The Court relied upon an HEW regulation which stipulates that a recipient of
federal funds "may not . . . utilize criteria or methods of administration
which have the effect of subjecting individuals to discrimination" or have
"the effect of defeating or substantially impairing accomplishment of the
objectives of the program as respect individuals of a particular race, color,
or national origin." 45 CFR § 80.3(b)(2) (1977). It interpreted this
regulation as requiring San Francisco to extend the same educational benefits
to Chinese‑speaking students as to English‑speaking students, even
though there was no finding or allegation that the city's failure to do so was
a result of a purposeful design to discriminate on the basis of race.
Lau is significant
in two related respects. First, it indicates that in at least some
circumstances agencies responsible for the administration of Title VI may
require recipients who have not been guilty of any constitutional violations to
depart from a policy of color blindness and to be cognizant of the impact of
their actions upon racial minorities. Secondly, Lau clearly requires that
institutions receiving federal funds be accorded considerable latitude in
voluntarily undertaking race‑conscious action designed to remedy the
exclusion of significant numbers *352 of minorities from the benefits of
federally funded programs. Although this Court has not yet considered the
question, presumably, by analogy to our decisions construing Title VII, a
medical school would not be in violation of Title VI under Lau because of the
serious underrepresentation of racial minorities in its student body as long as
it could demonstrate that its entrance requirements correlated sufficiently
with the performance of minority students in medical school and the medical
profession. [FN26] It would be inconsistent with Lau and the emphasis of Title
VI and the HEW regulations on voluntary action, however, to require that an
institution wait to be adjudicated to be in violation of the law before being
permitted to voluntarily undertake corrective action based upon a good‑faith
and reasonable belief that the failure of certain racial minorities to satisfy
entrance requirements is not a measure of their ultimate performance as doctors
but a result of the lingering effects of past societal discrimination.
FN26. Cf. Griggs v. Duke Power Co., 401 U.S. 424,
91 S.Ct. 849, 28 L.Ed.2d 158 (1971).
We
recognize that Lau, especially when read in light of our subsequent decision in
Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976), which
rejected the general proposition that governmental action is unconstitutional
solely because it has a racially disproportionate impact, may be read as being
predicated upon the view that, at least under some circumstances, Title VI
proscribes conduct which might not be prohibited by the Constitution. Since we
are now of the opinion, for the reasons set forth above, that Title VI's
standard, applicable alike to public and private recipients of federal funds,
is no broader than the Constitution's, we have serious doubts concerning the
correctness of what appears to be the premise of that decision. However, even
accepting Lau's implication that impact alone is in some contexts sufficient to
establish a prima facie violation of Title VI, contrary to our review that
Title VI's definition of racial discrimination is absolutely coextensive with
the Constitution's, this would not assist the respondent *353 in the least.
First, for the reasons discussed supra, at 2772‑2779, regardless of
whether Title VI's prohibitions extend beyond the **2780 Constitution's, the
evidence fails to establish, and, indeed, compels the rejection of, the
proposition that Congress intended to prohibit recipients of federal funds from
voluntarily employing race‑conscious measures to eliminate the effects of
past societal discrimination against racial minorities such as Negroes.
Secondly, Lau itself, for the reasons set forth in the immediately preceding
paragraph, strongly supports the view that voluntary race‑conscious
remedial action is permissible under Title VI. If discriminatory racial impact
alone is enough to demonstrate at least a prima facie Title VI violation, it is
difficult to believe that the Title would forbid the Medical School from
attempting to correct the racially exclusionary effects of its initial
admissions policy during the first two years of the School's operation.
The Court
has also declined to adopt a "color‑blind" interpretation of
other statutes containing nondiscrimination provisions similar to that
contained in Title VI. We have held under Title VII that where employment
requirements have a disproportionate impact upon racial minorities they
constitute a statutory violation, even in the absence of discriminatory intent,
unless the employer is able to demonstrate that the requirements are
sufficiently related to the needs of the job. [FN27] More significantly, the
Court has required that preferences be given by employers to members of racial
minorities as a remedy for past violations of Title VII, even where there has
been no finding that the employer has acted with a discriminatory intent.
[FN28] Finally, we have construed the Voting *354 Rights Act of 1965, **2781 42
U.S.C. § 1973 et seq. (1970 ed. and Supp. V), which contains a provision
barring any voting procedure or qualification that denies or abridges "the
right of *355 any citizen of the United States to vote on account of race or
color," as permitting States to voluntarily take race into account in a
way that fairly represents the voting strengths of different racial groups in
order to comply with the commands of the statute, even where the result is a
gain for one racial group at the expense of others. [FN29]
FN27. Ibid.; Albemarle Paper Co. v. Moody, 422
U.S. 405, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975).
FN28. Franks v. Bowman Transportation Co., 424
U.S. 747, 96 S.Ct. 1251, 47 L.Ed.2d 444 (1976); Teamsters v. United States, 431
U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977). Executive, judicial, and congressional
action subsequent to the passage of Title VII conclusively established that the
Title did not bar the remedial use of race. Prior to the 1972 amendments to
Title VII (Equal Employment Opportunity Act of 1972, 86 Stat. 103) a number of
Courts of Appeals approved race‑conscious action to remedy the effects of
employment discrimination. See, e. g., Heat & Frost Insulators &
Asbestos Workers v. Vogler, 407 F.2d 1047 (C.A.5 1969); United States v.
Electrical Workers, 428 F.2d 144, 149‑150 (C.A.6), cert. denied, 400 U.S.
943, 91 S.Ct. 245, 27 L.Ed.2d 248
(1970); United States v. Sheet Metal Workers, 416 F.2d 123 (C.A.8 1969). In
1965, the President issued Exec. Order No. 11246, 3 CFR 339 (1964‑1965
Comp.), which as amended by Exec. Order No. 11375, 3 CFR 684 (1966‑1970
Comp.), required federal contractors to take affirmative action to remedy the
disproportionately low employment of racial minorities in the construction
industry. The Attorney General issued an opinion concluding that the race
consciousness required by Exec. Order No. 11246 did not conflict with Title
VII:
"It is not correct to say that Title VII
prohibits employers from making race or national origin a factor for
consideration at any stage in the process of obtaining employees. The legal definition
of discrimination is an evolving one, but it is now well recognized in judicial
opinions that the obligation of nondiscrimination, whether imposed by statute
or by the Constitution, does not require and, in some circumstances, may not
permit obliviousness or indifference to the racial consequences of alternative
courses of action which involve the application of outwardly neutral
criteria." 42 Op. Atty. Gen. 405, 411 (1969).
The federal courts agreed. See, e. g., Contractors
Assn. of Eastern Pa. v. Secretary of Labor, 442 F.2d 159 (C.A.3), cert. denied,
404 U.S. 854, 92 S.Ct. 98, 30 L.Ed.2d 95 (1971) (which also held, 442 F.2d, at
173, that race‑conscious
affirmative action was permissible under Title VI); Southern Illinois Builders
Assn. v. Ogilvie, 471 F.2d 680 (C.A.7 1972). Moreover, Congress, in enacting
the 1972 amendments to Title VII, explicitly considered and rejected proposals
to alter Exec. Order No. 11246 and the prevailing judicial interpretations of
Title VII as permitting, and in some circumstances requiring, race‑conscious
action. See Comment, The Philadelphia Plan: A Study in the Dynamics of
Executive Power, 39 U.Chi.L.Rev. 723, 747‑757 (1972). The section‑by‑section
analysis of the 1972 amendments to Title VII undertaken by the Conference
Committee Report on H.R. 1746 reveals a resolve to accept the then (as now)
prevailing judicial interpretations of the scope of Title VII:
"In any area where the new law does not
address itself, or in any areas where a specific contrary intent is not
indicated, it was assumed that the present case law as developed by the courts
would continue to govern the applicability and construction of Title VII."
Legislative History of the Equal Employment Opportunity Act of 1972, p. 1844
(Comm.Print. 1972).
FN29. United Jewish Organizations v. Carey, 430
U.S. 144, 97 S.Ct. 996, 51 L.Ed.2d 229 (1977). See also id., at 167‑168,
97 S.Ct., at 1010‑ 1011 (opinion of WHITE, J.).
These
prior decisions are indicative of the Court's unwillingness to construe
remedial statutes designed to eliminate discrimination against racial
minorities in a manner which would impede efforts to attain this objective.
There is no justification for departing from this course in the case of Title
VI and frustrating the clear judgment of Congress that race‑conscious
remedial action is permissible.
We turn,
therefore, to our analysis of the Equal Protection Clause of the Fourteenth
Amendment.
III
A
The
assertion of human equality is closely associated with the proposition that
differences in color or creed, birth or status, are neither significant nor
relevant to the way in which persons should be treated. Nonetheless, the
position that such factors must be "constitutionally an irrelevance,"
Edwards v. California, 314 U.S. 160, 185, 62 S.Ct. 164, 172, 86 L.Ed. 119
(1941) (Jackson, J., concurring), summed up by the shorthand phrase "[o]ur
Constitution is color‑blind," Plessy v. Ferguson, 163 U.S. 537, 559,
16 S.Ct. 1138, 1146, 41 L.Ed. 256 (1896) (Harlan, J., dissenting), has never
been adopted by this Court as the proper meaning of the Equal Protection
Clause. In *356 deed, we have expressly rejected this proposition on a number
of occasions.
Our cases
have always implied that an "overriding statutory purpose,"
McLaughlin v. Florida, 379 U.S. 184, 192, 85 S.Ct. 283, 288, 13 L.Ed.2d 222
(1964), could be found that would justify racial classifications. See, e. g.,
ibid.; Loving v. Virginia, 388 U.S. 1, 11, 87 S.Ct. 1817, 1823, 18 L.Ed.2d 1010
(1967); Korematsu v. United States, 323 U.S. 214, 216, 65 S.Ct. 193, 194, 89
L.Ed. 194 (1944); Hirabayashi v. United States, 320 U.S. 81, 100‑101, 63
S.Ct. 1375, 1385‑1386, 87 L.Ed. 1774 (1943). More recently, in McDaniel
v. Barresi, 402 U.S. 39, 91 S.Ct. 1287, 28 L.Ed.2d 582 (1971), this Court
unanimously reversed the Georgia Supreme Court which had held that a
desegregation plan voluntarily adopted by a local school board, which assigned
students on the basis of race, was per se invalid because it was not color‑
blind. And in North Carolina Board of Education v. Swann we held, again
unanimously, that a statute mandating color‑blind school‑assignment
plans could not stand "against the background of segregation," since
such a limit on remedies would "render illusory the promise of Brown
[I]." 402 U.S., at 45‑46, 91 S.Ct., at 1286.
We
conclude, therefore, that racial classifications are not per se invalid under
the Fourteenth Amendment. Accordingly, we turn to the problem of articulating
what our role should be in reviewing state action that expressly classifies by
race.
B
Respondent
argues that racial classifications are always suspect and, consequently, that
this Court should weigh the importance of the objectives served by Davis'
special admissions program to see if they are compelling. In addition, he
asserts that this Court must inquire whether, in its judgment, there are
alternatives to racial classifications which would suit Davis' purposes.
Petitioner, on the other hand, states that our proper role is simply to accept
petitioner's determination that the racial **2782 classifications used by its
program are reasonably related to what it tells us are its benign *357
purposes. We reject petitioner's view, but, because our prior cases are in many
respects inapposite to that before us now, we find it necessary to define with
precision the meaning of that inexact term, "strict scrutiny."
[10]
Unquestionably we have held that a government practice or statute which
restricts "fundamental rights" or which contains "suspect
classifications" is to be subjected to "strict scrutiny" and can
be justified only if it furthers a compelling government purpose and, even
then, only if no less restrictive alternative is available. [FN30] See, e. g.,
San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 16‑17,
93 S.Ct. 1278, 1287‑1288, 36 L.Ed.2d 16 (1973); Dunn v. Blumstein, 405
U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972). But no fundamental right is
involved here. See San Antonio, supra, 411 U.S., at 29‑36, 93 S.Ct., at
1294‑1298. Nor do whites as a class have any of the "traditional
indicia of suspectness: the class is not saddled with such disabilities, or
subjected to such a history of purposeful unequal treatment, or relegated to
such a position of political powerlessness as to command extraordinary protection
from the majoritarian political process." Id., at 28, 93 S.Ct., at 1294;
see United States v. Carolene Products Co., 304 U.S. 144, 152 n. 4, 58 S.Ct.
778, 783, 82 L.Ed. 1234 (1938). [FN31]
FN30. We do not pause to debate whether our cases
establish a "two‑tier" analysis, a "sliding scale"
analysis, or something else altogether. It is enough for present purposes that
strict scrutiny is applied at least in some cases.
FN31. Of course, the fact that whites constitute a
political majority in our Nation does not necessarily mean that active judicial
scrutiny of racial classifications that disadvantage whites is inappropriate.
Cf. Castaneda v. Partida, 430 U.S. 482, 499‑500, 97 S.Ct. 1272, 1282‑1283,
51 L.Ed.2d 498 (1977); id., at 501, 97 S.Ct., at 1283 (MARSHALL, J., concurring).
Moreover,
if the University's representations are credited, this is not a case where
racial classifications are "irrelevant and therefore prohibited."
Hirabayashi, supra, 320 U.S., at 100, 63 S.Ct., at 1385. Nor has anyone
suggested that the University's purposes contravene the cardinal principle that
racial classifications that stigmatize‑‑because they are drawn on
the presumption that one race is inferior to another or because they put the
weight of government *358 behind racial hatred and separatism‑‑are
invalid without more. See Yick Wo v. Hopkins, 118 U.S. 356, 374, 6 S.Ct. 1064,
1073, 30 L.Ed. 220 (1886); [FN32] accord, Strauder v. West Virginia, 100 U.S.
303, 308, 25 L.Ed. 664 (1880); Korematsu v. United States, supra, 323 U.S., at
223, 65 S.Ct., at 197; Oyama v. California, 332 U.S. 633, 663, 68 S.Ct. 269,
283, 92 L.Ed. 249 (1948) (Murphy, J., concurring); Brown I, 347 U.S. 483, 74
S.Ct. 686, 98 L.Ed. 873 (1954); McLaughlin v. Florida, supra, 379 U.S., at 191‑192,
85 S.Ct., at 287‑289; Loving v. Virginia, supra, 388 U.S., at 11‑12,
87 S.Ct., at 1823‑1824; Reitman v. Mulkey, 387 U.S. 369, 375‑376,
87 S.Ct. 1627, 1631‑1632, 18 L.Ed.2d 830 (1967); United Jewish
Organizations v. Carey, 430 U.S. 144, 165, 97 S.Ct. 996, 1009, 51 L.Ed.2d 229
(1977) (UJO) (opinion of WHITE, J., joined by REHNQUIST and STEVENS, JJ.); id.,
at 169, 97 S.Ct., at 1011 (opinion concurring in part). [FN33]
FN32. "[T]he conclusion cannot be resisted,
that no reason for [the refusal to issue permits to Chinese] exists except
hostility to the race and nationality to which the petitioners belong . . ..
The discrimination is, therefore, illegal . . .."
FN33. Indeed, even in Plessy v. Ferguson the Court
recognized that a classification by race that presumed one race to be inferior
to another would have to be condemned. See 163 U.S., at 544‑551, 16
S.Ct., at 1140‑1143.
On the
other hand, the fact that this case does not fit neatly into our prior analytic
framework for race cases does not mean that it should be analyzed by applying
the very loose rational‑basis standard of review that is the very least
that is always applied in equal protection cases. [FN34] " '[T]he mere
**2783 recitation of a benign, compensatory purpose is not an automatic
shield*359 hich protects against any inquiry into the actual purposes
underlying a statutory scheme.' " Califano v. Webster, 430 U.S. 313, 317,
97 S.Ct. 1192, 1194, 51 L.Ed.2d 360 (1977), quoting Weinberger v. Wiesenfeld,
420 U.S. 636, 648, 95 S.Ct. 1225, 1233, 43 L.Ed.2d 514 (1975). Instead, a
number of considerations‑‑developed in gender‑discrimination
cases but which carry even more force when applied to racial classifications‑‑lead
us to conclude that racial classifications designed to further remedial
purposes " 'must serve important governmental objectives and must be
substantially related to achievement of those objectives.' " Califano v.
Webster, supra, 430 U.S., at 317, 97 S.Ct., at 1194, quoting Craig v. Boren,
429 U.S. 190, 197, 97 S.Ct. 451, 457, 50 L.Ed.2d 397 (1976). [FN35]
FN34. Paradoxically, petitioner's argument is
supported by the cases generally thought to establish the "strict
scrutiny" standard in race cases, Hirabayashi v. United States, 320 U.S.
81, 63 S.Ct. 1375, 87 L.Ed. 1774 (1943), and Korematsu v. United States, 323
U.S. 214, 65 S.Ct. 193, 89 L.Ed. 194 (1944). In Hirabayashi, for example, the
Court, responding to a claim that a racial classification was rational,
sustained a racial classification solely on the basis of a conclusion in the
double negative that it could not say that facts which might have been
available "could afford no ground for differentiating citizens of Japanese
ancestry from other groups in the United States." Hirabayashi, 320 U.S.,
at 101, 63 S.Ct., at 1386. A similar mode of analysis was followed in Korematsu, see 323 U.S., at 224, 65
S.Ct., at 197, even though the Court stated there that racial classifications
were "immediately suspect" and should be subject to "the most
rigid scrutiny." Id., at 216, 65 S.Ct., at 194.
FN35. We disagree with our Brother POWELL's
suggestion, ante, at 2755, that the presence of "rival groups which can
claim that they, too, are entitled to preferential treatment"
distinguishes the gender cases or is relevant to the question of scope of
judicial review of race classifications. We are not asked to determine whether
groups other than those favored by the Davis program should similarly be
favored. All we are asked to do is to pronounce the constitutionality of what
Davis has done.
But, were we asked to decide whether any given
rival group‑‑German‑ Americans for example‑‑must
constitutionally be accorded preferential treatment, we do have a
"principled basis," ante, at 2751, for deciding this question, one
that is well established in our cases: The Davis program expressly sets out
four classes which receive preferred status. Ante, at 2740. The program clearly
distinguishes whites, but one cannot reason from this a conclusion that German‑Americans,
as a national group, are singled out for invidious treatment. And even if the
Davis program had a differential
impact on German‑Americans, they would have no constitutional claim
unless they could prove that Davis intended invidiously to discriminate against
German‑Americans. See Arlington Heights v. Metropolitan Housing Dev.
Corp., 429 U.S. 252, 264‑265, 97 S.Ct. 555, 562‑563, 50 L.Ed.2d 450
(1977); Washington v. Davis, 426 U.S. 229, 238‑241, 96 S.Ct. 2040, 2046,
2048, 48 L.Ed.2d 597 (1976). If this could not be shown, then "the
principle that calls for the closest scrutiny of distinctions in laws denying
fundamental rights . . . is inapplicable," Katzenbach v. Morgan, 384 U.S.
641, 657, 86 S.Ct. 1717, 1727, 16 L.Ed.2d 828 (1966), and the only question is
whether it was rational for Davis to conclude that the groups it preferred had
a greater claim to compensation than the groups it excluded. See ibid.; San
Antonio Independent School District v. Rodriquez, 411 U.S. 1, 38‑39, 93
S.Ct. 1278, 1299‑1300, 36 L.Ed.2d 16 (1973) (applying Katzenbach test to
state action intended to remove discrimination in educational opportunity).
Thus, claims of rival groups, although they may create thorny political
problems, create relatively simple problems for the courts.
*360 First, race, like, "gender‑based
classifications too often [has] been inexcusably utilized to stereotype and
stigmatize politically powerless segments of society." Kahn v. Shevin, 416
U.S. 351, 357, 94 S.Ct. 1734, 1738, 40 L.Ed.2d 189 (1974) (dissenting opinion).
While a carefully tailored statute designed to remedy past discrimination could
avoid these vices, see Califano v. Webster, supra; Schlesinger v. Ballard, 419
U.S. 498, 95 S.Ct. 572, 42 L.Ed.2d 610 (1975); Kahn v. Shevin, supra, we
nonetheless have recognized that the line between honest and thoughtful
appraisal of the effects of pastdiscrimination and paternalistic stereotyping
is not so clear and that a statute based on the latter is patently capable of
stigmatizing all women with a badge of inferiority. Cf. Schlesinger v. Ballard,
supra, 419 U.S., at 508, 95 S.Ct., at 577; UJO, supra, 430 U.S., at 174, and n.
3, 97 S.Ct., at 1014 (opinion concurring in part); Califano v. **2784 Goldfarb,
430 U.S. 199, 223, 97 S.Ct. 1021, 1035, 51 L.Ed.2d 270 (1977) (STEVENS, J.,
concurring in judgment). See also Stanton v. Stanton, 421 U.S. 7, 14‑15,
95 S.Ct. 1373, 1377‑1378, 43 L.Ed.2d 688 (1975). State programs designed
ostensibly to ameliorate the effects of past racial discrimination obviously
create the same hazard of stigma, since they may promote racial separatism and
reinforce the views of those who believe that members of racial minorities are
inherently incapable of succeeding on their own. See UJO, supra, 430 U.S., at
172, 97 S.Ct., at 1013 (opinion concurring in part); ante, at 2753 (opinion of
POWELL, J.).
Second,
race, like gender and illegitimacy, see Weber v. Aetna Casualty & Surety
Co., 406 U.S. 164, 92 S.Ct. 1400, 31 L.Ed.2d 768 (1972), is an immutable
characteristic which its possessors are powerless to escape or set aside. While
a classification is not per se invalid because it divides classes on the basis
of an immutable characteristic, see supra, at 2781‑2782, it is
nevertheless true that such divisions are contrary to our deep belief that
"legal burdens should bear some relationship to individual responsibility
or *361 wrongdoing," Weber, supra, 406 U.S., at 175, 92 S.Ct., at 1407;
Frontiero v. Richardson, 411 U.S. 677, 686, 93 S.Ct. 1764, 1770, 36 L.Ed.2d 583
(1973) (opinion of BRENNAN, WHITE, and MARSHALL, JJ.), and that advancement sanctioned,
sponsored, or approved by the State should ideally be based on individual merit
or achievement, or at the least on factors within the control of an individual.
See UJO, 430 U.S., at 173, 97 S.Ct., at 1013 (opinion concurring in part);
Kotch v. Board of River Port Pilot Comm'rs, 330 U.S. 552, 566, 67 S.Ct. 910,
917, 91 L.Ed. 1093 (1947) (Rutledge, J., dissenting).
Because
this principle is so deeply rooted it might be supposed that it would be
considered in the legislative process and weighed against the benefits of
programs preferring individuals because of their race. But this is not
necessarily so: The "natural consequence of our governing process [may
well be] that the most 'discrete and insular' of whites . . . will be called
upon to bear the immediate, direct costs of benign discrimination." UJO,
supra, 430 U.S., at 174, 97 S.Ct., at 1014 (opinion concurring in part).
Moreover, it is clear from our cases that there are limits beyond which
majorities may not go when they classify on the basis of immutable
characteristics. See, e. g., Weber, supra. Thus, even if the concern for
individualism is weighed by the political process, that weighing cannot waive
the personal rights of individuals under the Fourteenth Amendment. See Lucas v.
Colorado General Assembly, 377 U.S. 713, 736, 84 S.Ct. 1459, 1473, 12 L.Ed.2d
632 (1964).
In sum,
because of the significant risk that racial classifications established for
ostensibly benign purposes can be misused, causing effects not unlike those
created by invidious classifications, it is inappropriate to inquire only
whether thereis any conceivable basis that might sustain such a classification.
Instead, to justify such a classification an important and articulated purpose
for its use must be shown. In addition, any statute must be stricken that
stigmatizes any group or that singles out those least well represented in the
political process to bear the brunt of a benign program. Thus, our review under
the Fourteenth Amendment should be *362 strict‑‑not " 'strict'
in theory and fatal in fact," [FN36] because it is stigma that causes
fatality‑‑but strict and searching nonetheless.
FN36. Gunther, The Supreme Court, 1971 Term‑‑Foreword:
In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal
Protection, 86 Harv.L.Rev. 1, 8 (1972).
IV
Davis'
articulated purpose of remedying the effects of past societal discrimination
is, under our cases, sufficiently important to justify the use of race‑conscious
admissions programs where there is a sound basis for concluding that minority
underrepresentation is substantial and chronic, and that the handicap of past
discrimination is impeding access of minorities to the Medical School.
**2785 A
At least
since Green v. County School Board, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716
(1968), it has been clear that a public body which has itself been adjudged to
have engaged in racial discrimination cannot bring itself into compliance with
the Equal Protection Clause simply by ending its unlawful acts and adopting a neutral
stance. Three years later, Swann v. Charlotte‑ Mecklenburg Board of
Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971), and its companion
cases, Davis v. School Comm'rs of Mobile County, 402 U.S. 33, 91 S.Ct. 1289, 28
L.Ed.2d 577 (1971); McDaniel v. Barresi, 402 U.S. 39, 91 S.Ct. 1287, 28 L.Ed.2d
582 (1971), and North Carolina Board of Education v. Swann, 402 U.S. 43, 91
S.Ct. 1284, 28 L.Ed.2d 586 (1971), reiterated that racially neutral remedies
for past discrimination were inadequate where consequences of past
discriminatory acts influence or control present decisions. See, e. g.,
Charlotte‑Mecklenburg, supra, 402 U.S., at 28, 91 S.Ct., at 1282. And the
Court further held both that courts could enter desegregation orders which
assigned students and faculty by reference to race, Charlotte‑Mecklenburg,
supra; Davis, supra; United States v. Montgomery County Board of Ed., 395 U.S.
225, 89 S.Ct. 1670, 23 L.Ed.2d 263 (1969), and that local school boards could
voluntarily adopt desegregation *363 plans which made express reference to race
if this was necessary to remedy the effects of past discrimination. McDaniel v.
Barresi, supra. Moreover, we stated that school boards, even in the absence of
a judicial finding of past discrimination, could voluntarily adopt plans which
assigned students with the end of creating racial pluralism by establishing
fixed ratios of black and white students in each school. Charlotte‑Mecklenburg,
supra, 402 U.S., at 16, 91 S.Ct., at 1276. In each instance, the creation of
unitary school systems, in which the effects of past discrimination had been
"eliminated root and branch," Green, supra, 391 U.S., at 438, 88
S.Ct., at 1694, was recognized as a compelling social goal justifying the overt
use of race.
Finally,
the conclusion that state educational institutions may constitutionally adopt
admissions programs designed to avoid exclusion of historically disadvantaged
minorities, even when such programs explicitly take race into account, finds
direct support in our cases construing congressional legislation designed to
overcome the present effects of past discrimination. Congress can and has
outlawed actions which have a disproportionately adverse and unjustified impact
upon members of racial minorities and has required or authorized race‑conscious
action to put individuals disadvantaged by such impact in the position they
otherwise might have enjoyed. See Franks v. Bowman Transportation Co., 424 U.S.
747, 96 S.Ct. 1251, 47 L.Ed.2d 444 (1976); Teamsters v. United States, 431 U.S.
324, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977). Such relief does not require as a
predicate proof that recipients of preferential advancement have been
individually discriminated against; it is enough that each recipient is within
a general class of persons likely to have been the victims of discrimination.
See id., at 357‑362, 97 S.Ct., at 1865‑1868. Nor is it an objection
to such relief that preference for minorities will upset the settled
expectations of nonminorities. See Franks, supra. In addition, we have held
that Congress, to remove barriers to equal opportunity, can and has required
employers to use test criteria that fairly reflect the qualifications of
minority applicants *364 vis‑a‑vis nonminority applicants, even if
this means interpreting the qualifications of an applicant in light of his
race. See Albemarle Paper Co. v. Moody, 422 U.S. 405, 435, 95 S.Ct. 2362, 2380,
45 L.Ed.2d 280 (1975). [FN37]
FN37. In Albemarle, we approved "differential
validation" of employment tests. See 422 U.S., at 435, 95 S.Ct., at 2380.
That procedure requires that an employer must ensure that a test score of, for
example, 50 for a minority job applicant means the same thing as a score of 50
for a nonminority applicant. By implication, were it determined that a test score
of 50 for a minority corresponded in "potential for employment" to a
60 for whites, the test could not be used consistently with Title VII unless
the employer hired minorities with scores of 50 even though he might not hire
nonminority applicants with scores above 50 but below 60. Thus, it is clear
that employers, to ensure equal opportunity, may have to adopt race‑conscious
hiring practices.
These
cases cannot be distinguished simply by the presence of judicial findings of
**2786 discrimination, for race‑conscious remedies have been approved
where such findings have not been made. McDaniel v. Barresi, supra; UJO;
seeCalifano V. Webster, 430 U.S. 313, 97 S.Ct. 1192, 51 L.Ed.2d 360 (1977);
Schlesinger v. Ballard, 419 U.S. 498, 95 S.Ct. 572, 42 L.Ed.2d 610 (1975); Kahn
v. Shevin, 416 U.S. 351, 94 S.Ct. 1734, 40 L.Ed.2d 189 (1974). See
alsoKatzenbach v. Morgan, 384 U.S. 641, 86 S.Ct. 1717, 16 L.Ed.2d 828 (1966).
Indeed, the requirement of a judicial determination of a constitutional or
statutory violation as a predicate for race‑conscious remedial actions
would be self‑defeating. Such a requirement would severely undermine
efforts to achieve voluntary compliance with the requirements of law. And our
society and jurisprudence have always stressed the value of voluntary efforts
to further the objectives of the law. Judicial intervention is a last resort to
achieve cessation of illegal conduct or the remedying of its effects rather
than a prerequisite to action. [FN38]
FN38. Indeed, Titles VI and VII of the Civil
Rights Act of 1964 put great emphasis on voluntarism in remedial action. See
supra, at 2772‑ 2773. And, significantly, the Equal Employment
Opportunity Commission has recently proposed guidelines authorizing employers
to adopt racial preferences as a remedial measure where they have a reasonable
basis for believing that they might otherwise be held in violation of Title
VII. See 42 Fed.Reg. 64826 (1977).
*365 Nor can our cases be distinguished on the
ground that the entity using explicit racial classifications itself had
violated § 1 of the Fourteenth Amendment or an antidiscrimination regulation,
for again race‑ conscious remedies have been approved where this is not
the case. See UJO, 430 U.S., at 157, 97 S.Ct., at 1005 (opinion of WHITE, J.,
joined by BRENNAN, BLACKMUN, and STEVENS, JJ.); [FN39] id., at 167, 97 S.Ct.,
at 1010 (opinion of WHITE, J., joined by REHNQUIST and STEVENS, JJ.); [FN40]
cf. Califano v. Webster, supra, 430 U.S., at 317, 97 S.Ct., at 1194; Kahn v.
Shevin, supra. Moreover, the presence or absence of past discrimination by
universities or employers is largely irrelevant to resolving respondent's
constitutional claims. The claims of those burdened by the race‑conscious
actions of a university or employer who has never been adjudged in violation of
an antidiscrimination law are not any more or less entitled to deference than
the claims of the burdened nonminority workers in Franks v. Bowman
Transportation Co., supra, in which the employer had violated Title VII, for in
each case the employees are innocent of past discrimination. And, although it
might be argued that, where an employer has violated an antidiscrimination law,
the expectations of nonminority workers are themselves products of
discrimination and hence "tainted," see Franks, supra, at 776, 96
S.Ct., at 1270, and therefore more easily upset, the same argument can be made
with respect to respondent. If it was reasonable to conclude‑‑as we
hold that it was‑‑that the failure of minorities to qualify for
admission at Davis under regular procedures was due principally to the effects
of past discrimination, then there is a reasonable likelihood that, but for
pervasive racial discrimination, *366 respondent would have failed to qualify
for admission even in the absence of Davis' special admissions program. [FN41]
FN39. "[T]he [Voting Rights] Act's
prohibition . . . is not dependent upon proving past unconstitutional
apportionments . . . ."
FN40. "[T]he State is [not] powerless to
minimize the consequences of racial discrimination by voters when it is
regularly practiced at the polls."
FN41. Our cases cannot be distinguished by
suggesting, as our Brother POWELL does, that in none of them was anyone
deprived of "the relevant benefit." Ante, at 2756. Our school cases
have deprived whites of the neighborhood school of their choice; our Title VII
cases have deprived nondiscriminating employees of their settled seniority
expectations; and UJO deprived
the Hassidim of bloc voting strength. Each of these injuries was
constitutionally cognizable as is respondent's here.
Thus, our
cases under Title VII of the Civil Rights Act have held that, in order to
**2787 achieve minority participation in previously segregated areas of public
life, Congress may require or authorize preferential treatment for those likely
disadvantaged by societal racial discrimination. Such legislation has been
sustained even without a requirement of findings of intentional racial
discrimination by those required or authorized to accord preferential
treatment, or a case‑by‑case determination that those to be
benefited suffered from racial discrimination. These decisions compel the
conclusion that States also may adopt race‑conscious programs designed to
overcome substantial, chronic minority underrepresentation where there is
reason to believe that the evil addressed is a product of past racial
discrimination. [FN42]
FN42. We do not understand Mr. Justice POWELL to
disagree that providing a remedy for past racial prejudice can constitute a
compelling purpose sufficient to meet strict scrutiny. See ante, at 2756. Yet,
because petitioner is a corporation administering a university, he would not
allow it to exercise such power in the absence of "judicial, legislative,
or administrative findings of
constitutional or statutory violations." Ante, at 2758. While we agree
that reversal in this case would follow a fortiori had Davis been guilty of
invidious racial discrimination or if a federal statute mandated that
universities refrain from applying any admissions policy that had a disparate
and unjustified racial impact, see, e. g., McDaniel v. Barresi, 402 U.S. 39, 91
S.Ct. 1287, 28 L.Ed.2d 582 (1971); Franks v. Bowman Transportation Co., 424
U.S. 747, 96 S.Ct. 1251, 47 L.Ed.2d 444 (1976), we do not think it of
constitutional significance that Davis has not been so adjudged.
Generally, the manner in which a State chooses to
delegate governmental functions is for it to decide. Cf. Sweezy v. New
Hampshire, 354 U.S. 234, 256, 77 S.Ct. 1203, 1 L.Ed.2d 1311 (1957)
(Frankfurter, J., concurring in result). California, by constitutional
provision, has chosen to place authority over the operation of the University
of California in the Board of Regents. See Cal.Const., Art. 9, § 9(a). Control
over the University is to be found not in the legislature, but rather in the
Regents who had been vested with full legislative (including policymaking),
administrative, and adjudicative powers by the citizens of California. See
ibid.; Ishimatsu v. Regents, 266 Cal.App.2d 854, 863‑864, 72 Cal.Rptr.
756, 762‑763 (1968); Goldberg v. Regents, 248 Cal.App.2d 867, 874, 57 Cal.Rptr. 463, 468 (1967); 30
Op.Cal.Atty.Gen. 162, 166 (1957) ( "The Regents, not the legislature, have
the general rule‑making or policy‑ making power in regard to the
University"). This is certainly a permissible choice, see Sweezy, supra,
and we, unlike our Brother POWELL, find nothing in the Equal Protection Clause
that requires us to depart from established principle by limiting the scope of
power the Regents may exercise more narrowly than the powers that may
constitutionally be wielded by the Assembly.
Because the Regents can exercise plenary
legislative and administrative power, it elevates form over substance to insist
that Davis could not use race‑conscious remedial programs until it had
been adjudged in violation of the Constitution or an antidiscrimination
statute. For, if the Equal Protection Clause required such a violation as a
predicate, the Regents could simply have promulgated a regulation prohibiting
disparate treatment not justified by the need to admit only qualified students,
and could have declared Davis to have been in violation of such a regulation on
the basis of the exclusionary effect of the admissions policy applied during
the first two years of its operation. See infra, at 2789‑2790.
*367 Title VII was enacted pursuant to Congress'
power under the Commerce Clause and § 5 of the Fourteenth Amendment. To the
extent that Congress acted under the Commerce Clause power, it was restricted
in the use of race in governmental decisionmaking by the equal protection
component of the Due Process Clause of the Fifth Amendment precisely to the
same extent as are the States by § 1 of the Fourteenth Amendment. [FN43]
Therefore, to the extent that Title VII rests on the Commerce Clause power, our
decisions such as Franks and *368 Teamsters v. United States, 431 U.S. 324, 97
S.Ct. 1843, 52 L.Ed.2d 396 (1977), implicitly recognize that the affirmative
use of race is consistent with the equal protection component of the Fifth
Amendment **2788 and therefore with the Fourteenth Amendment. To the extent
that Congress acted pursuant to § 5 of the Fourteenth Amendment, those cases
impliedly recognize that Congress was empowered under that provision to accord
preferential treatment to victims of past discrimination in order to overcome
the effects of segregation, and we see no reason to conclude that the States
cannot voluntarily accomplish under § 1 of the Fourteenth Amendment what
Congress under § 5 of the Fourteenth Amendment validly may authorize or compel
either the States or private persons to do. A contrary position would conflict
with the traditional understanding recognizing the competence of the States to
initiate measures consistent with federal policy in the absence of congressional
pre‑emption of the subject matter. Nothing whatever in the legislative
history of either the Fourteenth Amendment or the Civil Rights Acts even
remotely suggests that the States are foreclosed from furthering the
fundamental purpose of equal opportunity to which the Amendment and those Acts
are addressed. Indeed, voluntary initiatives by the States to achieve the
national goal of equal opportunity have been recognized to be essential to its
attainment. "To use the Fourteenth Amendment as a sword against such State
power would stultify that Amendment." Railway Mail Assn. v. Corsi, 326
U.S. 88, 98, 65 S.Ct. 1483, 1489, 89 L.Ed. 2072 (1945) (Frankfurter, J.,
concurring). [FN44] We therefore *369 conclude that Davis' goal of admitting
minority students disadvantaged by the effects of past discrimination is
sufficiently important to justify use of race‑conscious admissions
criteria.
FN43. "Equal protection analysis in the Fifth
Amendment area is the same as that under the Fourteenth Amendment."
Buckley v. Valeo, 424 U.S. 1, 93, 96 S.Ct. 612, 670, 46 L.Ed.2d 659 (1976) (per
curiam ), citing Weinberger v. Wiesenfeld, 420 U.S. 636, 638 n. 2, 95 S.Ct.
1225, 1228, 43 L.Ed.2d 514 (1975).
FN44. Railway Mail Assn. held that a state statute
forbidding racial discrimination by certain labor organizations did not abridge
the Association's due process
rights secured by the Fourteenth Amendment because that result "would be a
distortion of the policy manifested in that amendment, which was adopted to
prevent state legislation designed to perpetuate discrimination on the basis of
race or color." 326 U.S., at 94, 65 S.Ct., at 1487. That case thus
established the principle that a State voluntarily could go beyond what the
Fourteenth Amendment required in eliminating private racial discrimination.
B
Properly
construed, therefore, our prior cases unequivocally show that a state
government may adopt race‑conscious programs if the purpose of such
programs is to remove the disparate racial impact its actions might otherwise
have and if there is reason to believe that the disparate impact is itself the
product of past discrimination, whether its own or that of society at large.
There is no question that Davis' program is valid under this test.
Certainly,
on the basis of the undisputed factual submissions before this Court, Davis had
a sound basis for believing that the problem of underrepresentation of
minorities was substantial and chronic and that the problem was attributable to
handicaps imposed on minority applicants by past and present racial
discrimination. Until at least 1973, the practice of medicine in this country
was, in fact, if not in law, largely the prerogative of whites. [FN45] In 1950,
for example, while Negroes *370 constituted 10% of the **2789 total population,
Negro physicians constituted only 2.2% of the total number of physicians.
[FN46] The overwhelming majority of these, moreover, were educated in two
predominantly Negro medical schools, Howard and Meharry. [FN47] By 1970, the
gap between the proportion of Negroes in medicine and their proportion in the
population had widened: The number of Negroes employed in medicine remained
frozen at 2.2% [FN48] while the Negro population had increased to 11.1%. [FN49]
The number of Negro admittees to predominantly white medical schools, moreover,
had declined in absolute numbers during the years 1955 to 1964. Odegaard 19.
FN45. According to 89 schools responding to a
questionnaire sent to 112 medical schools (all of the then‑accredited
medical schools in the United States except Howard and Meharry), substantial
efforts to admit minority students did not begin until 1968. That year was the
earliest year of involvement for 34% of the schools; an additional 66% became
involved during the years 1969 to1973. See C. Odegaard, Minorities in Medicine:
From Receptive Passivity to Positive Action, 1966‑1976, p. 19 (1977)
(hereinafter Odegaard). These efforts were reflected in a significant increase in the percentage
of minority M.D. graduates. The number of American Negro graduates increased
from 2.2% in 1970 to 3.3% in 1973 and 5.0% in 1975. Significant percentage
increases in the number of Mexican American, American‑Indian, and
mainland Puerto Rican graduates were also recorded during those years. Id., at
40.
The statistical information cited in this and the
following notes was compiled by Government officials or medical educators, and
has been brought to our attention in many of the briefs. Neither the parties
nor the amici challenge the validity of the statistics alluded to in our
discussion.
FN46. D. Reitzes, Negroes and Medicine, pp. xxvii,
3 (1958).
FN47. Between 1955 and 1964, for example, the
percentage of Negro physicians graduated in the United States who were trained
at these schools ranged from 69.0% to 75.8%. See Odegaard 19.
FN48. U.S. Dept. of Health, Education, and
Welfare, Minorities and Women in the Health Fields 7 (Pub. No. (HRA) 75‑22,
May 1974).
FN49. U.S. Dept. of Commerce, Bureau of the
Census, 1970 Census, vol. 1, pt. 1,
Table 60 (1973).
Moreover,
Davis had very good reason to believe that the national pattern of
underrepresentation of minorities in medicine would be perpetuated if it
retained a single admissions standard. For example, the entering classes in
1968 and 1969, the years in which such a standard was used, included only 1
Chicano and 2 Negroes out of the 50 admittees for each year. Nor is there any
relief from this pattern of underrepresentation in the statistics for the
regular admissions program in later years. [FN50]
FN50. See ante, at 2741 n. 6 (opinion of POWELL,
J.).
Davis
clearly could conclude that the serious and persistent underrepresentation of
minorities in medicine depicted by these statistics is the result of handicaps
under which minority applicants labor as a consequence of a background of
deliberate, purposeful discrimination against minorities in education *371 and
in society generally, as well as in the medical profession. From the inception
of our national life, Negroes have been subjected to unique legal disabilities
impairing access to equal educational opportunity. Under slavery, penal
sanctions were imposed upon anyone attempting to educate Negroes. [FN51] After
enactment of the Fourteenth Amendment the States continued to deny Negroes
equal educational opportunity, enforcing a strict policy of segregation that
itself stamped Negroes as inferior, Brown I, 347 U.S. 483, 74 S.Ct. 686, 98
L.Ed. 873 (1954), that relegated minorities to inferior educational
institutions, [FN52] and that denied them intercourse in the mainstream of
professional life necessary to advancement. See Sweatt v. Painter, 339 U.S.
629, 70 S.Ct. 848, 94 L.Ed. 1114 (1950). Segregation was not limited to public
facilities, moreover, but was enforced by criminal penalties against private
action as well. Thus, as late as 1908, this Court enforced a state criminal
conviction against a private college for teaching Negroes together with whites.
Berea College v. Kentucky, 211 U.S. 45, 29 S.Ct. 33, 53 L.Ed. 81. See also
Plessy v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256 (1896).
FN51. See, e. g., R. Wade, Slavery in the Cities:
The South 1820‑1860, pp. 90‑91 (1964).
FN52. For an example of unequal facilities in
California schools, see Soria v. Oxnard School Dist. Board, 386 F.Supp. 539,
542 (CD Cal.1974). See also R. Kluger, Simple Justice (1976).
Green v.
County School Board, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968), gave
explicit recognition to the fact that the habit of discrimination and the
cultural tradition of race prejudice cultivated by centuries of legal slavery
and segregation were not immediately dissipated when Brown I, supra, announced
the constitutional principle that equal educational opportunity and
participation in all aspects of American life could not be denied on the basis
of race. Rather, massive official and private resistance prevented, and to a
lesser extent still prevents, attainment of equal opportunity in education at
all levels and in **2790 the professions. The generation of minority students
applying to Davis Medical School since it opened in 1968‑‑most of
whom *372 were born before or about the time Brown I was decided‑‑clearly
have been victims of this discrimination. Judicial decrees recognizing
discrimination in public education in California testify to the fact of
widespread discrimination suffered by California‑born minority
applicants; [FN53] many minority group members living in California, moreover,
were born and reared in school districts in Southern States segregated by law.
[FN54] Since separation of school‑children by race "generates a
feeling of inferiority as to their status in the community that may affect
their hearts and minds in a way unlikely ever to be undone," Brown I,
supra, 347 U.S., at 494, 74 S.Ct., at 691, the conclusion is inescapable that
applicants to medical school must be few indeed who endured the effects of de
jure segregation, the resistance to Brown I, or the equally debilitating
pervasive private discrimination fostered by our long history of official
discrimination, cf. Reitman v. Mulkey, 387 U.S. 369, 87 S.Ct. 1627, 18 L.Ed.2d
830 (1967), and yet come to the starting line with an education equal to
whites. [FN55]
FN53. See, e. g., Crawford v. Board of Education,
17 Cal.3d 280, 130 Cal.Rptr. 724, 551 P.2d 28 (1976); Soria v. Oxnard School
Dist. Board, supra; Spangler v. Pasadena City Board of Education, 311 F.Supp.
501 (C.D.Cal.1970); C. Wollenberg, All Deliberate Speed: Segregation and
Exclusion in California Schools, 1855‑1975, pp. 136‑177 (1976).
FN54. For example, over 40% of American‑born
Negro males aged 20 to 24 residing in California in 1970 were born in the
South, and the statistic for females was over 48%. These statistics were
computed from data contained in Census, supra n. 49, pt. 6, California, Tables
139, 140.
FN55. See, e. g., O'Neil, Preferential Admissions:
Equalizing the Access of Minority Groups to Higher Education, 80 Yale L.J. 699,
729‑ 731 (1971).
Moreover,
we need not rest solely on our own conclusion that Davis had sound reason to
believe that the effects of past discrimination were handicapping minority
applicants to the Medical School, because the Department of Health, Education,
and Welfare, the expert agency charged by Congress with promulgating
regulations enforcing Title VI of the Civil Rights Act of 1964, see supra, at
2775‑2776, has also reached the conclusion that race may be taken into
account in situations *373 where a failure to do so would limit participation
by minorities in federally funded programs, and regulations promulgated by the
Department expressly contemplate that appropriate race‑ conscious
programs may be adopted by universities to remedy unequal access to university
programs caused by their own or by past societal discrimination. See supra, at
2776, discussing 45 CFR §§ 80.3(b)(6)(ii) and 80.5(j) (1971). It cannot be
questioned that, in the absence of the special admissions program, access of
minority students to the Medical School would be severely limited and,
accordingly, race‑conscious admissions would be deemed an appropriate response
under these federal regulations. Moreover, the Department's regulatory policy
is not one that has gone unnoticed by Congress. See supra, at 2777‑2778.
Indeed, although an amendment to an appropriations bill was introduced just
last year that would have prevented the Secretary of Health, Education, and
Welfare from mandating race‑conscious programs in university admissions,
proponents of this measure, significantly, did not question the validity of
voluntary implementation of race‑conscious admissions criteria. See ibid.
In these circumstances, the conclusion implicit in the regulations‑‑that
the lingering effects of past discrimination continue to make race‑conscious
remedial programs appropriate means for ensuring equal educational opportunity
in universities‑‑deserves considerable judicial deference. See, e.
g., Katzenbach v. Morgan, 384 U.S. 641, 86 S.Ct. 1717, 16 L.Ed.2d 828 (1966);
UJO, 430 U.S., at 175‑178, 97 S.Ct., at 1014‑1016 (opinion
concurring in part). [FN56]
FN56. Congress and the Executive have also adopted
a series of race‑ conscious programs, each predicated on an understanding
that equal opportunity cannot be achieved by neutrality because of the effects
of past and present discrimination. See supra, at 2778‑2779.
**2791 C
The second
prong of our test‑‑whether the Davis program stigmatizes any
discrete group or individual and whether race *374 is reasonably used in light
of the program's objectives‑‑is clearly satisfied by the Davis
program.
It is not
even claimed that Davis' program in any way operates to stigmatize or single
out any discrete and insular, or even any identifiable, nonminority group. Nor
will harm comparable to that imposed upon racial minorities by exclusion or
separation on grounds of race be the likely result of the program. It does not,
for example, establish an exclusive preserve for minority students apart from
and exclusive of whites. Rather, its purpose is to overcome the effects of
segregation by bringing the races together. True, whites are excluded from
participation in the special admissions program, but this fact only operates to
reduce the number of whites to be admitted in the regular admissions program in
order to permit admission of a reasonable percentage‑‑less than
their proportion of the California population [FN57]‑‑of otherwise
underrepresented qualified minority applicants. [FN58]
FN57. Negroes and Chicanos alone constitute
approximately 22% of California's population. This percentage was computed from
data contained in Census, supra, n. 49, pt. 6, California, sec. 1, 6‑4,
and Table 139.
FN58. The constitutionality of the special
admissions program is
buttressed by its restriction to only 16% of the positions in the Medical
School, a percentage less than that of the minority population in California,
see ibid., and to those minority applicants deemed qualified for admission and
deemed likely to contribute to the Medical School and the medical profession.
Record 67. This is consistent with the goal of putting minority applicants in
the position they would have been in if not for the evil of racial
discrimination. Accordingly, this case does not raise the question whether even
a remedial use of race would be unconstitutional if it admitted unqualified
minority applicants in preference to qualified applicants or admitted, as a
result of preferential consideration, racial minorities in numbers
significantly in excess of their proportional representation in the relevant
population. Such programs might well be inadequately justified by the legitimate
remedial objectives. Our allusion to the proportional percentage of minorities
in the population of the State administering the program is not intended to
establish either that figure or that population universe as a constitutional
benchmark. In this case, even respondent, as we understand him, does not argue
that, if the special admissions program is otherwise constitutional, the
allotment of 16 places in each entering class for special admittees is
unconstitutionally high.
*375 Nor was Bakke in any sense stamped as
inferior by the Medical School's rejection of him. Indeed, it is conceded by
all that he satisfied those criteria regarded by the school as generally
relevant to academic performance better than most of the minority members who
were admitted. Moreover, there is absolutely no basis for concluding that
Bakke's rejection as a result of Davis' use of racial preference will affect
him throughout his life in the same way as the segregation of the Negro
schoolchildren in Brown I would have affected them. Unlike discrimination
against racial minorities, the use of racial preferences for remedial purposes
does not inflict a pervasive injury upon individual whites in the sense that
wherever they go or whatever they do there is a significant likelihood that
they will be treated as second‑ class citizens because of their color.
This distinction does not mean that the exclusion of a white resulting from the
preferential use of race is not sufficiently serious to require justification;
but it does mean that the injury inflicted by such a policy is not
distinguishable from disadvantages caused by a wide range of government
actions, none of which has ever been thought impermissible for that reason
alone.
In
addition, there is simply no evidence that the Davis program discriminates
intentionally or unintentionally against any minority group which it purports
to benefit. The program does not establish a quota in the invidious sense of a
ceiling on the number of minority applicants to be admitted. **2792 Nor can the
program reasonably be regarded as stigmatizing the program's beneficiaries or
their race as inferior. The Davis program does not simply advance less
qualified applicants; rather, it compensates applicants, who it is uncontested
are fully qualified to study medicine, for educational disadvantages which it
was reasonable to conclude were a product of *376 state‑fostered
discrimination. Once admitted, these students must satisfy the same degree
requirements as regularly admitted students; they are taught by the same
faculty in the same classes; and their performance is evaluated by the same
standards by which regularly admitted students are judged. Under these
circumstances, their performance and degrees must be regarded equally with the
regularly admitted students with whom they compete for standing. Since minority
graduates cannot justifiably be regarded as less well qualified than
nonminority graduates by virtue of the special admissions program, there is no
reasonable basis to conclude that minority graduates at schools using such
programs would be stigmatized as inferior by the existence of such programs.
D
We
disagree with the lower courts' conclusion that the Davis program's use of race
was unreasonable in light of its objectives. First, as petitioner argues, there
are no practical means by which it could achieve its ends in the foreseeable
future without the use of race‑conscious measures. With respect to any
factor (such as poverty or family educational background) that may be used as a
substitute for race as an indicator of past discrimination, whites greatly
outnumber racial minorities simply because whites make up a far larger
percentage of the total population and therefore far outnumber minorities in
absolute terms at every socioeconomic level. [FN59] For example, of a class of
recent medical school applicants from families with less than $10,000 income,
at least 71% were white. [FN60] Of all 1970 families headed by a *377 person
not a high school graduate which included related children under 18, 80% were
white and 20% were racial minorities. [FN61] Moreover, while race is positively
correlated with differences in GPA and MCAT scores, economic disadvantage is
not. Thus, it appears that economically disadvantaged whites do not score less
well than economically advantaged whites, while economically advantaged blacks
score less well than do disadvantaged whites. [FN62] These statistics
graphically illustrate that the University's purpose to integrate its classes
by compensating for past discrimination could not be achieved by a general
preference for the economically disadvantaged or the children of parents of
limited education unless such groups were to make up the entire class.
FN59. See Census, supra, n. 49, Sources and
Structure of Family Income, pp. 1‑12.
FN60. This percentage was computed from data
presented in B. Waldman, Economic and Racial Disadvantage as Reflected in
Traditional Medical School Selection Factors: A Study of 1976 Applicants to U.
S. Medical Schools 34 (Table A‑15), 42 (Table A‑23) (Association of
American Medical Colleges 1977.)
FN61. This figure was computed from data contained
in Census, supra n. 49, pt. 1, United States Summary, Table 209.
FN62. See Waldman, supra n. 60, at 10‑14
(Figures 1‑5).
Second,
the Davis admissions program does not simply equate minority status with
disadvantage. Rather, Davis considers on an individual basis each applicant's
personal history to determine whether he or she has likely been disadvantaged
by racial discrimination. The record makes clear that only minority applicants
likely to have been isolated from the mainstream of American life are
considered in the special program; other minority applicants are eligible only
through the regular admissions program. True, the procedure by which disadvantage
is detected is informal, but we have never insisted that educators conduct
their affairs through adjudicatory proceedings, and such **2793 insistence here
is misplaced. A case‑by‑case inquiry into the extent to which each
individual applicant has been affected, either directly or indirectly, by
racial discrimination, would seem to be, as a practical matter, virtually
impossible, despite the fact that there are excellent reasons for concluding
that such effects generally exist. When individual measurement is impossible or
extremely impractical, there is nothing to prevent a State *378 from using
categorical means to achieve its ends, at least where the category is closely
related to the goal. Cf. Gaston County v. United States, 395 U.S. 285, 295‑296,
89 S.Ct. 1720, 1725‑1726, 23 L.Ed.2d 309 (1969); Katzenbach v. Morgan,
384 U.S. 641, 86 S.Ct. 1731, 16 L.Ed.2d 828(1986). And it is clear from our
cases that specific proof that a person has been victimized by discrimination
is not a necessary predicate to offering him relief where the probability of
victimization is great. See Teamsters v. United States, 431 U.S. 324, 97 S.Ct.
1843, 52 L.Ed.2d 396 (1977).
E
Finally,
Davis' special admissions program cannot be said to violate the Constitution
simply because it has set aside a predetermined number of places for qualified
minority applicants rather than using minority status as a positive factor to
be considered in evaluating the applications of disadvantaged minority
applicants. For purposes of constitutional adjudication, there is no difference
between the two approaches. In any admissions program which accords special
consideration to disadvantaged racial minorities, a determination of the degree
of preference to be given is unavoidable, and any given preference that results
in the exclusion of a white candidate is no more or less constitutionally
acceptable than a program such as that at Davis. Furthermore, the extent of the
preference inevitably depends on how many minority applicants the particular
school is seeking to admit in any particular year so long as the number of
qualified minority applicants exceeds that number. There is no sensible, and
certainly no constitutional, distinction between, for example, adding a set
number of points to the admissions rating of disadvantaged minority applicants
as an expression of the preference with the expectation that this will result
in the admission of an approximately determined number of qualified minority
applicants and setting a fixed number of places for such applicants as was done
here. [FN63]
FN63. The excluded white applicant, despite Mr.
Justice POWELL's contention to the
contrary, ante, at 2763 n. 52, receives no more or less "individualized
consideration" under our approach than under his.
*379 The "Harvard" program, see ante,
at 2762‑2763, as those employing it readily concede, openly and
successfully employs a racial criterion for the purpose of ensuring that some
of the scarce places in institutions of higher education are allocated to disadvantaged
minority students. That the Harvard approach does not also make public the
extent of the preference and the precise workings of the system while the Davis
program employs a specific, openly stated number, does not condemn the latter
plan for purposes of Fourteenth Amendment adjudication. It may be that the
Harvard plan is more acceptable to the public than is the Davis
"quota." If it is, any State, including California, is free to adopt
it in preference to a less acceptable alternative, just as it is generally
free, as far as the Constitution is concerned, to abjure granting any racial
preferences in its admissions program. But there is no basis for preferring a
particular preference program simply because in achieving the same goals that
the Davis Medical School is pursuing, it proceeds in a manner that is not
immediately apparent to the public.
V
Accordingly, we would reverse the judgment of the Supreme Court of
California holding the Medical School's special admissions program
unconstitutional and directing respondent's admission, as well as that **2794
portion of the judgment enjoining the Medical School from according any
consideration to race in the admissions process.
Mr.
Justice WHITE.
I write
separately concerning the question of whether Title VI of the Civil Rights Act
of 1964, 42 U.S.C. § 2000d et seq., provides for a private cause of action.
Four Justices are apparently of the view that such a private cause of action
*380 exists, and four Justices assume it for purposes of this case. I am
unwilling merely to assume an affirmative answer. If in fact no private cause
of action exists, this Court and the lower courts as well are without
jurisdiction to consider respondent's Title VI claim. As I see it, if we are
not obliged to do so, it is at least advisable to address this threshold
jurisdictional issue. See United States v. Griffin, 303 U.S. 226, 229, 58 S.Ct.
601, 602, 82 L.Ed. 764 (1938). [FN1] Furthermore, just as it is inappropriate
to address constitutional issues without determining whether statutory grounds
urged before us are dispositive, it is at least questionable practice to
adjudicate a novel and difficult statutory issue without first considering
whether we have jurisdiction to decide it. Consequently, I address the question
of whether respondent may bring suit under Title VI.
FN1. It is also clear from Griffin that "lack
of jurisdiction . . . touching the subject matter of the litigation cannot be
waived by the parties . . . ." 303 U.S., at 229, 58 S.Ct., at 602. See
also Mount Healthy City Bd. of Ed. v. Doyle, 429 U.S. 274, 278, 97 S.Ct. 568,
571, 50 L.Ed.2d 471 (1977); Louisville & Nashville R. Co. v. Mottley, 211
U.S. 149, 152, 29 S.Ct. 42, 43, 53 L.Ed. 126 (1908); Mansfield, C. & L. M.
R. Co. v. Swan, 111 U.S. 379, 382, 4 S.Ct. 510, 511, 28 L.Ed. 462 (1884).
In Lau v. Nichols, 414 U.S. 563, 94 S.Ct. 786, 39
L.Ed.2d 1 (1974), we did adjudicate a Title VI claim brought by a class of
individuals. But the existence of a private cause of action was not at issue.
In addition, the understanding of Mr. Justice STEWART's concurring opinion,
which observed that standing was not being contested, was that the standing
alleged by petitioners was as third‑party beneficiaries of the funding
contract between the Department of Health, Education, and Welfare and the San
Francisco United School District, a theory not alleged by the present
respondent. Id., at 571 n. 2, 94 S.Ct., at 790. Furthermore, the plaintiffs in Lau alleged jurisdiction
under 42 U.S.C. § 1983 rather than directly under the provisions of Title VI,
as does the plaintiff in this case. Although the Court undoubtedly had an
obligation to consider the jurisdictional question, this is surely not the
first instance in which the Court has bypassed a jurisdictional problem not presented
by the parties. Certainly the Court's silence on the jurisdictional question,
when considered in the context of the indifference of the litigants to it and
the fact that jurisdiction was alleged under § 1983, does not foreclose a
reasoned conclusion that Title VI affords no private cause of action.
A private
cause of action under Title VI, in terms both of *381 the Civil Rights Act as a
whole and that Title, would not be "consistent with the underlying
purposes of the legislative scheme" and would be contrary to the
legislative intent. Cort v. Ash, 422 U.S. 66, 78, 95 S.Ct. 2080, 2088, 45
L.Ed.2d 26 (1975). Title II, 42 U.S.C. § 2000a et seq., dealing with public
accommodations, and Title VII, 42 U.S.C. § 2000e et seq. (1970 ed. and Supp.
V), dealing with employment, proscribe private discriminatory conduct that as
of 1964 neither the Constitution nor other federal statutes had been construed
to forbid. Both Titles carefully provided for private actions as well as for
official participation in enforcement. Title III, 42 U.S.C. § 2000b et seq.,
and Title IV, 42 U.S.C. § 2000c et seq. (1970 ed. and Supp. V), dealing with
public facilities and public education, respectively, authorize suits by the
Attorney General to eliminate racial discrimination in these areas. Because
suits to end discrimination in public facilities and public education were
already available under 42 U.S.C. § 1983, it was, of course, unnecessary to
provide for private actions under Titles III and IV. But each Title carefully
provided that its provisions for public actions would not adversely affect pre‑existing
private remedies. §§ 2000b‑2 and 2000c‑8.
The role
of Title VI was to terminate federal financial support for public and private
institutions or programs that discriminated on the basis of race. Section 601,
42 **2795 U.S.C. § 2000d, imposed the proscription that no person, on the
grounds of race, color, or national origin, was to be excluded from or
discriminated against under any program or activity receiving federal financial
assistance. But there is no express provision for private actions to enforce
Title VI, and it would be quite incredible if Congress, after so carefully
attending to the matter of private actions in other Titles of the Act, intended
silently to create a private cause of action to enforce Title VI.
It is also
evident from the face of § 602, 42 U.S.C. § 2000d‑1, that Congress
intended the departments and agencies *382 to define and to refine, by rule or
regulation, the general proscription of § 601, subject only to judicial review
of agency action in accordance with established procedures. Section 602
provides for enforcement: Every federal department or agency furnishing
financial support is to implement the proscription by appropriate rule or
regulation, each of which requires approval by the President. Termination of
funding as a sanction for noncompliance is authorized, but only after a hearing
and after the failure of voluntary means to secure compliance. Moreover,
termination may not take place until the department or agency involved files
with the appropriate committees of the House and Senate a full written report
of the circumstances and the grounds for such action and 30 days have elapsed
thereafter. Judicial review was provided, at least for actions terminating
financial assistance.
Termination of funding was regarded by Congress as a serious
enforcement step, and the legislative history is replete with assurances that
it would not occur until every possibility for conciliation had been exhausted.
[FN2] To allow a private *383 individual to sue to cut off funds under Title VI
would compromise these assurances and short circuit the procedural
preconditions provided in Title VI. If the Federal Government may not cut off
funds except pursuant to an agency rule, approved by the President, and
presented to the appropriate committee of Congress for a layover period, and
after voluntary means to achieve compliance have failed, it is inconceivable
that Congress intended to permit individuals to circumvent these administrative
prerequisites themselves.
FN2. "Yet, before that principle [that
'Federal funds are not to be used to support racial discrimination'] is
implemented to the detriment of any person, agency, or State, regulations
giving notice of what conduct is required must be drawn up by the agency
administering the program. . . . Before such regulations become effective, they
must be submitted to and approved by the President.
"Once having become effective, there is still
a long road to travel before any sanction whatsoever is imposed. Formal action
to compel compliance can only take place after the following has occurred:
first, there must be an unsuccessful attempt to obtain voluntary compliance;
second, there must be an administrative hearing; third, a written report of the
circumstances and the grounds for such action must be filed with the
appropriate committees of the House and Senate; and fourth, 30 days must have
elapsed between such filing and the action denying benefits under a Federal
program. Finally, even that action is by no means final because it is subject to judicial review and can be
further postponed by judicial action granting temporary relief pending review
in order to avoid irreparable injury. It would be difficult indeed to concoct
any additional safeguards to incorporate in such a procedure." 110
Cong.Rec. 6749 (1964) (Sen. Moss).
"[T]he authority to cut off funds is hedged
about with a number of procedural restrictions. . . . [There follow details of
the preliminary steps.]
"In short, title VI is a reasonable,
moderate, cautious, carefully worked out solution to a situation that clearly
calls for legislative action." Id., at 6544 (Sen. Humphrey).
"Actually, no action whatsoever can be taken against anyone until the Federal
agency involved has advised the appropriate person of his failure to comply
with nondiscrimination requirements and until voluntary efforts to secure
compliance have failed." Id., at 1519 (Rep. Celler) (emphasis added). See
also remarks of Sen. Ribicoff (id., at 7066‑7067); Sen. Proxmire (id., at
8345); Sen. Kuchel (id., at 6562). These safeguards were incorporated into 42
U.S.C. § 2000d‑1.
Furthermore, although Congress intended Title VI to end federal
financial support for racially discriminatory policies of not only public but
also private institutions and programs, it is extremely unlikely that Congress,
**2796 without a word indicating that it intended to do so, contemplated
creating an independent, private statutory cause of action against all private
as well as public agencies that might be in violation of the section. There is
no doubt that Congress regarded private litigation as an important tool to
attack discriminatory practices. It does not at all follow, however, that
Congress anticipated new private actions under Title VI itself. Wherever a
discriminatory program was a public undertaking, such as a public school,
private remedies were already available under other statutes, and a private
remedy under Title VI was *384 unnecessary. Congress was well aware of this
fact. Significantly, there was frequent reference to Simkins v. Moses H. Cone
Memorial Hospital, 323 F.2d 959 (C.A.4 1963), cert. denied, 376 U.S. 938, 84
S.Ct. 793, 11 L.Ed.2d 659 (1964), throughout the congressional deliberations.
See, e. g., 110 Cong.Rec. 6544 (1964) (Sen. Humphrey). Simkins held that under
appropriate circumstances, the operation of a private hospital with
"massive use of public funds and extensive state‑ federal sharing in
the common plan" constituted "state action" for the purposes of
the Fourteenth Amendment. 323 F.2d, at 967. It was unnecessary, of course, to
create a Title VI private action against private discriminators where they were
already within the reach of existing private remedies. But when they were not‑‑and
Simkins carefully disclaimed holding that "every subvention by the federal
or state government automatically involves the beneficiary in 'state action,'
" ibid. [FN3]‑‑it is difficult *385 to believe that Congress
silently created a private remedy to terminate conduct that previously had been
entirely beyond the reach of federal law.
FN3. This Court has never held that the mere
receipt of federal or state funds is sufficient to make the recipient a federal
or state actor. In Norwood v. Harrison, 413 U.S. 455, 93 S.Ct. 2804, 37 L.Ed.2d
723 (1973), private schools that received state aid were held subject to the
Fourteenth Amendment's ban on discrimination, but the Court's test required
"tangible financial aid" with a "significant tendency to facilitate,
reinforce, and support private discrimination." Id., at 466, 93 S.Ct., at
2811. The mandate of Burton v. Wilmington Parking Authority, 365 U.S. 715, 722,
81 S.Ct. 856, 860, 6 L.Ed.2d 45 (1961), to sift facts and weigh circumstances
of governmental support in each case to determine whether private or state
action was involved, has not been abandoned for an automatic rule based on
receipt of funds.
Contemporaneous with the congressional debates on
the Civil Rights Act was this Court's
decision in Griffin v. School Board, 377 U.S. 218, 84 S.Ct. 1226, 12 L.Ed.2d
265 (1964). Tuition grants and tax concessions were provided for parents of
students in private schools, which discriminated racially. The Court found
sufficient state action, but carefully limited its holding to the circumstances
presented: "[C]losing the Prince Edward schools and meanwhile contributing
to the support of the private segregated white schools that took their place
denied petitioners the equal protection of the laws." Id., at 232, 84
S.Ct., at 1234.
Hence, neither at the time of the enactment of
Title VI, nor at the present time to the extent this Court has spoken, has mere
receipt of state funds created state action. Moreover, Simkins has not met with
universal approval among the United States Courts of Appeals. See cases cited
in Greco v. Orange Memorial Hospital Corp., 423 U.S. 1000, 1004, 96 S.Ct. 433,
435, 46 L.Ed.2d 376 (1975) (WHITE, J., dissenting from denial of certiorari).
For those
who believe, contrary to my views, that Title VI was intended to create a
stricter standard of color blindness than the Constitution itself requires, the
result of no private cause of action follows even more readily. In that case
Congress must be seen to have banned degrees of discrimination, as well as types
of discriminators, not previously reached by law. A Congress careful enough to
provide that existing private causes of action would be preserved (in Titles
III and IV) would not leave for inference a vast new extension of private
enforcement power. And a Congress so exceptionally concerned with the
satisfaction of procedural preliminaries before confronting fund recipients
with the choice of a cutoff or of stopping discriminating would not permit
private parties to pose precisely that same dilemma in a greatly widened
category of cases with no procedural requirements whatsoever.
Significantly, in at least three instances legislators who played
a major role in the **2797 passage of Title VI explicitly stated that a private
right of action under Title VI does not exist. [FN4] *386 As an
"indication of legislative intent, explicit or implicit, either to create
such a remedy or to deny one," Cort v. Ash, 422 U.S., at 78, 95 S.Ct., at
2088, clearer statements cannot be imagined, and under Cort, "an explicit
purpose to deny such cause of action [is] controlling." Id., at 82, 95
S.Ct., at 2090. Senator Keating, for example, proposed a private "right to
sue" for the "person suffering from discrimination"; but the
Department of Justice refused to include it, and the Senator acquiesced. [FN5]
These are not neutral, ambiguous statements. They indicate the absence of a
legislative intent to create a private remedy. Nor do any of these statements
make nice distinctions between a private cause of action to enjoin discrimination
and one to cut off funds, as Mr. Justice STEVENS and the three Justices who
join his opinion apparently would. See post, at 2814‑2815, n. 26. Indeed,
it would be odd if they did, since the practical effect of either type of
private cause of action would be identical. If private suits to enjoin conduct
allegedly violative of § 601 were permitted, recipients of federal funds would
be presented with the choice of either ending what the court, rather than the
agency, determined to be a discriminatory practice within the meaning of Title
VI or refusing federal funds and thereby escaping from the statute's
jurisdictional predicate. [FN6] This is precisely the same choice as would
confront recipients if suit were brought to cut off funds. Both types of actions
would equally jeopardize the administrative processes so carefully structured
into the law.
FN4. "Nowhere in this section do you find a
comparable right of legal action for a person who feels he has been denied his
rights to participate in the benefits of Federal funds. Nowhere. Only those who
have been cut off can go to court and present their claim." 110 Cong.Rec.
2467 (1964) (Rep. Gill).
"[A] good case could be made that a remedy is
provided for the State or local
official who is practicing discrimination, but none is provided for the victim
of the discrimination." Id., at 6562 (Sen. Kuchel).
"Parenthetically, while we favored the
inclusion of the right to sue on the part of the agency, the State, or the
facility which was deprived of Federal funds, we also favored the inclusion of
a provision granting the right to sue to the person suffering from
discrimination. This was not included in the bill. However, both the Senator
from Connecticut and I are grateful that our other suggestions were adopted by
the Justice Department." Id., at 7065 (Sen. Keating).
FN5. Ibid.
FN6. As Senator Ribicoff stated: "Sometimes
those eligible for Federal assistance may elect to reject such aid, unwilling
to agree to a nondiscrimination requirement. If they choose that course, the
responsibility is theirs." Id., at 7067.
*387 This Court has always required "that
the inference of such a private cause of action not otherwise authorized by the
statute must be consistent with the evident legislative intent and, of course,
with the effectuation of the purposes intended to be served by the Act."
National Railroad Passenger Corp. v. National Association of Railroad
Passengers, 414 U.S. 453, 458, 94 S.Ct. 690, 693, 38 L.Ed.2d 646 (1974). See
also Securities Investor Protection Corp. v. Barbour, 421 U.S. 412, 418‑420,
95 S.Ct. 1733, 1737‑1738, 44 L.Ed.2d 263 (1975). A private cause of
action under Title VI is unable to satisfy either prong of this test.
Because
each of my colleagues either has a different view or assumes a private cause of
action, however, the merits of the Title VI issue must be addressed. My views
in that regard, as well as my views with respect to the equal protection issue,
are included in the joint opinion that my Brothers BRENNAN, MARSHALL, and
BLACKMUN and I have filed. [FN7]
FN7. I also join Parts I, III‑A, and V‑C
of Mr. Justice POWELL's opinion.
Mr.
Justice MARSHALL.
I agree
with the judgment of the Court only insofar as it permits a university to
consider the race of an applicant in making admissions decisions. I do not
agree that petitioner's admissions program violates the **2798 Constitution.
For it must be remembered that, during most of the past 200 years, the
Constitution as interpreted by this Court did not prohibit the most ingenious
and pervasive forms of discrimination against the Negro. Now, when a State acts
to remedy the effects of that legacy of discrimination, I cannot believe that
this same Constitution stands as a barrier.
I
A
Three
hundred and fifty years ago, the Negro was dragged to this country in chains to
be sold into slavery. Uprooted from his homeland and thrust into bondage for
forced labor, *388 the slave was deprived of all legal rights. It was unlawful
to teach him to read; he could be sold away from his family and friends at the
whim of his master; and killing or maiming him was not a crime. The system of
slavery brutalized and dehumanized both master and slave. [FN1]
FN1. The history recounted here is perhaps too
well known to require documentation. But I must acknowledge the authorities on
which I rely in retelling it. J. Franklin, From Slavery to Freedom (4th ed.
1974) (hereinafter Franklin); R. Kluger, Simple Justice (1975) (hereinafter
Kluger); C. Woodward, The Strange Career of Jim Crow (3d ed. 1974) (hereinafter
Woodward).
The denial
of human rights was etched into the American Colonies' first attempts at
establishing self‑government. When the colonists determined to seek their
independence from England, they drafted a unique document cataloguing their
grievances against the King and proclaiming as "self‑evident"
that "all men are created equal" and are endowed "with certain
unalienable Rights," including those to "Life, Liberty and the
pursuit of Happiness." The self‑evident truths and the unalienable
rights were intended, however, to apply only to white men. An earlier draft of
the Declaration of Independence, submitted by Thomas Jefferson to the
Continental Congress, had included among the charges against the King that
"[h]e has waged cruel war against human nature
itself, violating its most sacred rights of life and liberty in the persons of
a distantpeople who never offended him, captivating and carrying them into
slavery in another hemisphere, or to incur miserable death in their
transportation thither." Franklin 88.
The
Southern delegation insisted that the charge be deleted; the colonists
themselves were implicated in the slave trade, and inclusion of this claim
might have made it more difficult to justify the continuation of slavery once
the ties to England were severed. Thus, even as the colonists embarked on a
*389 course to secure their own freedom and equality, they ensured perpetuation
of the system that deprived a whole race of those rights.
The
implicit protection of slavery embodied in the Declaration of Independence was
made explicit in the Constitution, which treated a slave as being equivalent to
three‑fifths of a person for purposes of apportioning representatives and
taxes among the States. Art. I, § 2. The Constitution also contained a clause
ensuring that the "Migration or Importation" of slaves into the
existing States would be legal until at least 1808, Art. I, § 9, and a fugitive
slave clause requiring that when a slave escaped to another State, he must be
returned on the claim of the master, Art. IV, § 2. In their declaration of the
principles that were to provide the cornerstone of the new Nation, therefore,
the Framers made it plain that "we the people," for whose protection
the Constitution was designed, did not include those whose skins were the wrong
color. As Professor John Hope Franklin has observed Americans "proudly
accepted the challenge and responsibility of their new political freedom by
establishing the machinery and safeguards that insured the continued
enslavement of blacks." Franklin 100.
The
individual States likewise established the machinery to protect the system of
slavery through the promulgation of the Slave **2799 Codes, which were designed
primarily to defend the property interest of the owner in his slave. The position
of the Negro slave as mere property was confirmed by this Court in Dred Scott
v. Sandford, 19 How. 393, 15 L.Ed. 691 (1857), Holding that the Missouri
Compromise‑‑which prohibited slavery in the portion of the
Louisiana Purchase Territory north of Missouri‑‑was
unconstitutional because it deprived slave owners of their property without due
process. The Court declared that under the Constitution a slave was property,
and "[t]he right to traffic in it, like an ordinary article of merchandise
and property, was guarantied to the citizens of the United *390 States . . .
." Id., at 451. The Court further concluded that Negroes were not intended
to be included as citizens under the Constitution but were "regarded as
beings of an inferior order . . . altogether unfit to associate with the white
race, either in social or political relations; and so far inferior, that they
had no rights which the white man was bound to respect . . . ." Id., at
407.
B
The status
of the Negro as property was officially erased by his emancipation at the end
of the Civil War. But the long‑awaited emancipation, while freeing the
Negro from slavery, did not bring him citizenship or equality in any meaningful
way. Slavery was replaced by a system of "laws which imposed upon the
colored race onerous disabilities and burdens, and curtailed their rights in
the pursuit of life, liberty, and property to such an extent that their freedom
was of little value." Slaughter‑House Cases, 16 Wall. 36, 70, 21
L.Ed. 394 (1873). Despite the passage of the Thirteenth, Fourteenth, and
Fifteenth Amendments, the Negro was systematically denied the rights those
Amendments were supposed to secure. The combined actions and inactions of the
State and Federal Governments maintained Negroes in a position of legal
inferiority for another century after the Civil War.
The
Southern States took the first steps to re‑enslave the Negroes.
Immediately following the end of the Civil War, many of the provisional
legislatures passed Black Codes, similar to the Slave Codes, which, among other
things, limited the rights of Negroes to own or rent property and permitted
imprisonment for breach of employment contracts. Over the next several decades,
the South managed to disenfranchise the Negroes in spite of the Fifteenth Amendment
by various techniques, including poll taxes, deliberately complicated balloting
processes, property and literacy qualifications, and finally the white primary.
Congress
responded to the legal disabilities being imposed *391 in the Southern States
by passing the Reconstruction Acts and the Civil Rights Acts. Congress also
responded to the needs of the Negroes at the end of the Civil War by
establishing the Bureau of Refugees, Freedmen, and Abandoned Lands, better
known as the Freedmen's Bureau, to supply food, hospitals, land, and education
to the newly freed slaves. Thus, for a time it seemed as if the Negro might be
protected from the continued denial of his civil rights and might be relieved
of the disabilities that prevented him from taking his place as a free and
equal citizen.
That time,
however, was short‑lived. Reconstruction came to a close, and, with the
assistance of this Court, the Negro was rapidly stripped of his new civil
rights. In the words of C. Vann Woodward: "By narrow and ingenious
interpretation [the Supreme Court's] decisions over a period of years had
whittled away a great part of the authority presumably given the government for
protection of civil rights." Woodward 139.
The Court
began by interpreting the Civil War Amendments in a manner that sharply
curtailed their substantive protections. See, e. g., Slaughter‑ House
Cases, supra; United States v. Reese, 92 U.S. 214, 23 L.Ed. 563 (1876); United
States v. Cruikshank, 92 U.S. 542, 23 L.Ed. 588 (1876). Then in the notorious
Civil Rights Cases, 109 U.S. 3, 3 S.Ct. 18, 27 L.Ed. 835 (1883), **2800 the
Court strangled Congress' efforts to use its power to promote racial equality.
In those cases the Court invalidated sections of the Civil Rights Act of 1875
that made it a crime to deny equal access to "inns, public conveyances,
theatres and other places of public amusement." Id., at 10, 3 S.Ct., at
20. According to the Court, the Fourteenth Amendment gave Congress the power to
proscribe only discriminatory action by the State. The Court ruled that the
Negroes who were excluded from public places suffered only an invasion of their
social rights at the hands of private individuals, and Congress had no power to
remedy that. Id., at24‑25, 3 S.Ct., at 31. "When a man has emerged
from slavery, and by the aid of beneficent legislation has shaken off the
inseparable concomitants of that *392 state," the Court concluded,
"there must be some stage in the progress of his elevation when he takes
the rank of a mere citizen, and ceases to be the special favorite of the laws .
. . ." Id., at 25, 3 S.Ct., at 31. As Mr. Justice Harlan noted in dissent,
however, the Civil War Amendments and Civil Rights Acts did not make the
Negroes the "special favorite" of the laws but instead "sought
to accomplish in reference to that race . . .‑‑what had already
been done in every State of the Union for the white race‑‑to secure
and protect rights belonging to them as freemen and citizens; nothing
more." Id., at 61, 3 S.Ct., at 57.
The
Court's ultimate blow to the Civil War Amendments and to the equality of
Negroes came in Plessy v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256
(1896). In upholding a Louisiana law that required railway companies to provide
"equal but separate" accommodations for whites and Negroes, the Court
held that the Fourteenth Amendment was not intended "to abolish
distinctions based upon color, or to enforce social, as distinguished from
political equality, or a commingling of the two races upon terms unsatisfactory
to either." Id., at 544, 16 S.Ct., at 1140. Ignoring totally the realities
of the positions of the two races, the Court remarked:
"We consider the underlying fallacy of the
plaintiff's argument to consist in the assumption that the enforced separation
of the two races stamps the colored race with a badge of inferiority. If this
be so, it is not by reason of anything found in the act, but solely because the
colored race chooses to put that construction upon it." Id., at 551, 16
S.Ct., at 1143.
Mr.
Justice Harlan's dissenting opinion recognized the bankruptcy of the Court's
reasoning. He noted that the "real meaning" of the legislation was
"that colored citizens are so inferior and degraded that they cannot be
allowed to sit in public coaches occupied by white citizens." Id., at 560,
16 S.Ct., at 1147. He expressed his fear that if like laws were enacted in
other *393 States, "the effect would be in the highest degree
mischievous." Id., at 563, 16 S.Ct., at 1148. Although slavery would have
disappeared, the States would retain the power "to interfere with the full
enjoyment of the blessings of freedom; to regulate civil rights, common to all
citizens, upon the basis of race; and to place in a condition of legal
inferiority a large body of American citizens . . . ." Ibid.
The fears
of Mr. Justice Harlan were soon to be realized. In the wake of Plessy, many
States expanded their Jim Crow laws, which had up until that time been limited
primarily to passenger trains and schools. The segregation of the races was
extended to residential areas, parks, hospitals, theaters, waiting rooms, and
bathrooms. There were even statutes and ordinances which authorized separate
phone booths for Negroes and whites, which required that textbooks used by
children of one race be kept separate from those used by the other, and which
required that Negro and white prostitutes be kept in separate districts. In
1898, after Plessy, the Charlestown News and Courier printed a parody of Jim
Crow laws:
" 'If there must be Jim Crow cars on the
railroads, there should be Jim Crow cars on the street railways. Also on all
passenger boats. . . . If there are to be **2801 Jim Crow cars, moreover, there
should be Jim Crow waiting saloons at all stations, and Jim Crow eating houses.
. . . There should be Jim Crow sections of the jury box, and a separate Jim
Crow dock and witness stand in every court‑‑and a Jim Crow Bible
for colored witnesses to kiss.' " Woodward 68.
The irony
is that before many years had passed, with the exception of the Jim Crow
witness stand, "all the improbable applications of the principle suggested
by the editor in derision had been put into practice‑‑down to and
including the Jim Crow Bible." Id., at 69.
Nor were
the laws restricting the rights of Negroes limited *394 solely to the Southern
States. In many of the Northern States, the Negro was denied the right to vote,
prevented from serving on juries, and excluded from theaters, restaurants,
hotels, and inns. Under President Wilson, the Federal Government began to
require segregation in Government buildings; desks of Negro employees were
curtained off; separate bathrooms and separate tables in the cafeterias were
provided; and even the galleries of the Congress were segregated. When his
segregationist policies were attacked, President Wilson responded that
segregation was " 'not humiliating but a benefit' " and that he was
" 'rendering [the Negroes] more safe in their possession of office and
less likely to be discriminated against.' " Kluger 91.
The
enforced segregation of the races continued into the middle of the 20th
century. In both World Wars, Negroes were for the most part confined to
separate military units; it was not until 1948 that an end to segregation in
the military was ordered by President Truman. And the history of the exclusion
of Negro children from white public schools is too well known and recent to
require repeating here. That Negroes were deliberately excluded from public
graduate and professional schools‑‑and thereby denied the
opportunity to become doctors, lawyers, engineers, and the like‑‑is
also well established. It is of course true that some of the Jim Crow laws
(which the decisions of this Court had helped to foster) were struck down by
this Court in a series of decisions leading up to Brown v. Board of Education,
347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954). See, e. g., Morgan v.
Virginia, 328 U.S. 373, 66 S.Ct. 1050, 90 L.Ed. 1317 (1946); Sweatt v. Painter,
339 U.S. 629, 70 S.Ct. 848, 94 L.Ed. 1114 (1950); McLaurin v. Oklahoma State
Regents, 339 U.S. 637, 70 S.Ct. 851, 94 L.Ed. 1149 (1950). Those decisions,
however, did not automatically end segregation, nor did they move Negroes from
a position of legal inferiority to one of equality. The legacy of years of
slavery and of years of second‑class citizenship in the wake of
emancipation could not be so easily eliminated.
*395 II
The
position of the Negro today in America is the tragic but inevitable consequence
of centuries of unequal treatment. Measured by any benchmark of comfort or
achievement, meaningful equality remains a distant dream for the Negro.
A Negro
child today has a life expectancy which is shorter by more than five years than
that of a white child. [FN2] The Negro child's mother is over three times more
likely to die of complications in childbirth, [FN3] and the infant mortality
rate for Negroes is nearly twice that for whites. [FN4] The median income of
the Negro family is only 60% that of the median of a white family, [FN5] and
the percentage of Negroes who live in families with incomes below the poverty
line is nearly four times greater than that of whites. [FN6]
FN2. U. S. Dept. of Commerce, Bureau of the
Census, Statistical Abstract of the United States 65 (1977) (Table 94).
FN3. Id., at 70 (Table 102).
FN4. Ibid.
FN5. U. S. Dept. of Commerce, Bureau of the
Census, Current Population Reports, Series P‑60, No. 107, p. 7 (1977)
(Table 1).
FN6. Id., at 20 (Table 14).
**2802
When the Negro child reaches working age, he finds that America offers him
significantly less than it offers his white counterpart. For Negro adults, the
unemployment rate is twice that of whites, [FN7] and the unemployment rate for
Negro teenagers is nearly three times that of white teenagers. [FN8] A Negro
male who completes four years of college can expect a median annual income of
merely $110 more than a white male who has only a high school diploma. [FN9]
Although Negroes *396 represent 11.5% of the population, [FN10] they are only
1.2% of the lawyers, and judges, 2% of the physicians, 2.3% of the dentists,
1.1% of the engineers and 2.6% of the college and university professors. [FN11]
FN7. U. S. Dept. of Labor, Bureau of Labor
Statistics, Employment and Earnings, January 1978, p. 170 (Table 44).
FN8. Ibid.
FN9. U. S. Dept. of Commerce, Bureau of the
Census, Current Population Reports, Series P‑60, No. 105, p. 198 (1977)
(Table 47).
FN10. U. S. Dept. of Commerce, Bureau of the
Census, Statistical Abstract, supra, at 25 (Table 24).
FN11. Id., at 407‑408 (Table 662) (based on
1970 census).
The
relationship between those figures and the history of unequal treatment
afforded to the Negro cannot be denied. At every point from birth to death the
impact of the past is reflected in the still disfavored position of the Negro.
In light
of the sorry history of discrimination and its devastating impact on the lives
of Negroes, bringing the Negro into the mainstream of American life should be a
state interest of the highest order. To fail to do so is to ensure that America
will forever remain a divided society.
III
I do not
believe that the Fourteenth Amendment requires us to accept that fate. Neither
its history nor our past cases lend any support to the conclusion that a
university may not remedy the cumulative effects of society's discrimination by
giving consideration to race in an effort to increase the number and percentage
of Negro doctors.
A
This Court
long ago remarked that
"in any fair and just construction of any
section or phrase of these [Civil War] amendments, it is necessary to look to
the purpose which we have said was the pervading spirit of them all, the evil
which they were designed to remedy . . .." Slaughter‑House Cases, 16
Wall., at 72.
It is
plain that the Fourteenth Amendment was not intended to prohibit measures
designed to remedy the effects of the *397 Nation's past treatment of Negroes.
The Congress that passed the Fourteenth Amendment is the same Congress that
passed the 1866 Freedmen's Bureau Act, an Act that provided many of its
benefits only to Negroes. Act of July 16, 1866, ch. 200, 14 Stat. 173; see
supra, at 2800. Although the Freedmen's Bureau legislation provided aid for
refugees, thereby including white persons within some of the relief measures,
14 Stat. 174; see also Act of Mar. 3, 1865, ch. 90, 13 Stat. 507, the bill was
regarded, to the dismay of many Congressmen, as "solely and entirely for
the freedmen, and to the exclusion of all other persons . . .."
Cong.Globe, 39th Cong., 1st Sess., 544 (1866) (remarks of Rep. Taylor). See
also id., at 634‑635 (remarks of Rep. Ritter); id., at App. 78, 80‑81
(remarks of Rep. Chanler). Indeed, the bill was bitterly opposed on the ground
that it "undertakes to make the negro in some respects . . . superior . .
. and gives them favors that the poor white boy in the North cannot get."
Id., at 401 (remarks of Sen. McDougall). See also id., at 319 (remarks of Sen.
Hendricks); id., at 362 (remarks of Sen. Saulsbury); id., at 397 (remarks of
Sen. Willey); id., at 544 (remarks of Rep. Taylor). The bill's supporters
defended it‑‑not by rebutting the claim of special treatment‑‑but
by pointing to the need for such treatment:
**2803 "The very discrimination it makes
between 'destitute and suffering' negroes, and destitute and suffering white
paupers, proceeds upon the distinction that, in the omitted case, civil rights
and immunities are already sufficiently protected by the possession of
political power, the absence of which in the case provided for necessitates
governmental protection." Id., at App. 75 (remarks of Rep. Phelps).
Despite
the objection to the special treatment the bill would provide for Negroes, it
was passed by Congress. Id., at 421, 688. President Johnson vetoed this bill
and also a subsequent bill that contained some modifications; one of his
principal *398 objections to both bills was that they gave special benefits to
Negroes. 8 Messages and Papers of the Presidents 3596, 3599, 3620, 3623 (1897).
Rejecting the concerns of the President and the bill's opponents, Congress
overrode the President's second veto. Cong.Globe, 39th Cong., 1st Sess., 3842,
3850 (1866).
Since the
Congress that considered and rejected the objections to the 1866 Freedmen's
Bureau Act concerning special relief to Negroes also proposed the Fourteenth
Amendment, it is inconceivable that the Fourteenth Amendment was intended to
prohibit all race‑conscious relief measures. It "would be a
distortion of the policy manifested in that amendment, which was adopted to
prevent state legislation designed to perpetuate discrimination on the basis of
race or color." Railway Mail Assn. v. Corsi, 326 U.S. 88, 94, 65 S.Ct.
1483, 1487, 89 L.Ed. 2072 (1945), to hold that it barred state action to remedy
the effects of that discrimination. Such a result would pervert the intent of
the Framers by substituting abstract equality for the genuine equality the
Amendment was intended to achieve.
B
As has
been demonstrated in our joint opinion, this Court's past cases establish the
constitutionality of race‑conscious remedial measures. Beginning with the
school desegregation cases, we recognized that even absent a judicial or
legislative finding of constitutional violation, a school board
constitutionally could consider the race of students in making school‑
assignment decisions. See Swann v. Charlotte‑Mecklenburg Board of
Education, 402 U.S. 1, 16, 91 S.Ct. 1267, 1276, 28 L.Ed.2d 554 (1971); McDaniel
v. Barresi, 402 U.S. 39, 41, 91 S.Ct. 1287, 1288, 28 L.Ed.2d 582 (1971). We
noted, moreover, that a
"flat prohibition against assignment of
students for the purpose of creating a racial balance must inevitably conflict
with the duty of school authorities to disestablish dual school systems. As we
have held in Swann, the Constitution does not compel any particular degree of
*399 racial balance or mixing, but when past and continuing constitutional
violations are found, some ratios are likely to be useful as starting points in
shaping a remedy. An absolute prohibition against use of such a device‑‑even
as a starting point‑‑ contravenes the implicit command of Green v.
County School Board, 391 U.S. 430 [88 S.Ct. 1689, 20 L.Ed.2d 716] (1968), that
all reasonable methods be available to formulate an effective remedy."
Board of Education v. Swann, 402 U.S. 43, 46, 91 S.Ct. 1284, 1286, 28 L.Ed.2d
586 (1971).
As we have
observed, "[a]ny other approach would freeze the status quo that is the
very target of all desegregation processes." McDaniel v. Barresi, supra,
402 U.S. at 41, 91 S.Ct. at 1289.
Only last
Term, in United Jewish Organizations v. Carey, 430 U.S. 144, 97 S.Ct. 996, 51
L.Ed. 229 (1977), we upheld a New York reapportionment plan that was
deliberately drawn on the basis of race to enhance the electoral power of
Negroes and Puerto Ricans; the plan had the effect of diluting the electoral
strength of the Hasidic Jewish community. We were willing in UJO to sanction
the remedial use of a racial classification even though it disadvantaged
otherwise "innocent" individuals. In another case last Term, Califano
v. Webster, 430 **2804 U.S. 313, 97 S.Ct. 1192, 51 L.Ed.2d 360 (1977), the
Court upheld a provision in the Social Security laws that discriminated against
men because its purpose was " 'the permissible one of redressing our
society's longstanding disparate treatment of women.' " Id., at 317, 97
S.Ct. at 1195, quotingCalifano v. Goldfarb, 430 U.S. 199, 209 n. 8, 97 S.Ct.
1021, 1028, 51 L.Ed.2d 270 (1977) (plurality opinion). We thus recognized the
permissibility of remedying past societal discrimination through the use of
otherwise disfavored classifications.
Nothing in
those cases suggests that a university cannot similarly act to remedy past
discrimination. [FN12] It is true that *400 in both UJO and Webster the use of
the disfavored classification was predicated on legislative or administrative
action, but in neither case had those bodies made findings that there had been
constitutional violations or that the specific individuals to be benefited had
actually been the victims of discrimination. Rather, the classification in each
of those cases was based on a determination that the group was in need of the
remedy because of some type of past discrimination. There is thus ample support
for the conclusion that a university can employ race‑conscious measures
to remedy past societal discrimination, without the need for a finding that
those benefited were actually victims of that discrimination.
FN12. Indeed, the action of the University finds
support in the regulations promulgated under Title VI by the Department of
Health, Education, and Welfare and approved by the President, which authorize a
federally funded institution to take affirmative steps to overcome past
discrimination against groups even where the institution was not guilty of
prior discrimination. 45 CFR § 80.3(b)(6)(ii) (1977).
IV
While I
applaud the judgment of the Court that a university may consider race in its
admissions process, it is more than a little ironic that, after several hundred
years of class‑based discrimination against Negroes, the Court is
unwilling to hold that a class‑based remedy for that discrimination is
permissible. In declining to so hold, today's judgment ignores the fact that
for several hundred years Negroes have been discriminated against, not as
individuals, but rather solely because of the color of their skins. It is
unnecessary in 20th‑century America to have individual Negroes
demonstrate that they have been victims of racial discrimination; the racism of
our society has been so pervasive that none, regardless of wealth or position,
has managed to escape its impact. The experience of Negroes in America has been
different in kind, not just in degree, from that of other ethnic groups. It is
not merely the history of slavery alone but also that a whole people were
marked as inferior by the law. And that mark has endured. The dream of America
as the great melting pot has *401 not been realized for the Negro; because of
his skin color he never even made it into the pot.
These
differences in the experience of the Negro make it difficult for me to accept
that Negroes cannot be afforded greater protection under the Fourteenth Amendment
where it is necessary to remedy the effects of past discrimination. In the
Civil Rights Cases, supra, the Court wrote that the Negro emerging from slavery
must cease "to be the special favorite of the laws." 109 U.S., at 25,
3 S.Ct., at 31, see supra, at 2800. We cannot in light of the history of the
last century yield to that view. Had the Court in that decision and others been
willing to "do for human liberty and the fundamental rights of American
citizenship, what it did . . . for the protection of slavery and the rights of
the masters of fugitive slaves," 109 U.S., at 53, 3 S.Ct., at 51 (Harlan,
J., dissenting), we would not need now to permit the recognition of any
"special wards."
Most
importantly, had the Court been willing in 1896, in Plessy v. Ferguson, to hold
that the Equal Protection Clause forbids differences in treatment based on
race, we would not be faced with this dilemma in 1978. We must remember,
however, that **2805 the principle that the "Constitution is color‑blind"
appeared only in the opinion of the lone dissenter. 163 U.S., at 559, 16 S.Ct.,
at 1146. The majority of the Court rejected the principle of color‑blindness,
and for the next 58 years, from Plessy to Brown v. Board of Education, ours was
a Nation where, by law, an individual could be given "special"
treatment based on the color of his skin.
It is
because of a legacy of unequal treatment that we now must permit the
institutions of this society to give consideration to race in making decisions
about who will hold the positions of influence, affluence, and prestige in
America. For far too long, the doors to those positions have been shut to
Negroes. If we are ever to become a fully integrated society, one in which the
color of a person's skin will not determine the opportunities available to him
or her, we must be willing *402 to take steps to open those doors. I do not
believe that anyone can truly look into America's past and still find that a
remedy for the effects of that past is impermissible.
It has
been said that this case involves only the individual, Bakke, and this
University. I doubt, however, that there is a computer capable of determining
the number of persons and institutions that may be affected by the decision in
this case. For example, we are told by the Attorney General of the United
States that at least 27 federal agencies have adopted regulations requiring
recipients of federal funds to take " 'affirmative action to overcome the
effects of conditions which resulted in limiting participation . . . by persons
of a particular race, color, or national origin.' " Supplemental Brief for
United States as Amicus Curiae 16 (emphasis added). I cannot even guess the
number of state and local governments that have set up affirmative‑action
programs, which may be affected by today's decision.
I fear
that we have come full circle. After the Civil War our Government started
several "affirmative action" programs. This Court in the Civil Rights
Cases and Plessy v. Ferguson destroyed the movement toward complete equality.
For almost a century no action was taken, and this nonaction was with the tacit
approval of the courts. Then we had Brown v. Board of Education and the Civil
Rights Acts of Congress, followed by numerous affirmative‑action
programs. Now, we have this Court again stepping in, this time to stop
affirmative‑action programs of the type used by the University of
California.
Mr.
Justice BLACKMUN.
I
participate fully, of course, in the opinion, ante, p. 2766, that bears the
names of my Brothers BRENNAN, WHITE, MARSHALL, and myself. I add only some
general observations that hold particular significance for me, and then a few
comments on equal protection.
*403 I
At least
until the early 1970's, apparently only a very small number, less than 2%, of
the physicians, attorneys, and medical and law students in the United States
were members of what we now refer to as minority groups. In addition,
approximately three‑fourths of our Negro physicians were trained at only
two medical schools. If ways are not found to remedy that situation, the
country can never achieve its professed goal of a society that is not race
conscious.
I yield to
no one in my earnest hope that the time will come when an "affirmative
action" program is unnecessary and is, in truth, only a relic of the past.
I would hope that we could reach this stage within a decade at the most. But
the story of Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed.
873 (1954), decided almost a quarter of a century ago, suggests that that hope is
a slim one. At some time, however, beyond any period of what some would claim
is only transitional inequality, the United States must and will reach a stage
of maturity where action along this line is no longer necessary. Then persons
will be regarded as persons, and discrimination **2806 of the type we address
today will be an ugly feature of history that is instructive but that is behind
us.
The number
of qualified, indeed highly qualified, applicants for admission to existing
medical schools in the United States far exceeds the number of places
available. Wholly apart from racial and ethnic considerations, therefore, the
selection process inevitably results in the denial of admission to many
qualified persons, indeed, to far more than the number of those who are granted
admission. Obviously, it is a denial to the deserving. This inescapable fact is
brought into sharp focus here because Allan Bakke is not himself charged with
discrimination and yet is the one who is disadvantaged, and because the Medical
School of the University of California at Davis itself is not charged with
historical discrimination.
One
theoretical solution to the need for more minority *404 members in higher
education would be to enlarge our graduate schools. Then all who desired and
were qualified could enter, and talk of discrimination would vanish.
Unfortunately, this is neither feasible nor realistic. The vast resources that
apparently would be required simply are not available. And the need for more
professional graduates, in the strict numerical sense, perhaps has not been
demonstrated at all.
There is
no particular or real significance in the 84‑16 division at Davis. The
same theoretical, philosophical, social, legal, and constitutional
considerations would necessarily apply to the case if Davis' special admissions
program had focused on any lesser number, that is, on 12 or 8 or 4 places or,
indeed, on only 1.
It is
somewhat ironic to have us so deeply disturbed over a program where race is an
element of consciousness, and yet to be aware of the fact, as we are, that
institutions of higher learning, albeit more on the undergraduate than the
graduate level, have given conceded preferences up to a point to those
possessed of athletic skills, to the children of alumni, to the affluent who
may bestow their largess on the institutions, and to those having connections
with celebrities, the famous, and the powerful.
Programs
of admission to institutions of higher learning are basically a responsibility
for academicians and for administrators and the specialists they employ. The
judiciary, in contrast, is ill‑equipped and poorly trained for this. The
administration and management of educational institutions are beyond the
competence of judges and are within the special competence of educators,
provided always that the educators perform within legal and constitutional
bounds. For me, therefore, interference by the judiciary must be the rare
exception and not the rule.
II
I, of
course, accept the propositions that (a) Fourteenth Amendment rights are
personal; (b) racial and ethnic distinctions *405 where they are stereotypes
are inherently suspect and call for exacting judicial scrutiny; (c) academic
freedom is a special concern of the First Amendment; and (d) the Fourteenth
Amendment has expanded beyond its original 1868 concept and now is recognized
to have reached a point where, as Mr. Justice POWELL states, ante, at 2750,
quoting from the Court's opinion in McDonald v. Santa Fe Trail Transp. Co., 427
U.S. 273, 296, 96 S.Ct. 2574, 2586, 49 L.Ed.2d 493 (1976), it embraces a
"broader principle."
This
enlargement does not mean for me, however, that the Fourteenth Amendment has
broken away from its moorings and its original intended purposes. Those
original aims persist. And that, in a distinct sense, is what "affirmative
action," in the face of proper facts, is all about. If this conflicts with
idealistic equality, that tension is original Fourteenth Amendment tension,
constitutionally conceived and constitutionally imposed, and it is part of the
Amendment's very nature until complete equality is achieved in the area. In
this sense, constitutional equal protection is a shield.
I
emphasize in particular that the decided cases are not easily to be brushed
aside. **2807 Many, of course, are not precisely on point, but neither are they
off point. Racial factors have been given consideration in the school
desegregation cases, in the employment cases, in Lau v. Nichols, 414 U.S. 563,
94 S.Ct. 786, 39 L.Ed.2d 1 (1974), and in United Jewish Organizations v. Carey,
430 U.S. 144, 97 S.Ct. 996, 51 L.Ed.2d 229 (1977). To be sure, some of these
may be "distinguished" on the ground that victimization was directly
present. But who is to say that victimization is not present for some members
of today's minority groups, although it is of a lesser and perhaps different
degree. The petitioners in United Jewish Organizations certainly complained
bitterly of their reapportionment treatment, and I rather doubt that they
regard the "remedy" there imposed as one that was "to
improve" the group's ability to participate, as Mr. Justice POWELL
describes it, ante, at 2756. And surely in Lau v. Nichols we looked to
ethnicity.
*406 I am not convinced, as Mr. Justice POWELL
seems to be, that the difference between the Davis program and the one employed
by Harvard is very profound or constitutionally significant. The line between
the two is a thin and indistinct one. In each, subjective application is at
work. Because of my conviction that admission programs are primarily for the
educators, I am willing to accept the representation that the Harvard program
is one where good faith in its administration is practiced as well as
professed. I agree that such a program, where race or ethnic background is only
one of many factors, is a program better formulated than Davis' two‑track
system. The cynical, of course, may say that under a program such as Harvard's
one may accomplish covertly what Davis concedes it does openly. I need not go
that far, for despite its two‑track aspect, the Davis program, for me, is
within constitutional bounds, though perhaps barely so. It is surely free of
stigma, and, as in United Jewish Organizations, I am not willing to infer a
constitutional violation.
It is
worth noting, perhaps, that governmental preference has notbeen a stranger to
our legal life. We see it in veterans' preferences. We see it in the aid‑to‑the‑handicapped
programs. We see it in the progressive income tax. We see it in the Indian
programs. We may excuse some of these on the ground that they have specific
constitutional protection or, as with Indians, that those benefited are wards
of the Government. Nevertheless, these preferences exist and may not be
ignored. And in the admissions field, as I have indicated, educational institutions
have always used geography, athletic ability, anticipated financial largess,
alumni pressure, and other factors of that kind.
I add
these only as additional components on the edges of the central question as to
which I join my Brothers BRENNAN, WHITE, and MARSHALL in our more general
approach. It is gratifying to know that the Court at least finds it
constitutional for an academic institution to take race and ethnic background
into consideration as one factor, among many, in *407 the administration of its
admissions program. I presume that that factor always has been there, though
perhaps not conceded or even admitted. It is a fact of life, however, and a
part of the real world of which we are all a part. The sooner we get down the
road toward accepting and being a part of the real world, and not shutting it
out and away from us, the sooner will these difficulties vanish from the scene.
I suspect
that it would be impossible to arrange an affirmative‑action program in a
racially neutral way and have it successful. To ask that this be so is to
demand the impossible. In order to get beyond racism, we must first take
account of race. There is no other way. And in order to treat some persons
equally, we must treat them differently. We cannot‑‑we dare not‑‑let
the Equal Protection Clause perpetuate racial supremacy.
So the
ultimate question, as it was at the beginning of this litigation, is: Among the
qualified, how does one choose?
**2808 A
long time ago, as time is measured for this Nation, a Chief Justice, both wise
and farsighted, said:
"In considering this question, then, we must
never forget, that it is a constitution we are expounding." McCulloch v.
Maryland, 4 Wheat. 316, 407, 4 L.Ed. 579 (1819) (emphasis in original).
In the
same opinion, the Great Chief Justice further observed:
"Let the end be legitimate, let it be within
the scope of the constitution, and all means which are appropriate, which are
plainly adapted to that end, which are not prohibited, but consist with the
letter and spirit of the constitution, are constitutional." Id., at 421.
More
recently, one destined to become a Justice of this Court observed:
"The great generalities of the constitution
have a content and a significance that vary from age to age." B. Cardozo,
The Nature of the Judicial Process 17 (1921). *408 And an educator who became a
President of the United States said:
"But the Constitution of the United States is
not a mere lawyers' document: it is a vehicle of life, and its spirit is always
the spirit of the age." W. Wilson, Constitutional Government in the United
States 69 (1911).
These
precepts of breadth and flexibility and ever‑present modernity are basic
to our constitutional law. Today, again, we are expounding a Constitution. The
same principles that governed McCulloch's case in 1819 govern Bakke's case in
1978. There can be no other answer.
Mr.
Justice STEVENS, with whom THE CHIEF JUSTICE, Mr. Justice STEWART, and Mr.
Justice REHNQUIST join, concurring in the judgment in part and dissenting in
part.
It is
always important at the outset to focus precisely on the controversy before the
Court. [FN1] It is particularly important to do so in this case because correct
identification of the issues will determine whether it is necessary or
appropriate to express any opinion about the legal status of any admissions
program other than petitioner's.
FN1. Four Members of the Court have undertaken to
announce the legal and constitutional effect of this Court's judgment. See
opinion of Justices BRENNAN,
WHITE, MARSHALL, and BLACKMUN, ante, at 2766. It is hardly necessary to state
that only a majority can speak for the Court or determine what is the
"central meaning" of any judgment of the Court.
I
This is
not a class action. The controversy is between two specific litigants. Allan
Bakke challenged petitioner's special admissions program, claiming that it
denied him a place in medical school because of his race in violation of the
Federal and California Constitutions and of Title VI of the Civil Rights Act of
1964, 42 U.S.C. § 2000d et seq. The California Supreme Court upheld his
challenge and ordered him admitted. If the *409 state court was correct in its
view that the University's special program was illegal, and that Bakke was
therefore unlawfully excluded from the Medical School because of his race, we
should affirm its judgment, regardless of our views about the legality of
admissions programs that are not now before the Court.
The
judgment as originally entered by the trial court contained four separate
paragraphs, two of which are of critical importance. [FN2] Paragraph 3 declared
that the University's **2809 special admissions program violated the Fourteenth
Amendment, the State Constitution, and Title VI. The trial court did not order
the University to admit Bakke because it concluded that Bakke had not shown
that he would have been admitted if there had been no special program. Instead,
in paragraph 2 of its judgment it ordered the University to consider Bakke's
application for admission without regard to his race or the race of any other
applicant. The order did not include any broad *410 prohibition against any use
of race in the admissions process; its terms were clearly limited to the
University's consideration of Bakke's application. [FN3] Because the University
has since been ordered to admit Bakke paragraph 2 of the trial court's order no
longer has any significance.
FN2. The judgment first entered by the trial court
read, in its entirety, as follows:
"IT IS HEREBY ORDERED, ADJUDGED AND DECREED:
"1. Defendant, the Regents of the University
of California, have judgment against plaintiff, Allan Bakke, denying the
mandatory injunction requested by plaintiff ordering his admission to the
University of California at Davis Medical School;
"2. That plaintiff is entitled to have his
application for admission to the medical school considered without regard to
his race or the race of any other applicant, and defendants are hereby
restrained and enjoined from
considering plaintiff's race or the race of any other applicant in passing upon
his application for admission;
"3. Cross‑defendant Allan Bakke have
judgment against cross‑complainant, the Regents of the University of
California, declaring that the special admissions program at the University of
California at Davis Medical School violates the Fourteenth Amendment to the
United States Constitution, Article 1, Section 21 of the California
Constitution, and the Federal Civil Rights Act [42 U.S.C. § 2000d];
"4. That plaintiff have and recover his court
costs incurred herein in the sum of $217.35." App. to Pet. for Cert. 120a.
FN3. In paragraph 2 the trial court ordered that
"plaintiff [Bakke] is entitled to have his application for admission to
the medical school considered without regard to his race or the race of any
other applicant, and defendants are hereby restrained and enjoined from
considering plaintiff's race or the race of any other applicant in passing upon
his application for admission." See n. 2, supra (emphasis added). The only
way in which this order can be broadly read as prohibiting any use of race in
the admissions process, apart from Bakke's application, is if the final
"his" refers to "any other applicant." But the consistent
use of the pronoun throughout the
paragraph to refer to Bakke makes such a reading entirely unpersuasive, as does
the failure of the trial court to suggest that it was issuing relief to
applicants who were not parties to the suit.
The
California Supreme Court, in a holding that is not challenged, ruled that the
trial court incorrectly placed the burden on Bakke of showing that he would
have been admitted in the absence of discrimination. The University then
conceded "that it [could] not meet the burden of proving that the special
admissions program did not result in Mr. Bakke's failure to be admitted."
[FN4] Accordingly, the California Supreme Court directed the trial court to
enter judgment ordering Bakke's admission. [FN5] Since that order superseded
paragraph *411 2 of the trial court's judgment, there is no outstanding
injunction forbidding any consideration of racial criteria in processing
applications.
FN4. Appendix B to Application for Stay A19‑A20.
FN5. 18 Cal.3d 34, 64, 132 Cal.Rptr. 680, 700, 553
P.2d 1152, 1172 (1976). The judgment of the Supreme Court of the State of
California affirms only paragraph 3 of the trial court's judgment. The Supreme Court's judgment reads as follows:
"IT IS ORDERED, ADJUDGED, AND DECREED by the
Court that the judgment of the Superior Court[,] County of Yolo[,] in the above‑entitled
cause, is hereby affirmed insofar as it determines that the special admission
program is invalid; the judgment is reversed insofar as it denies Bakke an
injunction ordering that he be admitted to the University, and the trial court
is directed to enter judgment ordering Bakke to be admitted.
"Bakke shall recover his costs on these
appeals."
It is
therefore perfectly clear that the question whether race can ever be used as a
factor in an admissions decision is not an issue in this case, and that discussion
of that issue is inappropriate. [FN6]
FN6. "This Court . . . reviews judgments, not
statements in opinions." Black v. Cutter Laboratories, 351 U.S. 292, 297,
76 S.Ct. 824, 827, 100 L.Ed. 1188.
II
Both
petitioner and respondent have asked us to determine the legality of the
University's special admissions program by reference to the Constitution. Our
settled practice, however, is to avoid the decision of a constitutional issue
if a case can be fairly decided on a statutory ground. "If there is one
doctrine more deeply rooted than any other in the process of constitutional
adjudication, **2810 it is that we ought not to pass on questions of
constitutionality . . . unless such adjudication is unavoidable." Spector
Motor Co. v. McLaughlin, 323 U.S. 101, 105, 65 S.Ct. 152, 154, 89 L.Ed. 101.
[FN7] The more important the issue, the more force *412 there is to this
doctrine. [FN8] In this case, we are presented with a constitutional question
of undoubted and unusual importance. Since, however, a dispositive statutory
claim was raised at the very inception of this case, and squarely decided in
the portion of the trial court judgment affirmed by the California Supreme
Court, it is our plain duty to confront it. Only if petitioner should prevail
on the statutory issue would it be necessary to decide whether the University's
admissions program violated the Equal Protection Clause of the Fourteenth
Amendment.
FN7. "From Hayburn's Case, 2 Dall. 409, to
Alma Motor Co. v. Timken‑ Detroit Axle Co.[, 329 U.S. 129, 67 S.Ct. 231,
91 L.Ed. 128,] and the Hatch Act case [United Public Workers v. Mitchell, 330
U.S. 75, 67 S.Ct. 556, 91 L.Ed. 754] decided this term, this Court has followed
a policy of strict necessity in
disposing of constitutional issues. The earliest exemplifications, too well
known for repeating the history here, arose in the Court's refusal to render
advisory opinions and in applications of the related jurisdictional policy
drawn from the case and controversy limitation. U.S.Const., Art. III. . . .
"The policy, however, has not been limited to
jurisdictional determinations. For, in addition, 'the Court [has] developed,
for its own governance in the cases confessedly within its jurisdiction, a
series of rules under which it has avoided passing upon a large part of all the
constitutional questions pressed upon it for decision.' Thus, as those rules
were listed in support of the statement quoted, constitutional issues affecting
legislation will not be determined in friendly, nonadversary proceedings; in advance
of the necessity of deciding them; in broader terms than are required by the
precise facts to which the ruling is to be applied; if the record presents some
other ground upon which the case may be disposed of; at the instance of one who
fails to show that he is injured by the statute's operation, or who has availed
himself of its benefits; or if a construction of the statute is fairly possible
by which the question may be avoided." Rescue Army v. Municipal Court, 331
U.S. 549, 568‑569, 67 S.Ct. 1409, 1419, 91 L.Ed. 1666 (footnotes
omitted). See also Ashwander v.
TVA, 297 U.S. 288, 346‑348, 56 S.Ct. 466, 482‑483, 80 L.Ed. 688
(Brandeis, J., concurring).
FN8. The doctrine reflects both our respect for
the Constitution as an enduring set of principles and the deference we owe to
the Legislative and Executive Branches of Government in developing solutions to
complex social problems. See A. Bickel, The Least Dangerous Branch 131 (1962).
III
Section
601 of the Civil Rights Act of 1964, 78 Stat. 252, 42 U.S.C. § 2000d, provides:
"No 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."
The
University, through its special admissions policy, excluded Bakke from
participation in its program of medical education because of his race. The
University also acknowledges that it was, and still is, receiving federal financial
assistance. [FN9] The plain language of the statute therefore requires
affirmance of the judgment below. A different result *413 cannot be justified
unless that language misstates the actual intent of the Congress that enacted
the statute or the statute is not enforceable in a private action. Neither
conclusion is warranted.
FN9. Record 29.
Title VI
is an integral part of the far‑reaching Civil Rights Act of 1964. No
doubt, when this legislation was being debated, Congress was not directly
concerned with the legality of "reverse discrimination" or
"affirmative action" programs. Its attention was focused on the
problem at hand, the "glaring . . . discrimination against Negroes which
exists throughout our Nation," [FN10] and, with respect to Title **2811
VI, the federal funding of segregated facilities. [FN11] The genesis of the
legislation, however, did not limit the breadth of the solution adopted. Just
as Congress responded to the problem of employment discrimination by enacting a
provision that protects all races, see McDonald v. Santa Fe Trail Transp. Co.,
427 U.S. 273, 279, 96 S.Ct. 2574, 2578, 49 L.Ed. 493, [FN12] so, too, its
answer to the problem of federal funding of segregated facilities stands as a
broad prohibition against the exclusion of any individual from a federally
funded program "on the ground of race." In the words of the House
Report, Title VI stands for "the general principle that no person . . . be
excluded from participation . . . on the ground of race, color, or national
origin under any program or activity receiving Federal financial
assistance." H.R.Rep.No.914, 88th *414 Cong., 1st Sess., pt. 1, p. 25
(1963), U.S.Code Cong. & Admin.News 1964, p. 2401 (emphasis added). This
same broad view of Title VI and § 601 was echoed throughout the congressional
debate and was stressed by every one of the major spokesmen for the Act. [FN13]
FN10. H.R.Rep.No.914, 88th Cong., 1st Sess., pt.
1, p. 18 (1963), U.S.Code Cong. & Admin.News 1964, p. 2393.
FN11. It is apparent from the legislative history
that the immediate object of Title VI was to prevent federal funding of
segregated facilities. See, e. g., 110 Cong.Rec. 1521 (1964) (remarks of Rep.
Celler); id., at 6544 (remarks of Sen. Humphrey).
FN12. In McDonald v. Santa Fe Trail Transp. Co.,
the Court held that "Title VII prohibits racial discrimination against . .
. white petitioners . . . upon the same standards as would be applicable were
they Negroes . . . ." 427 U.S., at 280, 96 S.Ct., at 2579. Quoting from our earlier decision in Griggs
v. Duke Power Co., 401 U.S. 424, 431, 91 S.Ct. 849, 853, 28 L.Ed.2d 158, the
Court reaffirmed the principle that the statute "prohibit[s]
'[d]iscriminatory preference for any [racial] group, minority or majority.'
" 427 U.S., at 279, 96 S.Ct., at 2578 (emphasis in original).
FN13. See, e. g., 110 Cong.Rec. 1520 (1964)
(remarks of Rep. Celler); id., at 5864 (remarks of Sen. Humphrey); id., at 6561
(remarks of Sen. Kuchel); id., at 7055 (remarks of Sen. Pastore).
(Representative Celler and Senators Humphrey and Kuchel were the House and
Senate floor managers for the entire Civil Rights Act, and Senator Pastore was
the majority Senate floor manager for Title VI.)
Petitioner
contends, however, that exclusion of applicants on the basis of race does not
violate Title VI if the exclusion carries with it no racial stigma. No such
qualification or limitation of § 601's categorical prohibition of
"exclusion" is justified by the statute or its history. The language
of the entire section is perfectly clear; the words that follow "excluded
from" do not modify or qualify the explicit outlawing of any exclusion on
the stated grounds.
The
legislative history reinforces this reading. The only suggestion that § 601
would allow exclusion of nonminority applicants came from opponents of the
legislation and then only by way of a discussion of the meaning of the word
"discrimination." [FN14] The opponents feared that the term
"discrimination" *415 would be read as mandating racial quotas and
"racially balanced" colleges and universities, and they pressed for a
specific definition of the term in order to avoid this possibility. [FN15] In
response, the proponents of the legislation gave repeated assurances that the
Act **2812 would be "colorblind" in its application. [FN16] Senator
Humphrey, the Senate floor manager for the Act, expressed this position as
follows:
FN14. Representative Abernathy's comments were
typical:
"Title VI has been aptly described as the
most harsh and unprecedented proposal contained in the bill . . . .
"It is aimed toward eliminating
discrimination in federally assisted programs. It contains no guideposts and no
yardsticks as to what might constitute discrimination in carrying out federally
aided programs and projects. . . .
* * *
"Presumably the college would have to have a
'racially balanced' staff from the
dean's office to the cafeteria . . . .
"The effect of this title, if enacted into
law, will interject race as a factor in every decision involving the selection
of an individual . . . . The concept of 'racial imbalance' would hover like a
black cloud over every transaction . . . ." Id., at 1619. See also, e. g.,
id., at 5611‑ 5613 (remarks of Sen. Ervin); id., at 9083 (remarks of Sen.
Gore).
FN15. E. g., id., at 5863, 5874 (remarks of Sen. Eastland).
FN16. See, e. g., id., at 8346 (remarks of Sen.
Proxmire) ("Taxes are collected from whites and Negroes, and they should
be expended without discrimination"); id., at 7055 (remarks of Sen.
Pastore) ("[Title VI] will guarantee that the money collected by
colorblind tax collectors will be distributed by Federal and State
administrators who are equally colorblind"); and id., at 6543 (remarks of
Sen. Humphrey) (" 'Simple justice requires that public funds, to which all
taxpayers of all races contribute, not be spent in any fashion which
encourages, entrenches, subsidizes, or results in racial discrimination'
") (quoting from President Kennedy's Message to Congress, June 19, 1963).
"[T]he word 'discrimination' has been used in
many a court case. What it really means in the bill is a distinction in
treatment . . . given to different individuals because of their different race,
religion or national origin. . . .
"The answer to this question [what was meant
by 'discrimination'] is that if race is not a factor, we do not have to worry
about discrimination because of race. . . . The Internal Revenue Code does not
provide that colored people do not have to pay taxes, or that they can pay
their taxes 6 months later than everyone else." 110 Cong.Rec. 5864 (1964).
"[I]f we started to treat Americans as
Americans, not as fat ones, thin ones, short ones, tall ones, brown ones, green
ones, yellow ones, or white ones, but as Americans. If we did that we would not
need to worry about discrimination." Id., at 5866.
*416 In
giving answers such as these, it seems clear that the proponents of Title VI
assumed that the Constitution itself required a colorblind standard on the part
of government, [FN17] but that does not mean that the legislation only codifies
an existing constitutional prohibition. The statutory prohibition against
discrimination in federally funded projects contained in § 601 is more than a
simple paraphrasing of what the Fifth or Fourteenth Amendment would require. The
Act's proponents plainly considered Title VI consistent with their view of the
Constitution and they sought to provide an effective weapon to implement that
view. [FN18] As a distillation of what the supporters of the Act believed the
Constitution demanded of State and Federal Governments, § 601 has independent
force, with language and emphasis in addition to that found in the
Constitution. [FN19]
FN17. See, e. g., 110 Cong.Rec. 5253 (1964)
(remarks of Sen. Humphrey); and id., at 7102 (remarks of Sen. Javits). The
parallel between the prohibitions of Title VI and those of the Constitution was
clearest with respect to the immediate goal of the Act‑‑an end to
federal funding of "separate but equal" facilities.
FN18. "As in Monroe [v. Pape, 365 U.S. 167,
81 S.Ct. 473, 5 L.Ed.2d 492], we have no occasion here to 'reach the
constitutional question whether Congress has the power to make municipalities
liable for acts of its officers that violate the civil rights of individuals.' 365
U.S. [167], at 191 [81 S.Ct. 473, 5 L.Ed.2d 492]. For in interpreting the
statute it is not our task to consider whether Congress was mistaken in 1871 in
its view of the limits of its power over municipalities; rather, we must
construe the statute in light of the impressions under which Congress did in fact act, see Ries v.
Lynskey, 452 F.2d, 172, at 175." Moor v. County of Alameda, 411 U.S. 693,
709, 93 S.Ct. 1785, 1795, 36 L.Ed.2d 596.
FN19. Both Title VI and Title VII express
Congress' belief that, in the long struggle to eliminate social prejudice and
the effects of prejudice, the principle of individual equality, without regard
to race or religion, was one on which there could be a "meeting of the
minds" among all races and a common national purpose. See Los Angeles
Dept. of Water and Power v. Manhart, 435 U.S. 702, 709, 98 S.Ct. 1370, 1376, 55
L.Ed.2d 657 ("[T]he basic policy of the statute [Title VII] requires that
we focus on fairness to individuals rather than fairness to classes"). This
same principle of individual fairness is embodied in Title VI.
"The basic fairness of title VI is so clear
that I find it difficult to understand why it should create any opposition. . .
.
* * *
"Private prejudices, to be sure, cannot be
eliminated overnight. However, there is one area where no room at all exists
for private prejudices. That is the area of governmental conduct. As the first
Mr. Justice Harlan said in his prophetic dissenting opinion in Plessy v.
Ferguson, 163 U.S. 537, 559, 16
S.Ct. 1138, 1146, 41 L.Ed. 256.
" 'Our Constitution is colorblind.'
"So‑‑I say to Senators‑‑must
be our Government. . . .
"Title VI closes the gap between our purposes
as a democracy and our prejudices as individuals. The cuts of prejudice need
healing. The costs of prejudice need understanding. We cannot have hostility
between two great parts of our people without tragic loss in our human values .
. . .
"Title VI offers a place for the meeting of
our minds as to Federal money." 110 Cong.Rec. 7063‑7064 (1964)
(remarks of Sen. Pastore).
Of course, one of the reasons marshaled in support
of the conclusion that Title VI was "noncontroversial" was that its
prohibition was already reflected in the law. See ibid. (remarks of Sen. Pell
and Sen. Pastore).
*417
**2813 As with other provisions of the Civil Rights Act, Congress' expression
of its policy to end racial discrimination may independently proscribe conduct
that the Constitution does not. [FN20] However, we need not decide the
congruence‑‑or lack of congruence‑‑of the controlling
statute and the Constitution *418 since the meaning of the Title VI ban on
exclusion is crystal clear: Race cannot be the basis of excluding anyone from
participation in a federally funded program.
FN20. For example, private employers now under
duties imposed by Title VII were wholly free from the restraints imposed by the
Fifth and Fourteenth Amendments which are directed only to governmental action.
In Lau v. Nichols, 414 U.S. 563, 94 S.Ct. 786, 39
L.Ed.2d 1, the Government's brief stressed that "the applicability of
Title VI . . . does not depend upon the outcome of the equal protection
analysis. . . . [T]he statute independently proscribes the conduct challenged
by petitioners and provides a discrete basis for injunctive relief." Brief
for United States as Amicus Curiae, O.T. 1973, No. 72‑6520, p. 15. The
Court, in turn, rested its decision on Title VI. Mr. Justice POWELL takes pains
to distinguish Lau from the case at hand because the Lau decision "rested
solely on the statute." Ante, at 2756. See also Washington v. Davis, 426
U.S. 229, 238‑239, 96 S.Ct. 2040, 2046‑2047, 48 L.Ed.2d 597; Allen
v. State Board of Elections, 393 U.S. 544, 588, 89 S.Ct. 817, 843, 22 L.Ed.2d 1
(Harlan, J., concurring and dissenting).
In short,
nothing in the legislative history justifies the conclusion that the broad
language of § 601 should not be given its natural meaning. We are dealing with
a distinct statutory prohibition, enacted at a particular time with particular
concerns in mind; neither its language nor any prior interpretation suggests
that its place in the Civil Rights Act, won after long debate, is simply that
of a constitutional appendage. [FN21] In unmistakable terms the Act prohibits
the exclusion of individuals from federally funded programs because of their
race. [FN22] As succinctly phrased during the Senate debate, under Title VI it
is not "permissible to say 'yes' to one person; but to say 'no' to another
person, only because of the color of his skin." [FN23]
FN21. As explained by Senator Humphrey, § 601
expresses a principle imbedded in the constitutional and moral understanding of
the times.
"The purpose of title VI is to make sure that
funds of the United States are not used to support racial discrimination. In
many instances the practices of segregation or discrimination, which title VI
seeks to end, are unconstitutional. . . . In all cases, such discrimination is
contrary to national policy, and to the moral sense of the Nation. Thus, title
VI is simply designed to insure that Federal funds are spent in accordance with
the Constitution and the moral sense of the Nation." 110 Cong.Rec. 6544
(1964) (emphasis added).
FN22. Petitioner's attempt to rely on regulations
issued by HEW for a contrary reading of the statute is unpersuasive. Where no
discriminatory policy was in effect, HEW's example of permissible
"affirmative action" refers to "special recruitment
policies." 45 CFR § 80.5(j) (1977). This regulation, which was adopted in
1973, sheds no light on the legality of the admissions program that excluded
Bakke in this case.
FN23. 110 Cong.Rec. 6047 (1964) (remarks of Sen
Pastore).
Belatedly,
however, petitioner argues that Title VI cannot be enforced by a private
litigant. The claim is unpersuasive in the context of this case. Bakke
requested injunctive and declaratory relief under Title VI; petitioner itself
then joined *419 issue on the question of the legality of its program under
Title VI by asking for a declaratory judgment that it was in compliance with
the statute. [FN24] Its view during state‑court litigation was that a
private cause of action does exist under Title VI. Because petitioner **2814
questions the availability of a private cause of action for the first time in
this Court, the question is not properly before us. See McGoldrick v. Compagnie
Generale Transatlantique, 309 U.S. 430, 434, 60 S.Ct. 670, 672, 84 L.Ed. 849. Even
if it were, petitioner's original assumption is in accord with the federal
courts' consistent interpretation of the Act. To date, the courts, including
this Court, have unanimously concluded or assumed that a private action may be
maintained under Title VI. [FN25] The United States has taken the same
position; in its amicus curiae brief directed to this specific issue, it
concluded that such a remedy is clearly available, [FN26] *420 and Congress has
repeatedly enacted legislation predicated on the assumption that Title VI may
be enforced in a private action. [FN27] The conclusion that an individual may
maintain a private cause of action is amply supported in the legislative
history of Title VI itself. [FN28] In **2815 short, a fair consideration of
*421 petitioner's tardy attack on the propriety of Bakke's suit under Title VI
requires that it be rejected.
FN24. Record 30‑31.
FN25. See, e. g., Lau v. Nichols, supra; Bossier
Parish School Board v. Lemon, 370 F.2d 847 (C.A.5 1967), cert. denied, 388 U.S.
911, 87 S.Ct. 2116, 18 L.Ed.2d 1350; Uzzell v. Friday, 547 F.2d 801 (C.A.4
1977), opinion on rehearing en banc, 558 F.2d 727, cert. pending, No. 77‑635;
Serna v. Portales, 499 F.2d 1147 (C.A.10 1974); cf. Chambers v. Omaha Public School District, 536 F.2d 222, 225 n. 2
(C.A.8 1976) (indicating doubt over whether a money judgment can be obtained
under Title VI). Indeed, the Government's brief in Lau v. Nichols, supra,
succinctly expressed this common assumption: "It is settled that
petitioners . . . have standing to enforce Section 601 . . . ." Brief for
United States as Amicus Curiae in Lau v. Nichols, O.T.1973, No. 72‑6520,
p. 13 n. 5.
FN26. Supplemental Brief for United States as
Amicus Curiae 24‑34. The Government's supplemental brief also suggests
that there may be a difference between a private cause of action brought to end
a particular discriminatory practice and such an action brought to cut off
federal funds. Id., at 28‑30. Section 601 is specifically addressed to
personal rights, while § 602‑‑the fund cutoff provision‑‑establishes
"an elaborate mechanism for governmental enforcement by federal
agencies." Supplemental Brief, supra, at 28 (emphasis added). Arguably,
private enforcement of this "elaborate mechanism" would not fit
within the congressional scheme, see separate opinion of Mr. Justice WHITE,
ante, at 2794. But Bakke did not seek to cut off the University's federal
funding; he sought admission to medical school. The difference between these two courses of action is clear and
significant. As the Government itself states:
"[T]he grant of an injunction or a
declaratory judgment in a private action would not be inconsistent with the
administrative program established by Section 602 . . . . A declaratory
judgment or injunction against future discrimination would not raise the
possibility that funds would be terminated, and it would not involve bringing
the forces of the Executive Branch to bear on state programs; it therefore
would not implicate the concern that led to the limitations contained in
Section 602." Supplemental Brief, supra, at 30 n. 25.
The notion that a private action seeking
injunctive or declaratory judgment relief is inconsistent with a federal
statute that authorizes termination of funds has clearly been rejected by this
Court in prior cases. See Rosado v. Wyman, 397 U.S. 397, 420, 90 S.Ct. 1207,
1221, 25 L.Ed.2d 442.
FN27. See 29 U.S.C. § 794 (1976 ed.) (the
Rehabilitation Act of 1973) (in particular, the legislative history discussed
in Lloyd v. Regional Transportation Authority, 548 F.2d 1277, 1285‑1286
(C.A.7 1977)); 20 U.S.C. § 1617 (1976 ed.) (attorney fees under the Emergency
School Aid Act); and 31 U.S.C. § 1244
(1976 ed.) (private action under the Financial Assistance Act). Of course, none
of these subsequent legislative enactments is necessarily reliable evidence of
Congress' intent in 1964 in enacting Title VI, and the legislation was not
intended to change the existing status of Title VI.
FN28. Framing the analysis in terms of the four‑part
Cort v. Ash test, see 422 U.S. 66, 78, 95 S.Ct. 2080, 2087, 45 L.Ed.2d 26, it
is clear that all four parts of the test are satisfied. (1) Bakke's status as a
potential beneficiary of a federally funded program definitely brings him
within the " 'class for whose especial benefit the statute was enacted,'
" Ibid. (emphasis in original). (2) A cause of action based on race
discrimination has not been "traditionally relegated to state law."
Ibid. (3) While a few excerpts from the voluminous legislative history suggest
that Congress did not intend to create a private cause of action, see opinion
of Mr. Justice POWELL, ante, at 2745 n. 18, an examination of the entire legislative
history makes it clear that Congress had no intention to foreclose a private
right of action. (4) There is ample evidence that Congress considered private
causes of action to be consistent with, if not essential to, the legislative
scheme. See, e. g., remarks of
SenatorRibicoff:
"We come then to the crux of the dispute‑‑how
this right [to participate in federally funded programs without discrimination]
should be protected. And even this issue becomes clear upon the most elementary
analysis. If Federal funds are to be dispensed on a nondiscriminatory basis,
the only possible remedies must fall into one of two categories: First, action
to end discrimination; or second, action to end the payment of funds. Obviously
action to end discrimination is preferable since that reaches the objective of
extending the funds on a nondiscriminatory basis. But if the discrimination
persists and cannot be effectively terminated, how else can the principle of
nondiscrimination be vindicated except by nonpayment of funds?" 110
Cong.Rec. 7065 (1964). See also id., at 5090, 6543, 6544 (remarks of Sen.
Humphrey); id., at 7103, 12719 (remarks of Sen. Javits); id., at 7062, 7063
(remarks of Sen. Pastore).
The congressional debates thus show a clear
understanding that the principle embodied in § 601 involves personal federal
rights that administrative procedures would not, for the most part, be able to
protect. The analogy to the Voting Rights Act of 1965, 42 U.S.C. § 1973 et seq.
(1970 ed. and Supp. V), is clear. Both that Act and Title VI are broadly
phrased in terms of personal rights ("no person shall be denied . . ."); both Acts were
drafted with broad remedial purposes in mind; and the effectiveness of both
Acts would be "severely hampered" without the existence of a private
remedy to supplement administrative procedures. See Allen v. State Bd. of
Elections, 393 U.S. 544, 556, 89 S.Ct. 817, 826, 22 L.Ed.2d 1. In Allen, of
course, this Court found a private right of action under the Voting Rights Act.
The University's
special admissions program violated Title VI of the Civil Rights Act of 1964 by
excluding Bakke from the Medical School because of his race. It is therefore
our duty to affirm the judgment ordering Bakke admitted to the University.
Accordingly,
I concur in the Court's judgment insofar as it affirms the judgment of the
Supreme Court of California. To the extent that it purports to do anything
else, I respectfully dissent.