Supreme Court of
the
Jennifer GRATZ and Patrick
Hamacher, Petitioners,
v.
Lee BOLLINGER et
al.
No. 02-516.
Argued April 1,
2003.
Decided June 23,
2003.
Rejected Caucasian in-state applicants for admission to
University of Michigan’s College of Literature, Science and the Arts (LSA)
filed class action complaint against, inter alia, board of regents alleging
that university’s use of racial preferences in undergraduate admissions
violated Equal Protection Clause, Title VI, and § 1981 and seeking, inter alia,
compensatory and punitive damages for past violations, declaratory and
injunctive relief, and order requiring LSA to offer one of them admission as
transfer student. Action was certified as class action and bifurcated into
damages and liability phases. On cross-motions for summary judgment with respect
to liability phase only, the United States District Court for the Eastern
District of Michigan, 122 F.Supp.2d 811, Patrick J. Duggan, J., granted
petitioners’ motion with respect to
admissions programs in existence from 1995 through 1998, but denied motion with
respect to admissions programs for 1999 and 2000. During pendency of
interlocutory appeal to the United States Court of Appeals for the Sixth
Circuit, certiorari was granted. The Supreme Court, Chief Justice Rehnquist,
held that: (1) petitioners had standing to seek declaratory and injunctive
relief; (2) university’s current freshman admissions policy violated Equal
Protection Clause because its use of race was not narrowly tailored to achieve
respondents’ asserted compelling state interest in diversity; and (3) Title VI
and § 1981 were also violated by that policy.
Reversed in part and remanded.
Chief Justice
REHNQUIST delivered the opinion of the Court.
We granted certiorari in this case to decide whether “the
University of Michigan’s use of racial preferences in undergraduate admissions
violate[s] the Equal Protection Clause of the Fourteenth Amendment, Title VI of
the Civil Rights Act of 1964 (42 U.S.C. § 2000d), or 42 U.S.C. § 1981.” Brief
for Petitioners i. Because we find that the manner in which the University
considers the race of applicants in its undergraduate admissions guidelines
violates these constitutional and statutory provisions, we reverse that portion
of the District Court’s decision upholding the guidelines.
I
A
Petitioners Jennifer Gratz and Patrick Hamacher both
applied for admission to the
Hamacher applied for admission to the LSA for the fall of
1997. A final decision as to his application was also postponed because, though
his “ ‘academic credentials [were] in the qualified range, they [were] not at
the level needed for first review admission.’ “Hamacher’s application was
subsequently denied in April 1997, and he enrolled at
In October 1997, Gratz and
Hamacher filed a lawsuit in the United States District Court for the Eastern
District of Michigan *2418 against the
The District Court granted
petitioners’ motion for class certification after determining that a class
action was appropriate pursuant to Federal Rule of Civil Procedure 23(b)(2).
The certified class consisted of “those individuals who applied for and were
not granted admission to the College of Literature, Science and the Arts of the
University of Michigan for all academic years from 1995 forward and who are
members of those racial or ethnic groups, including Caucasian, that defendants
treated less favorably on the basis of race in considering
their application for admission.” And Hamacher, whose claim the District Court
found to challenge a “ ‘practice of racial discrimination pervasively applied
on a classwide basis,’ “ was designated as the class representative. The court
also granted petitioners’ motion to bifurcate the proceedings into a liability
and damages phase. The liability phase was to determine “whether [respondents’]
use of race as a factor in admissions decisions violates the Equal Protection
Clause of the Fourteenth Amendment to the Constitution.”
The University has changed its admissions guidelines a
number of times during the period relevant to this litigation, and we summarize
the most significant of these changes briefly. The University’s Office of
Undergraduate Admissions (OUA) oversees the LSA admissions process. In order to promote consistency in the review
of the large number of applications received, the OUA uses written guidelines
for each academic year. Admissions counselors make
admissions decisions in accordance with these guidelines.
OUA considers a number of factors
in making admissions decisions, including high school grades, standardized test
scores, high school quality, curriculum *2419 strength, geography,
alumni relationships, and leadership. OUA also considers race. During all
periods relevant to this litigation, the University has considered
African-Americans, Hispanics, and Native Americans to be “underrepresented
minorities,” and it is undisputed that the University admits “virtually every
qualified ... applicant” from these groups.
During 1995 and 1996, OUA counselors evaluated applications
according to grade point average combined with what were referred to as the
“SCUGA” factors. These factors included the quality of an applicant’s high
school (S), the strength of an applicant’s high school curriculum (C), an
applicant’s unusual circumstances (U), an applicant’s geographical residence
(G), and an applicant’s alumni relationships (A). After these scores were
combined to produce an applicant’s “GPA 2” score, the reviewing admissions
counselors referenced a set of “Guidelines”
tables, which listed GPA 2 ranges on the vertical axis, and American College
Test/Scholastic Aptitude Test (ACT/SAT) scores on the horizontal axis. Each
table was divided into cells that included one or more courses of action to be
taken, including admit, reject, delay for additional information, or postpone
for reconsideration.
In both years, applicants with the same GPA 2 score and
ACT/SAT score were subject to different admissions outcomes based upon their
racial or ethnic status. [FN7] For example,
as a Caucasian in-state applicant, Gratz’s GPA 2 score and ACT score placed her
within a cell calling for a postponed decision on her application. An in-state
or out-of-state minority applicant with Gratz’s scores would have fallen within
a cell calling for admission.
FN7. In 1995, counselors used four such tables for different
groups of applicants: (1) in-state, nonminority applicants; (2) out-of-state,
non-minority applicants; (3) in-state, minority applicants; and (4) out-
of-state, minority applicants. In 1996, only two tables were used, one for
in-state applicants and one for out-of-state applicants. But each cell on these
two tables contained separate courses of action for minority applicants and
nonminority applicants whose GPA 2 scores and ACT/SAT scores placed them in
that cell.
In 1997, the University modified its admissions procedure.
Specifically, the formula for calculating an applicant’s GPA 2 score was
restructured to include additional point values under the “U” category in the
SCUGA factors. Under this new system, applicants could receive points for
underrepresented minority status, socioeconomic disadvantage, or attendance at
a high school with a predominantly underrepresented minority population, or
underrepresentation in the unit to which the student was applying (for example,
men who sought to pursue a career in nursing). Under the 1997 procedures,
Hamacher’s GPA 2 score and ACT score placed him in a cell on the in-state
applicant table calling for postponement of a final admissions decision. An
underrepresented minority applicant placed in the same cell would generally
have been admitted.
Beginning with the 1998 academic year, the OUA dispensed
with the Guidelines tables and the SCUGA point system in favor of a “selection
index,” on which an applicant could score a maximum of 150 points. This index
was divided linearly into ranges generally calling for admissions dispositions
as follows: 100-150 (admit); 95-99 (admit or postpone); 90-94 (postpone or
admit); 75-89 (delay or postpone); 74 and below (delay or reject).
Each application received points based on high school grade
point average, standardized test scores, academic quality of an applicant’s
high school, strength or weakness of high school curriculum, in-state
residency, alumni relationship, personal
essay, and personal achievement or leadership. Of particular significance here,
under a “miscellaneous” category, an applicant was entitled to 20 points based
upon his or her membership in an underrepresented racial or ethnic minority
group. The University explained that the *2420 “ ‘development of the
selection index for admissions in 1998 changed only the mechanics, not the
substance of how race and ethnicity were considered in admissions.’ “ App. to
Pet. for Cert. 116a.
In all application years from 1995 to 1998, the guidelines
provided that qualified applicants from underrepresented minority groups be
admitted as soon as possible in light of the University’s belief that such
applicants were more likely to enroll if promptly notified of their admission.
Also from 1995 through 1998, the University carefully managed its rolling admissions
system to permit consideration of certain applications submitted later in the
academic year through the use of “protected seats.” Specific groups--including
athletes, foreign students, ROTC candidates, and underrepresented minorities--
were “protected categories” eligible for these seats. A committee called the
Enrollment Working Group (EWG) projected how many applicants from each of these
protected categories the University was likely to receive after a given date
and then paced admissions decisions to permit full consideration of expected
applications from these groups. If this space was not filled by qualified
candidates from the designated groups toward the end of the admissions season, it was then used to admit qualified candidates
remaining in the applicant pool, including those on the waiting list.
During 1999 and 2000, the OUA used the selection index,
under which every applicant from an underrepresented racial or ethnic minority
group was awarded 20 points. Starting in 1999, however, the University
established an Admissions Review Committee (ARC), to provide an additional
level of consideration for some applications. Under the new system, counselors
may, in their discretion, “flag” an application for the ARC to review after
determining that the applicant (1) is academically prepared to succeed at the
University, [FN8] (2) has achieved a minimum
selection index score, and (3) possesses a quality or characteristic important
to the University’s composition of its freshman class, such as high class rank,
unique life experiences, challenges, circumstances, interests or talents,
socioeconomic disadvantage, and underrepresented race, ethnicity, or geography.
After reviewing “flagged” applications, the ARC determines whether to admit,
defer, or deny each applicant.
FN8. LSA applicants who are
C
The parties filed cross-motions for summary judgment with
respect to liability. Petitioners asserted that the LSA’s use of race as a
factor in admissions violates Title VI of the Civil Rights Act of 1964, 78
Stat. 252, 42 U.S.C. § 2000d, and the Equal Protection Clause of the Fourteenth
Amendment. Respondents relied on Justice Powell’s opinion in Regents of
Univ. of Cal. v. Bakke, 438
FN9. The District Court considered and rejected respondent- intervenors’ arguments in a supplemental
opinion and order. See 135 F.Supp.2d 790 (E.D.Mich.2001). The court explained
that respondent- intervenors “failed to present any evidence that the
discrimination alleged by them, or the continuing effects of such
discrimination, was the real justification for the LSA’s race-conscious
admissions programs.”
*2421 The District Court began its analysis by reviewing this Court’s
decision in Bakke. See 122 F.Supp.2d 811, 817 (E.D.Mich.2000). Although
the court acknowledged that no decision from this Court since Bakke has
explicitly accepted the diversity rationale discussed by Justice Powell, see
122 F.Supp.2d, at 820-821, it also concluded that this Court had not, in the
years since Bakke, ruled out such a justification for the use of race.
122 F.Supp.2d, at 820-821. The District Court concluded that respondents and
their amici curiae had presented “solid evidence” that a racially and
ethnically diverse student body produces significant educational benefits such
that achieving such a student body constitutes a compelling governmental
interest. See id., at 822-824.
The court next considered whether the LSA’s admissions
guidelines were narrowly tailored to achieve that interest. See id., at
824. Again relying on Justice Powell’s opinion in Bakke, the District
Court determined that the admissions program the LSA began using in 1999 is a
narrowly tailored means of achieving the University’s interest in the
educational benefits that flow from a racially and ethnically diverse student
body. See 122 F.Supp.2d, at 827. The court emphasized that the LSA’s current
program does not utilize rigid quotas or seek to admit a predetermined number
of minority students. See ibid. The award of 20 points for membership in
an underrepresented minority group, in the District Court’s view, was not the
functional equivalent of a quota because minority candidates were not insulated
from review by virtue of those points. See id., at 828. Likewise, the
court rejected the assertion that the LSA’s program operates like the two-track
system Justice Powell found objectionable in Bakke on the grounds that
LSA applicants are not competing for different groups of seats. See 122
F.Supp.2d, at 828-829. The court also dismissed petitioners’ assertion that the
LSA’s current system is nothing more than a means by which to achieve racial
balancing. See id., at 831. The court explained that the LSA does not
seek to achieve a certain proportion of minority students, let alone a
proportion that represents the community. See ibid.
The District Court found the admissions guidelines the LSA
used from 1995 through 1998 to be more
problematic. In the court’s view, the University’s prior practice of
“protecting” or “reserving” seats for underrepresented minority applicants
effectively kept nonprotected applicants from competing for those slots. See id.,
at 832. This system, the court concluded, operated as the functional equivalent
of a quota and ran afoul of Justice Powell’s opinion in Bakke. [FN10] See 122 F.Supp.2d, at 832.
FN10. The District Court determined that respondents Bollinger and
Duderstadt, who were sued in their individual capacities under Rev. Stat. §
1979, 42 U.S.C. § 1983, were entitled to summary judgment based on the doctrine
of qualified immunity. See 122 F.Supp.2d, at 833-834. Petitioners have not
asked this Court to review this aspect of the District Court’s decision. The
District Court denied the Board of Regents’ motion for summary judgment with
respect to petitioners’ Title VI claim on Eleventh Amendment immunity grounds.
See id., at 834-836. Respondents have not asked this Court to review
this aspect of the District Court’s decision.
Based on these findings, the court granted petitioners’
motion for summary judgment with respect to the LSA’s admissions programs in
existence from 1995 through 1998, and respondents’ motion with respect to the
LSA’s admissions programs for 1999 and 2000.
See id., at 833. Accordingly, *2422 the District Court denied
petitioners’ request for injunctive relief. See id., at 814.
The District Court issued an order consistent with its
rulings and certified two questions for interlocutory appeal to the Sixth
Circuit pursuant to 28 U.S.C. § 1292(b). Both parties appealed aspects of the
District Court’s rulings, and the Court of Appeals heard the case en banc on
the same day as Grutter v. Bollinger. The Sixth Circuit later issued an
opinion in Grutter, upholding the admissions program used by the
University of Michigan Law School, and the petitioner in that case sought a
writ of certiorari from this Court. Petitioners asked this Court to grant
certiorari in this case as well, despite the fact that the Court of Appeals had
not yet rendered a judgment, so that this Court could address the
constitutionality of the consideration of race in university admissions in a
wider range of circumstances. We did so. See 537
II
As they have throughout the course of this litigation,
petitioners contend that the University’s consideration of race in its
undergraduate admissions decisions violates § 1 of the Equal Protection Clause
of the Fourteenth Amendment, [FN11] Title
VI, [FN12] and 42 U.S.C. § 1981. [FN13] We consider first whether
petitioners have standing to seek declaratory and injunctive relief, and,
finding that they do, we next consider the merits of their claims.
FN11. The Equal Protection Clause of the Fourteenth Amendment
explains that “[n]o State shall ... deny to any person within its jurisdiction
the equal protection of the laws.”
FN12. Title VI provides that “[n]o person in the
FN13. Section 1981(a) provides that:
“All persons within the
jurisdiction of the
A
Although no party has raised the issue, Justice STEVENS
argues that petitioners lack Article III standing to seek injunctive relief
with respect to the University’s use of race in undergraduate admissions. He
first contends that because Hamacher did not “actually appl[y] for admission as
a transfer student[,][h]is claim of future injury is at best ‘conjectural or
hypothetical’ rather than ‘real and immediate.’ “ Post, at 2436
(dissenting opinion). But whether Hamacher “actually applied” for admission as
a transfer student is not determinative of his ability to seek injunctive
relief in this case. If Hamacher had submitted a transfer application and been
rejected, he would still need to allege an intent to apply again in order to
seek prospective relief. If Justice STEVENS means that because Hamacher did not
apply to transfer, he must never really have intended to do so, that
conclusion directly conflicts with the finding of fact entered by the District
Court that Hamacher “intends to transfer to the
FN14. This finding is further corroborated by Hamacher’s request
that the District Court “[r]equir[e] the
It is well established that
intent may be relevant to standing in an
Equal Protection challenge. In Clements v. Fashing, 457 U.S. 957, 102
S.Ct. 2836, 73 L.Ed.2d 508 (1982), for example, we considered a challenge to a
provision of the Texas Constitution requiring the immediate resignation of
certain state officeholders upon their announcement of candidacy for another
office. We concluded that the *2423 plaintiff officeholders had Article
III standing because they had alleged that they would have announced their
candidacy for other offices were it not for the “automatic resignation”
provision they were challenging. Id., at 962, 102 S.Ct. 2836; accord, Turner
v. Fouche, 396 U.S. 346, 361-362, n. 23, 90 S.Ct. 532, 24 L.Ed.2d 567
(1970) (plaintiff who did not own property had standing to challenge property
ownership requirement for membership on school board even though there was no
evidence that plaintiff had applied and been rejected); Quinn v. Millsap,
491 U.S. 95, 103, n. 8, 109 S.Ct. 2324, 105 L.Ed.2d 74 (1989) (plaintiffs who
did not own property had standing to challenge property ownership requirement
for membership on government board even though they lacked standing to
challenge the requirement “as applied”). Likewise, in Northeastern Fla.
Chapter, Associated Gen. Contractors of America v. Jacksonville, 508 U.S.
656, 113 S.Ct. 2297, 124 L.Ed.2d 586 (1993), we considered whether an
association challenging an ordinance that gave preferential treatment to
certain minority-owned businesses in the award of city contracts needed to show
that one of its members would have received a contract
absent the ordinance in order to establish standing. In finding that no such
showing was necessary, we explained that “[t]he ‘injury in fact’ in an equal
protection case of this variety is the denial of equal treatment resulting from
the imposition of the barrier, not the ultimate inability to obtain the benefit
.... And in the context of a challenge to a set-aside program, the ‘injury in
fact’ is the inability to compete on an equal footing in the bidding process,
not the loss of contract.”
In bringing his equal protection
challenge against the University’s use of race in undergraduate admissions,
Hamacher alleged that the University had denied him the opportunity to compete
for admission on an equal basis. When Hamacher applied to the University as a
freshman applicant, he was denied admission even though an underrepresented
minority applicant with his qualifications would have been admitted. See App.
to Pet. for Cert. 115a. After being denied admission, Hamacher demonstrated
that he was “able and ready” to apply as a transfer student should the
University cease to use race in undergraduate admissions. He therefore has
standing to seek prospective relief with respect to the University’s continued
use of race in undergraduate admissions.
Justice STEVENS raises a second
argument as to standing. He contends that the University’s use of race in
undergraduate transfer admissions differs from its use of race in undergraduate
freshman admissions, and that therefore Hamacher lacks standing to represent
absent class members challenging the latter. Post, at 2436 (dissenting
opinion). As an initial matter, there is a question whether the relevance of
this variation, if any, is a matter of Article III standing at all or whether
it goes to the propriety of class certification pursuant to Federal Rule of
Civil Procedure 23(a). The parties have not briefed the question of standing
versus adequacy, however, and we need not resolve the question today:
Regardless of whether the requirement is deemed one of adequacy or standing, it
is clearly satisfied in this case. [FN15]
FN15. Although we do not resolve here whether such an inquiry in
this case is appropriately addressed under the rubric of standing or adequacy,
we note that there is tension in our prior cases in this regard. See, e.g.,
Burns, Standing and Mootness in Class Actions: A Search for Consistency, 22
U.C.D.L.Rev. 1239, 1240-1241 (1989); General Telephone Co. of Southwest v.
Falcon, 457 U.S. 147, 149, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982) (Mexican-American
plaintiff alleging that he was passed over for a
promotion because of race was not an adequate representative to “maintain a
class action on behalf of Mexican-American applicants” who were not hired by
the same employer); Blum v. Yaretsky, 457 U.S. 991, 102 S.Ct. 2777, 73
L.Ed.2d 534 (1982) (class representatives who had been transferred to lower
levels of medical care lacked standing to challenge transfers to higher levels
of care).
*2424 From the time petitioners filed their original complaint through
their brief on the merits in this Court, they have consistently challenged the
University’s use of race in undergraduate admissions and its asserted
justification of promoting “diversity.” See, e.g., App. 38; Brief for
Petitioners 13. Consistent with this challenge, petitioners requested
injunctive relief prohibiting respondent “from continuing to discriminate on
the basis of race.” App. 40. They sought to certify a class consisting of all
individuals who were not members of an underrepresented minority group who
either had applied for admission to the LSA and been rejected or who intended
to apply for admission to the LSA, for all academic years from 1995 forward.
Justice STEVENS cites Blum v. Yaretsky, 457
In the present case, the University’s use of race in
undergraduate transfer admissions does not implicate a significantly different
set of concerns than does its use of race in undergraduate freshman admissions.
Respondents challenged Hamacher’s standing at the certification stage, but never
did so on the grounds that the University’s use of race in undergraduate
transfer admissions involves a different set *2425 of concerns than does
its use of race in freshman admissions. Respondents’ failure to allege any such
difference is simply consistent with the fact that no such difference exists.
Each year the OUA produces a document entitled “COLLEGE OF LITERATURE SCIENCE
AND THE ARTS GUIDELINES FOR ALL TERMS,” which sets forth guidelines for all
individuals seeking admission to the LSA, including freshman applicants,
transfer applicants, international student applicants, and the like. See, e.g., 2 App. in No. 01-1333 etc. (CA6),
pp. 507-542. The guidelines used to evaluate transfer applicants specifically
cross-reference factors and qualifications considered in assessing freshman
applicants. In fact, the criteria used to determine whether a transfer
applicant will contribute to the University’s stated goal of diversity are identical
to that used to evaluate freshman applicants. For example, in 1997, when the
class was certified and the District Court found that Hamacher had standing to
represent the class, the transfer guidelines contained a separate section
entitled “CONTRIBUTION TO A DIVERSE STUDENT BODY.” 2 id., at 531. This
section explained that any transfer applicant who could “contribut[e] to a
diverse student body” should “generally be admitted” even with
substantially lower qualifications than those required of other transfer
applicants. Ibid. (emphasis added). To determine whether a transfer
applicant was capable of “contribut[ing] to a diverse student body,” admissions
counselors were instructed to determine whether that transfer applicant met the
“criteria as defined in Section IV of the ‘U’ category of [the] SCUGA” factors
used to assess freshman applicants. Ibid. Section IV of the “U”
category, entitled “Contribution to a Diverse Class,” explained that “[t]he
University is committed to a rich educational experience for its students. A
diverse, as opposed to a homogenous, student population enhances the
educational experience for all students. To insure a diverse class, significant
weight will be given in the admissions process to indicators of students contribution to a
diverse class.” 1 id., at 432. These indicators, used in evaluating
freshman and transfer applicants alike, list being a member of an
underrepresented minority group as establishing an applicant’s contribution to
diversity. See 3 id., at 1133-1134, 1153-1154. Indeed, the only difference
between the University’s use of race in considering freshman and transfer
applicants is that all underrepresented minority freshman applicants receive 20
points and “virtually” all who are minimally qualified are admitted, while
“generally” all minimally qualified minority transfer applicants are admitted
outright. While this difference might be relevant to a narrow tailoring
analysis, it clearly has no effect on petitioners’ standing to challenge the
University’s use of race in undergraduate admissions and its assertion that
diversity is a compelling state interest that justifies its consideration of
the race of its undergraduate applicants.
[FN16]
FN16. Because the University’s guidelines concededly use race in
evaluating both freshman and transfer applications, and because petitioners
have challenged any use of race by the University in undergraduate
admissions, the transfer admissions policy is very much before this Court.
Although petitioners did not raise a narrow tailoring challenge to the transfer
policy, as counsel for petitioners repeatedly explained, the transfer policy is
before this Court in that petitioners challenged any use of race by the University to promote diversity,
including through the transfer policy. See Tr. of Oral Arg. 4 (“[T]he
[transfer] policy is essentially the same with respect to the consideration of
race”); id., at 5 (“The transfer policy considers race”); id., at
6 (same); id., at 7 (“[T]he transfer policy and the [freshman]
admissions policy are fundamentally the same in the respect that they both
consider race in the admissions process in a way that is discriminatory”); id.,
at 7-8 (“[T]he University considers race for a purpose to achieve a diversity
that we believe is not compelling, and if that is struck down as a rationale,
then the [result] would be [the] same with respect to the transfer policy as
with respect to the [freshman] admissions policy, Your Honor”).
*2426 Particularly instructive here is our statement in General
Telephone Co. of Southwest v. Falcon, 457 U.S. 147, 102 S.Ct. 2364, 72
L.Ed.2d 740 (1982), that “[i]f [defendant-employer] used a biased testing
procedure to evaluate both applicants for employment and incumbent employees, a
class action on behalf of every applicant or employee who might have been
prejudiced by the test clearly would satisfy the ... requirements of
Rule 23(a).”
FN17. Indeed, as the litigation history of this case demonstrates,
“the class-action device save[d] the resources of both the courts and the
parties by permitting an issue potentially affecting every [class member] to be
litigated in an economical fashion.” Califano v. Yamasaki, 442
B
Petitioners argue, first and
foremost, that the University’s use of race in undergraduate admissions violates
the Fourteenth Amendment. Specifically, they contend that this Court has only
sanctioned the use of racial classifications to remedy identified
discrimination, a justification on which respondents have never relied. Brief
for Petitioners 15-16. Petitioners further argue that “diversity as a basis for
employing racial preferences is simply too open-ended, ill-defined, and
indefinite to constitute a compelling interest capable of supporting
narrowly-tailored means.”
Petitioners alternatively argue that even if the
University’s interest in diversity can constitute a compelling state interest,
the District Court erroneously concluded that the University’s use of race in
its current freshman admissions policy is narrowly tailored to achieve such an
interest. Petitioners argue that the guidelines the University began using in
1999 do not “remotely resemble the kind of consideration of race and ethnicity
that Justice Powell endorsed in Bakke.” Brief for Petitioners 18.
Respondents reply that the University’s current admissions program is narrowly
tailored and avoids the problems of the Medical School of the University of
California at Davis program (U.C. Davis) rejected by Justice Powell. [FN18] They claim that their program “hews closely” to both the
admissions program described by Justice Powell as well as the
FN18. U.C. Davis set aside 16 of the 100 seats available in its
first year medical school program for “economically and/or educationally
disadvantaged” applicants who were also members of designated “minority groups”
as defined by the university. “To the extent that there existed a pool of at
least minimally qualified minority applicants to fill the 16 special admissions
seats, white applicants could compete only for 84 seats in the entering class,
rather than the 100 open to minority applicants.” Regents of
It is by now well established
that “all racial classifications reviewable under the Equal Protection Clause
must be strictly scrutinized.” Adarand Constructors, Inc. v. Peña, 515
To withstand our strict scrutiny
analysis, respondents must demonstrate that the University’s use of race in its
current admission program employs “narrowly tailored measures that further
compelling governmental interests.”
In Bakke, Justice Powell reiterated that
“[p]referring members of any one group for no reason other than race or ethnic
origin is discrimination for its own sake.” 438
Justice Powell’s opinion in Bakke emphasized the
importance of considering each particular applicant as an individual, assessing
all of the qualities that individual possesses, and in turn, evaluating that
individual’s ability to contribute to the unique setting of higher education.
The admissions program Justice Powell described, however, did not contemplate
that any single characteristic automatically ensured a specific and
identifiable contribution to a university’s diversity. See id., at 315,
98 S.Ct. 2733. See also Metro Broadcasting, Inc. v. FCC, 497 U.S. 547,
618, 110 S.Ct. 2997, 111 L.Ed.2d 445 (1990) (O’CONNOR, J., dissenting)
(concluding that the FCC’s policy, which “embodie[d] the related notions that a
particular applicant, by virtue of race or ethnicity alone, is more valued than
other applicants because [the applicant is] ‘likely to provide [a] distinct
perspective,’ “ “impermissibly value[d] individuals” based on a presumption
that “persons think in a manner associated with their race”). Instead, under
the approach Justice Powell described, each characteristic of a particular
applicant was to be considered in assessing the applicant’s entire application.
The current LSA policy does not provide such individualized
consideration. The LSA’s policy automatically distributes 20 points to every
single applicant from an “underrepresented
minority” group, as defined by the University. The only consideration that
accompanies this distribution of points is a factual review of an application
to determine whether an individual is a member of one of these minority groups.
Moreover, unlike Justice Powell’s example, where the race of a “particular
black applicant” could be considered without being decisive, see Bakke,
438 U.S., at 317, 98 S.Ct. 2733, the LSA’s automatic distribution of 20 points
has the effect of making “the factor of race ... decisive” for virtually every
minimally qualified underrepresented minority applicant. Ibid. [FN19]
FN19. Justice SOUTER recognizes that the LSA’s use of race is
decisive in practice, but he attempts to avoid that fact through unsupported
speculation about the self-selection of minorities in the applicant pool. See Post,
at 2436 (dissenting opinion).
Also instructive in our consideration of the LSA’s system
is the example provided in the description of the Harvard College Admissions
Program, which Justice Powell both discussed in, and attached to, his opinion
in Bakke. The example was included to “illustrate the kind of
significance attached to race” under the
“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 *2429 achievement was lower
but who had demonstrated energy and leadership as well as an apparently abiding
interest in black power. If a good number of black students much like A but few
like B had already been admitted, the Committee might prefer B; and vice versa.
If C, a white student with extraordinary artistic talent, were also seeking one
of the remaining places, his unique quality might give him an edge over both A
and B. Thus, the critical criteria are often individual qualities or experience
not dependent upon race but sometimes associated with it.” Ibid.
(emphasis added).
This example further
demonstrates the problematic nature of the LSA’s admissions system. Even if
student C’s “extraordinary artistic talent” rivaled that of Monet or Picasso,
the applicant would receive, at most, five points under the LSA’s system. See
App. 234-235. At the same time, every single underrepresented minority
applicant, including students A and B, would automatically receive 20 points
for submitting an application. Clearly, the LSA’s system does not offer
applicants the individualized selection process described in Harvard’s example.
Instead of considering how the differing backgrounds,
experiences, and characteristics of students A, B, and C might benefit the
University, admissions counselors reviewing LSA applications would simply award
both A and B 20 points because their applications indicate that they are
African-American, and student C would receive up to 5 points for his
“extraordinary talent.” [FN20]
FN20. Justice SOUTER is therefore wrong when he contends that
“applicants to the undergraduate college are [not] denied individualized
consideration.” Post, at 2441. As Justice O’CONNOR explains in her
concurrence, the LSA’s program “ensures that the diversity contributions of
applicants cannot be individually assessed.” Post, at 2432.
Respondents emphasize the fact that the LSA has created the
possibility of an applicant’s file being flagged for individualized
consideration by the ARC. We think that the flagging program only emphasizes the
flaws of the University’s system as a whole when compared to that described by
Justice Powell. Again, students A, B, and C illustrate the point. First,
student A would never be flagged. This is because, as the University has
conceded, the effect of automatically awarding 20 points is that virtually
every qualified underrepresented minority applicant is admitted. Student A, an
applicant “with promise of superior academic performance,” would certainly fit
this description. Thus, the result of the
automatic distribution of 20 points is that the University would never consider
student A’s individual background, experiences, and characteristics to assess
his individual “potential contribution to diversity,” Bakke, supra, at
317, 98 S.Ct. 2733. Instead, every applicant like student A would simply be
admitted.
It is possible that students B and C would be flagged and
considered as individuals. This assumes that student B was not already admitted
because of the automatic 20-point distribution, and that student C could muster
at least 70 additional points. But the fact that the “review committee can look
at the applications individually and ignore the points,” once an application is
flagged, Tr. of Oral Arg. 42, is of little comfort under our strict scrutiny
analysis. The record does not reveal precisely how many applications are
flagged for this individualized consideration, but it is undisputed that such
consideration is the exception and not the rule in the operation of the LSA’s
admissions program. See App. to Pet. for Cert. 117a (“The ARC reviews only a
portion of all of the applications. The bulk of admissions decisions are
executed based on selection index score parameters set by the EWG”). [FN21] *2430 Additionally, this
individualized review is only provided after admissions counselors
automatically distribute the University’s version of a “plus” that makes race a
decisive factor for virtually every minimally qualified underrepresented
minority applicant.
FN21. Justice SOUTER is mistaken in his assertion that the Court
“take[s] it upon itself to apply a newly formulated legal standard to an
undeveloped record.” Post, at 2442, n. 3. He ignores the fact that the
respondents have told us all that is necessary to decide this case. As
explained above, respondents concede that only a portion of the applications
are reviewed by the ARC and that the “bulk of admissions decisions” are based
on the point system. It should be readily apparent that the availability of
this review, which comes after the automatic distribution of points, is
far more limited than the individualized review given to the “large middle
group of applicants” discussed by Justice Powell and described by the Harvard
plan in Bakke. 438
Respondents contend that “[t]he volume of applications and
the presentation of applicant information make it impractical for [LSA] to use
the ... admissions system” upheld by the Court today in Grutter. Brief
for Respondents 6, n. 8. But the fact that the implementation of a program
capable of providing individualized consideration might present administrative
challenges does not render constitutional an otherwise problematic system. See J.A.
Croson Co., 488
We conclude, therefore, that
because the University’s use of race in its current freshman admissions policy
is not narrowly tailored to achieve respondents’ asserted compelling interest
in diversity, the admissions policy violates the Equal Protection Clause of the
Fourteenth Amendment. [FN22] We further find
that the admissions policy also violates Title VI and 42 U.S.C. § 1981. [FN23] Accordingly, we reverse *2431
that portion of the District Court’s decision granting respondents summary
judgment with respect to liability and remand the case for proceedings
consistent with this opinion.
FN22. Justice GINSBURG in her dissent observes that “[o]ne can
reasonably anticipate ... that colleges and universities will seek to maintain
their minority enrollment ... whether or not they can do so in full candor
through adoption of affirmative action plans of the kind here at issue.” Post,
at 2446. She goes on to say that “[i]f honesty is the best policy, surely Michigan’s accurately
described, fully disclosed College affirmative action program is preferable to
achieving similar numbers through winks, nods, and disguises.” Ibid.
These observations are remarkable for two reasons. First, they suggest that
universities--to whose academic judgment we are told in Grutter v.
Bollinger, ante, at ----, 123 S.Ct., at 2339, 2003 WL 21433492, we should
defer--will pursue their affirmative-action programs whether or not they
violate the United States Constitution. Second, they recommend that these
violations should be dealt with, not by requiring the universities to obey the
Constitution, but by changing the Constitution so that it conforms to the
conduct of the universities.
FN23. We have explained that discrimination that violates the
Equal Protection Clause of the Fourteenth Amendment committed by an institution
that accepts federal funds also constitutes a violation of Title VI. See Alexander
v. Sandoval, 532
It is so ordered.
Justice O’CONNOR,
concurring. [FN*]
FN* Justice BREYER joins this
opinion, except for the last sentence.
I
Unlike the law school admissions policy the Court upholds
today in Grutter v. Bollinger, ante, 2325, 123 S.Ct. 2331, 2003 WL
21433492, the procedures employed by the University of Michigan’s (University)
Office of Undergraduate Admissions do not
provide for a meaningful individualized review of applicants. Cf. Regents of
Univ. of Cal. v. Bakke, 438
On cross-motions for summary judgment, the District Court
held that the admissions policy the
University instituted in 1999 and continues to use today passed constitutional
muster. See 122 F.Supp.2d 811, 827 (E.D.Mich.2000). In their proposed summary
of undisputed facts, the parties jointly stipulated to the admission policy’s
mechanics. App. to Pet. for Cert. 116a-118a. When the university receives an
application for admission to its incoming class, an admissions counselor turns
to a Selection Index Worksheet to calculate the applicant’s selection index
score out of 150 maximum possible points--a procedure the University began
using in 1998. App. 256. Applicants with a score of over 100 are automatically
admitted; applicants with scores of 95 to 99 are categorized as “admit or
postpone”; applicants with 90-94 points are postponed or admitted; applicants
with 75-89 points are delayed or postponed; and applicants with 74 points or
fewer are delayed or rejected. The Office of Undergraduate Admissions extends offers
of admission on a rolling basis and acts upon the applications it has received
through periodic “[m]ass [a]ction [s].” App. 256.
In calculating an applicant’s selection index score,
counselors assign numerical values to a broad range of academic factors, as
well as to other variables the University considers important to assembling a
diverse student body, including race. Up to 110 points can be assigned for
academic performance, and up to 40 points can be assigned for the other,
nonacademic factors.
In 1999, the University added another layer of review to
its admissions process. After an admissions counselor has tabulated an
applicant’s selection index score, he or she may “flag” an application for
further consideration by an Admissions Review Committee, which is composed of
members of the Office of Undergraduate Admissions and the Office of the
Provost. App. to Pet. for Cert. 117a. The review committee meets periodically
to discuss the files of “flagged” applicants not already admitted based on the
selection index parameters. App. 275. After discussing each flagged
application, the committee decides whether to admit, defer, or deny the
applicant. Ibid.
Counselors may flag an applicant for review by the
committee if he or she is academically prepared, has a selection index score of
at least 75 (for non-
II
Although the Office of Undergraduate Admissions does assign
20 points to some “soft” variables other than race, the points available for
other diversity contributions, such as leadership and service, personal
achievement, and geographic diversity, are capped at much lower levels. Even
the most outstanding national high school leader could never receive more than
five points for his or her accomplishments--a mere quarter of the points
automatically assigned to an underrepresented minority solely based on the fact
of his or her race. Of course, as Justice Powell made clear in Bakke, a university need not “necessarily accor[d]” all
diversity factors “the same weight,” 438 U.S., at 317, 98 S.Ct. 2733, and the
“weight attributed to a particular quality may vary from year to year depending
on the ‘mix’ both of the student body and the applicants for the incoming
class,” id., at 317- 318, 98 S.Ct. 2733. But the selection index, by
setting up automatic, predetermined point allocations for the soft variables,
ensures that the diversity contributions of applicants cannot be individually
assessed. This policy stands in sharp contrast to the law school’s admissions
plan, which enables admissions officers to make nuanced judgments with respect
to the contributions each applicant is likely to make to the diversity of the
incoming class. See Grutter v. Bollinger, ante, at ----, 123 S.Ct., at
2342, 2003 WL 21433492 (“[T]he Law School’s race-conscious admissions program
adequately ensures that all factors that may contribute to student body
diversity are meaningfully considered alongside race in admissions decisions”).
The only potential source of individualized consideration
appears to be the Admissions Review Committee. The evidence in the record,
however, reveals very little about how the review committee actually functions.
And what evidence there is indicates that the committee is a kind of
afterthought, rather than an integral component of a system of individualized
review. As the Court points out, it is undisputed that the “ ‘[committee]
reviews only a portion of all the applications.
The bulk *2433 of admissions decisions are executed based on selection
index score parameters set by the [Enrollment Working Group].’ “ Ante,
at 2429 (quoting App. to Pet for Cert. 117a). Review by the committee thus
represents a necessarily limited exception to the Office of Undergraduate
Admissions’ general reliance on the selection index. Indeed, the record does
not reveal how many applications admissions counselors send to the review
committee each year, and the University has not pointed to evidence
demonstrating that a meaningful percentage of applicants receives this level of
discretionary review. In addition, eligibility for consideration by the
committee is itself based on automatic cut-off levels determined with reference
to selection index scores. And there is no evidence of how the decisions are
actually made--what type of individualized consideration is or is not used.
Given these circumstances, the addition of the Admissions Review Committee to
the admissions process cannot offset the apparent absence of individualized
consideration from the Office of Undergraduate Admissions’ general practices.
For these reasons, the record before us does not support
the conclusion that the
Justice THOMAS,
concurring.
I join the Court’s opinion because I believe it correctly
applies our precedents, including today’s decision in Grutter v. Bollinger,
ante, 2325, 123 S.Ct., at 2350, 2003 WL 21433492. For similar reasons to
those given in my separate opinion in that case, see ante, 2325, 123
S.Ct., at 2350, 2003 WL 21433492 (opinion concurring in part and dissenting in
part), however, I would hold that a State’s use of racial discrimination in
higher education admissions is categorically prohibited by the Equal Protection
Clause.
I make only one further observation. The University of
Michigan’s College of Literature, Science, and the Arts (LSA) admissions policy
that the Court today invalidates does not suffer from the additional
constitutional defect of allowing racial “discriminat[ion] among [the] groups”
included within its definition of underrepresented minorities, Grutter,
ante, at ----, 123 S.Ct., at 2343, 2003 WL 21433492 (opinion of the Court);
post, at 2363 (THOMAS, J., concurring in part and dissenting in part),
because it awards all underrepresented minorities the same racial preference.
The LSA policy falls, however, because it
does not sufficiently allow for the consideration of nonracial distinctions
among underrepresented minority applicants. Under today’s decisions, a
university may not racially discriminate between the groups constituting the
critical mass. See ibid.; Grutter, ante, at ----, 123 S.Ct., at 2339,
2003 WL 21433492 (opinion of the Court) (stating that such “racial balancing
... is patently unconstitutional”). An admissions policy, however, must allow
for consideration of these nonracial distinctions among applicants on both
sides of the single permitted racial classification. See ante, at
2428-2429 (opinion of the Court); ante, at 2431 (O’CONNOR, J.,
concurring).
Justice BREYER,
concurring in the judgment.
I concur in the judgment of the Court though I do not join
its opinion. I join Justice O’CONNOR’S opinion except insofar as it joins that
of the Court. I join Part I of Justice GINSBURG’S dissenting opinion, but I do
not dissent from the Court’s reversal of the District Court’s *2434
decision. I agree with Justice GINSBURG that, in implementing the
Constitution’s equality instruction, government decisionmakers may properly
distinguish between policies of inclusion and exclusion, post, at 2444,
for the former are more likely to prove consistent with the basic
constitutional obligation that the law
respect each individual equally, see U.S. Const., Amdt. 14.
Justice STEVENS,
with whom Justice
SOUTER joins, dissenting.
Petitioners seek forward-looking relief enjoining the
FN1. In challenging the use of race in admissions at
I
Petitioner Jennifer Gratz applied in 1994 for admission to
the
At the class certification stage, petitioners sought to
have Hamacher represent a class pursuant to Federal Rule Civil Procedure
23(b)(2). [FN2] See App. 71, n. 3. In response,
FN2. Petitioners did not seek to have Gratz represent the class
pursuant to Federal Rule Civil Procedure 23(b)(2). See App. 71, n. 3.
FN3. In arguing that Hamacher lacked standing,
In subsequent proceedings, the District Court held that the
1995-1998 admissions system, which was in effect when both petitioners’
applications were denied, was unlawful but that
II
Both Hamacher and Gratz, of course, have standing to seek
damages as compensation for the alleged wrongful denial of their respective
applications under
FN4. In responding to questions about petitioners’ standing at
oral argument, petitioners’ counsel alluded to the fact that
Even though there is not a scintilla of evidence that the
freshman admissions program now being administered by respondents will ever
have any impact on either Hamacher or Gratz, petitioners nonetheless argue that
Hamacher has a personal stake in this suit because at the time the complaint
was filed, Hamacher intended to apply to transfer to Michigan once certain
admission policy changes occurred. [FN5] See
App. 34; see also Tr. of Oral *2436
FN5. Hamacher clearly can no longer claim an intent to transfer
into
Second, as petitioners’ counsel conceded at oral argument,
the transfer policy is not before this Court
and was not addressed by the District Court. See Tr. of Oral Arg. 4-5
(admitting that “[t]he transfer admissions policy itself is not before you--the
Court”). Unlike the University’s freshman policy, which is detailed at great
length in the Joint Appendix filed with this Court, the specifics of the
transfer policy are conspicuously missing from the Joint Appendix filed with
this Court. Furthermore, the transfer policy is not discussed anywhere in the
parties’ briefs. Nor is it ever even referenced in the District Court’s Dec.
13, 2000, opinion that upheld
FN6. Under the majority’s view of standing, there would be no end
to Hamacher’s ability to challenge any use of race by the University in a
variety of programs. For if Hamacher’s right to complain about the transfer
policy gives him standing to challenge the freshman policy, presumably
his ability to complain about the transfer policy likewise would enable
him to challenge Michigan’s law school admissions policy, as well as any
other race-based admissions policy used by Michigan.
Third, the differences between the freshman and the
transfer admissions policies make it extremely unlikely, at best, that an
injunction requiring respondents to modify the freshman admissions program
would have any impact on
The majority asserts that petitioners “have challenged any
use of race by the University in undergraduate admissions”--freshman and
transfer alike. Ante, at 2425, n. 16 (emphasis in original). Yet when
questioned at oral argument about whether petitioners’ challenge would impact
both private and public universities, petitioners’ counsel stated: “Your Honor,
I want to be clear about what it is that we’re arguing for here today. We
are not suggesting an absolute rule forbidding any use of race under any circumstances. What we are arguing is that
the interest asserted here by the University, this amorphous, ill-defined,
unlimited interest in diversity is not a compelling interest.” Tr. of Oral Arg.
14 (emphasis added). In addition, when asked whether petitioners took the
position that the only permissible use of race is as a remedy for past
discrimination, petitioners’ lawyer stated: “I would not go that far....
[T]here may be other reasons. I think they would have to be extraordinary and
rare ... .”
Because Michigan’s transfer policy was not challenged by
petitioners and is not before this Court, see supra, at 2436, we do not
know whether Michigan would defend its transfer policy on diversity grounds, or
whether it might try to justify its transfer policy on other grounds, such as a
remedial interest. Petitioners’ counsel was therefore incorrect in asserting at
oral argument that if the University’s asserted interest in “diversity” were to
be “struck down as a rationale, then the law would be [the] same with respect
to the transfer policy as with respect to the original [freshman admissions]
policy.” Tr. of Oral
At bottom, petitioners’ interest in obtaining an injunction
for the benefit of younger third parties is comparable to that of the
unemancipated minor who had no standing to litigate on behalf of older women in
H.L. v. Matheson, 450 U.S. 398, 406-407, 101 S.Ct. 1164, 67 L.Ed.2d 388
(1981), or that of the Medicaid patients transferred to less intensive care who
had no standing to litigate on behalf of patients objecting to transfers to
more intensive care facilities in Blum v. Yaretsky, 457 U.S., at 1001,
102 S.Ct. 2777. To have standing, it is elementary that the petitioners’ own
interests must be implicated. Because neither petitioner has a personal stake
in this suit for prospective relief, neither has standing.
III
It is true that the petitioners’ complaint was filed as a
class action and that Hamacher *2438 has been certified as the
representative of a class, some of whose members may well have standing to
challenge the LSA freshman admissions
program that is presently in effect. But the fact that “a suit may be a class
action ... adds nothing to the question of standing, for even named plaintiffs
who represent a class ‘must allege and show that they personally have been
injured, not that injury has been suffered by other, unidentified members of
the class to which they belong and which they purport to represent.’ “ Simon
v. Eastern Ky. Welfare Rights Organization, 426 U.S. 26, 40, n. 20, 96
S.Ct. 1917, 48 L.Ed.2d 450 (1976) (quoting Warth v. Seldin, 422 U.S.
490, 502, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975)); see also 1 A. Conte & H.
Newberg, Class Actions § 2:5 (4th ed. 2002) (“[O]ne cannot acquire individual
standing by virtue of bringing a class action”).
[FN7] Thus, in Blum, we squarely held that the interests of members of
the class could not satisfy the requirement that the class representatives have
a personal interest in obtaining the particular equitable relief being sought.
The class in Blum included patients who wanted a hearing before being
transferred to facilities where they would receive more intensive care. The
class representatives, however, were in the category of patients threatened
with a transfer to less intensive care facilities. In explaining why the named
class representatives could not base their standing to sue on the injury
suffered by other members of the class, we stated:
FN7. Of course, the injury to
Hamacher would give him standing to claim damages for past harm on behalf of
class members, but he was certified as the class representative for the limited
purpose of seeking injunctive and declaratory relief.
“Respondents suggest that members
of the class they represent have been transferred to higher levels of care as a
result of [utilization review committee] decisions. Respondents, however, ‘must
allege and show that they personally have been injured, not that injury has
been suffered by other, unidentified members of the class to which they belong
and which they purport to represent.’ Warth v. Seldin, 422
Much like the class representatives in Blum,
Hamacher--the sole class representative in this case--cannot meet Article III’s
threshold personal- stake requirement. While unidentified members of the class
he represents may well have standing to challenge
IV
As this case comes to us, our precedents leave us no
alternative but to dismiss the writ for lack of jurisdiction. Neither
petitioner has a personal stake in the outcome of the case, and neither has
standing to seek prospective relief on behalf of unidentified class members who
may or may not have standing to litigate on behalf of themselves. Accordingly,
I respectfully dissent.
Justice SOUTER,
with whom Justice
GINSBURG joins as to Part II, dissenting.
I agree with Justice STEVENS that Patrick Hamacher has no
standing to seek declaratory or injunctive relief against a freshman admissions
policy that will never cause him any harm. I write separately to note that even
the Court’s new gloss on the law of standing should not permit it to reach the
issue it decides today. And because a majority of the Court has chosen to
address the merits, I also add a word to say that even if the merits were
reachable, *2439 I would dissent from the Court’s judgment.
I
The Court’s finding of Article III standing rests on two
propositions: first, that both the
University of Michigan’s undergraduate college’s transfer policy and its
freshman admissions policy seek to achieve student body diversity through the
“use of race,” ante, at 2422-2426, and second, that Hamacher has
standing to challenge the transfer policy on the grounds that diversity can
never be a “compelling state interest” justifying the use of race in any
admissions decision, freshman or transfer, ante, at 2425. The Court
concludes that, because Hamacher’s argument, if successful, would seal the fate
of both policies, his standing to challenge the transfer policy also allows him
to attack the freshman admissions policy. Ibid., n. 16 (“[P]etitioners
challenged any use of race by the University to promote diversity, including
through the transfer policy”); ibid. (“ ‘[T]he University considers race
for a purpose to achieve a diversity that we believe is not compelling, and if
that is struck down as a rationale, then the [result] would be [the] same with
respect to the transfer policy as with respect to the [freshman] admissions
policy, Your Honor’ “ (quoting Tr. of Oral Arg. 7-8)). I agree with Justice
STEVENS’s critique that the Court thus ignores the basic principle of Article
III standing that a plaintiff cannot challenge a government program that does
not apply to him. See ante, at 2436, and n. 6 (dissenting opinion). [FN1]
FN1. The Court’s holding arguably
exposes a weakness in the rule of Blum v. Yaretsky, 457 U.S. 991, 102
S.Ct. 2777, 73 L.Ed.2d 534 (1982), that Article III standing may not be
satisfied by the unnamed members of a duly certified class. But no party has invited
us to reconsider Blum, and I follow Justice STEVENS in approaching the
case on the assumption that Blum is settled law.
But even on the Court’s indulgent standing theory, the
decision should not go beyond a recognition that diversity can serve as a
compelling state interest justifying race-conscious decisions in education. Ante,
at 2426-2427 (citing Grutter v. Bollinger, ante, at ---- - ----, 123
S.Ct., at 2338-2341, 2003 WL 21433492). Since, as the Court says, “petitioners
did not raise a narrow tailoring challenge to the transfer policy,” ante,
at 2425, n. 16, our decision in Grutter is fatal to Hamacher’s sole
attack upon the transfer policy, which is the only policy before this Court
that he claims aggrieved him. Hamacher’s challenge to that policy having
failed, his standing is presumably spent. The further question whether the
freshman admissions plan is narrowly tailored to achieving student body
diversity remains legally irrelevant to Hamacher and should await a plaintiff
who is actually hurt by it. [FN2]
FN2. For that matter, as the Court suggests, narrow tailoring
challenges against the two policies could well have different outcomes. Ante,
at 2425. The record on the decisionmaking process for transfer applicants is
understandably thin, given that petitioners never raised a narrow tailoring
challenge against it. Most importantly, however, the transfer policy does not
use a points-based “selection index” to evaluate transfer applicants, but
rather considers race as one of many factors in making the general
determination whether the applicant would make a “ ‘contribution to a diverse
student body.’ “ Ante, at 2425 (quoting 2 App. in No. 01-1333 etc.
(CA6), p. 531 (capitalization omitted)). This limited glimpse into the transfer
policy at least permits the inference that the University engages in a
“holistic review” of transfer applications consistent with the program upheld
today in Grutter v. Bollinger, ante, at ----, 123 S.Ct., at 2343-2344,
2003 WL 21433492.
II
The cases now contain two pointers toward the line between
the valid and the unconstitutional in race-conscious admissions schemes. Grutter
reaffirms the permissibility of individualized consideration of race to achieve
a diversity of students, at least where race
is not assigned a preordained value in all cases. On the other hand, Justice
Powell’s opinion in Regents *2440 of
The record does not describe a system with a quota like the
one struck down in Bakke, which “insulate[d]” all nonminority candidates
from competition from certain seats. Bakke, supra, at 317, 98 S.Ct. 2733
(opinion of Powell, J.); see also Richmond v. J.A. Croson Co., 488
The plan here, in contrast, lets all applicants compete for
all places and values an applicant’s offering for any place not only on grounds
of race, but on grades, test scores, strength of high school, quality of course
of study, residence, alumni relationships, leadership, personal character,
socioeconomic disadvantage, athletic ability, and quality of a personal essay. Ante,
at 2419-2420. A nonminority applicant who scores highly in these other
categories can readily garner a selection index exceeding that of a minority applicant
who gets the 20-point bonus. Cf. Johnson v. Transportation Agency, Santa
Clara Cty., 480 U.S. 616, 638, 107 S.Ct. 1442, 94 L.Ed.2d 615 (1987)
(upholding a program in which gender “was but one of numerous factors [taken]
into account in arriving at [a] decision” because “[n]o persons are
automatically excluded from consideration; all are able to have their
qualifications weighed against those of other applicants” (emphasis deleted)).
Subject to one qualification to be taken up below, this
scheme of considering, through the selection index system, all of the
characteristics that the college thinks relevant to student diversity for every
one of the student places to be filled fits Justice Powell’s description of a
constitutionally acceptable program: one that considers “all pertinent elements
of diversity in light of the particular qualifications of each applicant” and
places each element “on the same footing for
consideration, although not necessarily according them the same weight.” Bakke,
supra, at 317, 98 S.Ct. 2733. In the Court’s own words, “each
characteristic of a particular applicant [is] considered in assessing the
applicant’s entire application.” Ante, at 2428. An unsuccessful
nonminority applicant cannot complain that he was rejected “simply because he
was not the right color”; an applicant who is rejected because “his combined
qualifications ... did not outweigh those of the other applicant” has been
given an opportunity to compete with all other applicants. Bakke, supra,
at 318, 98 S.Ct. 2733 (opinion of Powell, J.).
The one qualification to this description of the admissions
process is that membership in an underrepresented minority is given a weight of
20 points on the 150-point scale. On the face of things, however, this
assignment of specific points does not set race apart from all other weighted
considerations. Nonminority students may receive 20 points for athletic
ability, socioeconomic disadvantage, attendance at a socioeconomically
disadvantaged or predominantly minority high school, or at the Provost’s
discretion; they may also receive 10 points for being residents of Michigan, *2441
6 for residence in an underrepresented Michigan county, 5 for leadership and
service, and so on.
The Court nonetheless finds fault with a scheme that “automatically”
distributes 20 points to minority applicants
because “[t]he only consideration that accompanies this distribution of points
is a factual review of an application to determine whether an individual is a
member of one of these minority groups.” Ante, at 2428. The objection
goes to the use of points to quantify and compare characteristics, or to the
number of points awarded due to race, but on either reading the objection is
mistaken.
The very nature of a college’s permissible practice of
awarding value to racial diversity means that race must be considered in a way
that increases some applicants’ chances for admission. Since college admission
is not left entirely to inarticulate intuition, it is hard to see what is
inappropriate in assigning some stated value to a relevant characteristic,
whether it be reasoning ability, writing style, running speed, or minority
race. Justice Powell’s plus factors necessarily are assigned some values. The college
simply does by a numbered scale what the law school accomplishes in its
“holistic review,” Grutter, ante, at ----, 123 S.Ct., at 2343, 2003 WL
21433492; the distinction does not imply that applicants to the undergraduate
college are denied individualized consideration or a fair chance to compete on
the basis of all the various merits their applications may disclose.
Nor is it possible to say that the 20 points convert race
into a decisive factor comparable to reserving minority places as in Bakke.
Of course we can conceive of a point system
in which the “plus” factor given to minority applicants would be so extreme as
to guarantee every minority applicant a higher rank than every nonminority
applicant in the university’s admissions system, see 438 U.S., at 319, n. 53,
98 S.Ct. 2733 (opinion of Powell, J.). But petitioners do not have a convincing
argument that the freshman admissions system operates this way. The present
record obviously shows that nonminority applicants may achieve higher selection
point totals than minority applicants owing to characteristics other than race,
and the fact that the university admits “virtually every qualified
under-represented minority applicant,” App. to Pet. for Cert. 111a, may reflect
nothing more than the likelihood that very few qualified minority applicants
apply, Brief for Respondents Bollinger et al. 39, as well as the possibility
that self-selection results in a strong minority applicant pool. It suffices
for me, as it did for the District Court, that there are no Bakke-like
set-asides and that consideration of an applicant’s whole spectrum of ability
is no more ruled out by giving 20 points for race than by giving the same
points for athletic ability or socioeconomic disadvantage.
Any argument that the “tailoring” amounts to a set-aside,
then, boils down to the claim that a plus factor of 20 points makes some
observers suspicious, where a factor of 10 points might not. But suspicion does
not carry petitioners’ ultimate burden of
persuasion in this constitutional challenge, Wygant v. Jackson Bd. of Ed.,
476 U.S. 267, 287-288, 106 S.Ct. 1842, 90 L.Ed.2d 260 (1986) (plurality opinion
of Powell, J.), and it surely does not warrant condemning the college’s
admissions scheme on this record. Because the District Court (correctly, in my
view) did not believe that the specific point assignment was constitutionally
troubling, it made only limited and general findings on other characteristics
of the university’s admissions practice, such as the conduct of individualized
review by the Admissions Review Committee. 122 F.Supp.2d 811, 829-830
(E.D.Mich.2000). As the Court indicates, we know very little about the actual
role of the review committee. Ante, at 2429 (“The record does not reveal
precisely how many applications are flagged for this individualized *2442
consideration [by the committee]”); see also ante, at 2432 (O’CONNOR,
J., concurring) (“The evidence in the record ... reveals very little about how
the review committee actually functions”). The point system cannot operate as a
de facto set-aside if the greater admissions process, including review
by the committee, results in individualized review sufficient to meet the
Court’s standards. Since the record is quiet, if not silent, on the
case-by-case work of the committee, the Court would be on more defensible
ground by vacating and remanding for evidence about the committee’s specific
determinations. [FN3]
FN3. The Court surmises that the committee does not contribute
meaningfully to the University’s individualized review of applications. Ante,
at 2429-2430. The Court should not take it upon itself to apply a
newly-formulated legal standard to an undeveloped record. Given the District
Court’s statement that the committee may examine “any number of applicants,
including applicants other than under-represented minority applicants,” 122
F.Supp.2d 811, 830 (E.D.Mich.2000), it is quite possible that further factual
development would reveal the committee to be a “source of individualized
consideration” sufficient to satisfy the Court’s rule, ante, at 2432
(O’CONNOR, J., concurring). Determination of that issue in the first instance
is a job for the District Court, not for this Court on a record that is
admittedly lacking.
Without knowing more about how the Admissions Review
Committee actually functions, it seems especially unfair to treat the candor of
the admissions plan as an Achilles’ heel. In contrast to the college’s
forthrightness in saying just what plus factor it gives for membership in an
underrepresented minority, it is worth considering the character of one
alternative thrown up as preferable, because supposedly not based on race.
Drawing on admissions systems used at public
universities in
While there is nothing unconstitutional about such a
practice, it nonetheless suffers from a serious disadvantage. [FN4] It is the disadvantage of deliberate
obfuscation. The “percentage plans” are just as race conscious as the point
scheme (and fairly so), but they get their racially diverse results without
saying directly what they are doing or why they are doing it. In contrast,
FN4. Of course it might be pointless in the State of
III
If this plan were challenged by a plaintiff with proper
standing under Article III, I would affirm the judgment of the District Court
granting summary judgment to the college. As it is, I would vacate the judgment
for lack of jurisdiction, and I respectfully dissent.
Justice GINSBURG,
with whom Justice
SOUTER joins, dissenting. [FN*]
FN* Justice BREYER joins Part I
of this opinion.
I
Educational institutions, the Court acknowledges, are not
barred from any and all consideration of race when making admissions decisions.
Ante, at 2426- 2427; see Grutter v. Bollinger, ante, at ---- -
----, 123 S.Ct., at 2337- 2341, 2003 WL 21433492. But the Court once again
maintains that the same standard of review controls judicial inspection of all
official race classifications. Ante, at 2427 (quoting *2443 Adarand
Constructors, Inc. v. Peña, 515
In the wake “of a system of racial caste only recently
ended,” id., at 273, 115 S.Ct. 2097 (GINSBURG, J., dissenting), large
disparities endure. Unemployment, [FN1]
poverty, [FN2] and access to health care
[FN3] vary disproportionately by race. Neighborhoods and schools remain
racially divided. [FN4] African-American and
Hispanic children are all too often educated in poverty-stricken and
underperforming institutions. [FN5] Adult
African-Americans and Hispanics generally earn less than whites with equivalent
levels of education. [FN6] Equally
credentialed job applicants receive different receptions depending on their
race. [FN7] Irrational prejudice is still
encountered in real estate *2444 markets [FN8] and consumer
transactions. [FN9] “Bias both conscious and
unconscious, reflecting traditional and unexamined habits of thought, keeps up
barriers that must come down if equal opportunity and nondiscrimination are ever
genuinely to become this country’s law and
practice.”
FN1. See, e.g., U.S. Dept. of Commerce, Bureau of Census,
Statistical Abstract of the United States: 2002, p. 368 (2002) (Table 562)
(hereinafter Statistical Abstract) (unemployment rate among whites was 3.7% in
1999, 3.5% in 2000, and 4.2% in 2001; during those years, the unemployment rate
among African-Americans was 8.0%, 7.6%, and 8.7%, respectively; among
Hispanics, 6.4%, 5.7%, and 6.6%).
FN2. See, e.g., U.S. Dept of Commerce, Bureau of Census,
Poverty in the United States: 2000, p. 291 (2001) (Table A) (In 2000, 7.5% of
non- Hispanic whites, 22.1% of African-Americans, 10.8% of Asian-Americans, and
21.2% of Hispanics were living in poverty); S. Staveteig & A. Wigton,
Racial and Ethnic Disparities: Key Findings from the National Survey of
America’s Families 1 (Urban Institute Report B-5, 2000) (“Blacks, Hispanics,
and Native Americans ... each have poverty rates almost twice as high as Asians
and almost three times as high as whites.”).
FN3. See, e.g., U.S. Dept. of Commerce, Bureau of Census,
Health Insurance Coverage: 2000, p. 391 (2001) (Table A) (In 2000, 9.7% of non-
Hispanic whites were without health insurance, as compared to 18.5% of
African-Americans, 18.0% of Asian-Americans, and 32.0% of Hispanics.); Waidmann
& Rajan, Race and Ethnic Disparities in Health Care Access and Utilization:
An Examination of State Variation, 57 Med. Care Res. and Rev. 55, 56 (2000)
(“On average, Latinos and African Americans have both worse health and worse
access to effective health care than do non-Hispanic whites ... .”).
FN4. See, e.g., U.S. Dept. of Commerce, Bureau of Census,
Racial and Ethnic Residential Segregation in the United States: 1980-2000
(2002) (documenting residential segregation); E. Frankenberg, C. Lee, & G.
Orfield, A Multiracial Society with Segregated Schools: Are We Losing the
Dream? 4 (Jan.2003), http://
www.civilrightsproject.harvard.edu/research/reseg03/AreWeLosingtheDream.pdf
(all Internet materials as visited June 2, 2003, and available in Clerk of
Court’s case file), (“[W]hites are the most segregated group in the nation’s
public schools; they attend schools, on average, where eighty percent of the student body is white.”); id.,
at 28 (“[A]lmost three- fourths of black and Latino students attend schools
that are predominantly minority .... More than one in six black children attend
a school that is 99-100% minority .... One in nine Latino students attend
virtually all minority schools.”).
FN5. See, e.g., Ryan, Schools, Race, and Money, 109 Yale
L.J. 249, 273-274 (1999) (“Urban public schools are attended primarily by
African- American and Hispanic students”; students who attend such schools are
disproportionately poor, score poorly on standardized tests, and are far more
likely to drop out than students who attend nonurban schools.).
FN6. See, e.g., Statistical Abstract 140 (Table 211).
FN7. See, e.g., Holzer, Career Advancement Prospects and
Strategies for Low-Wage Minority Workers, in Low-Wage Workers in the New
Economy 228 (R. Kazis & M. Miller eds. 2001) (“[I]n studies that have sent
matched pairs of minority and white applicants with apparently equal
credentials to apply for jobs, whites routinely get more interviews and job
offers than either black or Hispanic applicants.”); M. Bertrand & S.
Mullainathan, Are Emily and Brendan More
Employable than Lakisha and Jamal?: A Field Experiment on Labor Market
Discrimination (Nov. 18, 2002), http:// gsb.uchicago.edu/pdf/bertrand.pdf;
Mincy, The Urban Institute Audit Studies: Their Research and Policy Context, in
Clear and Convincing Evidence: Measurement of Discrimination in America 165-186
(M. Fix & R. Struyk eds.1993).
FN8. See, e.g., M. Turner et al., Discrimination in
Metropolitan Housing Markets: National Results from Phase I HDS 2000, pp. i,
iii (Nov.2002), http://www.huduser.org/Publications/pdf/Phase1_Report.pdf
(paired testing in which “two individuals--one minority and the other
white--pose as otherwise identical homeseekers, and visit real estate or rental
agents to inquire about the availability of advertised housing units” revealed
that “discrimination still persists in both rental and sales markets of large
metropolitan areas nationwide”); M. Turner & F. Skidmore, Mortgage Lending
Discrimination: A Review of Existing Evidence 2 (1999) (existing research
evidence shows that minority homebuyers in the United States “face
discrimination from mortgage lending institutions.”).
FN9. See, e.g., Ayres, Further Evidence of Discrimination
in New Car Negotiations and Estimates of its
Cause, 94
The Constitution instructs all who act for the government
that they may not “deny to any person ... the equal protection of the laws.”
Amdt. 14, § 1. In implementing this equality instruction, as I see it,
government decisionmakers may properly distinguish between policies of
exclusion and inclusion. See Wygant v. Jackson Bd. of Ed., 476
Our jurisprudence ranks race a “suspect” category, “not
because [race] is inevitably an impermissible classification, but because it is
one which usually, to our national shame, has been drawn for the purpose of
maintaining racial inequality.” Norwalk Core v. Norwalk Redevelopment
Agency, 395 F.2d 920, 931-932 (C.A.2 1968) (footnote omitted). But where
race is considered “for the purpose of achieving equality,” id., at 932,
no automatic proscription is in order. For, as insightfully explained, “[t]he
Constitution is both color blind and color conscious. To avoid conflict with
the equal protection clause, a classification that denies a benefit, causes
harm, or imposes a burden must not be based on race. In that sense, the
Constitution is color blind. But the Constitution is color conscious to prevent
discrimination being perpetuated and to undo the effects of past
discrimination.” United States v. Jefferson County Bd. of Ed., 372 F.2d
836, 876 (C.A.5 1966) (Wisdom, J.); see Wechsler, The Nationalization Of Civil
Liberties And Civil Rights, Supp. to 12 Tex. Q. 10, *2445 23 (1968) (Brown
may be seen as disallowing racial classifications that “impl[y] an invidious
assessment” while allowing such classifications when “not invidious in
implication” but advanced to “correct
inequalities”). Contemporary human rights documents draw just this line; they
distinguish between policies of oppression and measures designed to accelerate de
facto equality. See Grutter, ante, at ----, 123 S.Ct., at 2347, 2003
WL 21433492 (GINSBURG, J., concurring) (citing the United Nations- initiated
Conventions on the Elimination of All Forms of Racial Discrimination and on the
Elimination of All Forms of Discrimination against Women).
The mere assertion of a laudable governmental purpose, of course,
should not immunize a race-conscious measure from careful judicial inspection.
II
Examining in this light the admissions policy employed by
the
FN10. The
*2446 The stain of generations of racial oppression is still visible in
our society, see Krieger, 86 Calif. L.Rev., at 1253, and the determination to
hasten its removal remains vital. One can reasonably anticipate, therefore,
that colleges and universities will seek to maintain their minority
enrollment--and the networks and opportunities thereby opened to minority
graduates--whether or not they can do so in full candor through adoption of
affirmative action plans of the kind here at issue. Without recourse to such plans, institutions of higher education may
resort to camouflage. For example, schools may encourage applicants to write of
their cultural traditions in the essays they submit, or to indicate whether
English is their second language. Seeking to improve their chances for
admission, applicants may highlight the minority group associations to which
they belong, or the Hispanic surnames of their mothers or grandparents. In
turn, teachers’ recommendations may emphasize who a student is as much as what
he or she has accomplished. See, e.g., Steinberg, Using Synonyms for
Race, College Strives for Diversity, N.Y. Times, Dec. 8, 2002, section 1, p. 1,
col. 3 (describing admissions process at Rice University); cf. Brief for United
States as Amicus Curiae 14-15 (suggesting institutions could consider, inter
alia, “a history of overcoming disadvantage,” “reputation and location of
high school,” and “individual outlook as reflected by essays”). If honesty is
the best policy, surely
FN11. Contrary to the Court’s contention, I do not suggest
“changing the Constitution so that it conforms to the conduct of the
universities.” Ante, at 2430, n. 22. In my view, the Constitution,
properly interpreted, permits government
officials to respond openly to the continuing importance of race. See supra,
at 2444-2445. Among constitutionally permissible options, those that candidly
disclose their consideration of race seem to me preferable to those that
conceal it.
* * *
For the reasons stated, I would affirm the judgment of the
District Court.
[1]
Although Hamacher indicated that he “intend[ed] to
apply to transfer if the [LSA’s] discriminatory admissions system [is]
eliminated,” he has since graduated from