A nominee for the most difficult-to-follow decision in the history of the Supreme Court, Bakke produced no less than six separate opinions. We're going to focusing on the Powell middle-ground opinion, the blistering dissenting of Thurgood Marshall, and the anti-affirmative action arguments of John Paul Stevens.
MR. JUSTICE POWELL announced the judgment of the Court.
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.
MR. JUSTICE WHITE concurring in the judgment
MR. JUSTICE BRENNAN, MR. JUSTICE WHITE, MR. JUSTICE MARSHALL, and MR. JUSTICE BLACKMUN, concurring in the judgment in part and dissenting in part.
MR. JUSTICE BLACKMUN. concurring in the judgment
MR. JUSTICE MARSHALL. concurring in the judgment in part and dissenting in part.
[We begin with the facts of the case.]
The Medical School of the University of California at Davis
(hereinafter Davis) had two admissions programs for the entering 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 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 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,
but is reversed insofar as it prohibits petitioner from taking race into account as a
factor in its future admissions decisions.
[A summary of the basic arguments of the Justices. Which do you find most persuasive? Why?]
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. 281-287.
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. 287-320.
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. 320.
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. 328-355.
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. 355-379.
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. 408-421.
MR. JUSTICE POWELL announced the judgment of the Court.
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 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 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.* It modified that portion of the
judgment denying respondent's requested injunction and directed the trial court to order
his admission.
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.
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.
[We begin with a summary of the facts and a legislative
history of the 1964 Civil Rights Act. Move on.]
I**
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. 1 The special
program consisted of a separate admissions system operating in coordination with the
regular admissions process.
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, 2
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 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. 3 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.
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, candidates were asked to indicate whether they wished to be considered as
"economically and/or educationally disadvantaged" applicants; on the 1974 form
the question was 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" 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. 4 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. 5 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.
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, and 37 Asians, for a total of 44
minority students. 6
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.
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.
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. 7
After the second rejection, Bakke filed the instant suit in the
Superior Court of California. 8 He sought mandatory, injunctive,
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 school on the
basis of his race, in violation of his rights under the Equal Protection Clause of the
Fourteenth Amendment, 9
Art. I, § 21, of the California Constitution, 10 and § 601 of Title VI of the
Civil Rights Act of 1964, 78 Stat. 252, 42 U. S. C. § 2000d. 11 The University cross-complained
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 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.
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,
553 P. 2d 1152, 1156 (1976). The California court accepted the findings of the trial court
with respect to the University's program. 12 Because the special admissions
program involved a racial classification, the Supreme Court held itself bound to apply
strict scrutiny. Id., at 49, 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,
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 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, 553 P. 2d, at
1166.
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. 13 Id., at 63-64, 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 (1976). 18 Cal. 3d, at 63-64, 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. 14 The 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, 553 P. 2d, at 1172. That order was
stayed pending review in this Court. 429 U.S. 953 (1976). We granted certiorari to
consider the important constitutional issue. 429 U.S. 1090 (1977).
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 (1936) (concurring opinion), we requested supplementary briefing on the statutory
issue. 434 U.S. 900 (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 the test set forth in Cort v. Ash, 422 U.S. 66, 78 (1975). He contends
that the statute creates a federal right in his favor, that legislative history reveals an
intent to permit private actions, 15 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. 16
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. 17 In its view, administrative
curtailment of federal funds under that section was the only sanction to be imposed upon
recipients that 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). 18
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 (1940). See also Massachusetts v. Westcott, 431 U.S. 322 (1977); Cardinale v.
Louisiana, 394 U.S. 437, 439 (1969). Cf. Singleton v. Wulff, 428 U.S. 106, 121 (1976). We
therefore do not address this difficult issue. Similarly, we need not pass 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 (1974) (STEWART, J.,
concurring in result).
B
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 (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 (1976), quoting United States v. American Trucking
Assns., 310 U.S. 534, 543-544 (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 colorblind scheme, 19 without regard to the reach of
the Equal Protection 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.
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. 20
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.
In addressing that problem, supporters of Title VI repeatedly
declared that the bill enacted constitutional principles. For example, 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 surplus supplies
when white persons were given such food. It would assure Negroes the benefits now accorded
only white students in programs of [higher] 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. 21
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. 22
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, 23 but proponents
of the bill merely replied that the meaning of "discrimination" would be made
clear by reference to the Constitution or other existing law. For example, Senator
Humphrey noted the relevance of the Constitution:
"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. 24
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 (1938);
Sipuel v. Board of Regents, 332 U.S. 631 (1948); Sweatt v. Painter, 339 U.S. 629 (1950);
McLaurin v. Oklahoma State Regents, 339 U.S. 637 (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 (1943); Korematsu v. United States, 323 U.S. 214
(1944); Lee v. Washington, 390 U.S. 333, 334 (1968) (Black, Harlan, and STEWART, JJ.,
concurring); United Jewish Organizations v. Carey, 430 U.S. 144 (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 applied in our cases. That level of review, petitioner asserts,
should be reserved for classifications that disadvantage "discrete and insular
minorities." See United States v. Carolene Products Co., 304 U.S. 144, 152 n. 4
(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 (1948).
En route to this crucial battle over the scope of judicial review, 25 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. 26
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. 27
The guarantees of the Fourteenth Amendment extend to all persons.
Its language 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. Accord, Missouri ex rel. Gaines v. Canada, supra, at
351; McCabe v. Atchison, T. & S. F. R. Co., 235 U.S. 151, 161-162 (1914). The
guarantee of equal protection cannot mean one thing when applied to one individual and
something else when applied to a person of another color. If both are not accorded the
same protection, then it is not equal.
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, at
152-153, n. 4. 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. 28 See, e. g., Skinner v. Oklahoma
ex rel. Williamson, 316 U.S. 535, 541 (1942); Carrington v. Rash, 380 U.S. 89, 94-97
(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 (1976) (age); San Antonio Independent School Dist. v.
Rodriguez, 411 U.S. 1, 28 (1973) (wealth); Graham v. Richardson, 403 U.S. 365, 372 (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:
"Distinctions between citizens solely because of their ancestry
are by their very nature odious to a free people whose institutions are founded upon the
doctrine of equality." Hirabayashi, 320 U.S., at 100.
"[All] 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.
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 that freedom, and the protection
of the newly-made freeman and citizen from the oppressions of those who had formerly
exercised dominion over him." Slaughter-House Cases, 16 Wall. 36, 71 (1873). The
Equal Protection Clause, however, was "[virtually] strangled in infancy by
post-civil-war judicial reactionism." 29 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 (1887); Allgeyer v.
Louisiana, 165 U.S. 578 (1897); Lochner v. New York, 198 U.S. 45 (1905). In that cause,
the Fourteenth Amendment's "one pervading purpose" was displaced. See, e. g.,
Plessy v. Ferguson, 163 U.S. 537 (1896). It was only as the era of substantive due process
came to a close, see, e. g., Nebbia v. New York, 291 U.S. 502 (1934); West Coast Hotel Co.
v. Parrish, 300 U.S. 379 (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
(1938); Skinner v. Oklahoma ex rel. Williamson, supra.
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. 30
Each had to struggle 31 -- and to some extent struggles
still 32 -- 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. 33 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 (1880) (Celtic Irishmen) (dictum); Yick Wo v.
Hopkins, 118 U.S. 356 (1886) (Chinese); Truax v. Raich, 239 U.S. 33,
41 (1915) (Austrian resident aliens); Korematsu, supra (Japanese); Hernandez v. Texas, 347
U.S. 475 (1954) (Mexican-Americans). The guarantees of equal protection, said the Court in
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.
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 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
(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 (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 "[protects] 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 equal laws," Yick Wo, supra, at 369, in a Nation
confronting a legacy of slavery and racial discrimination. See, e. g., Shelley v. Kraemer,
334 U.S. 1 (1948); Brown v. Board of Education, 347 U.S. 483 (1954); Hills v. Gautreaux,
425 U.S. 284 (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 "[over] the years, this Court has consistently
repudiated '[distinctions] 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 (1967), quoting Hirabayashi, 320 U.S.,
at 100.
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." 34
The clock of our liberties, however, cannot be turned back to 1868. Brown v. Board of
Education, supra, at 492; accord, Loving v. Virginia, supra, at 9. It is far too late to
argue that the guarantee of equal protection to all persons permits the recognition of
special wards entitled to a degree of protection greater than that accorded others. 35 "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.
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 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. 36 Courts would be asked to evaluate
the extent of the prejudice and consequent 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 analysis necessary to produce such rankings simply does not lie
within the judicial competence -- even if they otherwise were politically feasible and
socially desirable. 37
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 (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 (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 racial and ethnic antagonisms rather than
alleviate them. United Jewish Organizations, supra, at 173-174 (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 one generation to the next, a critical feature of its coherent
interpretation. Pollock v. Farmers' Loan & Trust Co., 157 U.S. 429, 650-651 (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 (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. 38 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 Constitutional guarantees that right to every person regardless
of his background. Shelley v. Kraemer, 334 U.S., at 22; Missouri ex rel. Gaines v. Canada,
305 U.S., at 351.
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 (1971); McDaniel v. Barresi, 402 U.S.
39 (1971); Green v. County School Board, 391 U.S. 430 (1968). Racial classifications thus
were designed as remedies for the vindication of constitutional entitlement. 39 Moreover, the scope of the
remedies was not permitted to exceed the extent of the violations. E. g., Dayton Board of
Education v. Brinkman, 433 U.S. 406 (1977); Milliken v. Bradley, 418 U.S. 717 (1974); see
Pasadena City Board of Education v. Spangler, 427 U.S. 424 (1976). See also Austin
Independent School Dist. v. United States, 429 U.S. 990, 991-995 (1976) (POWELL, J.,
concurring). Here, there was no judicial determination of constitutional violation as a
predicate for the formulation of a remedial classification.
The employment discrimination cases also do not advance petitioner's
cause. For example, in Franks v. Bowman Transportation Co., 424 U.S. 747 (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, quoting Albermarle Paper Co. v. Moody, 422
U.S. 405, 418 (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 (CA3), cert. denied, 404 U.S. 854 (1971); 40 Associated General Contractors of
Massachusetts, Inc. v. Altshuler, 490 F.2d 9 (CA1 1973), cert. denied, 416 U.S. 957
(1974); cf. Katzenbach v. Morgan, 384 U.S. 641 (1966). But we have never approved
preferential classifications in the absence of proved constitutional or statutory
violations. 41
Nor is petitioner's view as to the applicable standard supported by
the fact that gender-based classifications are not subjected to this level of scrutiny. E.
g., Califano v. Webster, 430 U.S. 313, 316-317 (1977); Craig v. Boren, 429 U.S. 190, 211
n. (1976) (POWELL, J., concurring). Gender-based distinctions are less likely to create
the analytical and practical 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 (1977); Weinberger v. Wiesenfeld, 420 U.S. 636, 645
(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 (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.
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.
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.
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 (STEWART, J., concurring in result).
In a similar vein, 42 petitioner contends that our
recent decision in United Jewish Organizations v. Carey, 430 U.S. 144 (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 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.
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.
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 (1973) (footnotes omitted); Loving v. Virginia, 388 U.S.,
at 11; McLaughlin v. Florida, 379 U.S. 184, 196 (1964). The special admissions 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; 43
(iii) increasing 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.
A
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, at 11; McLaughlin v. Florida, supra, at 196; Brown v. Board of Education, 347 U.S.
483 (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.
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
(1977); United Jewish Organizations, 430 U.S., at 155-156; South Carolina v. Katzenbach,
383 U.S. 301, 308 (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 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, 44
it cannot be said that 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.
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. 45 Cf. Hampton v. Mow Sun Wong, 426
U.S. 88 (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; Califano v.
Goldfarb, 430 U.S., at 212-217. Lacking this capability, petitioner has not carried its
burden of justification on this issue.
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 (1976).
C
Petitioner identifies, as another purpose of its program, improving
the delivery of 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. 46 The court below addressed this
failure of proof:
"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 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, 553 P. 2d,
at 1167. 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. 47
D
The fourth goal asserted by petitioner is the attainment of a
diverse student body. This clearly is a constitutionally permissible 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 (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
(1967):
"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, 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. 48 As the Court 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.
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, the 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. 49
Ethnic diversity, however, is only one element in a range of factors
a university 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 program's racial
classification is necessary to promote this interest. In re Griffiths, 413 U.S., at
721-722.
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. 50
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.
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 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 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, 51 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 particular quality may vary from year
to year depending upon the "mix" both of the student body and the applicants for
the incoming class.
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. 52
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 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 (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 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 (1977); Washington v.
Davis, 426 U.S. 229 (1976); Swain v. Alabama, 380 U.S. 202 (1965). 53
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 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. 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
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
With respect to respondent's entitlement to an injunction directing
his admission 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. 54
A
7 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)
SGPA | OGPA | Verbal | Quantitative | Science | General Information | |
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)
SGPA | OGPA | Verbal | Quantitative | Science | General Information | |
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.