SPECIAL ADMISSIONS PROGRAM IS
UNDENIABLY A CLASSIFICATION BASED ON
RACE AND ETHNIC BACKGROUND
I. Introduction
A. The Standard of Scrutiny
The first university affirmative action case to come before the Court was Regents of the University of
California v. Bakke, 438 U.S. 265 (1978). It resulted in a highly fractured decision and highlights many of
the doctrinal and theoretical issues that continue to permeate affirmative action.
The University of California at Davis Medical School twice rejected Allan Bakke, a white man, for
admission for two years. The Medical School’s admissions goal was 100 students, with 16 seats in the
“special admissions program” for applicants who wished to be considered as members of a “minority
group,” “which the Medical School apparently viewed as “Blacks,” “Chicanos,” “Asians,” and “American
Indians.” He sued in California state court on the basis of the Fourteenth Amendment’s Equal Protection
Clause, as well as the California constitution, and statutes. The California Supreme Court ruled in his favor
on the Equal Protection claim.
The United States Supreme Court’s decision affirmed the California Supreme Court, but there was no clear
majority opinion. Justice Powell, however, rendered the “judgment of the Court” – – – yet Justice Powell
was the only Justice in this majority judgment who rested his decision on the Equal Protection Clause; the
other Justices who ruled in favor of Bakke and against the university rested their decision on Title VI of the
Civil Rights Act. On the other hand, four Justices – – – Brennan, White, Marshall, and Blackmun – – –
would have ruled that the university special admissions program did not violate the Equal Protection Clause.
Powell contended that strict scrutiny should apply:
En route to this crucial battle over the scope of judicial review, 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.
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.
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. Accord, Missouri ex rel. Gaines
v. Canada. 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. 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. 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. 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.
Justice Powell then considered the interests asserted and whether the means chosen (the 16 seats) was
narrowly tailored to achieve that interest. The purposes put forward by the university were these:
1. “reducing the historic deficit of traditionally disfavored minorities in medical schools and in the
medical profession,”
2. countering the effects of societal discrimination;
3. increasing the number of physicians who will practice in communities currently underserved; and
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4. obtaining the educational benefits that flow from an ethnically diverse student body.
Powell rejected the first interest as facially invalid because it prefers one group over another. He concluded
that the university did not have a sufficient basis or competency to make a finding of societal discrimination.
As to the third, he found that while “a State’s interest in facilitating the health care of its citizens” might be
“sufficiently compelling to support the use of a suspect classification,” here there was not a close enough
fit because 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.” Finally, Powell concluded that attainment of a
diverse student body “clearly is a constitutionally permissible goal for an institution of higher education.”
However, again the university program was not sufficiently narrowly tailored for Powell:
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.
Powell lauded the Harvard College Admissions Program and appended a description of the policy to his
opinion.
For the oft-called “Brennan four,” the university’s affirmative action plan should be subject only to
intermediate scrutiny rather than strict scrutiny. Generally, intermediate scrutiny requires an important
(rather than compelling) government interest that is served by substantially related means (rather than
narrowly tailored). While the Brennan four recognized that there was a racial classification, they argued
that it was a benign (rather than invidious) classification. They would have held that the University of
California at Davis satisfied this intermediate scrutiny standard.
Justice Blackmun, who joined the Brennan four, also wrote separately and stated:
I suspect that it would be impossible to arrange an affirmative action program in a racially neutral way and
have it successful. To ask that this be so is to demand the impossible. In order to get beyond racism, we
must first take account of race. There is no other way. And in order to treat some persons equally, we must
treat them differently. We cannot—we dare not—let the Equal Protection Clause perpetuate racial
supremacy.
Note: Fullilove and Wygant
During the 1980s, the increasingly divisive “affirmative action” debate included the legal issue of how
affirmative action programs and policies should be evaluated by courts. The United States Supreme Court’s
opinions did little to solve the issue because the Court itself was divided.
In Fullilove v. Klutznick, 448 U.S. 448 (1980), a 6 Justice majority upheld the “minority business
enterprise” (MBE) provision of the federal Public Works Employment Act of 1977 which required that,
absent an administrative waiver, at least 10% of federal funds granted for local public works projects must
be used by the state or local grantee to procure services or supplies from businesses owned by minority
group members, defined as United States citizens “who are Negroes, Spanish-speaking, Orientals, Indians,
Eskimos, and Aleuts.” The main plurality opinion, by Chief Justice Burger, joined by two other Justices
(White and Powell), concluded that the “remedial” MBE program on its face did not violate the equal
protection component of the Due Process Clause of the Fifth Amendment. Burger’s opinion rejected
arguments that the MBE program was underinclusive or overinclusive. Three other Justices, in an opinion
by Justice Thurgood Marshall and joined by Brennan and Blackmun, concurred, but concluded that the
proper inquiry for determining the constitutionality of racial classifications that provide benefits to
minorities for the purpose of remedying the present effects of past racial discrimination is whether the
classifications serve important governmental objectives and are substantially related to achievement of
those objectives.
In Wygant v. Jackson Board of Education, 476 U.S. 267 (1986), the Court held unconstitutional an
exemption to a “last-hired first-fired” collective bargaining provision between a teachers’ union and Board
of Education in Jackson, Michigan that sought to maintain the current level of “minority personnel”
(defined as “Black, American Indian, Oriental, or Spanish descendancy”). Wygant and other nonminority
teachers who faced being laid off, challenged the agreement entered into by the school board. The plurality
opinion by Justice Powell, joined by Chief Justice Burger, Justice Rehnquist, and in part by Justice
O’Connor), applied strict scrutiny, and held that the lay off plan did not have a strong basis in the evidence
that remedial action was necessary to
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address the school’s own discrimination and that the desire for role models for students was not compelling.
Justice White concurred but wrote separately. Four other Justices dissented.
Note that Fullilove challenged an act by Congress (and thus invoked the Fifth Amendment) and Wygnant
challenged an act by a subdivision of the state of Michigan (and thus invoked the Fourteenth Amendment).
The next case includes discussions of both Fullilove and Wygant.
City of Richmond v. J.A. Croson Co.
488 U.S. 469 (1989)
O’Connor, J., announced the judgment of the Court and delivered the opinion of the Court with respect to
Parts I, III-B, and IV, in which Rehnquist, C. J., and White, Stevens, and Kennedy, JJ., joined, an opinion
with respect to Part II, in which Rehnquist, C. J., and White, J., joined, and an opinion with respect to Parts
III-A and V, in which Rehnquist, C. J., and White and Kennedy, JJ., joined. Stevens, J., and Kennedy, J.,
filed {separate} opinions concurring in part and concurring in the judgment. Scalia, J., filed an opinion
concurring in the judgment. Marshall, J., filed a dissenting opinion, in which Brennan and Blackmun, JJ.,
joined. Blackmun, J., filed a dissenting opinion, in which Brennan, J., joined.
O’Connor, J., announced the judgment of the Court and delivered the opinion of the Court with respect to
Parts I, III-B, and IV, in which Rehnquist, C. J., and White, Stevens, and Kennedy, JJ., joined, an opinion
with respect to Part II, in which Rehnquist, C. J., and White, J., joined, and an opinion with respect to Parts
III-A and V, in which Rehnquist, C. J., and White and Kennedy, JJ., joined.
In this case, we confront once again the tension between the Fourteenth Amendment’s guarantee of equal
treatment to all citizens, and the use of race-based measures to ameliorate the effects of past discrimination
on the opportunities enjoyed by members of minority groups in our society. In Fullilove v. Klutznick
(1980), we held that a congressional program requiring that 10% of certain federal construction grants be
awarded to minority contractors did not violate the equal protection principles embodied in the Due Process
Clause of the Fifth Amendment. Relying largely on our decision in Fullilove, some lower federal courts
have applied a similar standard of review in assessing the constitutionality of state and local minority set-
aside provisions under the Equal Protection Clause of the Fourteenth Amendment. * * * * We noted
probable jurisdiction in this case to consider * * * * a minority set-aside program adopted by the city of
Richmond, Virginia.
I
On April 11, 1983, the Richmond City Council adopted the Minority Business Utilization Plan (the Plan).
The Plan required prime contractors to whom the city awarded construction contracts to subcontract at least
30% of the dollar amount of the contract to one or more Minority Business Enterprises (MBE’s). Ordinance
No. 83-69-59, codified in Richmond, Va., City Code, 12-156(a) (1985). The 30% set-aside did not apply
to city contracts awarded to minority-owned prime contractors.
The Plan defined an MBE as “[a] business at least fifty-one (51) percent of which is owned and controlled
. . . by minority group members.” “Minority group members” were defined as “[c]itizens of the United
States who are Blacks, Spanish-speaking, Orientals, Indians, Eskimos, or Aleuts.” There was no geographic
limit to the Plan; an otherwise qualified MBE from anywhere in the United States could avail itself of the
30% set-aside. The Plan declared that it was “remedial” in nature, and enacted “for the purpose of promoting
wider participation by minority business enterprises in the construction of public projects.” The Plan
expired on June 30, 1988, and was in effect for approximately five years.
The Plan authorized the Director of the Department of General Services to promulgate rules which “shall
allow waivers in those individual situations where a contractor can prove to the satisfaction of the director
that the requirements herein cannot be achieved.”* * * *
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The Director also promulgated “purchasing procedures” to be followed in the letting of city contracts in
accordance with the Plan. Bidders on city construction contracts were provided with a “Minority Business
Utilization Plan Commitment Form.” Within 10 days of the opening of the bids, the lowest otherwise
responsive bidder was required to submit a commitment form naming the MBE’s to be used on the contract
and the percentage of the total contract price awarded to the minority firm or firms. * * * *
The Plan was adopted by the Richmond City Council after a public hearing. Seven members of the public
spoke to the merits of the ordinance: five were in opposition, two in favor. Proponents of the set-aside
provision relied on a study which indicated that, while the general population of Richmond was 50% black,
only 0.67% of the city’s prime construction contracts had been awarded to minority businesses in the 5-
year period from 1978 to 1983. It was also established that a variety of contractors’ associations, whose
representatives appeared in opposition to the ordinance, had virtually no minority businesses within their
membership. The city’s legal counsel indicated his view that the ordinance was constitutional under this
Court’s decision in Fullilove * * * *
{J. A. Croson Company (Croson), a mechanical plumbing and heating contractor, had a successful bid for
the provision and installation of certain plumbing fixtures at the city jail. But the City decided to rebid the
project because Croson could not comply with the MBE requirement, although the company attempted to
have a MBE supply fixtures and attempted to get a waiver. Croson sued in federal district court, challenging
the constitutionality of the plan. The procedural history included two decisions by the Fourth Circuit Court
of Appeals.}
The District Court upheld the Plan in all respects. In its original opinion, a divided panel of the Fourth
Circuit Court of Appeals affirmed. Both courts applied a test derived from “the common concerns
articulated by the various Supreme Court opinions” in Fullilove and Bakke. Relying on the great deference
which this Court accorded Congress’ findings of past discrimination in Fullilove, the panel majority
indicated its view that the same standard should be applied to the Richmond City Council. * * * *
Croson sought certiorari from this Court. We granted the writ, vacated the opinion of the Court of Appeals,
and remanded the case for further consideration in light of our intervening decision in Wygant v. Jackson
Board of Education (1986).
On remand, a divided panel of the Court of Appeals struck down the Richmond set-aside program as
violating both prongs of strict scrutiny under the Equal Protection Clause of the Fourteenth Amendment.
The majority found that the “core” of this Court’s holding in Wygant was that, “[t]o show that a plan is
justified by a compelling governmental interest, a municipality that wishes to employ a racial preference
cannot rest on broad-brush assumptions of historical discrimination.” As the court read this requirement,
“[f]indings of societal discrimination will not suffice; the findings must concern ‘prior discrimination by
the government unit involved.’”
In this case, the debate at the city council meeting “revealed no record of prior discrimination by the city in
awarding public contracts . . . .” Moreover, the statistics comparing the minority population of Richmond
to the percentage of prime contracts awarded to minority firms had little or no probative value in
establishing prior discrimination in the relevant market, and actually suggested “more of a political than a
remedial basis for the racial preference.” ****
The Court of Appeals went on to hold that even if the city had demonstrated a compelling interest in the
use of a race-based quota, the 30% set-aside was not narrowly tailored to accomplish a remedial purpose.
The court found that the 30% figure was “chosen arbitrarily” and was not tied to the number of minority
subcontractors in Richmond or to any other relevant number. The dissenting judge argued that the majority
had “misconstrue[d] and misapplie[d]” our decision in Wygant. We noted probable jurisdiction of the city’s
appeal, and we now affirm the judgment.
II
The parties and their supporting amici fight an initial battle over the scope of the city’s power to adopt
legislation designed to address the effects of past discrimination. Relying on our decision in Wygant,
appellee argues that the city must limit any race-based remedial efforts to eradicating the effects of its own
prior discrimination. This is essentially the position taken by the Court of Appeals below. Appellant argues
that our decision in Fullilove is controlling, and that as a result the city of Richmond enjoys sweeping
legislative power to define and attack the effects of prior discrimination in its local construction industry.
We find that neither of these two rather stark alternatives can withstand analysis.
In Fullilove, we upheld the minority set-aside contained in 103(f)(2) of the Public Works Employment Act
of 1977, Pub. L. 95-28, 91 Stat. 116, 42 U.S.C. 6701 et seq. (Act) against a challenge based on the equal
protection component of the Due Process Clause. The Act authorized a $4 billion appropriation for federal
grants to state and local governments for use in public works projects. The primary purpose of the Act was
to give the national economy a quick boost in a recessionary period; funds had to be committed to
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state or local grantees by September 30, 1977. The Act also contained the following requirement: “‘Except
to the extent the Secretary determines otherwise, no grant shall be made under this Act . . . unless the
applicant gives satisfactory assurance to the Secretary that at least 10 per centum of the amount of each
grant shall be expended for minority business enterprises.’” MBE’s were defined as businesses effectively
controlled by “citizens of the United States who are Negroes, Spanish-speaking, Orientals, Indians,
Eskimos, and Aleuts.”
The principal opinion in Fullilove, written by Chief Justice Burger, did not employ “strict scrutiny” or any
other traditional standard of equal protection review. The Chief Justice noted at the outset that although
racial classifications call for close examination, the Court was at the same time “bound to approach [its]
task with appropriate deference to the Congress, a co-equal branch charged by the Constitution with the
power to ‘provide for the . . . general Welfare of the United States’ and ‘to enforce by appropriate
legislation,’ the equal protection guarantees of the Fourteenth Amendment.” * * * *
Because of {Congress’s} unique powers, the Chief Justice concluded that “Congress not only may induce
voluntary action to assure compliance with existing federal statutory or constitutional antidiscrimination
provisions, but also, where Congress has authority to declare certain conduct unlawful, it may, as here,
authorize and induce state action to avoid such conduct.”
In reviewing the legislative history behind the Act, the principal opinion focused on the evidence before
Congress that a nationwide history of past discrimination had reduced minority participation in federal
construction grants. The Chief Justice also noted that Congress drew on its experience under 8(a) of the
Small Business Act of 1953, which had extended aid to minority businesses. The Chief Justice concluded
that “Congress had abundant historical basis from which it could conclude that traditional procurement
practices, when applied to minority businesses, could perpetuate the effects of prior discrimination.”
The second factor emphasized by the principal opinion in Fullilove was the flexible nature of the 10% set-
aside. * * * *The Chief Justice indicated that without this fine tuning to remedial purpose, the statute would
not have “pass[ed] muster.”
In his concurring opinion, Justice Powell relied on the legislative history adduced by the principal opinion
in finding that “Congress reasonably concluded that private and governmental discrimination had
contributed to the negligible percentage of public contracts awarded minority contractors.” Justice Powell
also found that the means chosen by Congress, particularly in light of the flexible waiver provisions, were
“reasonably necessary” to address the problem identified. * * * *
Appellant and its supporting amici rely heavily on Fullilove for the proposition that a city council, like
Congress, need not make specific findings of discrimination to engage in race-conscious relief. * * * *
That Congress may identify and redress the effects of society-wide discrimination does not mean that, a
fortiori, the States and their political subdivisions are free to decide that such remedies are appropriate.
Section 1 of the Fourteenth Amendment is an explicit constraint on state power, and the States must
undertake any remedial efforts in accordance with that provision. To hold otherwise would be to cede
control over the content of the Equal Protection Clause to the 50 state legislatures and their myriad political
subdivisions. The mere recitation of a benign or compensatory purpose for the use of a racial classification
would essentially entitle the States to * * * * insulate any racial classification from judicial scrutiny* * * *.
We believe that such a result would be contrary to the intentions of the Framers of the Fourteenth
Amendment, who desired to place clear limits on the States’ use of race as a criterion for legislative action,
and to have the federal courts enforce those limitations. * * * *
It would seem equally clear, however, that a state or local subdivision (if delegated the authority from the
State) has the authority to eradicate the effects of private discrimination within its own legislative
jurisdiction. This authority must, of course, be exercised within the constraints of 1 of the Fourteenth
Amendment. Our decision in Wygant is not to the contrary. Wygant addressed the constitutionality of the
use of racial quotas by local school authorities pursuant to an agreement reached with the local teachers’
union. It was in the context of addressing the school board’s power to adopt a race-based layoff program
affecting its own work force that the Wygant plurality indicated that the Equal Protection Clause required
“some showing of prior discrimination by the governmental unit involved.” * * * *
Thus, if the city could show that it had essentially become a “passive participant” in a system of racial
exclusion practiced by elements of the local construction industry, we think it clear that the city could take
affirmative steps to dismantle such a system. It is beyond dispute that any public entity, state or federal, has
a compelling interest in assuring that public dollars, drawn from the tax contributions of all citizens, do not
serve to finance the evil of private prejudice.
III
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A
The Equal Protection Clause of the Fourteenth Amendment provides that “[n]o State shall . . . deny to any
person within its jurisdiction the equal protection of the laws.” (Emphasis added.) As this Court has noted
in the past, 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 (1948). The Richmond
Plan denies certain citizens the opportunity to compete for a fixed percentage of public contracts based
solely upon their race. To whatever racial group these citizens belong, their “personal rights” to be treated
with equal dignity and respect are implicated by a rigid rule erecting race as the sole criterion in an aspect
of public decisionmaking.
Absent searching judicial inquiry into the justification for such race-based measures, there is simply no way
of determining what classifications are “benign” or “remedial” and what classifications are in fact motivated
by illegitimate notions of racial inferiority or simple racial politics. Indeed, the purpose of strict scrutiny is
to “smoke out” illegitimate uses of race by assuring that the legislative body is pursuing a goal important
enough to warrant use of a highly suspect tool. The test also ensures that the means chosen “fit” this
compelling goal so closely that there is little or no possibility that the motive for the classification was
illegitimate racial prejudice or stereotype.
Classification based on race carry a danger of stigmatic harm. Unless they are strictly reserved for remedial
settings, they may in fact promote notions of racial inferiority and lead to a politics of racial hostility. See
Bakke (opinion of Powell, J.) (“[P]referential programs may only reinforce common stereotypes holding
that certain groups are unable to achieve success without special protection based on a factor having no
relation to individual worth”). We thus reaffirm the view expressed by the plurality in Wygant that the
standard of review under the Equal Protection Clause is not dependent on the race of those burdened or
benefited by a particular classification. * * * *
Even were we to accept a reading of the guarantee of equal protection under which the level of scrutiny
varies according to the ability of different groups to defend their interests in the representative process,
heightened scrutiny would still be appropriate in the circumstances of this case. One of the central
arguments for applying a less exacting standard to “benign” racial classifications is that such measures
essentially involve a choice made by dominant racial groups to disadvantage themselves. If one aspect of
the judiciary’s role under the Equal Protection Clause is to protect “discrete and insular minorities” from
majoritarian prejudice or indifference, see United States v. Carolene Products Co., n. 4 (1938), some
maintain that these concerns are not implicated when the “white majority” places burdens upon itself. SeeJ.
Ely, Democracy and Distrust 170 (1980).
In this case, blacks constitute approximately 50% of the population of the city of Richmond. Five of the
nine seats on the city council are held by blacks. The concern that a political majority will more easily act
to the disadvantage of a minority based on unwarranted assumptions or incomplete facts would seem to
militate for, not against, the application of heightened judicial scrutiny in this case. * * * *
B
We think it clear that the factual predicate offered in support of the Richmond Plan suffers from the same
two defects identified as fatal in Wygant. The District Court found the city council’s “findings sufficient to
ensure that, in adopting the Plan, it was remedying the present effects of past discrimination in the
construction industry.” Like the “role model” theory employed in Wygant, a generalized assertion that there
has been past discrimination in an entire industry provides no guidance for a legislative body to determine
the precise scope of the injury it seeks to remedy. It “has no logical stopping point.” Wygant (plurality
opinion). “Relief” for such an ill-defined wrong could extend until the percentage of public contracts
awarded to MBE’s in Richmond mirrored the percentage of minorities in the population as a whole. * * *
*
While there is no doubt that the sorry history of both private and public discrimination in this country has
contributed to a lack of opportunities for black entrepreneurs, this observation, standing alone, cannot
justify a rigid racial quota in the awarding of public contracts in Richmond, Virginia. Like the claim that
discrimination in primary and secondary schooling justifies a rigid racial preference in medical school
admissions, an amorphous claim that there has been past discrimination in a particular industry cannot
justify the use of an unyielding racial quota.
It is sheer speculation how many minority firms there would be in Richmond absent past societal
discrimination, just as it was sheer speculation how many minority medical students would have been
admitted to the medical school at Davis absent past discrimination in educational opportunities. Defining
these sorts of injuries as “identified discrimination” would give local
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governments license to create a patchwork of racial preferences based on statistical generalizations about
any particular field of endeavor. * * * *
Finally, the city and the District Court relied on Congress’ finding in connection with the set-aside approved
in Fullilove that there had been nationwide discrimination in the construction industry. The probative value
of these findings for demonstrating the existence of discrimination in Richmond is extremely limited. By
its inclusion of a waiver procedure in the national program addressed in Fullilove, Congress explicitly
recognized that the scope of the problem would vary from market area to market area. ***
In sum, none of the evidence presented by the city points to any identified discrimination in the Richmond
construction industry. We, therefore, hold that the city has failed to demonstrate a compelling interest in
apportioning public contracting opportunities on the basis of race. To accept Richmond’s claim that past
societal discrimination alone can serve as the basis for rigid racial preferences would be to open the door
to competing claims for “remedial relief” for every disadvantaged group. The dream of a Nation of equal
citizens in a society where race is irrelevant to personal opportunity and achievement would be lost in a
mosaic of shifting preferences based on inherently unmeasurable claims of past wrongs. “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 . . . .” Bakke (Powell, J.). We think such a result would be contrary to both
the letter and spirit of a constitutional provision whose central command is equality.
The foregoing analysis applies only to the inclusion of blacks within the Richmond set-aside program.
There is absolutely no evidence of past discrimination against Spanish-speaking, Oriental, Indian, Eskimo,
or Aleut persons in any aspect of the Richmond construction industry. The District Court took judicial
notice of the fact that the vast majority of “minority” persons in Richmond were black. It may well be that
Richmond has never had an Aleut or Eskimo citizen. The random inclusion of racial groups that, as a
practical matter, may never have suffered from discrimination in the construction industry in Richmond
suggests that perhaps the city’s purpose was not in fact to remedy past discrimination.
If a 30% set-aside was “narrowly tailored” to compensate black contractors for past discrimination, one
may legitimately ask why they are forced to share this “remedial relief” with an Aleut citizen who moves
to Richmond tomorrow? The gross overinclusiveness of Richmond’s racial preference strongly impugns
the city’s claim of remedial motivation.
IV
As noted by the court below, it is almost impossible to assess whether the Richmond Plan is narrowly
tailored to remedy prior discrimination since it is not linked to identified discrimination in any way. We
limit ourselves to two observations in this regard.
First, there does not appear to have been any consideration of the use of race-neutral means to increase
minority business participation in city contracting. Many of the barriers to minority participation in the
construction industry relied upon by the city to justify a racial classification appear to be race neutral. If
MBE’s disproportionately lack capital or cannot meet bonding requirements, a race-neutral program of city
financing for small firms would, a fortiori, lead to greater minority participation. The principal opinion in
Fullilove found that Congress had carefully examined and rejected race-neutral alternatives before enacting
the MBE set-aside. There is no evidence in this record that the Richmond City Council has considered any
alternatives to a race-based quota.
Second, the 30% quota cannot be said to be narrowly tailored to any goal, except perhaps outright racial
balancing. It rests upon the “completely unrealistic” assumption that minorities will choose a particular
trade in lockstep proportion to their representation in the local population.
Since the city must already consider bids and waivers on a case-by-case basis, it is difficult to see the need
for a rigid numerical quota. As noted above, the congressional scheme upheld in Fullilove allowed for a
waiver of the set-aside provision where an MBE’s higher price was not attributable to the effects of past
discrimination. Based upon proper findings, such programs are less problematic from an equal protection
standpoint because they treat all candidates individually, rather than making the color of an applicant’s skin
the sole relevant consideration. Unlike the program upheld in Fullilove, the Richmond Plan’s waiver system
focuses solely on the availability of MBE’s; there is no inquiry into whether or not the particular MBE
seeking a racial preference has suffered from the effects of past discrimination by the city or prime
contractors.
Given the existence of an individualized procedure, the city’s only interest in maintaining a quota system
rather than investigating the need for remedial action in particular cases would seem to be simple
administrative convenience. But the interest in avoiding
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the bureaucratic effort necessary to tailor remedial relief to those who truly have suffered the effects of
prior discrimination cannot justify a rigid line drawn on the basis of a suspect classification. Under
Richmond’s scheme, a successful black, Hispanic, or Oriental entrepreneur from anywhere in the country
enjoys an absolute preference over other citizens based solely on their race. We think it obvious that such
a program is not narrowly tailored to remedy the effects of prior discrimination.
V
Nothing we say today precludes a state or local entity from taking action to rectify the effects of identified
discrimination within its jurisdiction. If the city of Richmond had evidence before it that nonminority
contractors were systematically excluding minority businesses from subcontracting opportunities, it could
take action to end the discriminatory exclusion. Where there is a significant statistical disparity between the
number of qualified minority contractors willing and able to perform a particular service and the number
of such contractors actually engaged by the locality or the locality’s prime contractors, an inference of
discriminatory exclusion could arise. Under such circumstances, the city could act to dismantle the closed
business system by taking appropriate measures against those who discriminate on the basis of race or other
illegitimate criteria. In the extreme case, some form of narrowly tailored racial preference might be
necessary to break down patterns of deliberate exclusion.
Nor is local government powerless to deal with individual instances of racially motivated refusals to employ
minority contractors. Where such discrimination occurs, a city would be justified in penalizing the
discriminator and providing appropriate relief to the victim of such discrimination. Moreover, evidence of
a pattern of individual discriminatory acts can, if supported by appropriate statistical proof, lend support to
a local government’s determination that broader remedial relief is justified.
Even in the absence of evidence of discrimination, the city has at its disposal a whole array of race-neutral
devices to increase the accessibility of city contracting opportunities to small entrepreneurs of all races.
Simplification of bidding procedures, relaxation of bonding requirements, and training and financial aid for
disadvantaged entrepreneurs of all races would open the public contracting market to all those who have
suffered the effects of past societal discrimination or neglect. Many of the formal barriers to new entrants
may be the product of bureaucratic inertia more than actual necessity, and may have a disproportionate
effect on the opportunities open to new minority firms. Their elimination or modification would have little
detrimental effect on the city’s interests and would serve to increase the opportunities available to minority
business without classifying individuals on the basis of race. The city may also act to prohibit discrimination
in the provision of credit or bonding by local suppliers and banks. Business as usual should not mean
business pursuant to the unthinking exclusion of certain members of our society from its rewards. * * * *
Because the city of Richmond has failed to identify the need for remedial action in the awarding of its
public construction contracts, its treatment of its citizens on a racial basis violates the dictates of the Equal
Protection Clause. Accordingly, the judgment of the Court of Appeals for the Fourth Circuit is
Affirmed.
Justice Kennedy, concurring in part and concurring in the judgment {omitted}
Justice Scalia, concurring in the judgment {omitted}
Justice Marshall, with whom Justice Brennan and Justice Blackmun join, dissenting.
It is a welcome symbol of racial progress when the former capital of the Confederacy acts forthrightly to
confront the effects of racial discrimination in its midst. In my view, nothing in the Constitution can be
construed to prevent Richmond, Virginia, from allocating a portion of its contracting dollars for businesses
owned or controlled by members of minority groups. ***
A majority of this Court holds today, however, that the Equal Protection Clause of the Fourteenth
Amendment blocks Richmond’s initiative. The essence of the majority’s position is that Richmond has
failed to catalog adequate findings to prove that past discrimination has impeded minorities from joining or
participating fully in Richmond’s construction contracting industry. I find deep irony in second-guessing
Richmond’s judgment on this point. As much as any municipality in the United States, Richmond knows
what racial discrimination is; a century of decisions by this and other federal courts has richly documented
the city’s disgraceful history of public and private racial discrimination. In any event, the Richmond City
Council has supported its
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determination that minorities have been wrongly excluded from local construction contracting. Its proof
includes statistics showing that minority-owned businesses have received virtually no city contracting
dollars and rarely if ever belonged to area trade associations; testimony by municipal officials that
discrimination has been widespread in the local construction industry; and the same exhaustive and widely
publicized federal studies relied on in Fullilove, studies which showed that pervasive discrimination in the
Nation’s tight-knit construction industry had operated to exclude minorities from public contracting. These
are precisely the types of statistical and testimonial evidence which, until today, this Court had credited in
cases approving of race-conscious measures designed to remedy past discrimination.
More fundamentally, today’s decision marks a deliberate and giant step backward in this Court’s
affirmative-action jurisprudence. Cynical of one municipality’s attempt to redress the effects of past racial
discrimination in a particular industry, the majority launches a grapeshot attack on race-conscious remedies
in general. The majority’s unnecessary pronouncements will inevitably discourage or prevent governmental
entities, particularly States and localities, from acting to rectify the scourge of past discrimination. This is
the harsh reality of the majority’s decision, but it is not the Constitution’s command.
I
As an initial matter, the majority takes an exceedingly myopic view of the factual predicate on which the
Richmond City Council relied when it passed the Minority Business Utilization Plan. The majority analyzes
Richmond’s initiative as if it were based solely upon the facts about local construction and contracting
practices adduced during the city council session at which the measure was enacted. ***
So long as one views Richmond’s local evidence of discrimination against the backdrop of systematic
nationwide racial discrimination which Congress had so painstakingly identified in this very industry, this
case is readily resolved.
II
“Agreement upon a means for applying the Equal Protection Clause to an affirmative-action program has
eluded this Court every time the issue has come before us.” Wygant v. Jackson Bd. of Education (1986)
(Marshall, J., dissenting). My view has long been that race-conscious classifications designed to further
remedial goals “must serve important governmental objectives and must be substantially related to
achievement of those objectives” in order to withstand constitutional scrutiny. University of California
Regents v. Bakke (1978) (joint opinion of Brennan, White, Marshall, and Blackmun, JJ.) Analyzed in terms
of this two-pronged standard, Richmond’s set-aside, like the federal program on which it was modeled, is
“plainly constitutional.” * * * * {analysis omitted}
III
I would ordinarily end my analysis at this point and conclude that Richmond’s ordinance satisfies both the
governmental interest and substantial relationship prongs of our Equal Protection Clause analysis.
However, I am compelled to add more, for the majority has gone beyond the facts of this case to announce
a set of principles which unnecessarily restricts the power of governmental entities to take race-conscious
measures to redress the effects of prior discrimination.
A
Today, for the first time, a majority of this Court has adopted strict scrutiny as its standard of Equal
Protection Clause review of race-conscious remedial measures. This is an unwelcome development. A
profound difference separates governmental actions that themselves are racist, and governmental actions
that seek to remedy the effects of prior racism or to prevent neutral governmental activity from perpetuating
the effects of such racism.
Racial classifications “drawn on the presumption that one race is inferior to another or because they put the
weight of government behind racial hatred and separatism” warrant the strictest judicial scrutiny because
of the very irrelevance of these rationales. By contrast, racial classifications drawn for the purpose of
remedying the effects of discrimination that itself was race based have a highly pertinent basis: the tragic
and indelible fact that discrimination against blacks and other racial minorities in this Nation has pervaded
our Nation’s history and continues to scar our society. As I stated in Fullilove: “Because the consideration
of race is
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relevant to remedying the continuing effects of past racial discrimination, and because governmental
programs employing racial classifications for remedial purposes can be crafted to avoid stigmatization, . . .
such programs should not be subjected to conventional ‘strict scrutiny’ – scrutiny that is strict in theory,
but fatal in fact.”
In concluding that remedial classifications warrant no different standard of review under the Constitution
than the most brutal and repugnant forms of state-sponsored racism, a majority of this Court signals that it
regards racial discrimination as largely a phenomenon of the past, and that government bodies need no
longer preoccupy themselves with rectifying racial injustice. I, however, do not believe this Nation is
anywhere close to eradicating racial discrimination or its vestiges. In constitutionalizing its wishful
thinking, the majority today does a grave disservice not only to those victims of past and present racial
discrimination in this Nation whom government has sought to assist, but also to this Court’s long tradition
of approaching issues of race with the utmost sensitivity.
B
I am also troubled by the majority’s assertion that, even if it did not believe generally in strict scrutiny of
race-based remedial measures, “the circumstances of this case” require this Court to look upon the
Richmond City Council’s measure with the strictest scrutiny. The sole such circumstance which the
majority cites, however, is the fact that blacks in Richmond are a “dominant racial grou[p]” in the city. In
support of this characterization of dominance, the majority observes that “blacks constitute approximately
50% of the population of the city of Richmond” and that “[f]ive of the nine seats on the City Council are
held by blacks.”
While I agree that the numerical and political supremacy of a given racial group is a factor bearing upon
the level of scrutiny to be applied, this Court has never held that numerical inferiority, standing alone,
makes a racial group “suspect” and thus entitled to strict scrutiny review. * * * *
It cannot seriously be suggested that nonminorities in Richmond have any “history of purposeful unequal
treatment.” Nor is there any indication that they have any of the disabilities that have characteristically
afflicted those groups this Court has deemed suspect. Indeed, the numerical and political dominance of
nonminorities within the State of Virginia and the Nation as a whole provides an enormous political check
against the “simple racial politics” at the municipal level which the majority fears. * * * *
* * * * Richmond’s own recent political history underscores the facile nature of the majority’s
assumption that elected officials’ voting decisions are based on the color of their skins. In recent years,
white and black councilmembers in Richmond have increasingly joined hands on controversial matters.
When the Richmond City Council elected a black man mayor in 1982, for example, his victory was won
with the support of the city council’s four white members. The vote on the set-aside plan a year later also
was not purely along racial lines. Of the four white councilmembers, one voted for the measure and another
abstained. The majority’s view that remedial measures undertaken by municipalities with black leadership
must face a stiffer test of Equal Protection Clause scrutiny than remedial measures undertaken by
municipalities with white leadership implies a lack of political maturity on the part of this Nation’s elected
minority officials that is totally unwarranted. Such insulting judgments have no place in constitutional
jurisprudence.
C
Today’s decision, finally, is particularly noteworthy for the daunting standard it imposes upon States and
localities contemplating the use of race-conscious measures to eradicate the present effects of prior
discrimination and prevent its perpetuation. * * * *
In short, there is simply no credible evidence that the Framers of the Fourteenth Amendment sought “to
transfer the security and protection of all the civil rights . . . from the States to the Federal government.”
The Slaughter-House Cases, 16 Wall. 36, 77-78 (1873). The three Reconstruction Amendments undeniably
“worked a dramatic change in the balance between congressional and state power”: they forbade state-
sanctioned slavery, forbade the state-sanctioned denial of the right to vote, and (until the content of the
Equal Protection Clause was substantially applied to the Federal Government through the Due Process
Clause of the Fifth Amendment) uniquely forbade States to deny equal protection. The Amendments also
specifically empowered the Federal Government to combat discrimination at a time when the breadth of
federal power under the Constitution was less apparent than it is today. But nothing in the Amendments
themselves, or in our long history of interpreting or applying those momentous charters, suggests that
States, exercising their police power, are in any way constitutionally inhibited from working alongside the
Federal Government in the fight against discrimination and its effects.
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IV
The majority today sounds a full-scale retreat from the Court’s longstanding solicitude to race-conscious
remedial efforts “directed toward deliverance of the century-old promise of equality of economic
opportunity.” Fullilove. The new and restrictive tests it applies scuttle one city’s effort to surmount its
discriminatory past, and imperil those of dozens more localities. I, however, profoundly disagree with the
cramped vision of the Equal Protection Clause which the majority offers today and with its application of
that vision to Richmond, Virginia’s, laudable set-aside plan. The battle against pernicious racial
discrimination or its effects is nowhere near won. I must dissent.
Check Your Understanding
Adarand Constructors, Inc. v. Peña
515 U.S. 200 (1995)
O’Connor, J., announced the judgment of the Court and delivered an opinion with respect to Parts I, II, III-
A, III-B, III-D, and IV, which was for the Court except insofar as it might be inconsistent with the views
expressed in the concurrence of Scalia, J., and an opinion with respect to Part III-C.
Parts I, II, III-A, III-B, III-D, and IV of that opinion were joined by Rehnquist, C. J., and Kennedy and
Thomas, JJ., and by Scalia, J., to the extent heretofore indicated; and Part III-C was joined by Kennedy, J.
Scalia, J., and Thomas, J., filed opinions concurring in part and concurring in the judgment. Stevens, J.,
filed a dissenting opinion, in which Ginsburg, J., joined. Souter, J., filed a dissenting opinion, in which
Ginsburg and Breyer, JJ., joined. Ginsburg, J., filed a dissenting opinion, in which Breyer, J., joined.
Justice O’Connor announced the judgment of the Court and delivered an opinion with respect to Parts I, II,
III-A, III-B, III-D, and IV, which is for the Court except insofar as it might be inconsistent with the views
expressed in Justice Scalia’s concurrence, and an opinion with respect to Part III-C in which Justice
Kennedy joins.
Petitioner Adarand Constructors, Inc., claims that the Federal Government’s practice of giving general
contractors on government projects a financial incentive to hire subcontractors controlled by “socially and
economically disadvantaged individuals,” and, in particular, the Government’s use of race-based
presumptions in identifying such individuals, violates the equal protection component of the Fifth
Amendment’s Due Process Clause. The Court of Appeals rejected Adarand’s claim. We conclude, however,
that courts should analyze cases of this kind under a different standard of review than the one the Court of
Appeals applied. We therefore vacate the Court of Appeals’ judgment and remand the case for further
proceedings.
I
In 1989, the Central Federal Lands Highway Division (CFLHD), which is part of the United States
Department of Transportation (DOT), awarded the prime contract for a highway construction project in
Colorado to Mountain Gravel & Construction Company. Mountain Gravel then solicited bids from
subcontractors for the guardrail portion of the contract. Adarand, a Colorado-based highway construction
company specializing in guardrail work, submitted the low bid. Gonzales Construction Company also
submitted a bid.
The prime contract’s terms provide that Mountain Gravel would receive additional compensation if it hired
subcontractors certified as small businesses controlled by “socially and economically disadvantaged
individuals.” Gonzales is certified as such a business; Adarand is not. Mountain Gravel awarded the
subcontract to Gonzales, despite Adarand’s low bid, and Mountain Gravel’s Chief Estimator has submitted
an affidavit stating that Mountain Gravel would have accepted Adarand’s bid had it not been for the
additional payment it received by hiring Gonzales instead. Federal law requires that a subcontracting clause
similar to the one used here must appear in most federal agency contracts, and it also requires the clause to
state that
[t]he contractor shall presume that socially and economically disadvantaged individuals include Black
Americans, Hispanic Americans, Native Americans, Asian Pacific Americans, and other minorities, or any
other individual found to be disadvantaged by the [Small Business] Administration pursuant to section 8(a)
of the Small Business Act.
1.5.11 96873
15 U.S.C. §§ 637(d)(2), (3).
Adarand claims that the presumption set forth in that statute discriminates on the basis of race in violation
of the Federal Government’s Fifth Amendment obligation not to deny anyone equal protection of the laws.
These fairly straightforward facts implicate a complex scheme of federal statutes and regulations, to which
we now turn. * * * * {discussion omitted}
After losing the guardrail subcontract to Gonzales, Adarand filed suit against various federal officials in the
United States District Court for the District of Colorado, claiming that the race-based presumptions
involved in the use of subcontracting compensation clauses violate Adarand’s right to equal protection. The
District Court granted the Government’s motion for summary judgment. The Court of Appeals for the Tenth
Circuit affirmed. It understood our decision in Fullilove v. Klutznick (1980), to have adopted “a lenient
standard, resembling intermediate scrutiny, in assessing” the constitutionality of federal race-based action.
Applying that “lenient standard,” as further developed in Metro Broadcasting, Inc. v. FCC (1990), the Court
of Appeals upheld the use of subcontractor compensation clauses. We granted certiorari.
II
{The Court found that Adarand had standing to challenge the government action}
III
The Government urges that “[t]he Subcontracting Compensation Clause program is . . . a program based
on disadvantage, not on race,” and thus that it is subject only to “the most relaxed judicial scrutiny.” To the
extent that the statutes and regulations involved in this case are race-neutral, we agree. The Government
concedes, however, that “the race-based rebuttable presumption used in some certification determinations
under the Subcontracting Compensation Clause” is subject to some heightened level of scrutiny. The parties
disagree as to what that level should be. * * * *
Adarand’s claim arises under the Fifth Amendment to the Constitution, which provides that “No person
shall . . . be deprived of life, liberty, or property, without due process of law.” Although this Court has
always understood that Clause to provide some measure of protection against arbitrary treatment by the
Federal Government, it is not as explicit a guarantee of equal treatment as the Fourteenth Amendment,
which provides that “No State shall . . . deny to any person within its jurisdiction the equal protection of
the laws” (emphasis added). Our cases have accorded varying degrees of significance to the difference in
the language of those two Clauses. We think it necessary to revisit the issue here.
A
{discussion of equal protection under the Fifth Amendment omitted}
B
Most of the cases discussed above involved classifications burdening groups that have suffered
discrimination in our society. In 1978, the Court confronted the question whether race-based governmental
action designed to benefit such groups should also be subject to “the most rigid scrutiny.” * * * *
The Court’s failure to produce a majority opinion in Bakke, Fullilove, and Wygant left unresolved the
proper analysis for remedial race-based governmental action. * * * *
The Court resolved the issue at least in part, in 1989. Richmond v. J. A. Croson Co. (1989), concerned a
city’s determination that 30% of its contracting work should go to minority-owned businesses. * * * *
With Croson, the Court finally agreed that the Fourteenth Amendment requires strict scrutiny of all race-
based action by state and local governments. But Croson of course had no occasion to declare what standard
of review the Fifth Amendment requires for such action taken by the Federal Government. * * * *
1.5.12 96873
Despite lingering uncertainty in the details, however, the Court’s cases through Croson had established
three general propositions with respect to governmental racial classifications. First, skepticism: “‘[a]ny
preference based on racial or ethnic criteria must necessarily receive a most searching examination,’”
Wygant, 476 U.S. at 273 (plurality opinion of Powell, J.); Fullilove, 448 U.S. at 491 (opinion of Burger,
C.J.); see also id. at 523 (Stewart, J., dissenting) (“[A]ny official action that treats a person differently on
account of his race or ethnic origin is inherently suspect”); McLaughlin, 379 U.S. at 192 (“[R]acial
classifications [are] ‘constitutionally suspect’”); Hirabayashi, 320 U.S. at 100 (“Distinctions between
citizens solely because of their ancestry are by their very nature odious to a free people”). Second,
consistency: “the standard of review under the Equal Protection Clause is not dependent on the race of those
burdened or benefited by a particular classification,” Croson, 488 U.S. at 494 (plurality opinion); id. at 520
(Scalia, J., concurring in judgment); see also Bakke, 438 U.S. at 289-290 (opinion of Powell, J.), i. e., all
racial classifications reviewable under the Equal Protection Clause must be strictly scrutinized. And third,
congruence: “[e]qual protection analysis in the Fifth Amendment area is the same as that under the
Fourteenth Amendment,” Buckley v. Valeo, 424 U.S. at 93; see also Weinberger v. Wiesenfeld, 420 U.S.
at 638, n. 2; Bolling v. Sharpe, 347 U.S. at 500. Taken together, these three propositions lead to the
conclusion that any person, of whatever race, has the right to demand that any governmental actor subject
to the Constitution justify any racial classification subjecting that person to unequal treatment under the
strictest judicial scrutiny. * * * *
A year later {after Croson}, however, the Court took a surprising turn. Metro Broadcasting, Inc. v. FCC
(1990), involved a Fifth Amendment challenge to two race-based policies of the Federal Communications
Commission. In Metro Broadcasting, the Court repudiated the long-held notion that “it would be
unthinkable that the same Constitution would impose a lesser duty on the Federal Government” than it does
on a State to afford equal protection of the laws, Bolling. It did so by holding that “benign” federal racial
classifications need only satisfy intermediate scrutiny, even though Croson had recently concluded that
such classifications enacted by a State must satisfy strict scrutiny. “[B]enign” federal racial classifications,
the Court said,
—even if those measures are not “remedial” in the sense of being designed to compensate victims of past
governmental or societal discrimination—are constitutionally permissible to the extent that they serve
important governmental objectives within the power of Congress and are substantially related to
achievement of those objectives.
Metro Broadcasting. The Court did not explain how to tell whether a racial classification should be deemed
“benign,” other than to express
confiden[ce] that an “examination of the legislative scheme and its history” will separate benign measures
from other types of racial classifications.
Applying this test, the Court first noted that the FCC policies at issue did not serve as a remedy for past
discrimination. Proceeding on the assumption that the policies were nonetheless “benign,” it concluded that
they served the “important governmental objective” of “enhancing broadcast diversity,” and that they were
“substantially related” to that objective. It therefore upheld the policies. * * * *
The three propositions undermined by Metro Broadcasting all derive from the basic principle that the Fifth
and Fourteenth Amendments to the Constitution protect persons, not groups. It follows from that principle
that all governmental action based on race – – – a group classification long recognized as “in most
circumstances irrelevant and therefore prohibited,” Hirabayashi, – – –
should be subjected to detailed judicial inquiry to ensure that the personal right to equal protection of the
laws has not been infringed. These ideas have long been central to this Court’s understanding of equal
protection, and holding “benign” state and federal racial classifications to different standards does not
square with them. “[A] free people whose institutions are founded upon the doctrine of equality,” should
tolerate no retreat from the principle that government may treat people differently because of their race only
for the most compelling reasons. Accordingly, we hold today that all racial classifications, imposed by
whatever federal, state, or local governmental actor, must be analyzed by a reviewing court under strict
scrutiny. In other words, such classifications are constitutional only if they are narrowly tailored measures
that further compelling governmental interests. To the extent that Metro Broadcasting is inconsistent with
that holding, it is overruled.
C
{discussion of stare decisis omitted}
D
1.5.13 96873
Finally, we wish to dispel the notion that strict scrutiny is “strict in theory, but fatal in fact.” Fullilove
(Marshall, J., concurring in judgment). The unhappy persistence of both the practice and the lingering
effects of racial discrimination against minority groups in this country is an unfortunate reality, and
government is not disqualified from acting in response to it. * * * * When race-based action is necessary to
further a compelling interest, such action is within constitutional constraints if it satisfies the “narrow
tailoring” test this Court has set out in previous cases.
IV
Because our decision today alters the playing field in some important respects, we think it best to remand
the case to the lower courts for further consideration in light of the principles we have announced. * * * *
The question whether any of the ways in which the Government uses subcontractor compensation clauses
can survive strict scrutiny, and any relevance distinctions such as these may have to that question, should
be addressed in the first instance by the lower courts.
Accordingly, the judgment of the Court of Appeals is vacated, and the case is remanded for further
proceedings consistent with this opinion.
It is so ordered.
Justice Scalia, concurring in part and concurring in the judgment.
I join the opinion of the Court, except Part III-C, and except insofar as it may be inconsistent with the
following: in my view, government can never have a “compelling interest” in discriminating on the basis
of race in order to “make up” for past racial discrimination in the opposite direction. See Richmond v. J. A.
Croson Co. (1989) (Scalia, J., concurring in judgment). Individuals who have been wronged by unlawful
racial discrimination should be made whole, but, under our Constitution, there can be no such thing as either
a creditor or a debtor race. That concept is alien to the Constitution’s focus upon the individual, see Amdt.
14, § 1 (“[N]or shall any State . . . deny to any person” the equal protection of the laws) (emphasis added),
and its rejection of dispositions based on race, see Amdt. 15, § 1 (prohibiting abridgment of the right to
vote “on account of race”) or based on blood, see Art. III, § 3 (“[N]o Attainder of Treason shall work
Corruption of Blood”); Art. I, § 9 (“No Title of Nobility shall be granted by the United States”). To pursue
the concept of racial entitlement—even for the most admirable and benign of purposes—is to reinforce and
preserve for future mischief the way of thinking that produced race slavery, race privilege and race hatred.
In the eyes of government, we are just one race here. It is American.
It is unlikely, if not impossible, that the challenged program would survive under this would survive under
this understanding of strict scrutiny, but I am content to leave that to be decided on remand.
Justice Thomas, concurring in part and concurring in the judgment.
I agree with the majority’s conclusion that strict scrutiny applies to all government classifications based on
race. I write separately, however, to express my disagreement with the premise underlying Justice Stevens’
and Justice Ginsburg’s dissents: that there is a racial paternalism exception to the principle of equal
protection* * * * Government cannot make us equal; it can only recognize, respect, and protect us as equal
before the law.
That these programs may have been motivated, in part, by good intentions cannot provide refuge from the
principle that under our Constitution, the government may not make distinctions on the basis of race. As
far as the Constitution is concerned, it is irrelevant whether a government’s racial classifications are drawn
by those who wish to oppress a race or by those who have a sincere desire to help those thought to be
disadvantaged. There can be no doubt that the paternalism that appears to lie at the heart of this program is
at war with the principle of inherent equality that underlies and infuses our Constitution. See Declaration
of Independence (“We hold these truths to be self-evident, that all men are created equal, that they are
endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit
of Happiness”).
These programs not only raise grave constitutional questions, they also undermine the moral basis of the
equal protection principle. Purchased at the price of immeasurable human suffering, the equal protection
principle reflects our Nation’s understanding that such classifications ultimately have a destructive impact
on the individual and our society. Unquestionably, “[i]nvidious [racial]
1.5.14 96873
discrimination is an engine of oppression,” {Justice Stevens’ dissent}. It is also true that “[r]emedial” racial
preferences may reflect “a desire to foster equality in society.” But there can be no doubt that racial
paternalism and its unintended consequences can be as poisonous and pernicious as any other form of
discrimination. So-called “benign” discrimination teaches many that because of chronic and apparently
immutable handicaps, minorities cannot compete with them without their patronizing indulgence.
Inevitably, such programs engender attitudes of superiority or, alternatively, provoke resentment among
those who believe that they have been wronged by the government’s use of race. These programs stamp
minorities with a badge of inferiority and may cause them to develop dependencies or to adopt an attitude
that they are “entitled” to preferences. * * * *
In my mind, government-sponsored racial discrimination based on benign prejudice is just as noxious as
discrimination inspired by malicious prejudice. In each instance, it is racial discrimination, plain and simple.
Justice Stevens, with whom Justice Ginsburg joins, dissenting.
Instead of deciding this case in accordance with controlling precedent, the Court today delivers a
disconcerting lecture about the evils of governmental racial classifications. For its text, the Court has
selected three propositions, represented by the bywords “skepticism,” “consistency,” and “congruence.” I
shall comment on each of these propositions, then add a few words about stare decisis, and finally explain
why I believe this Court has a duty to affirm the judgment of the Court of Appeals.
I
The Court’s concept of skepticism is, at least in principle, a good statement of law and of common sense.
Undoubtedly, a court should be wary of a governmental decision that relies upon a racial classification.
* * * * In my judgment, because uniform standards are often anything but uniform, we should
evaluate the Court’s comments on “consistency,” “congruence,” and stare decisis with the same type of
skepticism that the Court advocates for the underlying issue.
II
The Court’s concept of “consistency” assumes that there is no significant difference between a decision by
the majority to impose a special burden on the members of a minority race and a decision by the majority
to provide a benefit to certain members of that minority notwithstanding its incidental burden on some
members of the majority. In my opinion that assumption is untenable. There is no moral or constitutional
equivalence between a policy that is designed to perpetuate a caste system and one that seeks to eradicate
racial subordination. Invidious discrimination is an engine of oppression, subjugating a disfavored group
to enhance or maintain the power of the majority. Remedial race-based preferences reflect the opposite
impulse: a desire to foster equality in society. * * * *
The consistency that the Court espouses would disregard the difference between a “No Trespassing” sign
and a welcome mat. It would treat a Dixiecrat Senator’s decision to vote against Thurgood Marshall’s
confirmation in order to keep African Americans off the Supreme Court as on a par with President
Johnson’s evaluation of his nominee’s race as a positive factor. It would equate a law that made black
citizens ineligible for military service with a program aimed at recruiting black soldiers. An attempt by the
majority to exclude members of a minority race from a regulated market is fundamentally different from a
subsidy that enables a relatively small group of newcomers to enter that market. An interest in “consistency”
does not justify treating differences as though they were similarities.
The Court’s explanation for treating dissimilar race-based decisions as though they were equally
objectionable is a supposed inability to differentiate between “invidious” and “benign” discrimination. But
the term “affirmative action” is common and well understood. Its presence in everyday parlance shows that
people understand the difference between good intentions and bad. As with any legal concept, some cases
may be difficult to classify * * * *
Moreover, the Court may find that its new “consistency” approach to race-based classifications is difficult
to square with its insistence upon rigidly separate categories for discrimination against different classes of
individuals. For example, as the law currently stands, the Court will apply “intermediate scrutiny” to cases
of invidious gender discrimination and “strict scrutiny” to cases of invidious race discrimination, while
applying the same standard for benign classifications as for invidious ones. If this remains the law, then
today’s lecture about “consistency” will produce the anomalous result that the Government can more easily
1.5.15 96873
enact affirmative action programs to remedy discrimination against women than it can enact affirmative
action programs to remedy discrimination against African Americans-even though the primary purpose of
the Equal Protection Clause was to end discrimination against the former slaves. When a court becomes
preoccupied with abstract standards, it risks sacrificing common sense at the altar of formal consistency.
As a matter of constitutional and democratic principle, a decision by representatives of the majority to
discriminate against the members of a minority race is fundamentally different from those same
representatives’ decision to impose incidental costs on the majority of their constituents in order to provide
a benefit to a disadvantaged minority. Indeed, as I have previously argued, the former is virtually always
repugnant to the principles of a free and democratic society, whereas the latter is, in some circumstances,
entirely consistent with the ideal of equality. Wygant v. Jackson Board of Ed. (1986) (Stevens, J.,
dissenting). By insisting on a doctrinaire notion of “consistency” in the standard applicable to all race-based
governmental actions, the Court obscures this essential dichotomy.
III
The Court’s concept of “congruence” assumes that there is no significant difference between a decision by
the Congress of the United States to adopt an affirmative action program and such a decision by a State or
a municipality. In my opinion, that assumption is untenable. It ignores important practical and legal
differences between federal and state or local decisionmakers.
These differences have been identified repeatedly and consistently both in opinions of the Court and in
separate opinions authored by members of today’s majority. Thus, in Metro Broadcasting, Inc. v. FCC
(1990), in which we upheld a federal program designed to foster racial diversity in broadcasting, we
identified the special “institutional competence” of our National Legislature. * * * *
What the record shows, in other words, is that racial discrimination against any group finds a more ready
expression at the state and local than at the federal level. To the children of the Founding Fathers, this
should come as no surprise. An acute awareness of the heightened danger of oppression from political
factions in small, rather than large, political units dates to the very beginning of our national history. See
G. Wood, The Creation of the American Republic, 1776-1787 (1969). * * * *
In my judgment, the Court’s novel doctrine of “congruence” is seriously misguided. Congressional
deliberations about a matter as important as affirmative action should be accorded far greater deference
than those of a State or municipality.
IV
The Court’s concept of stare decisis treats some of the language we have used in explaining our decisions
as though it were more important than our actual holdings. In my opinion, that treatment is incorrect.
This is the third time in the Court’s entire history that it has considered the constitutionality of a federal
affirmative action program. On each of the two prior occasions, the first in 1980, Fullilove v. Klutznick,
and the second in 1990, Metro Broadcasting, Inc. v. FCC, the Court upheld the program. Today the Court
explicitly overrules Metro Broadcasting (at least in part), and undermines Fullilove by recasting the
standard on which it rested and by calling even its holding into question. By way of explanation, Justice
O’Connor advises the federal agencies and private parties that have made countless decisions in reliance
on those cases that “we do not depart from the fabric of the law; we restore it.” A skeptical observer might
ask whether this pronouncement is a faithful application of the doctrine of stare decisis.
****
V
{discussion of Fullilove omitted}
VI
My skeptical scrutiny of the Court’s opinion leaves me in dissent. The majority’s concept of “consistency”
ignores a difference, fundamental to the idea of equal protection, between oppression and assistance. The
majority’s concept of “congruence” ignores a
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difference, fundamental to our constitutional system, between the Federal Government and the States. And
the majority’s concept of stare decisis ignores the force of binding precedent. I would affirm the judgment
of the Court of Appeals.
Check Your Understanding
Notes
1. Consider O’Connor’s three principles in Adarand. Are they doctrine, theoretical perspective, or
something else? Are they supported by the citations?
2. Be prepared to discuss dissenting Justice Stevens’ reference to “the anomalous result” regarding
the application of the consistency principle.
3. Be prepared to articulate the standard of “intermediate scrutiny.” While the Court in Adarand
rejects this as the standard for “affirmative action” racial classifications, note that this is the standard that
is applicable to sex/gender classifications as decided by the Court in Craig v. Boren, 429 U.S. 190 (1976),
discussed in a later chapter.
B. Diversity and Education
Grutter v. Bollinger
539 U.S. 306 (2003)
O’Connor, J., delivered the opinion of the Court, in which Stevens, Souter, Ginsburg, and Breyer, JJ.,
joined, and in which Scalia and Thomas, JJ., joined in part insofar as it is consistent with the views
expressed in Part VII of the opinion of Thomas, J. Ginsburg, J., filed a concurring opinion, in which Breyer,
J., joined. Scalia, J., filed an opinion concurring in part and dissenting in part, in which Thomas, J., joined.
Thomas, J., filed an opinion concurring in part and dissenting in part, in which Scalia, J., joined as to Parts
I—VII. Rehnquist, C. J., filed a dissenting opinion, in which Scalia, Kennedy, and Thomas, JJ., joined.
Kennedy, J., filed a dissenting opinion.
Justice O’Connor delivered the opinion of the Court.
This case requires us to decide whether the use of race as a factor in student admissions by the University
of Michigan Law School (Law School) is unlawful.
I
A
The Law School ranks among the Nation’s top law schools. It receives more than 3,500 applications each
year for a class of around 350 students. Seeking to “admit a group of students who individually and
collectively are among the most capable,” the Law School looks for individuals with “substantial promise
for success in law school” and “a strong likelihood of succeeding in the practice of law and contributing in
diverse ways to the well-being of others.” More broadly, the Law School seeks “a mix of students with
varying backgrounds and experiences who will respect and learn from each other.” In 1992, the dean of the
Law School charged a faculty committee with crafting a written admissions policy to implement these
goals. In particular, the Law School sought to ensure that its efforts to achieve student body diversity
complied with this Court’s most recent ruling on the use of race in university admissions. See Bakke (1978).
Upon the unanimous adoption of the committee’s report by the Law School faculty, it became the Law
School’s official admissions policy.
The hallmark of that policy is its focus on academic ability coupled with a flexible assessment of applicants’
talents, experiences, and potential “to contribute to the learning of those around them.” The policy requires
admissions officials to evaluate each
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applicant based on all the information available in the file, including a personal statement, letters of
recommendation, and an essay describing the ways in which the applicant will contribute to the life and
diversity of the Law School. In reviewing an applicant’s file, admissions officials must consider the
applicant’s undergraduate grade point average (GPA) and Law School Admissions Test (LSAT) score
because they are important (if imperfect) predictors of academic success in law school. The policy stresses
that “no applicant should be admitted unless we expect that applicant to do well enough to graduate with
no serious academic problems.”
The policy makes clear, however, that even the highest possible score does not guarantee admission to the
Law School. Nor does a low score automatically disqualify an applicant. Rather, the policy requires
admissions officials to look beyond grades and test scores to other criteria that are important to the Law
School’s educational objectives. So-called “soft’ variables” such as “the enthusiasm of recommenders, the
quality of the undergraduate institution, the quality of the applicant’s essay, and the areas and difficulty of
undergraduate course selection” are all brought to bear in assessing an “applicant’s likely contributions to
the intellectual and social life of the institution.”
The policy aspires to “achieve that diversity which has the potential to enrich everyone’s education and
thus make a law school class stronger than the sum of its parts.” The policy does not restrict the types of
diversity contributions eligible for “substantial weight” in the admissions process, but instead recognizes
“many possible bases for diversity admissions.” The policy does, however, reaffirm the Law School’s
longstanding commitment to “one particular type of diversity,” that is, “racial and ethnic diversity with
special reference to the inclusion of students from groups which have been historically discriminated
against, like African-Americans, Hispanics and Native Americans, who without this commitment might not
be represented in our student body in meaningful numbers.” By enrolling a “ ‘critical mass’ of
[underrepresented] minority students,” the Law School seeks to “ensur[e] their ability to make unique
contributions to the character of the Law School.”
The policy does not define diversity “solely in terms of racial and ethnic status.” Nor is the policy
“insensitive to the competition among all students for admission to the [L]aw [S]chool.” Rather, the policy
seeks to guide admissions officers in “producing classes both diverse and academically outstanding, classes
made up of students who promise to continue the tradition of outstanding contribution by Michigan
Graduates to the legal profession.”
B
Petitioner Barbara Grutter is a white Michigan resident who applied to the Law School in 1996 with a 3.8
grade point average and 161 LSAT score. The Law School initially placed petitioner on a waiting list, but
subsequently rejected her application. In December 1997, petitioner filed suit in the United States District
Court for the Eastern District of Michigan against the Law School, the Regents of the University of
Michigan, Lee Bollinger (Dean of the Law School from 1987 to 1994, and President of the University of
Michigan from 1996 to 2002), Jeffrey Lehman (Dean of the Law School), and Dennis Shields (Director of
Admissions at the Law School from 1991 until 1998). Petitioner alleged that respondents discriminated
against her on the basis of race in violation of the Fourteenth Amendment * * * *{as well Title VI of the
Civil Rights Act of 1964}.
Petitioner further alleged that her application was rejected because the Law School uses race as a
“predominant” factor, giving applicants who belong to certain minority groups “a significantly greater
chance of admission than students with similar credentials from disfavored racial groups.” Petitioner also
alleged that respondents “had no compelling interest to justify their use of race in the admissions process.”
* * * *
During the 15-day bench trial, the parties introduced extensive evidence concerning the Law School’s use
of race in the admissions process. Dennis Shields, Director of Admissions when petitioner applied to the
Law School, testified that he did not direct his staff to admit a particular percentage or number of minority
students, but rather to consider an applicant’s race along with all other factors. Shields testified that at the
height of the admissions season, he would frequently consult the so-called “daily reports” that kept track of
the racial and ethnic composition of the class (along with other information such as residency status and
gender). This was done, Shields testified, to ensure that a critical mass of underrepresented minority
students would be reached so as to realize the educational benefits of a diverse student body. Shields
stressed, however, that he did not seek to admit any particular number or percentage of underrepresented
minority students.
Erica Munzel, who succeeded Shields as Director of Admissions, testified that “ ‘critical mass’ ” means “
‘meaningful numbers’ ” or “ ‘meaningful representation,’ ” which she understood to mean a number that
encourages underrepresented minority students to participate in the classroom and not feel isolated. Munzel
stated there is no number, percentage, or range of numbers or percentages that constitute critical mass.
Munzel also asserted that she must consider the race of applicants because a critical mass of
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underrepresented minority students could not be enrolled if admissions decisions were based primarily on
undergraduate GPAs and LSAT scores.
The current Dean of the Law School, Jeffrey Lehman, also testified. Like the other Law School witnesses,
Lehman did not quantify critical mass in terms of numbers or percentages. He indicated that critical mass
means numbers such that underrepresented minority students do not feel isolated or like spokespersons for
their race. When asked about the extent to which race is considered in admissions, Lehman testified that it
varies from one applicant to another. In some cases, according to Lehman’s testimony, an applicant’s race
may play no role, while in others it may be a “ ‘determinative’ ” factor.
The District Court heard extensive testimony from Professor Richard Lempert, who chaired the faculty
committee that drafted the 1992 policy. Lempert emphasized that the Law School seeks students with
diverse interests and backgrounds to enhance classroom discussion and the educational experience both
inside and outside the classroom. When asked about the policy’s “ ‘commitment to racial and ethnic
diversity with special reference to the inclusion of students from groups which have been historically
discriminated against,’ ” Lempert explained that this language did not purport to remedy past
discrimination, but rather to include students who may bring to the Law School a perspective different from
that of members of groups which have not been the victims of such discrimination. Lempert acknowledged
that other groups, such as Asians and Jews, have experienced discrimination, but explained they were not
mentioned in the policy because individuals who are members of those groups were already being admitted
to the Law School in significant numbers.
Kent Syverud was the final witness to testify about the Law School’s use of race in admissions decisions.
Syverud was a professor at the Law School when the 1992 admissions policy was adopted and is now Dean
of Vanderbilt Law School. In addition to his testimony at trial, Syverud submitted several expert reports on
the educational benefits of diversity. Syverud’s testimony indicated that when a critical mass of
underrepresented minority students is present, racial stereotypes lose their force because nonminority
students learn there is no “ ‘minority viewpoint’ ” but rather a variety of viewpoints among minority
students.
In an attempt to quantify the extent to which the Law School actually considers race in making admissions
decisions, the parties introduced voluminous evidence at trial. Relying on data obtained from the Law
School, petitioner’s expert, Dr. Kinley Larntz, generated and analyzed “admissions grids” for the years in
question (1995—2000). These grids show the number of applicants and the number of admittees for all
combinations of GPAs and LSAT scores. Dr. Larntz made “ ‘cell-by-cell’ ” comparisons between
applicants of different races to determine whether a statistically significant relationship existed between
race and admission rates. He concluded that membership in certain minority groups “ ‘is an extremely
strong factor in the decision for acceptance,’ ” and that applicants from these minority groups “ ‘are given
an extremely large allowance for admission’ ” as compared to applicants who are members of nonfavored
groups. Dr. Larntz conceded, however, that race is not the predominant factor in the Law School’s
admissions calculus.
Dr. Stephen Raudenbush, the Law School’s expert, focused on the predicted effect of eliminating race as a
factor in the Law School’s admission process. In Dr. Raudenbush’s view, a race-blind admissions system
would have a “ ‘very dramatic,’ ” negative effect on underrepresented minority admissions. He testified
that in 2000, 35 percent of underrepresented minority applicants were admitted. Dr. Raudenbush predicted
that if race were not considered, only 10 percent of those applicants would have been admitted. Under this
scenario, underrepresented minority students would have comprised 4 percent of the entering class in 2000
instead of the actual figure of 14.5 percent.
In the end, the District Court concluded that the Law School’s use of race as a factor in admissions decisions
was unlawful. Applying strict scrutiny, the District Court determined that the Law School’s asserted interest
in assembling a diverse student body was not compelling because “the attainment of a racially diverse class
… was not recognized as such by Bakke and is not a remedy for past discrimination.” The District Court
went on to hold that even if diversity were compelling, the Law School had not narrowly tailored its use of
race to further that interest. The District Court granted petitioner’s request for declaratory relief and
enjoined the Law School from using race as a factor in its admissions decisions. The Court of Appeals
entered a stay of the injunction pending appeal.
Sitting en banc, the Court of Appeals reversed the District Court’s judgment and vacated the injunction.
The Court of Appeals first held that Justice Powell’s opinion in Bakke was binding precedent establishing
diversity as a compelling state interest. * * * *The Court of Appeals also held that the Law School’s use of
race was narrowly tailored because race was merely a “potential ‘plus’ factor” and because the Law
School’s program was “virtually identical” to the Harvard admissions program described approvingly by
Justice Powell and appended to his Bakke opinion. * * * *
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We granted certiorari, to resolve the disagreement among the Courts of Appeals on a question of national
importance: Whether diversity is a compelling interest that can justify the narrowly tailored use of race in
selecting applicants for admission to public universities. Compare Hopwood v. Texas (5th Cir. 1996)
(Hopwood I) (holding that diversity is not a compelling state interest), with Smith v. University of Wash.
Law School (9th Cir. 2000) (holding that it is).
II
A
We last addressed the use of race in public higher education over 25 years ago. In the landmark Bakke case,
we reviewed a racial set-aside program that reserved 16 out of 100 seats in a medical school class for
members of certain minority groups. The decision produced six separate opinions, none of which
commanded a majority of the Court. * * * *
In the wake of our fractured decision in Bakke, courts have struggled to discern whether Justice Powell’s
diversity rationale, set forth in part of the opinion joined by no other Justice, is nonetheless binding
precedent. * * * *
[T]oday we endorse Justice Powell’s view that student body diversity is a compelling state interest that can
justify the use of race in university admissions.
B
The Equal Protection Clause provides that no State shall “deny to any person within its jurisdiction the
equal protection of the laws.” Because the Fourteenth Amendment “protect[s] persons, not groups,” all
“governmental action based on race–a group classification long recognized as in most circumstances
irrelevant and therefore prohibited–should be subjected to detailed judicial inquiry to ensure that the
personal right to equal protection of the laws has not been infringed.” Adarand Constructors, Inc. v. Peña
(1995). We are a “free people whose institutions are founded upon the doctrine of equality.” Loving v.
Virginia (1967). It follows from that principle that “government may treat people differently because of
their race only for the most compelling reasons.” Adarand.
We have held that all racial classifications imposed by government “must be analyzed by a reviewing court
under strict scrutiny.” Adarand. This means that such classifications are constitutional only if they are
narrowly tailored to further compelling governmental interests. “Absent searching judicial inquiry into the
justification for such race-based measures,” we have no way to determine what “classifications are ‘benign’
or ‘remedial’ and what classifications are in fact motivated by illegitimate notions of racial inferiority or
simple racial politics.” Richmond v. J. A. Croson Co. (1989) (plurality opinion). We apply strict scrutiny
to all racial classifications to “ ‘smoke out’ illegitimate uses of race by assuring that [government] is
pursuing a goal important enough to warrant use of a highly suspect tool.” Croson.
Strict scrutiny is not “strict in theory, but fatal in fact.” Adarand. Although all governmental uses of race
are subject to strict scrutiny, not all are invalidated by it. As we have explained, “whenever the government
treats any person unequally because of his or her race, that person has suffered an injury that falls squarely
within the language and spirit of the Constitution’s guarantee of equal protection.” Adarand. But that
observation “says nothing about the ultimate validity of any particular law; that determination is the job of
the court applying strict scrutiny.” Id. When race-based action is necessary to further a compelling
governmental interest, such action does not violate the constitutional guarantee of equal protection so long
as the narrow-tailoring requirement is also satisfied.
Context matters when reviewing race-based governmental action under the Equal Protection Clause. In
Adarand Constructors, Inc. v. Peña, we made clear that strict scrutiny must take “ ‘relevant differences’
into account.” Indeed, as we explained, that is its “fundamental purpose.” Not every decision influenced by
race is equally objectionable and strict scrutiny is designed to provide a framework for carefully examining
the importance and the sincerity of the reasons advanced by the governmental decisionmaker for the use of
race in that particular context.
III
1.5.20 96873
A
With these principles in mind, we turn to the question whether the Law School’s use of race is justified by
a compelling state interest. Before this Court, as they have throughout this litigation, respondents assert
only one justification for their use of race in the admissions process: obtaining “the educational benefits
that flow from a diverse student body.” In other words, the Law School asks us to recognize, in the context
of higher education, a compelling state interest in student body diversity.
We first wish to dispel the notion that the Law School’s argument has been foreclosed, either expressly or
implicitly, by our affirmative-action cases decided since Bakke. It is true that some language in those
opinions might be read to suggest that remedying past discrimination is the only permissible justification
for race-based governmental action. See, e.g., Richmond v. J. A. Croson Co., (plurality opinion) (stating
that unless classifications based on race are “strictly reserved for remedial settings, they may in fact promote
notions of racial inferiority and lead to a politics of racial hostility”). But we have never held that the only
governmental use of race that can survive strict scrutiny is remedying past discrimination. Nor, since Bakke,
have we directly addressed the use of race in the context of public higher education. Today, we hold that
the Law School has a compelling interest in attaining a diverse student body.
The Law School’s educational judgment that such diversity is essential to its educational mission is one to
which we defer. The Law School’s assessment that diversity will, in fact, yield educational benefits is
substantiated by respondents and their amici. Our scrutiny of the interest asserted by the Law School is no
less strict for taking into account complex educational judgments in an area that lies primarily within the
expertise of the university. Our holding today is in keeping with our tradition of giving a degree of deference
to a university’s academic decisions, within constitutionally prescribed limits.
We have long recognized that, given the important purpose of public education and the expansive freedoms
of speech and thought associated with the university environment, universities occupy a special niche in
our constitutional tradition. In announcing the principle of student body diversity as a compelling state
interest, Justice Powell invoked our cases recognizing a constitutional dimension, grounded in the First
Amendment, of educational autonomy: “The freedom of a university to make its own judgments as to
education includes the selection of its student body.” Bakke. From this premise, Justice Powell reasoned
that by claiming “the right to select those students who will contribute the most to the ‘robust exchange of
ideas,’ ” a university “seek[s] to achieve a goal that is of paramount importance in the fulfillment of its
mission.” Our conclusion that the Law School has a compelling interest in a diverse student body is
informed by our view that attaining a diverse student body is at the heart of the Law School’s proper
institutional mission, and that “good faith” on the part of a university is “presumed” absent “a showing to
the contrary.”
As part of its goal of “assembling a class that is both exceptionally academically qualified and broadly
diverse,” the Law School seeks to “enroll a ‘critical mass’ of minority students.” The Law School’s interest
is not simply “to assure within its student body some specified percentage of a particular group merely
because of its race or ethnic origin.” Bakke (opinion of Powell, J.). That would amount to outright racial
balancing, which is patently unconstitutional. Bakke; Freeman v. Pitts (1992) (“Racial balance is not to be
achieved for its own sake”); Richmond v. J. A. Croson Co. Rather, the Law School’s concept of critical
mass is defined by reference to the educational benefits that diversity is designed to produce.
These benefits are substantial. As the District Court emphasized, the Law School’s admissions policy
promotes “cross-racial understanding,” helps to break down racial stereotypes, and “enables [students] to
better understand persons of different races.” These benefits are “important and laudable,” because
“classroom discussion is livelier, more spirited, and simply more enlightening and interesting” when the
students have “the greatest possible variety of backgrounds.”
The Law School’s claim of a compelling interest is further bolstered by its amici, who point to the
educational benefits that flow from student body diversity. In addition to the expert studies and reports
entered into evidence at trial, numerous studies show that student body diversity promotes learning
outcomes, and “better prepares students for an increasingly diverse workforce and society, and better
prepares them as professionals.” Brief for American Educational Research Association et al. as Amici
Curiae 3; see, e.g., W. Bowen & D. Bok, The Shape of the River (1998); Diversity Challenged: Evidence
on the Impact of Affirmative Action (G. Orfield & M. Kurlaender eds. 2001); Compelling Interest:
Examining the Evidence on Racial Dynamics in Colleges and Universities (M. Chang, D. Witt, J. Jones, &
K. Hakuta eds. 2003).
These benefits are not theoretical but real, as major American businesses have made clear that the skills
needed in today’s increasingly global marketplace can only be developed through exposure to widely
diverse people, cultures, ideas, and viewpoints. Brief for 3M et al. as Amici Curiae 5; Brief for General
Motors Corp. as Amicus Curiae 3—4. What is more, high-ranking retired officers and civilian leaders of
the United States military assert that, “[b]ased on [their] decades of experience,” a “highly qualified, racially
diverse officer corps … is essential to the military’s ability to fulfill its principle mission to provide national
security.” Brief
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for Julius W. Becton, Jr. et al. as Amici Curiae 27. The primary sources for the Nation’s officer corps are
the service academies and the Reserve Officers Training Corps (ROTC), the latter comprising students
already admitted to participating colleges and universities. Id., at 5. At present, “the military cannot achieve
an officer corps that is both highly qualified and racially diverse unless the service academies and the ROTC
used limited race-conscious recruiting and admissions policies.” Ibid. (emphasis in original). To fulfill its
mission, the military “must be selective in admissions for training and education for the officer corps, and
it must train and educate a highly qualified, racially diverse officer corps in a racially diverse setting.” Id.,
at 29 (emphasis in original). We agree that “[i]t requires only a small step from this analysis to conclude
that our country’s other most selective institutions must remain both diverse and selective.” Ibid.
We have repeatedly acknowledged the overriding importance of preparing students for work and
citizenship, describing education as pivotal to “sustaining our political and cultural heritage” with a
fundamental role in maintaining the fabric of society. Plyler v. Doe (1982). This Court has long recognized
that “education … is the very foundation of good citizenship.” Brown v. Board of Education (1954). For
this reason, the diffusion of knowledge and opportunity through public institutions of higher education must
be accessible to all individuals regardless of race or ethnicity. The United States, as amicus curiae, affirms
that “[e]nsuring that public institutions are open and available to all segments of American society,
including people of all races and ethnicities, represents a paramount government objective.” And,
“[n]owhere is the importance of such openness more acute than in the context of higher education.”
Effective participation by members of all racial and ethnic groups in the civic life of our Nation is essential
if the dream of one Nation, indivisible, is to be realized.
Moreover, universities, and in particular, law schools, represent the training ground for a large number of
our Nation’s leaders. Sweatt v. Painter (1950) (describing law school as a “proving ground for legal learning
and practice”). Individuals with law degrees occupy roughly half the state governorships, more than half
the seats in the United States Senate, and more than a third of the seats in the United States House of
Representatives. See Brief for Association of American Law Schools as Amicus Curiae 5—
6. The pattern is even more striking when it comes to highly selective law schools. A handful of these
schools accounts for 25 of the 100 United States Senators, 74 United States Courts of Appeals judges, and
nearly 200 of the more than 600 United States District Court judges.
In order to cultivate a set of leaders with legitimacy in the eyes of the citizenry, it is necessary that the path
to leadership be visibly open to talented and qualified individuals of every race and ethnicity. All members
of our heterogeneous society must have confidence in the openness and integrity of the educational
institutions that provide this training. As we have recognized, law schools “cannot be effective in isolation
from the individuals and institutions with which the law interacts.” See Sweatt v. Painter. Access to legal
education (and thus the legal profession) must be inclusive of talented and qualified individuals of every
race and ethnicity, so that all members of our heterogeneous society may participate in the educational
institutions that provide the training and education necessary to succeed in America.
The Law School does not premise its need for critical mass on “any belief that minority students always (or
even consistently) express some characteristic minority viewpoint on any issue.” To the contrary,
diminishing the force of such stereotypes is both a crucial part of the Law School’s mission, and one that it
cannot accomplish with only token numbers of minority students. Just as growing up in a particular region
or having particular professional experiences is likely to affect an individual’s views, so too is one’s own,
unique experience of being a racial minority in a society, like our own, in which race unfortunately still
matters. The Law School has determined, based on its experience and expertise, that a “critical mass” of
underrepresented minorities is necessary to further its compelling interest in securing the educational
benefits of a diverse student body.
B
Even in the limited circumstance when drawing racial distinctions is permissible to further a compelling
state interest, government is still “constrained in how it may pursue that end: [T]he means chosen to
accomplish the [government’s] asserted purpose must be specifically and narrowly framed to accomplish
that purpose.” The purpose of the narrow tailoring requirement is to ensure that “the means chosen ‘fit’ …
th[e] compelling goal so closely that there is little or no possibility that the motive for the classification was
illegitimate racial prejudice or stereotype.” Richmond v. J. A. Croson Co. (plurality opinion).
* * * * To be narrowly tailored, a race-conscious admissions program cannot use a quota system–it
cannot “insulat[e] each category of applicants with certain desired qualifications from competition with all
other applicants.” Bakke (opinion of Powell, J.). Instead, a university may consider race or ethnicity only
as a “ ‘plus’ in a particular applicant’s file,” without “insulat[ing] the individual from comparison with all
other candidates for the available seats.” In other words, an admissions program must be
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“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.”
We find that the Law School’s admissions program bears the hallmarks of a narrowly tailored plan. As
Justice Powell made clear in Bakke, truly individualized consideration demands that race be used in a
flexible, nonmechanical way. It follows from this mandate that universities cannot establish quotas for
members of certain racial groups or put members of those groups on separate admissions tracks. Nor can
universities insulate applicants who belong to certain racial or ethnic groups from the competition for
admission. Universities can, however, consider race or ethnicity more flexibly as a “plus” factor in the
context of individualized consideration of each and every applicant.
We are satisfied that the Law School’s admissions program, like the Harvard plan described by Justice
Powell, does not operate as a quota. Properly understood, a “quota” is a program in which a certain fixed
number or proportion of opportunities are “reserved exclusively for certain minority groups.” Richmond v.
J. A. Croson Co. (plurality opinion). Quotas “ ‘impose a fixed number or percentage which must be attained,
or which cannot be exceeded,’ ” and “insulate the individual from comparison with all other candidates for
the available seats.” Bakke (opinion of Powell, J.). In contrast, “a permissible goal … require[s] only a
good-faith effort … to come within a range demarcated by the goal itself,” and permits consideration of
race as a “plus” factor in any given case while still ensuring that each candidate “compete[s] with all other
qualified applicants.”
* * * * The Law School’s goal of attaining a critical mass of underrepresented minority students does
not transform its program into a quota. As the Harvard plan described by Justice Powell recognized, there
is of course “some relationship between numbers and achieving the benefits to be derived from a diverse
student body, and between numbers and providing a reasonable environment for those students admitted.”
“[S]ome attention to numbers,” without more, does not transform a flexible admissions system into a rigid
quota. Nor, as Justice Kennedy posits {in a dissenting opinion} does the Law School’s consultation of the
“daily reports,” which keep track of the racial and ethnic composition of the class (as well as of residency
and gender), “suggest[ ] there was no further attempt at individual review save for race itself” during the
final stages of the admissions process. To the contrary, the Law School’s admissions officers testified
without contradiction that they never gave race any more or less weight based on the information contained
in these reports. Moreover, as Justice Kennedy concedes, between 1993 and 2000, the number of African-
American, Latino, and Native-American students in each class at the Law School varied from 13.5 to 20.1
percent, a range inconsistent with a quota.
The Chief Justice {in his dissenting opinion} believes that the Law School’s policy conceals an attempt to
achieve racial balancing, and cites admissions data to contend that the Law School discriminates among
different groups within the critical mass. But, as The Chief Justice concedes, the number of
underrepresented minority students who ultimately enroll in the Law School differs substantially from their
representation in the applicant pool and varies considerably for each group from year to year.
That a race-conscious admissions program does not operate as a quota does not, by itself, satisfy the
requirement of individualized consideration. When using race as a “plus” factor in university admissions,
a university’s admissions program must remain flexible enough to ensure that each applicant is evaluated
as an individual and not in a way that makes an applicant’s race or ethnicity the defining feature of his or
her application. The importance of this individualized consideration in the context of a race-conscious
admissions program is paramount. See Bakke (opinion of Powell, J.) (identifying the “denial … of th[e]
right to individualized consideration” as the “principal evil” of the medical school’s admissions program).
Here, the Law School engages in a highly individualized, holistic review of each applicant’s file, giving
serious consideration to all the ways an applicant might contribute to a diverse educational environment.
The Law School affords this individualized consideration to applicants of all races. There is no policy,
either de jure or de facto, of automatic acceptance or rejection based on any single “soft” variable. Unlike
the program at issue in Gratz v. Bollinger, the Law School awards no mechanical, predetermined diversity
“bonuses” based on race or ethnicity. Like the Harvard plan, the Law School’s admissions policy “is flexible
enough to consider all pertinent elements of diversity in light of the particular qualifications of each
applicant, and to place them on the same footing for consideration, although not necessarily according them
the same weight.” Bakke (opinion of Powell, J.).
We also find that, like the Harvard plan Justice Powell referenced in Bakke, the Law School’s race-
conscious admissions program adequately ensures that all factors that may contribute to student body
diversity are meaningfully considered alongside race in admissions decisions. With respect to the use of
race itself, all underrepresented minority students admitted by the Law School have been deemed qualified.
By virtue of our Nation’s struggle with racial inequality, such students are both likely to have experiences
of particular importance to the Law School’s mission, and less likely to be admitted in meaningful numbers
on criteria that ignore those experiences.
1.5.23 96873
The Law School does not, however, limit in any way the broad range of qualities and experiences that may
be considered valuable contributions to student body diversity. To the contrary, the 1992 policy makes clear
“[t]here are many possible bases for diversity admissions,” and provides examples of admittees who have
lived or traveled widely abroad, are fluent in several languages, have overcome personal adversity and
family hardship, have exceptional records of extensive community service, and have had successful careers
in other fields. The Law School seriously considers each “applicant’s promise of making a notable
contribution to the class by way of a particular strength, attainment, or characteristic–e.g., an unusual
intellectual achievement, employment experience, nonacademic performance, or personal background.” All
applicants have the opportunity to highlight their own potential diversity contributions through the
submission of a personal statement, letters of recommendation, and an essay describing the ways in which
the applicant will contribute to the life and diversity of the Law School.
What is more, the Law School actually gives substantial weight to diversity factors besides race. The Law
School frequently accepts nonminority applicants with grades and test scores lower than underrepresented
minority applicants (and other nonminority applicants) who are rejected. This shows that the Law School
seriously weighs many other diversity factors besides race that can make a real and dispositive difference
for nonminority applicants as well. By this flexible approach, the Law School sufficiently takes into
account, in practice as well as in theory, a wide variety of characteristics besides race and ethnicity that
contribute to a diverse student body. Justice Kennedy {in dissenting opinion} speculates that “race is likely
outcome determinative for many members of minority groups” who do not fall within the upper range of
LSAT scores and grades. But the same could be said of the Harvard plan discussed approvingly by Justice
Powell in Bakke, and indeed of any plan that uses race as one of many factors.
Petitioner and the United States argue that the Law School’s plan is not narrowly tailored because race-
neutral means exist to obtain the educational benefits of student body diversity that the Law School seeks.
We disagree. Narrow tailoring does not require exhaustion of every conceivable race-neutral alternative.
Nor does it require a university to choose between maintaining a reputation for excellence or fulfilling a
commitment to provide educational opportunities to members of all racial groups. See Wygant v. Jackson
Bd. of Ed (1986) (alternatives must serve the interest “ ‘about as well’ ”); Richmond v. J. A. Croson
Co.(plurality opinion) (city had a “whole array of race-neutral” alternatives because changing requirements
“would have [had] little detrimental effect on the city’s interests”). Narrow tailoring does, however, require
serious, good faith consideration of workable race-neutral alternatives that will achieve the diversity the
university seeks.
We agree with the Court of Appeals that the Law School sufficiently considered workable race-neutral
alternatives. The District Court took the Law School to task for failing to consider race-neutral alternatives
such as “using a lottery system” or “decreasing the emphasis for all applicants on undergraduate GPA and
LSAT scores.” But these alternatives would require a dramatic sacrifice of diversity, the academic quality
of all admitted students, or both.
The Law School’s current admissions program considers race as one factor among many, in an effort to
assemble a student body that is diverse in ways broader than race. Because a lottery would make that kind
of nuanced judgment impossible, it would effectively sacrifice all other educational values, not to mention
every other kind of diversity. So too with the suggestion that the Law School simply lower admissions
standards for all students, a drastic remedy that would require the Law School to become a much different
institution and sacrifice a vital component of its educational mission. The United States advocates
“percentage plans,” recently adopted by public undergraduate institutions in Texas, Florida, and California
to guarantee admission to all students above a certain class-rank threshold in every high school in the State.
Brief for United States as Amicus Curiae 14—18. The United States does not, however, explain how such
plans could work for graduate and professional schools. More-over, even assuming such plans are race-
neutral, they may preclude the university from conducting the individualized assessments necessary to
assemble a student body that is not just racially diverse, but diverse along all the qualities valued by the
university. We are satisfied that the Law School adequately considered race-neutral alternatives currently
capable of producing a critical mass without forcing the Law School to abandon the academic selectivity
that is the cornerstone of its educational mission.
We acknowledge that “there are serious problems of justice connected with the idea of preference itself.”
Bakke (opinion of Powell, J.). Narrow tailoring, therefore, requires that a race-conscious admissions
program not unduly harm members of any racial group. Even remedial race-based governmental action
generally “remains subject to continuing oversight to assure that it will work the least harm possible to
other innocent persons competing for the benefit.” Id. To be narrowly tailored, a race-conscious admissions
program must not “unduly burden individuals who are not members of the favored racial and ethnic
groups.” Metro Broadcasting, Inc. v. FCC (1990) (O’Connor, J., dissenting).
We are satisfied that the Law School’s admissions program does not. Because the Law School considers
“all pertinent elements of diversity,” it can (and does) select nonminority applicants who have greater
potential to enhance student body diversity over underrepresented minority applicants. See Bakke (opinion
of Powell, J.). As Justice Powell recognized in Bakke, so long as a race-
1.5.24 96873
conscious admissions program uses race as a “plus” factor in the context of individualized consideration, a
rejected applicant “will not have been foreclosed from all consideration for that seat simply because he was
not the right color or had the wrong surname…. His qualifications would have been weighed fairly and
competitively, and he would have no basis to complain of unequal treatment under the Fourteenth
Amendment.”
We agree that, in the context of its individualized inquiry into the possible diversity contributions of all
applicants, the Law School’s race-conscious admissions program does not unduly harm nonminority
applicants.
We are mindful, however, that “[a] core purpose of the Fourteenth Amendment was to do away with all
governmentally imposed discrimination based on race.” Palmore v. Sidoti (1984). Accordingly, race-
conscious admissions policies must be limited in time. This requirement reflects that racial classifications,
however compelling their goals, are potentially so dangerous that they may be employed no more broadly
than the interest demands. Enshrining a permanent justification for racial preferences would offend this
fundamental equal protection principle. We see no reason to exempt race-conscious admissions programs
from the requirement that all governmental use of race must have a logical end point. The Law School, too,
concedes that all “race-conscious programs must have reasonable durational limits.”
In the context of higher education, the durational requirement can be met by sunset provisions in race-
conscious admissions policies and periodic reviews to determine whether racial preferences are still
necessary to achieve student body diversity. * * * *
We take the Law School at its word that it would “like nothing better than to find a race-neutral admissions
formula” and will terminate its race-conscious admissions program as soon as practicable. It has been 25
years since Justice Powell first approved the use of race to further an interest in student body diversity in
the context of public higher education. Since that time, the number of minority applicants with high grades
and test scores has indeed increased. We expect that 25 years from now, the use of racial preferences will
no longer be necessary to further the interest approved today.
IV
In summary, the Equal Protection Clause does not prohibit the Law School’s narrowly tailored use of race
in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from
a diverse student body. * * * * The judgment of the Court of Appeals for the Sixth Circuit, accordingly, is
affirmed.
Chief Justice Rehnquist, with whom Justice Scalia, Justice Kennedy, and Justice Thomas join, dissenting.
I agree with the Court that, “in the limited circumstance when drawing racial distinctions is permissible,”
the government must ensure that its means are narrowly tailored to achieve a compelling state interest. I do
not believe, however, that the University of Michigan Law School’s (Law School) means are narrowly
tailored to the interest it asserts. The Law School claims it must take the steps it does to achieve a “ ‘critical
mass’ ” of underrepresented minority students. But its actual program bears no relation to this asserted goal.
Stripped of its “critical mass” veil, the Law School’s program is revealed as a naked effort to achieve racial
balancing.
* * * * Although the Court recites the language of our strict scrutiny analysis, its application of that
review is unprecedented in its deference.
* * * * Respondents’ asserted justification for the Law School’s use of race in the admissions process
is “obtaining ‘the educational benefits that flow from a diverse student body.’ ” They contend that a “critical
mass” of underrepresented minorities is necessary to further that interest. Respondents and school
administrators explain generally that “critical mass” means a sufficient number of underrepresented
minority students to achieve several objectives: To ensure that these minority students do not feel isolated
or like spokespersons for their race; to provide adequate opportunities for the type of interaction upon which
the educational benefits of diversity depend; and to challenge all students to think critically and reexamine
stereotypes. * * * *
In practice, the Law School’s program bears little or no relation to its asserted goal of achieving “critical
mass.” Respondents explain that the Law School seeks to accumulate a “critical mass” of each
underrepresented minority group. But the record demonstrates that the Law School’s admissions practices
with respect to these groups differ dramatically and cannot be defended under any consistent use of the
term “critical mass.”
1.5.25 96873
From 1995 through 2000, the Law School admitted between 1,130 and 1,310 students. Of those, between
13 and 19 were Native American, between 91 and 108 were African-Americans, and between 47 and 56
were Hispanic. If the Law School is admitting between 91 and 108 African-Americans in order to achieve
“critical mass,” thereby preventing African-American students from feeling “isolated or like spokespersons
for their race,” one would think that a number of the same order of magnitude would be necessary to
accomplish the same purpose for Hispanics and Native Americans. Similarly, even if all of the Native
American applicants admitted in a given year matriculate, which the record demonstrates is not at all the
case, how can this possibly constitute a “critical mass” of Native Americans in a class of over 350 students?
In order for this pattern of admission to be consistent with the Law School’s explanation of “critical mass,”
one would have to believe that the objectives of “critical mass” offered by respondents are achieved with
only half the number of Hispanics and one-sixth the number of Native Americans as compared to African-
Americans. But respondents offer no race-specific reasons for such disparities. Instead, they simply
emphasize the importance of achieving “critical mass,” without any explanation of why that concept is
applied differently among the three underrepresented minority groups.* * * *
Only when the “critical mass” label is discarded does a likely explanation for these numbers emerge. * * *
*
[T]he correlation between the percentage of the Law School’s pool of applicants who are members of the
three minority groups and the percentage of the admitted applicants who are members of these same groups
is far too precise to be dismissed as merely the result of the school paying “some attention to [the] numbers.”
As the tables below show, from 1995 through 2000 the percentage of admitted applicants who were
members of these minority groups closely tracked the percentage of individuals in the school’s applicant
pool who were from the same groups.
* * * *For example, in 1995, when 9.7% of the applicant pool was African-American, 9.4% of the
admitted class was African-American. By 2000, only 7.5% of the applicant pool was African-American,
and 7.3% of the admitted class was African-American. This correlation is striking. Respondents themselves
emphasize that the number of underrepresented minority students admitted to the Law School would be
significantly smaller if the race of each applicant were not considered. But, as the examples above illustrate,
the measure of the decrease would differ dramatically among the groups. The tight correlation between the
percentage of applicants and admittees of a given race, therefore, must result from careful race based
planning by the Law School. It suggests a formula for admission based on the aspirational assumption that
all applicants are equally qualified academically, and therefore that the proportion of each group admitted
should be the same as the proportion of that group in the applicant pool. * * * *
I do not believe that the Constitution gives the Law School such free rein in the use of race. The Law School
has offered no explanation for its actual admissions practices and, unexplained, we are bound to conclude
that the Law School has managed its admissions program, not to achieve a “critical mass,” but to extend
offers of admission to members of selected minority groups in proportion to their statistical representation
in the applicant pool. But this is precisely the type of racial balancing that the Court itself calls “patently
unconstitutional.”.
Finally, I believe that the Law School’s program fails strict scrutiny because it is devoid of any reasonably
precise time limit on the Law School’s use of race in admissions. * * * *
{other dissenting opinions omitted}
Note: Gratz v. Bollinger
In Gratz v. Bollinger, 539 U.S. 244 (2003), a companion case to Grutter, the Court decided that the
undergraduate admissions policy of University of Michigan violated the Equal Protection Clause. The
admissions policy allocated points to candidates on a number of factors: high school grades, standardized
test scores, high school quality, curriculum strength, geography, alumni relationships, leadership, and
racial/ethnic minority status. Applicants from an “under-represented racial or ethnic minority” were
awarded 20 points toward the 100 needed for admission. In a 5-4 opinion issued the same day as Grutter,
the majority opinion by Chief Justice Rehnquist (joined by O’Connor, Scalia, Kennedy, and Thomas) found
that “the University’s policy, which automatically distributes 20 points, or one-fifth of the points needed to
guarantee admission, to every single ‘underrepresented minority’ applicant solely because of race, is not
narrowly tailored to achieve the interest in educational diversity that respondents claim justifies their
program.”
Notable among the dissenting opinions is the one by Justice Ginsburg (joined by Justice Souter), which
pointed out a possible consequence of the Court’s opinion for universities that wish to promote diversity:
The stain of generations of racial oppression is still visible in our society 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
1.5.26 96873
affirmative action plans of the kind here at issue. Without recourse to such plans, institutions of higher
education may resort to camouflage. For example, schools may encourage applicants to write of their
cultural traditions in the essays they submit, or to indicate whether English is their second language. Seeking
to improve their chances for admission, applicants may highlight the minority group associations to which
they belong, or the Hispanic surnames of their mothers or grandparents. In turn, teachers’ recommendations
may emphasize who a student is as much as what he or she has accomplished. See, e.g., Steinberg, Using
Synonyms for Race, College Strives for Diversity, N. Y. Times, Dec. 8, 2002, section 1, p. 1, col. 3
(describing admissions process at Rice University); cf. Brief for United States as Amicus Curiae 14—15
(suggesting institutions could consider, inter alia, “a history of overcoming disadvantage,” “reputation and
location of high school,” and “individual outlook as reflected by essays”). If honesty is the best policy,
surely Michigan’s accurately described, fully disclosed College affirmative action program is preferable to
achieving similar numbers through winks, nods, and disguises.
Check Your Understanding
Parents Involved in Community Schools v. Seattle School District No. 1
551 U.S. 701 (2007)
Roberts, C.J., announced the judgment of the Court and delivered the opinion of the Court with respect to
Parts I, II, III–A, and III–C, in which Scalia, Kennedy, Thomas, and Alito, JJ., joined, and an opinion with
respect to Parts III–B and IV, in which Scalia, Thomas, and Alito, JJ., joined. Thomas, J., filed a concurring
opinion. Kennedy, J., filed an opinion concurring in part and concurring in the judgment. Stevens, J., filed
a dissenting opinion. Breyer, J., filed a dissenting opinion, in which Stevens, Souter, and Ginsburg, JJ.,
joined.
Chief Justice Roberts announced the judgment of the Court, and delivered the opinion of the Court with
respect to Parts I, II, III–A, and III–C, and an opinion with respect to Parts III–B and IV, in which Justices
Scalia, Thomas, and Alito join.
The school districts in these cases voluntarily adopted student assignment plans that rely upon race to
determine which public schools certain children may attend. The Seattle school district classifies children
as white or nonwhite; the Jefferson County school district as black or “other.” In Seattle, this racial
classification is used to allocate slots in oversubscribed high schools. In Jefferson County, it is used to make
certain elementary school assignments and to rule on transfer requests. In each case, the school district
relies upon an individual student’s race in assigning that student to a particular school, so that the racial
balance at the school falls within a predetermined range based on the racial composition of the school
district as a whole. Parents of students denied assignment to particular schools under these plans solely
because of their race brought suit, contending that allocating children to different public schools on the
basis of race violated the Fourteenth Amendment guarantee of equal protection. The Courts of Appeals
below upheld the plans. We granted certiorari, and now reverse.
I
Both cases present the same underlying legal question—whether a public school that had not operated
legally segregated schools or has been found to be unitary may choose to classify students by race and rely
upon that classification in making school assignments. Although we examine the plans under the same legal
framework, the specifics of the two plans, and the circumstances surrounding their adoption, are in some
respects quite different.
A
Seattle School District No. 1 operates 10 regular public high schools. In 1998, it adopted the plan at issue
in this case for assigning students to these schools. The plan allows incoming ninth graders to choose from
among any of the district’s high schools, ranking however many schools they wish in order of preference.
1.5.27 96873
Some schools are more popular than others. If too many students list the same school as their first choice,
the district employs a series of “tiebreakers” to determine who will fill the open slots at the oversubscribed
school. The first tiebreaker selects for admission students who have a sibling currently enrolled in the
chosen school. The next tiebreaker depends upon the racial composition of the particular school and the
race of the individual student. In the district’s public schools approximately 41 percent of enrolled students
are white; the remaining 59 percent, comprising all other racial groups, are classified by Seattle for
assignment purposes as nonwhite. If an oversubscribed school is not within 10 percentage points of the
district’s overall white/nonwhite racial balance, it is what the district calls “integration positive,” and the
district employs a tiebreaker that selects for assignment students whose race “will serve to bring the school
into balance.” If it is still necessary to select students for the school after using the racial tiebreaker, the
next tiebreaker is the geographic proximity of the school to the student’s residence.
Seattle has never operated segregated schools—legally separate schools for students of different races—
nor has it ever been subject to court-ordered desegregation. It nonetheless employs the racial tiebreaker in
an attempt to address the effects of racially identifiable housing patterns on school assignments. Most white
students live in the northern part of Seattle, most students of other racial backgrounds in the southern part.
Four of Seattle’s high schools are located in the north—Ballard, Nathan Hale, Ingraham, and Roosevelt—
and five in the south—Rainier Beach, Cleveland, West Seattle, Chief Sealth, and Franklin. One school—
Garfield —is more or less in the center of Seattle.
For the 2000–2001 school year, five of these schools were oversubscribed—Ballard, Nathan Hale,
Roosevelt, Garfield, and Franklin—so much so that 82 percent of incoming ninth graders ranked one of
these schools as their first choice. Three of the oversubscribed schools were “integration positive” because
the school’s white enrollment the previous school year was greater than 51 percent—Ballard, Nathan Hale,
and Roosevelt. Thus, more nonwhite students (107, 27, and 82, respectively) who selected one of these
three schools as a top choice received placement at the school than would have been the case had race not
been considered, and proximity been the next tiebreaker. Franklin was “integration positive” because its
nonwhite enrollment the previous school year was greater than 69 percent; 89 more white students were
assigned to Franklin by operation of the racial tiebreaker in the 2000–2001 school year than otherwise
would have been. Garfield was the only oversubscribed school whose composition during the 1999–2000
school year was within the racial guidelines, although in previous years Garfield’s enrollment had been
predominantly nonwhite, and the racial tiebreaker had been used to give preference to white students.
Petitioner Parents Involved in Community Schools (Parents Involved) is a nonprofit corporation comprising
the parents of children who have been or may be denied assignment to their chosen high school in the
district because of their race. The concerns of Parents Involved are illustrated by Jill Kurfirst, who sought
to enroll her ninth-grade son, Andy Meeks, in Ballard High School’s special Biotechnology Career
Academy. Andy suffered from attention deficit hyperactivity disorder and dyslexia, but had made good
progress with hands-on instruction, and his mother and middle school teachers thought that the smaller
biotechnology program held the most promise for his continued success. Andy was accepted into this
selective program but, because of the racial tiebreaker, was denied assignment to Ballard High School.
Parents Involved commenced this suit in the Western District of Washington, alleging that Seattle’s use of
race in assignments violated the Equal Protection Clause of the Fourteenth Amendment, Title VI of the
Civil Rights Act of 1964, and the Washington Civil Rights Act.
The District Court granted summary judgment to the school district, finding that state law did not bar the
district’s use of the racial tiebreaker and that the plan survived strict scrutiny on the federal constitutional
claim because it was narrowly tailored to serve a compelling government interest. The Ninth Circuit initially
reversed based on its interpretation of the Washington Civil Rights Act
* * * * {and after proceedings on this issue, a} panel of the Ninth Circuit then again reversed the
District Court, this time ruling on the federal constitutional question. The panel determined that while
achieving racial diversity and avoiding racial isolation are compelling government interests, Seattle’s use
of the racial tiebreaker was not narrowly tailored to achieve these interests. The Ninth Circuit granted
rehearing en banc, and overruled the panel decision, affirming the District Court’s determination that
Seattle’s plan was narrowly tailored to serve a compelling government interest. We granted certiorari.
B
Jefferson County Public Schools operates the public school system in metropolitan Louisville, Kentucky.
In 1973 a federal court found that Jefferson County had maintained a segregated school system, and in 1975
the District Court entered a desegregation decree. Jefferson County operated under this decree until 2000,
when the District Court dissolved the decree after finding that the district had achieved unitary status by
eliminating “[t]o the greatest extent practicable” the vestiges of its prior policy of segregation.
1.5.28 96873
In 2001, after the decree had been dissolved, Jefferson County adopted the voluntary student assignment
plan at issue in this case. Approximately 34 percent of the district’s 97,000 students are black; most of the
remaining 66 percent are white. The plan requires all nonmagnet schools to maintain a minimum black
enrollment of 15 percent, and a maximum black enrollment of 50 percent.
At the elementary school level, based on his or her address, each student is designated a “resides” school
to which students within a specific geographic area are assigned; elementary resides schools are “grouped
into clusters in order to facilitate integration.” The district assigns students to nonmagnet schools in one of
two ways: Parents of kindergartners, first-graders, and students new to the district may submit an
application indicating a first and second choice among the schools within their cluster; students who do not
submit such an application are assigned within the cluster by the district. “Decisions to assign students to
schools within each cluster are based on available space within the schools and the racial guidelines in the
District’s current student assignment plan.” If a school has reached the “extremes of the racial guidelines,”
a student whose race would contribute to the school’s racial imbalance will not be assigned there. After
assignment, students at all grade levels are permitted to apply to transfer between nonmagnet schools in the
district. Transfers may be requested for any number of reasons, and may be denied because of lack of
available space or on the basis of the racial guidelines.
When petitioner Crystal Meredith moved into the school district in August 2002, she sought to enroll her
son, Joshua McDonald, in kindergarten for the 2002–2003 school year. His resides school was only a mile
from his new home, but it had no available space— assignments had been made in May, and the class was
full. Jefferson County assigned Joshua to another elementary school in his cluster, Young Elementary. This
school was 10 miles from home, and Meredith sought to transfer Joshua to a school in a different cluster,
Bloom Elementary, which—like his resides school—was only a mile from home. Space was available at
Bloom, and intercluster transfers are allowed, but Joshua’s transfer was nonetheless denied because, in the
words of Jefferson County, “[t]he transfer would have an adverse effect on desegregation compliance” of
Young.
Meredith brought suit in the Western District of Kentucky, alleging violations of the Equal Protection
Clause of the Fourteenth Amendment. The District Court found that Jefferson County had asserted a
compelling interest in maintaining racially diverse schools, and that the assignment plan was (in all relevant
respects) narrowly tailored to serve that compelling interest. The Sixth Circuit affirmed in a per curiam
opinion relying upon the reasoning of the District Court, concluding that a written opinion “would serve no
useful purpose.” We granted certiorari.
II
{standing discussion omitted}
III
A
It is well established that when the government distributes burdens or benefits on the basis of individual
racial classifications, that action is reviewed under strict scrutiny. Grutter v. Bollinger; Adarand. As the
Court recently reaffirmed, “ ‘racial classifications are simply too pernicious to permit any but the most
exact connection between justification and classification.’ ” Gratz v. Bollinger. In order to satisfy this
searching standard of review, the school districts must demonstrate that the use of individual racial
classifications in the assignment plans here under review is “narrowly tailored” to achieve a “compelling”
government interest. Adarand.
Without attempting in these cases to set forth all the interests a school district might assert, it suffices to
note that our prior cases, in evaluating the use of racial classifications in the school context, have recognized
two interests that qualify as compelling. The first is the compelling interest of remedying the effects of past
intentional discrimination. See Freeman v. Pitts (1992). Yet the Seattle public schools have not shown that
they were ever segregated by law, and were not subject to court-ordered desegregation decrees. The
Jefferson County public schools were previously segregated by law and were subject to a desegregation
decree entered in 1975. In 2000, the District Court that entered that decree dissolved it, finding that Jefferson
County had “eliminated the vestiges associated with the former policy of segregation and its pernicious
effects,” and thus had achieved “unitary” status. Jefferson County accordingly does not rely upon an interest
in remedying the effects of past intentional discrimination in defending its present use of race in assigning
students.
1.5.29 96873
Nor could it. We have emphasized that the harm being remedied by mandatory desegregation plans is the
harm that is traceable to segregation, and that “the Constitution is not violated by racial imbalance in the
schools, without more.” Milliken v. Bradley (1977). See also Freeman v. Pitts. Once Jefferson County
achieved unitary status, it had remedied the constitutional wrong that allowed race-based assignments. Any
continued use of race must be justified on some other basis.
The second government interest we have recognized as compelling for purposes of strict scrutiny is the
interest in diversity in higher education upheld in Grutter. The specific interest found compelling in Grutter
was student body diversity “in the context of higher education.” The diversity interest was not focused on
race alone but encompassed “all factors that may contribute to student body diversity.” * * * *
The entire gist of the analysis in Grutter was that the admissions program at issue there focused on each
applicant as an individual, and not simply as a member of a particular racial group. The classification of
applicants by race upheld in Grutter was only as part of a “highly individualized, holistic review.” As the
Court explained, “[t]he importance of this individualized consideration in the context of a race-conscious
admissions program is paramount.” The point of the narrow tailoring analysis in which the Grutter Court
engaged was to ensure that the use of racial classifications was indeed part of a broader assessment of
diversity, and not simply an effort to achieve racial balance, which the Court explained would be “patently
unconstitutional.”
In the present cases, by contrast, race is not considered as part of a broader effort to achieve “exposure to
widely diverse people, cultures, ideas, and viewpoints;” race, for some students, is determinative standing
alone. The districts argue that other factors, such as student preferences, affect assignment decisions under
their plans, but under each plan when race comes into play, it is decisive by itself. It is not simply one factor
weighed with others in reaching a decision, as in Grutter; it is the factor. Like the University of Michigan
undergraduate plan struck down in Gratz, the plans here “do not provide for a meaningful individualized
review of applicants” but instead rely on racial classifications in a “nonindividualized, mechanical” way.
Even when it comes to race, the plans here employ only a limited notion of diversity, viewing race
exclusively in white/nonwhite terms in Seattle and black/“other” terms in Jefferson County. The Seattle
“Board Statement Reaffirming Diversity Rationale” speaks of the “inherent educational value” in
“[p]roviding students the opportunity to attend schools with diverse student enrollment.” But under the
Seattle plan, a school with 50 percent Asian-American students and 50 percent white students but no
African-American, Native-American, or Latino students would qualify as balanced, while a school with 30
percent Asian-American, 25 percent African-American, 25 percent Latino, and 20 percent white students
would not. It is hard to understand how a plan that could allow these results can be viewed as being
concerned with achieving enrollment that is “ ‘broadly diverse,’ ” Grutter. * * * *
In upholding the admissions plan in Grutter, though, this Court relied upon considerations unique to
institutions of higher education, noting that in light of “the expansive freedoms of speech and thought
associated with the university environment, universities occupy a special niche in our constitutional
tradition.” See also Bakke (opinion of Powell, J.). The Court explained that “[c]ontext matters” in applying
strict scrutiny, and repeatedly noted that it was addressing the use of race “in the context of higher
education.” Grutter. The Court in Grutter expressly articulated key limitations on its holding—defining a
specific type of broad-based diversity and noting the unique context of higher education—but these
limitations were largely disregarded by the lower courts in extending Grutter to uphold race-based
assignments in elementary and secondary schools. The present cases are not governed by Grutter.
B
Perhaps recognizing that reliance on Grutter cannot sustain their plans, both school districts assert additional
interests, distinct from the interest upheld in Grutter, to justify their race-based assignments. In briefing and
argument before this Court, Seattle contends that its use of race helps to reduce racial concentration in
schools and to ensure that racially concentrated housing patterns do not prevent nonwhite students from
having access to the most desirable schools. Jefferson County has articulated a similar goal, phrasing its
interest in terms of educating its students “in a racially integrated environment.” Each school district argues
that educational and broader socialization benefits flow from a racially diverse learning environment, and
each contends that because the diversity they seek is racial diversity—not the broader diversity at issue in
Grutter—it makes sense to promote that interest directly by relying on race alone.
The parties and their amici dispute whether racial diversity in schools in fact has a marked impact on test
scores and other objective yardsticks or achieves intangible socialization benefits. The debate is not one we
need to resolve, however, because it is clear that the racial classifications employed by the districts are not
narrowly tailored to the goal of achieving the educational and social
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benefits asserted to flow from racial diversity. In design and operation, the plans are directed only to racial
balance, pure and simple, an objective this Court has repeatedly condemned as illegitimate.
The plans are tied to each district’s specific racial demographics, rather than to any pedagogic concept of
the level of diversity needed to obtain the asserted educational benefits. In Seattle, the district seeks white
enrollment of between 31 and 51 percent (within 10 percent of “the district white average” of 41 percent),
and nonwhite enrollment of between 49 and 69 percent (within 10 percent of “the district minority average”
of 59 percent). In Jefferson County, by contrast, the district seeks black enrollment of no less than 15 or
more than 50 percent, a range designed to be “equally above and below Black student enrollment
systemwide,” based on the objective of achieving at “all schools … an African-American enrollment
equivalent to the average district-wide African-American enrollment” of 34 percent. In Seattle, then, the
benefits of racial diversity require enrollment of at least 31 percent white students; in Jefferson County, at
least 50 percent. There must be at least 15 percent nonwhite students under Jefferson County’s plan; in
Seattle, more than three times that figure. This comparison makes clear that the racial demographics in each
district—whatever they happen to be—drive the required “diversity” numbers. The plans here are not
tailored to achieving a degree of diversity necessary to realize the asserted educational benefits; instead the
plans are tailored, in the words of Seattle’s Manager of Enrollment Planning, Technical Support, and
Demographics, to “the goal established by the school board of attaining a level of diversity within the
schools that approximates the district’s overall demographics.”
The districts offer no evidence that the level of racial diversity necessary to achieve the asserted educational
benefits happens to coincide with the racial demographics of the respective school districts—or rather the
white/nonwhite or black/“other” balance of the districts, since that is the only diversity addressed by the
plans. Indeed, in its brief Seattle simply assumes that the educational benefits track the racial breakdown
of the district. When asked for “a range of percentage that would be diverse,” however, Seattle’s expert
said it was important to have “sufficient numbers so as to avoid students feeling any kind of specter of
exceptionality.” The district did not attempt to defend the proposition that anything outside its range posed
the “specter of exceptionality.” Nor did it demonstrate in any way how the educational and social benefits
of racial diversity or avoidance of racial isolation are more likely to be achieved at a school that is 50
percent white and 50 percent Asian-American, which would qualify as diverse under Seattle’s plan, than at
a school that is 30 percent Asian-American, 25 percent African-American, 25 percent Latino, and 20 percent
white, which under Seattle’s definition would be racially concentrated.
Similarly, Jefferson County’s expert referred to the importance of having “at least 20 percent” minority
group representation for the group “to be visible enough to make a difference,” and noted that “small
isolated minority groups in a school are not likely to have a strong effect on the overall school.” The
Jefferson County plan, however, is based on a goal of replicating at each school “an African-American
enrollment equivalent to the average district-wide African-American enrollment.” Joshua McDonald’s
requested transfer was denied because his race was listed as “other” rather than black, and allowing the
transfer would have had an adverse effect on the racial guideline compliance of Young Elementary, the
school he sought to leave. At the time, however, Young Elementary was 46.8 percent black. The transfer
might have had an adverse effect on the effort to approach district-wide racial proportionality at Young, but
it had nothing to do with preventing either the black or “other” group from becoming “small” or “isolated”
at Young.
In fact, in each case the extreme measure of relying on race in assignments is unnecessary to achieve the
stated goals, even as defined by the districts. For example, at Franklin High School in Seattle, the racial
tiebreaker was applied because nonwhite enrollment exceeded 69 percent, and resulted in an incoming
ninth-grade class in 2000–2001 that was 30.3 percent Asian-American, 21.9 percent African-American, 6.8
percent Latino, 0.5 percent Native-American, and 40.5 percent Caucasian. Without the racial tiebreaker,
the class would have been 39.6 percent Asian-American, 30.2 percent African-American, 8.3 percent
Latino, 1.1 percent Native-American, and 20.8 percent Caucasian. When the actual racial breakdown is
considered, enrolling students without regard to their race yields a substantially diverse student body under
any definition of diversity.
* * * *Accepting racial balancing as a compelling state interest would justify the imposition of racial
proportionality throughout American society, contrary to our repeated recognition that “[a]t the heart of the
Constitution’s guarantee of equal protection lies the simple command that the Government must treat
citizens as individuals, not as simply components of a racial, religious, sexual or national class.” Allowing
racial balancing as a compelling end in itself would “effectively assur[e] that race will always be relevant
in American life, and that the ‘ultimate goal’ of ‘eliminating entirely from governmental decisionmaking
such irrelevant factors as a human being’s race’ will never be achieved.” Croson, (plurality opinion of
O’Connor, J.). An interest “linked to nothing other than proportional representation of various races …
would support indefinite use of racial classifications, employed first to obtain the appropriate mixture of
racial views and then to ensure that the [program] continues to reflect that mixture.”
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* * * *The principle that racial balancing is not permitted is one of substance, not semantics. Racial
balancing is not transformed from “patently unconstitutional” to a compelling state interest simply by
relabeling it “racial diversity.” While the school districts use various verbal formulations to describe the
interest they seek to promote—racial diversity, avoidance of racial isolation, racial integration—they offer
no definition of the interest that suggests it differs from racial balance. (“Q. What’s your understanding of
when a school suffers from racial isolation? A. I don’t have a definition for that”); (“I don’t think we’ve
ever sat down and said, ‘Define racially concentrated school exactly on point in quantitative terms.’ I don’t
think we’ve ever had that conversation”); (“Q. How does the Jefferson County School Board define
diversity …?” “A. Well, we want to have the schools that make up the percentage of students of the
population”).
Jefferson County phrases its interest as “racial integration,” but integration certainly does not require the
sort of racial proportionality reflected in its plan. Even in the context of mandatory desegregation, we have
stressed that racial proportionality is not required. * * * *
However closely related race-based assignments may be to achieving racial balance, that itself cannot be
the goal, whether labeled “racial diversity” or anything else. To the extent the objective is sufficient
diversity so that students see fellow students as individuals rather than solely as members of a racial group,
using means that treat students solely as members of a racial group is fundamentally at cross-purposes with
that end.
C
The districts assert, as they must, that the way in which they have employed individual racial classifications
is necessary to achieve their stated ends. The minimal effect these classifications have on student
assignments, however, suggests that other means would be effective. Seattle’s racial tiebreaker results, in
the end, only in shifting a small number of students between schools. Approximately 307 student
assignments were affected by the racial tiebreaker in 2000–2001; the district was able to track the
enrollment status of 293 of these students. Of these, 209 were assigned to a school that was one of their
choices, 87 of whom were assigned to the same school to which they would have been assigned without
the racial tiebreaker. Eighty-four students were assigned to schools that they did not list as a choice, but 29
of those students would have been assigned to their respective school without the racial tiebreaker, and 3
were able to attend one of the oversubscribed schools due to waitlist and capacity adjustments. In over one-
third of the assignments affected by the racial tiebreaker, then, the use of race in the end made no difference,
and the district could identify only 52 students who were ultimately affected adversely by the racial
tiebreaker in that it resulted in assignment to a school they had not listed as a preference and to which they
would not otherwise have been assigned. * * * *
Similarly, Jefferson County’s use of racial classifications has only a minimal effect on the assignment of
students.* * * *
While we do not suggest that greater use of race would be preferable, the minimal impact of the districts’
racial classifications on school enrollment casts doubt on the necessity of using racial classifications. In
Grutter, the consideration of race was viewed as indispensable in more than tripling minority representation
at the law school—from 4 to 14.5 percent. Here the most Jefferson County itself claims is that “because the
guidelines provide a firm definition of the Board’s goal of racially integrated schools, they ‘provide
administrators with the authority to facilitate, negotiate and collaborate with principals and staff to maintain
schools within the 15–50% range.’ ” Classifying and assigning schoolchildren according to a binary
conception of race is an extreme approach in light of our precedents and our Nation’s history of using race
in public schools, and requires more than such an amorphous end to justify it. * * * *
IV
Justice Breyer’s dissent takes a different approach to these cases, one that fails to ground the result it would
reach in law. Instead, it selectively relies on inapplicable precedent and even dicta while dismissing contrary
holdings, alters and misapplies our well-established legal framework for assessing equal protection
challenges to express racial classifications, and greatly exaggerates the consequences of today’s decision.
* * * *
At the same time it relies on inapplicable desegregation cases, misstatements of admitted dicta, and other
noncontrolling pronouncements, Justice Breyer’s dissent candidly dismisses the significance of this Court’s
repeated holdings that all racial classifications must be reviewed under strict scrutiny, arguing that a
different standard of review should be applied because the districts use race for beneficent rather than
malicious purposes.
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This Court has recently reiterated, however, that “ ‘all racial classifications [imposed by government] …
must be analyzed by a reviewing court under strict scrutiny.’ ” (quoting Adarand). See also Grutter
(“[G]overnmental action based on race—a group classification long recognized as in most circumstances
irrelevant and therefore prohibited—should be subjected to detailed judicial inquiry” (internal quotation
marks and emphasis omitted)). Justice Breyer nonetheless relies on the good intentions and motives of the
school districts, stating that he has found “no case that … repudiated this constitutional asymmetry between
that which seeks to exclude and that which seeks to include members of minority races.” We have found
many. * * * *
This argument that different rules should govern racial classifications designed to include rather than
exclude is not new; it has been repeatedly pressed in the past, see, e.g., Gratz (Breyer, J., concurring in
judgment) and (Ginsburg, J., dissenting); Adarand (Stevens, J., dissenting); Wygant, (Stevens, J.,
dissenting), and has been repeatedly rejected. See also Bakke (opinion of Powell, J.) (rejecting argument
that strict scrutiny should be applied only to classifications that disadvantage minorities, stating “[r]acial
and ethnic distinctions of any sort are inherently suspect and thus call for the most exacting judicial
examination”).
* * * Justice Breyer’s position comes down to a familiar claim: The end justifies the means. He
admits that “there is a cost in applying ‘a state-mandated racial label,’ ” but he is confident that the cost is
worth paying. Our established strict scrutiny test for racial classifications, however, insists on “detailed
examination, both as to ends and as to means.” Adarand (emphasis added). Simply because the school
districts may seek a worthy goal does not mean they are free to discriminate on the basis of race to achieve
it, or that their racial classifications should be subject to less exacting scrutiny.
Despite his argument that these cases should be evaluated under a “standard of review that is not ‘strict’ in
the traditional sense of that word,” Justice Breyer still purports to apply strict scrutiny to these cases. It is
evident, however, that Justice Breyer’s brand of narrow tailoring is quite unlike anything found in our
precedents. * * * *
Justice Breyer repeatedly urges deference to local school boards on these issues. Such deference “is
fundamentally at odds with our equal protection jurisprudence. We put the burden on state actors to
demonstrate that their race-based policies are justified.”
Justice Breyer’s dissent ends on an unjustified note of alarm. It predicts that today’s decision “threaten[s]”
the validity of “[h]undreds of state and federal statutes and regulations.” But the examples the dissent
mentions—for example, a provision of the No Child Left Behind Act that requires States to set measurable
objectives to track the achievement of students from major racial and ethnic groups—have nothing to do
with the pertinent issues in these cases.
Justice Breyer also suggests that other means for achieving greater racial diversity in schools are necessarily
unconstitutional if the racial classifications at issue in these cases cannot survive strict scrutiny. These other
means—e.g., where to construct new schools, how to allocate resources among schools, and which
academic offerings to provide to attract students to certain schools—implicate different considerations than
the explicit racial classifications at issue in these cases, and we express no opinion on their validity— not
even in dicta. Rather, we employ the familiar and well-established analytic approach of strict scrutiny to
evaluate the plans at issue today, an approach that in no way warrants the dissent’s cataclysmic concerns.
Under that approach, the school districts have not carried their burden of showing that the ends they seek
justify the particular extreme means they have chosen—classifying individual students on the basis of their
race and discriminating among them on that basis.
* * *
If the need for the racial classifications embraced by the school districts is unclear, even on the districts’
own terms, the costs are undeniable. “[D]istinctions 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.”
Adarand (internal quotation marks omitted). Government action dividing us by race is inherently suspect
because such classifications promote “notions of racial inferiority and lead to a politics of racial hostility,”
Croson, “reinforce the belief, held by too many for too much of our history, that individuals should be
judged by the color of their skin,” Shaw v. Reno (1993), and “endorse race-based reasoning and the
conception of a Nation divided into racial blocs, thus contributing to an escalation of racial hostility and
conflict.” Metro Broadcasting (O’Connor, J., dissenting). As the Court explained in Rice v. Cayetano
(2000), “[o]ne of the principal reasons race is treated as a forbidden classification is that it demeans the
dignity and worth of a person to be judged by ancestry instead of by his or her own merit and essential
qualities.”
All this is true enough in the contexts in which these statements were made—government contracting,
voting districts, allocation of broadcast licenses, and electing state officers—but when it comes to using
race to assign children to schools, history will be heard. In Brown v. Board of Education (1954) (Brown I),
we held that segregation deprived black children of equal educational opportunities regardless of whether
school facilities and other tangible factors were equal, because government classification and separation on
grounds of race themselves denoted inferiority. It was not the inequality of the facilities but the fact of
legally separating children on the basis of race on which the Court relied to find a constitutional violation
in 1954. See id., at 494 (“‘The
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impact [of segregation] is greater when it has the sanction of the law’ ”). The next Term, we accordingly
stated that “full compliance” with Brown I required school districts “to achieve a system of determining
admission to the public schools on a nonracial basis.” Brown II (emphasis added).
The parties and their amici debate which side is more faithful to the heritage of Brown, but the position of
the plaintiffs in Brown was spelled out in their brief and could not have been clearer: “[T]he Fourteenth
Amendment prevents states from according differential treatment to American children on the basis of their
color or race.” Brief for Appellants in Nos. 1, 2, and 4 and for Respondents in No. 10 on Reargument in
Brown I (Summary of Argument). What do the racial classifications at issue here do, if not accord
differential treatment on the basis of race? As counsel who appeared before this Court for the plaintiffs in
Brown put it: “We have one fundamental contention which we will seek to develop in the course of this
argument, and that contention is that no State has any authority under the equal-protection clause of the
Fourteenth Amendment to use race as a factor in affording educational opportunities among its citizens.”
Tr. of Oral Arg. in Brown I, p. 7 (Robert L. Carter, Dec. 9, 1952). There is no ambiguity in that statement.
And it was that position that prevailed in this Court, which emphasized in its remedial opinion that what
was “[a]t stake is the personal interest of the plaintiffs in admission to public schools as soon as practicable
on a nondiscriminatory basis,” and what was required was “determining admission to the public schools on
a nonracial basis.” Brown II (emphasis added). What do the racial classifications do in these cases, if not
determine admission to a public school on a racial basis? Before Brown, schoolchildren were told where
they could and could not go to school based on the color of their skin. The school districts in these cases
have not carried the heavy burden of demonstrating that we should allow this once again—even for very
different reasons. For schools that never segregated on the basis of race, such as Seattle, or that have
removed the vestiges of past segregation, such as Jefferson County, the way “to achieve a system of
determining admission to the public schools on a nonracial basis,” Brown II, is to stop assigning students
on a racial basis. The way to stop discrimination on the basis of race is to stop discriminating on the basis
of race.
The judgments of the Courts of Appeals for the Sixth and Ninth Circuits are reversed, and the cases are
remanded for further proceedings.
Justice Kennedy, concurring in part and concurring in the judgment.
The Nation’s schools strive to teach that our strength comes from people of different races, creeds, and
cultures uniting in commitment to the freedom of all. In these cases two school districts in different parts
of the country seek to teach that principle by having classrooms that reflect the racial makeup of the
surrounding community. That the school districts consider these plans to be necessary should remind us
our highest aspirations are yet unfulfilled. But the solutions mandated by these school districts must
themselves be lawful. To make race matter now so that it might not matter later may entrench the very
prejudices we seek to overcome. In my view the state-mandated racial classifications at issue, official labels
proclaiming the race of all persons in a broad class of citizens—elementary school students in one case,
high school students in another—are unconstitutional as the cases now come to us.
I agree with The Chief Justice that we have jurisdiction to decide the cases before us and join Parts I and II
of the Court’s opinion. I also join Parts III–A and III–C for reasons provided below. My views do not allow
me to join the balance of the opinion by The Chief Justice, which seems to me to be inconsistent in both its
approach and its implications with the history, meaning, and reach of the Equal Protection Clause.
I
{omitted}
{Justice Kennedy does state that “Diversity, depending on its meaning and definition, is a compelling
educational goal a school district may pursue, but finds the school districts’ use of racial categories are not
justified and are not narrowly tailored.}
II
Our Nation from the inception has sought to preserve and expand the promise of liberty and equality on
which it was founded. Today we enjoy a society that is remarkable in its openness and opportunity. Yet our
tradition is to go beyond present achievements, however significant, and to recognize and confront the flaws
and injustices that remain. This is especially true when
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we seek assurance that opportunity is not denied on account of race. The enduring hope is that race should
not matter; the reality is that too often it does.
This is by way of preface to my respectful submission that parts of the opinion by The Chief Justice imply
an all-too-unyielding insistence that race cannot be a factor in instances when, in my view, it may be taken
into account. The plurality opinion is too dismissive of the legitimate interest government has in ensuring
all people have equal opportunity regardless of their race. The plurality’s postulate that “[t]he way to stop
discrimination on the basis of race is to stop discriminating on the basis of race,” is not sufficient to decide
these cases. Fifty years of experience since Brown v. Board of Education (1954) should teach us that the
problem before us defies so easy a solution. School districts can seek to reach Brown’s objective of equal
educational opportunity. The plurality opinion is at least open to the interpretation that the Constitution
requires school districts to ignore the problem of de facto resegregation in schooling. I cannot endorse that
conclusion. To the extent the plurality opinion suggests the Constitution mandates that state and local school
authorities must accept the status quo of racial isolation in schools, it is, in my view, profoundly mistaken.
The statement by Justice Harlan that “[o]ur Constitution is color-blind” was most certainly justified in the
context of his dissent in Plessy v. Ferguson (1896). The Court’s decision in that case was a grievous error
it took far too long to overrule. Plessy, of course, concerned official classification by race applicable to all
persons who sought to use railway carriages. And, as an aspiration, Justice Harlan’s axiom must command
our assent. In the real world, it is regrettable to say, it cannot be a universal constitutional principle.
In the administration of public schools by the state and local authorities it is permissible to consider the
racial makeup of schools and to adopt general policies to encourage a diverse student body, one aspect of
which is its racial composition. Cf. Grutter v. Bollinger (2003); id (Kennedy, J., dissenting). If school
authorities are concerned that the student-body compositions of certain schools interfere with the objective
of offering an equal educational opportunity to all of their students, they are free to devise race-conscious
measures to address the problem in a general way and without treating each student in different fashion
solely on the basis of a systematic, individual typing by race.
School boards may pursue the goal of bringing together students of diverse backgrounds and races through
other means, including strategic site selection of new schools; drawing attendance zones with general
recognition of the demographics of neighborhoods; allocating resources for special programs; recruiting
students and faculty in a targeted fashion; and tracking enrollments, performance, and other statistics by
race. These mechanisms are race conscious but do not lead to different treatment based on a classification
that tells each student he or she is to be defined by race, so it is unlikely any of them would demand strict
scrutiny to be found permissible. Executive and legislative branches, which for generations now have
considered these types of policies and procedures, should be permitted to employ them with candor and
with confidence that a constitutional violation does not occur whenever a decisionmaker considers the
impact a given approach might have on students of different races. Assigning to each student a personal
designation according to a crude system of individual racial classifications is quite a different matter; and
the legal analysis changes accordingly.
Each respondent has asserted that its assignment of individual students by race is permissible because there
is no other way to avoid racial isolation in the school districts. Yet, as explained, each has failed to provide
the support necessary for that proposition. And individual racial classifications employed in this manner
may be considered legitimate only if they are a last resort to achieve a compelling interest.
In the cases before us it is noteworthy that the number of students whose assignment depends on express
racial classifications is limited. I join Part III–C of the Court’s opinion because I agree that in the context
of these plans, the small number of assignments affected suggests that the schools could have achieved their
stated ends through different means. These include the facially race-neutral means set forth above or, if
necessary, a more nuanced, individual evaluation of school needs and student characteristics that might
include race as a component. The latter approach would be informed by Grutter, though of course the
criteria relevant to student placement would differ based on the age of the students, the needs of the parents,
and the role of the schools.
III
{discussion of Justice Breyer’s dissent omitted}
* * *
This Nation has a moral and ethical obligation to fulfill its historic commitment to creating an integrated
society that ensures equal opportunity for all of its children. A compelling interest exists in avoiding racial
isolation, an interest that a school district, in its
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discretion and expertise, may choose to pursue. Likewise, a district may consider it a compelling interest
to achieve a diverse student population. Race may be one component of that diversity, but other
demographic factors, plus special talents and needs, should also be considered. What the government is not
permitted to do, absent a showing of necessity not made here, is to classify every student on the basis of
race and to assign each of them to schools based on that classification. Crude measures of this sort threaten
to reduce children to racial chits valued and traded according to one school’s supply and another’s demand.
That statement, to be sure, invites this response: A sense of stigma may already become the fate of those
separated out by circumstances beyond their immediate control. But to this the replication must be: Even
so, measures other than differential treatment based on racial typing of individuals first must be exhausted.
The decision today should not prevent school districts from continuing the important work of bringing
together students of different racial, ethnic, and economic backgrounds. Due to a variety of factors—some
influenced by government, some not—neighborhoods in our communities do not reflect the diversity of our
Nation as a whole. Those entrusted with directing our public schools can bring to bear the creativity of
experts, parents, administrators, and other concerned citizens to find a way to achieve the compelling
interests they face without resorting to widespread governmental allocation of benefits and burdens on the
basis of racial classifications.
With this explanation I concur in the judgment of the Court.
Stevens, J., filed a dissenting opinion.
While I join Justice Breyer’s eloquent and unanswerable dissent in its entirety, it is appropriate to add these
words.
There is a cruel irony in The Chief Justice’s reliance on our decision in Brown v. Board of Education. The
first sentence in the concluding paragraph of his opinion states: “Before Brown, schoolchildren were told
where they could and could not go to school based on the color of their skin.” This sentence reminds me of
Anatole France’s observation: “[T]he majestic equality of the la[w], forbid[s] rich and poor alike to sleep
under bridges, to beg in the streets, and to steal their bread.” The Chief Justice fails to note that it was only
black schoolchildren who were so ordered; indeed, the history books do not tell stories of white children
struggling to attend black schools. In this and other ways, The Chief Justice rewrites the history of one of
this Court’s most important decisions. * * * *
Breyer, J., filed a dissenting opinion, in which Stevens, Souter, and Ginsburg, JJ., joined.
These cases consider the longstanding efforts of two local school boards to integrate their public schools.
The school board plans before us resemble many others adopted in the last 50 years by primary and
secondary schools throughout the Nation. All of those plans represent local efforts to bring about the kind
of racially integrated education that Brown v. Board of Education long ago promised—efforts that this
Court has repeatedly required, permitted, and encouraged local authorities to undertake. This Court has
recognized that the public interests at stake in such cases are “compelling.” We have approved of “narrowly
tailored” plans that are no less race-conscious than the plans before us. And we have understood that the
Constitution permits local communities to adopt desegregation plans even where it does not require them
to do so.
The plurality pays inadequate attention to this law, to past opinions’ rationales, their language, and the
contexts in which they arise. As a result, it reverses course and reaches the wrong conclusion. In doing so,
it distorts precedent, it misapplies the relevant constitutional principles, it announces legal rules that will
obstruct efforts by state and local governments to deal effectively with the growing resegregation of public
schools, it threatens to substitute for present calm a disruptive round of race-related litigation, and it
undermines Brown’s promise of integrated primary and secondary education that local communities have
sought to make a reality. This cannot be justified in the name of the Equal Protection Clause. * * * *
Check Your Understanding
Fisher v. University of Texas at Austin (Fisher I)
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570 U.S. ___ (2013)
Kennedy, J., delivered the opinion of the Court, in which Roberts, C. J., and Scalia, Thomas, Breyer, Alito,
and Sotomayor, JJ., joined. Scalia, J., and Thomas, J., filed concurring opinions. Ginsburg, J., filed a
dissenting opinion. Kagan, J., took no part in the consideration or decision of the case.
Justice Kennedy delivered the opinion of the Court.
I
A
Located in Austin, Texas, on the most renowned campus of the Texas state university system, the University
is one of the leading institutions of higher education in the Nation. Admission is prized and competitive. In
2008, when petitioner sought admission to the University’s entering class, she was 1 of 29,501 applicants.
From this group 12,843 were admitted, and 6,715 accepted and enrolled. Petitioner was denied admission.
In recent years the University has used three different programs to evaluate candidates for admission. The
first is the program it used for some years before 1997, when the University considered two factors: a
numerical score reflecting an applicant’s test scores and academic performance in high school (Academic
Index or AI), and the applicant’s race. In 1996, this system was held unconstitutional by the United States
Court of Appeals for the Fifth Circuit. It ruled the University’s consideration of race violated the Equal
Protection Clause because it did not further any compelling government interest. Hopwood v. Texas.
The second program was adopted to comply with the Hopwood decision. The University stopped
considering race in admissions and substituted instead a new holistic metric of a candidate’s potential
contribution to the University, to be used in conjunction with the Academic Index. This “Personal
Achievement Index” (PAI) measures a student’s leadership and work experience, awards, extracurricular
activities, community service, and other special circumstances that give insight into a student’s background.
These included growing up in a single-parent home, speaking a language other than English at home,
significant family responsibilities assumed by the applicant, and the general socioeconomic condition of
the student’s family. Seeking to address the decline in minority enrollment after Hopwood, the University
also expanded its outreach programs.
The Texas State Legislature also responded to the Hopwood decision. It enacted a measure known as the
Top Ten Percent Law * *
* * [which] grants automatic admission to any public state college, including the University, to all
students in the top 10% of their class at high schools in Texas that comply with certain standards.
The University’s revised admissions process, coupled with the operation of the Top Ten Percent Law,
resulted in a more racially diverse environment at the University. Before the admissions program at issue
in this case, in the last year under the post-Hopwood AI/PAI system that did not consider race, the entering
class was 4.5% African-American and 16.9% Hispanic. This is in contrast with the 1996 pre-Hopwood and
Top Ten Percent regime, when race was explicitly considered, and the University’s entering freshman class
was 4.1% African-American and 14.5% Hispanic.
Following this Court’s decisions in Grutter v. Bollinger and Gratz v. Bollinger, the University adopted a
third admissions program, the 2004 program in which the University reverted to explicit consideration of
race. This is the program here at issue. In Grutter, the Court upheld the use of race as one of many “plus
factors” in an admissions program that considered the overall individual contribution of each candidate. In
Gratz, by contrast, the Court held unconstitutional Michigan’s undergraduate admissions program, which
automatically awarded points to applicants from certain racial minorities.
The University’s plan to resume race-conscious admissions was given formal expression in June 2004 in
an internal document entitled Proposal to Consider Race and Ethnicity in Admissions (Proposal). The
Proposal relied in substantial part on a study of a subset of undergraduate classes containing between 5 and
24 students. It showed that few of these classes had significant enrollment by members of racial minorities.
In addition the Proposal relied on what it called “anecdotal” reports from students regarding their
“interaction in the classroom.” The Proposal concluded that the University lacked a “critical mass” of
minority
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students and that to remedy the deficiency it was necessary to give explicit consideration to race in the
undergraduate admissions program.
To implement the Proposal the University included a student’s race as a component of the PAI score,
beginning with applicants in the fall of 2004. The University asks students to classify themselves from
among five predefined racial categories on the application. Race is not assigned an explicit numerical value,
but it is undisputed that race is a meaningful factor.
Once applications have been scored, they are plotted on a grid with the Academic Index on the x-axis and
the Personal Achievement Index on the y-axis. On that grid students are assigned to so-called cells based
on their individual scores. All students in the cells falling above a certain line are admitted. All students
below the line are not. Each college—such as Liberal Arts or Engineering—admits students separately. So
a student is considered initially for her first-choice college, then for her second choice, and finally for
general admission as an undeclared major.
Petitioner applied for admission to the University’s 2008 entering class and was rejected. She sued the
University and various University officials in the United States District Court for the Western District of
Texas. She alleged that the University’s consideration of race in admissions violated the Equal Protection
Clause. The parties cross-moved for summary judgment. The District Court granted summary judgment to
the University. The United States Court of Appeals for the Fifth Circuit affirmed. It held that Grutter
required courts to give substantial deference to the University, both in the definition of the compelling
interest in diversity’s benefits and in deciding whether its specific plan was narrowly tailored to achieve its
stated goal. Applying that standard, the court upheld the University’s admissions plan.
Over the dissent of seven judges, the Court of Appeals denied petitioner’s request for rehearing en banc.
Petitioner sought a writ of certiorari. The writ was granted.
B
Among the Court’s cases involving racial classifications in education, there are three decisions that directly
address the question of considering racial minority status as a positive or favorable factor in a university’s
admissions process, with the goal of achieving the educational benefits of a more diverse student body:
Bakke; Gratz; and Grutter. We take those cases as given for purposes of deciding this case.
We begin with the principal opinion authored by Justice Powell in Bakke. In Bakke, the Court considered
a system used by the medical school of the University of California at Davis. From an entering class of 100
students the school had set aside 16 seats for minority applicants. In holding this program impermissible
under the Equal Protection Clause Justice Powell’s opinion stated certain basic premises. First, “decisions
based on race or ethnic origin by faculties and administrations of state universities are reviewable under the
Fourteenth Amendment.” The principle of equal protection admits no “artificial line of a ‘two-class theory’
” that “permits the recognition of special wards entitled to a degree of protection greater than that accorded
others.” It is therefore irrelevant that a system of racial preferences in admissions may seem benign. Any
racial classification must meet strict scrutiny, for when government decisions “touch upon an individual’s
race or ethnic background, he is entitled to a judicial determination that the burden he is asked to bear on
that basis is precisely tailored to serve a compelling governmental interest.”
Next, Justice Powell identified one compelling interest that could justify the consideration of race: the
interest in the educational benefits that flow from a diverse student body. Redressing past discrimination
could not serve as a compelling interest, because a university’s “broad mission [of] education” is
incompatible with making the “judicial, legislative, or administrative findings of constitutional or statutory
violations” necessary to justify remedial racial classification.
The attainment of a diverse student body, by contrast, serves values beyond race alone, including enhanced
class-room dialogue and the lessening of racial isolation and stereotypes. The academic mission of a
university is “a special concern of the First Amendment.” Part of “ ‘the business of a university [is] to
provide that atmosphere which is most conducive to speculation, experiment, and creation,’ ” and this in
turn leads to the question of “ ‘who may be admitted to study.’ ”
Justice Powell’s central point, however, was that this interest in securing diversity’s benefits, although a
permissible objective, is complex. “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.”
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In Gratz and Grutter the Court endorsed the precepts stated by Justice Powell. In Grutter, the Court
reaffirmed his conclusion that obtaining the educational benefits of “student body diversity is a compelling
state interest that can justify the use of race in university admissions.”
As Gratz and Grutter observed, however, this follows only if a clear precondition is met: The particular
admissions process used for this objective is subject to judicial review. Race may not be considered unless
the admissions process can withstand strict scrutiny. “Nothing in Justice Powell’s opinion in Bakke signaled
that a university may employ whatever means it desires to achieve the stated goal of diversity without regard
to the limits imposed by our strict scrutiny analysis.” Gratz. “To be narrowly tailored, a race-conscious
admissions program cannot use a quota system,” Grutter, but instead must “remain flexible enough to
ensure that each applicant is evaluated as an individual and not in a way that makes an applicant’s race or
ethnicity the defining feature of his or her application.” Strict scrutiny requires the university to demonstrate
with clarity 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.” Bakke (opinion of Powell, J.).
While these are the cases that most specifically address the central issue in this case, additional guidance
may be found in the Court’s broader equal protection jurisprudence which applies in this context.
“Distinctions between citizens solely because of their ancestry are by their very nature odious to a free
people,” and therefore “are contrary to our traditions and hence constitutionally suspect.” “ ‘[B]ecause
racial characteristics so seldom provide a relevant basis for disparate treatment,’ ” Richmond v. J. A. Croson
Co., “the Equal Protection Clause demands that racial classifications . . . be subjected to the ‘most rigid
scrutiny.’ ” Loving v. Virginia.
To implement these canons, judicial review must begin from the position that “any official action that treats
a person differently on account of his race or ethnic origin is inherently suspect.” Strict scrutiny is a
searching examination, and it is the government that bears the burden to prove “ ‘that the reasons for any
[racial] classification [are] clearly identified and unquestionably legitimate,’ ” Croson.
II
Grutter made clear that racial “classifications are constitutional only if they are narrowly tailored to further
compelling governmental interests.” And Grutter endorsed Justice Powell’s conclusion in Bakke that “the
attainment of a diverse student body
. . . is a constitutionally permissible goal for an institution of higher education.” Thus, under Grutter,
strict scrutiny must be applied to any admissions program using racial categories or classifications.
According to Grutter, a university’s “educational judgment that such diversity is essential to its educational
mission is one to which we defer.” Grutter concluded that the decision to pursue “the educational benefits
that flow from student body diversity,” that the University deems integral to its mission is, in substantial
measure, an academic judgment to which some, but not complete, judicial deference is proper under Grutter.
A court, of course, should ensure that there is a reasoned, principled explanation for the academic decision.
On this point, the District Court and Court of Appeals were correct in finding that Grutter calls for deference
to the University’s conclusion, “ ‘based on its experience and expertise,’ ” that a diverse student body would
serve its educational goals. There is disagreement about whether Grutter was consistent with the principles
of equal protection in approving this compelling interest in diversity. But the parties here do not ask the
Court to revisit that aspect of Grutter’s holding.
A university is not permitted to define diversity as “some specified percentage of a particular group merely
because of its race or ethnic origin.” Bakke. “That would amount to outright racial balancing, which is
patently unconstitutional.” Grutter. “Racial balancing is not transformed from ‘patently unconstitutional’
to a compelling state interest simply by relabeling it ‘racial diversity.’
” Parents Involved in Community Schools v. Seattle School Dist. No. 1.
Once the University has established that its goal of diversity is consistent with strict scrutiny, however,
there must still be a further judicial determination that the admissions process meets strict scrutiny in its
implementation. The University must prove that the means chosen by the University to attain diversity are
narrowly tailored to that goal. On this point, the University receives no deference. Grutter made clear that
it is for the courts, not for university administrators, to ensure that “[t]he means chosen to accomplish the
[government’s] asserted purpose must be specifically and narrowly framed to accomplish that purpose.”
True, a court can take account of a university’s experience and expertise in adopting or rejecting certain
admissions processes. But, as the Court said in Grutter, it remains at all times the University’s obligation
to demonstrate, and the Judiciary’s obligation to determine, that admissions processes “ensure that each
applicant is evaluated as an individual and not in a way that makes an applicant’s race or ethnicity the
defining feature of his or her application.”
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Narrow tailoring also requires that the reviewing court verify that it is “necessary” for a university to use
race to achieve the educational benefits of diversity. Bakke. This involves a careful judicial inquiry into
whether a university could achieve sufficient diversity without using racial classifications. Although
“[n]arrow tailoring does not require exhaustion of every conceivable race-neutral alternative,” strict
scrutiny does require a court to examine with care, and not defer to, a university’s “serious, good faith
consideration of workable race-neutral alternatives.” See Grutter (emphasis added). Consideration by the
university is of course necessary, but it is not sufficient to satisfy strict scrutiny: The reviewing court must
ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of
diversity. If “ ‘a nonracial approach . . . could promote the substantial interest about as well and at tolerable
administrative expense,’ ” then the university may not consider race. A plaintiff, of course, bears the burden
of placing the validity of a university’s adoption of an affirmative action plan in issue. But strict scrutiny
imposes on the university the ultimate burden of demonstrating, before turning to racial classifications, that
available, workable race-neutral alternatives do not suffice.
Rather than perform this searching examination, however, the Court of Appeals held petitioner could
challenge only “whether [the University’s] decision to reintroduce race as a factor in admissions was made
in good faith.” And in considering such a challenge, the court would “presume the University acted in good
faith” and place on petitioner the burden of rebutting that presumption. The Court of Appeals held that to
“second-guess the merits” of this aspect of the University’s decision was a task it was “ill-equipped to
perform” and that it would attempt only to “ensure that [the University’s] decision to adopt a race-conscious
admissions policy followed from [a process of] good faith consideration.” The Court of Appeals thus
concluded that “the narrow-tailoring inquiry— like the compelling-interest inquiry—is undertaken with a
degree of deference to the Universit[y].”. Because “the efforts of the University have been studied, serious,
and of high purpose,” the Court of Appeals held that the use of race in the admissions program fell within
“a constitutionally protected zone of discretion.”
These expressions of the controlling standard are at odds with Grutter’s command that “all racial
classifications imposed by government ‘must be analyzed by a reviewing court under strict scrutiny.’ ” In
Grutter, the Court approved the plan at issue upon concluding that it was not a quota, was sufficiently
flexible, was limited in time, and followed “serious, good faith consideration of workable race-neutral
alternatives.” As noted above, the parties do not challenge, and the Court therefore does not consider, the
correctness of that determination.
Grutter did not hold that good faith would forgive an impermissible consideration of race. It must be
remembered that “the mere recitation of a ‘benign’ or legitimate purpose for a racial classification is entitled
to little or no weight.” Croson. Strict scrutiny does not permit a court to accept a school’s assertion that its
admissions process uses race in a permissible way without a court giving close analysis to the evidence of
how the process works in practice.
* * * *The District Court and Court of Appeals confined the strict scrutiny inquiry in too narrow a
way by deferring to the University’s good faith in its use of racial classifications and affirming the grant of
summary judgment on that basis. The Court vacates that judgment, but fairness to the litigants and the
courts that heard the case requires that it be remanded so that the admissions process can be considered and
judged under a correct analysis. Unlike Grutter, which was decided after trial, this case arises from cross-
motions for summary judgment. In this case, as in similar cases, in determining whether summary judgment
in favor of the University would be appropriate, the Court of Appeals must assess whether the University
has offered sufficient evidence that would prove that its admissions program is narrowly tailored to obtain
the educational benefits of diversity. Whether this record—and not “simple . . . assurances of good
intention”—is sufficient is a question for the Court of Appeals in the first instance.
Strict scrutiny must not be “ ‘strict in theory, but fatal in fact,’ ” Adarand. But the opposite is also true.
Strict scrutiny must not be strict in theory but feeble in fact. In order for judicial review to be meaningful,
a university must make a showing that its plan is narrowly tailored to achieve the only interest that this
Court has approved in this context: the benefits of a student body diversity that “encompasses a . . . broa[d]
array of qualifications and characteristics of which racial or ethnic origin is but a single though important
element.” Bakke (opinion of Powell, J.). The judgment of the Court of Appeals is vacated, and the case is
remanded for further proceedings consistent with this opinion.
It is so ordered.
Justice Thomas, concurring.
I join the Court’s opinion because I agree that the Court of Appeals did not apply strict scrutiny to the
University of Texas at Austin’s (University) use of racial discrimination in admissions decisions. I write
separately to explain that I would overrule
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Grutter v. Bollinger, and hold that a State’s use of race in higher education admissions decisions is
categorically prohibited by the Equal Protection Clause.
I
A
The Fourteenth Amendment provides that no State shall “deny to any person . . . the equal protection of the
laws.” The Equal Protection Clause guarantees every person the right to be treated equally by the State,
without regard to race. “At the heart of this [guarantee] lies the principle that the government must treat
citizens as individuals, and not as members of racial, ethnic, or religious groups.” Missouri v. Jenkins (1995)
(Thomas, J., concurring). “It is for this reason that we must subject all racial classifications to the strictest
of scrutiny.” Id.
Under strict scrutiny, all racial classifications are categorically prohibited unless they are “ ‘necessary to
further a compelling governmental interest’ ” and “narrowly tailored to that end.” This most exacting
standard “has proven automatically fatal” in almost every case. Jenkins (Thomas, J., concurring). And
rightly so. “Purchased at the price of immeasurable human suffering, the equal protection principle reflects
our Nation’s understanding that [racial] classifications ultimately have a destructive impact on the
individual and our society.” Adarand Constructors, Inc. v. Peña (Thomas, J., concurring in part and
concurring in judgment). “The Constitution abhors classifications based on race” because “every time the
government places citizens on racial registers and makes race relevant to the provision of burdens or
benefits, it demeans us all.” Grutter (Thomas, J., concurring in part and dissenting in part).
B
1
The Court first articulated the strict-scrutiny standard in Korematsu v. United States (1944). There, we held
that “[p]ressing public necessity may sometimes justify the existence of [racial discrimination]; racial
antagonism never can.” Aside from Grutter, the Court has recognized only two instances in which a
“[p]ressing public necessity” may justify racial discrimination by the government. First, in Korematsu, the
Court recognized that protecting national security may satisfy this exacting standard. In that case, the Court
upheld an evacuation order directed at “all persons of Japanese ancestry” on the grounds that the Nation
was at war with Japan and that the order had “a definite and close relationship to the prevention of espionage
and sabotage.” Second, the Court has recognized that the government has a compelling interest in
remedying past discrimination for which it is responsible, but we have stressed that a government wishing
to use race must provide “a ‘strong basis in evidence for its conclusion that remedial action [is] necessary.’
” Richmond v. J. A. Croson Co.
In contrast to these compelling interests that may, in a narrow set of circumstances, justify racial
discrimination, the Court has frequently found other asserted interests insufficient. * * * *
2
Grutter was a radical departure from our strict-scrutiny precedents. * * * *
II
A
The University claims that the District Court found that it has a compelling interest in attaining “a diverse
student body and the educational benefits flowing from such diversity.” The use of the conjunction, “and,”
implies that the University believes its
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discrimination furthers two distinct interests. The first is an interest in attaining diversity for its own sake.
The second is an interest in attaining educational benefits that allegedly flow from diversity.
Attaining diversity for its own sake is a nonstarter. As even Grutter recognized, the pursuit of diversity as
an end is nothing more than impermissible “racial balancing.” Rather, diversity can only be the means by
which the University obtains educational benefits; it cannot be an end pursued for its own sake. Therefore,
the educational benefits allegedly produced by diversity must rise to the level of a compelling state interest
in order for the program to survive strict scrutiny.
Unfortunately for the University, the educational benefits flowing from student body diversity—assuming
they exist—hardly qualify as a compelling state interest. Indeed, the argument that educational benefits
justify racial discrimination was advanced in support of racial segregation in the 1950’s, but emphatically
rejected by this Court. And just as the alleged educational benefits of segregation were insufficient to justify
racial discrimination then, see Brown v. Board of Education (1954), the alleged educational benefits of
diversity cannot justify racial discrimination today. * * * *
B
My view of the Constitution is the one advanced by the plaintiffs in Brown: “[N]o State has any authority
under the equal-protection clause of the Fourteenth Amendment to use race as a factor in affording
educational opportunities among its citizens.” The Constitution does not pander to faddish theories about
whether race mixing is in the public interest. The Equal Protection Clause strips States of all authority to
use race as a factor in providing education. All applicants must be treated equally under the law, and no
benefit in the eye of the beholder can justify racial discrimination.
This principle is neither new nor difficult to understand. In 1868, decades before Plessy, the Iowa Supreme
Court held that schools may not discriminate against applicants based on their skin color. In Clark v. Board
of Directors, 24 Iowa 266 (1868), a school denied admission to a student because she was black, and “public
sentiment [was] opposed to the intermingling of white and colored children in the same schools.” The Iowa
Supreme Court rejected that flimsy justification, holding that “all the youths are equal before the law, and
there is no discretion vested in the board . . . or elsewhere, to interfere with or disturb that equality.” “For
the courts to sustain a board of school directors . . . in limiting the rights and privileges of persons by reason
of their [race], would be to sanction a plain violation of the spirit of our laws not only, but would tend to
perpetuate the national differences of our people and stimulate a constant strife, if not a war of races.” This
simple, yet fundamental, truth was lost on the Court in Plessy and Grutter.
I would overrule Grutter and hold that the University’s admissions program violates the Equal Protection
Clause because the University has not put forward a compelling interest that could possibly justify racial
discrimination.
III
While I find the theory advanced by the University to justify racial discrimination facially inadequate, I
also believe that its use of race has little to do with the alleged educational benefits of diversity. I suspect
that the University’s program is instead based on the benighted notion that it is possible to tell when
discrimination helps, rather than hurts, racial minorities. The worst forms of racial discrimination in this
Nation have always been accompanied by straight-faced representations that discrimination helped
minorities.
A
Slaveholders argued that slavery was a “positive good” that civilized blacks and elevated them in every
dimension of life. * * * *
A century later, segregationists similarly asserted that segregation was not only benign, but good for black
students. They argued, for example, that separate schools protected black children from racist white students
and teachers. And they even appealed to the fact that many blacks agreed that separate schools were in the
“best interests” of both races.
Following in these inauspicious footsteps, the University would have us believe that its discrimination is
likewise benign. I think the lesson of history is clear enough: Racial discrimination is never benign. * * * *
It is for this reason that the Court has repeatedly held that strict scrutiny applies to all racial classifications,
regardless of whether the government has benevolent motives. The
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University’s professed good intentions cannot excuse its outright racial discrimination any more than such
intentions justified the now denounced arguments of slaveholders and segregationists.
B
While it does not, for constitutional purposes, matter whether the University’s racial discrimination is
benign, I note that racial engineering does in fact have insidious consequences. There can be no doubt that
the University’s discrimination injures white and Asian applicants who are denied admission because of
their race. But I believe the injury to those admitted under the University’s discriminatory admissions
program is even more harmful.
Blacks and Hispanics admitted to the University as a result of racial discrimination are, on average, far less
prepared than their white and Asian classmates. In the University’s entering class of 2009, for example,
among the students admitted outside the Top Ten Percent plan, blacks scored at the 52d percentile of 2009
SAT takers nationwide, while Asians scored at the 93d percentile. Brief for Richard Sander et al. as Amici
Curiae 3–4, and n. 4. Blacks had a mean GPA of 2.57 and a mean SAT score of 1524; Hispanics had a
mean GPA of 2.83 and a mean SAT score of 1794; whites had a mean GPA of 3.04 and a mean SAT score
of 1914; and Asians had a mean GPA of 3.07 and a mean SAT score of 1991.
Tellingly, neither the University nor any of the 73 amici briefs in support of racial discrimination has
presented a shred of evidence that black and Hispanic students are able to close this substantial gap during
their time at the University. * * * *
Furthermore, the University’s discrimination does nothing to increase the number of blacks and Hispanics
who have access to a college education generally. Instead, the University’s discrimination has a pervasive
shifting effect. See T. Sowell, Affirmative Action Around the World 145–146 (2004). The University
admits minorities who otherwise would have attended less selective colleges where they would have been
more evenly matched. But, as a result of the mismatching, many blacks and Hispanics who likely would
have excelled at less elite schools are placed in a position where underperformance is all but inevitable
because they are less academically prepared than the white and Asian students with whom they must
compete. Setting aside the damage wreaked upon the self-confidence of these overmatched students, there
is no evidence that they learn more at the University than they would have learned at other schools for
which they were better prepared. Indeed, they may learn less.
The Court of Appeals believed that the University needed to enroll more blacks and Hispanics because they
remained “clustered in certain programs.” But racial discrimination may be the cause of, not the solution
to, this clustering. There is some evidence that students admitted as a result of racial discrimination are
more likely to abandon their initial aspirations to become scientists and engineers than are students with
similar qualifications who attend less selective schools. These students may well drift towards less
competitive majors because the mismatch caused by racial discrimination in admissions makes it difficult
for them to compete in more rigorous majors.
Moreover, the University’s discrimination “stamp[s] [blacks and Hispanics] with a badge of inferiority.”
Adarand (opinion of Thomas, J.). It taints the accomplishments of all those who are admitted as a result of
racial discrimination. And, it taints the accomplishments of all those who are the same race as those
admitted as a result of racial discrimination. In this case, for example, most blacks and Hispanics attending
the University were admitted without discrimination under the Top Ten Percent plan, but no one can
distinguish those students from the ones whose race played a role in their admission. “When blacks [and
Hispanics] take positions in the highest places of government, industry, or academia, it is an open question
. . . whether their skin color played a part in their advancement.” See Grutter (opinion of Thomas, J.). “The
question itself is the stigma—because either racial discrimination did play a role, in which case the person
may be deemed ‘otherwise unqualified,’ or it did not, in which case asking the question itself unfairly marks
those . . . who would succeed without discrimination.” Although cloaked in good intentions, the
University’s racial tinkering harms the very people it claims to be helping.
For the foregoing reasons, I would overrule Grutter. However, because the Court correctly concludes that
the Court of Appeals did not apply strict scrutiny, I join its opinion.
Justice Ginsburg, dissenting.
The University of Texas at Austin (University) is candid about what it is endeavoring to do: It seeks to
achieve student-body diversity through an admissions policy patterned after the Harvard plan referenced as
exemplary in Justice Powell’s opinion in Regents of Univ. of Cal. v. Bakke. The University has steered
clear of a quota system like the one struck down in Bakke, which
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excluded all nonminority candidates from competition for a fixed number of seats. And, like so many
educational institutions across the Nation, the University has taken care to follow the model approved by
the Court in Grutter v. Bollinger.
Petitioner urges that Texas’ Top Ten Percent Law and race-blind holistic review of each application achieve
significant diversity, so the University must be content with those alternatives. I have said before and
reiterate here that only an ostrich could regard the supposedly neutral alternatives as race unconscious. * *
* *
Texas’ percentage plan was adopted with racially segregated neighborhoods and schools front and center
stage. See House Research Organization, Bill Analysis, HB 588, pp. 4–5 (Apr. 15, 1997) (“Many regions
of the state, school districts, and high schools in Texas are still predominantly composed of people from a
single racial or ethnic group. Because of the persistence of this segregation, admitting the top 10 percent of
all high schools would provide a diverse population and ensure that a large, well qualified pool of minority
students was admitted to Texas universities.”). It is race consciousness, not blindness to race, that drives
such plans. As for holistic review, if universities cannot explicitly include race as a factor, many may “resort
to camouflage” to “maintain their minority enrollment.” Gratz (Ginsburg, J., dissenting).
I have several times explained why government actors, including state universities, need not be blind to the
lingering effects of “an overtly discriminatory past,” the legacy of “centuries of law-sanctioned inequality.”
Among constitutionally permissible options, I remain convinced, “those that candidly disclose their
consideration of race [are] preferable to those that conceal it.” Gratz (dissenting opinion).
Accordingly, I would not return this case for a second look. As the thorough opinions below show, the
University’s admissions policy flexibly considers race only as a “factor of a factor of a factor of a factor”
in the calculus; followed a yearlong review through which the University reached the reasonable, good-
faith judgment that supposedly race-neutral initiatives were insufficient to achieve, in appropriate measure,
the educational benefits of student-body diversity; and is subject to periodic review to ensure that the
consideration of race remains necessary and proper to achieve the University’s educational objectives.
Justice Powell’s opinion in Bakke and the Court’s decision in Grutter require no further determinations.
The Court rightly declines to cast off the equal protection framework settled in Grutter. Yet it stops short
of reaching the conclusion that framework warrants. Instead, the Court vacates the Court of Appeals’
judgment and remands for the Court of Appeals to “assess whether the University has offered sufficient
evidence [to] prove that its admissions program is narrowly tailored to obtain the educational benefits of
diversity.” As I see it, the Court of Appeals has already completed that inquiry, and its judgment, trained
on this Court’s Bakke and Grutter pathmarkers, merits our approbation.
Note: Fisher on remand in the Fifth Circuit
In Fisher v. Univ. of Texas at Austin, 758 F.3d 633 (5th Cir. 2014), the Fifth Circuit on remand affirmed
its earlier ruling that the University of Texas plan was constitutional in a 2-1 decision. [Recall that panels
on the Courts of Appeals are comprised of three judges].
Many found the result surprising.
The Fifth Circuit majority opinion concluded:
In sum, it is suggested that while holistic review may be a necessary and ameliorating complement to the
Top Ten Percent Plan, UT Austin has not shown that its holistic review need include any reference to race,
this because the Plan produces sufficient numbers of minorities for critical mass. This contention views
minorities as a group, abjuring the focus upon individuals—each person’s unique potential. Race is relevant
to minority and non-minority, notably when candidates have flourished as a minority in their school—
whether they are white or black. Grutter reaffirmed that “[j]ust as growing up in a particular region or
having particular professional experiences is likely to affect an individual’s views, so too is one’s own,
unique experience of being a racial minority in a society, like our own, in which race still matters.” We are
persuaded that to deny UT Austin its limited use of race in its search for holistic diversity would hobble the
richness of the educational experience in contradiction of the plain teachings of Bakke and Grutter. The
need for such skill sets to complement the draws from majority-white and majority-minority schools flows
directly from an understanding of what the Court has made plain diversity is not. To conclude otherwise is
to narrow its focus to a tally of skin colors produced in defiance of Justice Kennedy’s opinion for the Court
which eschewed the narrow metric of numbers and turned the focus upon individuals. This powerful charge
does not deny the relevance of race. We find force in the argument that race here is a necessary part, albeit
one of many parts, of the decisional matrix where being white in a minority-majority school can set one
apart just as being a minority in a majority-white school—not a proffer of societal discrimination in
justification for use of race, but a search for students with a range of skills, experiences, and performances—
one that will be impaired by turning a blind eye to the differing opportunities offered by the schools from
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It is settled that instruments of state may pursue facially neutral policies calculated to promote equality of
opportunity among students to whom the public schools of Texas assign quite different starting places in
the annual race for seats in its flagship university. It is equally settled that universities may use race as part
of a holistic admissions program where it cannot otherwise achieve diversity. This interest is compelled by
the reality that university education is more the shaping of lives than the filling of heads with facts—the
classic assertion of the humanities. Yet the backdrop of our efforts here includes the reality that accepting
as permissible policies whose purpose is to achieve a desired racial effect taxes the line between quotas and
holistic use of race towards a critical mass. We have hewed this line here, persuaded by UT Austin from
this record of its necessary use of race in a holistic process and the want of workable alternatives that would
not require even greater use of race, faithful to the content given to it by the Supreme Court. To reject the
UT Austin plan is to confound developing principles of neutral affirmative action, looking away from
Bakke and Grutter, leaving them in uniform but without command—due only a courtesy salute in passing.
For these reasons, we AFFIRM.
The Fifth Circuit declined en banc review by a vote of 10-5.
http://lawprofessors.typepad.com/conlaw/2014/11/fifth-circuit-denies-en-banc-review-in-fisher-remand-
.html. Not surprisingly, the United States Supreme Court granted certiorari to review the Fifth Circuit’s
2014 decision.
Fisher v. University of Texas at Austin (Fisher II)
579 U.S. ___ (2016)
Kennedy, J., delivered the opinion of the Court, in which Ginsburg, Breyer, and Sotomayor, JJ., joined.
Thomas, J., filed a dissenting opinion. Alito, J., filed a dissenting opinion, in which Roberts, C. J., and
Thomas, J., joined. Kagan, J., took no part in the consideration or decision of the case.
Justice Kennedy delivered the opinion of the Court.
The Court is asked once again to consider whether the race-conscious admissions program at the University
of Texas is lawful under the Equal Protection Clause.
I
The University of Texas at Austin (or University) relies upon a complex system of admissions that has
undergone significant evolution over the past two decades. {remainder of facts omitted}.
II
Fisher I set forth three controlling principles relevant to assessing the constitutionality of a public
university’s affirmative-action program. First, “because racial characteristics so seldom provide a relevant
basis for disparate treatment,” Richmond v. J. A. Croson Co., “[r]ace may not be considered [by a
university] unless the admissions process can withstand strict scrutiny,” Fisher I. Strict scrutiny requires
the university to demonstrate with clarity 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.’”
Second, Fisher I confirmed that “the decision to pursue ‘the educational benefits that flow from student
body diversity’ … is, in substantial measure, an academic judgment to which some, but not complete,
judicial deference is proper.” A university cannot impose a fixed quota or otherwise “define diversity as
‘some specified percentage of a particular group merely because of its race or ethnic origin.’” Once,
however, a university gives “a reasoned, principled explanation” for its decision, deference must be given
“to the University’s conclusion, based on its experience and expertise, that a diverse student body would
serve its educational goals.”
Third, Fisher I clarified that no deference is owed when determining whether the use of race is narrowly
tailored to achieve the university’s permissible goals. A university, Fisher I explained, bears the burden of
proving a “nonracial approach” would not promote its interest in the educational benefits of diversity “about
as well and at tolerable administrative expense.” Though “[n]arrow tailoring does not require exhaustion of
every conceivable race-neutral alternative” or “require a university to choose
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between maintaining a reputation for excellence [and] fulfilling a commitment to provide educational
opportunities to members of all racial groups,” Grutter, it does impose “on the university the ultimate burden
of demonstrating” that “race-neutral alternatives” that are both “available” and “workable” “do not suffice.”
Fisher I.
Fisher I set forth these controlling principles, while taking no position on the constitutionality of the
admissions program at issue in this case. The Court held only that the District Court and the Court of
Appeals had “confined the strict scrutiny inquiry in too narrow a way by deferring to the University’s good
faith in its use of racial classifications.” The Court remanded the case, with instructions to evaluate the
record under the correct standard and to determine whether the University had made “a showing that its
plan is narrowly tailored to achieve” the educational benefits that flow from diversity. On remand, the Court
of Appeals determined that the program conformed with the strict scrutiny mandated by Fisher I. Judge
Garza dissented.
III
The University’s program is sui generis. Unlike other approaches to college admissions considered by this
Court, it combines holistic review with a percentage plan. This approach gave rise to an unusual
consequence in this case: The component of the University’s admissions policy that had the largest impact
on petitioner’s chances of admission was not the school’s consideration of race under its holistic-review
process but rather the Top Ten Percent Plan. Because petitioner did not graduate in the top 10 percent of
her high school class, she was categorically ineligible for more than three-fourths of the slots in the
incoming freshman class. It seems quite plausible, then, to think that petitioner would have had a better
chance of being admitted to the University if the school used race-conscious holistic review to select its
entire incoming class, as was the case in Grutter.
Despite the Top Ten Percent Plan’s outsized effect on petitioner’s chances of admission, she has not
challenged it. * * * *
IV
In seeking to reverse the judgment of the Court of Appeals, petitioner makes four arguments. First, she
argues that the University has not articulated its compelling interest with sufficient clarity. According to
petitioner, the University must set forth more precisely the level of minority enrollment that would
constitute a “critical mass.” Without a clearer sense of what the University’s ultimate goal is, petitioner
argues, a reviewing court cannot assess whether the University’s admissions program is narrowly tailored
to that goal.
As this Court’s cases have made clear, however, the compelling interest that justifies consideration of race
in college admissions is not an interest in enrolling a certain number of minority students. Rather, a
university may institute a race-conscious admissions program as a means of obtaining “the educational
benefits that flow from student body diversity.” Fisher I, see also Grutter. As this Court has said, enrolling
a diverse student body “promotes cross-racial understanding, helps to break down racial stereotypes, and
enables students to better understand persons of different races.” Equally important, “student body diversity
promotes learning outcomes, and better prepares students for an increasingly diverse workforce and
society.”
Increasing minority enrollment may be instrumental to these educational benefits, but it is not, as petitioner
seems to suggest, a goal that can or should be reduced to pure numbers. Indeed, since the University is
prohibited from seeking a particular number or quota of minority students, it cannot be faulted for failing
to specify the particular level of minority enrollment at which it believes the educational benefits of
diversity will be obtained.
On the other hand, asserting an interest in the educational benefits of diversity writ large is insufficient. A
university’s goals cannot be elusory or amorphous—they must be sufficiently measurable to permit judicial
scrutiny of the policies adopted to reach them.
The record reveals that in first setting forth its current admissions policy, the University articulated concrete
and precise goals. On the first page of its 2004 “Proposal to Consider Race and Ethnicity in Admissions,”
the University identifies the educational values it seeks to realize through its admissions process: the
destruction of stereotypes, the “‘promot[ion of] cross-racial understanding,’” the preparation of a student
body “‘for an increasingly diverse workforce and society,’” and the “‘cultivat[ion of] a set of leaders with
legitimacy in the eyes of the citizenry.’” Later in the proposal, the University explains that it strives to
provide an “academic environment” that offers a “robust exchange of ideas, exposure to differing cultures,
preparation for the challenges of an increasingly diverse workforce, and acquisition of competencies
required of future leaders.” All of these objectives, as a general matter, mirror the “compelling interest” this
Court has approved in its prior cases.
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The University has provided in addition a “reasoned, principled explanation” for its decision to pursue these
goals. Fisher I. The University’s 39-page proposal was written following a year-long study, which
concluded that “[t]he use of race-neutral policies and programs ha[d] not been successful” in “provid[ing]
an educational setting that fosters cross-racial understanding, provid[ing] enlightened discussion and
learning, [or] prepar[ing] students to function in an increasingly diverse workforce and society.” Further
support for the University’s conclusion can be found in the depositions and affidavits from various
admissions officers, all of whom articulate the same, consistent “reasoned, principled explanation.”
Petitioner’s contention that the University’s goal was insufficiently concrete is rebutted by the record.
Second, petitioner argues that the University has no need to consider race because it had already “achieved
critical mass” by 2003 using the Top Ten Percent Plan and race-neutral holistic review. Petitioner is correct
that a university bears a heavy burden in showing that it had not obtained the educational benefits of
diversity before it turned to a race-conscious plan. The record reveals, however, that, at the time of
petitioner’s application, the University could not be faulted on this score. Before changing its policy the
University conducted “months of study and deliberation, including retreats, interviews, [and] review of
data,” and concluded that “[t]he use of race-neutral policies and programs ha[d] not been successful in
achieving” sufficient racial diversity at the University. At no stage in this litigation has petitioner challenged
the University’s good faith in conducting its studies, and the Court properly declines to consider the
extrarecord materials the dissent relies upon, many of which are tangential to this case at best and none of
which the University has had a full opportunity to respond to. See, e.g., post, at 45– 46 (opinion of Alito,
J.) (describing a 2015 report regarding the admission of applicants who are related to “politically connected
individuals”).
The record itself contains significant evidence, both statistical and anecdotal, in support of the University’s
position. To start, the demographic data the University has submitted show consistent stagnation in terms
of the percentage of minority students enrolling at the University from 1996 to 2002. In 1996, for example,
266 African-American freshmen enrolled, a total that constituted 4.1 percent of the incoming class. In 2003,
the year Grutter was decided, 267 African-American students enrolled—again, 4.1 percent of the incoming
class. The numbers for Hispanic and Asian-American students tell a similar story. Although demographics
alone are by no means dispositive, they do have some value as a gauge of the University’s ability to enroll
students who can offer underrepresented perspectives.
In addition to this broad demographic data, the University put forward evidence that minority students
admitted under the Hopwood regime experienced feelings of loneliness and isolation. This anecdotal
evidence is, in turn, bolstered by further, more nuanced quantitative data. In 2002, 52 percent of
undergraduate classes with at least five students had no African-American students enrolled in them, and
27 percent had only one African-American student. In other words, only 21 percent of undergraduate classes
with five or more students in them had more than one African-American student enrolled. Twelve percent
of these classes had no Hispanic students, as compared to 10 percent in 1996. Though a college must
continually reassess its need for race-conscious review, here that assessment appears to have been done
with care, and a reasonable determination was made that the University had not yet attained its goals.
Third, petitioner argues that considering race was not necessary because such consideration has had only a
“‘minimal impact’ in advancing the [University’s] compelling interest.” Brief for Petitioner 46; see also Tr.
of Oral Arg. 23:10–12; 24:13–25:2, 25:24– 26:3. Again, the record does not support this assertion. In 2003,
11 percent of the Texas residents enrolled through holistic review were Hispanic and 3.5 percent were
African-American. In 2007, by contrast, 16.9 percent of the Texas holistic-review freshmen were Hispanic
and 6.8 percent were African-American. Those increases—of 54 percent and 94 percent, respectively—
show that consideration of race has had a meaningful, if still limited, effect on the diversity of the
University’s freshman class.
In any event, it is not a failure of narrow tailoring for the impact of racial consideration to be minor. The
fact that race consciousness played a role in only a small portion of admissions decisions should be a
hallmark of narrow tailoring, not evidence of unconstitutionality.
Petitioner’s final argument is that “there are numerous other available race-neutral means of achieving” the
University’s compelling interest. A review of the record reveals, however, that, at the time of petitioner’s
application, none of her proposed alternatives was a workable means for the University to attain the benefits
of diversity it sought. For example, petitioner suggests that the University could intensify its outreach efforts
to African-American and Hispanic applicants. But the University submitted extensive evidence of the many
ways in which it already had intensified its outreach efforts to those students. The University has created
three new scholarship programs, opened new regional admissions centers, increased its recruitment budget
by half-a-million dollars, and organized over 1,000 recruitment events. Perhaps more significantly, in the
wake of Hopwood, the University spent seven years attempting to achieve its compelling interest using
race-neutral holistic review. None of these efforts succeeded, and petitioner fails to offer any meaningful
way in which the University could have improved upon them at the time of her application.
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Petitioner also suggests altering the weight given to academic and socioeconomic factors in the University’s
admissions calculus. This proposal ignores the fact that the University tried, and failed, to increase diversity
through enhanced consideration of socioeconomic and other factors. And it further ignores this Court’s
precedent making clear that the Equal Protection Clause does not force universities to choose between a
diverse student body and a reputation for academic excellence. Grutter.
Petitioner’s final suggestion is to uncap the Top Ten Percent Plan, and admit more—if not all—the
University’s students through a percentage plan. As an initial matter, petitioner overlooks the fact that the
Top Ten Percent Plan, though facially neutral, cannot be understood apart from its basic purpose, which is
to boost minority enrollment. Percentage plans are “adopted with racially segregated neighborhoods and
schools front and center stage.” Fisher I (Ginsburg, J., dissenting). “It is race consciousness, not blindness
to race, that drives such plans.” Ibid. Consequently, petitioner cannot assert simply that increasing the
University’s reliance on a percentage plan would make its admissions policy more race neutral.
Even if, as a matter of raw numbers, minority enrollment would increase under such a regime, petitioner
would be hard-pressed to find convincing support for the proposition that college admissions would be
improved if they were a function of class rank alone. That approach would sacrifice all other aspects of
diversity in pursuit of enrolling a higher number of minority students. A system that selected every student
through class rank alone would exclude the star athlete or musician whose grades suffered because of daily
practices and training. It would exclude a talented young biologist who struggled to maintain above-average
grades in humanities classes. And it would exclude a student whose freshman-year grades were poor
because of a family crisis but who got herself back on track in her last three years of school, only to find
herself just outside of the top decile of her class.
These are but examples of the general problem. Class rank is a single metric, and like any single metric, it
will capture certain types of people and miss others. This does not imply that students admitted through
holistic review are necessarily more capable or more desirable than those admitted through the Top Ten
Percent Plan. It merely reflects the fact that privileging one characteristic above all others does not lead to
a diverse student body. Indeed, to compel universities to admit students based on class rank alone is in deep
tension with the goal of educational diversity as this Court’s cases have defined it. See Grutter (explaining
that percentage plans “may preclude the university from conducting the individualized assessments
necessary to assemble a student body that is not just racially diverse, but diverse along all the qualities
valued by the university”); Fisher (5th Cir.) (pointing out that the Top Ten Percent Law leaves out students
“who fell outside their high school’s top ten percent but excelled in unique ways that would enrich the
diversity of [the University’s] educational experience” and “leaves a gap in an admissions process seeking
to create the multi-dimensional diversity that [Regents of Univ. of Cal. v. Bakke] envisions”). At its center,
the Top Ten Percent Plan is a blunt instrument that may well compromise the University’s own definition
of the diversity it seeks.
In addition to these fundamental problems, an admissions policy that relies exclusively on class rank creates
perverse incentives for applicants. Percentage plans “encourage parents to keep their children in low-
performing segregated schools, and discourage students from taking challenging classes that might lower
their grade point averages.” Gratz (Ginsburg, J., dissenting).
For all these reasons, although it may be true that the Top Ten Percent Plan in some instances may provide
a path out of poverty for those who excel at schools lacking in resources, the Plan cannot serve as the
admissions solution that petitioner suggests. Wherever the balance between percentage plans and holistic
review should rest, an effective admissions policy cannot prescribe, realistically, the exclusive use of a
percentage plan.
In short, none of petitioner’s suggested alternatives—nor other proposals considered or discussed in the
course of this litigation— have been shown to be “available” and “workable” means through which the
University could have met its educational goals, as it understood and defined them in 2008. Fisher I. The
University has thus met its burden of showing that the admissions policy it used at the time it rejected
petitioner’s application was narrowly tailored. * * * *
A university is in large part defined by those intangible “qualities which are incapable of objective
measurement but which make for greatness.” Sweatt v. Painter (1950). Considerable deference is owed to
a university in defining those intangible characteristics, like student body diversity, that are central to its
identity and educational mission. But still, it remains an enduring challenge to our Nation’s education
system to reconcile the pursuit of diversity with the constitutional promise of equal treatment and dignity.
In striking this sensitive balance, public universities, like the States themselves, can serve as “laboratories
for experimentation.” The University of Texas at Austin has a special opportunity to learn and to teach. The
University now has at its disposal valuable data about the manner in which different approaches to
admissions may foster diversity or instead dilute it. The University must continue to use this data to
scrutinize the fairness of its admissions program; to assess whether changing demographics have
undermined the need for a race-conscious policy; and to identify the effects, both positive and negative, of
the affirmative-action measures it deems necessary.
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The Court’s affirmance of the University’s admissions policy today does not necessarily mean the
University may rely on that same policy without refinement. It is the University’s ongoing obligation to
engage in constant deliberation and continued reflection regarding its admissions policies. The judgment
of the Court of Appeals is affirmed.
Justice Kagan took no part in the consideration or decision of this case.
Justice Thomas filed a separate dissenting opinion {omitted}.
Justice Alito, with whom The Chief Justice and Justice Thomas join, dissenting.
Something strange has happened since our prior decision in this case. (Fisher I). In that decision, we held
that strict scrutiny requires the University of Texas at Austin (UT or University) to show that its use of race
and ethnicity in making admissions decisions serves compelling interests and that its plan is narrowly
tailored to achieve those ends. Rejecting the argument that we should defer to UT’s judgment on those
matters, we made it clear that UT was obligated (1) to identify the interests justifying its plan with enough
specificity to permit a reviewing court to determine whether the requirements of strict scrutiny were met,
and (2) to show that those requirements were in fact satisfied. On remand, UT failed to do what our prior
decision demanded. The University has still not identified with any degree of specificity the interests that
its use of race and ethnicity is supposed to serve. Its primary argument is that merely invoking “the
educational benefits of diversity” is sufficient and that it need not identify any metric that would allow a
court to determine whether its plan is needed to serve, or is actually serving, those interests. This is nothing
less than the plea for deference that we emphatically rejected in our prior decision. Today, however, the
Court inexplicably grants that request. * * * *
I
Over the past 20 years, UT has frequently modified its admissions policies, and it has generally employed
race and ethnicity in the most aggressive manner permitted under controlling precedent. {remainder of
discussion of facts omitted}.
II
UT’s race-conscious admissions program cannot satisfy strict scrutiny. UT says that the program furthers
its interest in the educational benefits of diversity, but it has failed to define that interest with any clarity or
to demonstrate that its program is narrowly tailored to achieve that or any other particular interest. By
accepting UT’s rationales as sufficient to meet its burden, the majority licenses UT’s perverse assumptions
about different groups of minority students—the precise assumptions strict scrutiny is supposed to stamp
out. * * * *
A
“The moral imperative of racial neutrality is the driving force of the Equal Protection Clause.” Richmond
v. J. A. Croson Co. (Kennedy, J., concurring in part and concurring in judgment). * * * *
B
Here, UT has failed to define its interest in using racial preferences with clarity. As a result, the narrow
tailoring inquiry is impossible, and UT cannot satisfy strict scrutiny.
When UT adopted its challenged policy, it characterized its compelling interest as obtaining a “‘critical
mass’” of underrepresented minorities. * * * * But to this day, UT has not explained in anything other than
the vaguest terms what it means by “critical mass.” ****
1.5.49 96873
C
Although UT’s primary argument is that it need not point to any interest more specific than “the educational
benefits of diversity,” it has—at various points in this litigation—identified four more specific goals:
demographic parity, classroom diversity, intraracial diversity, and avoiding racial isolation. Neither UT nor
the majority has demonstrated that any of these four goals provides a sufficient basis for satisfying strict
scrutiny. And UT’s arguments to the contrary depend on a series of invidious assumptions.
1
First, both UT and the majority cite demographic data as evidence that African-American and Hispanic
students are “underrepresented” at UT and that racial preferences are necessary to compensate for this
underrepresentation. But neither UT nor the majority is clear about the relationship between Texas
demographics and UT’s interest in obtaining a critical mass.
Does critical mass depend on the relative size of a particular group in the population of a State? For example,
is the critical mass of African-Americans and Hispanics in Texas, where African-Americans are about
11.8% of the population and Hispanics are about 37.6%, different from the critical mass in neighboring
New Mexico, where the African-American population is much smaller (about 2.1%) and the Hispanic
population constitutes a higher percentage of the State’s total (about 46.3%)? * * * *
To the extent that UT is pursuing parity with Texas demographics, that is nothing more than “outright racial
balancing,” which this Court has time and again held “patently unconstitutional.” * * * *
The record here demonstrates the pitfalls inherent in racial balancing. Although UT claims an interest in
the educational benefits of diversity, it appears to have paid little attention to anything other than the number
of minority students on its campus and in its classrooms. UT’s 2004 Proposal illustrates this approach by
repeatedly citing numerical assessments of the racial makeup of the student body and various classes as the
justification for adopting a race-conscious plan. Instead of focusing on the benefits of diversity, UT seems
to have resorted to a simple racial census. * * * *
2
The other major explanation UT offered in the Proposal was its desire to promote classroom diversity. The
Proposal stressed that UT “has not reached a critical mass at the classroom level.”
UT now equivocates, disclaiming any discrete interest in classroom diversity. Instead, UT has taken the
position that the lack of classroom diversity was merely a “red flag that UT had not yet fully realized” “the
constitutionally permissible educational benefits of diversity.”
* * * *[I]f UT is truly seeking to expose its students to a diversity of ideas and perspectives, its policy
is poorly tailored to serve that end. UT’s own study—which the majority touts as the best “nuanced
quantitative data” supporting UT’s position, demonstrated that classroom diversity was more lacking for
students classified as Asian-American than for those classified as Hispanic. But the UT plan discriminates
against Asian-American students. UT is apparently unconcerned that Asian-Americans “may be made to
feel isolated or may be seen as . . . ‘spokesperson[s]’ of their race or ethnicity.” And unless the University
is engaged in unconstitutional racial balancing based on Texas demographics (where Hispanics outnumber
Asian-Americans), it seemingly views the classroom contributions of Asian-American students as less
valuable than those of Hispanic students. In UT’s view, apparently, “Asian Americans are not worth as
much as Hispanics in promoting ‘cross-racial understanding,’ breaking down ‘racial stereotypes,’ and
enabling students to ‘better understand persons of different races.’” Brief for Asian American Legal
Foundation et al. as Amici Curiae 11 (representing 117 Asian-American organizations). The majority
opinion effectively endorses this view, crediting UT’s reliance on the classroom study as proof that the
University assessed its need for racial discrimination (including racial discrimination that undeniably harms
Asian-Americans) “with care.”
* * * * In addition to demonstrating that UT discriminates against Asian-American students, the
classroom study also exhibits UT’s use of a few crude, overly simplistic racial and ethnic categories. Under
the UT plan, both the favored and the disfavored groups are broad and consist of students from enormously
diverse backgrounds (“five predefined racial categories”). Because “[c]rude measures of this sort threaten
to reduce [students] to racial chits,” Parents Involved (opinion of Kennedy, J.), UT’s reliance on such
measures further undermines any claim based on classroom diversity statistics, see id., at 723 (majority
opinion) (criticizing school policies that viewed race in rough “white/nonwhite” or “black/’other’” terms);
id., at 786 (opinion of Kennedy, J.) (faulting government for relying on “crude racial categories”); Metro
Broadcasting, (Kennedy, J., dissenting) (concluding that “‘the very
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attempt to define with precision a beneficiary’s qualifying racial characteristics is repugnant to our
constitutional ideals,’” and noting that if the government “‘is to make a serious effort to define racial classes
by criteria that can be administered objectively, it must study precedents such as the First Regulation to the
Reichs Citizenship Law of November 14, 1935’”).
For example, students labeled “Asian American,” seemingly include “individuals of Chinese, Japanese,
Korean, Vietnamese, Cambodian, Hmong, Indian and other backgrounds comprising roughly 60% of the
world’s population,” Brief for Asian American Legal Foundation et al. as Amici Curiae. It would be
ludicrous to suggest that all of these students have similar backgrounds and similar ideas and experiences
to share. So why has UT lumped them together and concluded that it is appropriate to discriminate against
Asian-American students because they are “overrepresented” in the UT student body? UT has no good
answer. And UT makes no effort to ensure that it has a critical mass of, say, “Filipino Americans” or
“Cambodian Americans.” As long as there are a sufficient number of “Asian Americans,” UT is apparently
satisfied.
UT’s failure to provide any definition of the various racial and ethnic groups is also revealing. UT does not
specify what it means to be “African-American,” “Hispanic,” “Asian American,” “Native American,” or
“White.” And UT evidently labels each student as falling into only a single racial or ethnic group, without
explaining how individuals with ancestors from different groups are to be characterized. As racial and
ethnic prejudice recedes, more and more students will have parents (or grandparents) who fall into more
than one of UT’s five groups. According to census figures, individuals describing themselves as members
of multiple races grew by 32% from 2000 to 2010. A recent survey reported that 26% of Hispanics and
28% of Asian-Americans marry a spouse of a different race or ethnicity.
UT’s crude classification system is ill suited for the more integrated country that we are rapidly becoming.
UT assumes that if an applicant describes himself or herself as a member of a particular race or ethnicity,
that applicant will have a perspective that differs from that of applicants who describe themselves as
members of different groups. But is this necessarily so? If an applicant has one grandparent, great-
grandparent, or great-great-grandparent who was a member of a favored group, is that enough to permit UT
to infer that this student’s classroom contribution will reflect a distinctive perspective or set of experiences
associated with that group? UT does not say. It instead relies on applicants to “classify themselves.” Fisher
I. This is an invitation for applicants to game the system.
Finally, it seems clear that the lack of classroom diversity is attributable in good part to factors other than
the representation of the favored groups in the UT student population. UT offers an enormous number of
classes in a wide range of subjects, and it gives undergraduates a very large measure of freedom to choose
their classes. UT also offers courses in subjects that are likely to have special appeal to members of the
minority groups given preferential treatment under its challenged plan, and this of course diminishes the
number of other courses in which these students can enroll. Having designed an undergraduate program
that virtually ensures a lack of classroom diversity, UT is poorly positioned to argue that this very result
provides a justification for racial and ethnic discrimination, which the Constitution rarely allows.
3
UT’s purported interest in intraracial diversity, or “diversity within diversity,” also falls short. At bottom,
this argument relies on the unsupported assumption that there is something deficient or at least radically
different about the African-American and Hispanic students admitted through the Top Ten Percent Plan. *
* * *
IV
It is important to understand what is and what is not at take in this case. What is not at stake is whether UT
or any other university may adopt an admissions plan that results in a student body with a broad
representation of students from all racial and ethnic groups. UT previously had a race-neutral plan that it
claimed had “effectively compensated for the loss of affirmative action,” App. 396a, and UT could have
taken other steps that would have increased the diversity of its admitted students without taking race or
ethnic background into account.
What is at stake is whether university administrators may justify systematic racial discrimination simply by
asserting that such discrimination is necessary to achieve “the educational benefits of diversity,” without
explaining—much less proving—why the discrimination is needed or how the discriminatory plan is well
crafted to serve its objectives. Even though UT has never provided any coherent explanation for its asserted
need to discriminate on the basis of race, and even though UT’s position relies on a series
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of unsupported and noxious racial assumptions, the majority concludes that UT has met its heavy burden.
This conclusion is remarkable—and remarkably wrong.
Because UT has failed to satisfy strict scrutiny, I respectfully dissent.
Check Your Understanding
Notes
1. Justice Alito’s dissenting opinion in Fisher II is substantially edited in the above text; it more than
50 pages. Justice Kennedy’s opinion for the majority is 20 pages. Thoughts?
2. Fisher II was decided by seven Justices. Justice Scalia died in February 2016, after the oral
argument in December 2015, but before the Court’s opinion in June 2016.
Justice Elana Kagan did not participate in Fisher I or Fisher II. Justices make the decision whether or not
to recuse themselves from a case (although presumably in consultation with their Justice colleagues) and
need not provide a reason. Recusal is rooted in an actual or potential conflict of interest. In Fisher, the
widely presumed reason is that Kagan served as Solicitor General for the United States when the
Department of Justice (DOJ) made the decision to file an amicus brief in Fisher when it was pending in the
Fifth Circuit Court of Appeals. As Solicitor General, Kagan would have made the ultimate decision to file
the amicus brief and had ultimate responsibility for the content of the brief.
3. What do you think the United States argued in its 2010 amicus brief to the Fifth Circuit? Here is
the introduction to the Brief’s Argument section (its “umbrella” section):
In the view of the United States, the University’s limited use of race in its admissions program falls within
the constitutional bounds delineated by the Supreme Court in Grutter v. Bollinger, 539 U.S. 306 (2003).
The University has a compelling interest in attaining the level of student diversity necessary to fulfill its
educational mission. Before instituting its policy, the University undertook a careful study of diversity in
its undergraduate enrollment, including the relative absence of minority students in the small classes that
permit the highest level of student interaction and therefore benefit most from students with a range of
experiences and viewpoints. See id. at 330. Finding that it lacked adequate student diversity, the University
instituted a narrowly tailored policy that considers race as one among many contextual elements that can
indicate that the applicant will bring to the University experiences and attributes that increase the diversity
of the student body. Notably, in keeping with the University’s broad conception of diversity, an individual
of any race can benefit from having his or her race considered. And critically, the policy benefits the entire
University community, and each individual within it, by helping to bring students of all races together into
an educational environment where they can learn from and share experiences with one another.
Given the prominent position of the University in the State of Texas, its admissions policy is a crucial
means of ensuring that “the path to leadership [is] visibly open to talented and qualified individuals of every
race and ethnicity.” Grutter, 539 U.S. at 332. As the Supreme Court emphasized in Grutter, “[e]ffective
participation of all racial and ethnic groups in the civic life of our Nation is essential if the dream of one
Nation, indivisible, is to be realized.” Ibid. The challenged admissions policy is an important means of
promoting that goal. That is particularly so because the University’s admissions policy considers race in an
extremely limited way. In 2008, the year plaintiffs applied for admission, fully 80% of entering freshmen
were selected through the Top Ten Percent program—an entirely race-neutral process. Race comes into
play only when selecting the non-Top Ten Percent admittees, and then only as “a factor of a factor of a
factor of a factor.” R.E. 49.
The University’s effort to promote diversity is a paramount government objective. See Grutter, 539 U.S. at
330-331. In view of the importance of diversity in educational institutions, the United States, through the
Departments of Education and Justice, supports the efforts of school systems and post-secondary
educational institutions that wish to develop admissions policies that endeavor to achieve the educational
benefits of diversity in accordance with Grutter.
Brief for the United States as Amicus Curiae Supporting Appellees in Fisher v. University of Texas, Fisher
v. Univ. of Texas at Austin, 631 F.3d 213 (5th Cir. 2011), vacated and remanded, 570 U.S. __, 133 S. Ct.
2411, 186 L. Ed. 2d 474 (2013).
C. “Affirmative Action” and the Political Process
Schuette v. Coalition to Defend Affirmation Action By Any Means Necessary (BAMN)
572 U.S. ___ (2014)
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Kennedy, J., announced the judgment of the Court and delivered an opinion, in which Roberts, C. J., and
Alito, J., joined. Roberts, C. J., filed a concurring opinion. Scalia, J., filed an opinion concurring in the
judgment, in which Thomas, J., joined. Breyer, J., filed an opinion concurring in the judgment. Sotomayor,
J., filed a dissenting opinion, in which Ginsburg, J., joined. Kagan, J., took no part in the consideration or
decision of the case.
Justice Kennedy announced the judgment of the Court and delivered an opinion, in which The Chief Justice
and Justice Alito join.
The Court in this case must determine whether an amendment to the Constitution of the State of Michigan,
approved and enacted by its voters, is invalid under the Equal Protection Clause of the Fourteenth
Amendment to the Constitution of the United States.
In 2003 the Court reviewed the constitutionality of two admissions systems at the University of Michigan,
one for its undergraduate class and one for its law school. The undergraduate admissions plan was addressed
in Gratz v. Bollinger. The law school admission plan was addressed in Grutter v. Bollinger. Each
admissions process permitted the explicit consideration of an applicant’s race. In Gratz, the Court
invalidated the undergraduate plan as a violation of the Equal Protection Clause. In Grutter, the Court found
no constitutional flaw in the law school admission plan’s more limited use of race-based preferences.
In response to the Court’s decision in Gratz, the university revised its undergraduate admissions process,
but the revision still allowed limited use of race-based preferences. After a statewide debate on the question
of racial preferences in the context of governmental decisionmaking, the voters, in 2006, adopted an
amendment to the State Constitution prohibiting state and other governmental entities in Michigan from
granting certain preferences, including race-based preferences, in a wide range of actions and decisions.
Under the terms of the amendment, race-based preferences cannot be part of the admissions process for
state universities. That particular prohibition is central to the instant case.
The ballot proposal was called Proposal 2 and, after it passed by a margin of 58 percent to 42 percent, the
resulting enactment became Article I, § 26, of the Michigan Constitution. As noted, the amendment is in
broad terms. Section 26 states, in relevant part, as follows:
“(1) The University of Michigan, Michigan State University, Wayne State University, and any other public
college or university, community college, or school district shall not discriminate against, or grant
preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin
in the operation of public employment, public education, or public contracting.
“(2) The state shall not discriminate against, or grant preferential treatment to, any individual or group on
the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public
education, or public contracting.
“(3) For the purposes of this section ‘state’ includes, but is not necessarily limited to, the state itself, any
city, county, any public college, university, or community college, school district, or other political
subdivision or governmental instrumentality of or within the State of Michigan not included in sub-section
1.”
Section 26 was challenged in two cases. Among the plaintiffs in the suits were the Coalition to Defend
Affirmative Action, Integration and Immigrant Rights and Fight for Equality By Any Means Necessary
(BAMN); students; faculty; and prospective applicants to Michigan public universities.
[In 2008, the District Court granted summary judgment to Michigan, thus upholding § 26 (Proposal 2). A
panel of the United States Court of Appeals for the Sixth Circuit reversed the grant of summary judgment,
thus invalidating § 26. In a closely divided decision, the Sixth Circuit en banc agreed that § 26 was
unconstitutional. The United States Supreme Court granted certiorari.]
Before the Court addresses the question presented, it is important to note what this case is not about. It is
not about the constitutionality, or the merits, of race-conscious admissions policies in higher education. The
consideration of race in admissions presents complex questions, in part addressed last Term in Fisher v.
University of Texas at Austin (2013). In Fisher, the Court did not disturb the principle that the consideration
of race in admissions is permissible, provided that certain conditions are met. In this case, as in Fisher, that
principle is not challenged. The question here concerns not the permissibility of race-conscious admissions
policies under the Constitution but whether, and in what manner, voters in the States may choose to prohibit
the consideration of racial preferences in governmental decisions, in particular with respect to school
admissions.
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This Court has noted that some States have decided to prohibit race-conscious admissions policies. In
Grutter, the Court noted: “Universities in California, Florida, and Washington State, where racial
preferences in admissions are prohibited by state law, are currently engaged in experimenting with a wide
variety of alternative approaches. Universities in other States can and should draw on the most promising
aspects of these race-neutral alternatives as they develop.” In this way, Grutter acknowledged the
significance of a dialogue regarding this contested and complex policy question among and within States.
There was recognition that our federal structure “permits ‘innovation and experimentation’ ” and “enables
greater citizen ‘involvement in democratic processes.’ ” While this case arises in Michigan, the decision by
the State’s voters reflects in part the national dialogue regarding the wisdom and practicality of race-
conscious admissions policies in higher education.
In Michigan, the State Constitution invests independent boards of trustees with plenary authority over
public universities, including admissions policies. Mich. Const., Art. VIII, § 5. Although the members of
the boards are elected, some evidence in the record suggests they delegated authority over admissions policy
to the faculty. But whether the boards or the faculty set the specific policy, Michigan’s public universities
did consider race as a factor in admissions decisions before 2006.
In holding § 26 invalid in the context of student admissions at state universities, the Court of Appeals relied
in primary part on Washington v. Seattle School Dist. No. 1 (1982) {Note: This is NOT Parents Involved
v. Seattle Schools decided in 2007}. * * * *
But that determination extends Seattle’s holding in a case presenting quite different issues to reach a
conclusion that is mistaken here. Before explaining this further, it is necessary to consider the relevant cases
that preceded Seattle and the background against which Seattle itself arose.
Though it has not been prominent in the arguments of the parties, this Court’s decision in Reitman v.
Mulkey (1967) is a proper beginning point for discussing the controlling decisions. In Mulkey, voters
amended the California Constitution to prohibit any state legislative interference with an owner’s
prerogative to decline to sell or rent residential property on any basis. Two different cases gave rise to
Mulkey. In one a couple could not rent an apartment, and in the other a couple were evicted from their
apartment. Those adverse actions were on account of race. In both cases the complaining parties were
barred, on account of race, from invoking the protection of California’s statutes; and, as a result, they were
unable to lease residential property. This Court concluded that the state constitutional provision was a denial
of equal protection. * * * * In a dissent joined by three other Justices, Justice Harlan disagreed with the
majority’s holding. The dissent reasoned that California, by the action of its voters, simply wanted the State
to remain neutral in this area, so that the State was not a party to discrimination. That dissenting voice did
not prevail against the majority’s conclusion that the state action in question encouraged discrimination,
causing real and specific injury.
The next precedent of relevance, Hunter v. Erickson (1969) is central to the arguments the respondents
make in the instant case. In Hunter the Court for the first time elaborated what the Court of Appeals here
styled the “political process” doctrine. There, the Akron City Council found that the citizens of Akron
consisted of “‘people of different race[s], . . . many of whom live in circumscribed and segregated areas,
under sub-standard unhealthful, unsafe, unsanitary and overcrowded conditions, because of discrimination
in the sale, lease, rental and financing of housing.’” To address the problem, Akron enacted a fair housing
ordinance to prohibit that sort of discrimination. In response, voters amended the city charter to overturn
the ordinance and to require that any additional antidiscrimination housing ordinance be approved by
referendum. But most other ordinances “regulating the real property market” were not subject to those
threshold requirements. The plaintiff, a black woman in Akron, Ohio, alleged that her real estate agent
could not show her certain residences because the owners had specified they would not sell to black persons.
Central to the Court’s reasoning in Hunter was that the charter amendment was enacted in circumstances
where widespread racial discrimination in the sale and rental of housing led to segregated housing, forcing
many to live in “‘unhealthful, unsafe, unsanitary and overcrowded conditions.’” The Court stated: “It is
against this background that the referendum required by [the charter amendment] must be assessed.” Akron
attempted to characterize the charter amendment “simply as a public decision to move slowly in the delicate
area of race relations” and as a means “to allow the people of Akron to participate” in the decision. The
Court rejected Akron’s flawed “justifications for its discrimination,” justifications that by their own terms
had the effect of acknowledging the targeted nature of the charter amendment. * * * * The Court found that
the city charter amendment, by singling out antidiscrimination ordinances, “places special burden on racial
minorities within the governmental process,” thus becoming as impermissible as any other government
action taken with the invidious intent to injure a racial minority. Justice Harlan filed a concurrence. He
argued the city charter amendment “has the clear purpose of making it more difficult for certain racial and
religious minorities to achieve legislation that is in their interest.” * * * * Thus, in Mulkey and Hunter,
there was a demonstrated injury on the basis of race that, by reasons of state encouragement or participation,
became more aggravated.
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Seattle is the third case of principal relevance here. There, the school board adopted a mandatory busing
program to alleviate racial isolation of minority students in local schools. Voters who opposed the school
board’s busing plan passed a state initiative that barred busing to desegregate. The Court first determined
that, although “white as well as Negro children benefit from” diversity, the school board’s plan “inures
primarily to the benefit of the minority.” The Court next found that “the practical effect” of the state
initiative was to “remov[e] the authority to address a racial problem—and only a racial problem—from the
existing decisionmaking body, in such a way as to burden minority interests” because advocates of busing
“now must seek relief from the state legislature, or from the statewide electorate.” The Court therefore
found that the initiative had “explicitly us[ed] the racial nature of a decision to determine the
decisionmaking process.” (emphasis deleted).
Seattle is best understood as a case in which the state action in question (the bar on busing enacted by the
State’s voters) had the serious risk, if not purpose, of causing specific injuries on account of race, just as
had been the case in Mulkey and Hunter. Although there had been no judicial finding of de jure segregation
with respect to Seattle’s school district, it appears as though school segregation in the district in the 1940’s
and 1950’s may have been the partial result of school board policies that “permitted white students to
transfer out of black schools while restricting the transfer of black students into white schools.” Parents
Involved in Community Schools v. Seattle School Dist. No. 1 (Breyer, J., dissenting). In 1977, the National
Association for the Advancement of Colored People (NAACP) filed a complaint with the Office for Civil
Rights, a federal agency. The NAACP alleged that the school board had maintained a system of de jure
segregation. Specifically, the complaint alleged “that the Seattle School Board had created or perpetuated
unlawful racial segregation through, e.g., certain school-transfer criteria, a construction program that
needlessly built new schools in white areas, district line-drawing criteria, the maintenance of inferior
facilities at black schools, the use of explicit racial criteria in the assignment of teachers and other staff, and
a general pattern of delay in respect to the implementation of promised desegregation efforts.” As part of a
settlement with the Office for Civil Rights, the school board implemented the “Seattle Plan,” which used
busing and mandatory reassignments between elementary schools to reduce racial imbalance and which
was the subject of the state initiative at issue in Seattle.
As this Court held in Parents Involved, the school board’s purported remedial action would not be
permissible today absent a showing of de jure segregation. That holding prompted Justice Breyer to observe
in dissent, as noted above, that one permissible reading of the record was that the school board had
maintained policies to perpetuate racial segregation in the schools. In all events we must understand Seattle
as Seattle understood itself, as a case in which neither the State nor the United States “challenge[d] the
propriety of race-conscious student assignments for the purpose of achieving integration, even absent a
finding of prior de jure segregation.” In other words the legitimacy and constitutionality of the remedy in
question (busing for desegregation) was assumed, and Seattle must be understood on that basis. Seattle
involved a state initiative that “was carefully tailored to interfere only with desegregative busing.” The
Seattle Court, accepting the validity of the school board’s busing remedy as a predicate to its analysis of
the constitutional question, found that the State’s disapproval of the school board’s busing remedy was an
aggravation of the very racial injury in which the State itself was complicit.
The broad language used in Seattle, however, went well beyond the analysis needed to resolve the case.
The Court there seized upon the statement in Justice Harlan’s concurrence in Hunter that the procedural
change in that case had “the clear purpose of making it more difficult for certain racial and religious
minorities to achieve legislation that is in their interest.” That language, taken in the context of the facts in
Hunter, is best read simply to describe the necessity for finding an equal protection violation where specific
injuries from hostile discrimination were at issue. The Seattle Court, however, used the language from the
Hunter concurrence to establish a new and far-reaching rationale. Seattle stated that where a government
policy “inures primarily to the benefit of the minority” and “minorities . . . consider” the policy to be “‘in
their interest,’” then any state action that “place[s] effective decisionmaking authority over” that policy “at
a different level of government” must be reviewed under strict scrutiny. In essence, according to the broad
reading of Seattle, any state action with a “racial focus” that makes it “more difficult for certain racial
minorities than for other groups” to “achieve legislation that is in their interest” is subject to strict scrutiny.
It is this reading of Seattle that the Court of Appeals found to be controlling here. And that reading must be
rejected.
* * * * The {Sixth Circuit’s} expansive reading of Seattle has no principled limitation and raises
serious questions of compatibility with the Court’s settled equal protection jurisprudence. To the extent
Seattle is read to require the Court to determine and declare which political policies serve the “interest” of
a group defined in racial terms, that rationale was unnecessary to the decision in Seattle; it has no support
in precedent; and it raises serious constitutional concerns. That expansive language does not provide a
proper guide for decisions and should not be deemed authoritative or controlling. The rule that the Court of
Appeals elaborated and respondents seek to establish here would contradict central equal protection
principles.
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In cautioning against “impermissible racial stereotypes,” this Court has rejected the assumption that
“members of the same racial group—regardless of their age, education, economic status, or the community
in which they live—think alike, share the same political interests, and will prefer the same candidates at the
polls.” Shaw v. Reno (1993); see also Metro Broadcasting, Inc. v. FCC (1990) (Kennedy, J., dissenting)
(rejecting the “demeaning notion that members of . . . defined racial groups ascribe to certain ‘minority
views’ that must be different from those of other citizens”). It cannot be entertained as a serious proposition
that all individuals of the same race think alike. Yet that proposition would be a necessary beginning point
were the Seattle formulation to control, as the Court of Appeals held it did in this case. And if it were
deemed necessary to probe how some races define their own interest in political matters, still another
beginning point would be to define individuals according to race. But in a society in which those lines are
becoming more blurred, the attempt to define race-based categories also raises serious questions of its own.
Government action that classifies individuals on the basis of race is inherently suspect and carries the danger
of perpetuating the very racial divisions the polity seeks to transcend. Were courts to embark upon this
venture not only would it be undertaken with no clear legal standards or accepted sources to guide judicial
decision but also it would result in, or at least impose a high risk of, inquiries and categories dependent
upon demeaning stereotypes, classifications of questionable constitutionality on their own terms.
Even assuming these initial steps could be taken in a manner consistent with a sound analytic and judicial
framework, the court would next be required to determine the policy realms in which certain groups—
groups defined by race—have a political interest. That undertaking, again without guidance from any
accepted legal standards, would risk, in turn, the creation of incentives for those who support or oppose
certain policies to cast the debate in terms of racial advantage or disadvantage. Thus could racial
antagonisms and conflict tend to arise in the context of judicial decisions as courts undertook to announce
what particular issues of public policy should be classified as advantageous to some group defined by race.
This risk is inherent in adopting the Seattle formulation.
There would be no apparent limiting standards defining what public policies should be included in what
Seattle called policies that “inur[e] primarily to the benefit of the minority” and that “minorities . . .
consider” to be “ ‘in their interest.’ ” Those who seek to represent the interests of particular racial groups
could attempt to advance those aims by demanding an equal protection ruling that any number of matters
be foreclosed from voter review or participation. In a nation in which governmental policies are wide
ranging, those who seek to limit voter participation might be tempted, were this Court to adopt the Seattle
formulation, to urge that a group they choose to define by race or racial stereotypes are advantaged or
disadvantaged by any number of laws or decisions. Tax policy, housing subsidies, wage regulations, and
even the naming of public schools, highways, and monuments are just a few examples of what could
become a list of subjects that some organizations could insist should be beyond the power of voters to
decide, or beyond the power of a legislature to decide when enacting limits on the power of local authorities
or other governmental entities to address certain subjects. Racial division would be validated, not
discouraged, were the Seattle formulation, and the reasoning of the Court of Appeals in this case, to remain
in force.
Perhaps, when enacting policies as an exercise of democratic self-government, voters will determine that
race-based preferences should be adopted. The constitutional validity of some of those choices regarding
racial preferences is not at issue here. The holding in the instant case is simply that the courts may not
disempower the voters from choosing which path to follow. In the realm of policy discussions the regular
give-and-take of debate ought to be a context in which rancor or discord based on race are avoided, not
invited. And if these factors are to be interjected, surely it ought not to be at the invitation or insistence of
the courts.
One response to these concerns may be that objections to the larger consequences of the Seattle formulation
need not be confronted in this case, for here race was an undoubted subject of the ballot issue. But a number
of problems raised by Seattle, such as racial definitions, still apply. And this principal flaw in the ruling of
the Court of Appeals does remain: Here there was no infliction of a specific injury of the kind at issue in
Mulkey and Hunter and in the history of the Seattle schools. Here there is no precedent for extending these
cases to restrict the right of Michigan voters to determine that race-based preferences granted by Michigan
governmental entities should be ended.
* * * * By approving Proposal 2 and thereby adding § 26 to their State Constitution, the Michigan
voters exercised their privilege to enact laws as a basic exercise of their democratic power. In the federal
system States “respond, through the enactment of positive law, to the initiative of those who seek a voice
in shaping the destiny of their own times.” Michigan voters used the initiative system to bypass public
officials who were deemed not responsive to the concerns of a majority of the voters with respect to a policy
of granting race-based preferences that raises difficult and delicate issues.
The freedom secured by the Constitution consists, in one of its essential dimensions, of the right of the
individual not to be injured by the unlawful exercise of governmental power. The mandate for segregated
schools, Brown v. Board of Education (1954); a
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wrongful invasion of the home, Silverman v. United States (1961); or punishing a protester whose views
offend others, Texas v. Johnson (1989); and scores of other examples teach that individual liberty has
constitutional protection, and that liberty’s full extent and meaning may remain yet to be discovered and
affirmed. Yet freedom does not stop with individual rights. Our constitutional system embraces, too, the
right of citizens to debate so they can learn and decide and then, through the political process, act in concert
to try to shape the course of their own times and the course of a nation that must strive always to make
freedom ever greater and more secure. Here Michigan voters acted in concert and statewide to seek
consensus and adopt a policy on a difficult subject against a historical background of race in America that
has been a source of tragedy and persisting injustice. That history demands that we continue to learn, to
listen, and to remain open to new approaches if we are to aspire always to a constitutional order in which
all persons are treated with fairness and equal dignity. Were the Court to rule that the question addressed
by Michigan voters is too sensitive or complex to be within the grasp of the electorate; or that the policies
at issue remain too delicate to be resolved save by university officials or faculties, acting at some remove
from immediate public scrutiny and control; or that these matters are so arcane that the electorate’s power
must be limited because the people cannot prudently exercise that power even after a full debate, that
holding would be an unprecedented restriction on the exercise of a fundamental right held not just by one
person but by all in common. It is the right to speak and debate and learn and then, as a matter of political
will, to act through a lawful electoral process.
The respondents in this case insist that a difficult question of public policy must be taken from the reach of
the voters, and thus removed from the realm of public discussion, dialogue, and debate in an election
campaign. Quite in addition to the serious First Amendment implications of that position with respect to
any particular election, it is inconsistent with the underlying premises of a responsible, functioning
democracy. One of those premises is that a democracy has the capacity—and the duty—to learn from its
past mistakes; to discover and confront persisting biases; and by respectful, rationale deliberation to rise
above those flaws and injustices. That process is impeded, not advanced, by court decrees based on the
proposition that the public cannot have the requisite repose to discuss certain issues. It is demeaning to the
democratic process to presume that the voters are not capable of deciding an issue of this sensitivity on
decent and rational grounds. The process of public discourse and political debate should not be foreclosed
even if there is a risk that during a public campaign there will be those, on both sides, who seek to use racial
division and discord to their own political advantage. An informed public can, and must, rise above this.
The idea of democracy is that it can, and must, mature. Freedom embraces the right, indeed the duty, to
engage in a rational, civic discourse in order to determine how best to form a consensus to shape the destiny
of the Nation and its people. These First Amendment dynamics would be disserved if this Court were to
say that the question here at issue is beyond the capacity of the voters to debate and then to determine.
These precepts are not inconsistent with the well-established principle that when hurt or injury is inflicted
on racial minorities by the encouragement or command of laws or other state action, the Constitution
requires redress by the courts. * * * *
For reasons already discussed, Mulkey, Hunter, and Seattle are not precedents that stand for the conclusion
that Michigan’s voters must be disempowered from acting. Those cases were ones in which the political
restriction in question was designed to be used, or was likely to be used, to encourage infliction of injury
by reason of race. What is at stake here is not whether injury will be inflicted but whether government can
be instructed not to follow a course that entails, first, the definition of racial categories and, second, the
grant of favored status to persons in some racial categories and not others. The electorate’s instruction to
governmental entities not to embark upon the course of race-defined and race-based preferences was
adopted, we must assume, because the voters deemed a preference system to be unwise, on account of what
voters may deem its latent potential to become itself a source of the very resentments and hostilities based
on race that this Nation seeks to put behind it. Whether those adverse results would follow is, and should
be, the subject of debate. Voters might likewise consider, after debate and reflection, that programs designed
to increase diversity—consistent with the Constitution—are a necessary part of progress to transcend the
stigma of past racism.
This case is not about how the debate about racial preferences should be resolved. It is about who may
resolve it. There is no authority in the Constitution of the United States or in this Court’s precedents for the
Judiciary to set aside Michigan laws that commit this policy determination to the voters. Deliberative debate
on sensitive issues such as racial preferences all too often may shade into rancor. But that does not justify
removing certain court-determined issues from the voters’ reach. Democracy does not presume that some
subjects are either too divisive or too profound for public debate.
The judgment of the Court of Appeals for the Sixth Circuit is reversed.
It is so ordered.
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Chief Justice Roberts, concurring.
The dissent devotes 11 pages to expounding its own policy preferences in favor of taking race into account
in college admissions, while nonetheless concluding that it “do[es] not mean to suggest that the virtues of
adopting race-sensitive admissions policies should inform the legal question before the Court.” (opinion of
Sotomayor, J.). The dissent concedes that the governing boards of the State’s various universities could
have implemented a policy making it illegal to “discriminate against, or grant preferential treatment to,”
any individual on the basis of race. On the dissent’s view, if the governing boards conclude that drawing
racial distinctions in university admissions is undesirable or counterproductive, they are permissibly
exercising their policymaking authority. But others who might reach the same conclusion are failing to take
race seriously.
The dissent states that “[t]he way to stop discrimination on the basis of race is to speak openly and candidly
on the subject of race.” And it urges that “[r]ace matters because of the slights, the snickers, the silent
judgments that reinforce that most crippling of thoughts: ‘I do not belong here.’” But it is not “out of touch
with reality” to conclude that racial preferences may themselves have the debilitating effect of reinforcing
precisely that doubt, and—if so—that the preferences do more harm than good. To disagree with the
dissent’s views on the costs and benefits of racial preferences is not to “wish away, rather than confront”
racial inequality. People can disagree in good faith on this issue, but it similarly does more harm than good
to question the openness and candor of those on either side of the debate.
Justice Scalia, with whom Justice Thomas joins, concurring in the judgment.
It has come to this. Called upon to explore the jurisprudential twilight zone between two errant lines of
precedent, we confront a frighteningly bizarre question: Does the Equal Protection Clause of the Fourteenth
Amendment forbid what its text plainly requires? Needless to say (except that this case obliges us to say
it), the question answers itself. “The Constitution proscribes government discrimination on the basis of race,
and state-provided education is no exception.” Grutter v. Bollinger (2003) (Scalia, J., concurring in part
and dissenting in part). It is precisely this understanding—the correct understanding—of the federal Equal
Protection Clause that the people of the State of Michigan have adopted for their own fundamental law. By
adopting it, they did not simultaneously offend it.
Even taking this Court’s sorry line of race-based-admissions cases as a given, I find the question presented
only slightly less strange: Does the Equal Protection Clause forbid a State from banning a practice that the
Clause barely—and only provisionally— permits? Reacting to those race-based-admissions decisions,
some States—whether deterred by the prospect of costly litigation; aware that Grutter’s bell may soon toll;
or simply opposed in principle to the notion of “benign” racial discrimination—have gotten out of the racial-
preferences business altogether. And with our express encouragement: “Universities in California, Florida,
and Washington State, where racial preferences in admissions are prohibited by state law, are currently
engaging in experimenting with a wide variety of alternative approaches. Universities in other States can
and should draw on the most promising aspects of these race-neutral alternatives as they develop.”
Respondents seem to think this admonition was merely in jest. The experiment, they maintain, is not only
over; it never rightly began. Neither the people of the States nor their legislatures ever had the option of
directing subordinate public-university officials to cease considering the race of applicants, since that would
deny members of those minority groups the option of enacting a policy designed to further their interest,
thus denying them the equal protection of the laws. Never mind that it is hotly disputed whether the practice
of race-based admissions is ever in a racial minority’s interest. And never mind that, were a public
university to stake its defense of a race-based-admissions policy on the ground that it was designed to
benefit primarily minorities (as opposed to all students, regardless of color, by enhancing diversity), we
would hold the policy unconstitutional.
* * * * I part ways with Hunter, Seattle, and (I think) the plurality for an additional reason: Each
endorses a version of the proposition that a facially neutral law may deny equal protection solely because
it has a disparate racial impact. Few equal-protection theories have been so squarely and soundly rejected.
“An unwavering line of cases from this Court holds that a violation of the Equal Protection Clause requires
state action motivated by discriminatory intent,” and that “official action will not be held unconstitutional
solely because it results in a racially disproportionate impact.” * * * *
Notwithstanding our dozens of cases confirming the exception-less nature of the Washington v. Davis rule,
the plurality opinion leaves ajar an effects-test escape hatch modeled after Hunter and Seattle, suggesting
that state action denies equal protection when it “ha[s] the serious risk, if not purpose, of causing specific
injuries on account of race,” or is either “designed to be used, or . . . likely to be used, to encourage infliction
of injury by reason of race.” (emphasis added). Since these formulations enable a
1.5.58 96873
determination of an equal-protection violation where there is no discriminatory intent, they are inconsistent
with the long Washington v. Davis line of cases.
Respondents argue that we need not bother with the discriminatory-purpose test, since § 26 may be struck
more straightforwardly as a racial “classification.” Admitting (as they must) that § 26 does not on its face
“distribut[e] burdens or benefits on the basis of individual racial classifications,” Parents Involved in
Community Schools v. Seattle School Dist. No. 1 (2007), respondents rely on Seattle’s statement that “when
the political process or the decisionmaking mechanism used to address racially conscious legislation —and
only such legislation—is singled out for peculiar and disadvantageous treatment,” then that “singling out”
is a racial classification. But this is just the political-process theory bedecked in different doctrinal dress. A
law that “neither says nor implies that persons are to be treated differently on account of their race” is not
a racial classification. That is particularly true of statutes mandating equal treatment. “[A] law that prohibits
the State from classifying individuals by race . . . a fortiori does not classify individuals by race.” {Coalition
for Economic Equity v. Wilson, 9th Circuit (O’Scannlain, J.)}.
Thus, the question in this case, as in every case in which neutral state action is said to deny equal protection
on account of race, is whether the action reflects a racially discriminatory purpose. Seattle stresses that
“singling out the political processes affecting racial issues for uniquely disadvantageous treatment
inevitably raises dangers of impermissible motivation.” True enough, but that motivation must be proved.
And respondents do not have a prayer of proving it here. The District Court noted that, under “conventional
equal protection” doctrine, the suit was “doom[ed].” Though the Court of Appeals did not opine on this
question, I would not leave it for them on remand. In my view, any law expressly requiring state actors to
afford all persons equal protection of the laws (such as Initiative 350 in Seattle, though not the charter
amendment in Hunter) does not—cannot—deny “to any person . .
. equal protection of the laws,” U. S. Const., Amdt. 14, § 1, regardless of whatever evidence of
seemingly foul purposes plaintiffs may cook up in the trial court.
As Justice Harlan observed over a century ago, “[o]ur Constitution is color-blind, and neither knows nor
tolerates classes among citizens.” Plessy v. Ferguson (1896) (dissenting opinion). The people of Michigan
wish the same for their governing charter. It would be shameful for us to stand in their way.
Justice Breyer, concurring in the judgment.
* * * * I continue to believe that the Constitution permits, though it does not require, the use of the
kind of race-conscious programs that are now barred by the Michigan Constitution. The serious educational
problems that faced Americans at the time this Court decided Grutter endure. * * * *
This case, in contrast {to Hunter and Seattle} does not involve a reordering of the political process; it does
not in fact involve the movement of decisionmaking from one political level to another. Rather, here,
Michigan law delegated broad policymaking authority to elected university boards, see Mich. Const., Art.
VIII, § 5, but those boards delegated admissions-related decisionmaking authority to unelected university
faculty members and administrators. Although the boards unquestionably retained the power to set policy
regarding race-conscious admissions, in fact faculty members and administrators set the race-conscious
admissions policies in question. (It is often true that elected bodies—including, for example, school boards,
city councils, and state legislatures—have the power to enact policies, but in fact delegate that power to
administrators.) Although at limited times the university boards were advised of the content of their race-
conscious admissions policies, to my knowledge no board voted to accept or reject any of those policies.
Thus, un-elected faculty members and administrators, not voters or their elected representatives, adopted
the race-conscious admissions programs affected by Michigan’s constitutional amendment. The
amendment took decisionmaking authority away from these unelected actors and placed it in the hands of
the voters.
Why does this matter? For one thing, considered conceptually, the doctrine set forth in Hunter and Seattle
does not easily fit this case. In those cases minorities had participated in the political process and they had
won. The majority’s subsequent reordering of the political process repealed the minority’s successes and
made it more difficult for the minority to succeed in the future. The majority thereby diminished the
minority’s ability to participate meaningfully in the electoral process. But one cannot as easily characterize
the movement of the decisionmaking mechanism at issue here—from an administrative process to an
electoral process —as diminishing the minority’s ability to participate meaningfully in the political process.
There is no prior electoral process in which the minority participated.
For another thing, to extend the holding of Hunter and Seattle to reach situations in which decisionmaking
authority is moved from an administrative body to a political one would pose significant difficulties.
1.5.59 96873
****
Finally, the principle that underlies Hunter and Seattle runs up against a competing principle, discussed
above. This competing principle favors decisionmaking though the democratic process. Just as this principle
strongly supports the right of the people, or their elected representatives, to adopt race-conscious policies
for reasons of inclusion, so must it give them the right to vote not to do so.
As I have said, my discussion here is limited to circumstances in which decisionmaking is moved from an
un-elected administrative body to a politically responsive one, and in which the targeted race-conscious
admissions programs consider race solely in order to obtain the educational benefits of a diverse student
body. We need now decide no more than whether the Federal Constitution permits Michigan to apply its
constitutional amendment in those circumstances. I would hold that it does. Therefore, I concur in the
judgment of the Court.
Justice Sotomayor, with whom Justice Ginsburg joins, dissenting.
We are fortunate to live in a democratic society. But without checks, democratically approved legislation
can oppress minority groups. For that reason, our Constitution places limits on what a majority of the people
may do. This case implicates one such limit: the guarantee of equal protection of the laws. Although that
guarantee is traditionally understood to prohibit intentional discrimination under existing laws, equal
protection does not end there. Another fundamental strand of our equal protection jurisprudence focuses on
process, securing to all citizens the right to participate meaningfully and equally in self-government. That
right is the bedrock of our democracy, for it preserves all other rights.
Yet to know the history of our Nation is to understand its long and lamentable record of stymieing the right
of racial minorities to participate in the political process. At first, the majority acted with an open, invidious
purpose. Notwithstanding the command of the Fifteenth Amendment, certain States shut racial minorities
out of the political process altogether by withholding the right to vote. This Court intervened to preserve
that right. The majority tried again, replacing outright bans on voting with literacy tests, good character
requirements, poll taxes, and gerrymandering. The Court was not fooled; it invalidated those measures, too.
The majority persisted. This time, although it allowed the minority access to the political process, the
majority changed the ground rules of the process so as to make it more difficult for the minority, and the
minority alone, to obtain policies designed to foster racial integration. Although these political
restructurings may not have been discriminatory in purpose, the Court reaffirmed the right of minority
members of our society to participate meaningfully and equally in the political process.
This case involves this last chapter of discrimination: A majority of the Michigan electorate changed the
basic rules of the political process in that State in a manner that uniquely disadvantaged racial minorities.
Prior to the enactment of the constitutional initiative at issue here, all of the admissions policies of
Michigan’s public colleges and universities—including race-sensitive admissions policies—were in the
hands of each institution’s governing board. The members of those boards are nominated by political parties
and elected by the citizenry in statewide elections. After over a century of being shut out of Michigan’s
institutions of higher education, racial minorities in Michigan had succeeded in persuading the elected board
representatives to adopt admissions policies that took into account the benefits of racial diversity. And this
Court twice blessed such efforts—first in Regents of Univ. of Cal. v. Bakke (1978), and again in Grutter v.
Bollinger (2003), a case that itself concerned a Michigan admissions policy.
In the wake of Grutter, some voters in Michigan set out to eliminate the use of race-sensitive admissions
policies. Those voters were of course free to pursue this end in any number of ways. For example, they
could have persuaded existing board members to change their minds through individual or grassroots
lobbying efforts, or through general public awareness campaigns. Or they could have mobilized efforts to
vote uncooperative board members out of office, replacing them with members who would share their
desire to abolish race-sensitive admissions policies. When this Court holds that the Constitution permits a
particular policy, nothing prevents a majority of a State’s voters from choosing not to adopt that policy.
Our system of government encourages—and indeed, depends on—that type of democratic action.
But instead, the majority of Michigan voters changed the rules in the middle of the game, reconfiguring the
existing political process in Michigan in a manner that burdened racial minorities. They did so in the 2006
election by amending the Michigan Constitution to enact Art. I, § 26, which provides in relevant part that
Michigan’s public universities “shall not discriminate against, or grant preferential treatment to, any
individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public
employment, public education, or public contracting.”
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As a result of § 26, there are now two very different processes through which a Michigan citizen is permitted
to influence the admissions policies of the State’s universities: one for persons interested in race-sensitive
admissions policies and one for everyone else. A citizen who is a University of Michigan alumnus, for
instance, can advocate for an admissions policy that considers an applicant’s legacy status by meeting
individually with members of the Board of Regents to convince them of her views, by joining with other
legacy parents to lobby the Board, or by voting for and supporting Board candidates who share her position.
The same options are available to a citizen who wants the Board to adopt admissions policies that consider
athleticism, geography, area of study, and so on. The one and only policy a Michigan citizen may not seek
through this long-established process is a race-sensitive admissions policy that considers race in an
individualized manner when it is clear that race-neutral alternatives are not adequate to achieve diversity.
For that policy alone, the citizens of Michigan must undertake the daunting task of amending the State
Constitution.
Our precedents do not permit political restructurings that create one process for racial minorities and a
separate, less burdensome process for everyone else. This Court has held that the Fourteenth Amendment
does not tolerate “a political structure that treats all individuals as equals, yet more subtly distorts
governmental processes in such a way as to place special burdens on the ability of minority groups to
achieve beneficial legislation.” Washington v. Seattle School Dist. No. 1 (1982). Such restructuring, the
Court explained, “is no more permissible than denying [the minority] the [right to] vote, on an equal basis
with others.” Hunter v. Erickson (1969). In those cases—Hunter and Seattle—the Court recognized what
is now known as the “political-process doctrine”: When the majority reconfigures the political process in a
manner that burdens only a racial minority, that alteration triggers strict judicial scrutiny.
Today, disregarding stare decisis, a majority of the Court effectively discards those precedents. The
plurality does so, it tells us, because the freedom actually secured by the Constitution is the freedom of self-
government—because the majority of Michigan citizens “exercised their privilege to enact laws as a basic
exercise of their democratic power.” It would be “demeaning to the democratic process,” the plurality
concludes, to disturb that decision in any way. This logic embraces majority rule without an important
constitutional limit.
The plurality’s decision fundamentally misunderstands the nature of the injustice worked by § 26. This case
is not, as the plurality imagines, about “who may resolve” the debate over the use of race in higher education
admissions. I agree wholeheartedly that nothing vests the resolution of that debate exclusively in the courts
or requires that we remove it from the reach of the electorate. Rather, this case is about how the debate over
the use of race-sensitive admissions policies may be resolved—that is, it must be resolved in
constitutionally permissible ways. While our Constitution does not guarantee minority groups victory in
the political process, it does guarantee them meaningful and equal access to that process. It guarantees that
the majority may not win by stacking the political process against minority groups permanently, forcing the
minority alone to surmount unique obstacles in pursuit of its goals—here, educational diversity that cannot
reasonably be accomplished through race-neutral measures. Today, by permitting a majority of the voters
in Michigan to do what our Constitution forbids, the Court ends the debate over race-sensitive admissions
policies in Michigan in a manner that contravenes constitutional protections long recognized in our
precedents.
Like the plurality, I have faith that our citizenry will continue to learn from this Nation’s regrettable history;
that it will strive to move beyond those injustices towards a future of equality. And I, too, believe in the
importance of public discourse on matters of public policy. But I part ways with the plurality when it
suggests that judicial intervention in this case “impede[s]” rather than “advance[s]” the democratic process
and the ultimate hope of equality. I firmly believe that our role as judges includes policing the process of
self-government and stepping in when necessary to secure the constitutional guarantee of equal protection.
Because I would do so here, I respectfully dissent.
I
For much of its history, our Nation has denied to many of its citizens the right to participate meaningfully
and equally in its politics. This is a history we strive to put behind us. But it is a history that still informs
the society we live in, and so it is one we must address with candor. Because the political-process doctrine
is best understood against the backdrop of this history, I will briefly trace its course.
The Fifteenth Amendment, ratified after the Civil War, promised to racial minorities the right to vote. But
many States ignored this promise. In addition to outright tactics of fraud, intimidation, and violence, there
are countless examples of States categorically denying to racial minorities access to the political process. *
* * *
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This Court did not stand idly by. In Alabama, for example, the legislature responded to increased black
voter registration in the city of Tuskegee by amending the State Constitution to authorize legislative
abolition of the county in which Tuskegee was located, Ala. Const. Amdt. 132 (1957), repealed by Ala.
Const. Amdt. 406 (1982), and by redrawing the city’s boundaries to remove all the black voters “while not
removing a single white voter,” Gomillion v. Lightfoot (1960). The Court intervened, finding it
“inconceivable that guaranties embedded in the Constitution” could be “manipulated out of existence” by
being “cloaked in the garb of [political] realignment.”
This Court’s landmark ruling in Brown v. Board of Education (1954) triggered a new era of political
restructuring, this time in the context of education. * * * *
The Court remained true to its command in Brown. In Arkansas, for example, it enforced a desegregation
order against the Little Rock school board. Cooper v. Aaron (1958). On the very day the Court announced
that ruling, the Arkansas Legislature responded by changing the rules. It enacted a law permitting the
Governor to close any public school in the State, and stripping local school districts of their decisionmaking
authority so long as the Governor determined that local officials could not maintain “‘a general, suitable,
and efficient educational system.’” The then-Governor immediately closed all of Little Rock’s high schools.
The States’ political restructuring efforts in the 1960’s and 1970’s went beyond the context of education.
Many States tried to suppress the political voice of racial minorities more generally by reconfiguring the
manner in which they filled vacancies in local offices, often transferring authority from the electorate
(where minority citizens had a voice at the local level) to the States’ executive branch (where minorities
wielded little if any influence). * * * *
II
It was in this historical context that the Court intervened in Hunter v. Erickson, (1969), and Washington v.
Seattle School Dist. No. 1 (1982). Together, Hunter and Seattle recognized a fundamental strand of this
Court’s equal protection jurisprudence: the political-process doctrine. To understand that doctrine fully, it
is necessary to set forth in detail precisely what the Court had before it, and precisely what it said. For to
understand Hunter and Seattle is to understand why those cases straightforwardly resolve this one.
****
A
{extensive discussion of Hunter and Seattle omitted}
B
Hunter and Seattle vindicated a principle that is as elementary to our equal protection jurisprudence as it is
essential: The majority may not suppress the minority’s right to participate on equal terms in the political
process. Under this doctrine, governmental action deprives minority groups of equal protection when it (1)
has a racial focus, targeting a policy or program that “inures primarily to the benefit of the minority,”
Seattle; and (2) alters the political process in a manner that uniquely burdens racial minorities’ ability to
achieve their goals through that process. A faithful application of the doctrine resoundingly resolves this
case in respondents’ favor.
1
Section 26 has a “racial focus.” That is clear from its text, which prohibits Michigan’s public colleges and
universities from “grant[ing] preferential treatment to any individual or group on the basis of race.” Mich.
Const., Art. I, § 26. Like desegregation of public schools, race-sensitive admissions policies “inur[e]
primarily to the benefit of the minority,” as they are designed to increase minorities’ access to institutions
of higher education.
Petitioner argues that race-sensitive admissions policies cannot “inur[e] primarily to the benefit of the
minority,” as the Court has upheld such policies only insofar as they further “the educational benefits that
flow from a diverse student body,” Grutter. But there is no conflict between this Court’s pronouncement in
Grutter and the common-sense reality that race-sensitive admissions policies benefit minorities. Rather,
race-sensitive admissions policies further a compelling state interest in achieving a diverse student body
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precisely because they increase minority enrollment, which necessarily benefits minority groups. In other
words, constitutionally permissible race-sensitive admissions policies can both serve the compelling
interest of obtaining the educational benefits that flow from a diverse student body, and inure to the benefit
of racial minorities. There is nothing mutually exclusive about the two.
It is worth emphasizing, moreover, that § 26 is relevant only to admissions policies that have survived strict
scrutiny under Grutter; other policies, under this Court’s rulings, would be forbidden with or without § 26.
A Grutter-compliant admissions policy must use race flexibly, not maintain a quota; must be limited in
time; and must be employed only after “serious, good faith consideration of workable race-neutral
alternatives.” The policies banned by § 26 meet all these requirements and thus already constitute the least
restrictive ways to advance Michigan’s compelling interest in diversity in higher education.
2
{Extensive citations and quotations from amicus briefs and secondary sources in this section omitted}.
Section 26 restructures the political process in Michigan in a manner that places unique burdens on racial
minorities. It establishes a distinct and more burdensome political process for the enactment of admissions
plans that consider racial diversity.
Long before the enactment of § 26, the Michigan Constitution granted plenary authority over all matters
relating to Michigan’s public universities, including admissions criteria, to each university’s eight-member
governing board.
* * * * The boards are indisputably a part of the political process in Michigan.
* * * *
Before the enactment of § 26, Michigan’s political structure permitted both supporters and opponents of
race-sensitive admissions policies to vote for their candidates of choice and to lobby the elected and
politically accountable boards. Section 26 reconfigured that structure. After § 26, the boards retain plenary
authority over all admissions criteria except for race-sensitive admissions policies. To change admissions
policies on this one issue, a Michigan citizen must instead amend the Michigan Constitution. That is no
small task. To place a proposed constitutional amendment on the ballot requires either the support of two-
thirds of both Houses of the Michigan Legislature or a vast number of signatures from Michigan voters—
10 percent of the total number of votes cast in the preceding gubernatorial election. See Mich. Const., Art.
XII, §§ 1, 2. Since more than 3.2 million votes were cast in the 2010 election for Governor, more than
320,000 signatures are currently needed to win a ballot spot. Moreover, “[t]o account for invalid and
duplicative signatures, initiative sponsors ‘need to obtain substantially more than the actual required
number of signatures, typically by a 25% to 50% margin.’ ”
And the costs of qualifying an amendment are significant. For example, “[t]he vast majority of petition
efforts . . . require initiative sponsors to hire paid petition circulators, at significant expense.” In addition to
the cost of collecting signatures, campaigning for a majority of votes is an expensive endeavor, and
“organizations advocating on behalf of marginalized groups remain . . .
outmoneyed by corporate, business, and professional organizations.” In 2008, for instance, over $800
million was spent nationally on state-level initiative and referendum campaigns, nearly $300 million more
than was spent in the 2006 cycle. Donovan 98. “In several states, more money [is] spent on ballot initiative
campaigns than for all other races for political office combined.” Indeed, the amount spent on state-level
initiative and referendum campaigns in 2008 eclipsed the $740.6 million spent by President Obama in his
2008 presidential campaign.
Michigan’s Constitution has only rarely been amended through the initiative process. Between 1914 and
2000, voters have placed only 60 statewide initiatives on the Michigan ballot, of which only 20 have passed.
Minority groups face an especially uphill battle. In fact, “[i]t is difficult to find even a single statewide
initiative in any State in which voters approved policies that explicitly favor racial or ethnic minority
groups.”
This is the onerous task that § 26 forces a Michigan citizen to complete in order to change the admissions
policies of Michigan’s public colleges and universities with respect to racial sensitivity. While substantially
less grueling paths remain open to those advocating for any other admissions policies, a constitutional
amendment is the only avenue by which race-sensitive admissions policies may be obtained. The effect of
§ 26 is that a white graduate of a public Michigan university who wishes to pass his historical privilege on
to his children may freely lobby the board of that university in favor of an expanded legacy admissions
policy, whereas a black Michigander who was denied the opportunity to attend that very university cannot
lobby the board in favor of a policy that might give his children a chance that he never had and that they
might never have absent that policy.
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Such reordering of the political process contravenes Hunter and Seattle. Where, as here, the majority alters
the political process to the detriment of a racial minority, the governmental action is subject to strict
scrutiny. Michigan does not assert that § 26 satisfies a compelling state interest. That should settle the
matter.
C
1
The plurality sees it differently. Disregarding the language used in Hunter, the plurality asks us to contort
that case into one that “rests on the unremarkable principle that the State may not alter the procedures of
government to target racial minorities.” And the plurality recasts Seattle “as a case in which the state action
in question . . . had the serious risk, if not purpose, of causing specific injuries on account of race.”
According to the plurality, the Hunter and Seattle Courts were not concerned with efforts to reconfigure the
political process to the detriment of racial minorities; rather, those cases invalidated governmental actions
merely because they reflected an invidious purpose to discriminate. This is not a tenable reading of those
cases.
The plurality identifies “invidious discrimination” as the “necessary result” of the restructuring in Hunter.
It is impossible to assess whether the housing amendment in Hunter was motivated by discriminatory
purpose, for the opinion does not discuss the question of intent. What is obvious, however, is that the
possibility of invidious discrimination played no role in the Court’s reasoning. We ordinarily understand
our precedents to mean what they actually say, not what we later think they could or should have said. The
Hunter Court was clear about why it invalidated the Akron charter amendment: It was impermissible as a
restructuring of the political process, not as an action motivated by discriminatory intent.
Similarly, the plurality disregards what Seattle actually says and instead opines that “the political restriction
in question was designed to be used, or was likely to be used, to encourage infliction of injury by reason of
race.” Here, the plurality derives its conclusion not from Seattle itself, but from evidence unearthed more
than a quarter-century later in Parents Involved in Community Schools v. Seattle School Dist. No. 1 (2007).
* * * * It follows, according to the plurality, that Seattle’s desegregation plan was constitutionally required,
so that the initiative halting the plan was an instance of invidious discrimination aimed at inflicting a racial
injury.
* * * * And what now of the political-process doctrine? After the plurality’s revision of Hunter and
Seattle, it is unclear what is left. The plurality certainly does not tell us. On this point, and this point only,
I agree with Justice Scalia that the plurality has rewritten those precedents beyond recognition.
2
Justice Breyer concludes that Hunter and Seattle do not apply. * * * *
The salient point is this: Although the elected and politically accountable boards may well entrust university
officials with certain day-to-day admissions responsibilities, they often weigh in on admissions policies
themselves and, at all times, they retain complete supervisory authority over university officials and over
all admissions decisions. * * * *
III
The political-process doctrine not only resolves this case as a matter of stare decisis; it is correct as a matter
of first principles.
A
Under our Constitution, majority rule is not without limit. Our system of government is predicated on an
equilibrium between the notion that a majority of citizens may determine governmental policy through
legislation enacted by their elected representatives, and the overriding principle that there are nonetheless
some things the Constitution forbids even a majority of citizens to do. The political-process doctrine,
grounded in the Fourteenth Amendment, is a central check on majority rule.
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The Fourteenth Amendment instructs that all who act for the government may not “deny to any person . . .
the equal protection of the laws.” We often think of equal protection as a guarantee that the government
will apply the law in an equal fashion—that it will not intentionally discriminate against minority groups.
But equal protection of the laws means more than that; it also secures the right of all citizens to participate
meaningfully and equally in the process through which laws are created.
Few rights are as fundamental as the right to participate meaningfully and equally in the process of
government. See Yick Wo v. Hopkins (1886) (political rights are “fundamental” because they are
“preservative of all rights”). That right is the bedrock of our democracy, recognized from its very inception.
See J. Ely, Democracy and Distrust 87 (1980) (the Constitution “is overwhelmingly concerned, on the one
hand, with procedural fairness in the resolution of individual disputes,” and on the other, “with ensuring
broad participation in the processes and distributions of government”).
This should come as no surprise. The political process is the channel of change. It is the means by which
citizens may both obtain desirable legislation and repeal undesirable legislation. Of course, we do not expect
minority members of our society to obtain every single result they seek through the political process—not,
at least, when their views conflict with those of the majority. The minority plainly does not have a right to
prevail over majority groups in any given political contest. But the minority does have a right to play by
the same rules as the majority. It is this right that Hunter and Seattle so boldly vindicated.
This right was hardly novel at the time of Hunter and Seattle. For example, this Court focused on the vital
importance of safeguarding minority groups’ access to the political process in United States v. Carolene
Products Co. (1938), a case that predated Hunter by 30 years. In a now-famous footnote, the Court explained
that while ordinary social and economic legislation carries a presumption of constitutionality, the same may
not be true of legislation that offends fundamental rights or targets minority groups. Citing cases involving
restrictions on the right to vote, restraints on the dissemination of information, interferences with political
organizations, and prohibition of peaceable assembly, the Court recognized that “legislation which restricts
those political processes which can ordinarily be expected to bring about repeal of undesirable legislation”
could be worthy of “more exacting judicial scrutiny under the general prohibitions of the Fourteenth
Amendment than are most other types of legislation.” Carolene Products, n. 4, see also Ely (explaining that
“[p]aragraph two {of Carolene Products footnote 4} suggests that it is an appropriate function of the Court
to keep the machinery of democratic government running as it should, to make sure the channels of political
participation and communication are kept open”). The Court also noted that “prejudice against discrete and
insular minorities may be a special condition, which tends seriously to curtail the operation of those political
processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more
searching judicial inquiry.” Carolene Products, n. 4, see also Ely (explaining that “[p]aragraph three {of
Carolene Products footnote 4} suggests that the Court should also concern itself with what majorities do to
minorities, particularly mentioning laws ‘directed at’ religious, national and racial minorities and those
infected by prejudice against them”).
The values identified in Carolene Products lie at the heart of the political-process doctrine. Indeed, Seattle
explicitly relied on Carolene Products. These values are central tenets of our equal protection jurisprudence.
Our cases recognize at least three features of the right to meaningful participation in the political process.
Two of them, thankfully, are uncontroversial. First, every eligible citizen has a right to vote. See Shaw v.
Reno (1993). This, woefully, has not always been the case. But it is a right no one would take issue with
today. Second, the majority may not make it more difficult for the minority to exercise the right to vote.
This, too, is widely accepted. After all, the Court has invalidated grandfather clauses, good character
requirements, poll taxes, and gerrymandering provisions. The third feature, the one the plurality dismantles
today, is that a majority may not reconfigure the existing political process in a manner that creates a two-
tiered system of political change, subjecting laws designed to protect or benefit discrete and insular
minorities to a more burdensome political process than all other laws. This is the political-process doctrine
of Hunter and Seattle.
My colleagues would stop at the second. The plurality embraces the freedom of “self-government” without
limits. And Justice Scalia values a “near-limitless” notion of state sovereignty. The wrong sought to be
corrected by the political-process doctrine, they say, is not one that should concern us and is in any event
beyond the reach of the Fourteenth Amendment. As they see it, the Court’s role in protecting the political
process ends once we have removed certain barriers to the minority’s participation in that process. Then,
they say, we must sit back and let the majority rule without the key constitutional limit recognized in Hunter
and Seattle.
That view drains the Fourteenth Amendment of one of its core teachings. Contrary to today’s decision,
protecting the right to meaningful participation in the political process must mean more than simply
removing barriers to participation. It must mean vigilantly policing the political process to ensure that the
majority does not use other methods to prevent minority groups from partaking in that process on equal
footing. Why? For the same reason we guard the right of every citizen to vote. If “[e]fforts to
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reduce the impact of minority votes, in contrast to direct attempts to block access to the ballot,” were
“‘second-generation barriers’” to minority voting, Shelby County v. Holder (2013) (Ginsburg, J.,
dissenting) efforts to reconfigure the political process in ways that uniquely disadvantage minority groups
who have already long been disadvantaged are third-generation barriers. For as the Court recognized in
Seattle, “minorities are no less powerless with the vote than without it when a racial criterion is used to
assign governmental power in such a way as to exclude particular racial groups ‘from effective participation
in the political proces[s].’”
To accept the first two features of the right to meaningful participation in the political process, while
renouncing the third, paves the way for the majority to do what it has done time and again throughout our
Nation’s history: afford the minority the opportunity to participate, yet manipulate the ground rules so as
to ensure the minority’s defeat. This is entirely at odds with our idea of equality under the law.
To reiterate, none of this is to say that the political-process doctrine prohibits the exercise of democratic
self-government. Nothing prevents a majority of citizens from pursuing or obtaining its preferred outcome
in a political contest. Here, for instance, I agree with the plurality that Michiganders who were unhappy
with Grutter were free to pursue an end to race-sensitive admissions policies in their State. They were free
to elect governing boards that opposed race-sensitive admissions policies or, through public discourse and
dialogue, to lobby the existing boards toward that end. They were also free to remove from the boards the
authority to make any decisions with respect to admissions policies, as opposed to only decisions
concerning race-sensitive admissions policies. But what the majority could not do, consistent with the
Constitution, is change the ground rules of the political process in a manner that makes it more difficult for
racial minorities alone to achieve their goals. In doing so, the majority effectively rigs the contest to
guarantee a particular outcome. That is the very wrong the political-process doctrine seeks to remedy. The
doctrine “hews to the unremarkable notion that when two competitors are running a race, one may not
require the other to run twice as far or to scale obstacles not present in the first runner’s course.” {quote
from 6th Circuit opinion}.
B
The political-process doctrine also follows from the rest of our equal protection jurisprudence—in
particular, our reapportionment and vote dilution cases. * * * *
IV
My colleagues claim that the political-process doctrine is unadministrable and contrary to our more recent
equal protection precedents. It is only by not acknowledging certain strands of our jurisprudence that they
can reach such a conclusion.
A
Start with the claim that Hunter and Seattle are no longer viable because of the cases that have come after
them. I note that in the view of many, it is those precedents that have departed from the mandate of the
Equal Protection Clause in the first place, by applying strict scrutiny to actions designed to benefit rather
than burden the minority. See Gratz (Ginsburg, J., dissenting) (“[A]s I see it, government decisionmakers
may properly distinguish between policies of exclusion and inclusion. Actions designed to burden groups
long denied full citizenship stature are not sensibly ranked with measures taken to hasten the day when
entrenched discrimination and its aftereffects have been extirpated” (citation omitted)); id., at 282 (Breyer,
J., concurring in judgment) (“I agree. . . that, in implementing the Constitution’s equality instruction,
government decisionmakers may properly distinguish between policies of inclusion and exclusion, for the
former are more likely to prove consistent with the basic constitutional obligation that the law respect each
individual equally” (citation omitted)); Adarand Constructors, Inc. v. Peña (1995) (Stevens, J., dissenting)
(“There is no moral or constitutional equivalence between a policy that is designed to perpetuate a caste
system and one that seeks to eradicate racial subordination. Invidious discrimination is an engine of
oppression, subjugating a disfavored group to enhance or maintain the power of the majority. Remedial
race-based preferences reflect the opposite impulse: a desire to foster equality in society”). * * * *
But even assuming that strict scrutiny should apply to policies designed to benefit racial minorities, that
view is not inconsistent with Hunter and Seattle. For nothing the Court has said in the last 32 years
undermines the principles announced in those cases.
{extended discussion of Scalia’s opinion omitted}
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B
* * * * My colleagues are of the view that we should leave race out of the picture entirely and let the
voters sort it out. We have seen this reasoning before. See Parents Involved (“The way to stop
discrimination on the basis of race is to stop discriminating on the basis of race”). It is a sentiment out of
touch with reality, one not required by our Constitution, and one that has properly been rejected as “not
sufficient” to resolve cases of this nature. Id. (Kennedy, J., concurring in part and concurring in judgment).
While “[t]he enduring hope is that race should not matter[,] the reality is that too often it does.” Id.
Race matters. Race matters in part because of the long history of racial minorities’ being denied access to
the political process. And although we have made great strides, “voting discrimination still exists; no one
doubts that.” Shelby County.
Race also matters because of persistent racial inequality in society—inequality that cannot be ignored and
that has produced stark socioeconomic disparities. See Gratz (Ginsburg, J., dissenting) (cataloging the many
ways in which “the effects of centuries of law-sanctioned inequality remain painfully evident in our
communities and schools,” in areas like employment, poverty, access to health care, housing, consumer
transactions, and education); Adarand (Ginsburg, J., dissenting) (recognizing that the “lingering effects” of
discrimination, “reflective of a system of racial caste only recently ended, are evident in our workplaces,
markets, and neighborhoods”).
And race matters for reasons that really are only skin deep, that cannot be discussed any other way, and that
cannot be wished away. Race matters to a young man’s view of society when he spends his teenage years
watching others tense up as he passes, no matter the neighborhood where he grew up. Race matters to a
young woman’s sense of self when she states her hometown, and then is pressed, “No, where are you really
from?”, regardless of how many generations her family has been in the country. Race matters to a young
person addressed by a stranger in a foreign language, which he does not understand because only English
was spoken at home. Race matters because of the slights, the snickers, the silent judgments that reinforce
that most crippling of thoughts: “I do not belong here.”
In my colleagues’ view, examining the racial impact of legislation only perpetuates racial discrimination.
This refusal to accept the stark reality that race matters is regrettable. The way to stop discrimination on the
basis of race is to speak openly and candidly on the subject of race, and to apply the Constitution with eyes
open to the unfortunate effects of centuries of racial discrimination. As members of the judiciary tasked
with intervening to carry out the guarantee of equal protection, we ought not sit back and wish away, rather
than confront, the racial inequality that exists in our society. It is this view that works harm, by perpetuating
the facile notion that what makes race matter is acknowledging the simple truth that race does matter.
V
Although the only constitutional rights at stake in this case are process-based rights, the substantive policy
at issue is undeniably of some relevance to my colleagues. See plurality opinion (suggesting that race-
sensitive admissions policies have the “potential to become . . . the source of the very resentments and
hostilities based on race that this Nation seeks to put behind it”). I will therefore speak in response.
A
For over a century, racial minorities in Michigan fought to bring diversity to their State’s public colleges
and universities. Before the advent of race-sensitive admissions policies, those institutions, like others
around the country, were essentially segregated. In 1868, two black students were admitted to the University
of Michigan, the first of their race. In 1935, over six decades later, there were still only 35 black students
at the University. By 1954, this number had risen to slightly below 200. And by 1966, to around 400, among
a total student population of roughly 32,500—barely over 1 percent. The numbers at the University of
Michigan Law School are even more telling. During the 1960’s, the Law School produced 9 black graduates
among a total of 3,041—less than three-tenths of 1 percent.
The housing and extracurricular policies at these institutions also perpetuated open segregation. For
instance, incoming students were permitted to opt out of rooming with black students. And some fraternities
and sororities excluded black students from membership.
In 1966, the Defense Department conducted an investigation into the University’s compliance with Title
VI of the Civil Rights Act, and made 25 recommendations for increasing opportunities for minority
students. In 1970, a student group launched a number of
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protests, including a strike, demanding that the University increase its minority enrollment. The
University’s Board of Regents responded, adopting a goal of 10 percent black admissions by the fall of
1973.
During the 1970’s, the University continued to improve its admissions policies, encouraged by this Court’s
1978 decision in Bakke. In that case, the Court told our Nation’s colleges and universities that they could
consider race in admissions as part of a broader goal to create a diverse student body, in which students of
different backgrounds would learn together, and thereby learn to live together. A little more than a decade
ago, in Grutter, the Court reaffirmed this understanding. In upholding the admissions policy of the Law
School, the Court laid to rest any doubt whether student body diversity is a compelling interest that may
justify the use of race.
Race-sensitive admissions policies are now a thing of the past in Michigan after § 26, even though—as
experts agree and as research shows—those policies were making a difference in achieving educational
diversity. In Grutter, Michigan’s Law School spoke candidly about the strides the institution had taken
successfully because of race-sensitive admissions. One expert retained by the Law School opined that a
race-blind admissions system would have a “very dramatic, negative effect on underrepresented minority
admissions.” He testified that the school had admitted 35 percent of underrepresented minority students
who had applied in 2000, as opposed to only 10 percent who would have been admitted had race not been
considered. Underrepresented minority students would thus have constituted 4 percent, as opposed to the
actual 14.5 percent, of the class that entered in 2000.
Michigan’s public colleges and universities tell us the same today. The Board of Regents of the University
of Michigan and the Board of Trustees of Michigan State University inform us that those institutions cannot
achieve the benefits of a diverse student body without race-sensitive admissions plans. During proceedings
before the lower courts, several university officials testified that
§ 26 would depress minority enrollment at Michigan’s public universities. The Director of
Undergraduate Admissions at the University of Michigan “expressed doubts over the ability to maintain
minority enrollment through the use of a proxy, like socioeconomic status.” Similarly, the Law School’s
Dean of Admissions testified that she expected “a decline in minority admissions because, in her view, it is
impossible ‘to get a critical mass of underrepresented minorities . . . without considering race.’ ” And the
Dean of Wayne State University Law School stated that “although some creative approaches might mitigate
the effects of [§ 26], he ‘did not think that any one of these proposals or any combination of these proposals
was reasonably likely to result in the admission of a class that had the same or similar or higher numbers
of African Americans, Latinos and Native Americans as the prior policy.’” * * * * {statistical discussion
omitted}
B
These statistics may not influence the views of some of my colleagues, as they question the wisdom of
adopting race-sensitive admissions policies and would prefer if our Nation’s colleges and universities were
to discard those policies altogether. That view is at odds with our recognition in Grutter, and more recently
in Fisher v. University of Texas at Austin (2013), that race-sensitive admissions policies are necessary to
achieve a diverse student body when race-neutral alternatives have failed. More fundamentally, it ignores
the importance of diversity in institutions of higher education and reveals how little my colleagues
understand about the reality of race in America.
This Court has recognized that diversity in education is paramount. With good reason. Diversity ensures
that the next generation moves beyond the stereotypes, the assumptions, and the superficial perceptions that
students coming from less-heterogeneous communities may harbor, consciously or not, about people who
do not look like them. Recognizing the need for diversity acknowledges that, “[j]ust as growing up in a
particular region or having particular professional experiences is likely to affect an individual’s views, so
too is one’s own, unique experience of being a racial minority in a society, like our own, in which race
unfortunately still matters.” Grutter. And it acknowledges that “to cultivate a set of leaders with legitimacy
in the eyes of the citizenry, it is necessary that the path to leadership be visibly open to talented and qualified
individuals of every race and ethnicity.”
Colleges and universities must be free to prioritize the goal of diversity. They must be free to immerse their
students in a multiracial environment that fosters frequent and meaningful interactions with students of
other races, and thereby pushes such students to transcend any assumptions they may hold on the basis of
skin color. Without race-sensitive admissions policies, this might well be impossible. The statistics I have
described make that fact glaringly obvious. We should not turn a blind eye to something we cannot help
but see.
To be clear, I do not mean to suggest that the virtues of adopting race-sensitive admissions policies should
inform the legal question before the Court today regarding the constitutionality of § 26. But I cannot ignore
the unfortunate outcome of today’s decision: Short of amending the State Constitution, a Herculean task,
racial minorities in Michigan are deprived of even an opportunity to
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convince Michigan’s public colleges and universities to consider race in their admissions plans when other
attempts to achieve racial diversity have proved unworkable, and those institutions are unnecessarily
hobbled in their pursuit of a diverse student body.
Conclusion
The Constitution does not protect racial minorities from political defeat. But neither does it give the majority
free rein to erect selective barriers against racial minorities. The political-process doctrine polices the
channels of change to ensure that the majority, when it wins, does so without rigging the rules of the game
to ensure its success. Today, the Court discards that doctrine without good reason.
In doing so, it permits the decision of a majority of the voters in Michigan to strip Michigan’s elected
university boards of their authority to make decisions with respect to constitutionally permissible race-
sensitive admissions policies, while preserving the boards’ plenary authority to make all other educational
decisions. “In a most direct sense, this implicates the judiciary’s special role in safeguarding the interests
of those groups that are relegated to such a position of political powerlessness as to command extraordinary
protection from the majoritarian political process.” Seattle. The Court abdicates that role, permitting the
majority to use its numerical advantage to change the rules mid-contest and forever stack the deck against
racial minorities in Michigan. The result is that Michigan’s public colleges and universities are less
equipped to do their part in ensuring that students of all races are “better prepare[d] . . . for an increasingly
diverse workforce and society . . .” Grutter.
Today’s decision eviscerates an important strand of our equal protection jurisprudence. For members of
historically marginalized groups, which rely on the federal courts to protect their constitutional rights, the
decision can hardly bolster hope for a vision of democracy that preserves for all the right to participate
meaningfully and equally in self-government.
References
• Harris, Margaret. The Dynamics of Judicial Interpretation. 4th ed., Apex Legal Publications, 2022.
• Walker, James. "The Influence of International Law on Domestic Judicial Systems." Global
Judicial Law Review, vol. 31, no. 3, 2021, pp. 321-345.
• Mitchell, Olivia, editor. Judicial Precedent and Legal Theory. Jurisprudence Press, 2020.
• Stevens, Peter. "Judicial Restraint versus Judicial Activism: An Ongoing Debate." Presented at the
National Judicial Conference, American Bar Association, 2023.
• Kim, Alexander. "Challenges of Maintaining Judicial Neutrality in Politically Charged Cases."
Contemporary Judicial Studies Journal, 12 August 2022,
