BRADWELL V.
THE STATE practice as an attorney and counselor at law, according to the
Syllabus
1. The Supreme Court of Illinois having refused to grant to a
woman a license to practice law in the courts of that state, on
the ground that females are not eligible under the laws of that
state. Held that such a decision violates no provision of the
federal Constitution.
2. The second section of the fourth article is inapplicable,
because the plaintiff was a citizen of the state of whose action
she complains, and that section only guarantees privileges and
immunities to citizens of other states, in that state.
3. Nor is the right to practice law in the state courts a privilege
or immunity of a citizen of the United States, within the
meaning of the first section of the Fourteenth Article of
amendment of the Constitution of the United States.
4. The power of a state to prescribe the qualifications for
admission to the bar of its own courts is unaffected by the
Fourteenth Amendment, and this Court cannot inquire into the
reasonableness or propriety of the rules it may prescribe.
Mrs. Myra Bradwell, residing in the State of Illinois, made
application to the judges of the Supreme Court of that state for
a license to practice law. She accompanied her petition with
the usual certificate from an inferior court of her good
character, and that on due examination she had been found to
possess the requisite qualifications. Pending this application,
she also filed an affidavit to the effect "that she was born in
the State of Vermont; that she was (had been) a citizen of that
state; that she is now a citizen of the United States, and has
been for many years past a resident of the City of Chicago, in
the State of Illinois."
And with this affidavit she also filed a paper asserting that,
under the foregoing facts, she was entitled to the license
prayed for by virtue of the second section of the fourth article
of the Constitution of the United States, and of the fourteenth
article of amendment of that instrument.
The statute of Illinois on the subject of admissions to the bar,
enacts that no person shall be permitted to practice as an
attorney or counselor at law, or to commence, conduct, or
defend any action, suit, or complaint, in which he is not a
party concerned, in any court of record within the state, either
by using or subscribing his own name or the name of any other
person, without having previously obtained a license for that
purpose from some two of the justices of the Supreme Court,
which license shall constitute the person receiving the same an
attorney and counselor at law, and shall authorize him to
appear in all the courts of record within the state, and there to
laws and customs thereof.
On Mrs. Bradwell's application first coming before the court,
the license was refused, and it was stated as a sufficient reason
that under the decisions of the Supreme Court of Illinois, the
applicant --"as a married woman would be bound neither by
her express contracts nor by those implied contracts which it is
the policy of the law to create between attorney and client."
After the announcement of this decision, Mrs. Bradwell,
admitting that she was a married woman -- though she
expressed her belief that such fact did not appear in the record
-- filed a printed argument in which her right to admission,
notwithstanding that fact, was earnestly and ably maintained.
The court thereupon gave an opinion in writing. Extracts are
here given:
"Our statute provides that no person shall be permitted to
practice as an attorney or counselor at law without having
previously obtained a license for that purpose from two of the
justices of the Supreme Court. By the second section of the
act, it is provided that no person shall be entitled to receive a
license until he shall have obtained a certificate from the court
of some county of his good moral character, and this is the
only express limitation upon the exercise of the power thus
entrusted to this Court. In all other respects it is left to our
discretion to establish the rules by which admission to this
office shall be determined. But this discretion is not an
arbitrary one, and must be held subject to at least two
limitations. One is that the court should establish such terms of
admission as will promote the proper administration of justice;
the second that it should not admit any persons or class of
persons who are not intended by the legislature to be admitted,
even though their exclusion is not expressly required by the
statute."
"The substance of the last limitation is simply that this
important trust reposed in us should be exercised in
conformity with the designs of the power creating it."
"Whether, in the existing social relations between men and
women, it would promote the proper administration of justice,
and the general well being of society, to permit women to
engage in the trial of cases at the bar, is a question opening a
wide field of discussion, upon which it is not necessary for us
to enter. It is sufficient to say that, in our opinion, the other
implied limitation upon our power, to which we have above
referred, must operate to prevent our admitting women to the
office of attorney at law. If we were to admit them, we should
be exercising the authority conferred upon us in a manner
which, we are fully satisfied, was never contemplated by the
legislature."
"It is to be remembered that at the time this statute was
enacted we had, by express provision, adopted the common
law of England, and, with three exceptions, the statutes of that
country passed prior to the fourth year of James the First, so
far as they were applicable to our condition."
"It is to be also remembered that female attorneys at law were
unknown in England, and a proposition that a woman should
enter the courts of Westminster Hall in that capacity, or as a
barrister, would have created hardly less astonishment than
one that she should ascend the bench of bishops, or be elected
to a seat in the House of Commons."
"It is to be further remembered that when our act was passed,
that school of reform which claims for women participation in
the making and administering of the laws had not then arisen,
or, if here and there a writer had advanced such theories, they
were regarded rather as abstract speculations than as an actual
basis for action."
"That God designed the sexes to occupy different spheres of
action, and that it belonged to men to make, apply, and
execute the laws, was regarded as an almost axiomatic truth."
"In view of these facts, we are certainly warranted in saying
that when the legislature gave to this Court the power of
granting licenses to practice law, it was with not the slightest
expectation that this privilege would be extended to women."
The court having thus denied the application, Mrs. Bradwell
brought the case here as within the twenty-fifth section of the
Judiciary Act, or the recent act of February 5, 1867,
amendatory thereto; the exact language of which may be seen
in the Appendix.
MR. JUSTICE MILLER delivered the opinion of the Court.
The record in this case is not very perfect, but it may be fairly
taken that the plaintiff asserted her right to a license on the
grounds, among others, that she was a citizen of the United
States, and that having been a citizen of Vermont at one time,
she was, in the State of Illinois, entitled to any right granted to
citizens of the latter state.
The court having overruled these claims of right founded on
the clauses of the federal Constitution before referred to, those
propositions may be considered as properly before this Court.
As regards the provision of the Constitution that citizens of
each state shall be entitled to all the privileges and immunities
of citizens in the several states, the plaintiff in her affidavit has
stated very clearly a case to which it is inapplicable.
The protection designed by that clause, as has been repeatedly
held, has no application to a citizen of the state whose laws are
complained of. If the plaintiff was a citizen of the State of
Illinois, that provision of the Constitution gave her no
protection against its courts or its legislation.
The plaintiff seems to have seen this difficulty, and attempts to
avoid it by stating that she was born in Vermont.
While she remained in Vermont, that circumstance made her a
citizen of that state. But she states, at the same time, that she is
a citizen of the United States, and that she is now, and has
been for many years past, a resident of Chicago, in the State of
Illinois.
The Fourteenth Amendment declares that citizens of the
United States are citizens of the state within which they reside;
therefore the plaintiff was, at the time of making her
application, a citizen of the United States and a citizen of the
State of Illinois.
We do not here mean to say that there may not be a temporary
residence in one state, with intent to return to another, which
will not create citizenship in the former. But the plaintiff states
nothing to take her case out of the definition of citizenship of a
state as defined by the first section of the Fourteenth
Amendment.
In regard to that amendment counsel for the plaintiff in this
Court truly says that there are certain privileges and
immunities which belong to a citizen of the United States as
such; otherwise it would be nonsense for the Fourteenth
Amendment to prohibit a state from abridging them, and he
proceeds to argue that admission to the bar of a state of a
person who possesses the requisite learning and character is
one of those which a state may not deny.
In this latter proposition we are not able to concur with
counsel. We agree with him that there are privileges and
immunities belonging to citizens of the United States, in that
relation and character, and that it is these and these alone
which a state is forbidden to abridge. But the right to
admission to practice in the courts of a state is not one of
them. This right in no sense depends on citizenship of the
United States. It has not, as far as we know, ever been made in
any state, or in any case, to depend on citizenship at all.
Certainly many prominent and distinguished lawyers have
been admitted to practice, both in the state and federal courts,
who were not citizens of the United States or of any state. But
on whatever basis this right may be placed, so far as it can
have any relation to citizenship at all, it would seem that, as to
the courts of a state, it would relate to citizenship of the state,
and as to federal courts, it would relate to citizenship of the
United States.

The opinion just delivered in the Slaughter-House Cases *
renders elaborate argument in the present case unnecessary,
for, unless we are wholly and radically mistaken in the
principles on which those cases are decided, the right to
control and regulate the granting of license to practice law in
the courts of a state is one of those powers which are not
transferred for its protection to the federal government, and its
exercise is in no manner governed or controlled by citizenship
of the United States in the party seeking such license.
It is unnecessary to repeat the argument on which the
judgment in those cases is founded. It is sufficient to say they
are conclusive of the present case. Judgment affirmed.
MR. JUSTICE BRADLEY:
I concur in the judgment of the Court in this case, by which
the judgment of the Supreme Court of Illinois is affirmed, but
not for the reasons specified in the opinion just read.
The claim of the plaintiff, who is a married woman, to be
admitted to practice as an attorney and counselor at law is
based upon the supposed right of every person, man or
woman, to engage in any lawful employment for a livelihood.
The Supreme Court of Illinois denied the application on the
ground that, by the common law, which is the basis of the laws
of Illinois, only men were admitted to the bar, and the
legislature had not made any change in this respect, but had
simply provided that no person should be admitted to practice
as attorney or counselor without having previously obtained a
license for that purpose from two justices of the Supreme
Court, and that no person should receive a license without first
obtaining a certificate from the court of some county of his
good moral character. In other respects, it was left to the
discretion of the court to establish the rules by which
admission to the profession should be determined. The court,
however, regarded itself as bound by at least two limitations.
One was that it should establish such terms of admission as
would promote the proper administration of justice, and the
other that it should not admit any persons, or class of persons,
not intended by the legislature to be admitted, even though not
expressly excluded by statute. In view of this latter limitation
the court felt compelled to deny the application of females to
be admitted as members of the bar. Being contrary to the rules
of the common law and the usages of Westminster Hall from
time immemorial, it could not be supposed that the legislature
had intended to adopt any different rule.
The claim that under the Fourteenth Amendment of the
Constitution, which declares that no state shall make or
enforce any law which shall abridge the privileges and
immunities of citizens of the United States, the statute law of
Illinois, or the common law prevailing in that state, can no
longer be set up as a barrier against the right of females to
pursue any lawful employment for a livelihood (the practice of
law included), assumes that it is one of the privileges and
immunities of women as citizens to engage in any and every
profession, occupation, or employment in civil life.
It certainly cannot be affirmed, as an historical fact, that this
has ever been established as one of the fundamental privileges
and immunities of the sex. On the contrary, the civil law, as
well as nature herself, has always recognized a wide difference
in the respective spheres and destinies of man and woman.
Man is, or should be, woman's protector and defender. The
natural and proper timidity and delicacy which belongs to the
female sex evidently unfits it for many of the occupations of
civil life. The Constitution of the family organization, which is
founded in the divine ordinance as well as in the nature of
things, indicates the domestic sphere as that which properly
belongs to the domain and functions of womanhood. The
harmony, not to say identity, of interest and views which
belong, or should belong, to the family institution is repugnant
to the idea of a woman adopting a distinct and independent
career from that of her husband. So firmly fixed was this
sentiment in the founders of the common law that it became a
maxim of that system of jurisprudence that a woman had no
legal existence separate from her husband, who was regarded
as her head and representative in the social state, and,
notwithstanding some recent modifications of this civil status,
many of the special rules of law flowing from and dependent
upon this cardinal principle still exist in full force in most
states. One of these is that a married woman is incapable,
without her husband's consent, of making contracts which
shall be binding on her or him. This very incapacity was one
circumstance which the Supreme Court of Illinois deemed
important in rendering a married woman incompetent fully to
perform the duties and trusts that belong to the office of an
attorney and counselor.
It is true that many women are unmarried and not affected by
any of the duties, complications, and incapacities arising out
of the married state, but these are exceptions to the general
rule. The paramount destiny and mission of woman are to
fulfill the noble and benign offices of wife and mother. This is
the law of the Creator. And the rules of civil society must be
adapted to the general constitution of things and cannot be
based upon exceptional cases.
The humane movements of modern society, which have for
their object the multiplication of avenues for woman's
advancement, and of occupations adapted to her condition and
sex, have my heartiest concurrence. But I am not prepared to
say that it is one of her fundamental rights and privileges to be
admitted into every office and position, including those which
require highly special qualifications and demanding special
responsibilities. In the nature of things, it is not every citizen
of every age, sex, and condition that is qualified for every
calling and position. It is the prerogative of the legislator to
prescribe regulations founded on nature, reason, and
experience for the due admission of qualified persons to
professions and callings demanding special skill and
confidence. This fairly belongs to the police power of the
state, and, in my opinion, in view of the peculiar
characteristics, destiny, and mission of woman, it is within the
province of the legislature to ordain what offices, positions,
and callings shall be filled and discharged by men, and shall
receive the benefit of those energies and responsibilities, and
that decision and firmness which are presumed to predominate
in the sterner sex.
For these reasons, I think that the laws of Illinois now
complained of are not obnoxious to the charge of abridging
any of the privileges and immunities of citizens of the United
States.
YICK WO V. HOPKINS
Syllabus
In a suit brought to this court from a State court which
involves the constitutionality of ordinances made by a
municipal corporation in the State, this court will, when
necessary, put its own independent construction upon the
ordinances.
A municipal ordinance to regulate the carrying on of public
laundries within the limits of the municipality violates the
provisions of the Constitution of the United States if it confers
upon the municipal authorities arbitrary power, at their own
will, and without regard to discretion in the legal sense of the
term, to give or withhold consent as to persons or places,
without regard to the competency of the persons applying, or
the propriety of the place selected, for the carrying on of the
business.
An administration of a municipal ordinance for the carrying on
of a lawful business within the corporate limits violates the
provisions of the Constitution of the United States if it makes
arbitrary and unjust discriminations, founded on differences of
race between persons otherwise in similar circumstances.
The guarantees of protection contained in the Fourteenth
Amendment to the Constitution extend to all persons within
the territorial jurisdiction of the United States, without regard
to differences of race, of color, or of nationality.
Those subjects of the Emperor of China who have the right to
temporarily or permanently reside within the United States,
are entitled to enjoy the protection guaranteed by the
Constitution and afforded by the laws.
These two cases were argued as one, and depended upon
precisely the same state of facts; the first coming here upon a
writ of error to the Supreme Court of the State of California,
the second on appeal from the Circuit Court of the United
States for that district. The plaintiff in error, Yick Wo, on
August 4, 1885, petitioned the Supreme Court of California
for a writ of habeas corpus, alleging that he was illegally
deprived of his personal liberty by the defendant as sheriff of
the city and county of San Francisco.
The sheriff made return to the writ that he held the petitioner
in custody by virtue of a sentence of the Police Judges Court,
No. 2, of the city and county of San Francisco, whereby he
was found guilty of a violation of certain ordinances of the
board of supervisors of that county, and adjudged to pay a fine
of $10, and, in default of payment, be imprisoned in the
county jail at the rate of one day for each dollar of fine until
said fine should be satisfied, and a commitment in
consequence of nonpayment of said fine.
The ordinances for the violation of which he had been found
guilty were set out as follows:
Order No. 156, passed May 26, 1880, prescribing the kind of
buildings in which laundries may be located.
"The people of the city and county of San Francisco do ordain
as follows:"
"SEC. 1. It shall be unlawful, from and after the passage of
this order, for any person or persons to establish, maintain, or
carry on a laundry within the corporate limits of the city and
county of San Francisco without having first obtained the
consent of the board of supervisors, except the same be
located in a building constructed either of brick or stone."
"SEC. 2. It shall be unlawful for any person to erect, build, or
maintain, or cause to be erected, built, or maintained, over or
upon the roof of any building now erected or which may
hereafter be erected within the limits of said city and county,
any scaffolding without first obtaining the written permission
of the board of supervisors, which permit shall state fully for
what purpose said scaffolding is to be erected and used, and
such scaffolding shall not be used for any other purpose than
that designated in such permit."
"SEC. 3. Any person who shall violate any of the provisions of
this order shall be deemed guilty of a misdemeanor, and upon
conviction thereof shall be punished by a fine of not more than
one thousand dollars, or by imprisonment in the county jail not
more than six months, or by both such fine and imprisonment.
"
Order No. 1587, passed July 28, 1880, the following section:
"SEC. 68. It shall be unlawful, from and after the passage of
this order, for any person or persons to establish, maintain, or
carry on a laundry within the corporate limits of the city and
county of San Francisco without having first obtained the
consent of the board of supervisors, except the same be
located in a building constructed either of brick or stone."
The following facts were also admitted on the record: that
petitioner is a native of China and came to California in 1861,
and is still a subject of the Emperor of China; that he has been
engaged in the laundry business in the same premises and
building for twenty-two years last past; that he had a license
from the board of fire wardens, dated March 3, 1884, from
which it appeared
"that the above described premises have been inspected by the
board of fire wardens, and upon such inspection said board
found all proper arrangements for carrying on the business;
that the stoves, washing and drying apparatus, and the
appliances for heating smoothing irons are in good condition,
and that their use is not dangerous to the surrounding property
from fire, and that all proper precautions have been taken to
comply with the provisions of order No. 1617, defining 'the
fire limits of the city and county of San Francisco and making
regulations concerning the erection and use of buildings in
said city and county,' and of order No. 1670, 'prohibiting the
kindling, maintenance, and use of open fires in houses;' that he
had a certificate from the health officer that the same premises
had been inspected by him, and that he found that they were
properly and sufficiently drained, and that all proper
arrangements for carrying on the business of a laundry,
without injury to the sanitary condition of the neighborhood,
had been complied with; that the city license of the petitioner
was in force and expired October 1st, 1885, and that the
petitioner applied to the board of supervisors, June 1st, 1885,
for consent of said board to maintain and carry on his laundry,
but that said board, on July 1st, 1885, refused said consent."
It is also admitted to be true, as alleged in the petition, that, on
February 24, 1880, "there were about 320 laundries in the city
and county of San Francisco, of which about 240 were owned
and conducted by subjects of China, and of the whole number,
viz., 320, about 310 were constructed of wood, the same
material that constitutes nine-tenths of the houses in the city of
San Francisco. The capital thus invested by the subjects of
China was not less than two hundred thousand dollars, and
they paid annually for rent, license, taxes, gas, and water about
one hundred and eighty thousand dollars."
It was alleged in the petition, that "your petitioner and more
than one hundred and fifty of his countrymen have been
arrested upon the charge of carrying on business without
having such special consent, while those who are not subjects
of China, and who are conducting eighty odd laundries under
similar conditions, are left unmolested and free to enjoy the
enhanced trade and profits arising from this hurtful and unfair
discrimination. The business of your petitioner, and of those of
his countrymen similarly situated, is greatly impaired, and in
many cases practically ruined, by this system of oppression to
one kind of men and favoritism to all others."
The statement therein contained as to the arrest, &c., was
admitted being true, with the qualification only that the eighty
odd laundries referred to are in wooden buildings without
scaffolds on the roofs.
It was also admitted "that petitioner and 200 of his
countrymen similarly situated petitioned the board of
supervisors for permission to continue their business in the
various houses which they had been occupying and using for
laundries for more than twenty years, and such petitions were
denied, and all the petitions of those who were not Chinese,
with one exception of Mrs. Mary Meagles, were granted."
By section 2 of article I of the Constitution of California, it is
provided that "any county, city town, or township may make
and enforce within its limits all such local, police, sanitary,
and other regulations as are not in conflict with general laws."
By section 74 of the Act of April 19, 1856, usually known as
the consolidation act, the board of supervisors is empowered,
among other things, "to provide by regulation for the
prevention and summary removal of nuisances to public
health, the prevention of contagious diseases; . . . to prohibit
the erection of wooden buildings within any fixed limits where
the streets shall have been established and graded; . . . to
regulate the sale, storage, and use of gunpowder or other
explosive or combustible materials and substances, and make
all needful regulations for protection against fire; to make such
regulations concerning the erection and use of buildings as
may be necessary for the safety of the inhabitants."
The Supreme Court of California, in the opinion pronouncing
the judgment in this case, said: "The board of supervisors,
under the several statutes conferring authority upon them, has
the power to prohibit or regulate all occupations which are
against good morals, contrary to public order and decency, or
dangerous to the public safety. Clothes washing is certainly
not opposed to good morals or subversive of public order or
decency, but, when conducted in given localities, it may be
highly dangerous to the public safety. Of this fact, the
supervisors are made the judges, and, having taken action in
the premises, we do not find that they have prohibited the
establishment of laundries, but that they have, as they well
might do, regulated the places at which they should be
established, the character of the buildings in which they are to
be maintained, etc. The process of washing is not prohibited
by thus regulating the places at which and the surroundings by
which it must be exercised. The order No. 1569 and section 68
of order No. 1587 are not in contravention of common right or
unjust, unequal, partial, or oppressive in such sense as
authorizes us in this proceeding to pronounce them invalid."
After answering the position taken in behalf of the petitioner,
that the ordinances in question had been repealed, the court
added:
"We have not deemed it necessary to discuss the question in
the light of supposed infringement of petitioner's rights under
the Constitution of the United States, for the reason that we
think the principles upon which contention on that head can be
based have in effect been set at rest by the cases of Barbier v.
Connolly, 113 U. S. 27, and Soon Hing v. Crowley, 113 U. S.
703." The writ was accordingly discharged, and the prisoner
remanded.
In the other case, the appellant, Wo Lee, petitioned for his
discharge from an alleged illegal imprisonment upon a state of
facts shown upon the record precisely similar to that in the
case of Yick Wo. In disposing of the application, the learned
Circuit Judge, Sawyer, in his opinion, 26 Fed.Rep. 471, after
quoting the ordinance in question, proceeded at length as
follows:
"Thus, in a territory some ten miles wide by fifteen or more
miles long, much of it still occupied as mere farming and
pasturage lands and much of it unoccupied sand banks, in
many places without a building within a quarter or half a mile
of each other, including the isolated and almost wholly
unoccupied Goat Island, the right to carry on this, when
properly guarded, harmless and necessary occupation, in a
wooden building is not made to depend upon any prescribed
conditions giving a right to anybody complying with them, but
upon the consent or arbitrary will of the board of supervisors.
In three-fourths of the territory covered by the ordinance, there
is no more need of prohibiting or regulating laundries than if
they were located in any portion of the farming regions of the
State. Hitherto, the regulation of laundries has been limited to
the thickly settled portions of the city. Why this unnecessary
extension of the limits affected, if not designed to prevent the
establishment of laundries, after a compulsory removal from
their present locations, within practicable reach of the
customers or their proprietors? And the uncontradicted
petition shows that all Chinese applications are, in fact,
denied, and those of Caucasians granted -- thus, in fact,
making the discriminations in the administration of the
ordinance, which its terms permit. The fact that the right to
give consent is reserved in the ordinance shows that carrying
on the laundry business in wooden buildings is not deemed, of
itself, necessarily dangerous. It must be apparent to every well
informed mind that a fire, properly guarded, for laundry
purposes, in a wooden building, is just as necessary, and no
more dangerous, than a fire for cooking purposes or for
warming a house. If the ordinance under consideration is
valid, then the board of supervisors can pass a valid ordinance
preventing the maintenance, in a wooden building, of a
cooking stove, heating apparatus, or a restaurant, within the
boundaries of the city and county of San Francisco, without
the consent of that body, arbitrarily given or withheld, as their
prejudices or other motives may dictate. If it is competent for
the board of supervisors to pass a valid ordinance prohibiting
the inhabitants of San Francisco from following any ordinary,
proper, and necessary calling within the limits of the city and
county except at its arbitrary and unregulated discretion and
special consent, and it can do so if this ordinance is valid, then
it seems to us that there has been a wide departure from the
principles that have heretofore been supposed to guard and
protect the rights, property, and liberties of the American
people. And if, by an ordinance, general in its terms and form
like the one in question, by reserving an arbitrary discretion in
the enacting body to grant or deny permission to engage in a
proper and necessary calling, a discrimination against any
class can be made in its execution, thereby evading and, in
effect, nullifying the provisions of the National Constitution,
then the insertion of "provisions to guard the rights of every
class and person in that instrument was a vain and futile act.
The effect of the execution of this ordinance in the manner
indicated in the record would seem to be necessarily to close
up the many Chinese laundries now existing, or compel their
owners to pull down their present buildings and reconstruct of
brick or stone, or to drive them outside the city and county of
San Francisco to the adjoining counties, beyond the
convenient reach of customers, either of which results would
be little short of absolute confiscation of the large amount of
property shown to be now, and to have been for a long time,
invested in these occupations. If this would not be depriving
such parties of their property without due process of law, it
would be difficult to say what would effect that prohibited
result. The necessary tendency, if not the specific purpose, of
this ordinance, and of enforcing it in the manner indicated in
the record, is to drive out of business all the numerous small
laundries, especially those owned by Chinese, and give a
monopoly of the business to the large institutions established
and carried on by means of large associated Caucasian capital.
If the facts appearing on the face of the ordinance, on the
petition and return, and admitted in the case and shown by the
notorious public and municipal history of the times indicate a
purpose to drive out the Chinese laundrymen, and not merely
to regulate the business for the public safety, does it not
disclose a case of violation of the provisions of the Fourteenth
Amendment to the National Constitution, and of the treaty
between the United States and China, in more than one
particular? . . . If this means prohibition of the occupation and
destruction of the business and property of the Chinese
laundrymen in San Francisco -- and it seems to us this must be
the effect of executing the ordinance -- and not merely the
proper regulation of the business, then there is discrimination
and a violation of other highly important rights secured by the
Fourteenth Amendment and the treaty. That it does mean
prohibition as to the Chinese it seems to us must be apparent
to every citizen of San Francisco who has been here long
enough to be familiar with the cause of an active and
aggressive branch of public opinion and of public notorious
events. Can a court be blind to what must be necessarily
known to every intelligent person in the State? See Ah Kow v.
Nunan, 5 Sawyer, 552, 560; Sparrow v. Strong, 3 Wall. 97, 70
U. S. 104; Brown v. Piper, 91 U. S. 37, 91 U. S. 42.
But, in deference to the decision of the Supreme Court of
California in the case of Yick Wo, and contrary to his own
opinion as thus expressed, the circuit judge discharged the writ
and remanded the prisoner.
Mr. JUSTICE MATTHEWS delivered the opinion of the
court.
In the case of the petitioner, brought here by writ of error to
the Supreme Court of California, our jurisdiction is limited to
the question whether the plaintiff in error has been denied a
right in violation of the Constitution, laws, or treaties of the
United States. The question whether his imprisonment is
illegal under the constitution and lass of the State is not open
to us. And although that question might have been
consideredin the Circuit Court in the application made to it,
and by this court on appeal from its order, yet judicial
propriety is best consulted by accepting the judgment of the
State court upon the points involved in that inquiry.
That, however, does not preclude this court from putting upon
the ordinances of the supervisors of the county and city of San
Francisco an independent construction, for the determination
of the question whether the proceedings under these
ordinances and in enforcement of them are in conflict with the
Constitution and laws of the United States necessarily involves
the meaning of the ordinance, which, for that purpose, we are
required to ascertain and adjudge.
We are consequently constrained, at the outset, to differ from
the Supreme Court of California upon the real meaning of the
ordinances in question. That court considered these ordinances
as vesting in the board of supervisors a not unusual discretion
in granting or withholding their assent to the use of wooden
buildings as laundries, to be exercised in reference to the
circumstances of each case with a view to the protection of the
public against the dangers of fire. We are not able to concur in
that interpretation of the power conferred upon the
supervisors. There is nothing in the ordinances which points to
such a regulation of the business of keeping and conducting
laundries. They seem intended to confer, and actually do
confer, not a discretion to be exercised upon a consideration of
the circumstances of each case, but a naked and arbitrary
power to give or withhold consent not only as to places, but as
to persons. So that, if an applicant for such consent, being in
every way a competent and qualified person and having
complied with every reasonable condition demanded by any
public interest, should, failing to obtain the requisite consent
of the supervisors to the prosecution of his business, apply for
redress by the judicial process of mandamus to require the
supervisors to consider and act upon his case, it would be a
sufficient answer for them to say that the law had conferred
upon them authority to withhold their assent without reason
and without responsibility. The power given to them is not
confided to their discretion in the legal sense of that term, but
is granted to their mere will. It is purely arbitrary, and
acknowledges neither guidance nor restraint.
This erroneous view of the ordinances in question led the
Supreme Court of California into the further error of holding
that they were justified by the decisions of this court in the
cases of Barbier v. Connolly, 113 U. S. 27, and Soon Hing v.
Crowley, 113 U. S. 703. In both of these cases, the ordinance
involved was simply a prohibition to carry on the washing and
ironing of clothes in public laundries and washhouses within
certain prescribed limits of the city and county of San
Francisco from ten o'clock at night until six o'clock in the
morning of the following day. This provision was held to be
purely a police regulation within the competency of any
municipality possessed of the ordinary powers belonging to
such bodies, a necessary measure of precaution in a city
composed largely of wooden buildings like San Francisco, in
the application of which there was no invidious discrimination
against anyone within the prescribed limits, all persons
engaged in the same business being treated alike, and subject
to the same restrictions and entitled to the same privileges
under similar conditions.
For these reasons, that ordinance was adjudged not to be
within the prohibitions of the Fourteenth Amendment to the
Constitution of the United States, which, it was said in the first
case cited, "undoubtedly intended not only that there should be
no arbitrary deprivation of life or liberty, or arbitrary
spoliation of property, but that equal protection and security
should be given to all under like circumstances in the
enjoyment of their personal and civil rights; that all persons
should be equally entitled to pursue their happiness and
acquire and enjoy property; that they should have like access
to the courts of the country for the protection of their persons
and property, the prevention and redress of wrongs, and the
enforcement of contracts; that no impediment should be
interposed to the pursuits of anyone except as applied to the
same pursuits by others under like circumstances; that no
greater burdens should be laid upon one than are laid upon
others in the same calling and condition; and that, in the
administration of criminal justice no different or higher
punishment should be imposed upon one than such as is
prescribed to all for like offences. . . . Class legislation,
discriminating against some and favoring others, is prohibited,
but legislation which, in carrying out a public purpose, is
limited in its application if, within the sphere of its operation,
it affects alike all persons similarly situated, is not within the
amendment."
The ordinance drawn in question in the present case is of a
very different character. It does not prescribe a rule and
conditions for the regulation of the use of property for laundry
purposes to which all similarly situated may conform. It
allows without restriction the use for such purposes of
buildings of brick or stone, but, as to wooden buildings,
constituting nearly all those in previous use, it divides the
owners or occupiers into two classes, not having respect to
their personal character and qualifications for the business, nor
the situation and nature and adaptation of the buildings
themselves, but merely by an arbitrary line, on one side of
which are those who are permitted to pursue their industry by
the mere will and consent of the supervisors, and on the other
those from whom that consent is withheld at their mere will
and pleasure. And both classes are alike only in this, that they
are tenants at will, under the supervisors, of their means of
living. The ordinance, therefore, also differs from the not
unusual case where discretion is lodged by law in public
officers or bodies to grant or withhold licenses to keep taverns,
or places for the sale of spirituous liquors, and the like, when
one of the conditions is that the applicant shall be a fit person
for the exercise of the privilege, because, in such cases, the
fact of fitness is submitted to the judgment of the officer, and
calls for the exercise of a discretion of a judicial nature.
The rights of the petitioners, as affected by the proceedings of
which they complain, are not less because they are aliens and
subjects of the Emperor of China. By the third article of the
treaty between this Government and that of China, concluded
November 17, 1880, 22 Stat. 827, it is stipulated:
"If Chinese laborers, or Chinese of any other class, now either
permanently or temporarily residing in the territory of the
United States, meet with ill treatment at the hands of any other
persons, the Government of the United States will exert all its
powers to devise measures for their protection, and to secure
to them the same rights, privileges, immunities and
exemptions as may be enjoyed by the citizens or subjects of
the most favored nation, and to which they are entitled by
treaty."
The Fourteenth Amendment to the Constitution is not confined
to the protection of citizens. It says: "Nor shall any State
deprive any person of life, liberty, or property without due
process of law; nor deny to any person within its jurisdiction
the equal protection of the laws."
These provisions are universal in their application to all
persons within the territorial jurisdiction, without regard to
any differences of race, of color, or of nationality, and the
equal protection of the laws is a pledge of the protection of
equal laws. It is accordingly enacted by § 1977 of the Revised
Statutes, that
"all persons within the jurisdiction of the United States shall
have the same right in every State and Territory to make and
enforce contracts, to sue, be parties, give evidence, and to the
full and equal benefit of all laws and proceedings for the
security of persons and property as is enjoyed by white
citizens and shall be subject to like punishment, pains,
penalties, taxes, licenses, and exactions of every kind, and to
no other."
The questions we have to consider and decide in these cases,
therefore, are to be treated as invoking the rights of every
citizen of the United States equally with those of the strangers
and aliens who now invoke the jurisdiction of the court.
It is contended on the part of the petitioners that the
ordinances for violations of which they are severally sentenced
to imprisonment are void on their face as being within the
prohibitions of the Fourteenth Amendment, and, in the
alternative, if not so, that they are void by reason of their
administration, operating unequally so as to punish in the
present petitioners what is permitted to others as lawful,
without any distinction of circumstances -- an unjust and
illegal discrimination, it is claimed, which, though not made
expressly by the ordinances, is made possible by them.
When we consider the nature and the theory of our institutions
of government, the principles upon which they are supposed to
rest, and review the history of their development, we are
constrained to conclude that they do not mean to leave room
for the play and action of purely personal and arbitrary power.
Sovereignty itself is, of course, not subject to law, for it is the
author and source of law; but, in our system, while sovereign
powers are delegated to the agencies of government,
sovereignty itself remains with the people, by whom and for
whom all government exists and acts. And the law is the
definition and limitation of power. It is, indeed, quite true that
there must always be lodged somewhere, and in some person
or body, the authority of final decision, and in many cases of
mere administration, the responsibility is purely political, no
appeal lying except to the ultimate tribunal of the public
judgment, exercised either in the pressure of opinion or by
means of the suffrage. But the fundamental rights to life,
liberty, and the pursuit of happiness, considered as individual
possessions, are secured by those maxims of constitutional law
which are the monuments showing the victorious progress of
the race in securing to men the blessings of civilization under
the reign of just and equal laws, so that, in the famous
language of the Massachusetts Bill of Rights, the government
of the commonwealth "may be a government of laws, and not
of men." For the very idea that one man may be compelled to
hold his life, or the means of living, or any material right
essential to the enjoyment of life at the mere will of another
seems to be intolerable in any country where freedom prevails,
as being the essence of slavery itself.
There are many illustrations that might be given of this truth,
which would make manifest that it was self-evident in the light
of our system of jurisprudence. The case of the political
franchise of voting is one. Though not regarded strictly as a
natural right, but as a privilege merely conceded by society
according to its will under certain conditions, nevertheless it is
regarded as a fundamental political right, because preservative
of all rights.
In reference to that right, it was declared by the Supreme
Judicial Court of Massachusetts, in Capen v. Foster, 12 Pick.
485, 489, in the words of Chief Justice Shaw, "that, in all
cases where the constitution has conferred a political right or
privilege, and where the constitution has not particularly
designated the manner in which that right is to be exercised, it
is clearly within the just and constitutional limits of the
legislative power to adopt any reasonable and uniform
regulations, in regard to the time and mode of exercising that
right, which are designed to secure and facilitate the exercise
of such right, in a prompt, orderly, and convenient manner;"
nevertheless, "such a construction would afford no warrant for
such an exercise of legislative power as, under the pretence
and color of regulating, should subvert or injuriously restrain
the right itself."
It has accordingly been held generally in the States that,
whether the particular provisions of an act of legislation
establishing means for ascertaining the qualifications of those
entitled to vote, and making previous registration in lists of
such, a condition precedent to the exercise of the right were or
were not reasonable regulations, and accordingly valid or void,
was always open to inquiry as a judicial question. See Daggett
v. Hudson, 1 Western Reporter 9, decided by the Supreme
Court of Ohio, where many of the cases are collected; Monroe
v. Collins, 17 Ohio St. 665.
The same principle has been more freely extended to the
quasi-legislative acts of inferior municipal bodies, in respect to
which it is an ancient jurisdiction of judicial tribunals to
pronounce upon the reasonableness and consequent validity of
their by laws. In respect to these, it was the doctrine that every
bylaw must be reasonable, not inconsistent with the charter of
the corporation, nor with any statute of Parliament, nor with
the general principles of the common law of the land,
particularly those having relation to the liberty of the subject
or the rights of private property. Accordingly, in the case of
The State of Ohio ex rel. &c. v. The Cincinnati Gas-Light and
Coke Company, 18 Ohio St. 232, 300, an ordinance of the city
council purporting to fix the price to be charged for gas, under
an authority of law giving discretionary power to do so, was
held to be bad, if passed in bad faith, fixing an unreasonable
price, for the fraudulent purpose of compelling the gas
company to submit to an unfair appraisement of their works.
And a similar question, very pertinent to the one in the present
cases, was decided by the Court of Appeals of Maryland in the
case of the City of Baltimore v. Radecke, 49 Maryland 217. In
that case, the defendant had erected and used a steam engine in
the prosecution of his business as a carpenter and box-maker
in the city of Baltimore, under a permit from the mayor and
city council, which contained a condition that the engine was
"to be removed after six months' notice to that effect from the
mayor." After such notice and refusal to conform to it, a suit
was instituted to recover the penalty provided by the
ordinance, to restrain the prosecution of which a bill in equity
was filed. The court holding the opinion that "there may be a
case in which an ordinance, passed under grants of power like
those we have cited, is so clearly unreasonable, so arbitrary,
oppressive, or partial, as to raise the presumption that the
legislature never intended to confer the power to pass it, and to
justify the courts in interfering and setting it aside as a plain
abuse of authority," it proceeds to speak, with regard to the
ordinance in question, in relation to the use of steam engines,
as follows:
"It does not profess to prescribe regulations for their
construction, location, or use, nor require such precautions and
safeguards to be provided by those who own and use them as
are best calculated to render them less dangerous to life and
property, nor does it restrain their use in box factories and
other similar establishments within certain defined limits, nor
in any other way attempt to promote their safety and security
without destroying their usefulness. But it commits to the
unrestrained will of a single public officer the power to notify
every person who now employs a steam engine in the
prosecution of any business in the city of Baltimore to cease to
do so, and, by providing compulsory fines for every day's
disobedience of such notice and order of removal, renders his
power over the use of steam in that city practically absolute, so
that he may prohibit its use altogether. But if he should not
choose to do this, but only to act in particular cases, there is
nothing in the ordinance to guide or control his action. It lays
down no rules by which its impartial execution can be secured
or partiality and oppression prevented. It is clear that giving
and enforcing these notices may, and quite likely will, bring
ruin to the business of those against whom they are directed,
while others, from whom they are withheld, may be actually
benefited by what is thus done to their neighbors; and, when
we remember that this action or nonaction may proceed from
emnity or prejudice, from partisan zeal or animosity, from
favoritism and other improper influences and motives easy of
concealment and difficult to be detected and exposed, it
becomes unnecessary to suggest or to comment upon the
injustice capable of being brought under cover of such a
power, for that becomes apparent to everyone who gives to the
subject a moment's consideration. In fact, an ordinance which
clothes a single individual with such power hardly falls within
the domain of law, and we are constrained to pronounce it
inoperative and void."
This conclusion, and the reasoning on which it is based, are
deductions from the face of the ordinance, as to its necessary
tendency and ultimate actual operation. In the present cases,
we are not obliged to reason from the probable to the actual,
and pass upon the validity of the ordinances complained of, as
tried merely by the opportunities which their terms afford, of
unequal and unjust discrimination in their administration. For
the cases present the ordinances in actual operation, and the
facts shown establish an administration directed so exclusively
against a particular class of persons as to warrant and require
the conclusion that, whatever may have been the intent of the
ordinances as adopted, they are applied by the public
authorities charged with their administration, and thus
representing the State itself, with a mind so unequal and
oppressive as to amount to a practical denial by the State of
that equal protection of the laws which is secured to the
petitioners, as to all other persons, by the broad and benign
provisions of the Fourteenth Amendment to the Constitution
of the United States. Though the law itself be fair on its face
and impartial in appearance, yet, if it is applied and
administered by public authority with an evil eye and an
unequal hand, so as practically to make unjust and illegal
discriminations between persons in similar circumstances,
material to their rights, the denial of equal justice is still within
the prohibition of the Constitution. This principle of
interpretation has been sanctioned by this court in Henderson
v. Mayor of New York, 92 U. S. 259; Chy Lung v. Freeman,
92 U. S. 275; Ex parte Virginia, 100 U. S. 339; Neal v.
Delaware, 103 U. S. 370, and SSoon Hing v. Crowley, 113 U.
S. 703.
The present cases, as shown by the facts disclosed in the
record, are within this class. It appears that both petitioners
have complied with every requisite deemed by the law or by
the public officers charged with its administration necessary
for the protection of neighboring property from fire or as a
precaution against injury to the public health. No reason
whatever, except the will of the supervisors, is assigned why
they should not be permitted to carry on, in the accustomed
manner, their harmless and useful occupation, on which they
depend for a livelihood. And while this consent of the
supervisors is withheld from them and from two hundred
others who have also petitioned, all of whom happen to be
Chinese subjects, eighty others, not Chinese subjects, are
permitted to carry on the same business under similar
conditions. The fact of this discrimination is admitted. No
reason for it is shown, and the conclusion cannot be resisted
that no reason for it exists except hostility to the race and
nationality to which the petitioners belong, and which, in the
eye of the law, is not justified. The discrimination is, therefore,
illegal, and the public administration which enforces it is a
denial of the equal protection of the laws and a violation of the
Fourteenth Amendment of the Constitution. The imprisonment
of the petitioners is, therefore, illegal, and they must be
discharged. To this end, The judgment of the Supreme Court
of California in the case of Yick Wo, and that of the Circuit
Court of the United States for the District of California in the
case of Wo Lee, are severally reversed, and the cases
remanded, each to the proper court, with directions to
discharge the petitioners from custody and imprisonment.
PLESSY V. FERGUSON
Plessy v. Ferguson, case in which the U.S. Supreme Court, on
May 18, 1896, by a seven-to-one majority (one justice did not
participate), advanced the controversial “separate but equal”
doctrine for assessing the constitutionality of racial
segregation laws. Plessy v. Ferguson was the first major
inquiry into the meaning of the Fourteenth Amendment’s
(1868) equal-protection clause, which prohibits the states from
denying “equal protection of the laws” to any person within
their jurisdictions. Although the majority opinion did not
contain the phrase “separate but equal,” it gave constitutional
sanction to laws designed to achieve racial segregation by
means of separate and supposedly equal public facilities and
services for African Americans and whites. It served as a
controlling judicial precedent until it was overturned by the
Supreme Court in Brown v. Board of Education of Topeka
(1954).
The case originated in 1892 as a challenge to Louisiana’s
Separate Car Act (1890). The law required that all railroads
operating in the state provide “equal but separate
accommodations” for white and African American passengers
and prohibited passengers from entering accommodations
other than those to which they had been assigned on the basis
of their race. In 1891 a group of Creole professionals in New
Orleans formed the Citizens’ Committee to Test the
Constitutionality of the Separate Car Law. They hired Albion
Tourgée, a Reconstruction-era judge and social reformer, as
their legal counsel. As plaintiff in the test case the committee
chose a person of mixed race in order to support its contention
that the law could not be consistently applied, because it failed
to define the white and “coloured” races. Homer Plessy, who
was seven-eighths white and one-eighth African American,
purchased a rail ticket for travel within Louisiana and took a
seat in a car reserved for white passengers. (The state Supreme
Court had ruled earlier that the law could not be applied to
interstate travel.) After refusing to move to a car for African
Americans, he was arrested and charged with violating the
Separate Car Act. At Plessy’s trial in U.S. District Court,
Judge John H. Ferguson dismissed his contention that the act
was unconstitutional. After the state Supreme Court affirmed
the district court’s ruling, the U.S. Supreme Court granted
certiorari, and oral arguments were heard on April 13, 1896.
The court rendered its decision one month later, on May 18.
Majority Opinion
Writing for the majority, Associate Justice Henry Billings
Brown rejected Plessy’s arguments that the act violated the
Thirteenth Amendment (1865) to the U.S. Constitution, which
prohibited slavery, and the Fourteenth Amendment, which
granted full and equal rights of citizenship to African
Americans. The Separate Car Act did not conflict with the
Thirteenth Amendment, according to Brown, because it did
not reestablish slavery or constitute a “badge” of slavery or
servitude. In reaching this conclusion he relied on the Supreme
Court’s ruling in the Civil Rights Cases (1883), which found
that racial discrimination against African Americans in inns,
public conveyances, and places of public amusement “imposes
no badge of slavery or involuntary servitude…but at most,
infringes rights which are protected from State aggression by
the XIVth Amendment.”
Yet the act did not conflict with the Fourteenth Amendment
either, Brown argued, because that amendment was intended
to secure only the legal equality of African Americans and
whites, not their social equality. Legal equality was adequately
respected in the act because the accommodations provided for
each race were required to be equal and because the racial
segregation of passengers did not by itself imply the legal
inferiority of either race—a conclusion supported, he
reasoned, by numerous state-court decisions that had affirmed
the constitutionality of laws establishing separate public
schools for white and African American children. In contrast,
social equality, which would entail the “commingling” of the
races in public conveyances and elsewhere, did not then exist
and could not be legally created: “If one race be inferior to the
other socially, the Constitution of the United States cannot put
them upon the same plane.” In response to Plessy’s
comparison of the Separate Car Act to hypothetical statutes
requiring African Americans and whites to walk on different
sides of the street or to live in differently coloured houses,
Brown responded that the Separate Car Act was intended to
preserve “public peace and good order” and was therefore a
“reasonable” exercise of the legislature’s police power.
Dissenting Opinion
In his lone dissenting opinion, which would become a classic
of American civil rights jurisprudence, Associate Justice John
Marshall Harlan insisted that the court had ignored the
obvious purpose of the Separate Car Act, which was, “under
the guise of giving equal accommodation for whites and
blacks, to compel the latter to keep to themselves while
traveling in railroad passenger coaches.” Because it
presupposed—and was universally understood to presuppose
—the inferiority of African Americans, the act imposed a
badge of servitude upon them in violation of the Thirteenth
Amendment, according to Harlan. The effect of the law, he
argued, was to interfere with the personal liberty and freedom
of movement of both African Americans and whites. Because
it thus attempted to regulate the civil rights of citizens on the
arbitrary basis of their race, the act was repugnant to the
principle of legal equality underlying the Fourteenth
Amendment’s equal-protection clause. “Our Constitution is
color-blind,” Harlan wrote, and neither knows nor tolerates
classes among citizens. In respect of civil rights, all citizens
are equal before the law. The humblest is the peer of the most
powerful. The law regards man as man, and takes no account
of his surroundings or of his color when his civil rights as
guaranteed by the supreme law of the land are involved.
He concluded that “in my opinion, the judgment this day
rendered will, in time, prove to be quite as pernicious as the
decision made by this tribunal in the Dred Scott Case” (1857),
which had declared (in an opinion written by Chief Justice
Roger B. Taney) that African Americans were not entitled to
the rights of U.S. citizenship.
KOREMATSU V. UNITED STATES
Syllabus
1. Civilian Exclusion Order No. 34 which, during a state of
war with Japan and as a protection against espionage and
sabotage, was promulgated by the Commanding General of
the Western Defense Command under authority of Executive
Order No. 9066 and the Act of March 21, 1942, and which
directed the exclusion after May 9, 1942, from a described
West Coast military area of all persons of Japanese ancestry,
held constitutional as of the time it was made and when the
petitioner -- an American citizen of Japanese descent whose
home was in the described area -- violated it.
2. The provisions of other orders requiring persons of Japanese
ancestry to report to assembly centers and providing for the
detention of such persons in assembly and relocation centers
were separate, and their validity is not in issue in this
proceeding.
3. Even though evacuation and detention in the assembly
center were inseparable, the order under which the petitioner
was convicted was nevertheless valid. P. 323 U. S. 223.
MR. JUSTICE BLACK delivered the opinion of the Court.
The petitioner, an American citizen of Japanese descent, was
convicted in a federal district court for remaining in San
Leandro, California, a "Military Area," contrary to Civilian
Exclusion Order No. 34 of the Commanding General of the
Western Command, U.S. Army, which directed that, after May
9, 1942, all persons of Japanese ancestry should be excluded
from that area. No question was raised as to petitioner's loyalty
to the United States. The Circuit Court of Appeals affirmed,
[Footnote 1] and the importance of the constitutional question
involved caused us to grant certiorari.
It should be noted, to begin with, that all legal restrictions
which curtail the civil rights of a single racial group are
immediately suspect. That is not to say that all such
restrictions are unconstitutional. It is to say that courts must
subject them to the most rigid scrutiny. Pressing public
necessity may sometimes justify the existence of such
restrictions; racial antagonism never can.
In the instant case, prosecution of the petitioner was begun by
information charging violation of an Act of Congress, of
March 21, 1942, 56 Stat. 173, which provides that ". . .
whoever shall enter, remain in, leave, or commit any act in any
military area or military zone prescribed, under the authority
of an Executive order of the President, by the Secretary of
War, or by any military commander designated by the
Secretary of War, contrary to the restrictions applicable to any
such area or zone or contrary to the order of the Secretary of
War or any such military commander, shall, if it appears that
he knew or should have known of the existence and extent of
the restrictions or order and that his act was in violation
thereof, be guilty of a misdemeanor and upon conviction shall
be liable to a fine of not to exceed $5,000 or to imprisonment
for not more than one year, or both, for each offense."
Exclusion Order No. 34, which the petitioner knowingly and
admittedly violated, was one of a number of military orders
and proclamations, all of which were substantially based upon
Executive Order No. 9066, 7 Fed.Reg. 1407. That order,
issued after we were at war with Japan, declared that
"the successful prosecution of the war requires every possible
protection against espionage and against sabotage to national
defense material, national defense premises, and national
defense utilities. . . ."
One of the series of orders and proclamations, a curfew order,
which, like the exclusion order here, was promulgated
pursuant to Executive Order 9066, subjected all persons of
Japanese ancestry in prescribed West Coast military areas to
remain in their residences from 8 p.m. to 6 a.m. As is the case
with the exclusion order here, that prior curfew order was
designed as a "protection against espionage and against
sabotage." In Hirabayashi v. United States, 320 U. S. 81, we
sustained a conviction obtained for violation of the curfew
order. The Hirabayashi conviction and this one thus rest on the
same 1942 Congressional Act and the same basic executive
and military orders, all of which orders were aimed at the twin
dangers of espionage and sabotage.
The 1942 Act was attacked in the Hirabayashi case as an
unconstitutional delegation of power; it was contended that the
curfew order and other orders on which it rested were beyond
the war powers of the Congress, the military authorities, and
of the President, as Commander in Chief of the Army, and,
finally, that to apply the curfew order against none but citizens
of Japanese ancestry amounted to a constitutionally prohibited
discrimination solely on account of race. To these questions,
we gave the serious consideration which their importance
justified. We upheld the curfew order as an exercise of the
power of the government to take steps necessary to prevent
espionage and sabotage in an area threatened by Japanese
attack.
In the light of the principles we announced in the Hirabayashi
case, we are unable to conclude that it was beyond the war
power of Congress and the Executive to exclude those of
Japanese ancestry from the West Coast war area at the time
they did. True, exclusion from the area in which one's home is
located is a far greater deprivation than constant confinement
to the home from 8 p.m. to 6 a.m. Nothing short of
apprehension by the proper military authorities of the gravest
imminent danger to the public safety can constitutionally
justify either. But exclusion from a threatened area, no less
than curfew, has a definite and close relationship to the
prevention of espionage and sabotage. The military
authorities, charged with the primary responsibility of
defending our shores, concluded that curfew provided
inadequate protection and ordered exclusion. They did so, as
pointed out in our Hirabayashi opinion, in accordance with
Congressional authority to the military to say who should, and
who should not, remain in the threatened areas.
In this case, the petitioner challenges the assumptions upon
which we rested our conclusions in the Hirabayashi case. He
also urges that, by May, 1942, when Order No. 34 was
promulgated, all danger of Japanese invasion of the West
Coast had disappeared. After careful consideration of these
contentions, we are compelled to reject them.
Here, as in the Hirabayashi case, supra, at p. 320 U. S. 99,
". . . we cannot reject as unfounded the judgment of the
military authorities and of Congress that there were disloyal
members of that population, whose number and strength could
not be precisely and quickly ascertained. We cannot say that
the war-making branches of the Government did not have
ground for believing that, in a critical hour, such persons could
not readily be isolated and separately dealt with, and
constituted a menace to the national defense and safety which
demanded that prompt and adequate measures be taken to
guard against it."
Like curfew, exclusion of those of Japanese origin was
deemed necessary because of the presence of an unascertained
number of disloyal members of the group, most of whom we
have no doubt were loyal to this country. It was because we
could not reject the finding of the military authorities that it
was impossible to bring about an immediate segregation of the
disloyal from the loyal that we sustained the validity of the
curfew order as applying to the whole group. In the instant
case, temporary exclusion of the entire group was rested by
the military on the same ground. The judgment that exclusion
of the whole group was, for the same reason, a military
imperative answers the contention that the exclusion was in
the nature of group punishment based on antagonism to those
of Japanese origin. That there were members of the group who
retained loyalties to Japan has been confirmed by
investigations made subsequent to the exclusion.
Approximately five thousand American citizens of Japanese
ancestry refused to swear unqualified allegiance to the United
States and to renounce allegiance to the Japanese Emperor,
and several thousand evacuees requested repatriation to Japan.
[Footnote 2]
We uphold the exclusion order as of the time it was made and
when the petitioner violated it. Cf. Chastleton Corporation v.
Sinclair, 264 U. S. 543, 264 U. S. 547; Block v. Hirsh, 256 U.
S. 135, 256 U. S. 155. In doing so, we are not unmindful of the
hardships imposed by it upon a large group of American
citizens. Cf. Ex parte Kawato, 317 U. S. 69, 317 U. S. 73. But
hardships are part of war, and war is an aggregation of
hardships. All citizens alike, both in and out of uniform, feel
the impact of war in greater or lesser measure. Citizenship has
its responsibilities, as well as its privileges, and, in time of
war, the burden is always heavier. Compulsory exclusion of
large groups of citizens from their homes, except under
circumstances of direst emergency and peril, is inconsistent
with our basic governmental institutions. But when, under
conditions of modern warfare, our shores are threatened by
hostile forces, the power to protect must be commensurate
with the threatened danger.
It is argued that, on May 30, 1942, the date the petitioner was
charged with remaining in the prohibited area, there were
conflicting orders outstanding, forbidding him both to leave
the area and to remain there. Of course, a person cannot be
convicted for doing the very thing which it is a crime to fail to
do. But the outstanding orders here contained no such
contradictory commands.
There was an order issued March 27, 1942, which prohibited
petitioner and others of Japanese ancestry from leaving the
area, but its effect was specifically limited in time "until and to
the extent that a future proclamation or order should so permit
or direct." 7 Fed.Reg. 2601. That "future order," the one for
violation of which petitioner was convicted, was issued May
3, 1942, and it did "direct" exclusion from the area of all
persons of Japanese ancestry before 12 o'clock noon, May 9;
furthermore, it contained a warning that all such persons found
in the prohibited area would be liable to punishment under the
March 21, 1942, Act of Congress. Consequently, the only
order in effect touching the petitioner's being in the area on
May 30, 1942, the date specified in the information against
him, was the May 3 order which prohibited his remaining
there, and it was that same order which he stipulated in his
trial that he had violated, knowing of its existence. There is
therefore no basis for the argument that, on May 30, 1942, he
was subject to punishment, under the March 27 and May 3
orders, whether he remained in or left the area.
It does appear, however, that, on May 9, the effective date of
the exclusion order, the military authorities had
already determined that the evacuation should be effected by
assembling together and placing under guard all those of
Japanese ancestry at central points, designated as "assembly
centers," in order
"to insure the orderly evacuation and resettlement of Japanese
voluntarily migrating from Military Area No. 1, to restrict and
regulate such migration."
Public Proclamation No. 4, 7 Fed.Reg. 2601. And on May 19,
1942, eleven days before the time petitioner was charged with
unlawfully remaining in the area, Civilian Restrictive Order
No. 1, 8 Fed.Reg. 982, provided for detention of those of
Japanese ancestry in assembly or relocation centers. It is now
argued that the validity of the exclusion order cannot be
considered apart from the orders requiring him, after departure
from the area, to report and to remain in an assembly or
relocation center. The contention is that we must treat these
separate orders as one and inseparable; that, for this reason, if
detention in the assembly or relocation center would have
illegally deprived the petitioner of his liberty, the exclusion
order and his conviction under it cannot stand.
We are thus being asked to pass at this time upon the whole
subsequent detention program in both assembly and relocation
centers, although the only issues framed at the trial related to
petitioner's remaining in the prohibited area in violation of the
exclusion order. Had petitioner here left the prohibited area
and gone to an assembly center, we cannot say, either as a
matter of fact or law, that his presence in that center would
have resulted in his detention in a relocation center. Some who
did report to the assembly center were not sent to relocation
centers, but were released upon condition that they remain
outside the prohibited zone until the military orders were
modified or lifted. This illustrates that they pose different
problems, and may be governed by different principles. T he
lawfulness of one does not necessarily determine the
lawfulness of the others. This is made clear when we analyze
the requirements of the separate provisions of the separate
orders. These separate requirements were that those of
Japanese ancestry (1) depart from the area; (2) report to and
temporarily remain in an assembly center; (3) go under
military control to a relocation center, there to remain for an
indeterminate period until released conditionally or
unconditionally by the military authorities. Each of these
requirements, it will be noted, imposed distinct duties in
connection with the separate steps in a complete evacuation
program. Had Congress directly incorporated into one Act the
language of these separate orders, and provided sanctions for
their violations, disobedience of any one would have
constituted a separate offense. Cf. Blockburger v. United
States, 284 U. S. 299, 284 U. S. 304. There is no reason why
violations of these orders, insofar as they were promulgated
pursuant to Congressional enactment, should not be treated as
separate offenses.
The Endo case, post, p. 323 U. S. 283, graphically illustrates
the difference between the validity of an order to exclude and
the validity of a detention order after exclusion has been
effected.
Since the petitioner has not been convicted of failing to report
or to remain in an assembly or relocation center, we cannot in
this case determine the validity of those separate provisions of
the order. It is sufficient here for us to pass upon the order
which petitioner violated. To do more would be to go beyond
the issues raised, and to decide momentous questions not
contained within the framework of the pleadings or the
evidence in this case. It will be time enough to decide the
serious constitutional issues which petitioner seeks to raise
when an assembly or relocation order is applied or is certain to
be applied to him, and we have its terms before us.
Some of the members of the Court are of the view that
evacuation and detention in an Assembly Center were
inseparable. After May 3, 1942, the date of Exclusion
Order No. 34, Korematsu was under compulsion to leave the
area not as he would choose, but via an Assembly Center. The
Assembly Center was conceived as a part of the machinery for
group evacuation. The power to exclude includes the power to
do it by force if necessary. And any forcible measure must
necessarily entail some degree of detention or restraint,
whatever method of removal is selected. But whichever view
is taken, it results in holding that the order under which
petitioner was convicted was valid.
It is said that we are dealing here with the case of
imprisonment of a citizen in a concentration camp solely
because of his ancestry, without evidence or inquiry
concerning his loyalty and good disposition towards the
United States. Our task would be simple, our duty clear, were
this a case involving the imprisonment of a loyal citizen in a
concentration camp because of racial prejudice. Regardless of
the true nature of the assembly and relocation centers -- and
we deem it unjustifiable to call them concentration camps,
with all the ugly connotations that term implies -- we are
dealing specifically with nothing but an exclusion order. To
cast this case into outlines of racial prejudice, without
reference to the real military dangers which were presented,
merely confuses the issue. Korematsu was not excluded from
the Military Area because of hostility to him or his race. He
was excluded because we are at war with the Japanese Empire,
because the properly constituted military authorities feared an
invasion of our West Coast and felt constrained to take proper
security measures, because they decided that the military
urgency of the situation demanded that all citizens of Japanese
ancestry be segregated from the West Coast temporarily, and,
finally, because Congress, reposing its confidence in this time
of war in our military leaders -- as inevitably it must --
determined that they should have the power to do just this.
There was evidence of disloyalty on the part of some, the
military authorities considered that the need for action was
great, and time was short. We cannot -- by availing ourselves
of the calm perspective of hindsight -- now say that, at that
time, these actions were unjustified. Affirmed.
GOESAERT V. CLEARY
Syllabus
Mich.Stat.Ann. (Cum.Supp. 1947) § 18.990(1), which in effect
forbids any female to act as a bartender unless she be "the wife
or daughter of the male owner" of a licensed liquor
establishment, does not violate the Equal Protection Clause of
the Fourteenth Amendment. Pp. 335 U. S. 465-467.
(a) The classification which Michigan has made as between
wives and daughters of owners of liquor establishments and
wives and daughters of nonowners is not without a reasonable
basis. Pp. 335 U. S. 465-467.
(b) Nor is the statute rendered unconstitutional because
Michigan allows women to serve as waitresses where liquor is
dispensed. P. 335 U. S. 467.
A three-judge federal district court denied an injunction to
restrain enforcement of Mich.Stat.Ann. (Cum.Supp. 1947)
18.990(1), in effect forbidding any female to act as a bartender
unless she be "the wife or daughter of the male owner" of a
licensed liquor establishment. 74 F.Supp. 735. On appeal to
this Court, affirmed.
MR. JUSTICE FRANKFURTER delivered the opinion of the
Court.
As part of the Michigan system for controlling the sale of
liquor, bartenders are required to be licensed in all cities
having a population of 50,000, or more, but no female may be
so licensed unless she be "the wife or daughter of the male
owner" of a licensed liquor establishment. Section 19a of Act
133 of the Public Acts of Michigan 1945, Mich.Stat.Ann. §
18,990(1), Cum.Supp. 1947. The case is here on direct appeal
from an order of the District Court of three judges, convened
under § 266 of the old Judicial Code, now 28 U.S.C. § 2284,
denying an injunction to restrain the enforcement of the
Michigan law. The claim, denied below, one judge dissenting,
74 F.Supp. 735, and renewed here, is that Michigan cannot
forbid females generally from being barmaids and at the same
time make an exception in favor of the wives and daughters of
the owners of liquor establishments. Beguiling as the subject
is, it need not detain us long. To ask whether or not the Equal
Protection of the Laws Clause of the Fourteenth Amendment
barred Michigan from making the classification the State has
made between wives and daughters of owners of liquor places
and wives and daughters of nonowners, is one of those rare
instances where to state the question is in effect to answer it.
We are, to be sure, dealing with a historic calling. We meet the
alewife, sprightly and ribald, in Shakespeare, but, centuries
before him, she played a role in the social life of England. See,
e.g., Jusserand, English Wayfaring Life, 133, 134, 136-37
(1889). The Fourteenth Amendment did not tear history up by
the roots, and the regulation of the liquor traffic is one of the
oldest and most untrammeled of legislative powers. Michigan
could, beyond question, forbid all women from working
behind a bar. This is so despite the vast changes in the social
and legal position of women. The fact that women may now
have achieved the virtues that men have long claimed as their
prerogatives, and now indulge in vices that men have long
practiced, does not preclude the States from drawing a sharp
line between the sexes, certainly in such matters as the
regulation of the liquor traffic. See the Twenty-First
Amendment and Carter v. Virginia, 321 U. S. 131. The
Constitution does not require legislatures to reflect
sociological insight, or shifting social standards, any more
than it requires them to keep abreast of the latest scientific
standards.
While Michigan may deny to all women opportunities for
bartending, Michigan cannot play favorites among women
without rhyme or reasons. The Constitution in enjoining the
equal protection of the laws upon States precludes irrational
discrimination as between persons or groups of persons in the
incidence of a law. But the Constitution does not require
situations "which are different in fact, or opinion to be treated
in law as though they were the same." Tigner v. Texas, 310 U.
S. 141, 310 U. S. 147. Since bartending by women may, in the
allowable legislative judgment, give rise to moral and social
problems against which it may devise preventive measures,
the legislature need not go to the full length of prohibition if it
believes that, as to a defined group of females, other factors
are operating which either eliminate or reduce the moral and
social problems otherwise calling for prohibition. Michigan
evidently believes that the oversight assured through
ownership of a bar by a barmaid's husband or father minimizes
hazards that may confront a barmaid without such protecting
oversight. This Court is certainly not in a position to gainsay
such belief by the Michigan legislature. If it is entertainable, as
we think it is, Michigan has not violated its duty to afford
equal protection of its laws. We cannot cross-examine, either
actually or argumentatively, the mind of Michigan legislators,
nor question their motives. Since the line they have drawn is
not without a basis in reason, we cannot give ear to the
suggestion that the real impulse behind this legislation was an
unchivalrous desire of male bartenders to try to monopolize
the calling.
It would be an idle parade of familiar learning to review the
multitudinous cases in which the constitutional assurance of
the equal protection of the laws has been applied. The
generalities on this subject are not in dispute; their application
turns peculiarly on the particular circumstances of a case.
Thus, it would be a sterile inquiry to consider whether this
case is nearer to the nepotic pilotage law of Louisiana,
sustained in Kotch v. River Port Pilot Commissioners, 330 U.
S. 552, than it is to the Oklahoma sterilization law, which fell
in Skinner v. Oklahoma, 316 U. S. 535. Suffice it to say that
"A statute is not invalid under the Constitution because it
might have gone farther than it did, or because it may not
succeed in bringing about the result that it tends to produce."
Nor is it unconstitutional for Michigan to withdraw from
women the occupation of bartending because it allows women
to serve as waitresses where liquor is dispensed. The District
Court has sufficiently indicated the reasons that may have
influenced the legislature in allowing women to be waitresses
in a liquor establishment over which a man's ownership
provides control. Nothing need be added to what was said
below as to the other grounds on which the Michigan law was
assailed. Judgment affirmed.
While the equal protection clause does not require a legislature
to achieve "abstract symmetry" with "mathematical nicety,"
[Footnote 2] that clause does require lawmakers to refrain
from invidious distinctions of the sort drawn by the statute
challenged in this case. [Footnote 3]
The statute arbitrarily discriminates between male and female
owners of liquor establishments. A male owner, although he
himself is always absent from his bar, may employ his wife
and daughter as barmaids. A female owner may neither work
as a barmaid herself nor employ her daughter in that position,
even if a man is always present in the establishment to keep
order. This inevitable result of the classification belies the
assumption that the statute was motivated by a legislative
solicitude for the moral and physical wellbeing of women
who, but for the law, would be employed as barmaids. Since
there could be no other conceivable justification for such
discrimination against women owners of liquor
establishments, the statute should be held invalid as a denial of
equal protection.
BROWN V. BOARD OF EDUCATION OF TOPEKA
These cases come to us from the States of Kansas, South
Carolina, Virginia, and Delaware. They are premised on
different facts and different local conditions, but a common
legal question justifies their consideration together in this
consolidated opinion.
In each of the cases, minors of the Negro race, through their
legal representatives, seek the aid of the courts in obtaining
admission to the public schools of their community on a
nonsegregated basis. In each instance,
they had been denied admission to schools attended by white
children under laws requiring or permitting segregation
according to race. This segregation was alleged to deprive the
plaintiffs of the equal protection of the laws under the
Fourteenth Amendment. In each of the cases other than the
Delaware case, a three-judge federal district court denied relief
to the plaintiffs on the so-called "separate but equal" doctrine
announced by this Court in Plessy v. Fergson, 163 U. S. 537.
Under that doctrine, equality of treatment is accorded when
the races are provided substantially equal facilities, even
though these facilities be separate. In the Delaware case, the
Supreme Court of Delaware adhered to that doctrine, but
ordered that the plaintiffs be admitted to the white schools
because of their superiority to the Negro schools.
The plaintiffs contend that segregated public schools are not
"equal" and cannot be made "equal," and that hence they are
deprived of the equal protection of the laws. Because of the
obvious importance of the question presented, the Court took
jurisdiction. [Footnote 2] Argument was heard in the 1952
Term, and reargument was heard this Term on certain
questions propounded by the Court.
Reargument was largely devoted to the circumstances
surrounding the adoption of the Fourteenth Amendment in
1868. It covered exhaustively consideration of the Amendment
in Congress, ratification by the states, then-existing practices
in racial segregation, and the views of proponents and
opponents of the Amendment. This discussion and our own
investigation convince us that, although these sources cast
some light, it is not enough to resolve the problem with which
we are faced. At best, they are inconclusive. The most avid
proponents of the post-War Amendments undoubtedly
intended them to remove all legal distinctions among "all
persons born or naturalized in the United States." Their
opponents, just as certainly, were antagonistic to both the
letter and the spirit of the Amendments and wished them to
have the most limited effect. What others in Congress and the
state legislatures had in mind cannot be determined with any
degree of certainty.
An additional reason for the inconclusive nature of the
Amendment's history with respect to segregated schools is the
status of public education at that time. [Footnote 4] In the
South, the movement toward free common schools, supported
by general taxation, had not yet taken hold. Education of white
children was largely in the hands of private groups. Education
of Negroes was almost nonexistent, and practically all of the
race were illiterate. In fact, any education of Negroes was
forbidden by law in some states. Today, in contrast, many
Negroes have achieved outstanding success in the arts and
sciences, as well as in the business and professional world. It
is true that public school education at the time of the
Amendment had advanced further in the North, but the effect
of the Amendment on Northern States was generally ignored
in the congressional debates. Even in the North, the conditions
of public education did not approximate those existing today.
The curriculum was usually rudimentary; ungraded schools
were common in rural areas; the school term was but three
months a year in many states, and compulsory school
attendance was virtually unknown. As a consequence, it is not
surprising that there should be so little in the history of the
Fourteenth Amendment relating to its intended effect on
public education.
In the first cases in this Court construing the Fourteenth
Amendment, decided shortly after its adoption, the Court
interpreted it as proscribing all state-imposed discriminations
against the Negro race.
The doctrine of "separate but equal" did not make its
appearance in this Court until 1896 in the case of Plessy v.
Ferguson, supra, involving not education but transportation.
[Footnote 6] American courts have since labored with the
doctrine for over half a century. In this Court, there have been
six cases involving the "separate but equal" doctrine in the
field of public education. [Footnote 7] In Cumming v. County
Board of Education, 175 U. S. 528, and Gong Lum v. Rice,
275 U. S. 78, the validity of the doctrine itself was not
challenged. [Footnote 8] In more recent cases, all on the
graduate school level, inequality was found in that specific
benefits enjoyed by white students were denied to Negro
students of the same educational qualifications. Missouri ex
rel. Gaines v. Canada, 305 U. S. 337; Sipuel v. Oklahoma, 332
U. S. 631; Sweatt v. Painter, 339 U. S. 629; McLaurin v.
Oklahoma State Regents, 339 U. S. 637. In none of these cases
was it necessary to reexamine the doctrine to grant relief to the
Negro plaintiff. And in Sweatt v. Painter, supra, the Court
expressly reserved decision on the question whether Plessy v.
Ferguson should be held inapplicable to public education.
In the instant cases, that question is directly presented. Here,
unlike Sweatt v. Painter, there are findings below that the
Negro and white schools involved have been equalized, or are
being equalized, with respect to buildings, curricula,
qualifications and salaries of teachers, and other "tangible"
factors. [Footnote 9] Our decision, therefore, cannot turn on
merely a comparison of these tangible factors in the Negro and
white schools involved in each of the cases. We must look
instead to the effect of segregation itself on public education.
In approaching this problem, we cannot turn the clock back to
1868, when the Amendment was adopted, or even to 1896,
when Plessy v. Ferguson was written. We must consider
public education in the light of its full development and its
present place in American life throughout the Nation. Only in
this way can it be determined if segregation in public schools
deprives these plaintiffs of the equal protection of the laws.
Today, education is perhaps the most important function of
state and local governments. Compulsory school attendance
laws and the great expenditures for education both
demonstrate our recognition of the importance of education to
our democratic society. It is required in the performance of our
most basic public responsibilities, even service in the armed
forces. It is the very foundation of good citizenship. Today it
is a principal instrument in awakening the child to cultural
values, in preparing him for later professional training, and in
helping him to adjust normally to his environment. In these
days, it is doubtful that any child may reasonably be expected
to succeed in life if he is denied the opportunity of an
education. Such an opportunity, where the state has
undertaken to provide it, is a right which must be made
available to all on equal terms.
We come then to the question presented: does segregation of
children in public schools solely on the basis of race, even
though the physical facilities and other "tangible" factors may
be equal, deprive the children of the minority group of equal
educational opportunities? We believe that it does.
In Sweatt v. Painter, supra, in finding that a segregated law
school for Negroes could not provide them equal educational
opportunities, this Court relied in large part on "those qualities
which are incapable of objective measurement but which make
for greatness in a law school." In McLaurin v. Oklahoma State
Regents, supra, the Court, in requiring that a Negro admitted
to a white graduate school be treated like all other students,
again resorted to intangible considerations: ". . . his ability to
study, to engage in discussions and exchange views with other
students, and, in general, to learn his profession."
Such considerations apply with added force to children in
grade and high schools. To separate them from others of
similar age and qualifications solely because of their race
generates a feeling of inferiority as to their status in the
community that may affect their hearts and minds in a way
unlikely ever to be undone. The effect of this separation on
their educational opportunities was well stated by a finding in
the Kansas case by a court which nevertheless felt compelled
to rule against the Negro plaintiffs:
"Segregation of white and colored children in public schools
has a detrimental effect upon the colored children. The impact
is greater when it has the sanction of the law, for the policy of
separating the races is usually interpreted as denoting the
inferiority of the negro group. A sense of inferiority affects the
motivation of a child to learn. Segregation with the sanction of
law, therefore, has a tendency to [retard] the educational and
mental development of negro children and to deprive them of
some of the benefits they would receive in a racial[ly]
integrated school system.
Whatever may have been the extent of psychological
knowledge at the time of Plessy v. Ferguson, this finding is
amply supported by modern authority.
Any language in Plessy v. Ferguson contrary to this finding is
rejected.
We conclude that, in the field of public education, the doctrine
of "separate but equal" has no place. Separate educational
facilities are inherently unequal. Therefore, we hold that the
plaintiffs and others similarly situated for whom the actions
have been brought are, by reason of the segregation
complained of, deprived of the equal protection of the laws
guaranteed by the Fourteenth Amendment. This disposition
makes unnecessary any discussion whether such segregation
also violates the Due Process Clause of the Fourteenth
Amendment.
Because these are class actions, because of the wide
applicability of this decision, and because of the great variety
of local conditions, the formulation of decrees in these cases
presents problems of considerable complexity. On reargument,
the consideration of appropriate relief was necessarily
subordinated to the primary question -- the constitutionality of
segregation in public education. We have now announced that
such segregation is a denial of the equal protection of the laws.
In order that we may have the full assistance of the parties in
formulating decrees, the cases will be restored to the docket,
and the parties are requested to present further argument on
Questions 4 and 5 previously propounded by the Court for the
reargument this Term. The Attorney General of the United
States is again invited to participate. The Attorneys General of
the states requiring or permitting segregation in public
education will also be permitted to appear as amici curiae
upon request to do so by September 15, 1954, and submission
of briefs by October 1, 1954. It is so ordered.
In the Kansas case, Brown v. Board of Education, the
plaintiffs are Negro children of elementary school age residing
in Topeka. They brought this action in the United States
District Court for the District of Kansas to enjoin enforcement
of a Kansas statute which permits, but does not require, cities
of more than 15,000 population to maintain separate school
facilities for Negro and white students. Kan.Gen.Stat. § 72-
1724 (1949). Pursuant to that authority, the Topeka Board of
Education elected to establish segregated elementary schools.
Other public schools in the community, however, are operated
on a nonsegregated basis. The three-judge District Court,
convened under 28 U.S.C. §§ 2281 and 2284, found that
segregation in public education has a detrimental effect upon
Negro children, but denied relief on the ground that the Negro
and white schools were substantially equal with respect to
buildings, transportation, curricula, and educational
qualifications of teachers.
In the South Carolina case, Briggs v. Elliott, the plaintiffs are
Negro children of both elementary and high school age
residing in Clarendon County. They brought this action in the
United States District Court for the Eastern District of South
Carolina to enjoin enforcement of provisions in the state
constitution and statutory code which require the segregation
of Negroes and whites in public schools. S.C.Const., Art. XI, §
7; S.C.Code § 5377 (1942). The three-judge District Court,
convened under 28 U.S.C. §§ 2281 and 2284, denied the
requested relief. The court found that the Negro schools were
inferior to the white schools, and ordered the defendants to
begin immediately to equalize the facilities. But the court
sustained the validity of the contested provisions and denied
the plaintiffs admission to the white schools during the
equalization program. 98 F.Supp. 529. This Court vacated the
District Court's judgment and remanded the case for the
purpose of obtaining the court's views on a report filed by the
defendants concerning the progress made in the equalization
program. 342 U. S. 350. On remand, the District Court found
that substantial equality had been achieved except for
buildings and that the defendants were proceeding to rectify
this inequality as well.
In the Virginia case, Davis v. County School Board, the
plaintiffs are Negro children of high school age residing in
Prince Edward County. They brought this action in the United
States District Court for the Eastern District of Virginia to
enjoin enforcement of provisions in the state constitution and
statutory code which require the segregation of Negroes and
whites in public schools. Va.Const., § 140; Va.Code § 22-221
(1950). The three-judge District Court, convened under 28
U.S.C. §§ 2281 and 2284, denied the requested relief. The
court found the Negro school inferior in physical plant,
curricula, and transportation, and ordered the defendants
forthwith to provide substantially equal curricula and
transportation and to "proceed with all reasonable diligence
and dispatch to remove" the inequality in physical plant. But,
as in the South Carolina case, the court sustained the validity
of the contested provisions and denied the plaintiffs admission
to the white schools during the equalization program.
In the Delaware case, Gebhart v. Belton, the plaintiffs are
Negro children of both elementary and high school age
residing in New Castle County. They brought this action in the
Delaware Court of Chancery to enjoin enforcement of
provisions in the state constitution and statutory code which
require the segregation of Negroes and whites in public
schools. Del.Const., Art. X, § 2; Del.Rev.Code § 2631 (1935).
The Chancellor gave judgment for the plaintiffs and ordered
their immediate admission to schools previously attended only
by white children, on the ground that the Negro schools were
inferior with respect to teacher training, pupil-teacher ratio,
extracurricular activities, physical plant, and time and distance
involved in travel. 87 A.2d 862. The Chancellor also found
that segregation itself results in an inferior education for
Negro children (see note 10 infra), but did not rest his decision
on that ground. Id. at 865. The Chancellor's decree was
affirmed by the Supreme Court of Delaware, which intimated,
however, that the defendants might be able to obtain a
modification of the decree after equalization of the Negro and
white schools had been accomplished. 91 A.2d 137, 152. The
defendants, contending only that the Delaware courts had
erred in ordering the immediate admission of the Negro
plaintiffs to the white schools, applied to this Court for
certiorari. The writ was granted, 344 U.S. 891. The plaintiffs,
who were successful below, did not submit a cross-petition.
For a general study of the development of public education
prior to the Amendment, see Butts and Cremin, A History of
Education in American Culture (1953), Pts. I, II; Cubberley,
Public Education in the United States (1934 ed.), cc. II-XII.
School practices current at the time of the adoption of the
Fourteenth Amendment are described in Butts and Cremin,
supra, at 269-275; Cubberley, supra, at 288-339, 408-431;
Knight, Public Education in the South (1922), cc. VIII, IX.
See also H. Ex.Doc. No. 315, 41st Cong., 2d Sess. (1871).
Although the demand for free public schools followed
substantially the same pattern in both the North and the South,
the development in the South did not begin to gain momentum
until about 1850, some twenty years after that in the North.
The reasons for the somewhat slower development in the
South (e.g., the rural character of the South and the different
regional attitudes toward state assistance) are well explained in
Cubberley, supra, at 408-423. In the country as a whole, but
particularly in the South, the War virtually stopped all
progress in public education. Id. at 427-428. The low status of
Negro education in all sections of the country, both before and
immediately after the War, is described in Beale, A History of
Freedom of Teaching in American Schools (1941), 112-132,
175-195. Compulsory school attendance laws were not
generally adopted until after the ratification of the Fourteenth
Amendment, and it was not until 1918 that such laws were in
force in all the states
"It ordains that no State shall deprive any person of life,
liberty, or property, without due process of law, or deny to any
person within its jurisdiction the equal protection of the laws.
What is this but declaring that the law in the States shall be the
same for the black as for the white; that all persons, whether
colored or white, shall stand equal before the laws of the
States, and, in regard to the colored race, for whose protection
the amendment was primarily designed, that no discrimination
shall be made against them by law because of their color? The
words of the amendment, it is true, are prohibitory, but they
contain a necessary implication of a positive immunity, or
right, most valuable to the colored race -- the right to
exemption from unfriendly legislation against them
distinctively as colored -- exemption from legal
discriminations, implying inferiority in civil society, lessening
the security of their enjoyment of the rights which others
enjoy, and discriminations which are steps towards reducing
them to the condition of a subject race."
The doctrine apparently originated in Roberts v. City of
Boston, 59 Mass.198, 206 (1850), upholding school
segregation against attack as being violative of a state
constitutional guarantee of equality. Segregation in Boston
public schools was eliminated in 1855. Mass.Acts 1855, c.
256. But elsewhere in the North, segregation in public
education has persisted in some communities until recent
years. It is apparent that such segregation has long been a
nationwide problem, not merely one of sectional concern.
In the Cummin case, Negro taxpayers sought an injunction
requiring the defendant school board to discontinue the
operation of a high school for white children until the board
resumed operation of a high school for Negro children.
Similarly, in the Gong Lum case, the plaintiff, a child of
Chinese descent, contended only that state authorities had
misapplied the doctrine by classifying him with Negro
children and requiring him to attend a Negro school.
In the Kansas case, the court below found substantial equality
as to all such factors. 98 F.Supp. 797, 798. In the South
Carolina case, the court below found that the defendants were
proceeding "promptly and in good faith to comply with the
court's decree." 103 F.Supp. 920, 921. In the Virginia case, the
court below noted that the equalization program was already
"afoot and progressing" (103 F.Supp. 337, 341); since then,
we have been advised, in the Virginia Attorney General's brief
on reargument, that the program has now been completed. In
the Delaware case, the court below similarly noted that the
state's equalization program was well under way. 91 A.2d 137,
149.
A similar finding was made in the Delaware case:
"I conclude from the testimony that, in our Delaware society,
State-imposed segregation in education itself results in the
Negro children, as a class, receiving educational opportunities
which are substantially inferior to those available to white
children otherwise similarly situated."
"4. Assuming it is decided that segregation in public schools
violates the Fourteenth Amendment"
"(a) would a decree necessarily follow providing that, within
the limits set by normal geographic school districting, Negro
children should forthwith be admitted to schools of their
choice, or"
"(b) may this Court, in the exercise of its equity powers,
permit an effective gradual adjustment to be brought about
from existing segregated systems to a system not based on
color distinctions?"
"5. On the assumption on which questions 4(a) and (b) are
based, and assuming further that this Court will exercise its
equity powers to the end described in question 4(b),"
"(a) should this Court formulate detailed decrees in these
cases;"
"(b) if so, what specific issues should the decrees reach;"
"(c) should this Court appoint a special master to hear
evidence with a view to recommending specific terms for such
decrees;"
"(d) should this Court remand to the courts of first instance
with directions to frame decrees in these cases and, if so, what
general directions should the decrees of this Court include and
what procedures should the courts of first instance follow in
arriving at the specific terms of more detailed decrees?"
GEDULDIG V. AIELLO
Syllabus
California has a disability insurance system for private
employees temporarily disabled from working by an injury or
illness not covered by workmen's compensation, under which
an employee contributes to an Unemployment Compensation
Disability Fund one percent of his salary up to an annual
maximum of $85. A disability lasting less than eight days is
not compensable, except when the employee is hospitalized.
Benefits are not payable for a single disability exceeding 26
weeks. A disability resulting from an individual's court
commitment as a dipsomaniac, drug addict, or sexual
psychopath is not compensable, nor are certain disabilities
attributable to pregnancy. Appellees, four women otherwise
qualified under the program who have suffered employment
disability because of pregnancies, only one of which was
normal, challenged the pregnancy exclusion. A three-judge
District Court upheld their contention that the exclusion
violated the Equal Protection Clause. The court denied a
motion to reconsider based on a state appellate court ruling, in
which appellant who administers the program has acquiesced,
confining the exclusion to only normal pregnancies. The
California program, in terms of the level of benefits and risks
insured, is structured to maintain the solvency of the Disability
Fund at a one-percent annual level of contribution. The
District Court acknowledged that coverage of disabilities
resulting from normal pregnancies would entail substantial
additional expense. But it concluded that this increased cost
could be accommodated through adjustments in the rate of
employee contribution, the maximum benefits payable, "and
the other variables affecting the solvency of the program."
Held:
1. The appellate ruling and administrative guidelines
excluding only normal pregnancies have mooted the case as to
the three appellees who had abnormal pregnancies and whose
claims have now been paid.
2. California's decision not to insure under its program the risk
of disability resulting from normal pregnancy does not
constitute an invidious discrimination violative of the Equal
Protection Clause. The program does not discriminate with
respect to the persons or groups eligible for its protection, and
there is no evidence that it discriminates against any definable
group or class in terms of the aggregate risk protection derived
from the program. The sole contention is the asserted
underinclusiveness of the program's coverage as a result of the
exclusion of disabilities resulting from normal pregnancy. The
State is not required by the Equal Protection Clause to
sacrifice the self-supporting nature of the program, reduce the
benefits payable for covered disabilities, or increase the
maximum employee contribution rate just to provide
protection against another risk of disability, such as normal
pregnancy.
"[T]he Equal Protection Clause does not require that a State
must choose between attacking every aspect of a problem or
not attacking the problem at all."
MR. JUSTICE STEWART delivered the opinion of the Court.
For almost 30 years, California has administered a disability
insurance system that pays benefits to persons in private
employment who are temporarily unable to work because of
disability not covered by workmen' compensation. The
appellees brought this action to challenge the constitutionality
of a provision of the California program that, in defining
"disability," excludes from coverage certain disabilities
resulting from pregnancy. Because the appellees sought to
enjoin the enforcement of this State statute, a three-judge court
was convened pursuant to 28 U.S.C. §§ 2281 and 2284. On the
appellees' motion for summary judgment, the District Court,
by a divided vote, held that this provision of the disability
insurance program violates the Equal Protection Clause of the
Fourteenth Amendment, and therefore enjoined its continued
enforcement. 359 F.Supp. 792. The District Court denied a
motion to stay its judgment pending appeal. The appellant
thereupon filed a similar motion in this Court, which we
granted. 414 U.S. 897. We subsequently noted probable
jurisdiction of the appeal. 414 U.S. 1110.
I
California's disability insurance system is funded entirely from
contributions deducted from the wages of participating
employees. Participation in the program is mandatory unless
the employees are protected by a voluntary private plan
approved by the State. [Footnote 2] Each employee is required
to contribute one percent of his salary, up to an annual
maximum of $85. [Footnote 3] These contributions are placed
in the Unemployment Compensation Disability Fund, which is
established and administered as a special trust fund within the
state treasury. [Footnote 4] It is from this Disability Fund that
benefits under the program are paid.
An individual is eligible for disability benefits if, during a one-
year base period prior to his disability, he has contributed one
percent of a minimum income of $300 to the Disability Fund.
[Footnote 5] In the event he suffers a compensable disability,
the individual can receive a "weekly benefit amount" of
between $25 and $105, depending on the amount he earned
during the highest quarter of the base period. [Footnote 6]
Benefits are not paid until the eighth day of disability, unless
the employee is hospitalized, in which case benefits
commence on the first day of hospitalization. [Footnote 7] In
addition to the "weekly benefit amount," a hospitalized
employee is entitled to receive "additional benefits" of $12 per
day of hospitalization. [Footnote 8] "Weekly benefit amounts"
for any one disability are payable for 26 weeks, so long as the
total amount paid does not exceed one-half of the wages
received during the base period. [Footnote 9] "Additional
benefits" for any one disability are paid for a maximum of 20
days. [Footnote 10]
In return for his one-percent contribution to the Disability
Fund, the individual employee is insured against the risk of
disability stemming from a substantial number of "mental or
physical illness[es] and mental or physical injur[ies]."
Cal.Unemp.Ins.Code § 2626. It is not every disabling
condition, however, that triggers the obligation to pay benefits
under the program. As already noted, for example, any
disability of less than eight days' duration is not compensable,
except when the employee is hospitalized. Conversely, no
benefits are payable for any single disability beyond 26 weeks.
Further, disability is not compensable if it results from the
individual's court commitment as a dipsomaniac, drug addict,
or sexual psychopath. [Footnote 11] Finally, § 2626 of the
Unemployment Insurance Code excludes from coverage
certain disabilities that are attributable to pregnancy. It is this
provision that is at issue in the present case.
Appellant is the Director of the California Department of
Human Resources Development. [Footnote 12] He is
responsible for the administration of the State's disability
insurance program. Appellees are four women who have paid
sufficient amounts into the Disability Fund to be eligible for
benefits under the program. Each of the appellees became
pregnant and suffered employment disability as a result of her
pregnancy. With respect to three of the appellees, Carolyn
Aiello, Augustina Armendariz, and Elizabeth Johnson, the
disabilities were attributable to abnormal complications
encountered during their pregnancies. [Footnote 13] The
fourth, Jacqueline Jaramillo, experienced a normal pregnancy,
which was the sole cause of her disability.
At all times relevant to this case, § 2626 of the Unemployment
Insurance Code provided: "'Disability' or 'disabled' includes
both mental or physical illness and mental or physical injury.
An individual shall be deemed disabled in any day in which,
because of his physical or mental condition, he is unable to
perform his regular or customary work. In no case shall the
term 'disability' or 'disabled' include any injury or illness
caused by or arising in connection with pregnancy up to the
termination of such pregnancy and for a period of 28 days
thereafter."
Appellant construed and applied the final sentence of this
statute to preclude the payment of benefits for any disability
resulting from pregnancy. As a result, the appellees were ruled
ineligible for disability benefits by reason of this provision,
and they sued to enjoin its enforcement. The District Court,
finding
"that the exclusion of pregnancy-related disabilities is not
based upon a classification having a rational and substantial
relationship to a legitimate state purpose,"
held that the exclusion was unconstitutional under the Equal
Protection Clause. 359 F.Supp. at 801.
Shortly before the District Court's decision in this case, the
California Court of Appeal, in a suit brought by a woman who
suffered an ectopic pregnancy, held that § 2626 does not bar
the payment of benefits on account of disability that results
from medical complications arising during pregnancy. Rentzer
v. Unemployment Insurance Appeals Board, 32 Cal.App.3d
604, 108 Cal.Rptr. 336 (1973). [Footnote 14] The state court
construed the statute to preclude only the payment of benefits
for disability accompanying normal pregnancy. [Footnote 15]
The appellant acquiesced in this construction and issued
administrative guidelines that exclude only the payment of
"maternity benefits" -- i.e., hospitalization and disability
benefits for normal delivery and recuperation.
Although Rentzer was decided some 10 days before the
District Court's decision in this case, there was apparently no
opportunity to call the court's attention to it. The appellant
therefore asked the court to reconsider its decision in light of
the construction that the California Court of Appeal had given
to § 2626 in the Rentzer case. By a divided vote, the court
denied the motion for reconsideration. Although a more
definitive ruling would surely have been preferable, we
interpret the District Court's denial of the appellant's motion as
a determination that its decision was not affected by the
limiting construction given to § 2626 in Rentzer.
Because of the Rentzer decision and the revised administrative
guidelines that resulted from it, the appellees Aiello,
Armendariz, and Johnson, whose disabilities were attributable
to causes other than normal pregnancy and delivery, became
entitled to benefits under the disability insurance program, and
their claims have since been paid. With respect to appellee
Jaramillo, however, whose disability stemmed solely from
normal pregnancy and childbirth, § 2626 continues to bar the
payment of any benefits. It is evident that only Jaramillo
continues to have a live controversy with the appellant as to
the validity of § 2626. The claims of the other appellees have
been mooted by the change that Rentzer worked in the
construction and application of that provision. Thus, the issue
before the Court on this appeal is whether the California
disability insurance program invidiously discriminates against
Jaramillo and others similarly situated by not paying insurance
benefits for disability that accompanies normal pregnancy and
childbirth.
II
It is clear that California intended to establish this benefit
system as an insurance program that was to function
essentially in accordance with insurance concepts. [Footnote
16] Since the program was instituted in 1946, it has been
totally self-supporting, never drawing on general state
revenues to finance disability or hospital benefits. The
Disability Fund is wholly supported by the one percent of
wages annually contributed by participating employees. At
oral argument, counsel for the appellant informed us that, in
recent years between 90% and 103% of the revenue to the
Disability Fund has been paid out in disability and hospital
benefits. This history strongly suggests that the one-percent
contribution rate, in addition to being easily computable, bears
a close and substantial relationship to the level of benefits
payable and to the disability risks insured under the program.
Over the years, California has demonstrated a strong
commitment not to increase the contribution rate above the
one-percent level. The State has sought to provide the broadest
possible disability protection that would be affordable by all
employees, including those with very low incomes. Because
any larger percentage or any flat dollar amount rate of
contribution would impose an increasingly regressive levy
bearing most heavily upon those with the lowest incomes, the
State has resisted any attempt to change the required
contribution from the one-percent level. The program is thus
structured, in terms of the level of benefits and the risks
insured, to maintain the solvency of the Disability Fund at a
one percent annual level of contribution.
In ordering the State to pay benefits for disability
accompanying normal pregnancy and delivery, the District
Court acknowledged the State's contention
"that coverage of these disabilities is so extraordinarily
expensive that it would be impossible to maintain a program
supported by employee contributions if these disabilities are
included."
There is considerable disagreement between the parties with
respect to how great the increased costs would actually be, but
they
would clearly be substantial. [Footnote 18] For purposes of
analysis, the District Court accepted the State's estimate,
which was in excess of $100 million annually, and stated:
"[I]t is clear that including these disabilities would not destroy
the program. The increased costs could be accommodated
quite easily by making reasonable changes in the contribution
rate, the maximum benefits allowable, and the other variables
affecting the solvency of the program."
Each of these "variables" -- the benefit level deemed
appropriate to compensate employee disability, the risks
selected to be insured under the program, and the contribution
rate chosen to maintain the solvency of the program and at the
same time to permit low income employees to participate with
minimal personal sacrifice -- represents a policy determination
by the State. The essential issue in this case is whether the
Equal Protection Clause requires such policies to be sacrificed
or compromised in order to finance the payment of benefits to
those whose disability is attributable to normal pregnancy and
delivery.
We cannot agree that the exclusion of this disability from
coverage amounts to invidious discrimination under the Equal
Protection Clause. California does not discriminate with
respect to the persons or groups which are eligible for
disability insurance protection under the program. The
classification challenged in this case relates to the asserted
underinclusiveness of the set of risks that the State has
selected to insure. Although California has created a program
to insure most risks of employment disability, it has not
chosen to insure all such risks, and this decision is reflected in
the level of annual contributions exacted from participating
employees. This Court has held that, consistently with the
Equal Protection Clause, a State
"may take one step at a time, addressing itself to the phase of
the problem which seems most acute to the legislative mind. . .
. The legislature may select one phase of one field and apply a
remedy there, neglecting the others. . . ."
Williamson v. Lee Optical Co., 348 U. S. 483, 348 U. S. 489
(1955); Jefferson v. Hackney, 406 U. S. 535 (1972).
Particularly with respect to social welfare programs, so long as
the line drawn by the State is rationally supportable, the courts
will not interpose their judgment as to the appropriate stopping
point.
"[T]he Equal Protection Clause does not require that a State
must choose between attacking every aspect of a problem or
not attacking the problem at all."
The District Court suggested that moderate alterations in what
it regarded as "variables" of the disability insurance program
could be made to accommodate the substantial expense
required to include normal pregnancy within the program's
protection. The same can be said, however, with respect to the
other expensive class of disabilities that are excluded from
coverage -- short-term disabilities. If the Equal Protection
Clause were thought to compel disability payments for normal
pregnancy, it is hard to perceive why it would not also compel
payments for short-term disabilities suffered by participating
employees.
It is evident that a totally comprehensive program would be
substantially more costly than the present program, and would
inevitably require state subsidy, a higher rate of employee
contribution, a lower scale of benefits for those suffering
insured disabilities, or some combination of these measures.
There is nothing in the Constitution, however, that requires the
State to subordinate or compromise its legitimate interests
solely to create a more comprehensive social insurance
program than it already has.
The State has a legitimate interest in maintaining the self-
supporting nature of its insurance program. Similarly, it has an
interest in distributing the available resources in such a way as
to keep benefit payments at an adequate level for disabilities
that are covered, rather than to cover all disabilities
inadequately. Finally, California has a legitimate concern in
maintaining the contribution rate at a level that will not unduly
burden participating employees, particularly low income
employees who may be most in need of the disability
insurance.
These policies provide an objective and wholly noninvidious
basis for the State's decision not to create a more
comprehensive insurance program than it has. There is no
evidence in the record that the selection of the risks insured by
the program worked to discriminate against any definable
group or class in terms of the aggregate risk protection derived
by that group or class from the program. [Footnote 20] There
is no risk from which men are protected and women are not.
Likewise, there is no risk from which women are protected
and men are not.
The appellee simply contends that, although she has received
insurance protection equivalent to that provided all other
participating employees, she has suffered discrimination
because she encountered a risk that was outside the program's
protection. For the reasons we have stated, we hold that this
contention is not a valid one under the Equal Protection Clause
of the Fourteenth Amendment.
The stay heretofore issued by the Court is vacated, and the
judgment of the District Court is Reversed.
This litigation began as two separate suits on behalf of
California employees who had paid sufficient amounts into the
Disability Fund to be eligible generally for benefits under the
program. Carolyn Aiello brought her suit against appellant in
the Federal District Court. Augustina Armendariz, Elizabeth
Johnson, and Jacqueline Jaramillo jointly initiated their suit as
a petition for a writ of mandate in the California Supreme
Court. Both suits were brought as class actions, and asserted
the unconstitutionality of § 2626 of the California
Unemployment Insurance Code under the Equal Protection
Clause of the Fourteenth Amendment. The appellant removed
the state court suit to the Federal District Court, where the two
actions were consolidated. See 28 U.S.C. § 1441(b).
§ 2801. Section 2608 provides a formula for determining
whether a disabling condition that is intermittent is one
disability or more than one disability for purposes of applying
the limitations in §§ 2653 and 2801 on the maximum amount
of benefits payable.
§ 2678. Sections 2675-2677 contain various other factors that
will disqualify an employee from receiving benefits but that
relate to matters other than the nature of the disabling
condition.
Aiello and Johnson suffered ectopic and tubal pregnancies,
respectively, which required surgery to terminate the
pregnancies. Armendariz suffered a miscarriage.
In an earlier decision, the Court of Appeal had sustained §
2626 against an equal protection challenge by a female
employee who had suffered disability as a result of normal
pregnancy and delivery. Section 2626 was later amended, and
a new § 2626.2 was added, in order clearly to reflect this
interpretation. The two sections now provide as follows:
"'Disability' or 'disabled' includes both mental or physical
illness, mental or physical injury, and, to the extent specified
in Section 2626.2, pregnancy. An individual shall be deemed
disabled in any day in which, because of his physical or
mental condition, he is unable to perform his regular or
customary work."
"Benefits relating to pregnancy shall be paid under this part
only in accordance with the following:"
"(a) Disability benefits shall be paid upon a doctor's
certification that the claimant is disabled because of an
abnormal and involuntary complication of pregnancy,
including but not limited to: puerperal infection, eclampsia,
casesarian section delivery, ectopic pregnancy, and toxemia."
"(b) Disability benefits shall be paid upon a doctor's
certification that a condition possibly arising out of pregnancy
would disable the claimant without regard to the pregnancy,
including but not limited to: anemia, diabetes, embolism, heart
disease, hypertension, phlebitis, phlebothrombosis,
pyelonephritis, thrombophlebitis, vaginitis, varicose veins, and
venous thrombosis."
In his message to the state legislature proposing the creation of
this program, Governor Earl Warren stated:
"It is not possible for employees to obtain from private
insurance companies protection against loss of wages or salary
during sickness as adequately or cheaply as that protection
could be obtained by diverting their present 1 per cent
contribution for the support of a Disability Benefits Program."
California Senate Journal, Jan. 23, 1946, p. 229. The
California Supreme Court has concluded
"that the legislative purpose in providing unemployment
disability benefits . . . was to provide an insurance program to
pay benefits to individuals who are unemployed because of
illness or injury. . . ."
Garcia v. Industrial Accident Comm'n, 41 Cal.2d 689, 692,
263 P.2d 8, 10 (1953) (internal quotation marks omitted).
Section 2604 of the Unemployment Insurance Code vests the
Governor and the appellant with authority to modify the
payment of benefits and to increase the waiting time for
eligibility if such steps are necessary to forestall insolvency of
the Disability Fund. But neither the Governor nor the appellant
is authorized to increase the contribution rate under any
circumstances.
Appellant's estimate of the increased cost of including normal
pregnancy within the insured risks has varied between $120.2
million and $131 million annually, or between a 33% and 36%
increase in the present amount of benefits paid under the
program. On the other hand, appellee contends that the
increased cost would be $48.9 million annually, or a 12%
increase over present expenditures.
The same could be said of disabilities continuing beyond 26
weeks.
The dissenting opinion to the contrary, this case is thus a far
cry from cases like Reed v. Reed, 404 U. S. 71 (1971), and
Frontiero v. Richardson, 411 U. S. 677 (1973), involving
discrimination based upon gender as such. The California
insurance program does not exclude anyone from benefit
eligibility because of gender, but merely removes one physical
condition -- pregnancy -- from the list of compensable
disabilities. While it is true that only women can become
pregnant, it does not follow that every legislative classification
concerning pregnancy is a sex-based classification like those
considered in Reed, supra, and Frontiero, supra. Normal
pregnancy is an objectively identifiable physical condition
with unique characteristics. Absent a showing that distinctions
involving pregnancy are mere pretexts designed to effect an
invidious discrimination against the members of one sex or the
other, lawmakers are constitutionally free to include or
exclude pregnancy from the coverage of legislation such as
this on any reasonable basis, just as with respect to any other
physical condition.
The lack of identity between the excluded disability and
gender as such under this insurance program becomes clear
upon the most cursory analysis. The program divides potential
recipients into two groups -- pregnant women and nonpregnant
persons. While the first group is exclusively female, the
second includes members of both sexes. The fiscal and
actuarial benefits of the program thus accrue to members of
both sexes.
Indeed, the appellant submitted to the District Court data that
indicated that both the annual claim rate and the annual claim
cost are greater for women than for men. As the District Court
acknowledged, "women contribute about 28 percent of the
total disability insurance fund and receive back about 38
percent of the fund in benefits." 359 F.Supp. 792, 800. Several
amici curiae have represented to the Court that they have had a
similar experience under private disability insurance
programs.
MR. JUSTICE BRENNAN, with whom MR. JUSTICE
DOUGLAS and MR. JUSTICE MARSHALL join, dissenting.
the Court today rejects appellees' equal protection claim and
upholds the exclusion of normal pregnancy-related disabilities
from coverage under California's disability insurance program
on the ground that the legislative classification rationally
promotes the State's legitimate cost-saving interests in
"maintaining the self supporting nature of its insurance
program[,] . . . distributing the available resources in such a
way as to keep benefit payments at an adequate level for
disabilities that are covered, . . . [and] maintaining the
contribution rate at a level that will not unduly burden
participating employees. . . ."
California's disability insurance program was enacted to
supplement the State's unemployment insurance and
workmen's compensation programs by providing benefits to
wage earners to cushion the economic effects of income loss
and medical expenses resulting from sickness or injury. The
legislature's intent in enacting the program was expressed
clearly in § 2601 of the Unemployment Insurance Code:
"The purpose of this part is to compensate in part for the wage
loss sustained by individuals unemployed because of sickness
or injury and to reduce to a minimum the suffering caused by
unemployment resulting therefrom. This part shall be
construed liberally in aid of its declared purpose to mitigate
the evils and burdens which fall on the unemployed and
disabled worker and his family."
To achieve the Act's broad humanitarian goals, the legislature
fashioned a pooled-risk disability fund covering all employees
at the same rate of contribution, [Footnote 2/1] regardless of
individual risk. [Footnote 2/2] The only requirement that must
be satisfied before an employee becomes eligible to receive
disability benefits is that the employee must have contributed
one percent of a minimum income of $300 during a one-year
base period. The "basic benefits," varying from $25 to $119
per week, depending upon the employee's base-period
earnings, begin on the eighth day of disability or on the first
day of hospitalization. §§ 2655, 2627(b), 2802. Benefits are
payable for a maximum of 26 weeks, but may not exceed one-
half of the employee's total base-period earnings. § 2653.
Finally, compensation is paid for virtually all disabling
conditions without regard to cost, voluntariness, uniqueness,
predictability, or "normalcy" of the disability. [Footnote 2/3]
Thus, for example, workers are compensated for costly
disabilities such as heart attacks, voluntary disabilities such as
cosmetic surgery or sterilization, disabilities unique to sex or
race such as prostatectomies or sickle-cell anemia, preexisting
conditions inevitably resulting in disability such as
degenerative arthritis or cataracts, and "normal" disabilities
such as removal of irritating wisdom teeth or other
orthodontia.
Despite the Code's broad goals and scope of coverage,
compensation is denied for disabilities suffered in connection
with a "normal" pregnancy -- disabilities suffered only by
women. Cal.Unemp.Ins.Code §§ 2626, 2626.2 (Supp. 1974).
Disabilities caused by pregnancy, however, like other
physically disabling conditions covered by the Code, require
medical care, often include hospitalization, anesthesia and
surgical procedures, and may involve genuine risk to life.
[Footnote 2/4] Moreover, the economic effects caused by
pregnancy-related disabilities are functionally
indistinguishable from the effects caused by any other
disability: wages are lost due to a physical inability to work,
and medical expenses are incurred for the delivery of the child
and for postpartum care. [Footnote 2/5] In my view, by
singling out for less favorable treatment a gender-linked
disability peculiar to women, the State has created a double
standard for disability compensation: a limitation is imposed
upon the disabilities for which women workers may recover,
while men receive full compensation for all disabilities
suffered, including those that affect only or primarily their sex,
such as prostatectomies, circumcision, hemophilia, and gout.
In effect, one set of rules is applied to females and another to
males. Such dissimilar treatment of men and women, on the
basis of physical characteristics inextricably linked to one sex,
inevitably constitutes sex discrimination.
The same conclusion has been reached by the Equal
Employment Opportunity Commission, the federal agency
charged with enforcement of Title VII of the Civil Rights Act
of 1964, as amended by the Equal Employment Opportunity
Act of 1972, 42 U.S.C. § 2000e et seq. (1970 ed., Supp. II),
which prohibits employment discrimination on the basis of
sex. In guidelines issued pursuant to Title VII and designed to
prohibit the dispara
treatment of pregnancy disabilities in the employment context,
[Footnote 2/6] the EEOC has declared:
"Disabilities caused or contributed to by pregnancy,
miscarriage, abortion, childbirth, and recovery therefrom are,
for all job-related purposes, temporary disabilities, and should
be treated as such under any health or temporary disability
insurance or sick leave plan available in connection with
employment. Written and unwritten employment policies and
practices involving matters such as the commencement and
duration of leave, the availability of extensions, the accrual of
seniority and other benefits and privileges, reinstatement, and
payment under any health or temporary disability insurance or
sick leave plan, formal or informal, shall be applied to
disability due to pregnancy or childbirth on the same terms
and conditions as they are applied to other temporary
disabilities."
In the past, when a legislative classification has turned on
gender, the Court has justifiably applied a standard of judicial
scrutiny more strict than that generally accorded economic or
social welfare programs. Compare Reed v. Reed, 404 U. S. 71
(1971), and Frontiero v. Richardson, 411 U. S. 677 (1973),
with Dandridge v. Williams, 397 U. S. 471 (1970), and
Jefferson v. Hackney, 406 U. S. 535 (1972). Yet, by its
decision today, the Court appears willing to abandon that
higher standard of review without satisfactorily explaining
what differentiates the gender-based classification employed
in this case from those found unconstitutional in Reed and
Frontiero. The Court's decision threatens to return men and
women to a time when "traditional" equal protection analysis
sustained legislative classifications that treated differently
members of a particular sex solely because of their sex. See,
e.g., Muller v. Oregon, 208 U. S. 412 (1908); Goesaert v.
Cleary, 335 U. S. 464 (1948); Hoyt v. Florida, 368 U. S. 57
(1961).
I cannot join the Court's apparent retreat. I continue to adhere
to my view that "classifications based upon sex, like
classifications based upon race, alienage, or national origin,
are inherently suspect, and must therefore be subjected to strict
judicial scrutiny."
Frontiero v. Richardson, supra, at 411 U. S. 688. When, as in
this case, the State employs a legislative classification that
distinguishes between beneficiaries solely by reference to
gender-linked disability risks,
"[t]he Court is not . . . free to sustain the statute on the ground
that it rationally promotes legitimate governmental interests;
rather, such suspect classifications can be sustained only when
the State bears the burden of demonstrating that the challenged
legislation serves overriding or compelling interests that
cannot be achieved either by a more carefully tailored
legislative classification or by the use of feasible, less drastic
means."
The State has clearly failed to meet that burden in the present
case. The essence of the State's justification for
excluding disabilities caused by a normal pregnancy from its
disability compensation scheme is that covering such
disabilities would be too costly. To be sure, as presently
funded, inclusion of normal pregnancies "would be
substantially more costly than the present program." [Footnote
2/8] Ante at 417 U. S. 495. The present level of benefits for
insured disabilities could not be maintained without increasing
the employee contribution rate, raising or lifting the yearly
contribution ceiling, or securing state subsidies. But whatever
role such monetary considerations may play in traditional
equal protection analysis, the State's interest in preserving the
fiscal integrity of its disability insurance program simply
cannot render the State's use of a suspect classification
constitutional. For while
"a State has a valid interest in preserving the fiscal integrity of
its programs[,] . . . a State may not accomplish such a purpose
by invidious distinctions between classes of its citizens. . . .
The saving of welfare costs cannot justify an otherwise
invidious classification."
Shapiro v. Thompson, 394 U. S. 618, 394 U. S. 633 (1969).
Thus, when a statutory classification is subject to strict judicial
scrutiny, the State "must do more than show that denying
[benefits to the excluded class] saves money." Memorial
Hospital v. Maricopa County, 415 U. S. 250, 415 U. S. 263
(1974). See also Graham v. Richardson, 403 U. S. 365, 403 U.
S. 374-375 (1971). [Footnote 2/9]
Page 417 U. S. 505
Moreover, California's legitimate interest in fiscal integrity
could easily have been achieved through a variety of less
drastic, sexually neutral means. As the District Court
observed:
"Even using [the State's] estimate of the cost of expanding the
program to include pregnancy-related disabilities, however, it
is clear that including these disabilities would not destroy the
program. The increased costs could be accommodated quite
easily by making reasonable changes in the contribution rate,
the maximum benefits allowable, and the other variables
affecting the solvency of the program. For example, the entire
cost increase estimated by defendant could be met by
requiring workers to contribute an additional amount of
approximately .364 percent of their salary and increasing the
maximum annual contribution to about $119."
I would therefore affirm the judgment of the District Court.
An employee must contribute one percent of his annual wages,
not exceeding a total contribution of $85 per year ($90 for
calendar year 1974 and thereafter). Cal.Unemp.Ins.Code §§
984, 985, 2901. The ceiling on wages subject to the one-
percent contribution rate, of course, introduces a regressive
element in the contribution scheme. Perhaps in recognition of
this fact, the disability benefits schedule is designed to grant
proportionately greater benefits to more poorly paid workers.
§ 2655.
California deliberately decided not to classify employees on
the basis of actuarial data. Thus, the contribution rate for a
particular group of employees is not tied to that group's
predicted rate of disability claims. 359 F.Supp. 792, 800.
[Footnote 2/3]
While the Code technically excludes from coverage
individuals under court commitment for dipsomania, drug
addiction, or sexual psychopathy, Cal.Unemp.Ins.Code §
2678, the Court was informed by the Deputy Attorney General
of California at oral argument that court commitment for such
disabilities is "a fairly archaic practice," and that "it would be
unrealistic to say that they constitute valid exclusions." Tr. of
Oral Arg. 13.
[Footnote 2/4]
On March 2, 1974, the American College of Obstetricians and
Gynecologists adopted the following Policy Statement on
Pregnancy-related Disabilities:
"Pregnancy is a physiological process. All pregnant patients,
however, have a variable degree of disability on an individual
basis, as indicated below, during which time they are unable to
perform their usual activities. (1) In an uncomplicated
pregnancy, disability occurs near the termination of
pregnancy, during labor, delivery, and the puerperium. The
process of labor and puerperium is disabling in itself. The
usual duration of such disability is approximately six to eight
weeks. (2) Complications of a pregnancy may occur which
give rise to other disability. Examples of such complications
include toxemia, infection, hemorrhage, ectopic pregnancy,
and abortion. (3) A woman with preexisting disease which, in
itself, is not disabling, may become disabled with the addition
of pregnancy. Certain patients with heart disease, diabetes,
hypertensive cardiovascular disease, renal disease, and other
systemic conditions may become disabled during their
pregnancy because of the adverse effect pregnancy has upon
these conditions."
"The onset, termination and cause of the disability, related to
pregnancy, can only be determined by a physician."
Brief for Appellees 59-60.
[Footnote 2/5]
Nearly two-thirds of all women who work do so of necessity:
either they are unmarried or their husbands earn less than
$7,000 per year. See United States Department of Labor,
Women's Bureau, Why Women Work (rev. ed.1972); United
States Department of Labor, Employment Standards
Administration, The Myth and the Reality (May 1974 rev.).
Moreover, this Court recognized in Kahn v. Shevin, 416 U. S.
351, 416 U. S. 353 (1974), that
"data compiled by the Women's Bureau of the United States
Department of Labor show that, in 1972 a woman working full
time had a median income which was only 57.9% of the
median for males -- a figure actually six points lower than had
been achieved in 1955."
(Footnote omitted.)
[Footnote 2/6]
"The Commission carefully scrutinized both employer
practices and their crucial impact on women for a substantial
period of time, and then issued its Guidelines after it became
increasingly apparent that systematic and pervasive
discrimination against women was frequently found in
employers' denial of employment opportunity and benefits to
women on the basis of the childbearing role, performed solely
by women."
Brief for United States Equal Employment Opportunity
Commission as Amicus Curie 10.
[Footnote 2/7]
See also the proposed Sex Discrimination Guidelines issued
by the Department of Labor pursuant to Exec.Order 11246,
virtually adopting the EEOC's pregnancy-related disabilities
guideline, 38 Fed.Reg. 35337, 35338 (Dec. 27, 1973)
(proposed 41 CFR § 6020.3(h)(2)).
[Footnote 2/8]
However,
"[i]t is important to remember, especially in the cost context,
that, if an employee is being paid his regular pay while
disabled, he cannot collect disability pay. Therefore, it follows
that any alleged financial burden on the State will be greatly
diminished when employers adhere to Title VII and treat
pregnancy-related disabilities the same as other disabilities by
allowing women to use accumulated sick leave and possibly
annual leave as well."
Brief for United States Equal Employment Opportunity
Commission as Amicus Curiae 21 n. 12.
[Footnote 2/9]
Similarly, under the EEOC's Guidelines on Discrimination
Because of Sex,
"[i]t shall not be a defense under title VIII to a charge of sex
discrimination in benefits that the cost of such benefits is
greater with respect to one sex than the other."
Regents of the University of California v. Bakke
No. 7811
Argued October 12, 1977
Decided June 28, 1978
438 U.S. 265
CERTIORARI TO THE SUPREME COURT OF
CALIFORNIA
Syllabus
The Medical School of the University of California at Davis
(hereinafter Davis) had two admissions programs for the
entering class of 100 students -- the regular admissions
program and the special admissions program. Under the
regular procedure, candidates whose overall undergraduate
grade point averages fell below 2.5 on a scale of 4.0 were
summarily rejected. About one out of six applicants was then
given an interview, following which he was rated on a scale of
1 to 100 by each of the committee members (five in 1973 and
six in 1974), his rating being based on the interviewers'
summaries, his overall grade point average, his science
courses grade point average, his Medical College Admissions
Test (MCAT) scores, letters of recommendation,
extracurricular activities, and other biographical data, all of
which resulted in a total "benchmark score." The full
admissions committee then made offers of admission on the
basis of their review of the applicant's file and his score,
considering and acting upon applications as they were
received. The committee chairman was responsible for placing
names on the waiting list and had discretion to include persons
with "special skills." A separate committee, a majority of
whom were members of minority groups, operated the special
admissions program. The 1973 and 1974 application forms,
respectively, asked candidates whether they wished to be
considered as "economically and/or educationally
disadvantaged" applicants and members of a "minority group"
(blacks, Chicanos, Asians, American Indians). If an applicant
of a minority group was found to be "disadvantaged," he
would be rated in a manner similar to the one employed by the
general admissions committee. Special candidates, however,
did not have to meet the 2.5 grade point cutoff and were not
ranked against candidates in the general admissions process.
About one-fifth of the special applicants were invited for
interviews in 1973 and 1974, following which they were given
benchmark scores, and the top choices were then given to the
general admissions committee, which could reject special
candidates for failure to meet course requirements or other
specific deficiencies. The special committee continued to
recommend candidates until 16 special admission selections
had been made. During a four-year period, 63 minority
Page 438 U. S. 266
students were admitted to Davis under the special program and
44 under the general program. No disadvantaged whites were
admitted under the special program, though many applied.
Respondent, a white male, applied to Davis in 1973 and 1974,
in both years being considered only under the general
admissions program. Though he had a 468 out of 500 score in
1973, he was rejected, since no general applicants with scores
less than 470 were being accepted after respondent's
application, which was filed late in the year, had been
processed and completed. At that time, four special admission
slots were still unfilled. In 1974 respondent applied early, and
though he had a total score of 549 out of 600, he was again
rejected. In neither year was his name placed on the
discretionary waiting list. In both years, special applicants
were admitted with significantly lower scores than
respondent's. After his second rejection, respondent filed this
action in state court for mandatory, injunctive, and declaratory
relief to compel his admission to Davis, alleging that the
special admissions program operated to exclude him on the
basis of his race in violation of the Equal Protection Clause of
the Fourteenth Amendment, a provision of the California
Constitution, and § 601 of Title VI of the Civil Rights Act of
1964, which provides, inter alia, that no person shall on the
ground of race or color be excluded from participating in any
program receiving federal financial assistance. Petitioner
cross-claimed for a declaration that its special admissions
program was lawful. The trial court found that the special
program operated as a racial quota, because minority
applicants in that program were rated only against one another,
and 16 places in the class of 100 were reserved for them.
Declaring that petitioner could not take race into account in
making admissions decisions, the program was held to violate
the Federal and State Constitutions and Title VI. Respondent's
admission was not ordered, however, for lack of proof that he
would have been admitted but for the special program. The
California Supreme Court, applying a strict scrutiny standard,
concluded that the special admissions program was not the
least intrusive means of achieving the goals of the admittedly
compelling state interests of integrating the medical profession
and increasing the number of doctors willing to serve minority
patients. Without passing on the state constitutional or federal
statutory grounds, the court held that petitioner's special
admissions program violated the Equal Protection Clause.
Since petitioner could not satisfy its burden of demonstrating
that respondent, absent the special program, would not have
been admitted, the court ordered his admission to Davis.
Held: The judgment below is affirmed insofar as it orders
respondent's admission to Davis and invalidates petitioner's
special admissions program,
Page 438 U. S. 267
but is reversed insofar as it prohibits petitioner from taking
race into account as a factor in its future admissions decisions.
18 Cal.3d 34, 553 P.2d 1152, affirmed in part and reversed in
part.
MR. JUSTICE POWELL concluded:
1. Title VI proscribes only those racial classifications that
would violate the Equal Protection Clause if employed by a
State or its agencies. Pp. 438 U. S. 281-287.
2. Racial and ethnic classifications of any sort are inherently
suspect and call for the most exacting judicial scrutiny. While
the goal of achieving a diverse student body is sufficiently
compelling to justify consideration of race in admissions
decisions under some circumstances, petitioner's special
admissions program, which forecloses consideration to
persons like respondent, is unnecessary to the achievement of
this compelling goal, and therefore invalid under the Equal
Protection Clause. Pp. 438 U. S. 287-320.
3. Since petitioner could not satisfy its burden of proving that
respondent would not have been admitted even if there had
been no special admissions program, he must be admitted. P.
438 U. S. 320.
MR. JUSTICE BRENNAN, MR. JUSTICE WHITE, MR.
JUSTICE MARSHALL, and MR. JUSTICE BLACKMUN
concluded:
1. Title VI proscribes only those racial classifications that
would violate the Equal Protection Clause if employed by a
State or its agencies. Pp. 438 U. S. 328-355.
2. Racial classifications call for strict judicial scrutiny.
Nonetheless, the purpose of overcoming substantial, chronic
minority underrepresentation in the medical profession is
sufficiently important to justify petitioner's remedial use of
race. Thus, the judgment below must be reversed in that it
prohibits race from being used as a factor in university
admissions. Pp. 438 U. S. 355-379.
MR. JUSTICE STEVENS, joined by THE CHIEF JUSTICE,
MR. JUSTICE STEWART, and MR. JUSTICE REHNQUIST,
being of the view that whether race can ever be a factor in an
admissions policy is not an issue here; that Title VI applies;
and that respondent was excluded from Davis in violation of
Title VI, concurs in the Court's judgment insofar as it affirms
the judgment of the court below ordering respondent admitted
to Davis. Pp. 438 U. S. 408-421.
POWELL, J., announced the Court's judgment and filed an
opinion expressing his views of the case, in Parts I, III-A, and
V-C of which WHITE, J., joined; and in Parts I and V-C of
which BRENNAN, MARSHALL, and BLACKMUN, JJ.,
joined. BRENNAN, WHITE, MARSHALL, and
BLACKMUN,
Page 438 U. S. 268
JJ., filed an opinion concurring in the judgment in part and
dissenting in part, post, p. 438 U. S. 324. WHITE, J., post, p.
438 U. S. 379, MARSHALL, J., post, p. 438 U. S. 387, and
BLACKMUN, J., post, p. 438 U. S. 402, filed separate
opinions. STEVENS, J., filed an opinion concurring in the
judgment in part and dissenting in part, in which BURGER,
C.J., and STEWART and REHNQUIST, JJ., joined, post, p.
438 U. S. 408.
Page 438 U. S. 269
MR. JUSTICE POWELL announced the judgment of the
Court.
This case presents a challenge to the special admissions
program of the petitioner, the Medical School of the
University of California at Davis, which is designed to assure
the admission
Page 438 U. S. 270
of a specified number of students from certain minority
groups. The Superior Court of California sustained
respondent's challenge, holding that petitioner's program
violated the California Constitution, Title VI of the Civil
Rights Act of 1964, 42 U.S.C. § 2000d et seq., and the Equal
Protection Clause of the Fourteenth Amendment. The court
enjoined petitioner from considering respondent's race or the
race of any other applicant in making admissions decisions. It
refused, however, to order respondent's admission to the
Medical School, holding that he had not carried his burden of
proving that he would have been admitted but for the
constitutional and statutory violations. The Supreme Court of
California affirmed those portions of the trial court's judgment
declaring the special admissions program unlawful and
enjoining petitioner from considering the race of any
applicant. *
Page 438 U. S. 271
It modified that portion of the judgment denying respondent's
requested injunction and directed the trial court to order his
admission.
For the reasons stated in the following opinion, I believe that
so much of the judgment of the California court as holds
petitioner's special admissions program unlawful and directs
that respondent be admitted to the Medical School must be
affirmed. For the reasons expressed in a separate opinion, my
Brothers THE CHIEF JUSTICE, MR. JUSTICE STEWART,
MR. JUSTICE REHNQUIST, and MR. JUSTICE STEVENS
concur in this judgment.
Page 438 U. S. 272
I also conclude, for the reasons stated in the following opinion,
that the portion of the court's judgment enjoining petitioner
from according any consideration to race in its admissions
process must be reversed. For reasons expressed in separate
opinions, my Brothers MR. JUSTICE BRENNAN, MR.
JUSTICE WHITE, MR. JUSTICE MARSHALL, and MR.
JUSTICE BLACKMUN concur in this judgment.
Affirmed in part and reversed in part.
I
**
The Medical School of the University of California at Davis
opened in 1968 with an entering class of 50 students. In 1971,
the size of the entering class was increased to 100 students, a
level at which it remains. No admissions program for
disadvantaged or minority students existed when the school
opened, and the first class contained three Asians but no
blacks, no Mexican-Americans, and no American Indians.
Over the next two years, the faculty devised a special
admissions program to increase the representation of
"disadvantaged" students in each Medical School class.
[Footnote 1] The special program consisted of
Page 438 U. S. 273
a separate admissions system operating in coordination with
the regular admissions process.
Under the regular admissions procedure, a candidate could
submit his application to the Medical School beginning in July
of the year preceding the academic year for which admission
was sought. Record 149. Because of the large number of
applications, [Footnote 2] the admissions committee screened
each one to select candidates for further consideration.
Candidates whose overall undergraduate grade point averages
fell below 2.5 on a scale of 4.0 were summarily rejected. Id. at
63. About
Page 438 U. S. 274
one out of six applicants was invited for a personal interview.
Ibid. Following the interviews, each candidate was rated on a
scale of 1 to 100 by his interviewers and four other members
of the admissions committee. The rating embraced the
interviewers' summaries, the candidate's overall grade point
average, grade point average in science courses, scores on the
Medical College Admissions Test (MCAT), letters of
recommendation, extracurricular activities, and other
biographical data. Id. at 62. The ratings were added together to
arrive at each candidate's "benchmark" score. Since five
committee members rated each candidate in 1973, a perfect
score was 500; in 1974, six members rated each candidate, so
that a perfect score was 600. The full committee then reviewed
the file and scores of each applicant and made offers of
admission on a "rolling" basis. [Footnote 3] The chairman was
responsible for placing names on the waiting list. They were
not placed in strict numerical order; instead, the chairman had
discretion to include persons with "special skills." Id. at 63-64.
The special admissions program operated with a separate
committee, a majority of whom were members of minority
groups. Id. at 163. On the 1973 application form, candidates
were asked to indicate whether they wished to be considered
as "economically and/or educationally disadvantaged"
applicants; on the 1974 form the question was whether they
wished to be considered as members of a "minority group,"
which the Medical School apparently viewed as "Blacks,"
"Chicanos," "Asians," and "American Indians." Id. at 65-66,
146, 197, 203-205, 216-218. If these questions were answered
affirmatively, the application was forwarded to the special
admissions committee. No formal definition of
"disadvantaged"
Page 438 U. S. 275
was ever produced, id. at 163-164, but the chairman of the
special committee screened each application to see whether it
reflected economic or educational deprivation. [Footnote 4]
Having passed this initial hurdle, the applications then were
rated by the special committee in a fashion similar to that used
by the general admissions committee, except that special
candidates did not have to meet the 2.5 grade point average
cutoff applied to regular applicants. About one-fifth of the
total number of special applicants were invited for interviews
in 1973 and 1974. [Footnote 5] Following each interview, the
special committee assigned each special applicant a
benchmark score. The special committee then presented its top
choices to the general admissions committee. The latter did
not rate or compare the special candidates against the general
applicants, id. at 388, but could reject recommended special
candidates for failure to meet course requirements or other
specific deficiencies. Id. at 171-172. The special committee
continued to recommend special applicants until a number
prescribed by faculty vote were admitted. While the overall
class size was still 50, the prescribed number was 8; in 1973
and 1974, when the class size had doubled to 100, the
prescribed number of special admissions also doubled, to 16.
Id. at 164, 166.
From the year of the increase in class size -- 1971 -- through
1974, the special program resulted in the admission of 21
black students, 30 Mexican-Americans, and 12 Asians, for a
total of 63 minority students. Over the same period, the regular
admissions program produced 1 black, 6 Mexican-Americans,
Page 438 U. S. 276
and 37 Asians, for a total of 44 minority students. [Footnote 6]
Although disadvantaged whites applied to the special program
in large numbers, see n 5, supra, none received an offer of
admission through that process. Indeed, in 1974, at least, the
special committee explicitly considered only "disadvantaged"
special applicants who were members of one of the designated
minority groups. Record 171.
Allan Bakke is a white male who applied to the Davis Medical
School in both 1973 and 1974. In both years, Bakke's
application was considered under the general admissions
program, and he received an interview. His 1973 interview
was with Dr. Theodore C. West, who considered Bakke "a
very desirable applicant to [the] medical school." Id. at 225.
Despite a strong benchmark score of 468 out of 500, Bakke
was rejected. His application had come late in the year, and no
applicants in the general admissions process with scores below
470 were accepted after Bakke's application was completed.
Id. at 69. There were four special admissions slots unfilled at
that time, however, for which Bakke was not considered. Id. at
70. After his 1973 rejection, Bakke wrote to Dr. George H.
Lowrey, Associate Dean and Chairman of the Admissions
Committee, protesting that the special admissions program
operated as a racial and ethnic quota. Id. at 259.
Page 438 U. S. 277
Bakke's 1974 application was completed early in the year. Id.
at 70. His student interviewer gave him an overall rating of 94,
finding him "friendly, well tempered, conscientious and
delightful to speak with." Id. at 229. His faculty interviewer
was, by coincidence, the same Dr. Lowrey to whom he had
written in protest of the special admissions program. Dr.
Lowrey found Bakke "rather limited in his approach" to the
problems of the medical profession, and found disturbing
Bakke's "very definite opinions which were based more on his
personal viewpoints than upon a study of the total problem."
Id. at 226. Dr. Lowrey gave Bakke the lowest of his six
ratings, an 86; his total was 549 out of 600. Id. at 230. Again,
Bakke's application was rejected. In neither year did the
chairman of the admissions committee, Dr. Lowrey, exercise
his discretion to place Bakke on the waiting list. Id. at 64. In
both years, applicants were admitted under the special
program with grade point averages, MCT scores, and
benchmark scores significantly lower than Bakke's. [Footnote
7]
After the second rejection, Bakke filed the instant suit in the
Superior Court of California. [Footnote 8] He sought
mandatory, injunctive, and declaratory relief compelling his
admission to the Medical School. He alleged that the Medical
School's special admissions program operated to exclude him
from the
Page 438 U. S. 278
school on the basis of his race, in violation of his rights under
the Equal Protection Clause of the Fourteenth Amendment,
[Footnote 9] Art. I, § 21, of the California Constitution,
[Footnote 10] and § 601 of Title VI of the Civil Rights Act of
1964, 78 Stat. 252, 42 U.S.C. § 2000d. [Footnote 11] The
University cross-complained for a declaration that its special
admissions program was lawful. The trial
Page 438 U. S. 279
court found that the special program operated as a racial quota
because minority applicants in the special program were rated
only against one another, Record 388, and 16 places in the
class of 100 were reserved for them. Id. at 295-296. Declaring
that the University could not take race into account in making
admissions decisions, the trial court held the challenged
program violative of the Federal Constitution, the State
Constitution, and Title VI. The court refused to order Bakke's
admission, however, holding that he had failed to carry his
burden of proving that he would have been admitted but for
the existence of the special program.
Bakke appealed from the portion of the trial court judgment
denying him admission, and the University appealed from the
decision that its special admissions program was unlawful and
the order enjoining it from considering race in the processing
of applications. The Supreme Court of California transferred
the case directly from the trial court, "because of the
importance of the issues involved." 18 Cal.3d 34, 39, 553 P.2d
1152, 1156 (1976). The California court accepted the findings
of the trial court with respect to the University's program.
[Footnote 12] Because the special admissions program
involved a racial classification, the Supreme Court held itself
bound to apply strict scrutiny. Id. at 49, 553 P.2d at 1162-
1163. It then turned to the goals of the University presented as
justifying the special program. Although the court agreed that
the goals of integrating the medical profession and increasing
the number of physicians willing to serve members of
minority groups were compelling state interests, id. at 53, 553
P.2d at 1165, it concluded that the special admissions program
was not the least intrusive means of achieving those goals.
Without passing on the state constitutional or federal statutory
grounds cited in the trial court's judgment, the California court
held
Page 438 U. S. 280
that the Equal Protection Clause of the Fourteenth Amendment
required that
"no applicant may be rejected because of his race, in favor of
another who is less qualified, as measured by standards
applied without regard to race."
Id. at 55, 553 P.2d at 1166.
Turning to Bakke's appeal, the court ruled that, since Bakke
had established that the University had discriminated against
him on the basis of his race, the burden of proof shifted to the
University to demonstrate that he would not have been
admitted even in the absence of the special admissions
program. [Footnote 13] Id. at 63-64, 553 P.2d at 1172. The
court analogized Bakke's situation to that of a plaintiff under
Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-
17 (1970 ed., Supp. V), see, e.g., Franks v. Bowman
Transportation Co., 424 U. S. 747, 424 U. S. 772 (176). 18
Cal.3d at 64, 553 P.2d at 1172. On this basis, the court initially
ordered a remand for the purpose of determining whether,
under the newly allocated burden of proof, Bakke would have
been admitted to either the 1973 or the 1974 entering class in
the absence of the special admissions program. App. A to
Application for Stay 4. In its petition for rehearing below,
however, the University conceded its inability to carry that
burden. App. B to Application for Stay A19-A20. [Footnote
14] The
Page 438 U. S. 281
California court thereupon amended its opinion to direct that
the trial court enter judgment ordering Bakke's admission to
the Medical School. 18 Cal.3d at 64, 553. P.2d at 1172. That
order was stayed pending review in this Court. 429 U.S. 953
(1976). We granted certiorari to consider the important
constitutional issue. 429 U.S. 1090 (1977).
II
In this Court, the parties neither briefed nor argued the
applicability of Title VI of the Civil Rights Act of 1964.
Rather, as had the California court, they focused exclusively
upon the validity of the special admissions program under the
Equal Protection Clause. Because it was possible, however,
that a decision on Title VI might obviate resort to
constitutional interpretation, see Ashwander v. TVA, 297 U.
S. 288, 297 U. S. 346-348 (1936) (concurring opinion), we
requested supplementary briefing on the statutory issue. 434
U.S. 900 (1977).
A The language of § 601, 78 Stat. 252, like that of the Equal
At the outset, we face the question whether a right of action
for private parties exists under Title VI. Respondent argues
that there is a private right of action, invoking the test set forth
in Cort v. Ash, 422 U. S. 66, 422 U. S. 78 (1975). He contends
Page 438 U. S. 282
that the statute creates a federal right in his favor, that
legislative history reveals an intent to permit private actions,
[Footnote 15] that such actions would further the remedial
purposes of the statute, and that enforcement of federal rights
under the Civil Rights Act generally is not relegated to the
States. In addition, he cites several lower court decisions
which have recognized or assumed the existence of a private
right of action. [Footnote 16] Petitioner denies the existence of
a private right of action, arguing that the sole function of §
601, see n 11, supra, was to establish a predicate for
administrative action under § 602, 78 Stat. 252, 42 U.S.C. §
2000d-1. [Footnote 17] In its view, administrative curtailment
of federal funds under that section was the only sanction to be
imposed upon recipients that
Page 438 U. S. 283
violated § 601. Petitioner also points out that Title VI contains
no explicit grant of a private right of action, in contrast to
Titles II, III, IV, and VII, of the same statute, 42 U.S.C. §§
2000a-3(a), 2000b-2, 2000c-8, and 2000e-5 =(f) (1970 ed. and
Supp. V). [Footnote 18]
We find it unnecessary to resolve this question in the instant
case. The question of respondent's right to bring an action
under Title VI was neither argued nor decided in either of the
courts below, and this Court has been hesitant to review
questions not addressed below. McGoldrick v. Companie
Generale Transatlantique, 309 U. S. 430, 309 U. S. 434-435
(1940). See also Massachusetts v. Westcott, 431 U. S. 322
(1977); Cardinale v. Louisiana, 394 U. S. 437, 394 U. S. 439
(1969). Cf. Singleton v. Wulff, 428 U. S. 106, 428 U. S. 121
(1976). We therefore do not address this difficult issue.
Similarly, we need not pass
Page 438 U. S. 284
upon petitioner's claim that private plaintiffs under Title VI
must exhaust administrative remedies. We assume, only for
the purposes of this case, that respondent has a right of action
under Title VI. See Lau v. Nichols, 414 U. S. 563, 414 U. S.
571 n. 2 (1974) (STEWART, J., concurring in result).
B
Protection Clause, is majestic in its sweep:
"No person in the United States shall, on the ground of race,
color, or national origin, be excluded from participation in, be
denied the benefits of, or be subjected to discrimination under
any program or activity receiving Federal financial
assistance."
The concept of "discrimination," like the phrase "equal
protection of the laws," is susceptible of varying
interpretations, for, as Mr. Justice Holmes declared,
"[a] word is not a crystal, transparent and unchanged, it is the
skin of a living thought, and may vary greatly in color and
content according to the circumstances and the time in which
it is used."
Towne v. Eisner, 245 U. S. 418, 245 U. S. 425 (1918). We
must, therefore, seek whatever aid is available in determining
the precise meaning of the statute before us. Train v. Colorado
Public Interest Research Group, 426 U. S. 1, 426 U. S. 10
(1976), quoting United States v. American Trucking Assns.,
310 U. S. 534, 310 U. S. 543-544 (1940). Examination of the
voluminous legislative history of Title VI reveals a
congressional intent to halt federal funding of entities that
violate a prohibition of racial discrimination similar to that of
the Constitution. Although isolated statements of various
legislators, taken out of context, can be marshaled in support
of the proposition that § 601 enacted a purely color-blind
scheme, [Footnote 19] without regard to the reach of the Equal
Protection
Page 438 U. S. 285
Clause, these comments must be read against the background
of both the problem that Congress was addressing and the
broader view of the statute that emerges from a full
examination of the legislative debates.
The problem confronting Congress was discrimination against
Negro citizens at the hands of recipients of federal moneys.
Indeed, the color blindness pronouncements cited in the
margin at n19 generally occur in the midst of extended
remarks dealing with the evils of segregation in federally
funded programs. Over and over again, proponents of the bill
detailed the plight of Negroes seeking equal treatment in such
programs. [Footnote 20] There simply was no reason for
Congress to consider the validity of hypothetical preferences
that might be accorded minority citizens; the legislators were
dealing with the real and pressing problem of how to
guarantee those citizens equal treatment.
In addressing that problem, supporters of Title VI repeatedly
declared that the bill enacted constitutional principles. For
example, Representative Celler, the Chairman of the House
Judiciary Committee and floor manager of the legislation in
the House, emphasized this in introducing the bill:
"The bill would offer assurance that hospitals financed by
Federal money would not deny adequate care to Negroes. It
would prevent abuse of food distribution programs whereby
Negroes have been known to be denied food
Page 438 U. S. 286
surplus supplies when white persons were given such food. It
would assure Negroes the benefits now accorded only white
students in programs of high[er] education financed by Federal
funds. It would, in short, assure the existing right to equal
treatment in the enjoyment of Federal funds. It would not
destroy any rights of private property or freedom of
association."
110 Cong.Rec. 1519 (1964) (emphasis added). Other sponsors
shared Representative Celler's view that Title VI embodied
constitutional principles. [Footnote 21]
In the Senate, Senator Humphrey declared that the purpose of
Title VI was "to insure that Federal funds are spent in
accordance with the Constitution and the moral sense of the
Nation." Id. at 6544. Senator Ribicoff agreed that Title VI
embraced the constitutional standard:
"Basically, there is a constitutional restriction against
discrimination in the use of federal funds; and title VI simply
spells out the procedure to be used in enforcing that
restriction."
Id. at 13333. Other Senators expressed similar views.
[Footnote 22]
Further evidence of the incorporation of a constitutional
standard into Title VI appears in the repeated refusals of the
legislation's supporters precisely to define the term
"discrimination." Opponents sharply criticized this failure,
[Footnote 23] but proponents of the bill merely replied that the
meaning of
Page 438 U. S. 287
"discrimination" would be made clear by reference to the
Constitution or other existing law. For example, Senator
Humphrey noted the relevance of the Constitution:
"As I have said, the bill has a simple purpose. That purpose is
to give fellow citizens -- Negroes -- the same rights and
opportunities that white people take for granted. This is no
more than what was preached by the prophets, and by Christ
Himself. It is no more than what our Constitution guarantees."
Id. at 6553. [Footnote 24]
In view of the clear legislative intent, Title VI must be held to
proscribe only those racial classifications that would violate
the Equal Protection Clause or the Fifth Amendment.
III
A
Petitioner does not deny that decisions based on race or ethnic
origin by faculties and administrations of state universities are
reviewable under the Fourteenth Amendment. See, e.g.,
Missouri ex rel. Gaines v. Canada, 305 U. S. 337 (1938);
Sipuel v. Board of Regents, 332 U. S. 631 (1948); Sweatt v.
Painter, 339 U. S. 629 (1950); McLaurin v. Oklahoma State
Regents, 339 U. S. 637 (1950). For his part, respondent does
not argue that all racial or ethnic classifications are per se
invalid. See, e.g., Hirabayashi v. United States, 320 U. S. 81
(1943); Korematsu v. United States, 323 U. S. 214 (1944); Lee
v. Washington, 390 U. S. 333, 390 U. S. 334 (1968) (Black,
Harlan, and STEWART, JJ., concurring); United Jewish
Organizations v. Carey, 430 U. S. 144 (1977). The parties do
disagree as to the level of judicial scrutiny to be applied to the
special admissions program. Petitioner argues that the court
below erred in applying strict scrutiny, as this inexact term has
been
Page 438 U. S. 288
applied in our cases. That level of review, petitioner asserts,
should be reserved for classifications that disadvantage
"discrete and insular minorities." See United States v.
Carolene Products Co., 304 U. S. 144, 304 U. S. 152 n. 4
(1938). Respondent, on the other hand, contends that the
California court correctly rejected the notion that the degree of
Judicial scrutiny accorded a particular racial or ethnic
classification hinges upon membership in a discrete and
insular minority and duly recognized that the "lights
established [by the Fourteenth Amendment] are personal
rights." Shelley v. Kraemer, 334 U. S. 1, 334 U. S. 22 (1948).
En route to this crucial battle over the scope of judicial review,
[Footnote 25] the parties fight a sharp preliminary action over
the proper characterization of the special admissions program.
Petitioner prefers to view it as establishing a "goal" of
minority representation in the Medical School. Respondent,
echoing the courts below, labels it a racial quota. [Footnote
26]
Page 438 U. S. 289
This semantic distinction is beside the point: the special
admissions program is undeniably a classification based on
race and ethnic background. To the extent that there existed a
pool of at least minimally qualified minority applicants to fill
the 16 special admissions seats, white applicants could
compete only for 84 seats in the entering class, rather than the
100 open to minority applicants. Whether this limitation is
described as a quota or a goal, it is a line drawn on the basis of
race and ethnic status. [Footnote 27]
The guarantees of the Fourteenth Amendment extend to all
persons. Its language is explicit: "No State shall . . . deny to
any person within its jurisdiction the equal protection of the
laws." It is settled beyond question that the
"rights created by the first section of the Fourteenth
Amendment are, by its terms, guaranteed to the individual.
The rights established are personal rights,"
Shelley v. Kraemer, supra at 334 U. S. 22. Accord, Missouri
ex rel. Gaines v. Canada, supra at 305 U. S. 351; McCabe v.
Atchison, T. & S.F. R. Co., 235 U. S. 151, 235 U. S. 161-162
(1914). The guarantee of equal protection cannot mean one
thing when applied to one individual and something else when
Page 438 U. S. 290
applied to a person of another color. If both are not accorded
the same protection, then it is not equal.
Nevertheless, petitioner argues that the court below erred in
applying strict scrutiny to the special admissions program
because white males, such as respondent, are not a "discrete
and insular minority" requiring extraordinary protection from
the majoritarian political process. Carolene Products Co.,
supra at 304 U. S. 152-153, n. 4. This rationale, however, has
never been invoked in our decisions as a prerequisite to
subjecting racial or ethnic distinctions to strict scrutiny. Nor
has this Court held that discreteness and insularity constitute
necessary preconditions to a holding that a particular
classification is invidious. [Footnote 28] See, e.g., Skinner v.
Oklahoma ex rel. Williamson, 316 U. S. 535, 316 U. S. 541
(1942); Carrington v. Rash, 380 U. S. 89, 380 U. S. 96-97
(1965). These characteristics may be relevant in deciding
whether or not to add new types of classifications to the list of
"suspect" categories or whether a particular classification
survives close examination. See, e.g., Massachusetts Board of
Retirement v. Murgia, 427 U. S. 307, 427 U. S. 313 (1976)
(age); San Antonio Independent School Dist. v. Rodriguez,
411 U. S. 1, 411 U. S. 28 (1973) (wealth); Graham v.
Richardson, 403 U. S. 365, 403 U. S. 372 (1971) (aliens).
Racial and ethnic classifications, however, are subject to
stringent examination without regard to these additional
characteristics. We declared as much in the first cases
explicitly to recognize racial distinctions as suspect:
"Distinctions between citizens solely because of their ancestry
are, by their very nature, odious to a free people
Page 438 U. S. 291
whose institutions are founded upon the doctrine of equality."
Hirabayashi, 320 U.S. at 320 U. S. 100.
"[A]ll legal restrictions which curtail the civil rights of a single
racial group are immediately suspect. That is not to say that all
such restrictions are unconstitutional. It is to say that courts
must subject them to the most rigid scrutiny."
Korematsu, 323 U.S. at 323 U. S. 216. The Court has never
questioned the validity of those pronouncements. Racial and
ethnic distinctions of any sort are inherently suspect, and thus
call for the most exacting judicial examination.
B
This perception of racial and ethnic distinctions is rooted in
our Nation's constitutional and demographic history. The
Court's initial view of the Fourteenth Amendment was that its
"one pervading purpose" was

"the freedom of the slave race, the security and firm
establishment of that freedom, and the protection of the newly-
made freeman and citizen from the oppressions of those who
had formerly exercised dominion over him."
Slaughter-House Cases, 16 Wall. 36, 83 U. S. 71 (1873). The
Equal Protection Clause, however, was "[v]irtually strangled
in infancy by post-civil-war judicial reactionism." [Footnote
29] It was relegated to decades of relative desuetude while the
Due Process Clause of the Fourteenth Amendment, after a
short germinal period, flourished as a cornerstone in the
Court's defense of property and liberty of contract. See, e.g.,
Mugler v. Kansas, 123 U. S. 623, 123 U. S. 661 (1887);
Allgeyer v. Louisiana, 165 U. S. 578 (1897); Lochner v. New
York, 198 U. S. 45 (1905). In that cause, the Fourteenth
Amendment's "one pervading purpose" was displaced. See,
e.g., Plessy v. Ferguson, 163 U. S. 537 (1896). It was only as
the era of substantive due process came to a close, see, e.g.,
291 U. S. New
Page 438 U. S. 292
York, 291 U. S. 502 (1934); West Coast Hotel Co. v. Parrish,
300 U. S. 379 (1937), that the Equal Protection Clause began
to attain a genuine measure of vitality, see, e.g., United States
v. Carolene Products, 304 U. S. 144 (1938); Skinner v.
Oklahoma ex rel. Williamson, supra.
By that time ,it was no longer possible to peg the guarantees of
the Fourteenth Amendment to the struggle for equality of one
racial minority. During the dormancy of the Equal Protection
Clause, the United States had become a Nation of minorities.
[Footnote 30] Each had to struggle [Footnote 31] -- and, to
some extent, struggles still [Footnote 32] -- to overcome the
prejudices not of a monolithic majority, but of a "majority"
composed of various minority groups of whom it was said --
perhaps unfairly, in many cases -- that a shared characteristic
was a willingness to disadvantage other groups. [Footnote 33]
As the Nation filled with the stock of many lands, the reach of
the Clause was gradually extended to all ethnic groups seeking
protection from official discrimination. See Strauder v. West
Virginia, 100 U. S. 303, 100 U. S. 308 (1880) (Celtic
Irishmen) (dictum); Yick Wo v. Hopkins, 118 U. S. 356
(1886) (Chinese); Truax v. Raich, 239 U. S. 33, 239 U. S. 41
(1915) (Austrian resident aliens); Korematsu, supra,
(Japanese); Hernandez v. Texas, 347 U. S. 475 (1954)
(Mexican-Americans). The guarantees of equal protection,
said the Court in
Page 438 U. S. 293
Yick Wo,
"are universal in their application, to all persons within the
territorial jurisdiction, without regard to any differences of
race, of color, or of nationality; and the equal protection of the
laws is a pledge of the protection of equal laws."
118 U.S. at 118 U. S. 369.
Although many of the Framers of the Fourteenth Amendment
conceived of its primary function as bridging the vast distance
between members of the Negro race and the white "majority,"
Slaughter-House Cases, supra, the Amendment itself was
framed in universal terms, without reference to color, ethnic
origin, or condition of prior servitude. As this Court recently
remarked in interpreting the 1866 Civil Rights Act to extend to
claims of racial discrimination against white persons,
"the 39th Congress was intent upon establishing in the federal
law a broader principle than would have been necessary
simply to meet the particular and immediate plight of the
newly freed Negro slaves."
McDonald v. Santa Fe Trail Transportation Co., 427 U. S.
273, 427 U. S. 296 (1976). And that legislation was
specifically broadened in 1870 to ensure that "all persons," not
merely "citizens," would enjoy equal rights under the law. See
Runyon v. McCrary, 427 U. S. 160, 427 U. S. 192-202 (1976)
(WHITE, J., dissenting). Indeed, it is not unlikely that, among
the Framers, were many who would have applauded a reading
of the Equal Protection Clause that states a principle of
universal application and is responsive to the racial, ethnic,
and cultural diversity of the Nation. See, e.g., Cong.Globe,
39th Cong., 1st Sess., 1056 (1866) (remarks of Rep. Niblack);
id. at 2891-2892 (remarks of Sen. Conness); id. 40th Cong., 2d
Sess., 883 (1868) (remarks of Sen. Howe) (Fourteenth
Amendment "protect[s] classes from class legislation"). See
also Bickel, The Original Understanding and the Segregation
Decision, 69 Harv.L.Rev. 1, 60-63 (1955).
Over the past 30 years, this Court has embarked upon the
crucial mission of interpreting the Equal Protection Clause
with the view of assuring to all persons "the protection of
Page 438 U. S. 294
equal laws," Yick Wo, supra at 118 U. S. 369, in a Nation
confronting a legacy of slavery and racial discrimination. See,
e.g., Shelley v. Kraemer, 334 U. S. 1 (1948); Brown v. Bard of
Education, 347 U. S. 483 (1954); Hills v. Gautreaux, 425 U. S.
284 (1976). Because the landmark decisions in this area arose
in response to the continued exclusion of Negroes from the
mainstream of American society, they could be characterized
as involving discrimination by the "majority" white race
against the Negro minority. But they need not be read as
depending upon that characterization for their results. It
suffices to say that,
"[o]ver the years, this Court has consistently repudiated
'[d]istinctions between citizens solely because of their
ancestry' as being 'odious to a free people whose institutions
are founded upon the doctrine of equality.'"
Loving v. Virginia, 388 U. S. 1, 388 U. S. 11 (1967), quoting
Hirabayashi, 320 U.S. at 320 U. S. 100.
Petitioner urges us to adopt for the first time a more restrictive
view of the Equal Protection Clause, and hold that
discrimination against members of the white "majority" cannot
be suspect if its purpose can be characterized as "benign."
[Footnote 34]
Page 438 U. S. 295
The clock of our liberties, however, cannot be turned back to
1868. Brown v. Board of Education, supra at 347 U. S. 492;
accord, Loving v. Virginia supra at 388 U. S. 9. It is far too
late to argue that the guarantee of equal protection to all
persons permits the recognition of special wards entitled to a
degree of protection greater than that accorded others.
[Footnote 35]
"The Fourteenth Amendment is not directed solely against
discrimination due to a 'two-class theory' -- that is, bad upon
differences between 'white' and Negro."
Hernandez, 347 U.S. at 347 U. S. 478.
Once the artificial line of a "two-class theory" of the
Fourteenth Amendment is put aside, the difficulties entailed in
varying the level of judicial review according to a perceived
"preferred" status of a particular racial or ethnic minority are
intractable. The concepts of "majority" and "minority"
necessarily reflect temporary arrangements and political
judgments. As observed above, the white "majority" itself is
composed of various minority groups, most of which can lay
claim to a history of prior discrimination at the hands of the
State and private individuals. Not all of these groups can
receive preferential treatment and corresponding judicial
tolerance
Page 438 U. S. 296
of distinctions drawn in terms of race and nationality, for then
the only "majority" left would be a new minority of white
Anglo-Saxon Protestants. There is no principled basis for
deciding which groups would merit "heightened judicial
solicitude" and which would not. [Footnote 36] Courts would
be asked to evaluate the extent of the prejudice and consequent
Page 438 U. S. 297
harm suffered by various minority groups. Those whose
societal injury is thought to exceed some arbitrary level of
tolerability then would be entitled to preferential
classifications at the expense of individuals belonging to other
groups. Those classifications would be free from exacting
judicial scrutiny. As these preferences began to have their
desired effect, and the consequences of past discrimination
were undone, new judicial rankings would be necessary. The
kind of variable sociological and political analysis necessary
to produce such rankings simply does not lie within the
judicial competence -- even if they otherwise were politically
feasible and socially desirable. [Footnote 37]
Page 438 U. S. 298
Moreover, there are serious problems of justice connected
with the idea of preference itself. First, it may not always be
clear that a so-called preference is, in fact, benign. Courts may
be asked to validate burdens imposed upon individual
members of a particular group in order to advance the group's
general interest. See United Jewish Organizations v. Carey,
430 U.S. at 430 U. S. 172-173 (BRENNAN, J., concurring in
part). Nothing in the Constitution supports the notion that
individuals may be asked to suffer otherwise impermissible
burdens in order to enhance the societal standing of their
ethnic groups. Second, preferential programs may only
reinforce common stereotypes holding that certain groups are
unable to achieve success without special protection based on
a factor having no relationship to individual worth. See
DeFunis v. Odegaard, 416 U. S. 312, 416 U. S. 343 (1974)
(Douglas, J., dissenting). Third, there is a measure of inequity
in forcing innocent persons in respondent's position to bear the
burdens of redressing grievances not of their making.
By hitching the meaning of the Equal Protection Clause to
these transitory considerations, we would be holding, as a
constitutional principle, that judicial scrutiny of classifications
touching on racial and ethnic background may vary with the
ebb and flow of political forces. Disparate constitutional
tolerance of such classifications well may serve to exacerbate
Page 438 U. S. 299
racial and ethnic antagonisms, rather than alleviate them.
United Jewish Organizations, supra at 430 U. S. 173-174
(BRENNAN, J., concurring in part). Also, the mutability of a
constitutional principle, based upon shifting political and
social judgments, undermines the chances for consistent
application of the Constitution from one generation to the
next, a critical feature of its coherent interpretation. Pollock v.
Farmers' Loan & Trust Co., 157 U. S. 429, 157 U. S. 650-651
(1895) (White, J., dissenting). In expounding the Constitution,
the Court's role is to discern
"principles sufficiently absolute to give them roots throughout
the community and continuity over significant periods of time,
and to lift them above the level of the pragmatic political
judgments of a particular time and place."
A. Cox, The Role of the Supreme Court in American
Government 114 (1976).
If it is the individual who is entitled to judicial protection
against classifications based upon his racial or ethnic
background because such distinctions impinge upon personal
rights, rather than the individual only because of his
membership in a particular group, then constitutional
standards may be applied consistently. Political judgments
regarding the necessity for the particular classification may be
weighed in the constitutional balance, Korematsu v. United
States, 323 U. S. 214 (1944), but the standard of justification
will remain constant. This is as it should be, since those
political judgments are the product of rough compromise
struck by contending groups within the democratic process.
[Footnote 38] When they touch upon an individual's race or
ethnic background, he is entitled to a judicial determination
that the burden he is asked to bear on that basis is precisely
tailored to serve a compelling governmental interest. The
Constitution guarantees that right to every person regardless of
his background. Shelley v. Kraemer, 334 U.S. at 334 U. S. 22;
Missouri ex rel. Gaines v. Canada, 305 U.S. at 305 U. S. 351.
Page 438 U. S. 300
C 442 F.2d 159 (CA3), cert. denied, 404 U.S. 854 (1971);
Petitioner contends that, on several occasions, this Court has
approved preferential classifications without applying the most
exacting scrutiny. Most of the cases upon which petitioner
relies are drawn from three areas: school desegregation,
employment discrimination, and sex discrimination. Each of
the cases cited presented a situation materially different from
the facts of this case.
The school desegregation cases are inapposite. Each involved
remedies for clearly determined constitutional violations. E.g.,
Swann v. Charlotte-Mecklenburg Board of Education, 402 U.
S. 1 (1971); McDaniel v. Barresi, 402 U. S. 39 (1971); Green
v. County School Board, 391 U. S. 430 (1968). Racial
classifications thus were designed as remedies for the
vindication of constitutional entitlement. [Footnote 39]
Moreover, the scope of the remedies was not permitted to
exceed the extent of the
Page 438 U. S. 301
violations. E.g., Dayton Board of Education v. Brinkman, 433
U. S. 406 (1977); Milliken v. Bradley, 418 U. S. 717 (1974);
see Pasadena City Board of Education v. Spangler, 427 U. S.
424 (1976). See also Austin Independent School Dist. v.
United States, 429 U.S. 990, 991-995 (1976) (POWELL, J.,
concurring). Here, there was no judicial determination of
constitutional violation as a predicate for the formulation of a
remedial classification.
The employment discrimination cases also do not advance
petitioner's cause. For example, in Franks v. Bowman
Transportation Co., 424 U. S. 747 (1976), we approved a
retroactive award of seniority to a class of Negro truckdrivers
who had been the victims of discrimination -- not just by
society at large, but by the respondent in that case. While this
relief imposed some burdens on other employees, it was held
necessary "to make [the victims] whole for injuries suffered on
account of unlawful employment discrimination.'" Id. at 424
U. S. 763, quoting Albemarle Paper Co. v. Moody, 422 U. S.
405, 422 U. S. 418 (1975). The Courts of Appeals have
fashioned various types of racial preferences as remedies for
constitutional or statutory violations resulting in identified,
race-based injuries to individuals held entitled to the
preference. E.g., Bridgeport Guardians, Inc. v. Bridgeport
Civil Service Commission, 482 F.2d 1333 (CA2 1973); Carter
v. Gallagher, 452 F.2d 315 (CA8 1972), modified on rehearing
en banc, id. at 327. Such preferences also have been upheld
where a legislative or administrative body charged with the
responsibility made determinations of past discrimination by
the industries affected, and fashioned remedies deemed
appropriate to rectify the discrimination. E.g., Contractors
Association of Eastern Pennsylvania v. Secretary of Labor,
[Footnote 40] Associated General
Page 438 U. S. 302
Contractors of Massachusetts, Inc. v. Altshuler, 490 F.2d 9
(CA1 1973), cert. denied, 416 U.S. 957 (1974); cf. Katzenbach
v. Morgan, 384 U. S. 641 (1966). But we have never approved
preferential classifications in the absence of proved
constitutional or statutory violations. [Footnote 41]
Nor is petitioner's view as to the applicable standard supported
by the fact that gender-based classifications are not subjected
to this level of scrutiny. E g., Califano v. Webster, 430 U. S.
313, 430 U. S. 316-317 (1977); Craig v. Boren, 429 U. S. 190,
429 U. S. 211 n. (1976) (POWELL, J., concurring). Gender-
based distinctions are less likely to create the analytical and
practical
Page 438 U. S. 303
problems present in preferential programs premised on racial
or ethnic criteria. With respect to gender, there are only two
possible classifications. The incidence of the burdens imposed
by preferential classifications is clear. There are no rival
groups which can claim that they, too, are entitled to
preferential treatment. Classwide questions as to the group
suffering previous injury and groups which fairly can be
burdened are relatively manageable for reviewing courts. See,
e.g., Califano v. Goldfarb, 430 U. S. 199, 430 U. S. 212-217
(1977); Weinberger v. Wiesenfeld, 420 U. S. 636, 420 U. S.
645 (1975). The resolution of these same questions in the
context of racial and ethnic preferences presents far more
complex and intractable problems than gender-based
classifications. More importantly, the perception of racial
classifications as inherently odious stems from a lengthy and
tragic history that gender-based classifications do not share. In
sum, the Court has never viewed such classification as
inherently suspect or as comparable to racial or ethnic
classifications for the purpose of equal protection analysis.
Petitioner also cites Lau v. Nichols, 414 U. S. 563 (1974), in
support of the proposition that discrimination favoring racial
or ethnic minorities has received judicial approval without the
exacting inquiry ordinarily accorded "suspect" classifications.
In Lau, we held that the failure of the San Francisco school
system to provide remedial English instruction for some 1,800
students of oriental ancestry who spoke no English amounted
to a violation of Title VI of the Civil Rights Act of 1964, 42
U.S.C. § 2000d, and the regulations promulgated thereunder.
Those regulations required remedial instruction where
inability to understand English excluded children of foreign
ancestry from participation in educational programs. 414 U.S.
at 414 U. S. 568. Because we found that the students in Lau
were denied "a meaningful opportunity to participate in the
educational program," ibid., we remanded for the fashioning
of a remedial order.
Page 438 U. S. 304
Lau provides little support for petitioner's argument. The
decision rested solely on the statute, which had been construed
by the responsible administrative agency to each educational
practices "which have the effect of subjecting individuals to
discrimination," ibid. We stated:
"Under these state-imposed standards, there is no equality of
treatment merely by providing students with the same
facilities, textbooks, teachers, and curriculum, for students
who do not understand English are effectively foreclosed from
any meaningful education."
Id. at 414 U. S. 566. Moreover, the "preference" approved did
not result in the denial of the relevant benefit -- "meaningful
opportunity to participate in the educational program" -- to
anyone else. No other student was deprived by that preference
of the ability to participate in San Francisco's school system,
and the applicable regulations required similar assistance for
all students who suffered similar linguistic deficiencies. Id. at
414 U. S. 570-571 (STEWART, J., concurring in result).
In a similar vein, [Footnote 42] petitioner contends that our
recent decision in United Jewish Organization v. Carey, 430
U. S. 144 (1977), indicates a willingness to approve racial
classifications designed to benefit certain minorities, without
denominating the classifications as "suspect." The State of
New York had redrawn its reapportionment plan to meet
objections of the Department of Justice under § 5 of the
Voting Rights Act of 1965, 42 U.S.C. § 1973c (1970 ed.,
Supp. V). Specifically, voting districts were redrawn to
enhance the electoral power
Page 438 U. S. 305
of certain "nonwhite" voters found to have been the victims of
unlawful "dilution" under the original reapportionment plan.
United Jewish Organizations, like Lau, properly is viewed as a
case in which the remedy for an administrative finding of
discrimination encompassed measures to improve the
previously disadvantaged group's ability to participate, without
excluding individuals belonging to any other group from
enjoyment of the relevant opportunity -- meaningful
participation in the electoral process.
In this case, unlike Lau and United Jewish Organizations,
there has been no determination by the legislature or a
responsible administrative agency that the University engaged
in a discriminatory practice requiring remedial efforts.
Moreover, the operation of petitioner's special admissions
program is quite different from the remedial measures
approved in those cases. It prefers the designated minority
groups at the expense of other individuals who are totally
foreclosed from competition for the 16 special admissions
seats in every Medical School class. Because of that
foreclosure, some individuals are excluded from enjoyment of
a state-provided benefit -- admission to the Medical School --
they otherwise would receive. When a classification denies an
individual opportunities or benefits enjoyed by others solely
because of his race or ethnic background, it must be regarded
as suspect. E.g., McLaurin v. Oklahoma State Regents, 339
U.S. at 339 U. S. 641-642.
IV
We have held that, in
"order to justify the use of a suspect classification, a State
must show that its purpose or interest is both constitutionally
permissible and substantial, and that its use of the
classification is 'necessary . . . to the accomplishment' of its
purpose or the safeguarding of its interest."
In re Griffiths, 413 U. S. 717, 413 U. S. 721-722 (1973)
(footnotes omitted); Loving v. Virginia, 388 U.S. at 388 U. S.
11; McLaughlin v. Florida, 379 U. S. 184, 379 U. S. 196
(1964). The special admissions
Page 438 U. S. 306
program purports to serve the purposes of: (i) "reducing the
historic deficit of traditionally disfavored minorities in
medical schools and in the medical profession," Brief for
Petitioner 32; (ii) countering the effects of societal
discrimination; [Footnote 43] (iii) increasing the number of
physicians who will practice in communities currently
underserved; and (iv) obtaining the educational benefits that
flow from an ethnically diverse student body. It is necessary to
decide which, if any, of these purposes is substantial enough to
support the use of a suspect classification.
Page 438 U. S. 307
A the government has no compelling justification for inflicting
If petitioner's purpose is to assure within its student body some
specified percentage of a particular group merely because of
its race or ethnic origin, such a preferential purpose must be
rejected not as insubstantial, but as facially invalid. Preferring
members of any one group for no reason other than race or
ethnic origin is discrimination for its own sake. This the
Constitution forbids. E.g., Loving v. Virginia, supra at 388 U.
S. 11; McLaughlin v. Florida, supra at 379 U. S. 198; Brown
v. Board of Education, 347 U. S. 483 (1954).
B these sorts of findings in establishing a racial classification, a
The State certainly has a legitimate and substantial interest in
ameliorating, or eliminating where feasible, the disabling
effects of identified discrimination. The line of school
desegregation cases, commencing with Brown, attests to the
importance of this state goal and the commitment of the
judiciary to affirm all lawful means toward its attainment. In
the school cases, the States were required by court order to
redress the wrongs worked by specific instances of racial
discrimination. That goal was far more focused than the
remedying of the effects of "societal discrimination," an
amorphous concept of injury that may be ageless in its reach
into the past.
We have never approved a classification that aids persons
perceived as members of relatively victimized groups at the
expense of other innocent individuals in the absence of
judicial, legislative, or administrative findings of constitutional
or statutory violations. See, e.g., Teamsters v. United States,
431 U. S. 324, 431 U. S. 367-376 (1977); United Jewish
Organizations, 430 U.S. at 430 U. S. 155-156; South Carolina
v. Katzenbach, 383 U. S. 301, 383 U. S. 308 (1966). After
such findings have been made, the governmental interest in
preferring members of the injured groups at the expense of
others is substantial, since the legal rights of the victims must
be vindicated. In such a case, the
Page 438 U. S. 308
extent of the injury and the consequent remedy will have been
judicially, legislatively, or administratively defined. Also, the
remedial action usually remains subject to continuing
oversight to assure that it will work the least harm possible to
other innocent persons competing for the benefit. Without
such findings of constitutional or statutory violations,
[Footnote 44] it cannot be
Page 438 U. S. 309
said that the government has any greater interest in helping
one individual than in refraining from harming another. Thus,
such harm.
Petitioner does not purport to have made, and is in no position
to make, such findings. Its broad mission is education, not the
formulation of any legislative policy or the adjudication of
particular claims of illegality. For reasons similar to those
stated in 438 U. S. isolated segments of our vast governmental
structures are not competent to make those decisions, at least
in the absence of legislative mandates and legislatively
determined criteria. [Footnote 45] Cf. Hampton v. Mow Sun
Wong, 426 U. S. 88 (1976); n. 41, supra. Before relying upon
governmental body must have the authority and capability to
establish, in the record, that the classification is responsive to
identified discrimination. See, e.g., Califano v. Webster, 430
U.S. at 430 U. S. 316-321; Califano
Page 438 U. S. 310
v. Goldfarb, 430 U.S. at 430 U. S. 212-217. Lacking this
capability, petitioner has not carried its burden of justification
on this issue.
Hence, the purpose of helping certain groups whom the faculty
of the Davis Medical School perceived as victims of "societal
discrimination" does not justify a classification that imposes
disadvantages upon persons like respondent, who bear no
responsibility for whatever harm the beneficiaries of the
special admissions program are thought to have suffered. To
hold otherwise would be to convert a remedy heretofore
reserved for violations of legal rights into a privilege that all
institutions throughout the Nation could grant at their pleasure
to whatever groups are perceived as victims of societal
discrimination. That is a step we have never approved. Cf.
Pasadena Cty Board of Education v. Spangler, 427 U. S. 424
(1976).
C goal for an institution of higher education. Academic freedom,
Petitioner identifies, as another purpose of its program,
improving the delivery of health care services to communities
currently underserved. It may be assumed that, in some
situations, a State's interest in facilitating the health care of its
citizens is sufficiently compelling to support the use of a
suspect classification. But there is virtually no evidence in the
record indicating that petitioner's special admissions program
is either needed or geared to promote that goal. [Footnote 46]
The court below addressed this failure of proof:
"The University concedes it cannot assure that minority
doctors who entered under the program, all of whom
expressed an 'interest' in practicing in a disadvantaged
community, will actually do so. It may be correct to assume
that some of them will carry out this intention, and that it is
more likely they will practice in minority
Page 438 U. S. 311
communities than the average white doctor. (See Sandalow,
Racial Preferences in Higher Education: Political
Responsibility and the Judicial Role (1975) 42 U.Chi.L.Rev.
653, 688.) Nevertheless, there are more precise and reliable
ways to identify applicants who are genuinely interested in the
medical problems of minorities than by race. An applicant of
whatever race who has demonstrated his concern for
disadvantaged minorities in the past and who declares that
practice in such a community is his primary professional goal
would be more likely to contribute to alleviation of the
medical shortage than one who is chosen entirely on the basis
of race and disadvantage. In short, there is no empirical data to
demonstrate that any one race is more selflessly socially
oriented or by contrast that another is more selfishly
acquisitive."
18 Cal.3d at 56, 553 P.2d at 1167.
Petitioner simply has not carried its burden of demonstrating
that it must prefer members of particular ethnic groups over all
other individuals in order to promote better health care
delivery to deprived citizens. Indeed, petitioner has not shown
that its preferential classification is likely to have any
significant effect on the problem. [Footnote 47]
D right to select those students who will contribute the most to
The fourth goal asserted by petitioner is the attainment of a
diverse student body. This clearly is a constitutionally
permissible
Page 438 U. S. 312
though not a specifically enumerated constitutional right, long
has been viewed as a special concern of the First Amendment.
The freedom of a university to make its own judgments as to
education includes the selection of its student body. Mr.
Justice Frankfurter summarized the "four essential freedoms"
that constitute academic freedom:
"'It is the business of a university to provide that atmosphere
which is most conducive to speculation, experiment and
creation. It is an atmosphere in which there prevail 'the four
essential freedoms' of a university -- to determine for itself on
academic grounds who may teach, what may be taught, how it
shall be taught, and who may be admitted to study.'"
Sweezy v. New Hampshire, 354 U. S. 234, 354 U. S. 263
(1957) (concurring in result).
Our national commitment to the safeguarding of these
freedoms within university communities was emphasized in
Keyishian v. Board of Regents, 385 U. S. 589, 385 U. S. 603
(1967):
"Our Nation is deeply committed to safeguarding academic
freedom, which is of transcendent value to all of us, and not
merely to the teachers concerned. That freedom is therefore a
special concern of the First Amendment. . . . The Nation's
future depends upon leaders trained through wide exposure to
that robust exchange of ideas which discovers truth 'out of a
multitude of tongues, [rather] than through any kind of
authoritative selection.' United States v. Associated Press, 52
F.Supp. 362, 372."
The atmosphere of "speculation, experiment and creation" --
so essential to the quality of higher education -- is widely
believed to be promoted by a diverse student body. [Footnote
48] As the Court
Page 438 U. S. 313
noted in Keyishian, it is not too much to say that the "nation's
future depends upon leaders trained through wide exposure" to
the ideas and mores of students as diverse as this Nation of
many peoples.
Thus, in arguing that its universities must be accorded the
the "robust exchange of ideas," petitioner invokes a
countervailing constitutional interest, that of the First
Amendment. In this light, petitioner must be viewed as
seeking to achieve a goal that is of paramount importance in
the fulfillment of its mission.
It may be argued that there is greater force to these views at
the undergraduate level than in a medical school, where the
training is centered primarily on professional competency. But
even at the graduate level, our tradition and experience lend
support to the view that the contribution of diversity is
substantial. In Sweatt v. Painter, 339 U.S. at 339 U. S. 634, the
Page 438 U. S. 314
Court made a similar point with specific reference to legal
education:
"The law school, the proving ground for legal learning and
practice, cannot be effective in isolation from the individuals
and institutions with which the law interacts. Few students,
and no one who has practiced law, would choose to study in
an academic vacuum, removed from the interplay of ideas and
the exchange of views with which the law is concerned."
Physicians serve a heterogeneous population. An otherwise
qualified medical student with a particular background --
whether it be ethnic, geographic, culturally advantaged or
disadvantaged -- may bring to a professional school of
medicine experiences, outlooks, and ideas that enrich the
training of its student body and better equip its graduates to
render with understanding their vital service to humanity.
[Footnote 49]
Ethnic diversity, however, is only one element in a range of
factors a university properly may consider in attaining the goal
of a heterogeneous student body. Although a university must
have wide discretion in making the sensitive judgments as to
who should be admitted, constitutional limitations protecting
individual rights may not be disregarded. Respondent urges --
and the courts below have held -- that petitioner's dual
admissions program is a racial classification that
impermissibly infringes his rights under the Fourteenth
Amendment. As the interest of diversity is compelling in the
context of a university's admissions program, the question
remains whether the
Page 438 U. S. 315
program's racial classification is necessary to promote this
interest. In re Griffiths, 413 U.S. at 413 U. S. 721-722.
V that a Bostonian cannot offer. Similarly, a black student can
A
It may be assumed that the reservation of a specified number
of seats in each class for individuals from the preferred ethnic
groups would contribute to the attainment of considerable
ethnic diversity in the student body. But petitioner's argument
that this is the only effective means of serving the interest of
diversity is seriously flawed. In a most fundamental sense, the
argument misconceives the nature of the state interest that
would justify consideration of race or ethnic background. It is
not an interest in simple ethnic diversity, in which a specified
percentage of the student body is in effect guaranteed to be
members of selected ethnic groups, with the remaining
percentage an undifferentiated aggregation of students. The
diversity that furthers a compelling state interest encompasses
a far broader array of qualifications and characteristics, of
which racial or ethnic origin is but a single, though important,
element. Petitioner's special admissions program, focused
solely on ethnic diversity, would hinder, rather than further,
attainment of genuine diversity. [Footnote 50]
Nor would the state interest in genuine diversity be served by
expanding petitioner's two-track system into a multi-track
program with a prescribed number of seats set aside for each
identifiable category of applicants. Indeed, it is inconceivable
that a university would thus pursue the logic of petitioner's
two-track program to the illogical end of insulating each
category of applicants with certain desired qualifications from
competition with all other applicants.
Page 438 U. S. 316
The experience of other university admissions programs,
which take race into account in achieving the educational
diversity valued by the First Amendment, demonstrates that
the assignment of a fixed number of places to a minority group
is not a necessary means toward that end. An illuminating
example is found in the Harvard College program:
"In recent years, Harvard College has expanded the concept of
diversity to include students from disadvantaged economic,
racial and ethnic groups. Harvard College now recruits not
only Californians or Louisianans but also blacks and Chicanos
and other minority students. . . ."
"In practice, this new definition of diversity has meant that
race has been a factor in some admission decisions. When the
Committee on Admissions reviews the large middle group of
applicants who are 'admissible' and deemed capable of doing
good work in their courses, the race of an applicant may tip
the balance in his favor just as geographic origin or a life spent
on a farm may tip the balance in other candidates' cases. A
farm boy from Idaho can bring something to Harvard College
usually bring something that a white person cannot offer. . . .
[See Appendix hereto.]"
"In Harvard College admissions, the Committee has not set
target quotas for the number of blacks, or of musicians,
football players, physicists or Californians to be admitted in a
given year. . . . But that awareness [of the necessity of
including more than a token number of black students] does
not mean that the Committee sets a minimum number of
blacks or of people from west of the Mississippi who are to be
admitted. It means only that, in choosing among thousands of
applicants who are not only 'admissible' academically but have
other strong qualities, the Committee, with a number of
criteria in mind, pays some attention to distribution among
many
Page 438 U. S. 317
types and categories of students."
App. to Brief for Columbia University, Harvard University,
Stanford University, and the University of Pennsylvania, as
Amici Curiae 2-3.
In such an admissions program, [Footnote 51] race or ethnic
background may be deemed a "plus" in a particular applicant's
file, yet it does not insulate the individual from comparison
with all other candidates for the available seats. The file of a
particular black applicant may be examined for his potential
contribution to diversity without the factor of race being
decisive when compared, for example, with that of an
applicant identified as an Italian-American if the latter is
thought to exhibit qualities more likely to promote beneficial
educational pluralism. Such qualities could include
exceptional personal talents, unique work or service
experience, leadership potential, maturity, demonstrated
compassion, a history of overcoming disadvantage, ability to
communicate with the poor, or other qualifications deemed
important. In short, an admissions program operated in this
way is flexible enough to consider all pertinent elements of
diversity in light of the particular qualifications of each
applicant, and to place them on the same footing for
consideration, although not necessarily according them the
same weight. Indeed, the weight attributed to a
Page 438 U. S. 318
particular quality may vary from year to year depending upon
the "mix" both of the student body and the applicants for the
incoming class.
This kind of program treats each applicant as an individual in
the admissions process. The applicant who loses out on the
last available seat to another candidate receiving a "plus" on
the basis of ethnic background will not have been foreclosed
from all consideration for that seat simply because he was not
the right color or had the wrong surname. It would mean only
that his combined qualifications, which may have included
similar nonobjective factors, did not outweigh those of the
other applicant. His qualifications would have been weighed
fairly and competitively, and he would have no basis to
complain of unequal treatment under the Fourteenth
Amendment. [Footnote 52]
It has been suggested that an admissions program which
considers race only as one factor is simply a subtle and more
sophisticated -- but no less effective -- means of according
racial preference than the Davis program. A facial intent to
discriminate, however, is evident in petitioner's preference
program, and not denied in this case. No such facial infirmity
exists in an admissions program where race or ethnic
background is simply one element -- to be weighed fairly
against other elements -- in the selection process. "A boundary
line," as Mr. Justice Frankfurter remarked in another
connection, "is none the worse for being narrow." McLeod v.
Dilworth, 322 U. S. 327, 322 U. S. 329 (1944). And a court
would not assume that a university, professing to employ a
facially nondiscriminatory admissions policy, would operate it
as a cover for the functional equivalent of a quota system. In
short, good faith
Page 438 U. S. 319
would be presumed in the absence of a showing to the
contrary in the manner permitted by our cases. See, e.g.,
Arlington Heights v. Metropolitan Housing Dev. Corp., 429
U. S. 252 (1977); Washington v. Davis, 426 U. S. 229 (1976);
Swain v. Alabama, 380 U. S. 202 (165). [Footnote 53]
B
In summary, it is evident that the Davis special admissions
program involves the use of an explicit racial classification
never before countenanced by this Court. It tells applicants
who are not Negro, Asian, or Chicano that they are totally
excluded from a specific percentage of the seats in an entering
class. No matter how strong their qualifications, quantitative
and extracurricular, including their own potential for
contribution to educational diversity, they are never afforded
the chance to compete with applicants from the preferred
groups for the special admissions seats. At the same time, the
preferred
Page 438 U. S. 320
applicants have the opportunity to compete for every seat in
the class.
The fatal flaw in petitioner's preferential program is its
disregard of individual rights as guaranteed by the Fourteenth
Amendment. Shelley v. Kraemer, 334 U.S. at 334 U. S. 22.
Such rights are not absolute. But when a State's distribution of
benefits or imposition of burdens hinges on ancestry or the
color of a person's skin, that individual is entitled to a
demonstration that the challenged classification is necessary to
promote a substantial state interest. Petitioner has failed to
carry this burden. For this reason, that portion of the California
court's judgment holding petitioner's special admissions
program invalid under the Fourteenth Amendment must be
affirmed.
C over 1,100 -- the Committee seeks --
In enjoining petitioner from ever considering the race of any
applicant, however, the courts below failed to recognize that
the State has a substantial interest that legitimately may be
served by a properly devised admissions program involving
the competitive consideration of race and ethnic origin. For
this reason, so much of the California court's judgment as
enjoins petitioner from any consideration of the race of any
applicant must be reversed.
VI
With respect to respondent's entitlement to an injunction
directing his admission to the Medical School, petitioner has
conceded that it could not carry its burden of proving that, but
for the existence of its unlawful special admissions program,
respondent still would not have been admitted. Hence,
respondent is entitled to the injunction, and that portion of the
judgment must be affirmed. [Footnote 54]
Page 438 U. S. 321
|438 U.S. 265app|
APPENDIX TO OPINION OF POWELL, J.
Harvard College Admissions Program [Footnote 55]
For the past 30 years, Harvard College has received each year
applications for admission that greatly exceed the number of
places in the freshman class. The number of applicants who
are deemed to be not "qualified" is comparatively small. The
vast majority of applicants demonstrate through test scores,
high school records and teachers' recommendations that they
have the academic ability to do adequate work at Harvard, and
perhaps to do it with distinction. Faced with the dilemma of
choosing among a large number of "qualified" candidates, the
Committee on Admissions could use the single criterion of
scholarly excellence and attempt to determine who among the
candidates were likely to perform best academically. But for
the past 30 years, the Committee on Admissions has never
adopted this approach. The belief has been that, if scholarly
excellence were the sole or even predominant criterion,
Harvard College would lose a great deal of its vitality and
intellectual excellence, and that the quality of the educational
Page 438 U. S. 322
experience offered to all students would suffer. Final Report of
W. J. Bender, Chairman of the Admission and Scholarship
Committee and Dean of Admissions and Financial Aid, pp. 20
et seq. (Cambridge, 1960). Consequently, after selecting those
students whose intellectual potential will seem extraordinary
to the faculty -- perhaps 150 or so out of an entering class of
"variety in making its choices. This has seemed important . . .
in part because it adds a critical ingredient to the effectiveness
of the educational experience [in Harvard College]. . . . The
effectiveness of our students' educational experience has
seemed to the Committee to be affected as importantly by a
wide variety of interests, talents, backgrounds and career goals
as it is by a fine faculty and our libraries, laboratories and
housing arrangements."
Dean of Admissions Fred L. Glimp, Final Report to the
Faculty of Arts and Sciences, 65 Official Register of Harvard
University No. 25, 93, 10105 (1968) (emphasis supplied).
The belief that diversity adds an essential ingredient to the
educational process has long been a tenet of Harvard College
admissions. Fifteen or twenty years ago, however, diversity
meant students from California, New York, and
Massachusetts; city dwellers and farm boys; violinists,
painters and football players; biologists, historians and
classicists; potential stockbrokers, academics and politicians.
The result was that very few ethnic or racial minorities
attended Harvard College. In recent years, Harvard College
has expanded the concept of diversity to include students from
disadvantaged economic, racial and ethnic groups. Harvard
College now recruits not only Californians or Louisianans, but
also blacks and Chicanos and other minority students.
Contemporary conditions in the United States mean that, if
Harvard College is to continue to offer a first-rate education to
its students,
Page 438 U. S. 323
minority representation in the undergraduate body cannot be
ignored by the Committee on Admissions.
In practice, this new definition of diversity has meant that race
has been a factor in some admission decisions. When the
Committee on Admissions reviews the large middle group of
applicants who are "admissible" and deemed capable of doing
good work in their courses, the race of an applicant may tip
the balance in his favor just as geographic origin or a life spent
on a farm may tip the balance in other candidates' cases. A
farm boy from Idaho can bring something to Harvard College
that a Bostonian cannot offer. Similarly, a black student can
usually bring something that a white person cannot offer. The
quality of the educational experience of all the students in
Harvard College depends in part on these differences in the
background and outlook that students bring with them.
In Harvard College admissions, the Committee has not set
target quotas for the number of blacks, or of musicians,
football players, physicists or Californians to be admitted in a
given year. At the same time the Committee is aware that, if
Harvard College is to provide a truly heterogen[e]ous
environment that reflects the rich diversity of the United
States, it cannot be provided without some attention to
numbers. It would not make sense, for example, to have 10 or
20 students out of 1, 100 whose homes are west of the
Mississippi. Comparably, 10 or 20 black students could not
begin to bring to their classmates and to each other the variety
of points of view, backgrounds and experiences of blacks in
the United States. Their small numbers might also create a
sense of isolation among the black students themselves, and
thus make it more difficult for them to develop and achieve
their potential. Consequently, when making its decisions, the
Committee on Admissions is aware that there is some
relationship between numbers and achieving the benefits to be
derived from a diverse student body, and between numbers
and providing a reasonable environment for those students
admitted. But
Page 438 U. S. 324
that awareness does not mean that the Committee sets a
minimum number of blacks or of people from west of the
Mississippi who are to be admitted. It means only that, in
choosing among thousands of applicants who are not only
"admissible" academically but have other strong qualities, the
Committee, with a number of criteria in mind, pays some
attention to distribution among many types and categories of
students.
The further refinements sometimes required help to illustrate
the kind of significance attached to race. The Admissions
Committee, with only a few places left to fill, might find itself
forced to choose between A, the child of a successful black
physician in an academic community with promise of superior
academic performance, and B, a black who grew up in an
inner-city ghetto of semi-literate parents whose academic
achievement was lower, but who had demonstrated energy and
leadership, as well as an apparently abiding interest in black
power. If a good number of black students much like A, but
few like B, had already been admitted, the Committee might
prefer B, and vice versa. If C, a white student with
extraordinary artistic talent, were also seeking one of the
remaining places, his unique quality might give him an edge
over both A and B. Thus, the critical criteria are often
individual qualities or experience not dependent upon race but
sometimes associated with it.
* MR. JUSTICE STEVENS views the judgment of the
California court as limited to prohibiting the consideration of
race only in passing upon Bakke's application. Post at 438 U.
S. 408-411. It must be remembered, however, that petitioner
here cross-complained in the trial court for a declaratory
judgment that its special program was constitutional, and it
lost. The trial court's judgment that the special program was
unlawful was affirmed by the California Supreme Court in an
opinion which left no doubt that the reason for its holding was
petitioner's use of race in consideration of ay candidate's
application. Moreover, in explaining the scope of its holding,
the court quite clearly stated that petitioner was prohibited
from taking race into account in any way in making
admissions decisions:
"In addition, the University may properly as it in fact does,
consider other factors in evaluating an applicant, such as the
personal interview, recommendations, character, and matters
relating to the needs of the profession and society, such as an
applicant's professional goals. In short, the standards for
admission employed by the University are not constitutionally
infirm except to the extent that they are utilized in a racially
discriminatory manner. Disadvantaged applicants of all races
must be eligible for sympathetic consideration, and no
applicant may be rejected because of his race in favor of
another who is less qualified, as measured by standards
applied without regard to race. We reiterate, in view of the
dissent's misinterpretation, that we do not compel the
University to utilize only 'the highest objective academic
credentials' as the criterion for admission."
18 Cal.3d 34, 54-55, 553 P.2d 1152, 1166 (1976) (footnote
omitted). This explicit statement makes it unreasonable to
assume that the reach of the California court's judgment can be
limited in the manner suggested by MR. JUSTICE STEVENS.
** MR. JUSTICE BRENNAN, MR. JUSTICE WHITE, MR.
JUSTICE MARSHALL, and MR. JUSTICE BLACKMUN
join Parts I and V-C of this opinion. MR. JUSTICE WHITE
also joins Part III-A of this opinion.
[Footnote 1]
Material distributed to applicants for the class entering in 1973
described the special admissions program as follows:
"A special subcommittee of the Admissions Committee, made
up of faculty and medical students from minority groups,
evaluates applications from economically and/or educationally
disadvantaged backgrounds. The applicant may designate on
the application form that he or she requests such an evaluation.
Ethnic minorities are not categorically considered under the
Task Force Program unless they are from disadvantaged
backgrounds. Our goals are: 1) A short-range goal in the
identification and recruitment of potential candidates for
admission to medical school in the near future, and 2) Our
long-range goal is to stimulate career interest in health
professions among junior high and high school students."
"After receiving all pertinent information selected applicants
will receive a letter inviting them to our School of Medicine in
Davis for an interview. The interviews are conducted by at
least one faculty member and one student member of the Task
Force Committee. Recommendations are then made to the
Admissions Committee of the medical school. Some of the
Task Force Faculty are also members of the Admissions
Committee."
"Long-range goals will be approached by meeting with
counselors and students of schools with large minority
populations, as well as with local youth and adult community
groups."
"Applications for financial aid are available only after the
applicant has been accepted, and can only be awarded after
registration. Financial aid is available to students in the form
of scholarships and loans. In addition to the Regents'
Scholarships and President's Scholarship programs, the
medical school participates in the Health Professions
Scholarship Program, which makes funds available to students
who otherwise might not be able to pursue a medical
education. Other scholarships and awards are available to
students who meet special eligibility qualifications. Medical
students are also eligible to participate in the Federally Insured
Student Loan Program and the American Medical Association
Education and Research Foundation Loan Program."
Applications for Admission are available from:
Admissions Office
School of Medicine
University of California
Davis, California 95616
Record 195. The letter distributed the following year was
virtually identical, except that the third paragraph was omitted.
[Footnote 2]
For the 1973 entering class of 100 seats, the Davis Medical
School received 2,464 applications. Id. at 117. For the 1974
entering class, 3,737 applications were submitted. Id. at 289.
[Footnote 3]
That is, applications were considered and acted upon as they
were received, so that the process of filling the class took
place over a period of months, with later applications being
considered against those still on file from earlier in the year.
Id. at 64.
[Footnote 4]
The chairman normally checked to see if, among other things,
the applicant had been granted a waiver of the school's
application fee, which required a means test; whether the
applicant had worked during college or interrupted his
education to support himself or his family; and whether the
applicant was a member of a minority group. Id. at 666.
[Footnote 5]
For the class entering in 1973, the total number of special
applicants was 297, of whom 73 were white. In 1974, 628
persons applied to the special committee, of whom 172 were
white. Id. at 133-134.
[Footnote 6]
The following table provides a year-by-year comparison of
minority admissions at the Davis Medical School:
bwm:
Special Admissions Program General Admissions Total
---------------------------- ---------------------- -----
Blacks Chicanos Asians Total Blacks Chicanos Asians Total
1970. . . . 5 3 0 8 0 0 4 4 12
1971. . . . 4 9 2 15 1 0 8 9 24
1972. . . . 5 6 5 16 0 0 11 11 27
1973. . . . 6 8 2 16 0 2 13 15 31
1974. . . . 6 7 3 16 0 4 5 9 25
ewm:

Id. at 216-218. Sixteen persons were admitted under the
special program in 1974, ibid., but one Asian withdrew before
the start of classes, and the vacancy was filled by a candidate
from the general admissions waiting list. Brief for Petitioner 4
n. 5.
[Footnote 7]
The following table compares Bakke's science grade point
average, overall grade point average, and MCAT scores with
the average scores of regular admittees and of special
admittees in both 1973 and 1974. Record 210, 223, 231, 234:
bwm:
Class Entering in 1973
MCAT (Percentiles)
Quanti- Gen.
SGPA OGPA Verbal tative Science Infor.
Bakke . . . . . . . 3.44 3.46 96 94 97 72
Average of regular
admittees. . . . . 3.51 3.49 81 76 83 69
Average of special
admittees. . . . . 2.62 2.88 46 24 35 33
Class Entering in 1974
MCAT (Percentiles)
Quanti- Gen.
SGPA OGPA Verbal tative Science Infor.
Bakke. . . . . . . . 3.44 3.46 96 94 97 72
Average of regular
admittees. . . . . 3.36 3.29 69 67 82 72
Average of special
admittees. . . . . 2.42 2.62 34 30 37 18
ewm:
Applicants admitted under the special program also had
benchmark scores significantly lower than many students,
including Bakke, rejected under the general admissions
program, even though the special rating system apparently
gave credit for overcoming "disadvantage." Id. at 181, 388.
[Footnote 8]
Prior to the actual filing of the suit, Bakke discussed his
intentions with Peter C. Storandt, Assistant to the Dean of
Admissions at the Davis Medical School. Id. at 259-269.
Storandt expressed sympathy for Bakke's position and offered
advice on litigation strategy. Several amici imply that these
discussions render Bakke's suit "collusive." There is no
indication, however, that Storandt's views were those of the
Medical School, or that anyone else at the school even was
aware of Storandt's correspondence and conversations with
Bakke. Storandt is no longer with the University.
[Footnote 9]
"[N]or shall any State . . . deny to any person within its
jurisdiction the equal protection of the laws."
[Footnote 10]
"No special privileges or immunities shall ever be granted
which may not be altered, revoked, or repealed by the
Legislature; nor shall any citizen, or class of citizens, be
granted privileges or immunities which, upon the same terms,
shall not be granted to all citizens."
This section was recently repealed, and its provisions added to
Art. I, § 7, of the State Constitution.
[Footnote 11]
Section 601 of Title VI, 78 Stat. 252, provides as follows:
"No person in the United States shall, on the ground of race,
color, or national origin, be excluded from participation in, be
denied the benefits of, or be subjected to discrimination under
any program or activity receiving Federal financial
assistance."
[Footnote 12]
Indeed, the University did not challenge the finding that
applicants who were not members of a minority group were
excluded from consideration in the special admissions process.
18 Cal.3d at 44, 553 P.2d at 1159.
[Footnote 13]
Petitioner has not challenged this aspect of the decision. The
issue of the proper placement of the burden of proof, then, is
not before us.
[Footnote 14]
Several amici suggest that Bakke lacks standing, arguing that
he never showed that his injury -- exclusion from the Medical
School -- will be redressed by a favorable decision, and that
the petitioner "fabricated" jurisdiction by conceding its
inability to meet its burden of proof. Petitioner does not object
to Bakke's standing, but inasmuch as this charge concerns our
jurisdiction under Art. III, it must be considered and rejected.
First, there appears to be no reason to question the petitioner's
concession. It was not an attempt to stipulate to a conclusion
of law or to disguise actual facts of record. Cf. Swift & Co. v.
Hocking Valley R. Co., 243 U. S. 281 (1917).
Second, even if Bakke had been unable to prove that he would
have been admitted in the absence of the special program, it
would not follow that he lacked standing. The constitutional
element of standing is plaintiff's demonstration of any injury
to himself that is likely to be redressed by favorable decision
of his claim. Warth v. Seldin, 422 U. S. 490, 422 U. S. 498
(1975). The trial court found such an injury, apart from failure
to be admitted, in the University's decision not to permit
Bakke to compete for all 100 places in the class, simply
because of his race. Record 323. Hence, the constitutional
requirements of Art. III were met. The question of Bakke's
admission vel non is merely one of relief.
Nor is it fatal to Bakke's standing that he was not a
"disadvantaged" applicant. Despite the program's purported
emphasis on disadvantage, it was a minority enrollment
program with a secondary disadvantage element. White
disadvantaged students were never considered under the
special program, and the University acknowledges that its goal
in devising the program was to increase minority enrollment.
[Footnote 15]
See, e.g., 110 Cong.Rec. 5255 (1964) (remarks of Sen. Case).
[Footnote 16]
E.g., Bossier Parish School Board v. Lemon, 370 F.2d 847,
851-852 (CA5), cert. denied, 388 U.S. 911 (1967); Natonbah
v. Board of Education, 355 F.Supp. 716, 724 (NM 1973); cf.
Lloyd v. Regional Transportation Authority, 548 F.2d 1277,
1284-1287 (CA7 1977) (Title V of Rehabilitation Act of 1973,
29 U.S.C. § 790 et seq. (1976 ed.)); Piascik v. Cleveland
Museum of Art, 426 F.Supp. 779, 780 n. 1 (ND Ohio 1976)
(Title IX of Education Amendments of 1972, 20 U.S.C. §
1681 et seq. (1976 ed.)).
[Footnote 17]
Section 602, as set forth in 42 U.S.C. § 2000d-1, reads as
follows:
"Each Federal department and agency which is empowered to
extend Federal financial assistance to any program or activity,
by way of grant, loan, or contract other than a contract of
insurance or guaranty, is authorized and directed to effectuate
the provisions of section 2000d of this title with respect to
such program or activity by issuing rules, regulations, or
orders of general applicability which shall be consistent with
achievement of the objectives of the statute authorizing the
financial assistance in connection with which the action is
taken. No such rule, regulation, or order shall become
effective unless and until approved by the President.
Compliance with any requirement adopted pursuant to this
section may be effected (1) by the termination of or refusal to
grant or to continue assistance under such program or activity
to any recipient as to whom there has been an express finding
on the record, after opportunity for hearing, of a failure to
comply with such requirement, but such termination or refusal
shall be limited to the particular political entity, or part
thereof, or other recipient as to whom such a finding has been
made and, shall be �limited in its effect to the particular
program, or part thereof, in which such noncompliance has
been so found, or(2) by any other means authorized by law:
Provided, however, That no such action shall be taken until the
department or agency concerned has advised the appropriate
person or persons of the failure to comply with the
requirement and has determined that compliance cannot be
secured by voluntary means. In the case of any action
terminating, or refusing to grant or continue, assistance
because of failure to comply with a requirement imposed
pursuant to this section, the head of the Federal department or
agency shall file with the committees of the House and Senate
having legislative jurisdiction over the program or activity
involved a full written report of the circumstances and the
grounds for such action. No such action shall become effective
until thirty days have elapsed after the filing of such report."
[Footnote 18]
Several comments in the debates cast doubt on the existence of
any intent to create a private right of action. For example,
Representative Gill stated that no private right of action was
contemplated:
"Nowhere in this section do you find a comparable right of
legal action for a person who feels he has been denied his
rights to participate in the benefits of Federal funds. Nowhere.
Only those who have been cut off can go to court and present
their claim."
110 Cong.Rec. 2467 (1964). Accord, id. at 7065 (remarks of
Sen. Keating); 6562 (remarks of Sen. Kuchel).
[Footnote 19]
For example, Senator Humphrey stated as follows:
"Racial discrimination or segregation in the administration of
disaster relief is particularly shocking; and offensive to our
sense of justice and fair play. Human suffering draws no color
lines, and the administration of help to the sufferers should
not."
Id. at 6547. See also id. at 12675 (remarks of Sen. Allott);
6561 (remarks of Sen. Kuchel); 2494, 6047 (remarks of Sen.
Pastore). But see id. at 15893 (remarks of Rep. MacGregor);
13821 (remarks of Sen. Saltonstall); 10920 (remarks of Sen.
Javits); 5266, 5807 (remarks of Sen. Keating).
[Footnote 20]
See, e.g., id. at 7064-7065 (remarks of Sen. Ribicoff); 7054-
7055 (remarks of Sen. Pastore); 6543-6544 (remarks of Sen.
Humphrey); 2595 (remarks of Rep. Donohue); 2467-2468
(remarks of Rep. Celler); 1643, 2481-2482 (remarks of Rep.
Ryan); H.R.Rep. No. 914, 88th Cong., 1st Sess., pt. 2, pp. 24-
25 (1963).
[Footnote 21]
See, e.g., 110 Cong.Rec. 2467 (1964) (remarks of Rep.
Lindsay). See also id. at 2766 (remarks of Rep. Matsunaga);
2731-2732 (remarks of Rep. Dawson); 2595 (remarks of Rep.
Donohue); 1527-1528 (remarks of Rep. Celler).
[Footnote 22]
See, e.g., id. at 12675, 12677 (remarks of Sen. Allott); 7064
(remarks of Sen. Pell); 7057, 7062-7064 (remarks of Sen.
Pastore); 5243 (remarks of Sen. Clark).
[Footnote 23]
See, e.g., id. at 6052 (remarks of Sen. Johnston); 5863
(remarks of Sen. Eastland); 5612 (remarks of Sen. Ervin);
5251 (remarks of Sen. Talmadge); 1632 (remarks of Rep.
Dowdy); 1619 (remarks of Rep. Abernethy).
[Footnote 24]
See also id. at 7057, 13333 (remarks of Sen. Ribicoff); 7057
(remarks of Sen. Pastore); 5606-5607 (remarks of Sen. Javits);
5253, 5863-5864, 13442 (remarks of Sen. Humphrey).
[Footnote 25]
That issue has generated a considerable amount of scholarly
controversy. See, e.g., Ely, The Constitutionality of Reverse
Racial Discrimination, 41 U.Chi.L.Rev. 723 (1974);
Greenawalt, Judicial Scrutiny of "Benign" Racial Preference
in Law School Admissions, 75 Colum.L.Rev. 559 (1975);
Kaplan, Equal Justice in an Unequal World: Equality for the
Negro, 61 Nw.U.L.Rev. 363 (1966); Karst & Horowitz,
Affirmative Action and Equal Protection, 60 Va.L.Rev. 955
(1974); O'Neil, Racial Preference and Higher Education: The
Larger Context, 60 Va.L.Rev. 925 (1974); Posner, The
DeFunis Case and the Constitutionality of Preferential
Treatment of Racial Minorities, 1974 Sup.Ct.Rev. 1; Redish,
Preferential Law School Admissions and the Equal Protection
Clause: An Analysis of the Competing Arguments, 22 UCLA
L.Rev. 343 (1974); Sandalow, Racial Preferences in Higher
Education: Political Responsibility and the Judicial Role, 42
U.Chi.L.Rev. 653 (1975); Sedler, Racial Preference, Reality
and the Constitution: Bakke v. Regents of the University of
California, 17 Santa Clara L.Rev. 329 (1977); Seeburger, A
Heuristic Argument Against Preferential Admissions, 39
U.Pitt.L.Rev. 285 (1977).
[Footnote 26]
Petitioner defines "quota" as a requirement which must be
met, but can never be exceeded, regardless of the quality of
the minority applicants. Petitioner declares that there is no
"floor" under the total number of minority students admitted;
completely unqualified students will not be admitted simply to
meet a "quota." Neither is there a "ceiling," since an unlimited
number could be admitted through the general admissions
process. On this basis, the special admissions program does
not meet petitioner's definition of a quota.
The court below found -- and petitioner does not deny -- that
white applicants could not compete for the 16 places reserved
solely for the special admissions program. 18 Cal.3d at 44,
553 P.2d at 1159. Both courts below characterized this as a
"quota" system.
[Footnote 27]
Moreover, the University's special admissions program
involves a purposeful, acknowledged use of racial criteria.
This is not a situation in which the classification on its face is
racially neutral, but has a disproportionate racial impact. In
that situation, plaintiff must establish an intent to discriminate.
Arlington Heights v. Metropolitan Housing Dev. Corp., 429
U. S. 252, 429 U. S. 264-265 (1977); Washington v. Davis,
426 U. S. 229, 426 U. S. 242 (1976); see Yick Wo v. Hopkins,
118 U. S. 356 (1886).

[Footnote 28]
After Carolene Products, the first specific reference in our
decisions to the elements of "discreteness and insularity"
appears in Minersville School District v. Gobitis, 310 U. S.
586, 310 U. S. 606 (1940) (Stone, J., dissenting). The next
does not appear until 1970. Oregon v. Mitchell, 400 U. S. 112,
400 U. S. 295 n. 14 (STEWART, J., concurring in part and
dissenting in part). These elements have been relied upon in
recognizing a suspect class in only one group of cases, those
involving aliens. E.g., Graham v. Richardson, 403 U. S. 365,
403 U. S. 372 (1971).
[Footnote 29]
Tussman & tenBroek, The Equal Protection of the Law, 37
Calif.L.Rev. 341, 381 (1949).
[Footnote 30]
M. Jones, American Immigration 177-246 (1960).
[Footnote 31]
J. Higham, Strangers in the Land (1955); G. Abbott, The
Immigrant and the Community (1917); P. Roberts, The New
Immigration 66-73, 86-91, 248-261 (1912). See also E.
Fenton, Immigrants and Unions: A Case Study 561-562
(1975).
[Footnote 32]
"Members of various religious and ethnic groups, primarily
but not exclusively of Eastern, Middle, and Southern European
ancestry, such as Jews, Catholics, Italians, Greeks, and Slavic
groups, continue to be excluded from executive, middle-
management, and other job levels because of discrimination
based upon their religion and/or national origin."
41 CFR § 60-50.1(b) (1977).
[Footnote 33]
E.g., P. Roberts, supra, n 31, at 75; G. Abbott, supra, n 31, at
270-271. See generally n 31, supra.
[Footnote 34]
In the view of MR. JUSTICE BRENNAN, MR. JUSTICE
WHITE, MR. JUSTICE MARSHALL, and MR. JUSTICE
BLACKMUN, the pliable notion of "stigma" is the crucial
element in analyzing racial classifications, see, e.g., post at
438 U. S. 361, 438 U. S. 362. The Equal Protection Clause is
not framed in terms of "stigma." Certainly the word has no
clearly defined constitutional meaning. It reflects a subjective
judgment that is standardless. All state-imposed classifications
that rearrange burdens and benefits on the basis of race are
likely to be viewed with deep resentment by the individuals
burdened. The denial to innocent persons of equal rights and
opportunities may outrage those so deprived, and therefore
may be perceived as invidious. These individuals are likely to
find little comfort in the notion that the deprivation they are
asked to endure is merely the price of membership in the
dominant majority, and that its imposition is inspired by the
supposedly benign purpose of aiding others. One should not
lightly dismiss the inherent unfairness of, and the perception
of mistreatment that accompanies, a system of allocating
benefits and privileges on the basis of skin color and ethnic
origin. Moreover, MR. JUSTICE BRENNAN, MR. JUSTICE
WHITE, MR. JUSTICE MARSHALL, and MR. JUSTICE
BLACKMUN offer no principle for deciding whether
preferential classifications reflect a benign remedial purpose
or a malevolent stigmatic classification, since they are willing
in this case to accept mere post hoc declarations by an isolated
state entity -- a medical school faculty -- unadorned by
particularized findings of past discrimination, to establish such
a remedial purpose.
[Footnote 35]
Professor Bickel noted the self-contradiction of that view:
"The lesson of the great decisions of the Supreme Court and
the lesson of contemporary history have been the same for at
least a generation -- discrimination on the basis of race is
illegal, immoral, unconstitutional, inherently wrong, and
destructive of democratic society. Now this is to be unlearned,
and we are told that this is not a matter of fundamental
principle, but only a matter of whose ox is gored. Those for
whom racial equality was demanded are to be more equal than
others. Having found support in the Constitution for equality,
they now claim support for inequality under the same
Constitution."
A. Bickel, The Morality of Consent 133 (1975).
[Footnote 36]
As I am in agreement with the view that race may be taken
into account as a factor in an admissions program, I agree with
my Brothers BRENNAN, WHITE, MARSHALL, and
BLACKMUN that the portion of the judgment that would
proscribe all consideration of race must be reversed. See 438
U. S. infra. But I disagree with much that is said in their
opinion.
They would require, as a justification for a program such as
petitioner's, only two findings: (i) that there has been some
form of discrimination against the preferred minority groups
by "society at large," post at 438 U. S. 369 (it being conceded
that petitioner had no history of discrimination), and (ii) that
"there is reason to believe" that the disparate impact sought to
be rectified by the program is the "product" of such
discrimination:
"If it was reasonable to conclude -- as we hold that it was --
that the failure of minorities to qualify for admission at Davis
under regular procedures was due principally to the effects of
past discrimination, then there is a reasonable likelihood that,
but for pervasive racial discrimination, respondent would have
failed to qualify for admission even in the absence of Davis'
special admissions program."
Post at 438 U. S. 365-366.
The breadth of this hypothesis is unprecedented in our
constitutional system. The first step is easily taken. No one
denies the regrettable fact that there has been societal
discrimination in this country against various racial and ethnic
groups. The second step, however, involves a speculative leap:
but for this discrimination by society at large, Bakke "would
have failed to qualify for admission" because Negro applicants
-- nothing is said about Asians, cf., e.g., post at 438 U. S. 374
n. 57 -- would have made better scores. Not one word in the
record supports this conclusion, and the authors of the opinion
offer no standard for courts to use in applying such a
presumption of causation to other racial or ethnic
classifications. This failure is a grave one, since, if it may be
concluded on this record that each of the minority groups
preferred by the petitioner's special program is entitled to the
benefit of the presumption, it would seem difficult to
determine that any of the dozens of minority groups that have
suffered "societal discrimination" cannot also claim it in any
area of social intercourse. See 438 U. S. infra.
[Footnote 37]
Mr. Justice Douglas has noted the problems associated with
such inquiries:
"The reservation of a proportion of the law school class for
members of selected minority groups is fraught with . . .
dangers, for one must immediately determine which groups
are to receive such favored treatment and which are to be
excluded, the proportions of the class that are to be allocated
to each, and even the criteria by which to determine whether
an individual is a member of a favored group. [Cf. Plessy v.
Ferguson, 163 U. S. 537, 163 U. S. 549, 163 U. S. 552
(1896).] There is no assurance that a common agreement can
be reached, and first the schools, and then the courts, will be
buffeted with the competing claims. The University of
Washington included Filipinos, but excluded Chinese and
Japanese; another school may limit its program to blacks, or to
blacks and Chicanos. Once the Court sanctioned racial
preferences such as these, it could not then wash its hands of
the matter, leaving it entirely in the discretion of the school,
for then we would have effectively overruled Sweatt v.
Painter, 339 U. S. 629, and allowed imposition of a 'zero'
allocation. But what standard is the Court to apply when a
rejected applicant of Japanese ancestry brings suit to require
the University of Washington to extend the same privileges to
his group? The Committee might conclude that the population
of Washington is now 2% Japanese, and that Japanese also
constitute 2% of the Bar, but that, had they not been
handicapped by a history of discrimination, Japanese would
now constitute 5% of the Bar, or 20%. Or, alternatively, the
Court could attempt to assess how grievously each group has
suffered from discrimination, and allocate proportions
accordingly; if that were the standard, the current University
of Washington policy would almost surely fall, for there is no
Western State which can claim that it has always treated
Japanese and Chinese in a fair and evenhanded manner. See,
e.g., Yick Wo v. Hopkins, 118 U. S. 356; Terrace v.
Thompson, 263 U. S. 197; Oyama v. California, 332 U. S.
633. This Court has not sustained a racial classification since
the wartime cases of Korematsu v. United States, 323 U. S.
214, and Hirabayashi v. United States, 320 U. S. 81, involving
curfews and relocations imposed upon Japanese-Americans."
"Nor, obviously, will the problem be solved if, next year, the
Law School included only Japanese and Chinese, for then
Norwegians and Swedes, Poles and Italians, Puerto Ricans and
Hungarians, and all other groups which form this diverse
Nation would have just complaints."
DeFunis v. Odegaard, 416 U. S. 312, 416 U. S. 337-340
(1974) (dissenting opinion) (footnotes omitted) .
[Footnote 38]
R. Dahl, A Preface to Democratic Theory (1956); Posner,
supra, n 25, at 27.
[Footnote 39]
Petitioner cites three lower court decisions allegedly deviating
from this general rule in school desegregation cases:
Offermann v. Nitkowski, 378 F.2d 22 (CA2 1967); Wanner v.
County School Board, 357 F.2d 452 (CA4 1966); Springfield
School Committee v. Barksdale, 348 F.2d 261 (CA1 1965). Of
these, Wanner involved a school system held to have been de
jure segregated and enjoined from maintaining segregation;
racial districting was deemed necessary. 357 F.2d at 454. Cf.
United Jewish Organizations v. Carey, 430 U. S. 144 (1977).
In Barksdale and Offermann, courts did approve voluntary
districting designed to eliminate discriminatory attendance
patterns. In neither, however, was there any showing that the
school board planned extensive pupil transportation that might
threaten liberty or privacy interests. See Keyes v. School
District No. 1, 413 U. S. 189, 413 U. S. 240-250 (1973)
(POWELL, J., concurring in part and dissenting in part). Nor
were white students deprived of an equal opportunity for
education.
Respondent's position is wholly dissimilar to that of a pupil
bused from his neighborhood school to a comparable school in
another neighborhood in compliance with a desegregation
decree. Petitioner did not arrange for respondent to attend a
different medical school in order to desegregate Davis Medical
School; instead, it denied him admission, and may have
deprived him altogether of a medical education.
[Footnote 40]
Every decision upholding the requirement of preferential
hiring under the authority of Exec.Order No. 11246, 3 CFR
339 (1964-1965 Comp.), has emphasized the existence of
previous discrimination as a predicate for the imposition of a
preferential remedy. Contractors Association of Eastern
Pennsylvania; Southern Illinois Builders Assn. v. Ogilvie, 471
F.2d 680 (CA7 1972); Joyce v. McCrane, 320 F.Supp. 1284
(NJ 1970); Weiner v. Cuyahoga Community College District,
19 Ohio St.2d 35, 249 N.E.2d 907, cert. denied, 396 U.S. 1004
(1970). See also Rosetti Contracting Co. v. Brennan, 508 F.2d
1039, 1041 (CA7 1975); Associated General Contractors of
Massachusetts, Inc. v. Altshuler, 490 F.2d 9 (CA1 1973), cert.
denied, 416 U.S. 957 (1974); Northeast Constr. Co. v.
Romney, 157 U.S.App.D.C. 381, 383, 390, 485 F.2d 752, 754,
761 (1973).
[Footnote 41]
This case does not call into question congressionally
authorized administrative actions, such as consent decrees
under Title VII or approval of reapportionment plans under § 5
of the Voting Rights Act of 1965, 42 U.S.C. § 1973c (1970
ed., Supp. V). In such cases, there has been detailed legislative
consideration of the various indicia of previous constitutional
or statutory violations, e.g., South Carolina v. Katzenbach, 383
U. S. 301, 383 U. S. 308-310 (1966) (§ 5), and particular
administrative bodies have been charged with monitoring
various activities in order to detect such violations and
formulate appropriate remedies. See Hampton v. Mow Sun
Wong, 426 U. S. 88, 426 U. S. 103 (1976).
Furthermore, we are not here presented with an occasion to
review legislation by Congress pursuant to its powers under §
2 of the Thirteenth Amendment and § 5 of the Fourteenth
Amendment to remedy the effects of prior discrimination.
Katzenbach v. Morgan, 384 U. S. 641 (1966); Jones v. Alfred
H. Mayer Co., 392 U. S. 409 (1968). We have previously
recognized the special competence of Congress to make
findings with respect to the effects of identified past
discrimination and its discretionary authority to take
appropriate remedial measures.
[Footnote 42]
Petitioner also cites our decision in Morton v. Mancari, 417 U.
S. 535 (1974), for the proposition that the State may prefer
members of traditionally disadvantaged groups. In Mancari,
we approved a hiring preference for qualified Indians in the
Bureau of Indian Affairs of the Department of the Interior
(BIA). We observed in that case, however, that the legal status
of the BIA is sui generis. Id. at 417 U. S. 554. Indeed, we
found that the preference was not racial at all, but
"an employment criterion reasonably designed to further the
cause of Indian self-government and to make the BIA more
responsive to . . . groups . . . whose lives and activities are
governed by the BIA in a unique fashion."
Ibid.
[Footnote 43]
A number of distinct subgoals have been advanced as falling
under the rubric of "compensation for past discrimination."
For example, it is said t.hat preferences for Negro applicants
may compensate for harm done them personally, or serve to
place them at economic levels they might have attained but for
discrimination against their forebears. Greenawalt, supra, n 25,
at 581-586. Another view of the "compensation" goal is that it
serves as a form of reparation by the "majority" to a victimized
group as a whole. B. Bittker, The Case for Black Reparations
(1973). That justification for racial or ethnic preference has
been subjected to much criticism. E. Greenawalt, supra, n 25,
at 581; Posner, supra, n 25, at 16-17, and n. 33. Finally, it has
been argued that ethnic preferences "compensate" the group
by providing examples of success whom other members of the
group will emulate, thereby advancing the group's interest and
society's interest in encouraging new generations to overcome
the barriers and frustrations of the past. Redish, supra, n 25, at
391. For purposes of analysis these subgoals need not be
considered separately.
Racial classifications in admissions conceivably could serve a
fifth purpose, one which petitioner does not articulate: fair
appraisal of each individual's academic promise in the light of
some cultural bias in grading or testing procedures. To the
extent that race and ethnic background were considered only
to the extent of curing established inaccuracies in predicting
academic performance, it might be argued that there is no
"preference" at all. Nothing in this record, however, suggests
either that any of the quantitative factors considered by the
Medical School were culturally biased, or that petitioner's
special admissions program was formulated to correct for any
such biases. Furthermore, if race or ethnic background were
used solely to arrive at an unbiased prediction of academic
success, the reservation of fixed numbers of seats would be
inexplicable.
[Footnote 44]
MR. JUSTICE BRENNAN, MR. JUSTICE WHITE, MR.
JUSTICE MARSHALL, and MR. JUSTICE BLACKMUN
misconceive the scope of this Court's holdings under Title VII
when they suggest that "disparate impact" alone is sufficient to
establish a violation of that statute and, by analogy, other civil
rights measures. See post at 438 U. S. 363-366, and n. 42. That
this was not the meaning of Title VII was made quite clear in
the seminal decision in this area, Griggs v. Duke Power Co.,
401 U. S. 424 (1971):
"Discriminatory preference for any group, minority or
majority, is precisely and only what Congress has proscribed.
What is required by Congress is the removal of artificial,
arbitrary, and unnecessary barriers to employment when the
barriers operate invidiously to discriminate on the basis of
racial or other impermissible classification."
Id. at 401 U. S. 431 (emphasis added). Thus, disparate impact
is a basis for relief under Title VII only if the practice in
question is not founded on "business necessity," ibid., or lacks
"a manifest relationship to the employment in question," id. at
401 U. S. 432. See also McDonnell Douglas Corp. v. Green,
411 U. S. 792, 411 U. S. 802-803, 411 U. S. 805-806 (1973).
Nothing in this record -- as opposed to some of the general
literature cited by MR. JUSTICE BRENNAN, MR JUSTICE
WHITE, MR. JUSTICE MARSHALL, and MR. JUSTICE
BLACKMUN -- even remotely suggests that the disparate
impact of the general admissions program at Davis Medical
School, resulting primarily from the sort of disparate test
scores and grades set forth in n 7, supra, is without educational
justification.
Moreover, the presumption in Griggs -- that disparate impact
without any showing of business justification established the
existence of discrimination in violation of the statute -- was
based on legislative determinations, wholly absent here, that
past discrimination had handicapped various minority groups
to such an extent that disparate impact could be traced to
identifiable instances of past discrimination:
"[Congress sought] to achieve equality of employment
opportunities and remove barriers that have operated in the
past to favor an identifiable group of white employees over
other employees. Under the Act, practices, procedures, or tests
neutral on their face, and even neutral in terms of intent,
cannot be maintained if they operate to 'freeze' the status quo
of prior discriminatory employment practices."
Griggs, supra at 401 U. S. 429-430. See, e.g., H.R.Rep. No.
914, 88th Cong., 1st Sess., pt. 2, p. 26 (1963) ("Testimony
supporting the fact of discrimination in employment is
overwhelming"). See generally Vaas, Title VII: The
Legislative History, 7 B. C. Ind. & Com.L.Rev. 431 (1966).
The Court emphasized that
"the Act does not command that any person be hired simply
because he was formerly the subject of discrimination, or
because he is a member of a minority group."
401 U.S. at 401 U. S. 430-431. Indeed, § 703(j) of the Act
makes it clear that preferential treatment for an individual or
minority group to correct an existing "imbalance" may not be
required under Title VII. 42 U.S.C. § 2000e-2(j). Thus, Title
VII principles support the proposition that findings of
identified discrimination must precede the fashioning of
remedial measures embodying racial classifications.
[Footnote 45]
For example, the University is unable to explain its selection
of only the four favored groups -- Negroes, Mexican-
Americans, American Indians, and Asians -- for preferential
treatment. The inclusion of the last group is especially curious
in light of the substantial numbers of Asians admitted through
the regular admissions process. See also n 37, supra.
[Footnote 46]
The only evidence in the record with respect to such
underservice is a newspaper article. Record 473.
[Footnote 47]
It is not clear that petitioner's two-track system, even if
adopted throughout the country, would substantially increase
representation of blacks in the medical profession. That is the
finding of a recent study by Sleeth & Mishell, Black Under-
Representation in United States Medical Schools, 297 New
England J. of Med. 1146 (1977). Those authors maintain that
the cause of black underrepresentation lies in the small size of
the national pool of qualified black applicants. In their view,
this problem is traceable to the poor premedical experiences of
black undergraduates, and can be remedied effectively only by
developing remedial programs for black students before they
enter college.
[Footnote 48]
The president of Princeton University has described some of
the benefits derived from a diverse student body:
"[A] great deal of learning occurs informally. It occurs
through interactions among students of both sexes; of different
races, religions, and backgrounds; who come from cities and
rural areas, from various states and countries; who have a wide
variety of interests, talents, and perspectives; and who are
able, directly or indirectly, to learn from their differences and
to stimulate one another to reexamine even their most deeply
held assumptions about themselves and their world. As a wise
graduate of ours observed in commenting on this aspect of the
educational process, 'People do not learn very much when they
are surrounded only by the likes of themselves.'"
"* * * *"
"In the nature of things, it is hard to know how, and when, and
even if, this informal 'learning through diversity' actually
occurs. It does not occur for everyone. For many, however, the
unplanned, casual encounters with roommates, fellow
sufferers in an organic chemistry class, student workers in the
library, teammates on a basketball squad, or other participants
in class affairs or student government can be subtle and yet
powerful sources of improved understanding and personal
growth."
Bowen, Admissions and the Relevance of Race, Princeton
Alumni Weekly 7, 9 (Sept. 26, 1977).
[Footnote 49]
Graduate admissions decisions, like those at the undergraduate
level, are concerned with
"assessing the potential contributions to the society of each
individual candidate following his or her graduation --
contributions defined in the broadest way to include the doctor
and the poet, the most active participant in business or
government affairs and the keenest critic of all things
organized, the solitary scholar and the concerned parent."
Id. at 10.
[Footnote 50]
See Manning, The Pursuit of Fairness in Admissions to Higher
Education, in Carnegie Council on Policy Studies in Higher
Education, Selective Admission in Higher Education 19, 57-
59 (1977).
[Footnote 51]
The admissions program at Princeton has been described in
similar terms:
"While race is not, in and of itself, a consideration in
determining basic qualifications, and while there are obviously
significant differences in background and experience among
applicants of every race, in some situations, race can be
helpful information in enabling the admission officer to
understand more fully what a particular candidate has
accomplished -- and against what odds. Similarly, such factors
as family circumstances and previous educational
opportunities may be relevant, either in conjunction with race
or ethnic background (with which they may be associated) or
on their own."
Bowen, supra, n 48, at 8-9.
For an illuminating discussion of such flexible admissions
systems, see Manning, supra, n 50, at 57-59.
[Footnote 52]
The denial to respondent of this right to individualized
consideration without regard to his race is the principal evil of
petitioner' special admissions program. Nowhere in the
opinion of MR. JUSTICE BRENNAN, MR JUSTICE
WHITE, MR. JUSTICE MARSHALL, and MR JUSTICE
BLACKMUN is this denial even addressed.
[Footnote 53]
Universities, like the prosecutor in Swain, may make
individualized decisions, in which ethnic background plays a
part, under a presumption of legality and legitimate
educational purpose. So long as the university proceeds on an
individualized, case-by-case basis, there is no warrant for
judicial interference in the academic process. If an applicant
can establish that the institution does not adhere to a policy of
individual comparisons, or can show that a systematic
exclusion of certain groups results, the presumption of legality
might be overcome, creating the necessity of proving
legitimate educational purpose.
There also are strong policy reasons that correspond to the
constitutional distinction between petitioner's preference
program and one that assures a measure of competition among
all applicants. Petitioner's program will be viewed as
inherently unfair by the public generally, as well as by
applicants for admission to state universities. Fairness in
individual competition for opportunities, especially those
provided by the State, is a widely cherished American ethic.
Indeed, in a broader sense, an underlying assumption of the
rule of law is the worthiness of a system of justice based on
fairness to the individual. As Mr. Justice Frankfurter declared
in another connection, "[j]ustice must satisfy the appearance of
justice." Offutt v. United States, 348 U. S. 11, 348 U. S. 14
(1954).
[Footnote 54]
There is no occasion for remanding the case to permit
petitioner to reconstruct what might have happened if it had
been operating the type of program described as legitimate in
438 U. S. supra. Cf. Mt. Healthy City Board of Ed. v. Doyle,
429 U. S. 274, 429 U. S. 284-287 (1977). In Mt. Healthy, there
was considerable doubt whether protected First Amendment
activity had been the "but for" cause of Doyle's protested
discharge. Here, in contrast, there is no question as to the sole
reason for respondent's rejection -- purposeful racial
discrimination in the form of the special admissions program.
Having injured respondent solely on the basis of an unlawful
classification, petitioner cannot now hypothesize that it might
have employed lawful means of achieving the same result. See
Arlington Heights v. Metropolitan Housing Dev. Corp., 429
U.S. at 429 U. S. 265-266. No one can say how -- or even if --
petitioner would have operated its admissions process if it had
known that legitimate alternatives were available. Nor is there
a record revealing that legitimate alternative grounds for the
decision existed, as there was in Mt. Healthy. In sum, a
remand would result in fictitious recasting of past conduct.
[Footnote 55]
This statement appears in the Appendix to the Brief for
Columbia University, Harvard University, Stanford
University, and the University of Pennsylvania, as Amici
Curiae.
Opinion of MR. JUSTICE BRENNAN, MR. JUSTICE
WHITE, MR. JUSTICE MARSHALL, and MR, JUSTICE
BLACKMUN, concurring in the judgment in part and
dissenting in part.
The Court today, in reversing in part the judgment of the
Supreme Court of California, affirms the constitutional power
of Federal and State Governments to act affirmatively to
achieve equal opportunity for all. The difficulty of the issue
presented -- whether government may use race-conscious
programs to redress the continuing effects of past
discrimination --
Page 438 U. S. 325
and the mature consideration which each of our Brethren has
brought to it have resulted in many opinions, no single one
speaking for the Court. But this should not and must not mask
the central meaning of today's opinions: Government may take
race into account when it acts not to demean or insult any
racial group, but to remedy disadvantages cast on minorities
by past racial prejudice, at least when appropriate findings
have been made by judicial, legislative, or administrative
bodies with competence to act in this area.
THE CHIEF JUSTICE and our Brothers STEWART,
REHNQUIST, and STEVENS, have concluded that Title VI
of the Civil Rights Act of 1964, 78 Stat. 252, as amended, 42
U.S.C. § 2000d et seq., prohibits programs such as that at the
Davis Medical School. On this statutory theory alone, they
would hold that respondent Allan Bakke's rights have been
violated, and that he must, therefore, be admitted to the
Medical School. Our Brother POWELL, reaching the
Constitution, concludes that, although race may be taken into
account in university admissions, the particular special
admissions program used by petitioner, which resulted in the
exclusion of respondent Bakke, was not shown to be necessary
to achieve petitioner's stated goals. Accordingly, these
Members of the Court form a majority of five affirming the
judgment of the Supreme Court of California insofar as it
holds that respondent Bakke "is entitled to an order that he be
admitted to the University." 18 Cal.3d 34, 64, 553 P.2d 1152,
1172 (1976).
We agree with MR. JUSTICE POWELL that, as applied to the
case before us, Title VI goes no further in prohibiting the use
of race than the Equal Protection Clause of the Fourteenth
Amendment itself. We also agree that the effect of the
California Supreme Court's affirmance of the judgment of the
Superior Court of California would be to prohibit the
University from establishing in the future affirmative action
programs that take race into account. See ante at 438 U. S. 271
n. Since we conclude that the affirmative admissions program
at the Davis
Page 438 U. S. 326
Medical School is constitutional, we would reverse the
judgment below in all respects. MR. JUSTICE POWELL
agrees that some uses of race in university admissions are
permissible and, therefore, he joins with us to make five votes
reversing the judgment below insofar as it prohibits the
University from establishing race-conscious programs in the
future. [Footnote 2/1]
I
Our Nation was founded on the principle that "all Men are
created equal." Yet candor requires acknowledgment that the
Framers of our Constitution, to forge the 13 Colonies into one
Nation, openly compromised this principle of equality with its
antithesis: slavery. The consequences of this compromise are
well known, and have aptly been called our "American
Dilemma." Still, it is well to recount how recent the time has
ben, if it has yet come, when the promise of our principles has
flowered into the actuality of equal opportunity for all
regardless of race or color.
The Fourteenth Amendment, the embodiment in the
Constitution of our abiding belief in human equality, has been
the law of our land for only slightly more than half its 200
years. And for half of that half, the Equal Protection Clause of
the Amendment was largely moribund, so that, as late as 1927,
Mr. Justice Holmes could sum up the importance of that
Clause by remarking that it was the "last resort of
constitutional arguments." Buck v. Bell, 274 U. S. 200, 274 U.
S. 208 (1927). Worse than desuetude, the Clause was early
turned against those whom it was intended to set free,
condemning them to a "separate but equal" [Footnote 2/2]
status before the law, a status
Page 438 U. S. 327
always separate but seldom equal. Not until 1954 -- only 24
years ago -- was this odious doctrine interred by our decision
in Brown v. Board of Education, 347 U. S. 483 (Brown I), and
its progeny, [Footnote 2/3] which proclaimed that separate
schools and public facilities of all sorts were inherently
unequal and forbidden under our Constitution. Even then,
inequality was not eliminated with "all deliberate speed."
Brown v. Board of Education, 349 U. S. 294, 349 U. S. 301
(1955). In 1968 [Footnote 2/4] and again in 1971, [Footnote
2/5] for example, we were forced to remind school boards of
their obligation to eliminate racial discrimination root and
branch. And a glance at our docket [Footnote 2/6] and at
dockets of lower courts will show that, even today, officially
sanctioned discrimination is not a thing of the past.
Against this background, claims that law must be "colorblind"
or that the datum of race is no longer relevant to public policy
must be seen as aspiration, rather than as description of reality.
This is not to denigrate aspiration; for reality rebukes us that
race has too often been used by those who would stigmatize
and oppress minorities. Yet we cannot -- and, as we shall
demonstrate, need not under our Constitution or Title VI,
which merely extends the constraints of the Fourteenth
Amendment to private parties who receive federal funds -- let
color blindness become myopia which masks the reality that
many "created equal" have been treated within our lifetimes as
inferior both by the law and by their fellow citizens.
Page 438 U. S. 328
II
The threshold question we must decide is whether Title VI of
the Civil Rights Act of 1964 bars recipients of federal funds
from giving preferential consideration to disadvantaged
members of racial minorities as part of a program designed to
enable such individuals to surmount the obstacles imposed by
racial discrimination. [Footnote 2/7] We join Parts I and V-C
of our Brother POWELL's opinion, and three of us agree with
his conclusion in Part II that this case does not require us to
resolve the question whether there is a private right of action
under Title VI. [Footnote 2/8]
In our view, Title VI prohibits only those uses of racial criteria
that would violate the Fourteenth Amendment if employed by
a State or its agencies; it does not bar the preferential
treatment of racial minorities as a means of remedying past
societal discrimination to the extent that such action is
consistent with the Fourteenth Amendment. The legislative
history of Title VI, administrative regulations interpreting the
statute, subsequent congressional and executive action, and the
prior decisions of this Court compel this conclusion. None of
these sources lends support to the proposition that Congress
intended to bar all race-conscious efforts to extend the benefits
of federally financed programs to minorities who have been
historically excluded from the full benefits of American life.
A
The history of Title VI -- from President Kennedy's request
that Congress grant executive departments and agencies
authority
Page 438 U. S. 329
to cut off federal funds to programs that discriminate against
Negroes through final enactment of legislation incorporating
his proposals -- reveals one fixed purpose: to give the
Executive Branch of Government clear authority to terminate
federal funding of private programs that use race as a means of
disadvantaging minorities in a manner that would be
prohibited by the Constitution if engaged in by government.
This purpose was first expressed in President Kennedy's June
19, 1963, message to Congress proposing the legislation that
subsequently became the Civil Rights Act of 1964. [Footnote
2/9]
Page 438 U. S. 330
Representative Celler, the Chairman of the House Judiciary
Committee, and the floor manager of the legislation in the
House, introduced Title VI in words unequivocally expressing
the intent to provide the Federal Government with the means
of assuring that its funds were not used to subsidize racial
discrimination inconsistent with the standards imposed by the
Fourteenth and Fifth Amendments upon state and federal
action.
"The bill would offer assurance that hospitals financed by
Federal money would not deny adequate care to Negroes. It
would prevent abuse of food distribution programs whereby
Negroes have been known to be denied food surplus supplies
when white persons were given such food. It would assure
Negroes the benefits now accorded only white students in
programs of high[er] education financed by Federal funds. It
would, in short, assure the existing right to equal treatment in
the enjoyment of Federal funds. It would not destroy any
rights of private property or freedom of association."
110 Cong.Rec. 1519 (1964). It was clear to Representative
Celler that Title VI, apart from the fact that it reached all
federally funded activities even in the absence of sufficient
state or federal control to invoke the Fourteenth or Fifth
Amendments, was not placing new substantive limitations
upon the use of racial criteria, but rather was designed to
extend to such activities "the existing right to equal treatment"
enjoyed by Negroes under those Amendments, and he later
specifically defined the purpose of Title VI in this way:
"In general, it seems rather anomalous that the Federal
Government should aid and abet discrimination on the basis of
race, color, or national origin by granting money
Page 438 U. S. 331
and other kinds of financial aid. It seems rather shocking,
moreover, that, while we have on the one hand the 14th
Amendment, which is supposed to do away with
discrimination, since it provides for equal protection of the
laws, on the other hand, we have the Federal Government
aiding and abetting those who persist in practicing racial
discrimination."
"It is for these reasons that we bring forth title VI. The
enactment of title VI will serve to override specific provisions
of law which contemplate Federal assistance to racially
segregated institutions."
Id. at 2467. Representative Celler also filed a memorandum
setting forth the legal basis for the enactment of Title VI
which reiterated the theme of his oral remarks:
"In exercising its authority to fix the terms on which Federal
funds will be disbursed . . . . Congress clearly has power to
legislate so as to insure that the Federal Government does not
become involved in a violation of the Constitution."
Id. at 1528.
Other sponsors of the legislation agreed with Representative
Celler that the function of Title VI was to end the Federal
Government's complicity in conduct, particularly the
segregation or exclusion of Negroes, inconsistent with the
standards to be found in the antidiscrimination provisions of
the Constitution. Representative Lindsay, also a member of the
Judiciary Committee, candidly acknowledged, in the course of
explaining why Title VI was necessary, that it did not create
any new standard of equal treatment beyond that contained in
the Constitution:
"Both the Federal Government and the States are under
constitutional mandates not to discriminate. Many have raised
the question as to whether legislation is required at all. Does
not the Executive already have the power in the distribution of
Federal funds to apply those conditions which will enable the
Federal Government itself to live up to the mandate of the
Constitution and to require
Page 438 U. S. 332
States and local government entities to live up to the
Constitution, most especially the 5th and 14th amendments?"
Id. at 2467. He then explained that legislation was needed to
authorize the termination of funding by the Executive Branch
because existing legislation seemed to contemplate the
expenditure of funds to support racially segregated
institutions. Ibid. The views of Representatives Celler and
Lindsay concerning the purpose and function of Title VI were
shared by other sponsors and proponents of the legislation in
the House. [Footnote 2/10] Nowhere is there any suggestion
that Title VI was intended to terminate federal funding for any
reason other than consideration of race or national origin by
the recipient institution in a manner inconsistent with the
standards incorporated in the Constitution.
The Senate's consideration of Title VI reveals an identical
understanding concerning the purpose and scope of the
legislation. Senator Humphrey, the Senate floor manager,
opened the Senate debate with a section-by-section analysis of
the Civil Rights Act in which he succinctly stated the purpose
of Title VI:
"The purpose of title VI is to make sure that funds of the
United States are not used to support racial discrimination. In
many instances, the practices of segregation or discrimination,
which title VI seeks to end, are unconstitutional. This is
clearly so wherever Federal funds go to a State agency which
engages in racial discrimination. It may also be so where
Federal funds go to support private, segregated institutions,
under the decision in Simkins v. Moses H. Cone Memorial
Hospital, 323 F.2d 959 (C.A. 4, 1963), [cert. denied, 376 U.S.
938 (1964)]. In all cases, such discrimination is contrary to
national policy, and to the moral sense of the Nation. Thus,
title VI is simply
Page 438 U. S. 333
designed to insure that Federal funds are spent in accordance
with the Constitution and the moral sense of the Nation."
Id. at 6544. Senator Humphrey, in words echoing statements
in the House, explained that legislation was needed to
accomplish this objective because it was necessary to
eliminate uncertainty concerning the power of federal agencies
to terminate financial assistance to programs engaging in
racial discrimination in the face of various federal statutes
which appeared to authorize grants to racially segregated
institutions. Ibid. Although Senator Humphrey realized that
Title VI reached conduct which, because of insufficient
governmental action, might be beyond the reach of the
Constitution, it was clear to him that the substantive standard
imposed by the statute was that of the Fifth and Fourteenth
Amendments. Senate supporters of Title VI repeatedly
expressed agreement with Senator Humphrey's description of
the legislation as providing the explicit authority and
obligation to apply the standards of the Constitution to all
recipients of federal funds. Senator Ribicoff described the
limited function of Title VI:
"Basically, there is a constitutional restriction against
discrimination in the use of Federal funds; and title VI simply
spells out the procedure to be used in enforcing that
restriction."
Id. at 13333. Other strong proponents of the legislation in the
Senate repeatedly expressed their intent to assure that federal
funds would only be spent in accordance with constitutional
standards. See remarks of Senator Pastore, id. at 7057, 7062;
Senator Clark, id. at 5243; Senator Allott, id. at 12675, 12677.
[Footnote 2/11]
Page 438 U. S. 334
Respondent's contention that Congress intended Title VI to bar
affirmative action programs designed to enable minorities
disadvantaged by the effects of discrimination to participate in
federally financed programs is also refuted by an examination
of the type of conduct which Congress thought it was
prohibiting by means of Title VI. The debates reveal that the
legislation was motivated primarily by a desire to eradicate a
very specific evil: federal financial support of programs which
disadvantaged Negroes by excluding them from participation
or providing them with separate facilities. Again and again
supporters of Title VI emphasized that the purpose of the
statute was to end segregation in federally funded activities
and to end other discriminatory uses of race disadvantaging
Negroes. Senator Humphrey set the theme in his speech
presenting Title VI to the Senate:
"Large sums of money are contributed by the United States
each year for the construction, operation, and maintenance of
segregated schools."
"* * * *"
"Similarly, under the Hill-Burton Act, Federal grants are made
to hospitals which admit whites only or Negroes only. . . ."
"In higher education also, a substantial part of the Federal
grants to colleges, medical schools and so forth, in the South is
still going to segregated institutions. "
Page 438 U. S. 335
"Nor is this all. In several States, agricultural extension
services, supported by Federal funds, maintain racially
segregated offices for Negroes and whites. . . ."
". . . Vocational training courses, supported with Federal
funds, are given in segregated schools and institutions and
often limit Negroes to training in less skilled occupations. In
particular localities it is reported that Negroes have been cut
off from relief rolls, or denied surplus agricultural
commodities, or otherwise deprived of the benefit of federally
assisted programs, in retaliation for their participation in voter
registration drives, sit-in demonstrations and the like."
Id. at 6543-6544. See also the remarks of Senator Pastore (id.
at 7054-7055); Senator Ribicoff (id. at 7064-7065); Senator
Clark (id. at 5243, 9086); Senator Javits (id. at 6050, 7102).
[Footnote 2/12]
The conclusion to be drawn from the foregoing is clear.
Congress recognized that Negroes, in some cases with
congressional acquiescence, were being discriminated against
in the administration of programs and denied the full benefits
of activities receiving federal financial support. It was aware
that there were many federally funded programs and
institutions which discriminated against minorities in a manner
inconsistent with the standards of the Fifth and Fourteenth
Amendments, but whose activities might not involve sufficient
state or federal action so as to be in violation of these
Amendments. Moreover, Congress believed that it was
questionable whether the Executive Branch possessed legal
authority to terminate the funding of activities on the ground
that they discriminated racially against Negroes in a manner
violative of the standards contained in the Fourteenth and Fifth
Page 438 U. S. 336
Amendments. Congress' solution was to end the Government's
complicity in constitutionally forbidden racial discrimination
by providing the Executive Branch with the authority and the
obligation to terminate its financial support of any activity
which employed racial criteria in a manner condemned by the
Constitution.
Of course, it might be argued that the Congress which enacted
Title VI understood the Constitution to require strict racial
neutrality or color blindness, and then enshrined that concept
as a rule of statutory law. Later interpretation and clarification
of the Constitution to permit remedial use of race would then
not dislodge Title VI's prohibition of race-conscious action.
But there are three compelling reasons to reject such a
hypothesis.
First, no decision of this Court has ever adopted the
proposition that the Constitution must be colorblind. See infra
at 438 U. S. 355-356.
Second, even if it could be argued in 1964 that the
Constitution might conceivably require color blindness,
Congress surely would not have chosen to codify such a view
unless the Constitution clearly required it. The legislative
history of Title VI, as well as the statute itself, reveals a desire
to induce voluntary compliance with the requirement of
nondiscriminatory treatment. [Footnote 2/13] See § 602 of the
Act, 42 U.S.C. § 2000d-1 (no funds shall be terminated unless
and until it has been "determined that compliance cannot be
secured by voluntary means"); H.R.Rep. No. 914, 88th Cong.,
1st Sess., pt. 1, p. 25 (1963); 110 Cong Rec. 13700 (1964)
(Sen. Pastore); id. at 6546 (Sen. Humphrey). It is
inconceivable that Congress intended to encourage voluntary
efforts to eliminate the evil of racial discrimination while at
the same time forbidding the voluntary use of race-conscious
remedies to cure acknowledged or obvious statutory
violations. Yet a reading of Title VI as prohibiting all action
predicated upon race which adversely
Page 438 U. S. 337
affects any individual would require recipients guilty of
discrimination to await the imposition of such remedies by the
Executive Branch. Indeed, such an interpretation of Title VI
would prevent recipients of federal funds from taking race into
account even when necessary to bring their programs into
compliance with federal constitutional requirements. This
would be a remarkable reading of a statute designed to
eliminate constitutional violations, especially in light of
judicial decisions holding that, under certain circumstances,
the remedial use of racial criteria is not only permissible, but is
constitutionally required to eradicate constitutional violations.
For example, in Board of Education v. Swann, 402 U. S. 43
(1971), the Court held that a statute forbidding the assignment
of students on the basis of race was unconstitutional because it
would hinder the implementation of remedies necessary to
accomplish the desegregation of a school system:
"Just as the race of students must be considered in determining
whether a constitutional violation has occurred, so also must
race be considered in formulating a remedy."
Id. at 402 U. S. 46. Surely Congress did not intend to prohibit
the use of racial criteria when constitutionally required or to
terminate the funding of any entity which implemented such a
remedy. It clearly desired to encourage all remedies, including
the use of race, necessary to eliminate racial discrimination in
violation of the Constitution, rather than requiring the
recipient to await a judicial adjudication of unconstitutionality
and the judicial imposition of a racially oriented remedy.
Third, the legislative history shows that Congress specifically
eschewed any static definition of discrimination in favor of
broad language that could be shaped by experience,
administrative necessity, and evolving judicial doctrine.
Although it is clear from the debates that the supporters of
Title VI intended to ban uses of race prohibited by the
Constitution and, more specifically, the maintenance of
segregated
Page 438 U. S. 338
facilities, they never precisely defined the term
"discrimination," or what constituted an exclusion from
participation or a denial of benefits on the ground of race. This
failure was not lost upon its opponents. Senator Ervin
complained:
"The word 'discrimination,' as used in this reference, has no
contextual explanation whatever, other than the provision that
the discrimination 'is to be against' individuals participating in
or benefiting from federally assisted programs and activities
on the ground specified. With this context, the discrimination
condemned by this reference occurs only when an individual
is treated unequally or unfairly because of his race, color,
religion, or national origin. What constitutes unequal or unfair
treatment? Section 601 and section 602 of title VI do not say.
They leave the determination of that question to the executive
department or agencies administering each program, without
any guideline whatever to point out what is the congressional
intent."
110 Cong.Rec. 5612 (1964). See also remarks of
Representative Abernethy (id. at 1619); Representative
Dowdy (id. at 1632); Senator Talmadge (id. at 5251); Senator
Sparkman (id. at 6052). Despite these criticisms, the
legislation's supporters refused to include in the statute or even
provide in debate a more explicit definition of what Title VI
prohibited.
The explanation for this failure is clear. Specific definitions
were undesirable, in the views of the legislation's principal
backers, because Title VI's standard was that of the
Constitution, and one that could and should be
administratively and judicially applied. See remarks of Senator
Humphrey (id. at 5253, 6553); Senator Ribicoff (id. at 7057,
13333); Senator Pastore (id. at 7057); Senator Javits (id. at
5606-5607, 6050). [Footnote 2/14] Indeed, there was a strong
emphasis throughout
Page 438 U. S. 339
Congress' consideration of Title VI on providing the Executive
Branch with considerable flexibility in interpreting and
applying the prohibition against racial discrimination.
Attorney General Robert Kennedy testified that regulations
had not been written into the legislation itself because the rules
and regulations defining discrimination might differ from one
program to another, so that the term would assume different
meanings in different contexts. [Footnote 2/15] This
determination to preserve flexibility in the administration of
Title VI was shared by the legislation's supporters. When
Senator Johnston offered an amendment that would have
expressly authorized federal grantees to take race into account
in placing children in adoptive and foster homes, Senator
Pastore opposed the amendment, which was ultimately
defeated by a 56-29 vote, on the ground that federal
administrators could be trusted to act reasonably, and that
there was no danger that they would prohibit the use of racial
criteria under such circumstances. Id. at 13695.
Congress' resolve not to incorporate a static definition of
discrimination into Title VI is not surprising. In 1963 and
1964, when Title VI was drafted and debated, the courts had
only recently applied the Equal Protection Clause to strike
down public racial discrimination in America, and the scope of
that Clause's nondiscrimination principle was in a state of flux
and rapid evolution. Many questions, such as whether the
Fourteenth Amendment barred only de jure discrimination or,
in at least some circumstances, reached de facto
discrimination, had not yet received an authoritative judicial
resolution. The congressional debate reflects an awareness of
the evolutionary
Page 438 U. S. 340
change that constitutional law in the area of racial
discrimination was undergoing in 1964. [Footnote 2/16]
In sum, Congress' equating of Title VI's prohibition with the
commands of the Fifth and Fourteenth Amendments, its
refusal precisely to define that racial discrimination which it
intended to prohibit, and its expectation that the statute would
be administered in a flexible manner, compel the conclusion
that Congress intended the meaning of the statute's prohibition
to evolve with the interpretation of the commands of the
Constitution. Thus, any claim that the use of racial criteria is
barred by the plain language of the statute must fail in light of
the remedial purpose of Title VI and its legislative history.
The cryptic nature of the language employed in Title VI
merely reflects Congress' concern with the then-prevalent use
of racial standards as a means of excluding or disadvantaging
Negroes and its determination to prohibit absolutely such
discrimination. We have recently held that,
""[w]hen aid to construction of the meaning of words, as used
in the statute, is available, there certainly can be no rule of law'
which forbids its use, however clear the words may appear on
`superficial examination.'""
Train v. Colorado Public Interest Research Group, 426 U. S. 1,
426 U. S. 10 (1976), quoting United States v. American
Trucking Assns., 310 U. S. 534, 310 U. S. 544-544 (1940).
This is especially so when, as is the case here, the literal
application of what is believed to be the plain language of the
statute, assuming that it is so plain, would lead to results in
direct conflict with Congress' unequivocally expressed
legislative purpose. [Footnote 2/17]
Page 438 U. S. 341
B
Section 602 of Title VI, 42 U.S.C. § 2000d-1, instructs federal
agencies to promulgate regulations interpreting Title
Page 438 U. S. 342
VI. These regulations, which, under the terms of the statute,
require Presidential approval, are entitled to considerable
deference in construing Title VI. See, e.g., 414 U. S. Nichols,
Page 438 U. S. 343
414 U. S. 563 (1974); Mourning v. Family Publications
Service, Inc., 411 U. S. 356, 411 U. S. 369 (1973); Red Lion
Broadcasting Co. v. FCC, 395 U. S. 367, 395 U. S. 381
(1969). Consequently, it is most significant that the
Department of Health, Education, and Welfare (HEW), which
provides much of the federal assistance to institutions of
higher education, has adopted regulations requiring
affirmative measures designed to enable racial minorities
which have been previously discriminated against by a
federally funded institution or program to overcome the effects
of such actions and authorizing the voluntary undertaking of
affirmative action programs by federally funded institutions
that have not been guilty of prior discrimination in order to
overcome the effects of conditions which have adversely
affected the degree of participation by persons of a particular
race.
Title 45 FR § 80.3(b)(6)(i) (1977) provides:
"In administering a program regarding which the recipient has
previously discriminated against persons on the ground of
race, color, or national origin, the recipient must take
affirmative action to overcome the effects of prior
discrimination."
Title 45 CFR § 80.5(i) (1977) elaborates upon this
requirement:
"In some situations, even though past discriminatory practices
attributable to a recipient or applicant have been abandoned,
the consequences of such practices continue to impede the full
availability of a benefit. If the efforts required of the applicant
or recipient under § 80.6(d), to provide information as to the
availability of the program or activity and the rights of
beneficiaries under this regulation, have failed to overcome
these consequences, it will become necessary under the
requirement stated in (i) of § 80.3(b)(6) for such applicant or
recipient to take additional steps to make the benefits
Page 438 U. S. 344
fully available to racial and nationality groups previously
subject to discrimination. This action might take the form, for
example, of special arrangements for obtaining referrals or
making selections which will insure that groups previously
subjected to discrimination are adequately served."
These regulations clearly establish that, where there is a need
to overcome the effects of past racially discriminatory or
exclusionary practices engaged in by a federally funded
institution, race-conscious action is not only permitted, but
required, to accomplish the remedial objectives of Title VI.
[Footnote 2/18] Of course, there is no evidence that the
Medical School has been guilty of past discrimination, and
consequently these regulations would not compel it to employ
a program of preferential admissions in behalf of racial
minorities. It would be difficult to explain from the language
of Title I, however, much less from its legislative history, why
the statute compels race-conscious remedies where a recipient
institution has engaged in past discrimination, but prohibits
such remedial action where racial minorities, as a result of the
effects of past discrimination imposed by entities other than
the recipient, are excluded from the benefits of federally
funded programs. HEW was fully aware of the incongruous
nature of such an interpretation of Title VI.
Title 45 CFR § 80.3(b)(6)(ii) (1977) provides:
"Even in the absence of such prior discrimination, a recipient,
in administering a program, may take affirmative action to
overcome the effects of conditions which resulted
Page 438 U. S. 345
in limiting participation by persons of a particular race, color,
or national origin."
An explanatory regulation explicitly states that the affirmative
action which § 80.3(b)(6)(ii) contemplates includes the use of
racial preferences:
"Even though an applicant or recipient has never used
discriminatory policies, the services and benefits of the
program or activity it administers may not, in fact, be equally
available to some racial or nationality groups. I n such
circumstances, an applicant or recipient may properly give
special consideration to race, color, or national origin to make
the benefits of its program more widely available to such
groups, not then being adequately served. For example, where
a university is not adequately serving members of a particular
racial or nationality group, it may establish special recruitment
policies to make its program better known and more readily
available to such group, and take other steps to provide that
group with more adequate service."
45 CFR § 80.5(j) (1977) This interpretation of Title VI is fully
consistent with the statute's emphasis upon voluntary remedial
action and reflects the views of an agency [Footnote 2/19]
responsible for achieving its objectives. [Footnote 2/20]
Page 438 U. S. 346
The Court has recognized that the construction of a statute by
those charged with its execution is particularly deserving of
respect where Congress has directed its attention to the
administrative construction and left it unaltered. Cf. Red Lion
Broadcasting Co. v. FCC, 395 U.S. at 395 U. S. 381; Zemel v.
Rusk, 381 U. S. 1, 381 U. S. 11-12 (1965). Congress recently
took just this kind of action when it considered an amendment
to the Departments of Labor and Health, Education, and
Welfare appropriation bill for 1978, which would have
restricted significantly the remedial use of race in programs
funded by the appropriation. The amendment, as originally
submitted by Representative Ashbrook, provided that
"[n]one of the funds appropriated in this Act may be used to
initiate, carry out or enforce any program of affirmative action
or any other system of quotas or goals in regard to admission
policies or employment practices which encourage or require
any discrimination on the basis of race, creed, religion, sex or
age."
123 Cong.Rec.
Page 438 U. S. 347
19715 (1977). In support of the measure, Representative
Ashbrook argued that the 1964 Civil Rights Act never
authorized the imposition of affirmative action, and that this
was a creation of the bureaucracy. Id. at 19722. He explicitly
stated, however, that he favored permitting universities to
adopt affirmative action programs giving consideration to
racial identity, but opposed the imposition of such programs
by the Government. Id. at 19715. His amendment was itself
amended to reflect this position by only barring the imposition
of race-conscious remedies by HEW:
"None of the funds appropriated in this Act may be obligated
or expended in connection with the issuance, implementation,
or enforcement of any rule, regulation, standard, guideline,
recommendation, or order issued by the Secretary of Health,
Education, and Welfare which for purposes of compliance
with any ratio, quota, or other numerical requirement related
to race, creed, color, national origin, or sex requires any
individual or entity to take any action with respect to (1) the
hiring or promotion policies or practices of such individual or
entity, or (2) the admissions policies or practices of such
individual or entity."
Id. at 19722. This amendment was adopted by the House. Ibid.
The Senate bill, however, contained no such restriction upon
HEW's authority to impose race-conscious remedies, and the
Conference Committee, upon the urging of the Secretary of
HEW, deleted the House provision from the bill. [Footnote
2/21] More significant for present purposes, however, is the
fact that even the proponents of imposing limitations upon
HEW's implementation of Title VI did not challenge the right
of federally funded educational institutions voluntarily to
extend preferences to racial minorities.
Page 438 U. S. 348
Finally, congressional action subsequent to the passage of
Title VI eliminates any possible doubt about Congress' views
concerning the permissibility of racial preferences for the
purpose of assisting disadvantaged racial minorities. It
confirms that Congress did not intend to prohibit, and does not
now believe that Title VI prohibits, the consideration of race
as part of a remedy for societal discrimination even where
there is no showing that the institution extending the
preference has been guilty of past discrimination nor any
judicial finding that the particular beneficiaries of the racial
preference have been adversely affected by societal
discrimination.
Just last year, Congress enacted legislation [Footnote 2/22]
explicitly requiring that no grants shall be made
"for any local public works project unless the applicant gives
satisfactory assurance to the Secretary [of Commerce] that at
least 10 per centum of the amount of each grant shall be
expended for minority business enterprises."
The statute defines the term "minority business enterprise" as
"a business, at least 50 per centum of which is owned by
minority group members or, in case of a publicly owned
business, at least 51 per centum of the stock of which is owned
by minority group members."
The term "minority group members" is defined in explicitly
racial terms: "citizens of the United States who are Negroes,
Spanish-speaking, Orientals, Indians, Eskimos, and Aleuts."
Although the statute contains an exemption from this
requirement "to the extent that the Secretary determines
otherwise," this escape clause was provided only to deal with
the possibility that certain areas of the country might not
contain sufficient qualified "minority business enterprises" to
permit compliance with the quota provisions of the legislation.
[Footnote 2/23]
The legislative history of this race-conscious legislation
reveals that it represents a deliberate attempt to deal with
Page 438 U. S. 349
the excessive rate of unemployment among minority citizens
and to encourage the development of viable minority
controlled enterprises. [Footnote 2/24] It was believed that
such a "set-aside" was required in order to enable minorities,
still "new on the scene" and "relatively small," to compete
with larger and more established companies which would
always be successful in underbidding minority enterprises. 123
Cong.Rec. 5327 (1977) (Rep. Mitchell). What is most
significant about the congressional consideration of the
measure is that, although the use of a racial quota or "set-
aside" by a recipient of federal funds would constitute a direct
violation of Title VI if that statute were read to prohibit race-
conscious action, no mention was made during the debates in
either the House or the Senate of even the possibility that the
quota provisions for minority contractors might in any way
conflict with or modify Title VI. It is inconceivable that such a
purported conflict would have escaped congressional attention
through an inadvertent failure to recognize the relevance of
Title VI. Indeed, the Act of which this affirmative action
provision is a part also contains a provision barring
discrimination on the basis of sex which states that this
prohibition
"will be enforced through agency provisions and rules similar
to those already established, with respect to racial and other
discrimination under Title VI of the Civil Rights Act of 1964."
42 U.S.C. § 6709 (1976 ed.). Thus Congress, was fully aware
of the applicability of Title VI to the funding of public works
projects. Under these circumstances, the enactment of the 10%
"set-aside" for minority enterprises reflects a congressional
judgment that the remedial use of race is permissible under
Title VI. We have repeatedly recognized that subsequent
legislation reflecting an interpretation of an earlier Act is
entitled to great weight in determining the meaning of the
earlier statute. Red Lion Broadcasting Co. v. FCC, 395 U.S. at
395 U. S. 380-381;
Page 438 U. S. 350
Erlenbaugh v. United States, 409 U. S. 239, 409 U. S. 243-244
(1972). See also United States v. Stewart, 311 U. S. 60, 311 U.
S. 64-65 (1940). [Footnote 2/25]
C before being permitted to voluntarily undertake corrective
Prior decisions of this Court also strongly suggest that Title VI
does not prohibit the remedial use of race where such action is
constitutionally permissible. In Lau v. Nichols, 414 U. S. 563
(1974), the Court held that the failure of the San
Page 438 U. S. 351
Francisco school system to provide English language
instruction to students of Chinese ancestry who do not speak
English, or to provide them with instruction in Chinese,
constituted a violation of Title VI. The Court relied upon an
HEW regulation which stipulates that a recipient of federal
funds "may not . . . utilize criteria or methods of
administration which have the effect of subjecting individuals
to discrimination" or have
"the effect of defeating or substantially impairing
accomplishment of the objectives of the program as respect
individuals of a particular race, color, or national origin."
45 CFR § 80.3(b)(2) (1977). It interpreted this regulation as
requiring San Francisco to extend the same educational
benefits to Chinese-speaking students as to English-speaking
students, even though there was no finding or allegation that
the city's failure to do so was a result of a purposeful design to
discriminate on the basis of race.
Lau is significant in two related respects. First, it indicates
that, in at least some circumstances, agencies responsible for
the administration of Title VI may require recipients who have
not been guilty of any constitutional violations to depart from
a policy of color blindness and to be cognizant of the impact
of their actions upon racial minorities. Secondly, Lau clearly
requires that institutions receiving federal funds be accorded
considerable latitude in voluntarily undertaking race-conscious
action designed to remedy the exclusion of significant
numbers of
Page 438 U. S. 352
minorities from the benefits of federally funded programs.
Although this Court has not yet considered the question,
presumably, by analogy to our decisions construing Title VII,
a medical school would not be in violation of Title VI under
Lau because of the serious underrepresentation of racial
minorities in its student body as long as it could demonstrate
that its entrance requirements correlated sufficiently with the
performance of minority students in medical school and the
medical profession. [Footnote 2/26] It would be inconsistent
with Lau and the emphasis of Title VI and the HEW
regulations on voluntary action, however, to require that an
institution wait to be adjudicated to be in violation of the law
action based upon a good faith and reasonable belief that the
failure of certain racial minorities to satisfy entrance
requirements is not a measure of their ultimate performance as
doctors, but a result of the lingering effects of past societal
discrimination.
We recognize that Lau, especially when read in light of our
subsequent decision in Washington v. Davis, 46 U. S. 229
(1976), which rejected the general proposition that
governmental action is unconstitutional solely because it has a
racially disproportionate impact, may be read as being
predicated upon the view that, at least under some
circumstances, Title VI proscribes conduct which might not be
prohibited by the Constitution. Since we are now of the
opinion, for the reasons set forth above, that Title VI's
standard, applicable alike to public and private recipients of
federal funds, is no broader than the Constitution's, we have
serious doubts concerning the correctness of what appears to
be the premise of that decision. However, even accepting
Lau's implication that impact alone is, in some contexts,
sufficient to establish a prima facie violation of Title VI,
contrary to our view that Title VI's definition of racial
discrimination is absolutely coextensive with the
Constitution's, this would not assist the respondent
Page 438 U. S. 353
in the least. First, for the reasons discussed supra at 438 U. S.
336-350, regardless of whether Title VI's prohibitions extend
beyond the Constitution's, the evidence fails to establish, and,
indeed, compels the rejection of, the proposition that Congress
intended to prohibit recipients of federal funds from
voluntarily employing race-conscious measures to eliminate
the effects of past societal discrimination against racial
minorities such as Negroes. Secondly, Lau itself, for the
reasons set forth in the immediately preceding paragraph,
strongly supports the view that voluntary race-conscious
remedial action is permissible under Title VI. If discriminatory
racial impact alone is enough to demonstrate at least a prima
facie Title VI violation, it is difficult to believe that the Title
would forbid the Medical School from attempting to correct
the racially exclusionary effects of its initial admissions policy
during the first two years of the School's operation.
The Court has also declined to adopt a "colorblind"
interpretation of other statutes containing nondiscrimination
provisions similar to that contained in Title VI. We have held
under Title VII that, where employment requirements have a
disproportionate impact upon racial minorities, they constitute
a statutory violation, even in the absence of discriminatory
intent, unless the employer is able to demonstrate that the
requirements are sufficiently related to the needs of the job.
[Footnote 2/27] More significantly, the Court has required that
preferences be given by employers to members of racial
minorities as a remedy for past violations of Title VII, even
where there has been no finding that the employer has acted
with a discriminatory intent. [Footnote 2/28] Finally, we have
construed the Voting
Page 438 U. S. 354
Rights Act.of 1965, 42 U.S.C. § 1973 et seq. (1970 ed. and
Supp. V), which contains a provision barring any voting
procedure or qualification that denies or abridges "the right of
Page 438 U. S. 355
any citizen of the United States to vote on account of race or
color," as permitting States to voluntarily take race into
account in a way that fairly represents the voting strengths of
different racial groups in order to comply with the commands
of the statute, even where the result is a gain for one racial
group at the expense of others. [Footnote 2/29]
These prior decisions are indicative of the Court's
unwillingness to construe remedial statutes designed to
eliminate discrimination against racial minorities in a manner
which would impede efforts to attain this objective. There is
no justification for departing from this course in the case of
Title VI and frustrating the clear judgment of Congress that
race-conscious remedial action is permissible.
We turn, therefore, to our analysis of the Equal Protection
Clause of the Fourteenth Amendment.
III
A
The assertion of human equality is closely associated with the
proposition that differences in color or creed, birth or status,
are neither significant nor relevant to the way in which persons
should be treated. Nonetheless, the position that such factors
must be "constitutionally an irrelevance," Edwards v.
California, 314 U. S. 160, 314 U. S. 185 (1941) (Jackson, J.,
concurring), summed up by the shorthand phrase " [o]ur
Constitution is color-blind," Plessy v. Ferguson, 163 U. S.
537, 163 U. S. 559 (1896) (Harlan, J., dissenting), has never
been adopted by this Court as the proper meaning of the Equal
Protection Clause. Indeed,
Page 438 U. S. 356
we have expressly rejected this proposition on a number of
occasions.
Our cases have always implied that an "overriding statutory
purpose," McLaughlin v. Florida, 379 U. S. 184, 379 U. S. 192
(1984), could be found that would justify racial classifications.
See, e.g., ibid.; Loving v. Virginia, 388 U. S. 1, 388 U. S. 11
(1967); Korematsu v. United States, 323 U. S. 214, 323 U. S.
216 (1944); Hirabayashi v. United States, 320 U. S. 81, 320 U.
S. 100-101 (1943). More recently, in McDaniel v. Barresi, 402
U. S. 39 (1971) this Court unanimously reversed the Georgia
Supreme Court which had held that a desegregation plan
voluntarily adopted by a local school board, which assigned
students on the basis of race, was per se invalid because it was
not colorblind. And in North Carolina Board of Education v.
Swann, we held, again unanimously, that a statute mandating
colorblind school assignment plans could not stand "against
the background of segregation," since such a limit on remedies
would "render illusory the promise of Brown [I]." 402 U.S. at
402 U. S. 45-46.
We conclude, therefore, that racial classifications are not per
se invalid under the Fourteenth Amendment. Accordingly, we
turn to the problem of articulating what our role should be in
reviewing state action that expressly classifies by race.
B
Respondent argues that racial classifications are always
suspect, and, consequently, that this Court should weigh the
importance of the objectives served by Davis' special
admissions program to see if they are compelling. In addition,
he asserts that this Court must inquire whether, in its
judgment, there are alternatives to racial classifications which
would suit Davis' purposes. Petitioner, on the other hand,
states that our proper role is simply to accept petitioner's
determination that the racial classifications used by its
program are reasonably related to what it tells us are its benign

Page 438 U. S. 357
purposes. We reject petitioner's view, but, because our prior
cases are in many respects inapposite to that before us now,
we find it necessary to define with precision the meaning of
that inexact term, "strict scrutiny."
Unquestionably we have held that a government practice or
statute which restricts "fundamental rights" or which contains
"suspect classifications" is to be subjected to "strict scrutiny,"
and can be justified only if it furthers a compelling
government purpose and, even then, only if no less restrictive
alternative is available. [Footnote 2/30] See, e.g., San Antonio
Independent School District v. Rodriguez, 411 U. S. 1, 411 U.
S. 16-17 (1973); Dunn v. Blumstein, 405 U. S. 330 (1972).
But no fundamental right is involved here. See San Antonio,
supra at 422 U. S. 29-36. Nor do whites, as a class, have any
of the
"traditional indicia of suspectness: the class is not saddled with
such disabilities, or subjected to such a history of purposeful
unequal treatment, or relegated to such a position of political
powerlessness as to command extraordinary protection from
the majoritarian political process."
Id. at 422 U. S. 28; see United States v. Carolene Products
Co., 304 U. S. 144, 304 U. S. 152 n. 4 (1938). [Footnote 2/31]
Moreover, if the University's representations are credited, this
is not a case where racial classifications are "irrelevant, and
therefore prohibited." Hirabayashi, supra at 320 U. S. 100. Nor
has anyone suggested that the University's purposes
contravene the cardinal principle that racial classifications that
stigmatize -- because they are drawn on the presumption that
one race is inferior to another or because they put the weight
of government
Page 438 U. S. 358
behind racial hatred and separatism -- are invalid without
more. See Yick Wo v. Hopkins, 118 U. S. 356, 118 U. S. 374
(1886); [Footnote 2/32] accord, Strauder v. West Virginia, 100
U. S. 303, 100 U. S. 308 (1880); Korematsu v. United States,
supra at 323 U. S. 223; Oyama v. California, 332 U. S. 633,
332 U. S. 663 (1948) (Murphy, J., concurring); Brown I, 347
U. S. 483 (1954); McLaughlin v. Florida, supra, at 379 U. S.
191-192; Loving v. Virginia, supra, at 388 U. S. 11-12;
Reitman v. Mulkey, 387 U. S. 369, 387 U. S. 375-376 (1967);
United Jewish Organizations v. Carey, 430 U. S. 144, 430 U.
S. 165 (1977) (UJO) (opinion of WHITE, J., joined by
REHNQUIST and STEVENS, JJ.); id. at 430 U. S. 169
(opinion concurring in part). [Footnote 2/33]
On the other hand, the fact that this case does not fit neatly
into our prior analytic framework for race cases does not mean
that it should be analyzed by applying the very loose rational
basis standard of review that is the very least that is always
applied in equal protection cases. [Footnote 2/34]
"'[T]he mere recitation of a benign, compensatory purpose is
not an automatic shield
Page 438 U. S. 359
which protects.against any inquiry into the actual purpose
underlying a statutory scheme.'"
Califano v. Webster, 430 U. S. 313, 430 U. S. 317 (1977),
quoting Weinberger v. Wiesenfeld, 420 U. S. 636, 420 U. S.
648 (1975). Instead, a number of considerations -- developed
in gender discrimination cases but which carry even more
force when applied to racial classifications -- lead us to
conclude that racial classifications designed to further
remedial purposes "must serve important governmental
objectives, and must be substantially related to achievement of
those objectives.'" Califano v. Webster, supra at 430 U. S. 317,
quoting Craig v. Boren, 429 U. S. 190, 429 U. S. 197 (1976).
[Footnote 2/35]
Page 438 U. S. 360
First, race, like, "gender-based classifications, too often [has]
been inexcusably utilized to stereotype and stigmatize
politically powerless segments of society." Kahn v. Shevin,
416 U. S. 351, 416 U. S. 357 (1974) (dissenting opinion).
While a carefully tailored statute designed to remedy past
discrimination could avoid these vices, see Califano v.
Webster, supra; Schlesinger v. Ballard, 419 U. S. 498 (1975);
Kahn v. Shevin, supra, we nonetheless have recognized that
the line between honest and thoughtful appraisal of the effects
of past discrimination and paternalistic stereotyping is not so
clear, and that a statute based on the latter is patently capable
of stigmatizing all women with a badge of inferiority. Cf.
Schlesinger v. Ballard, supra at 419 U. S. 508; UJO, supra at
430 U. S. 174, and n. 3 (opinion concurring in part); Califano
v. Goldfarb, 430 U. S. 199, 430 U. S. 223 (1977) (STEVENS,
J., concurring in judgment). See also Stanton v. Stanton, 421
U. S. 7, 421 U. S. 14-15 (1975). State programs designed
ostensibly to ameliorate the effects of past racial
discrimination obviously create the same hazard of stigma,
since they may promote racial separatism and reinforce the
views of those who believe that members of racial minorities
are inherently incapable of succeeding on their own. See UJO,
supra at 430 U. S. 172 (opinion concurring in part); ante at 438
U. S. 298 (opinion of POWELL, J.).
Second, race, like gender and illegitimacy, see Weber v. Aetna
Casualty & Surety Co., 406 U. S. 164 (1972), is an immutable
characteristic which its possessors are powerless to escape or
set aside. While a classification is not per se invalid because it
divides classes on the basis of an immutable characteristic, see
supra at 438 U. S. 355-356, it is nevertheless true that such
divisions are contrary to our deep belief that "legal burdens
should bear some relationship to individual responsibility or
Page 438 U. S. 361
wrongdoing," Weber, supra at 406 U. S. 175; Frontiero v.
Richardson, 411 U. S. 677, 411 U. S. 686 (1973) (opinion of
BRENNAN, WHITE, and MARSHALL, JJ.), and that
advancement sanctioned, sponsored, or approved by the State
should ideally be based on individual merit or achievement, or
at the least on factors within the control of an individual. See
UJO, 430 U.S. at 430 U. S. 173 (opinion concurring in part);
Kotch v. Board of River Port Pilot Comm'rs, 330 U. S. 552,
330 U. S. 566 (1947) (Rutledge, J., dissenting).
Because this principle is so deeply rooted, it might be
supposed that it would be considered in the legislative process
and weighed against the benefits of programs preferring
individuals because of their race. But this is not necessarily so:
the
"natural consequence of our governing processes [may well
be] that the most 'discrete and insular' of whites . . . will be
called upon to bear the immediate, direct costs of benign
discrimination."
UJO, supra at 430 U. S. 174 (opinion concurring in part).
Moreover, it is clear from our cases that there are limits
beyond which majorities may not go when they classify on the
basis of immutable characteristics. See, e.g., Weber, supra.
Thus, even if the concern for individualism is weighed by the
political process, that weighing cannot waive the personal
rights of individuals under the Fourteenth Amendment. See
Lucas v. Colorado General Assembly, 377 U. S. 713, 377 U.
S. 736 (1964).
In sum, because of the significant risk that racial
classifications established for ostensibly benign purposes can
be misused, causing effects not unlike those created by
invidious classifications, it is inappropriate to inquire only
whether there is any conceivable basis that might sustain such
a classification. Instead, to justify such a classification, an
important and articulated purpose for its use must be shown.
In addition, any statute must be stricken that stigmatizes any
group or that singles out those least well represented in the
political process to bear the brunt of a benign program. Thus,
our review under the Fourteenth Amendment should be
Page 438 U. S. 362
strict -- not "strict' in theory and fatal in fact," [Footnote 2/36]
because it is stigma that causes fatality -- but strict and
searching nonetheless.
IV
Davis' articulated purpose of remedying the effects of past
societal discrimination is, under our cases, sufficiently
important to justify the use of race-conscious admissions
programs where there is a sound basis for concluding that
minority underrepresentation is substantial and chronic, and
that the handicap of past discrimination is impeding access of
minorities to the Medical School.
A
At least since Green v. County School Board, 391 U. S. 430
(1968), it has been clear that a public body which has itself
been adjudged to have engaged in racial discrimination cannot
bring itself into compliance with the Equal Protection Clause
simply by ending its unlawful acts and adopting a neutral
stance. Three years later, Swann v. Charlotte-Mecklenburg
Board of Education, 402 U. S. 1 (1971), and its companion
cases, Davis v. School Comm'rs of Mobile County, 402 U. S.
33 (1971); McDaniel v. Barresi, 402 U. S. 39 (1971); and
North Carolina Board of Education v. Swann, 402 U. S. 43
(1971), reiterated that racially neutral remedies for past
discrimination were inadequate where consequences of past
discriminatory acts influence or control present decisions. See,
e.g., Charlotte-Mecklenburg, supra at 402 U. S. 28. And the
Court further held both that courts could enter desegregation
orders which assigned students and faculty by reference to
race, Charlotte-Mecklenburg, supra; Davis, supra; United
States v. Montgomery County Board of Ed., 395 U. S. 225
(1969), and that local school boards could voluntarily adopt
desegregation
Page 438 U. S. 363
plans which made express reference to race if this was
necessary to remedy the effects of past discrimination.
McDaniel v. Barresi, supra. Moreover, we stated that school
boards, even in the absence of a judicial finding of past
discrimination, could voluntarily adopt plans which assigned
students with the end of creating racial pluralism by
establishing fixed ratios of black and white students in each
school. Charlotte-Mecklenburg, supra at 402 U. S. 16. In each
instance, the creation of unitary school systems, in which the
effects of past discrimination had been "eliminated root and
branch," Green, supra at 391 U. S. 438, was recognized as a
compelling social goal justifying the overt use of race.
Finally, the conclusion that state educational institutions may
constitutionally adopt admissions programs designed to avoid
exclusion of historically disadvantaged minorities, even when
such programs explicitly take race into account, finds direct
support in our cases construing congressional legislation
designed to overcome the present effects of past
discrimination. Congress can and has outlawed actions which
have a disproportionately adverse and unjustified impact upon
members of racial minorities and has required or authorized
race-conscious action to put individuals disadvantaged by such
impact in the position they otherwise might have enjoyed. See
Franks v. Bowman Transportation Co., 424 U. S. 747 (1976);
Teamsters v. United States, 431 U. S. 324 (1977). Such relief
does not require as a predicate proof that recipients of
preferential advancement have been individually discriminated
against; it is enough that each recipient is within a general
class of persons likely to have been the victims of
discrimination. See id. at 431 U. S. 357-362. Nor is it an
objection to such relief that preference for minorities will
upset the settled expectations of nonminorities. See Franks,
supra. In addition, we have held that Congress, to remove
barriers to equal opportunity, can and has required employers
to use test criteria that fairly reflect the qualifications of
minority applicants
Page 438 U. S. 364
vis-a-vis nonminority applicants, even if this means
interpreting the qualifications of an applicant in light of his
race. See Albemarle Paper Co. v. Moody, 422 U. S. 405, 422
U. S. 435 (1975). [Footnote 2/37]
These cases cannot be distinguished simply by the presence of
judicial findings of discrimination, for race-conscious
remedies have been approved where such findings have not
been made. McDaniel v. Barresi, supra; UJO; see Califano v.
Webster, 430 U. S. 313 (1977); Schlesinger v. Ballard, 419 U.
S. 498 (1975); Kahn v. Shevin, 416 U. S. 351 (1974). See also
Katzenbach v. Morgan, 384 U. S. 641 (1966). Indeed, the
requirement of a judicial determination of a constitutional or
statutory violation as a predicate for race-conscious remedial
actions would be self-defeating. Such a requirement would
severely undermine efforts to achieve voluntary compliance
with the requirements of law. And our society and
jurisprudence have always stressed the value of voluntary
efforts to further the objectives of the law. Judicial
intervention is a last resort to achieve cessation of illegal
conduct or the remedying of its effects, rather than a
prerequisite to action. [Footnote 2/38]
Page 438 U. S. 365
Nor can our cases be distinguished on the ground that the
entity using explicit racial classifications itself had violated §
1 of the Fourteenth Amendment or an antidiscrimination
regulation, for again race-conscious remedies have been
approved where this is not the case. See UJO, 430 U.S. at 430
U. S. 157 (opinion of WHITE, J., joined by BRENNAN,
BLACKMUN, and STEVENS, JJ.); [Footnote 2/39] id. at 430
U. S. 167 (opinion of WHITE, J., joined by REHNQUIST and
STEVENS, JJ.); [Footnote 2/40] cf. Califano v. Webster,
supra, at 430 U. S. 317; Kahn v. Shevin, supra. Moreover, the
presence or absence of past discrimination by universities or
employers is largely irrelevant to resolving respondent's
constitutional claims. The claims of those burdened by the
race-conscious actions of a university or employer who has
never been adjudged in violation of an antidiscrimination law
are not any more or less entitled to deference than the claims
of the burdened nonminority workers in Franks v. Bowman
Transportation Co., supra, in which the employer had violated
Title VII, for, in each case, the employees are innocent of past
discrimination. And, although it might be argued that, where
an employer has violated an antidiscrimination law, the
expectations of nonminority workers are themselves products
of discrimination and hence "tainted," see Franks, supra at 424
U. S. 776, and therefore more easily upset, the same argument
can be made with respect to respondent. If it was reasonable to
conclude -- as we hold that it was -- that the failure of
minorities to qualify for admission at Davis under regular
procedures was due principally to the effects of past
discrimination, than there is a reasonable likelihood that, but
for pervasive racial discrimination,
Page 438 U. S. 366
respondent would have failed to qualify for admission even in
the absence of Davis' special admissions program. [Footnote
2/41]
Thus, our cases under Title VII of the Civil Rights Act have
held that, in order to achieve minority participation in
previously segregated areas of public life, Congress may
require or authorize preferential treatment for those likely
disadvantaged by societal racial discrimination. Such
legislation has been sustained even without a requirement of
findings of intentional racial discrimination by those required
or authorized to accord preferential treatment, or a case-by-
case determination that those to be benefited suffered from
racial discrimination. These decisions compel the conclusion
that States also may adopt race-conscious programs designed
to overcome substantial, chronic minority underrepresentation
where there is reason to believe that the evil addressed is a
product of past racial discrimination. [Footnote 2/42]
Page 438 U. S. 367
Title VII was enacted pursuant to Congress' power under the
Commerce Clause and § 5 of the Fourteenth Amendment. To
he extent that Congress acted under the Commerce Clause
power, it was restricted in the use of race in governmental
decisionmaking by the equal protection component of the Due
Process Clause of the Fifth Amendment precisely to the same
extent as are the States by § 1 of the Fourteenth Amendment.
[Footnote 2/43] Therefore, to the extent that Title VII rests on
the Commerce Clause power, our decisions such a Franks and
Page 438 U. S. 368
Teamsters v. United States, 431 U. S. 324 (1977), implicitly
recognize that the affirmative use of race is consistent with the
equal protection component of the Fifth Amendment, and
therefore with the Fourteenth Amendment. To the extent that
Congress acted pursuant to § 5 of the Fourteenth Amendment,
those cases impliedly recognize that Congress was empowered
under that provision to accord preferential treatment to victims
of past discrimination in order to overcome the effects of
segregation, and we see no reason to conclude that the States
cannot voluntarily accomplish under § 1 of the Fourteenth
Amendment what Congress under § 5 of the Fourteenth
Amendment validly may authorize or compel either the States
or private persons to do. A contrary position would conflict
with the traditional understanding recognizing the competence
of the States to initiate measures consistent with federal policy
in the absence of congressional preemption of the subject
matter. Nothing whatever in the legislative history of either the
Fourteenth Amendment or the Civil Rights Acts even remotely
suggests that the States are foreclosed from furthering the
fundamental purpose of equal opportunity to which the
Amendment and these Acts are addressed. Indeed, voluntary
initiatives by the States to achieve the national goal of equal
opportunity have been recognized to be essential to its
attainment. "To use the Fourteenth Amendment as a sword
against such State power would stultify that Amendment."
Railway Mail Assn. v. Corsi, 326 U. S. 88, 326 U. S. 98
(1945) (Frankfurter, J., concurring). [Footnote 2/44] We
therefore
Page 438 U. S. 369
conclude that Davis' goal of admitting minority students
disadvantaged by the effects of past discrimination is
sufficiently important to justify use of race-conscious
admissions criteria.
B Page 438 U. S. 371
Properly construed, therefore, our prior cases unequivocally
show that a state government may adopt race-conscious
programs if the purpose of such programs is to remove the
disparate racial impact its actions might otherwise have, and if
there is reason to believe that the disparate impact is itself the
product of past discrimination, whether its own or that of
society at large. There is no question that Davis' program is
valid under this test.
Certainly, on the basis of the undisputed factual submissions
before this Court, Davis had a sound basis for believing that
the problem of underrepresentation of minorities was
substantial and chronic, and that the problem was attributable
to handicaps imposed on minority applicants by past and
present racial discrimination. Until at least 1973, the practice
of medicine in this country was, in fact, if not in law, largely
the prerogative of whites. [Footnote 2/45] In 1950, for
example, while Negroes
Page 438 U. S. 370
constituted 10% of the total population, Negro physicians
constituted only 2.2% of the total number of physicians.
[Footnote 2/46] The overwhelming majority of these,
moreover, were educated in two predominantly Negro medical
schools, Howard and Meharry. [Footnote 2/47] By 1970, the
gap between the proportion of Negroes in medicine and their
proportion in the population had widened: the number of
Negroes employed in medicine remained frozen at 2.2%
[Footnote 2/48] while the Negro population had increased to
11.1%. [Footnote 2/49] The number of Negro admittees to
predominantly white medical schools, moreover, had declined
in absolute numbers during the years 1955 to 1964. Odegaard
19.
Moreover, Davis had very good reason to believe that the
national pattern of underrepresentation of minorities in
medicine would be perpetuated if it retained a single
admissions standard. For example, the entering classes in 1968
and 1969, the years in which such a standard was used,
included only 1 Chicano and 2 Negroes out of the 50
admittees for each year. Nor is there any relief from this
pattern of underrepresentation in the statistics for the regular
admissions program in later years. [Footnote 2/50]
Davis clearly could conclude that the serious and persistent
underrepresentation of minorities in medicine depicted by
these statistics is the result of handicaps under which minority
applicants labor as a consequence of a background of
deliberate, purposeful discrimination against minorities in
education
and in society generally, as well as in the medical profession.
From the inception of our national life, Negroes have been
subjected to unique legal disabilities impairing access to equal
educational opportunity. Under slavery, penal sanctions were
imposed upon anyone attempting to educate Negroes.
[Footnote 2/51] After enactment of the Fourteenth
Amendment the States continued to deny Negroes equal
educational opportunity, enforcing a strict policy of
segregation that itself stamped Negroes as inferior, Brown I,
347 U. S. 483 (1954), that relegated minorities to inferior
educational institutions, [Footnote 2/52] and that denied them
intercourse in the mainstream of professional life necessary to
advancement. See Sweatt v. Painter, 339 U. S. 629 (1950).
Segregation was not limited to public facilities, moreover, but
was enforced by criminal penalties against private action as
well. Thus, as late as 1908, this Court enforced a state criminal
conviction against a private college for teaching Negroes
together with whites. Berea College v. Kentucky, 211 U. S.
45. See also Plessy v. Ferguson, 163 U. S. 537 (1896).
Green v. County School Board, 391 U. S. 430 (1968), gave
explicit recognition to the fact that the habit of discrimination
and the cultural tradition of race prejudice cultivated by
centuries of legal slavery and segregation were not
immediately dissipated when Brown I, supra, announced the
constitutional principle that equal educational opportunity and
participation in all aspects of American life could not be
denied on the basis of race. Rather, massive official and
private resistance prevented, and to a lesser extent still
prevents, attainment of equal opportunity in education at all
levels and in the professions. The generation of minority
students applying to Davis Medical School since it opened in
1968 -- most of whom
Page 438 U. S. 372
were born before or about the time Brown I was decided --
clearly have been victims of this discrimination. Judicial
decrees recognizing discrimination in public education in
California testify to the fact of widespread discrimination
suffered by California-born minority applicants; [Footnote
2/53] many minority group members living in California,
moreover, were born and reared in school districts in Southern
States segregated by law. [Footnote 2/54] Since separation of
schoolchildren by race
"generates a feeling of inferiority as to their status in the
community that may affect their hearts and minds in a way
unlikely ever to be undone,"
Brown I, supra at 347 U. S. 494, the conclusion is inescapable
that applicants to medical school must be few indeed who
endured the effects of de jure segregation, the resistance to
Brown I, or the equally debilitating pervasive private
discrimination fostered by our long history of official
discrimination, cf. Reitman v. Mulkey, 387 U. S. 369 (1967),
and yet come to the starting line with an education equal to
whites. [Footnote 2/55]
Moreover, we need not rest solely on our own conclusion that
Davis had sound reason to believe that the effects of past
discrimination were handicapping minority applicants to the
Medical School, because the Department of Health, Education,
and Welfare, the expert agency charged by Congress with
promulgating regulations enforcing Title VI of the Civil
Rights Act of 1964, see supra at 438 U. S. 341-343, has also
reached the conclusion that race may be taken into account in
situations
Page 438 U. S. 373
where a failure to do so would limit participation by minorities
in federally funded programs, and regulations promulgated by
the Department expressly contemplate that appropriate race-
conscious programs may be adopted by universities to remedy
unequal access to university programs caused by their own or
by past societal discrimination. See supra at 438 U. S. 344-
345, discussing 45 CFR §§ 80.3(b)(6)(ii) and 80.5(j) (1977). It
cannot be questioned that, in the absence of the special
admissions program, access of minority students to the
Medical School would be severely limited and, accordingly,
race-conscious admissions would be deemed an appropriate
response under these federal regulations. Moreover, the
Department's regulatory policy is not one that has gone
unnoticed by Congress. See supra at 438 U. S. 346-347.
Indeed, although an amendment to an appropriations bill was
introduced just last year that would have prevented the
Secretary of Health, Education, and Welfare from mandating
race-conscious programs in university admissions, proponents
of this measure, significantly, did not question the validity of
voluntary implementation of race-conscious admissions
criteria. See ibid. In these circumstances, the conclusion
implicit in the regulations -- that the lingering effects of past
discrimination continue to make race-conscious remedial
programs appropriate means for ensuring equal educational
opportunity in universities -- deserves considerable judicial
deference. See, e.g., Katzenbach v. Morgan, 384 U. S. 641
(1966); UJO, 430 U.S. at 430 U. S. 175-178 (opinion
concurring in part). [Footnote 2/56]
C
The second prong of our test -- whether the Davis program
stigmatizes any discrete group or individual and whether race
Page 438 U. S. 374
is reasonably used in light of the program's objectives -- is
clearly satisfied by the Davis program.
It is not even claimed that Davis' program in any way operates
to stigmatize or single out any discrete and insular, or even
any identifiable, nonminority group. Nor will harm
comparable to that imposed upon racial minorities by
exclusion or separation on grounds of race be the likely result
of the program. It does not, for example, establish an exclusive
preserve for minority students apart from and exclusive of
whites. Rather, its purpose is to overcome the effects of
segregation by bringing the races together. True, whites are
excluded from participation in the special admissions program,
but this fact only operates to reduce the number of whites to be
admitted in the regular admissions program in order to permit
admission of a reasonable percentage -- less than their
proportion of the California population [Footnote 2/57] -- of
otherwise underrepresented qualified minority applicants.
[Footnote 2/58]
Page 438 U. S. 375
Nor was Bakke in any sense stamped as inferior by the
Medical School's rejection of him. Indeed, it is conceded by all
that he satisfied those criteria regarded by the school as
generally relevant to academic performance better than most
of the minority members who were admitted. Moreover, there
is absolutely no basis for concluding that Bakke's rejection as
a result of Davis' use of racial preference will affect him
throughout his life in the same way as the segregation of the
Negro schoolchildren in Brown I would have affected them.
Unlike discrimination against racial minorities, the use of
racial preferences for remedial purposes does not inflict a
pervasive injury upon individual whites in the sense that,
wherever they go or whatever they do, there is a significant
likelihood that they will be treated as second-class citizens
because of their color. This distinction does not mean that the
exclusion of a white resulting from the preferential use of race
is not sufficiently serious to require justification; but it does
mean that the injury inflicted by such a policy is not
distinguishable from disadvantages caused by a wide range of
government actions, none of which has ever been thought
impermissible for that reason alone.
In addition, there is simply no evidence that the Davis
program discriminates intentionally or unintentionally against
any minority group which it purports to benefit. The program
does not establish a quota in the invidious sense of a ceiling on
the number of minority applicants to be admitted. Nor can the
program reasonably be regarded as stigmatizing the program's
beneficiaries or their race as inferior. The Davis program does
not simply advance less qualified applicants; rather, it
compensates applicants, who it is uncontested are fully
qualified to study medicine, for educational disadvantages
which it was reasonable to conclude were a product of
Page 438 U. S. 376
state-fostered discrimination. Once admitted, these students
must satisfy the same degree requirements as regularly
admitted students; they are taught by the same faculty in the
same classes; and their performance is evaluated by the same
standards by which regularly admitted students are judged.
Under these circumstances, their performance and degrees
must be regarded equally with the regularly admitted students
with whom they compete for standing. Since minority
graduates cannot justifiably be regarded as less well qualified
than nonminority graduates by virtue of the special admissions
program, there is no reasonable basis to conclude that minority
graduates at schools using such programs would be
stigmatized as inferior by the existence of such programs.
D
We disagree with the lower courts' conclusion that the Davis
program's use of race was unreasonable in light of its
objectives. First, as petitioner argues, there are no practical
means by which it could achieve its ends in the foreseeable
future without the use of race-conscious measures. With
respect to any factor (such as poverty or family educational
background) that may be used as a substitute for race as an
indicator of past discrimination, whites greatly outnumber
racial minorities simply because whites make up a far larger
percentage of the total population, and therefore far outnumber
minorities in absolute terms at every socioeconomic level.
[Footnote 2/59] For example, of a class of recent medical
school applicants from families with less than $10,000
income, at least 71% were white. [Footnote 2/60] Of all 1970
families headed by a
Page 438 U. S. 377
person not a highschool graduate which included related
children under 18, 80% were white and 20% were racial
minorities. [Footnote 2/61] Moreover, while race is positively
correlated with differences in GPA and MCAT scores,
economic disadvantage is not. Thus, it appears that
economically disadvantaged whites do not score less well than
economically advantaged whites, while economically
advantaged blacks score less well than do disadvantaged
whites. [Footnote 2/62] These statistics graphically illustrate
that the University's purpose to integrate its classes by
compensating for past discrimination could not be achieved by
a general preference for the economically disadvantaged or the
children of parents of limited education unless such groups
were to make up the entire class.
Second, the Davis admissions program does not simply equate
minority status with disadvantage. Rather, Davis considers on
an individual basis each applicant's personal history to
determine whether he or she has likely been disadvantaged by
racial discrimination. The record makes clear that only
minority applicants likely to have been isolated from the
mainstream of American life are considered in the special
program; other minority applicants are eligible only through
the regular admissions program. True, the procedure by which
disadvantage is detected is informal, but we have never
insisted that educators conduct their affairs through
adjudicatory proceedings, and such insistence here is
misplaced. A case-by-case inquiry into the extent to which
each individual applicant has been affected, either directly or
indirectly, by racial discrimination, would seem to be, as a
practical matter, virtually impossible, despite the fact that
there are excellent reasons for concluding that such effects
generally exist. When individual measurement is impossible or
extremely impractical, there is nothing to prevent a State
Page 438 U. S. 378
from using categorical means to achieve its ends, at least
where the category is closely related to the goal. Cf. Gaston
County v. United States, 395 U. S. 285, 395 U. S. 25-296
(1969); Katzenbach v. Morgan, 384 U. S. 641 (1966). And it is
clear from our cases that specific proof that a person has been
victimized by discrimination is not a necessary predicate to
offering him relief where the probability of victimization is
great. See Teamsters v. United States, 431 U. S. 324 (1977).
E respondent's admission, as well as that portion of the judgment
Finally, Davis' special admissions program cannot be said to
violate the Constitution simply because it has set aside a
predetermined number of places for qualified minority
applicants, rather than using minority status as a positive
factor to be considered in evaluating the applications of
disadvantaged minority applicants. For purposes of
constitutional adjudication, there is no difference between the
two approaches. In any admissions program which accords
special consideration to disadvantaged racial minorities, a
determination of the degree of preference to be given is
unavoidable, and any given preference that results in the
exclusion of a white candidate is no more or less
constitutionally acceptable than a program such as that at
Davis. Furthermore, the extent of the preference inevitably
depends on how many minority applicants the particular
school is seeking to admit in any particular year, so long as the
number of qualified minority applicants exceeds that number.
There is no sensible, and certainly no constitutional,
distinction between, for example, adding a set number of
points to the admissions rating of disadvantaged minority
applicants as an expression of the preference with the
expectation that this will result in the admission of an
approximately determined number of qualified minority
applicants and setting a fixed number of places for such
applicants, as was done here. [Footnote 2/63]
Page 438 U. S. 379
The "Harvard" program, see ante at 438 U. S. 316-318, as
those employing it readily concede, openly and successfully
employs a racial criterion for the purpose of ensuring that
some of the scarce places in institutions of higher education
are allocated to disadvantaged minority students. That the
Harvard approach does not also make public the extent of the
preference and the precise workings of the system, while the
Davis program employs a specific, openly stated number, does
not condemn the latter plan for purposes of Fourteenth
Amendment adjudication. It may be that the Harvard plan is
more acceptable to the public than is the Davis "quota." If it is,
any State, including California, is free to adopt it in preference
to a less acceptable alternative, just as it is generally free, as
far as the Constitution is concerned, to abjure granting any
racial preferences in its admissions program. But there is no
basis for preferring a particular preference program simply
because, in achieving the same goals that the Davis Medical
School is pursuing, it proceeds in a manner that is not
immediately apparent to the public.
V
Accordingly, we would reverse the judgment of the Supreme
Court of California holding the Medical School's special
admissions program unconstitutional and directing
enjoining the Medical School from according any
consideration to race in the admissions process.
[Footnote 2/1]
We also agree with MR. JUSTICE POWELL that a plan like
the "Harvard" plan, see ante at 438 U. S. 316-318, is
constitutional under our approach, at least so long as the use of
race to achieve an integrated student body is necessitated by
the lingering effects of past discrimination.
[Footnote 2/2]
See Plessy v. Ferguson, 163 U. S. 537 (1896).
[Footnote 2/3]
New Orleans City Park Improvement Assn. v. Detiege, 358 U.
S. 54 (1958); Muir v. Louisville Park Theatrical Assn., 347
U.S. 971 (1954); Mayor of Baltimore v. Dawson, 350 U.S.
877 (1955); Holmes v. Atlanta, 350 U.S. 879 (1955); Gayle v.
Browder, 352 U.S. 903 (1956).
[Footnote 2/4]
See Green v. County School Board, 391 U. S. 430 (1968).
[Footnote 2/5]
See Swann v. Charlotte-Mecklenburg Board of Education, 402
U. S. 1 (1971); Davis v. School Comm'rs of Mobile County,
402 U. S. 33 (1971); North Carolina Board of Education v.
Swann, 402 U. S. 43 (1971).
[Footnote 2/6]
See, e.g., cases collected in Monell v. New York City Dept. of
Social Services, 436 U. S. 658, 436 U. S. 663 n. 5 (1978).
[Footnote 2/7]
Section 601 of Title VI provides:
"No person in the United States shall, on the ground of race,
color, or national origin, be excluded from participation in, be
denied the benefits of, or be subjected to discrimination under
any program or activity receiving Federal financial
assistance."
42 U.S.C. § 2000d.
[Footnote 2/8]
MR. JUSTICE WHITE believes we should address the
"private right of action" issue. Accordingly, he has filed a
separate opinion stating his view that there is no private right
of action under Title VI. See post, p. 438 U. S. 379.
[Footnote 2/9]
"Simple justice requires that public funds, to which all
taxpayers of all races contribute, not be spent in any fashion
which encourages, entrenches, subsidizes or results in racial
discrimination. Direct discrimination by Federal, State or local
governments is prohibited by the Constitution. But indirect
discrimination, through the use of Federal funds, is just as
invidious; and it should not be necessary to resort to the courts
to prevent each individual violation. Congress and the
Executive have their responsibilities to uphold the
Constitution also. . . . "
"Many statutes providing Federal financial assistance,
however, define with such precision both the Administrator's
role and the conditions upon which specified amounts shall be
given to designated recipients that the amount of
administrative discretion remaining -- which might be used to
withhold funds if discrimination were not ended -- is, at best,
questionable. No administrator has the unlimited authority to
invoke the Constitution in opposition to the mandate of the
Congress. Nor would it always be helpful to require
unconditionally -- as is often proposed -- the withdrawal of all
Federal funds from programs urgently needed by Negroes as
well as whites, for this may only penalize those who least
deserve it without ending discrimination."
"Instead of permitting this issue to become a political device
often exploited by those opposed to social or economic
progress, it would be better at this time to pass a single
comprehensive provision making it clear that the Federal
Government is not required, under any statute, to furnish any
kind of financial assistance -- by way of grant, loan, contract,
guaranty, insurance, or otherwise -- to any program or activity
in which racial discrimination occurs. This would not permit
the Federal Government to cut off all Federal aid of all kinds
as a means of punishing an area for the discrimination
occurring therein -- but it would clarify the authority of any
administrator with respect to Federal funds or financial
assistance and discriminatory practices."
109 Cong.Rec. 11161 (1963).
[Footnote 2/10]
See, e.g., 110 Cong.Rec. 2732 (1964) (Rep. Dawson); id. at
2481-2482 (Rep. Ryan); id. at 2766 (Rep. Matzunaga); id. at
2595 (Rep. Donahue) .
[Footnote 2/11]
There is also language in 42 U.S.C. § 2000d-5, enacted in
1966, which supports the conclusion that Title VI's standard is
that of the Constitution. Section 2000d-5 provides that,
"for the purpose of determining whether a local educational
agency is in compliance with [Title VI], compliance by such
agency with a final order or judgment of a Federal court for
the desegregation of the school or school system operated by
such agency shall be deemed to be compliance with [Title VI],
insofar as the matters covered in the order or judgment are
concerned."
This provision was clearly intended to avoid subjecting local
educational agencies simultaneously to the jurisdiction of the
federal courts and the federal administrative agencies in
connection with the imposition of remedial measures designed
to end school segregation. Its inclusion reflects the
congressional judgment that the requirements imposed by
Title VI are identical to those imposed by the Constitution as
interpreted by the federal courts.
[Footnote 2/12]
As has already been seen, the proponents of Title VI in the
House were motivated by the identical concern. See remarks
of Representative Celler (110 Cong.Rec. 2467 (1964));
Representative Ryan (id. at 1643, 2481-2482); H.R.Rep. No.
914, 88th Cong., 1st Sess., pt. 2, Additional Views of Seven
Representatives 2425 (1963).
[Footnote 2/13]
See separate opinion of MR. JUSTICE WHITE, post at 438 U.
S. 382-383, n. 2.
[Footnote 2/14]
These remarks also reflect the expectations of Title VI's
proponents that the application of the Constitution to the
conduct at the core of their concern -- the segregation of
Negroes in federally funded programs and their exclusion
from the full benefits of such programs -- was clear. See supra
at 438 U. S. 333-336; infra at 438 U. S. 340-342, n. 17.
[Footnote 2/15]
Testimony of Attorney General Kennedy in Hearings before
the Senate Committee on the Judiciary on S. 1731 and S.
1750, 88th Cong., 1st Sess., 398-399 (1963).
[Footnote 2/16]
See, e.g., 110 Cong.Rec. 6544, 13820 (1964) (Sen.
Humphrey); id. at 6050 (Sen. Javits); id. at 12677 (Sen.
Allott).
[Footnote 2/17]
Our Brother STEVENS finds support for a colorblind theory
of Title VI in its legislative history, but his interpretation gives
undue weight to a few isolated passages from among the
thousands of pages of the legislative history of Title VI. See
id. at 6547 (Sen. Humphrey); id. at 6047, 7055 (Sen. Pastore);
id. at 12675 (Sen. Allott); id. at 6561 (Sen. Kuchel). These
fragmentary comments fall far short of supporting a
congressional intent to prohibit a racially conscious
admissions program designed to assist those who are likely to
have suffered injuries from the effects of past discrimination.
In the first place, these statements must be read in the context
in which they were made. The concern of the speakers was far
removed from the incidental injuries which may be inflicted
upon nonminorities by the use of racial preferences. It was
rather with the evil of the segregation of Negroes in federally
financed programs and, in some cases, their arbitrary
exclusion on account of race from the benefits of such
programs. Indeed, in this context, there can be no doubt that
the Fourteenth Amendment does command color blindness,
and forbids the use of racial criteria. No consideration was
given by these legislators, however, to the permissibility of
racial preference designed to redress the effects of injuries
suffered as a result of one's color. Significantly, one of the
legislators, Senator Pastore, and perhaps also Senator Kuchel,
who described Title VI as proscribing decisionmaking based
upon skin color, also made it clear that Title VI does not
outlaw the use of racial criteria in all circumstances. See supra
at 438 U. S. 339-340; 110 Cong.Rec. 6562 (1964). See also id.
at 2494 (Rep. Celler). Moreover, there are many statements in
the legislative history explicitly indicating that Congress
intended neither to require nor to prohibit the remedial use of
racial preferences where not otherwise required or prohibited
by the Constitution. Representative MacGregor addressed
directly the problem of preferential treatment:
"Your mail and mine, your contacts and mine with our
constituents, indicates a great degree of misunderstanding
about this bill. People complain about racial 'balancing' in the
public schools, about open occupancy in housing, about
preferential treatment or quotas in employment. There is a
mistaken belief that Congress is legislating in these areas in
this bill. When we drafted this bill, we excluded these issues
largely because the problems raised by these controversial
questions are more properly handled at a governmental level
close to the American people and by communities and
individuals themselves. The Senate has spelled out our
intentions more specifically."
Id. at 15893. Other legislators explained that the achievement
of racial balance in elementary and secondary schools where
there had been no segregation by law was not compelled by
Title VI, but was rather left to the judgment of state and local
communities. See, e.g., id. at 10920 (Sen. Javits); id. at 5807,
5266 (Sen. Keating); id. at 13821 (Sens. Humphrey and
Saltonstall). See also id. at 6562 (Sen. Kuchel); id. at 13695
(Sen. Pastore).
Much the same can be said of the scattered remarks to be
found in the legislative history of Title VII of the Civil Rights
Act of 1964, 42 U.S.C. § 2000e et seq. (1970 ed. and Supp.
V), which prohibits employment discrimination on the basis of
race in terms somewhat similar to those contained in Title VI,
see 42 U.S.C. § 2000e-2(a)(1) (unlawful "to fail or refuse to
hire" any applicant "because of such individual's race, color,
religion, sex, or national origin. . . . "), to the effect that any
deliberate attempt by an employer to maintain a racial balance
is not required by the statute, and might in fact violate it. See,
e.g., 110 Cong.Rec. 7214 (1964) (Sens. Clark and Case); id. at
6549 (Sen. Humphrey); id. at 2560 (Rep. Goodell). Once
again, there is no indication that Congress intended to bar the
voluntary use of racial preferences to assist minorities to
surmount the obstacles imposed by the remnants of past
discrimination. Even assuming that Title VII prohibits
employers from deliberately maintaining a particular racial
composition in their workforce as an end in itself, this does not
imply, in the absence of any consideration of the question, that
Congress intended to bar the use of racial preferences as a tool
for achieving the objective of remedying past discrimination
or other compelling ends. The former may well be contrary to
the requirements of the Fourteenth Amendment (where state
action is involved), while the latter presents very different
constitutional considerations. Indeed, as discussed infra at 438
U. S. 353, this Court has construed Title VII as requiring the
use of racial preferences for the purpose of hiring and
advancing those who have been adversely affected by past
discriminatory employment practices, even at the expense of
other employees innocent of discrimination. Franks v.
Bowman Transportation Co., 424 U. S. 747, 424 U. S. 767-
768 (1976). Although Title VII clearly does not require
employers to take action to remedy the disadvantages imposed
upon racial minorities by hands other than their own, such an
objective is perfectly consistent with the remedial goals of the
statute. See id. at 424 U. S. 762-770; Albemarle Paper Co. v.
Moody, 422 U. S. 405, 422 U. S. 418 (1975). There is no more
indication in the legislative history of Title VII than in that of
Title VI that Congress desired to prohibit such affirmative
action to the extent that it is permitted by the Constitution, yet
judicial decisions as well as subsequent executive and
congressional action clearly establish that Title VII does not
forbid race-conscious remedial action. See infra at 438 U. S.
353-355, and n. 28.
[Footnote 2/18]
HEW has stated that the purpose of these regulations is
"to specify that affirmative steps to make services more
equitably available are not prohibited and that such steps are
required when necessary to overcome the consequences of
prior discrimination."
36 Fed.Reg. 23494 (1971). Other federal agencies which
provide financial assistance pursuant to Title VI have adopted
similar regulations. See Supplemental Brief for United States
as Amicus Curiae 16 n. 14.
[Footnote 2/19]
Moreover, the President has delegated to the Attorney General
responsibility for coordinating the enforcement of Title VI by
federal departments and agencies, and has directed him to
"assist the departments and agencies in accomplishing
effective implementation." Exec.Order No. 11764, 3 CFR 849
(1971-1975 Comp.). Accordingly, the views of the Solicitor
General, as well as those of HEW, that the use of racial
preferences for remedial purposes is consistent with Title VI
are entitled to considerable respect.
[Footnote 2/20]
HEW administers at least two explicitly race-conscious
programs. Details concerning them may be found in the Office
of Management and Budget, 1977 Catalogue of Federal
Domestic Assistance 205-206, 401-402. The first program,
No. 13.375, "Minority Biomedical Support," has as its
objectives:
"To increase the number of ethnic minority faculty, students,
and investigators engaged in biomedical research. To broaden
the opportunities for participation in biomedical research of
ethnic minority faculty, students, and investigators by
providing support for biomedical research programs at eligible
institutions."
Eligibility for grants under this program is limited to (1) four-
year colleges, universities, and health professional schools
with over 50% minority enrollments; (2) four-year institutions
with significant but not necessarily over 50% minority
enrollment provided they have a history of encouragement and
assistance to minorities; (3) two-year colleges with 50%
minority enrollment; and (4) American Indian Tribal Councils.
Grants made pursuant to this program are estimated to total
$9,711,000 for 1977.
The second program, No. 13.880, entitled "Minority Access
To Research Careers," has as its objective to "assist minority
institutions to train greater numbers of scientists and teachers
in health related fields." Grants under this program are made
directly to individuals and to institutions for the purpose of
enabling them to make grants to individuals.
[Footnote 2/21]
H.R.Conf.Rep. No. 9538, p. 22 (1977); 123 Cong.Rec. 26188
(1977). See H.J.Res. 662, 95th Cong., 1st Sess. (1977); Pub.L.
95-205, 91 Stat. 1460.
[Footnote 2/22]
91 Stat. 117, 42 U.S.C. § 6705(f)(2) (1976 ed.).
[Footnote 2/23]
123 Cong.Rec.7156 (1977); id. at 5327-5330.
[Footnote 2/24]
See id. at 7156 (Sen. Brooke).
[Footnote 2/25]
In addition to the enactment of the 10% quota provision
discussed supra, Congress has also passed other Acts
mandating race-conscious measures to overcome
disadvantages experienced by racial minorities. Although
these statutes have less direct bearing upon the meaning of
Title VI, they do demonstrate that Congress believes race-
conscious remedial measures to be both permissible and
desirable under at least some circumstances. This, in turn,
undercuts the likelihood that Congress intended to limit
voluntary efforts to implement similar measures. For example,
§ 7(a) of the National Science Foundation Authorization Act,
1977, provides:
"The Director of the National Science Foundation shall initiate
an intensive search for qualified women, members of minority
groups, and handicapped individuals to fill executive level
positions in the National Science Foundation. In carrying out
the requirement of this subsection, the Director shall work
closely with organizations which have been active in seeking
greater recognition and utilization of the scientific and
technical capabilities of minorities, women, and handicapped
individuals. The Director shall improve the representation of
minorities, women, and handicapped individuals on advisory
committees,, review panels, and all other mechanisms by
which the scientific community provides assistance to the
Foundation."
90 Stat. 2056, note following 42 U.S.C. 1873 (1976 ed.).
Perhaps more importantly, the Act also authorizes the funding
of Minority Centers for Graduate Education. Section 7(C)(2)
of the Act, 90 Stat. 2056, requires that these Centers:
"(A) have substantial minority student enrollment;"
"(B) are geographically located near minority population
centers;"
"(C) demonstrate a commitment to encouraging and assisting
minority students, researchers, and faculty;"
"* * * *"
"(F) will serve as a regional resource in science and
engineering for the minority community which the Center is
designed to serve; and"
"(G) will develop joint educational programs with nearby
undergraduate institutions of higher education which have a
substantial minority student enrollment."
Once again, there is no indication in the legislative history of
this Act or elsewhere that Congress saw any inconsistency
between the race-conscious nature of such legislation and the
meaning of Title VI. And, once again, it is unlikely in the
extreme that a Congress which believed that it had
commanded recipients of federal funds to be absolutely
colorblind would itself expend federal funds in such a race-
conscious manner. See also the Railroad Revitalization and
Regulatory Reform Act of 1976, 45 U.S.C. § 801 et seq. (1976
ed.), 49 U.S.C. § 1657a et seq. (1976 ed.); the Emergency
School Aid Act, 20 U.S.C. § 1601 et seq. (1976 ed.).
[Footnote 2/26]
Cf. Griggs v. Duke Power Co., 401 U. S. 424 (1971).
[Footnote 2/27]
Ibid.; Albemarle Paper Co. v. Moody, 422 U. S. 405 (1975).
[Footnote 2/28]
Franks v. Bowman Transportation Co., 424 U. S. 747 (1976);
Teamsters v. United States, 431 U. S. 324 (1977). Executive,
judicial, and congressional action subsequent to the passage of
Title VII conclusively established that the Title did not bar the
remedial use of race. Prior to the 1972 amendments to Title
VII (Equal Employment Opportunity Act of 1972, 86 Stat.
103), a number of Courts of Appeals approved race-conscious
action to remedy the effects of employment discrimination.
See, e.g., Heat & Frost Insulators & Asbestos Workers v.
Voler, 407 F.2d 1047 (CA5 1969); United States v. Electrical
Workers, 428 F.2d 144, 149-150 (CA6), cert. denied, 400 U.S.
943 (1970); United States v. Sheetmetal Workers, 416 F.2d
123 (CA8 1969). In 1965, the President issued Exec.Order No.
11246, 3 CFR 339 (1964-1965 Comp.), which, as amended by
Exec.Order No. 11375, 3 CFR 684 (1966-1970 Comp.),
required federal contractors to take affirmative action to
remedy the disproportionately low employment of racial
minorities in the construction industry. The Attorney General
issued an opinion concluding that the race consciousness
required by Exec Order No 11246 did not conflict with Title
VII:
"It is not correct to say that Title VII prohibits employers from
making race or national origin a factor for consideration at any
stage in the process of obtaining employees. The legal
definition of discrimination is an evolving one, but it is now
well recognized in judicial opinions that the obligation of
nondiscrimination, whether imposed by statute or by the
Constitution, does not require and, in some circumstances,
may not permit, obliviousness or indifference to the racial
consequences of alternative courses of action which involve
the application of outwardly neutral criteria."
42 Op.Atty.Gen. 405, 411 (1969). The federal courts agreed.
See, e.g., Contractors Assn. of Eastern Pa. v. Secretary of
Labor, 442 F.2d 159 (CA3), cert. denied, 404 U.S. 854 (1971)
(which also held, 442 F.2d at 173, that race-conscious
affirmative action was permissible under Title VI); Southern
Illinois Builders Assn. v. Ogilvie, 471 F.2d 680 (CA7 1972).
Moreover, Congress, in enacting the 1972 amendments to
Title VII, explicitly considered and rejected proposals to alter
Exec.Order No. 11246 and the prevailing judicial
interpretations of Title VII as permitting, and in some
circumstances requiring, race-conscious action. See Comment,
The Philadelphia Plan: A Study in the Dynamics of Executive
Power, 39 U.Chi.L.Rev. 723, 747-757 (1972). The section-by-
section analysis of the 1972 amendments to Title VII
undertaken by the Conference Committee Report on H.R.
1746 reveals a resolve to accept the then (as now) prevailing
judicial interpretations of the scope of Title VII:
"In any area where the new law does not address itself, or in
any areas where a specific contrary intent is not indicated, it
was assumed that the present case law as developed by the
courts would continue to govern the applicability and
construction of Title VII."
Legislative History of the Equal Employment Opportunity Act
of 1972, p. 1844 (Comm.Print 1972).
[Footnote 2/29]
United Jewish Organizations v. Carey, 430 U. S. 144 (1977).
See also id. at 430 U. S. 167-168 (opinion of WHITE, J.).
[Footnote 2/30]
We do not pause to debate whether our cases establish a "two-
tier" analysis, a "sliding scale" analysis, or something else
altogether. It is enough for present purposes that strict scrutiny
is applied at least in some cases.
[Footnote 2/31]
Of course, the fact that whites constitute a political majority in
our Nation does not necessarily mean that active judicial
scrutiny of racial classifications that disadvantage whites is
inappropriate. Cf. Castaneda v. Partida, 430 U. S. 482, 430 U.
S. 499-500 (1977); id. at 430 U. S. 501 (MARSHALL, J.,
concurring) .
[Footnote 2/32]
"[T]he conclusion cannot be resisted, that no reason for [the
refusal to issue permits to Chinese] exists except hostility to
the race and nationality to which the petitioners belong. . . .
The discrimination is, therefore, illegal. . . ."
[Footnote 2/33]
Indeed, even in Plessy v. Ferguson, the Court recognized that
a classification by race that presumed one race to be inferior to
another would have to be condemned. See 163 U.S. at 163 U.
S. 544-551.
[Footnote 2/34]
Paradoxically, petitioner's argument is supported by the cases
generally thought to establish the "strict scrutiny" standard in
race cases, Hirabayashi v. United States, 320 U. S. 81 (1943),
and Korematsu v. United States, 323 U. S. 214 (1944). In
Hirabayashi, for example, the Court, responding to a claim
that a racial classification was rational, sustained a racial
classification solely on the basis of a conclusion in the double
negative that it could not say that facts which might have been
available "could afford no ground for differentiating citizens
of Japanese ancestry from other groups in the United States."
320 U.S. at 320 U. S. 101. A similar mode of analysis was
followed in Korematsu, see 323 U.S. at 323 U. S. 224, even
though the Court stated there that racial classifications were
"immediately suspect," and should be subject to "the most
rigid scrutiny." Id. at 323 U. S. 216.
[Footnote 2/35]
We disagree with our Brother POWELL's suggestion, ante at
438 U. S. 303, that the presence of "rival groups which can
claim that they, too, are entitled to preferential treatment"
distinguishes the gender cases or is relevant to the question of
scope of judicial review of race classifications. We are not
asked to determine whether groups other than those favored by
the Davis program should similarly be favored. All we are
asked to do is to pronounce the constitutionality of what Davis
has done.
But, were we asked to decide whether any given rival group --
German-Americans for example -- must constitutionally be
accorded preferential treatment, we do have a "principled
basis," ante at 438 U. S. 296, for deciding this question, one
that is well established in our cases: the Davis program
expressly sets out four classes which receive preferred status.
Ante at 438 U. S. 274. The program clearly distinguishes
whites, but one cannot reason from this a conclusion that
German-Americans, as a national group, are singled out for
invidious treatment. And even if the Davis program had a
differential impact on German-Americans, they would have no
constitutional claim unless they could prove that Davis
intended invidiously to discriminate against German-
Americans. See Arlington Heights v. Metropolitan Housing
Dev. Corp., 429 U. S. 252, 429 U. S. 264-265 (1977);
Washington v. Davis, 426 U. S. 229, 426 U. S. 238-241
(1976). If this could not be shown, then "the principle that
calls for the closest scrutiny of distinctions in laws denying
fundamental rights . . . is inapplicable," Katzenbach v.
Morgan, 384 U. S. 641, 384 U. S. 657 (1966), and the only
question is whether it was rational for Davis to conclude that
the groups it preferred had a greater claim to compensation
than the groups it excluded. See ibid.; San Antonio
Independent School District v. Rodriguez, 411 U. S. 1, 411 U.
S. 38-39 (1973) (applying Katzenbach test to state action
intended to remove discrimination in educational opportunity).
Thus, claims of rival groups, although they may create thorny
political problems, create relatively simple problems for the
courts.
[Footnote 2/36]
Gunther, The Supreme Court, 1971 Term -- Foreword: In
Search of Evolving Doctrine on a Changing Court: A Model
for a Newer Equal Protection, 86 Harv.L.Rev. 1, 8 (1972).
[Footnote 2/37]
In Albemarle, we approved "differential validation" of
employment tests. See 422 U.S. at 422 U. S. 435. That
procedure requires that an employer must ensure that a test
score of, for example, 50 for a minority job applicant means
the same thing as a score of 50 for a nonminority applicant. By
implication, were it determined that a test score of 50 for a
minority corresponded in "potential for employment" to a 60
for whites, the test could not be used consistently with Title
VII unless the employer hired minorities with scores of 50
even though he might not hire nonminority applicants with
scores above 50 but below 60. Thus, it is clear that employers,
to ensure equal opportunity, may have to adopt race-conscious
hiring practices.
[Footnote 2/38]
Indeed, Titles VI and VII of the Civil Rights Act of 1964 put
great emphasis on voluntarism in remedial action. See supra at
438 U. S. 336-338. And, significantly, the Equal Employment
Opportunity Commission has recently proposed guidelines
authorizing employers to adopt racial preferences as a
remedial measure where they have a reasonable basis for
believing that they might otherwise be held in violation of
Title VII. See 42 Fed.Reg. 64826 (1977).
[Footnote 2/39]
"[T]he [Voting Rights] Act's prohibition . . . is not dependent
upon proving past unconstitutional apportionments. . . ."
[Footnote 2/40]
"[T]he State is [not] powerless to minimize the consequences
of racial discrimination by voters when it is regularly practiced
at the polls."
[Footnote 2/41]
Our cases cannot be distinguished by suggesting, as our
Brother POWELL does, that in none of them was anyone
deprived of "the relevant benefit." Ante at 438 U. S. 304. Our
school cases have deprived whites of the neighborhood school
of their choice; our Title VII cases have deprived
nondiscriminating employees of their settled seniority
expectations; and UJO deprived the Hassidim of bloc-voting
strength. Each of these injuries was constitutionally cognizable
as is respondent's here.
[Footnote 2/42]
We do not understand MR. JUSTICE POWELL to disagree
that providing a remedy for past racial prejudice can constitute
a compelling purpose sufficient to meet strict scrutiny. See
ante at 438 U. S. 305. Yet, because petitioner is a corporation
administering a university, he would not allow it to exercise
such power in the absence of "judicial, legislative, or
administrative findings of constitutional or statutory
violations." Ante at 438 U. S. 307. While we agree that
reversal in this case would follow a fortiori had Davis been
guilty of invidious racial discrimination or if a federal statute
mandated that universities refrain from applying any
admissions policy that had a disparate and unjustified racial
impact, see, e.g., McDaniel v. Barresi, 402 U. S. 39 (1971);
Franks v. Bowman Transportation Co., 424 U. S. 747 (1976),
we do not think it of constitutional significance that Davis has
not been so adjudged.
Generally, the manner in which a State chooses to delegate
governmental functions is for it to decide. Cf. Sweezy v. New
Hampshire, 354 U. S. 234, 354 U. S. 256 (1957) (Frankfurter,
J., concurring in result). California, by constitutional
provision, has chosen to place authority over the operation of
the University of California in the Board of Regents. See
Cal.Const., Art. 9, § 9(a). Control over the University is to be
found not in the legislature, but rather in the Regents who have
been vested with full legislative (including policymaking),
administrative, and adjudicative powers by the citizens of
California. See ibid.; Ishimatsu v. Regents, 266 Cal.App.2d
854, 863-864, 72 Cal.Rptr. 756, 762-763 (1968); Goldberg v.
Regents, 248 Cal.App.2d 867, 874, 57 Cal.Rptr. 463, 468
(1967); 30 Op.Cal.Atty. Gen. 162, 166 (1957) ("The Regents,
not the legislature, have the general rulemaking or
policymaking power in regard to the University"). This is
certainly a permissible choice, see Sweezy, supra, and we,
unlike our Brother POWELL, find nothing in the Equal
Protection Clause that requires us to depart from established
principle by limiting the scope of power the Regents may
exercise more narrowly than the powers that may
constitutionally be wielded by the Assembly.
Because the Regents can exercise plenary legislative and
administrative power, it elevates form over substance to insist
that Davis could not use race-conscious remedial programs
until it had been adjudged in violation of the Constitution or
an antidiscrimination statute. For, if the Equal Protection
Clause required such a violation as a predicate, the Regents
could simply have promulgated a regulation prohibiting
disparate treatment not justified by the need to admit only
qualified students, and could have declared Davis to have been
in violation of such a regulation on the basis of the
exclusionary effect of the admissions policy applied during the
first two years of its operation. See infra at 438 U. S. 370.
[Footnote 2/43]
"Equal protection analysis in the Fifth Amendment area is the
same as that under the Fourteenth Amendment." Buckley v.
Valeo, 424 U. S. 1, 424 U. S. 93 (1976) (per curiam), citing
Weinberger v. Wiesenfeld, 420 U. S. 636, 420 U. S. 638 n. 2
(1975).
[Footnote 2/44]
Railway Mail Assn. held that a state statute forbidding racial
discrimination by certain labor organizations did not abridge
the Association's due process rights secured by the Fourteenth
Amendment, because that result
"would be a distortion of the policy manifested in that
amendment, which was adopted to prevent state legislation
designed to perpetuate discrimination on the basis of race or
color."
326 U.S. at 326 U. S. 94. That case thus established the
principle that a State voluntarily could go beyond what the
Fourteenth Amendment required in eliminating private racial
discrimination.
[Footnote 2/45]
According to 89 schools responding to a questionnaire sent to
112 medical schools (all of the then-accredited medical
schools in the United States except Howard and Meharry),
substantial efforts to admit minority students did not begin
until 1968. That year was the earliest year of involvement for
34% of the schools; an additional 66% became involved
during the years 1969 to 1973. See C. Odegaard, Minorities in
Medicine: From Receptive Passivity to Positive Action, 1966-
1976, p. 19 (1977) (hereinafter Odegaard). These efforts were
reflected in a significant increase in the percentage of minority
M.D. graduates. The number of American Negro graduates
increased from 2.2% in 1970 to 3.3% in 1973 and 5.0% in
1975. Significant percentage increases in the number of
Mexican-American, American Indian, and mainland Puerto
Rican graduates were also recorded during those years. Id. at
40.
The statistical information cited in this and the following notes
was compiled by Government officials or medical educators,
and has been brought to our attention in many of the briefs.
Neither the parties nor the amici challenge the validity of the
statistics alluded to in our discussion.
[Footnote 2/46]
D. Reitzes, Negroes and Medicine, pp. xxvii, 3 (1958).
[Footnote 2/47]
Between 1955 and 1964, for example, the percentage of Negro
physicians graduated in the United States who were trained at
these schools ranged from 69.0% to 75.8%. See Odegaard 19.
[Footnote 2/48]
U.S. Dept. of Health, Education, and Welfare, Minorities and
Women in the Health Fields 7 (Pub. No. (HRA) 75-22, May,
1974).
[Footnote 2/49]
U.S. Dept. of Commerce, Bureau of the Census, 1970 Census,
vol. 1, pt. 1, Table 60 (1973).
[Footnote 2/50]
See ante at 438 U. S. 276 n. 6 (opinion of POWELL, J.).
[Footnote 2/51]
See, e.g., R. Wade, Slavery in the Cities: The South 1820-
1860, pp. 991 (1964).
[Footnote 2/52]
For an example of unequal facilities in California schools, see
Sona v. Oxnard School Dist. Board, 386 F.Supp. 539, 542 (CD
Cal.1974). See also R. Kluger, Simple Justice (1976).
[Footnote 2/53]
See, e.g., Crawford v. Board of Education, 17 Cal.3d 280, 551
P.2d 28 (1976); Soria v. Oxnard School Dist. Board, supra;
Spangler v. Pasadena City Board of Education, 311 F.Supp.
501 (CD Cal.1970); C. Wollenberg, All Deliberate Speed:
Segregation and Exclusion in California Schools, 1855-1975,
pp. 136-177 (1976).
[Footnote 2/54]
For example, over 40% of American-born Negro males aged
20 to 24 residing in California in 1970 were born in the South,
and the statistic for females was over 48%. These statistics
were computed from data contained in Census, supra, n. 49,
pt. 6, California, Tables 139, 140.
[Footnote 2/55]
See, e.g., O'Neil, Preferential Admissions: Equalizing the
Access of Minority Groups to Higher Education, 80 Yale L.J.
699, 729-731 (1971).
[Footnote 2/56]
Congress and the Executive have also adopted a series of race-
conscious programs, each predicated on an understanding that
equal opportunity cannot be achieved by neutrality, because of
the effects of past and present discrimination. See supra at 438
U. S. 348-349.
[Footnote 2/57]
Negroes and Chicanos alone constitute approximately 22% of
California's population. This percentage was computed from
data contained in Census, supra, n. 49, pt. 6, California, sec.
1,6-4, and Table 139.
[Footnote 2/58]
The constitutionality of the special admissions program is
buttressed by its restriction to only 16% of the positions in the
Medical School, a percentage less than that of the minority
population in California, see ibid., and to those minority
applicants deemed qualified for admission and deemed likely
to contribute to the Medical School and the medical
profession. Record 67. This is consistent with the goal of
putting minority applicants in the position they would have
ben in if not for the evil of racial discrimination. Accordingly,
this case does not raise the question whether even a remedial
use of race would be unconstitutional if it admitted unqualified
minority applicants in preference to qualified applicants or
admitted, as a result of preferential consideration, racial
minorities in numbers significantly in excess of their
proportional representation in the relevant population. Such
programs might well be inadequately justified by the
legitimate remedial objectives. Our allusion to the proportional
percentage of minorities in the population of the State
administering the program is not intended to establish either
that figure or that population universe as a constitutional
benchmark. In this case, even respondent, as we understand
him, does not argue that, if the special admissions program is
otherwise constitutional, the allotment of 16 places in each
entering class for special admittees is unconstitutionally high.
[Footnote 2/59]
See Census, supra, n. 49, Sources and Structure of Family
Income, pp. 1-12.
[Footnote 2/60]
This percentage was computed from data presented in B.
Waldman, Economic and Racial Disadvantage as Reflected in
Traditional Medical School Selection Factors: A Study of
1976 Applicants to U.S. Medical Schools 34 (Table A-15), 42
(Table A-23) (Association of American Medical Colleges
1977).
[Footnote 2/61]
This figure was computed from data contained in Census,
supra, n. 49, pt. 1, United States Summary, Table 209.
[Footnote 2/62]
See Waldman, supra, n. 60, at 10-14 (Figures 1-5).
[Footnote 2/63]
The excluded white applicant, despite MR. JUSTICE
POWELL's contention to the contrary, ante at 438 U. S. 318 n.
52, receives no more or less "individualized consideration"
under our approach than under his.
MR. JUSTICE WHITE.
I write separately concerning the question of whether Title VI
of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq.,
provides for a private cause of action. Four Justices are
apparently of the view that such a private cause of action
Page 438 U. S. 380
exists, and four Justices assume it for purposes of this case. I
am unwilling merely to assume an affirmative answer. If, in
fact, no private cause of action exists, this Court and the lower
courts as well are without jurisdiction to consider respondent's
Title VI claim. As I see it, if we are not obliged to do so, it is
at least advisable to address this threshold jurisdictional issue.
See United States v. Griffin, 303 U. S. 226, 303 U. S. 229
(1938). [Footnote 3/1] Furthermore, just as it is inappropriate
to address constitutional issues without determining whether
statutory grounds urged before us are dispositive, it is at least
questionable practice to adjudicate a novel and difficult
statutory issue without first considering whether we have
jurisdiction to decide it. Consequently, I address the question
of whether respondent may bring suit under Title VI.
A private cause of action under Title VI, in terms both of
Page 438 U. S. 381
the Civil Rights Act as a whole and that Title, would not be
"consistent with the underlying purposes of the legislative
scheme," and would be contrary to the legislative intent. Cort
v. Ash, 422 U. S. 66, 422 U. S. 78 (1975). Title II, 42 U.S.C. §
2000a et seq., dealing with public accommodations, and Title
VII, 42 U.S.C. § 2000e et seq. (1970 ed. and Supp. V), dealing
with employment, proscribe private discriminatory conduct
that, as of 1964, neither the Constitution nor other federal
statutes had been construed to forbid. Both Titles carefully
provided for private actions as well as for official participation
in enforcement. Title III, 42 U.S.C. § 2000b et seq., and Title
IV, 42 U.S.C. § 2000c et seq. (1970 ed and Supp. V), dealing
with public facilities and public education, respectively,
authorize suits by the Attorney General to eliminate racial
discrimination in these areas. Because suits to end
discrimination in public facilities and public education were
already available under 42 U.S.C. § 1983, it was, of course,
unnecessary to provide for private actions under Titles III and
IV. But each Title carefully provided that its provisions for
public actions would not adversely affect preexisting private
remedies. § § 2000b-2 and 2000c-8.
The role of Title VI was to terminate federal financial support
for public and private institutions or programs that
discriminated on the basis of race. Section 601, 42 U.S.C. §
2000d, imposed the proscription that no person, on the
grounds of race, color, or national origin, was to be excluded
from or discriminated against under any program or activity
receiving federal financial assistance. But there is no express
provision for private actions to enforce Title VI, and it would
be quite incredible if Congress, after so carefully attending to
the matter of private actions in other Titles of the Act,
intended silently to create a private cause of action to enforce
Title VI.
It is also evident from the face of § 602, 42 U.S.C. § 2000d-1,
that Congress intended the departments and agencies
Page 438 U. S. 382
to define and to refine, by rule or regulation, the general
proscription of § 601, subject only to judicial review of agency
action in accordance with established procedures. Section 602
provides for enforcement: every federal department or agency
furnishing financial support is to implement the proscription
by appropriate rule or regulation, each of which requires
approval by the President. Termination of funding as a
sanction for noncompliance is authorized, but only after a
hearing and after the failure of voluntary means to secure
compliance. Moreover, termination may not take place until
the department or agency involved files with the appropriate
committees of the House and Senate a full written report of the
circumstances and the grounds for such action and 30 days
have elapsed thereafter. Judicial review was provided, at least
for actions terminating financial assistance.
Termination of funding was regarded by Congress as a serious
enforcement step, and the legislative history is replete with
assurances that it would not occur until every possibility for
conciliation had been exhausted. [Footnote 3/2] To allow a
private
Page 438 U. S. 383
individual to sue to cut off funds under Title VI would
compromise these assurances and short-circuit the procedural
preconditions provided in Title VI. If the Federal Government
may not cut off funds except pursuant to an agency rule,
approved by the President, and presented to the appropriate
committee of Congress for a layover period, and after
voluntary means to achieve compliance have failed, it is
inconceivable that Congress intended to permit individuals to
circumvent these administrative prerequisites themselves.
Furthermore, although Congress intended Title VI to end
federal financial support for racially discriminatory policies of
not only public but also private institutions and programs, it is
extremely unlikely that Congress, without a word indicating
that it intended to do so, contemplated creating an
independent, private statutory cause of action against all
private, as well as public, agencies that might be in violation
of the section. There is no doubt that Congress regarded
private litigation as an important tool to attack discriminatory
practices. It does not at all follow, however, that Congress
anticipated new private actions under Title VI itself. Wherever
a discriminatory program was a public undertaking, such as a
public school, private remedies were already available under
other statutes, and a private remedy under Title VI was
Page 438 U. S. 384
unnecessary. Congress was well aware of this fact.
Significantly, there was frequent reference to Simkins v.
Moses H. Cone Memorial Hospital, 323 F.2d 059 (CA4 1963),
cert. denied, 376 U.S. 938 (1964), throughout the
congressional deliberations. See, e.g., 110 Cong.Rec. 654
(1964) (Sen. Humphrey). Simkins held that, under appropriate
circumstances, the operation of a private hospital with
"massive use of public funds and extensive state-federal
sharing in the common plan" constituted "state action" for the
purposes of the Fourteenth Amendment. 323 F.2d at 967. It
was unnecessary, of course, to create a Title VI private action
against private discriminators where they were already within
the reach of existing private remedies. But when they were not
-- and Simkins carefully disclaimed holding that "every
subvention by the federal or state government automatically
involves the beneficiary in state action,'" ibid. [Footnote 3/3] --
it is difficult
Page 438 U. S. 385
to believe that Congress silently created a private remedy to
terminate conduct that previously had been entirely beyond the
reach of federal law.
For those who believe, contrary to my views, that Title VI was
intended to create a stricter standard of colorblindness than the
Constitution itself requires, the result of no private cause of
action follows even more readily. In that case, Congress must
be seen to have banned degrees of discrimination, as well as
types of discriminators, not previously reached by law. A
Congress careful enough to provide that existing private
causes of action would be preserved (in Titles III and IV)
would not leave for inference a vast new extension of private
enforcement power. And a Congress so exceptionally
concerned with the satisfaction of procedural preliminaries
before confronting fund recipients with the choice of a cutoff
or of stopping discriminating would not permit private parties
to pose precisely that same dilemma in a greatly widened
category of cases with no procedural requirements whatsoever.
Significantly, in at least three instances, legislators who played
a major role in the passage of Title VI explicitly stated that a
private right of action under Title VI does not exist. [Footnote
3/4]
Page 438 U. S. 386
As an "indication of legislative intent, explicit or implicit,
either to create such a remedy or to deny one," Cort v. Ash,
422 U.S. at 422 U. S. 78, clearer statements cannot be
imagined, and under Cort, "an explicit purpose to deny such
cause of action [is] controlling." Id. at 422 U. S. 82. Senator
Keating, for example, proposed a private "right to sue" for the
"person suffering from discrimination"; but the Department of
Justice refused to include it, and the Senator acquiesced.
[Footnote 3/5] These are not neutral, ambiguous statements.
They indicate the absence of a legislative intent to create a
private remedy. Nor do any of these statements make nice
distinctions between a private cause of action to enjoin
discrimination and one to cut off funds, as MR. JUSTICE
STEVENS and the three Justices who join his opinion
apparently would. See post at 438 U. S. 419-420, n. 26.
Indeed, it would be odd if they did, since the practical effect of
either type of private cause of action would be identical. If
private suits to enjoin conduct allegedly violative of § 601
were permitted, recipients of federal funds would be presented
with the choice of either ending what the court, rather than the
agency, determined to be a discriminatory practice within the
meaning of Title VI or refusing federal funds, and thereby
escaping from the statute's jurisdictional predicate. [Footnote
3/6] This is precisely the same choice as would confront
recipients if suit were brought to cut off funds. Both types of
actions would equally jeopardize the administrative processes
so carefully structured into the law.
Page 438 U. S. 387
This Court has always required
"that the inference of such a private cause of action not
otherwise authorized by the statute must be consistent with the
evident legislative intent and, of course, with the effectuation
of the purposes intended to be served by the Act."
National Railroad Passenger Corp. v. National Association of
Railroad Passengers, 414 U. S. 453, 414 U. S. 458 (1974). See
also Securities Investor Protection Corp. v. Barbour, 421 U. S.
412, 421 U. S. 418 420 (1975). A private cause of action under
Title VI is unable to satisfy either prong of this test.
Because each of my colleagues either has a different view or
assumes a private cause of action, however, the merits of the
Title VI issue must be addressed. My views in that regard, as
well as my views with respect to the equal protection issue, are
included in the joint opinion that my Brothers BRENNAN,
MARSHALL, and BLACKMUN and I have filed. [Footnote
3/7]
[Footnote 3/1]
It is also clear from Griffin that "lack of jurisdiction . . .
touching the subject matter of the litigation cannot be waived
by the parties. . . ." 303 U.S. at 303 U. S. 229. See also Mount
Healthy City Bd. of Ed. v. Doyle, 429 U. S. 274, 429 U. S.
278 (1977); Louisville & Nashville R. Co. v. Mottley, 211 U.
S. 149, 211 U. S. 152 (1908); Mansfield, C. & L. M. R. Co. v.
Swan, 111 U. S. 379, 111 U. S. 382 (1884).
In Lau v. Nichols, 414 U. S. 563 (1974), we did adjudicate a
Title VI claim brought by a class of individuals. But the
existence of a private cause of action was not at issue. In
addition, the understanding of MR. JUSTICE STEWART's
concurring opinion, which observed that standing was not
being contested, was that the standing alleged by petitioners
was as third-party beneficiaries of the funding contract
between the Department of Health, Education, and Welfare
and the San Francisco United School District, a theory not
alleged by the present respondent. Id. at 414 U. S. 571 n. 2.
Furthermore, the plaintiffs in Lau alleged jurisdiction under 42
U.S.C. § 1983, rather than directly under the provisions of
Title VI, as does the plaintiff in this case. Although the Court
undoubtedly had an obligation to consider the jurisdictional
question, this is surely not the first instance in which the Court
has bypassed a jurisdictional problem not presented by the
parties. Certainly the Court's silence on the jurisdictional
question, when considered in the context of the indifference of
the litigants to it and the fact that jurisdiction was alleged
under § 1983, does not foreclose a reasoned conclusion that
Title VI affords no private cause of action.
[Footnote 3/2]
"Yet, before that principle [that 'Federal funds are not to be
used to support racial discrimination'] is implemented to the
detriment of any person, agency, or State, regulations giving
notice of what conduct is required must be drawn up by the
agency administering the program. . . . Before such regulations
become effective, they must be submitted to and approved by
the President."
"Once having become effective, there is still a long road to
travel before any sanction whatsoever is imposed. Formal
action to compel compliance can only take place after the
following has occurred: first, there must be an unsuccessful
attempt to obtain voluntary compliance; second, there must be
an administrative hearing; third, a written report of the
circumstances and the grounds for such action must be filed
with the appropriate committees of the House and Senate; and
fourth, 30 days must have elapsed between such filing and the
action denying benefits under a Federal program. Finally, even
that action is by no means final, because it is subject to
judicial review, and can be further postponed by judicial
action granting temporary relief pending review in order to
avoid irreparable injury. It would be difficult indeed to
concoct any additional safeguards to incorporate in such a
procedure."
110 Cong.Rec. 6749 (1964) (Sen. Moss).
"[T]he authority to cut off funds is hedged about with a
number of procedural restrictions. . . . [There follow details of
the preliminary steps.]"
"In short, title VI is a reasonable, moderate, cautious, carefully
worked out solution to a situation that clearly calls for
legislative action."
Id. at 6544 (Sen. Humphrey).
"Actually, no action whatsoever can be taken against anyone
until the Federal agency involved has advised the appropriate
person of his failure to comply with nondiscrimination
requirements and until voluntary efforts to secure compliance
have failed."
Id. at 1519 (Rep. Celler) (emphasis added). See also remarks
of Sen. Ribicoff (id. at 7066-7067); Sen. Proxmire (id. at
8345); en. Kuchel (id. at 6562). These safeguards were
incorporated into 42 U.S.C. § 2000d-1.
[Footnote 3/3]
This Court has never held that the mere receipt of federal or
state funds is sufficient to make the recipient a federal or state
actor. In Norwood v. Harrison, 413 U. S. 455 (1973), private
schools that received state aid were held subject to the
Fourteenth Amendment's ban on discrimination, but the
Court's test required "tangible financial aid" with a "significant
tendency to facilitate, reinforce, and support private
discrimination." Id. at 413 U. S. 466. The mandate of Burton
v. Wilmington Parking Authority, 365 U. S. 715, 365 U. S.
722 (1961), to sift facts and weigh circumstances of
governmental support in each case to determine whether
private or state action was involved, has not been abandoned
for an automatic rule based on receipt of funds.
Contemporaneous with the congressional debates on the Civil
Rights Act was this Court's decision in Griffin v. School
Board, 377 U. S. 218 (1964). Tuition grants and tax
concessions were provided for parents of students in private
schools which discriminated racially. The Court found
sufficient state action, but carefully limited its holding to the
circumstances presented:
"[C]losing the Prince Edward schools and meanwhile
contributing to the support of the private segregated white
schools that took their place denied petitioners the equal
protection of the laws."
Id. at 377 U. S. 232.
Hence, neither at the time of the enactment of Title VI nor at
the present time, to the extent this Court has spoken, has mere
receipt of state funds created state action. Moreover, Simkins
has not met with universal approval among the United States
Courts of Appeals. See cases cited in Greco v. Orange
Memorial Hospital Corp., 423 U. S. 1000, 1004 (1975)
(WHITE, J., dissenting from denial of certiorari).
[Footnote 3/4]
"Nowhere in this section do you find a comparable right of
legal action for a person who feels he has been denied his
rights to participate in the benefits of Federal funds. Nowhere.
Only those who have been cut off can go to court and present
their claim."

110 Cong.Rec. 2467 (1964) (Rep. Gill).
"[A] good case could be made that a remedy is provided for
the State or local official who is practicing discrimination, but
none is provided for the victim of the discrimination."
Id. at 6562 (Sen. Kuchel).
"Parenthetically, while we favored the inclusion of the right to
sue on the part of the agency, the State, or the facility which
was deprived of Federal funds, we also favored the inclusion
of a provision granting the right to sue to the person suffering
from discrimination. This was not included in the bill.
However, both the Senator from Connecticut and I are grateful
that our other suggestions were adopted by the Justice
Department."
Id. at 7065 (Sen. Keating).
[Footnote 3/5]
Ibid.
[Footnote 3/6]
As Senator Ribicoff stated:
"Sometimes those eligible for Federal assistance may elect to
reject such aid, unwilling to agree to a nondiscrimination
requirement. If they choose that course, the responsibility is
theirs."
Id. at 7067.
[Footnote 3/7]
I also join Parts I, III-A, and V-C of MR. JUSTICE
POWELL's opinion.
MR. JUSTICE MARSHALL.
I agree with the judgment of the Court only insofar as it
permits a university to consider the race of an applicant in
making admissions decisions. I do not agree that petitioner's
admissions program violates the Constitution. For it must be
remembered that, during most of the past 200 years, the
Constitution, as interpreted by this Court, did not prohibit the
most ingenious and pervasive forms of discrimination against
the Negro. Now, when a State acts to remedy the effects of
that legacy of discrimination, I cannot believe that this same
Constitution stands as a barrier.
I ensuring that the "Migration or Importation" of slaves into the
A
Three hundred and fifty years ago, the Negro was dragged to
this country in chains to be sold into slavery. Uprooted from
his homeland and thrust into bondage for forced labor,
Page 438 U. S. 388
the slave was deprived of all legal rights. It was unlawful to
teach him to read; he could be sold away from his family and
friends at the whim of his master; and killing or maiming him
was not a crime. The system of slavery brutalized and
dehumanized both master and slave. [Footnote 4/1]
The denial of human rights was etched into the American
Colonies' first attempts at establishing self-government. When
the colonists determined to seek their independence from
England, they drafted a unique document cataloguing their
grievances against the King and proclaiming as "self-evident"
that "all men are created equal" and are endowed "with certain
unalienable Rights," including those to "Life, Liberty and the
pursuit of Happiness." The self-evident truths and the
unalienable rights were intended, however, to apply only to
white men. An earlier draft of the Declaration of
Independence, submitted by Thomas Jefferson to the
Continental Congress, had included among the charges against
the King that
"[h]e has waged cruel war against human nature itself,
violating its most sacred rights of life and liberty in the
persons of a distant people who never offended him,
captivating and carrying them into slavery in another
hemisphere, or to incur miserable death in their transportation
thither."
Franklin 88. The Southern delegation insisted that the charge
be deleted; the colonists themselves were implicated in the
slave trade, and inclusion of this claim might have made it
more difficult to justify the continuation of slavery once the
ties to England were severed. Thus, even as the colonists
embarked on a
Page 438 U. S. 389
course to secure their own freedom and equality, they ensured
perpetuation of the system that deprived a whole race of those
rights.
The implicit protection of slavery embodied in the Declaration
of Independence was made explicit in the Constitution, which
treated a slave as being equivalent to three-fifths of a person
for purposes of apportioning representatives and taxes among
the States. Art. I, § 2. The Constitution also contained a clause
existing States would be legal until at least 1808, Art. I, § 9,
and a fugitive slave clause requiring that, when a slave
escaped to another State, he must be returned on the claim of
the master, Art. IV, § 2. In their declaration of the principles
that were to provide the cornerstone of the new Nation,
therefore, the Framers made it plain that "we the people," for
whose protection the Constitution was designed, did not
include those whose skins were the wrong color. As Professor
John Hope Franklin has observed, Americans
"proudly accepted the challenge and responsibility of their
new political freedom by establishing the machinery and
safeguards that insured the continued enslavement of blacks."
Franklin 100.
The individual States likewise established the machinery to
protect the system of slavery through the promulgation of the
Slave Codes, which were designed primarily to defend the
property interest of the owner in his slave. The position of the
Negro slave as mere property was confirmed by this Court in
Dred Scott v. Sandford, 19 How. 393 (1857), holding that the
Missouri Compromise -- which prohibited slavery in the
portion of the Louisiana Purchase Territory north of Missouri
-- was unconstitutional because it deprived slave owners of
their property without due process. The Court declared that,
under the Constitution, a slave was property, and "[t]he right
to traffic in it, like an ordinary article of merchandise and
property, was guarantied to the citizens of the United
Page 438 U. S. 390
States. . . ." Id. at 60 U. S. 451. The Court further concluded
that Negroes were not intended to be included as citizens
under the Constitution, but were
"regarded as beings of an inferior order . . . altogether unfit to
associate with the white race, either in social or political
relations; and so far inferior that they had no rights which the
white man was bound to respect . . . ."
Id. at 60 U. S. 407.
B "By narrow and ingenious interpretation [the Supreme Court's]
The status of the Negro as property was officially erased by
his emancipation at the end of the Civil War. But the long-
awaited emancipation, while freeing the Negro from slavery,
did not bring him citizenship or equality in any meaningful
way. Slavery was replaced by a system of
"laws which imposed upon the colored race onerous
disabilities and burdens, and curtailed their rights in the
pursuit of life, liberty, and property to such an extent that their
freedom was of little value."
Slaughter-House Cases, 16 Wall. 36, 83 U. S. 70 (1873).
Despite the passage of the Thirteenth, Fourteenth, and
Fifteenth Amendments, the Negro was systematically denied
the rights those Amendments were supposed to secure. The
combined actions and inactions of the State and Federal
Governments maintained Negroes in a position of legal
inferiority for another century after the Civil War.
The Southern States took the first steps to reenslave the
Negroes. Immediately following the end of the Civil War,
many of the provisional legislatures passed Black Codes,
similar to the Slave Codes, which, among other things, limited
the rights of Negroes to own or rent property and permitted
imprisonment for breach of employment contracts. Over the
next several decades, the South managed to disenfranchise the
Negroes in spite of the Fifteenth Amendment by various
techniques, including poll taxes, deliberately complicated
balloting processes, property and literacy qualifications, and,
finally, the white primary.
Congress responded to the legal disabilities being imposed
Page 438 U. S. 391
in the Southern States by passing the Reconstruction Acts and
the Civil Rights Acts. Congress also responded to the needs of
the Negroes at the end of the Civil War by establishing the
Bureau of Refugees, Freedmen, and Abandoned Lands, better
known as the Freedmen's Bureau, to supply food, hospitals,
land, and education to the newly freed slaves. Thus, for a time,
it seemed as if the Negro might be protected from the
continued denial of his civil rights, and might be relieved of
the disabilities that prevented him from taking his place as a
free and equal citizen.
That time, however, was short-lived. Reconstruction came to a
close, and, with the assistance of this Court, the Negro was
rapidly stripped of his new civil rights. In the words of C.
Vann Woodward:
decisions over a period of years had whittled away a great part
of the authority presumably given the government for
protection of civil rights."
Woodward 139.
The Court began by interpreting the Civil War Amendments in
a manner that sharply curtailed their substantive protections.
See, e.g., Slaughter-House Cases, supra; United States v.
Reese, 92 U. S. 214 (1876); United States v. Cruikshank, 92
U. S. 542 (1876). Then, in the notorious Civil Rights Cases,
109 U. S. 3 (1883), the Court strangled Congress' efforts to
use its power to promote racial equality. In those cases, the
Court invalidated sections of the Civil Rights Act of 1875 that
made it a crime to deny equal access to "inns, public
conveyances, theatres and other places of public amusement."
Id. at 109 U. S. 10. According to the Court, the Fourteenth
Amendment gave Congress the power to proscribe only
discriminatory action by the State. The Court ruled that the
Negroes who were excluded from public places suffered only
an invasion of their social rights at the hands of private
individuals, and Congress had no power to remedy that. Id. at
109 U. S. 24-25.
"When a man has emerged from slavery, and, by the aid of
beneficent legislation, has shaken off the inseparable
concomitants of that
Page 438 U. S. 392
state,"
the Court concluded,
"there must be some stage in the progress of his elevation
when he takes the rank of a mere citizen, and ceases to be the
special favorite of the laws. . . ."
Id. at 109 U. S. 25. As Mr. Justice Harlan noted in dissent,
however, the Civil War Amendments and Civil Rights Acts
did not make the Negroes the "special favorite" of the laws,
but instead
"sought to accomplish in reference to that race . . . -- what had
already been done in every State of the Union for the white
race -- to secure and protect rights belonging to them as
freemen and citizens; nothing more."
Id. at 109 U. S. 61.
The Court's ultimate blow to the Civil War Amendments and
to the equality of Negroes came in Plessy v. Ferguson, 163 U.
S. 537 (1896). In upholding a Louisiana law that required
railway companies to provide "equal but separate"
accommodations for whites and Negroes, the Court held that
the Fourteenth Amendment was not intended
"to abolish distinctions based upon color, or to enforce social,
as distinguished from political, equality, or a commingling of
the two races upon terms unsatisfactory to either."
Id. at 163 U. S. 544. Ignoring totally the realities of the
positions of the two races, the Court remarked:
"We consider the underlying fallacy of the plaintiff's argument
to consist in the assumption that the enforced separation of the
two races stamps the colored race with a badge of inferiority.
If this be so, it is not by reason of anything found in the act,
but solely because the colored race chooses to put that
construction upon it."
Id. at 163 U. S. 551.
Mr. Justice Harlan's dissenting opinion recognized the
bankruptcy of the Court's reasoning. He noted that the "real
meaning" of the legislation was "that colored citizens are so
inferior and degraded that they cannot be allowed to sit in
public coaches occupied by white citizens." Id. at 163 U. S.
560. He expressed his fear that, if like laws were enacted in
other
Page 438 U. S. 393
States, "the effect would be in the highest degree
mischievous." Id. at 163 U. S. 563. Although slavery would
have disappeared, the States would retain the power
"to interfere with the full enjoyment of the blessings of
freedom; to regulate civil rights, common to all citizens, upon
the basis of race; and to place in a condition of legal inferiority
a large body of American citizens. . . ."
Ibid.
The fears of Mr. Justice Harlan were soon to be realized. In
the wake of Plessy, many States expanded their Jim Crow
laws, which had, up until that time, been limited primarily to
passenger trains and schools. The segregation of the races was
extended to residential areas, parks, hospitals, theaters, waiting
rooms, and bathrooms. There were even statutes and
ordinances which authorized separate phone booths for
Negroes and whites, which required that textbooks used by
children of one race be kept separate from those used by the
other, and which required that Negro and white prostitutes be
kept in separate districts. In 1898, after Plessy, the
Charlestown News and Courier printed a parody of Jim Crow
laws:
"'If there must be Jim Crow cars on the railroads, there should
be Jim Crow cars on the street railways. Also on all passenger
boats. . . . If there are to be Jim Crow cars, moreover, there
should be Jim Crow waiting saloons at all stations, and Jim
Crow eating houses. . . . There should be Jim Crow sections of
the jury box, and a separate Jim Crow dock and witness stand
in every court -- and a Jim Crow Bible for colored witnesses to
kiss.'"
Woodward 68. The irony is that, before many years had
passed, with the exception of the Jim Crow witness stand,
"all the improbable applications of the principle suggested by
the editor in derision had been put into practice -- down to and
including the Jim Crow Bible."
Id. at 69.
Nor were the laws restricting the rights of Negroes limited
Page 438 U. S. 394
solely to the Southern States. In many of the Northern States,
the Negro was denied the right to vote, prevented from serving
on juries, and excluded from theaters, restaurants, hotels, and
inns. Under President Wilson, the Federal Government began
to require segregation in Government buildings; desks of
Negro employees were curtained off; separate bathrooms and
separate tables in the cafeterias were provided; and even the
galleries of the Congress were segregated. When his
segregationist policies were attacked, President Wilson
responded that segregation was "not humiliating, but a
benefit,'" and that he was "`rendering [the Negroes] more safe
in their possession of office, and less likely to be discriminated
against.'" Kluger 91.
The enforced segregation of the races continued into the
middle of the 20th century. In both World Wars, Negroes
were, for the most part, confined to separate military units; it
was not until 1948 that an end to segregation in the military
was ordered by President Truman. And the history of the
exclusion of Negro children from white public schools is too
well known and recent to require repeating here. That Negroes
were deliberately excluded from public graduate and
professional schools -- and thereby denied the opportunity to
become doctors, lawyers, engineers, and the like is also well
established. It is, of course, true that some of the Jim Crow
laws (which the decisions of this Court had helped to foster)
were struck down by this Court in a series of decisions leading
up to Brown v. Board of Education, 347 U. S. 483 (1954). See,
e.g., Morgan v. Virginia, 328 U. S. 373 (1946); Sweatt v.
Painter, 339 U. S. 629 (1950); McLaurin v. Oklahoma State
Regents, 339 U. S. 637 (1950). Those decisions, however, did
not automatically end segregation, nor did they move Negroes
from a position of legal inferiority to one of equality. The
legacy of years of slavery and of years of second-class
citizenship in the wake of emancipation could not be so easily
eliminated.
Page 438 U. S. 395
II
The position of the Negro today in America is the tragic but
inevitable consequence of centuries of unequal treatment.
Measured by any benchmark of comfort or achievement,
meaningful equality remains a distant dream for the Negro.
A Negro child today has a life expectancy which is shorter by
more than five years than that of a white child. [Footnote 4/2]
The Negro child's mother is over three times more likely to die
of complications in childbirth, [Footnote 4/3] and the infant
mortality rate for Negroes is nearly twice that for whites.
[Footnote 4/4] The median income of the Negro family is only
60% that of the median of a white family, [Footnote 4/5] and
the percentage of Negroes who live in families with incomes
below the poverty line is nearly four times greater than that of
whites. [Footnote 4/6]
When the Negro child reaches working age, he finds that
America offers him significantly less than it offers his white
counterpart. For Negro adults, the unemployment rate is twice
that of whites, [Footnote 4/7] and the unemployment rate for
Negro teenagers is nearly three times that of white teenagers.
[Footnote 4/8] A Negro male who completes four years of
college can expect a median annual income of merely $110
more than a white male who has only a high school diploma.
[Footnote 4/9] Although Negroes
Page 438 U. S. 396
represent 11.5% of the population, [Footnote 4/10] they are
only 1.2% of the lawyers and judges, 2% of the physicians,
2.3% of the dentists, 1.1% of the engineers and 2.6% of the
college and university professors. [Footnote 4/11]
The relationship between those figures and the history of
unequal treatment afforded to the Negro cannot be denied. At
every point from birth to death, the impact of the past is
reflected in the still disfavored position of the Negro.
In light of the sorry history of discrimination and its
devastating impact on the lives of Negroes, bringing the Negro
into the mainstream of American life should be a state interest
of the highest order. To fail to do so is to ensure that America
will forever remain a divided society.
III
I do not believe that the Fourteenth Amendment requires us to
accept that fate. Neither its history nor our past cases lend any
support to the conclusion that a university may not remedy the
cumulative effects of society's discrimination by giving
consideration to race in an effort to increase the number and
percentage of Negro doctors.
A
This Court long ago remarked that
"in any fair and just construction of any section or phrase of
these [Civil War] amendments, it is necessary to look to the
purpose which we have said was the pervading spirit of them
all, the evil which they were designed to remedy. . . ."
Slaughter-House Cases, 16 Wall. at 83 U. S. 72. It is plain that
the Fourteenth Amendment was not intended to prohibit
measures designed to remedy the effects of the
Page 438 U. S. 397
Nation's past treatment of Negroes. The Congress that passed
the Fourteenth Amendment is the same Congress that passed
the 1866 Freedmen's Bureau Act, an Act that provided many
of its benefits only to Negroes. Act of July 16, 1866, ch. 200,
14 Stat. 173; see supra at 438 U. S. 391. Although the
Freedmen's Bureau legislation provided aid for refugees,
thereby including white persons within some of the relief
measures, 14 Stat. 174; see also Act of Mar. 3, 1865, ch. 90,
13 Stat. 507, the bill was regarded, to the dismay of many
Congressmen, as "solely and entirely for the freedmen, and to
the exclusion of all other persons. . . ." Cong.Globe, 39th
Cong., 1st Sess., 544 (1866) (remarks of Rep. Taylor). See
also id. at 634-635 (remarks of Rep. Ritter); id. at App. 78, 80-
81 (remarks of Rep. Chandler). Indeed, the bill was bitterly
opposed on the ground that it "undertakes to make the negro in
some respects . . . superior . . . , and gives them favors that the
poor white boy in the North cannot get." Id. at 401 (remarks of
Sen. McDougall). See also id. at 319 (remarks of Sen.
Hendricks); id. at 362 (remarks of Sen. Saulsbury); id. at 397
(remarks of Sen. Willey); id. at 544 (remarks of Rep. Taylor).
The bill's supporters defended it not by rebutting the claim of
special treatment, but by pointing to the need for such
treatment:
"The very discrimination it makes between 'destitute and
suffering' negroes and destitute and suffering white paupers
proceeds upon the distinction that, in the omitted case, civil
rights and immunities are already sufficiently protected by the
possession of political power, the absence of which in the case
provided for necessitates governmental protection."
Id. at App. 75 (remarks of Rep. Phelps) .
Despite the objection to the special treatment the bill would
provide for Negroes, it was passed by Congress. Id. at 421,
688. President Johnson vetoed this bill, and also a subsequent
bill that contained some modifications; one of his principal
Page 438 U. S. 398
objections to both bills was that they gave special benefits to
Negroes. 8 Messages and Papers of the Presidents 3596, 3599,
3620, 3623 (1897). Rejecting the concerns of the President
and the bill's opponents, Congress overrode the President's
second veto. Cong.Globe, 39th Cong., 1st Sess., 3842, 3850
(1866).
Since the Congress that considered and rejected the objections
to the 1866 Freedmen's Bureau Act concerning special relief
to Negroes also proposed the Fourteenth Amendment, it is
inconceivable that the Fourteenth Amendment was intended to
prohibit all race-conscious relief measures. It
"would be a distortion of the policy manifested in that
amendment, which was adopted to prevent state legislation
designed to perpetuate discrimination on the basis of race or
color,"
Railway Mail Assn. v. Corsi, 326 U. S. 88, 326 U. S. 94
(1945), to hold that it barred state action to remedy the effects
of that discrimination. Such a result would pervert the intent of
the Framers by substituting abstract equality for the genuine
equality the Amendment was intended to achieve.
B
As has been demonstrated in our joint opinion, this Court's
past cases establish the constitutionality of race-conscious
remedial measures. Beginning with the school desegregation
cases, we recognized that, even absent a judicial or legislative
finding of constitutional violation, a school board
constitutionally could consider the race of students in making
school assignment decisions. See Swann v. Charlotte-
Mecklenburg Board of Education, 402 U. S. 1, 402 U. S. 16
(1971); McDaniel v. Barresi, 402 U. S. 39, 402 U. S. 41
(1971). We noted, moreover, that a
"flat prohibition against assignment of students for the purpose
of creating a racial balance must inevitably conflict with the
duty of school authorities to disestablish dual school systems.
As we have held in Swann, the Constitution does not compel
any particular degree of
Page 438 U. S. 399
racial balance or mixing, but when past and continuing
constitutional violations are found, some ratios are likely to be
useful as starting points in shaping a remedy. An absolute
prohibition against use of such a device -- even as a starting
point -- contravenes the implicit command of Green v. County
School Board, 391 U. S. 430 (1968), that all reasonable
methods be available to formulate an effective remedy."
Board of Education v. Swann, 402 U. S. 43, 402 U. S. 46
(1971). As we have observed, "[a]ny other approach would
freeze the status quo that is the very target of all desegregation
processes." McDaniel v. Barresi, supra at 402 U. S. 41.
Only last Term, in United Jewish Organizations v. Carey, 430
U. S. 144 (1977), we upheld a New York reapportionment
plan that was deliberately drawn on the basis of race to
enhance the electoral power of Negroes and Puerto Ricans; the
plan had the effect of diluting the electoral strength of the
Hasidic Jewish community. We were willing in UJO to
sanction the remedial use of a racial classification even though
it disadvantaged otherwise "innocent" individuals. In another
case last Term, Califano v. Webster, 430 U. S. 313 (1977), the
Court upheld a provision in the Social Security laws that
discriminated against men because its purpose was "the
permissible one of redressing our society's longstanding
disparate treatment of women.'" Id. at 430 U. S. 317, quoting
Califano v. Goldfarb, 430 U. S. 199, 430 U. S. 209 n. 8 (1977)
(plurality opinion). We thus recognized the permissibility of
remedying past societal discrimination through the use of
otherwise disfavored classifications.
Nothing in those cases suggests that a university cannot
similarly act to remedy past discrimination. [Footnote 4/12] It
is true that,
Page 438 U. S. 400
in both UJO and Webster, the use of the disfavored
classification was predicated on legislative or administrative
action, but in neither case had those bodies made findings that
there had been constitutional violations or that the specific
individuals to be benefited had actually been the victims of
discrimination. Rather, the classification in each of those cases
was based on a determination that the group was in need of the
remedy because of some type of past discrimination. There is
thus ample support for the conclusion that a university can
employ race-conscious measures to remedy past societal
discrimination without the need for a finding that those
benefited were actually victims of that discrimination.
IV
While I applaud the judgment of the Court that a university
may consider race in its admissions process, it is more than a
little ironic that, after several hundred years of class-based
discrimination against Negroes, the Court is unwilling to hold
that a class-based remedy for that discrimination is
permissible. In declining to so hold, today's judgment ignores
the fact that. for several hundred years, Negroes have been
discriminated against not as individuals, but rather solely
because of the color of their skins. It is unnecessary in 20th-
century America to have individual Negroes demonstrate that
they have been victims of racial discrimination; the racism of
our society has been so pervasive that none, regardless of
wealth or position, has managed to escape its impact. The
experience of Negroes in America has been different in kind,
not just in degree, from that of other ethnic groups. It is not
merely the history of slavery alone, but also that a whole
people were marked as inferior by the law. And that mark has
endured. The dream of America as the great melting pot has
Page 438 U. S. 401
not been realized for the Negro; because of his skin color, he
never even made it into the pot.
These differences in the experience of the Negro make it
difficult for me to accept that Negroes cannot be afforded
greater protection under the Fourteenth Amendment where it
is necessary to remedy the effects of past discrimination. In
the Civil Rights Cases, supra, the Court wrote that the Negro
emerging from slavery must cease "to be the special favorite
of the laws." 109 U.S. at 109 U. S. 25; see supra at 438 U. S.
392. We cannot, in light of the history of the last century, yield
to that view. Had the Court, in that decision and others, been
willing to
"do for human liberty and the fundamental rights of American
citizenship what it did . . . for the protection of slavery and the
rights of the masters of fugitive slaves,"
109 U.S. at 109 U. S. 53 (Harlan, J., dissenting), we would not
need now to permit the recognition of any "special wards."
Most importantly, had the Court been willing in 1896, in
Plessy v. Ferguson, to hold that the Equal Protection Clause
forbids differences in treatment based on race, we would not
be faced with this dilemma in 1978. We must remember,
however, that the principle that the "Constitution is colorblind"
appeared only in the opinion of the lone dissenter. 163 U.S. at
163 U. S. 559. The majority of the Court rejected the principle
of color blindness, and for the next 60 years, from Plessy to
Brown v. Board of Education, ours was a Nation where, by
law, an individual could be given "special" treatment based on
the color of his skin.
It is because of a legacy of unequal treatment that we now
must permit the institutions of this society to give
consideration to race in making decisions about who will hold
the positions of influence, affluence, and prestige in America.
For far too long, the doors to those positions have been shut to
Negroes. If we are ever to become a fully integrated society,
one in which the color of a person's skin will not determine the
opportunities available to him or her, we must be willing
Page 438 U. S. 402
to take steps to open those doors. I do not believe that anyone
can truly look into America's past and still find that a remedy
for the effects of that past is impermissible.
It has been said that this case involves only the individual,
Bakke, and this University. I doubt, however, that there is a
computer capable of determining the number of persons and
institutions that may be affected by the decision in this case.
For example, we are told by the Attorney General of the
United States that at least 27 federal agencies have adopted
regulations requiring recipients of federal funds to take
"'affirmative action to overcome the effects of conditions
which resulted in limiting participation . . . by persons of a
particular race, color, or national origin.'"
Supplemental Brief for United States as Amicus Curiae 16
(emphasis added). I cannot even guess the number of state and
local governments that have set up affirmative action
programs, which may be affected by today's decision.
I fear that we have come full circle. After the Civil War, our
Government started several "affirmative action" programs.
This Court, in the Civil Rights Cases and Plessy v. Ferguson,
destroyed the movement toward complete equality. For almost
a century, no action was taken, and this nonaction was with
the tacit approval of the courts. Then we had Brown v. Board
of Education and the Civil Rights Acts of Congress, followed
by numerous affirmative action programs. Now, we have this
Court again stepping in, this time to stop affirmative action
programs of the type used by the University of California.
[Footnote 4/1]
The history recounted here is perhaps too well known to
require documentation. But I must acknowledge the authorities
on which I rely in retelling it. J. Franklin, From Slavery to
Freedom (4th ed.1974) (hereinafter Franklin); R. Kluger,
Simple Justice (1975) (hereinafter Kluger); C. Woodward, The
Strange Career of Jim Crow (3d ed.1974) (hereinafter
Woodward).
[Footnote 4/2]
U.S. Dept. of Commerce, Bureau of the Census, Statistical
Abstract of the United States 65 (1977) (Table 94).
[Footnote 4/3]
Id. at 70 (Table 102) .
[Footnote 4/4]
Ibid.
[Footnote 4/5]
U.S. Dept. of Commerce, Bureau of the Census, Current
Population Reports, Series P-60, No. 107, p. 7 (1977) (Table
1).
[Footnote 4/6]
Id. at 20 (Table 14).
[Footnote 4/7]
U.S. Dept. of Labor, Bureau of Labor Statistics, Employment
and Earnings, January, 1978, p. 170 (Table 44).
[Footnote 4/8]
Ibid.
[Footnote 4/9]
U.S. Dept. of Commerce, Bureau of the Census, Current
Population Reports, Series P-60, No. 105, p. 198 (1977)
(Table 47).
[Footnote 4/10]
U.S. Dept. of Commerce, Bureau of the Census, Statistical
Abstract, supra, at 25 (Table 24).
[Footnote 4/11]
Id. at 407-408 (Table 662) (based on 1970 census).
[Footnote 4/12]
Indeed, the action of the University finds support in the
regulations promulgated under Title VI by the Department of
Health, Education, and Welfare and approved by the
President, which authorize a federally funded institution to
take affirmative steps to overcome past discrimination against
groups even where the institution was not guilty of prior
discrimination. 45 CFR § 80.3(b)(6)(ii) (1977).
MR. JUSTICE BLACKMUN.
I participate fully, of course, in the opinion, ante p. 438 U. S.
324, that bears the names of my Brothers BRENNAN,
WHITE, MARSHALL, and myself. I add only some general
observations that hold particular significance for me, and then
a few comments on equal protection.
Page 438 U. S. 403

I only 1.
At least until the early 1970's, apparently only a very small
number, less than 2%, of the physicians, attorneys, and
medical and law students in the United States were members
of what we now refer to as minority groups. In addition,
approximately three-fourths of our Negro physicians were
trained at only two medical schools. If ways are not found to
remedy that situation, the country can never achieve its
professed goal of a society that is not race-conscious.
I yield to no one in my earnest hope that the time will come
when an "affirmative action" program is unnecessary and is, in
truth, only a relic of the past. I would hope that we could reach
this stage within a decade, at the most. But the story of Brown
v. Board of Education, 347 U. S. 483 (1954), decided almost a
quarter of a century ago, suggests that that hope is a slim one.
At some time, however, beyond any period of what some
would claim is only transitional inequality, the United States
must and will reach a stage of maturity where action along this
line is no longer necessary. Then persons will be regarded as
persons, and discrimination of the type we address today will
be an ugly feature of history that is instructive, but that is
behind us.
The number of qualified, indeed highly qualified, applicants
for admission to existing medical schools in the United States
far exceeds the number of places available. Wholly apart from
racial and ethnic considerations, therefore, the selection
process inevitably results in the denial of admission to many
qualified persons, indeed, to far more than the number of those
who are granted admission. Obviously, it is a denial to the
deserving. This inescapable fact is brought into sharp focus
here because Allan Bakke is not himself charged with
discrimination, and yet is the one who is disadvantaged, and
because the Medical School of the University of California at
Davis itself is not charged with historical discrimination.
One theoretical solution to the need for more minority
Page 438 U. S. 404
members in higher education would be to enlarge our graduate
schools. Then all who desired and were qualified could enter,
and talk of discrimination would vanish. Unfortunately, this is
neither feasible nor realistic. The vast resources that
apparently would be required simply are not available. And
the need for more professional graduates, in the strict
numerical sense, perhaps has not been demonstrated at all.
There is no particular or real significance in the 84-16 division
at Davis. The same theoretical, philosophical, social, legal,
and constitutional considerations would necessarily apply to
the case if Davis' special admissions program had focused on
any lesser number, that is, on 12 or 8 or 4 places or, indeed, on
It is somewhat ironic to have us so deeply disturbed over a
program where race is an element of consciousness, and yet to
be aware of the fact, as we are, that institutions of higher
learning, albeit more on the undergraduate than the graduate
level, have given conceded preferences up to a point to those
possessed of athletic skills, to the children of alumni, to the
affluent who may bestow their largess on the institutions, and
to those having connections with celebrities, the famous, and
the powerful.
Programs of admission to institutions of higher learning are
basically a responsibility for academicians and for
administrators and the specialists they employ. The judiciary,
in contrast, is ill-equipped and poorly trained for this. The
administration and management of educational institutions are
beyond the competence of judges and are within the special
competence of educators, provided always that the educators
perform within legal and constitutional bounds. For me,
therefore, interference by the judiciary must be the rare
exception, and not the rule.
II
I, of course, accept the propositions that (a) Fourteenth
Amendment rights are personal; (b) racial and ethnic
distinctions,
Page 438 U. S. 405
where they are stereotypes, are inherently suspect and call for
exacting judicial scrutiny; (c) academic freedom is a special
concern of the First Amendment; and (d) the Fourteenth
Amendment has expanded beyond its original 1868 concept,
and now is recognized to have reached a point where, as MR.
JUSTICE POWELL states, ante at 438 U. S. 293, quoting
from the Court's opinion in McDonald v. Santa Fe Trail
Transp. Co., 427 U. S. 273, 427 U. S. 296 (1976), it embraces
a "broader principle."
This enlargement does not mean for me, however, that the
Fourteenth Amendment has broken away from its moorings
and its original intended purposes. Those original aims persist.
And that, in a distinct sense, is what "affirmative action," in
the face of proper facts, is all about. If this conflicts with
idealistic equality, that tension is original Fourteenth
Amendment tension, constitutionally conceived and
constitutionally imposed, and it is part of the Amendment's
very nature until complete equality is achieved in the area. In
this sense, constitutional equal protection is a shield.
I emphasize in particular that the decided cases are not easily
to be brushed aside. Many, of course, are not precisely on
point, but neither are they off point. Racial factors have been
given consideration in the school desegregation cases, in the
employment cases, in Lau v. Nichols, 414 U. S. 563 (1974),
and in United Jewish Organizations v. Carey, 430 U. S. 144
(1977). To be sure, some of these may be "distinguished" on
the ground that victimization was directly present. But who is
to say that victimization is not present for some members of
today's minority groups, although it is of a lesser and perhaps
different degree. The petitioners in United Jewish
Organizations certainly complained bitterly of their
reapportionment treatment, and I rather doubt that they regard
the "remedy" there imposed as one that was "to improve" the
group's ability to participate, as MR. JUSTICE POWELL
describes it, ante at 438 U. S. 305. And surely. in Lau v.
Nichols, we looked to ethnicity.
Page 438 U. S. 406
I am not convinced, as MR. JUSTICE POWELL seems to be,
that the difference between the Davis program and the one
employed by Harvard is very profound, or constitutionally
significant. The line between the two is a thin and indistinct
one. In each, subjective application is at work. Because of my
conviction that admission programs are primarily for the
educators, I am willing to accept the representation that the
Harvard program is one where good faith in its administration
is practiced, as well as professed. I agree that such a program,
where race or ethnic background is only one of many factors,
is a program better formulated than Davis' two-track system.
The cynical, of course, may say that, under a program such as
Harvard's, one may accomplish covertly what Davis concedes
it does openly. I need not go that far, for, despite its two-track
aspect, the Davis program, for me, is within constitutional
bounds, though perhaps barely so. It is surely free of stigma,
and, as in United Jewish Organizations, I am not willing to
infer a constitutional violation.
It is worth noting, perhaps, that governmental preference has
not been a stranger to our legal life. We see it in veterans'
preferences. We see it in the aid-to-the-handicapped programs.
We see it in the progressive income tax. We see it in the
Indian programs. We may excuse some of these on the ground
that they have specific constitutional protection or, as with
Indians, that those benefited are wards of the Government.
Nevertheless, these preferences exist, and may not be ignored.
And in the admissions field, as I have indicated, educational
institutions have always used geography, athletic ability,
anticipated financial largess, alumni pressure, and other
factors of that kind.
I add these only as additional components on the edges of the
central question as to which I join my Brothers BRENNAN,
WHITE, and MARSHALL in our more general approach. It is
gratifying to know that the Court at least finds it constitutional
for an academic institution to take race and ethnic background
into consideration as one factor, among many, in
Page 438 U. S. 407
the administration of its admissions program. I presume that
that factor always has been there, though perhaps not
conceded or even admitted. It is a fact of life, however, and a
part of the real world of which we are all a part. The sooner
we get down the road toward accepting and being a part of the
real world, and not shutting it out and away from us, the
sooner will these difficulties vanish from the scene.
I suspect that it would be impossible to arrange an affirmative
action program in a racially neutral way and have it
successful. To ask that this be so is to demand the impossible.
In order to get beyond racism, we must first take account of
race. There is no other way. And in order to treat some persons
equally, we must treat them differently. We cannot -- we dare
not -- let the Equal Protection Clause perpetuate racial
supremacy.
So the ultimate question, as it was at the beginning of this
litigation, is: among the qualified, how does one choose?
A long time ago, as time is measured for this Nation, a Chief
Justice, both wise and far-sighted, said:
"In considering this question, then, we must never forget, that
it is a constitution we are expounding."
McCulloch v. Maryland, 4 Wheat. 316, 17 U. S. 407 (1819)
(emphasis in original). In the same opinion, the Great Chief
Justice further observed:
"Let the end be legitimate, let it be within the scope of the
constitution, and all means which are appropriate, which are
plainly adapted to that end, which are not prohibited, but
consist with the letter and spirit of the constitution, are
constitutional."
Id. at 17 U. S. 421. More recently, one destined to become a
Justice of this Court observed:
"The great generalities of the constitution have a content and a
significance that vary from age to age."
B. Cardozo, The Nature of the Judicial Process 17 (1921).
Page 438 U. S. 408
And an educator who became a President of the United States
said:
"But the Constitution of the United States is not a mere
lawyers' document: it is a vehicle of life, and its spirit is
always the spirit of the age."
W. Wilson, Constitutional Government in the United States 69
(1911).
These precepts of breadth and flexibility and ever-present
modernity are basic to our constitutional law. Today, again,
we are expounding a Constitution. The same principles that
governed McCulloch's case in 1819 govern Bakke's case in
1978. There can be no other answer.
MR. JUSTICE STEVENS, with whom THE CHIEF
JUSTICE, MR. JUSTICE STEWART, and MR. JUSTICE
REHNQUIST join, concurring in the judgment in part and
dissenting in part.
It is always important at the outset to focus precisely on the
controversy before the Court. [Footnote 5/1] It is particularly
important to do so in this case, because correct identification
of the issues will determine whether it is necessary or
appropriate to express any opinion about the legal status of
any admissions program other than petitioner's.
I injunction forbidding any consideration of racial criteria in
This is not a class action. The controversy is between two
specific litigants. Allan Bakke challenged petitioner's special
admissions program, claiming that it denied him a place in
medical school because of his race in violation of the Federal
and California Constitutions and of Title VI of the Civil Rights
Act of 1964, 42 U.S.C. § 2000d et seq. The California
Supreme Court upheld his challenge and ordered him
admitted. If the
Page 438 U. S. 409
state court was correct in its view that the University's special
program was illegal, and that Bakke was therefore unlawfully
excluded from the Medical School because of his race, we
should affirm its judgment, regardless of our views about the
legality of admissions programs that are not now before the
Court.
The judgment as originally entered by the trial court contained
four separate paragraphs, two of which are of critical
importance. [Footnote 5/2] Paragraph 3 declared that the
University's special admissions program violated the
Fourteenth Amendment, the State Constitution, and Title VI.
The trial court did not order the University to admit Bakke,
because it concluded that Bakke had not shown that he would
have been admitted if there had been no special program.
Instead, in paragraph 2 of its judgment, it ordered the
University to consider Bakke's application for admission
without regard to his race or the race of any other applicant.
The order did not include any broad
Page 438 U. S. 410
prohibition against any use of race in the admissions process;
its terms were clearly limited to the University's consideration
of Bakke's application. [Footnote 5/3] Because the University
has since been ordered to admit Bakke, paragraph 2 of the trial
court's order no longer has any significance.
The California Supreme Court, in a holding that is not
challenged, ruled that the trial court incorrectly placed the
burden on Bakke of showing that he would have been
admitted in the absence of discrimination. The University then
conceded "that it [could] not meet the burden of proving that
the special admissions program did not result in Mr. Bakke's
failure to be admitted." [Footnote 5/4] Accordingly, the
California Supreme Court directed the trial court to enter
judgment ordering Bakke's admission. [Footnote 5/5] Since
that order superseded paragraph
Page 438 U. S. 411
2 of the trial court's judgment, there is no outstanding
processing applications.
It is therefore perfectly clear that the question whether race
can ever be used as a factor in an admissions decision is not an
issue in this case, and that discussion of that issue is
inappropriate. [Footnote 5/6]
II
Both petitioner and respondent have asked us to determine the
legality of the University's special admissions program by
reference to the Constitution. Our settled practice, however, is
to avoid the decision of a constitutional issue if a case can be
fairly decided on a statutory ground.
"If there is one doctrine more deeply rooted than any other in
the process of constitutional adjudication, it is that we ought
not to pass on questions of constitutionality . . . unless such
adjudication is unavoidable."
Spector Motor Co. v. McLaughlin, 323 U. S. 101, 323 U. S.
105. [Footnote 5/7] The more important the issue, the more
force
Page 438 U. S. 412
there is to this doctrine. [Footnote 5/8] In this case, we are
presented with a constitutional question of undoubted and
unusual importance. Since, however, a dispositive statutory
claim was raised at the very inception of this case, and
squarely decided in the portion of the trial court judgment
affirmed by the California Supreme Court, it is our plain duty
to confront it. Only if petitioner should prevail on the statutory
issue would it be necessary to decide whether the University's
admissions program violated the Equal Protection Clause of
the Fourteenth Amendment.
III
Section 601 of the Civil Rights Act of 1964, 78 Stat. 252, 42
U.S.C. § 2000d, provides:
"No person in the United States shall, on the ground of race,
color, or national origin, be excluded from participation in, be
denied the benefits of, or be subjected to discrimination under
any program or activity receiving Federal financial
assistance."
The University, through its special admissions policy,
excluded Bakke from participation in its program of medical
education because of his race. The University also
acknowledges that it was, and still is, receiving federal
financial assistance. [Footnote 5/9] The plain language of the
statute therefore requires affirmance of the judgment below. A
different result
Page 438 U. S. 413
cannot be justified unless that language misstates the actual
intent of the Congress that enacted the statute or the statute is
not enforceable in a private action. Neither conclusion is
warranted.
Title VI is an integral part of the far-reaching Civil Rights Act
of 1964. No doubt, when this legislation was being debated,
Congress was not directly concerned with the legality of
"reverse discrimination" or "affirmative action" programs. Its
attention was focused on the problem at hand, the "glaring . . .
discrimination against Negroes which exists throughout our
Nation," [Footnote 5/10] and, with respect to Title VI, the
federal funding of segregated facilities. [Footnote 5/11] The
genesis of the legislation, however, did not limit the breadth of
the solution adopted. Just as Congress responded to the
problem of employment discrimination by enacting a
provision that protects all races, see McDonald v. Santa Fe
Trail Transp. Co., 427 U. S. 273, 427 U. S. 279, [Footnote
5/12] so, too, its answer to the problem of federal funding of
segregated facilities stands as a broad prohibition against the
exclusion of any individual from a federally funded program
"on the ground of race." In the words of the House Report,
Title VI stands for
"the general principle that no person . . . be excluded from
participation . . . on the ground of race, color, or national
origin under any program or activity receiving Federal
financial assistance."
H.R.Rep. No. 914, 88th
Page 438 U. S. 414
Cong., 1st Sess, pt. l, p. 25 (1963) (emphasis added). This
same broad view of Title VI and § 601 was echoed throughout
the congressional debate and was stressed by every one of the
major spokesmen for the Act. [Footnote 5/13]
Petitioner contends, however, that exclusion of applicants on
the basis of race does not violate Title VI if the exclusion
carries with it no racial stigma. No such qualification or
limitation of § 601's categorical prohibition of "exclusion" is
justified by the statute or its history. The language of the entire
section is perfectly clear; the words that follow "excluded
from" do not modify or qualify the explicit outlawing of any
exclusion on the stated grounds.
The legislative history reinforces this reading. The only
suggestion that § 601 would allow exclusion of nonminority
applicants came from opponents of the legislation, and then
only by way of a discussion of the meaning of the word
"discrimination." [Footnote 5/14] The opponents feared that
the term "discrimination"
Page 438 U. S. 415
would be read as mandating racial quotas and "racially
balanced" colleges and universities, and they pressed for a
specific definition of the term in order to avoid this possibility.
[Footnote 5/15] In response, the proponents of the legislation
gave repeated assurances that the Act would be "colorblind" in
its application. [Footnote 5/16] Senator Humphrey, the Senate
floor manager for the Act, expressed this position as follows:
"[T]he word 'discrimination' has been used in many a court
case. What it really means in the bill is a distinction in
treatment . . . given to different individuals because of their
different race, religion or national origin. . . ."
"The answer to this question [what was meant by
'discrimination'] is that if race is not a factor, we do not have
to worry about discrimination because of race. . . . The
Internal Revenue Code does not provide that colored people
do not have to pay taxes, or that they can pay their taxes 6
months later than everyone else."
110 Cong.Rec. 5864 (1964).
"[I]f we started to treat Americans as Americans, not as fat
ones, thin ones, short ones, tall ones, brown ones, green ones,
yellow ones, or white ones, but as Americans. If we did that,
we would not need to worry about discrimination."
Id. at 5866.
Page 438 U. S. 416
In giving answers such as these, it seems clear that the
proponents of Title VI assumed that the Constitution itself
required a colorblind standard on the part of government,
[Footnote 5/17] but that does not mean that the legislation only
codifies an existing constitutional prohibition. The statutory
prohibition against discrimination in federally funded projects
contained in § 601 is more than a simple paraphrasing of what
the Fifth or Fourteenth Amendment would require. The Act's
proponents plainly considered Title VI consistent with their
view of the Constitution, and they sought to provide an
effective weapon to implement that view. [Footnote 5/18] As a
distillation of what the supporters of the Act believed the
Constitution demanded of State and Federal Governments, §
601 has independent force, with language and emphasis in
addition to that found in the Constitution. [Footnote 5/19]
Page 438 U. S. 417
As with other provisions of the Civil Rights Act, Congress'
expression of it policy to end racial discrimination may
independently proscribe conduct that the Constitution does
not. [Footnote 5/20] However, we need not decide the
congruence -- or lack of congruence -- of the controlling
statute and the Constitution
Page 438 U. S. 418
since the meaning of the Title VI ban on exclusion is crystal
clear: race cannot be the basis of excluding anyone from
participation in a federally funded program.
In short, nothing in the legislative history justifies the
conclusion that the broad language of § 601 should not be
given its natural meaning. We are dealing with a distinct
statutory prohibition, enacted at a particular time with
particular concerns in mind; neither its language nor any prior
interpretation suggests that its place in the Civil Rights Act,
won after long debate, is simply that of a constitutional
appendage. [Footnote 5/21] In unmistakable terms, the Act
prohibits the exclusion of individuals from federally funded
programs because of their race. [Footnote 5/22] As succinctly
phrased during the Senate debate, under Title VI, it is not
"permissible to say yes' to one person, but to say `no' to
another person, only because of the color of his skin."
[Footnote 5/23]
Belatedly, however, petitioner argues that Title VI cannot be
enforced by a private litigant. The claim is unpersuasive in the
context of this case. Bakke requested injunctive and
declaratory relief under Title VI; petitioner itself then joined
Page 438 U. S. 419
issue on the question of the legality of its program under Title
VI by asking for a declaratory judgment that it was in
compliance with the statute. [Footnote 5/24] Its view during
state court litigation was that a private cause of action does
exist under Title VI. Because petitioner questions the
availability of a private cause of action for the first time in this
Court, the question is not properly before us. See McGoldrick
v. Companie Generale Transatlantique, 309 U. S. 430, 309 U.
S. 434. Even if it were, petitioner's original assumption is in
accord with the federal courts' consistent interpretation of the
Act. To date, the courts, including this Court, have
unanimously concluded or assumed that a private action may
be maintained under Title VI. [Footnote 5/25] The United
States has taken the same position; in its amicus curiae brief
directed to this specific issue, it concluded that such a remedy
is clearly available, [Footnote 5/26]
Page 438 U. S. 420
and Congress has repeatedly enacted legislation predicated on
the assumption that Title VI may be enforced in a private
action. [Footnote 5/27] The conclusion that an individual may
maintain a private cause of action is amply supported in the
legislative history of Title VI itself. [Footnote 5/28] In short, a
fair consideration of
Page 438 U. S. 421
petitioner's tardy attack on the propriety of Bakke's suit under
Title VI requires that it be rejected.
The University's special admissions program violated Title VI
of the Civil Rights Act of 1964 by excluding Bakke from the
Medical School because of his race. It is therefore our duty to
affirm the judgment ordering Bakke admitted to the
University.
Accordingly, I concur in the Court's judgment insofar as it
affirms the judgment of the Supreme Court of California. To
the extent that it purports to do anything else, I respectfully
dissent.
[Footnote 5/1]
Four Members of the Court have undertaken to announce the
legal and constitutional effect of this Court's judgment. See
opinion of JUSTICES BRENNAN, WHITE, MARSHALL,
and BLACKMUN, ante at 438 U. S. 324-325. It is hardly
necessary to state that only a majority can speak for the Court
or determine what is the "central meaning" of any judgment of
the Court.
[Footnote 5/2]
The judgment first entered by the trial court read, in its
entirety, as follows:
"IT IS HEREBY ORDERED, ADJUDGED AND
DECREED:"
"1. Defendant, the Regents of the University of California,
have judgment against plaintiff, Allan Bakke, denying the
mandatory injunction requested by plaintiff ordering his
admission to the University of California at Davis Medical
School;"
"2. That plaintiff is entitled to have his application for
admission to the medical school considered without regard to
his race or the race of any other applicant, and defendants are
hereby restrained and enjoined from considering plaintiff's
race or the race of any other applicant in passing upon his
application for admission;"
"3. Cross-defendant Allan Bakke have judgment against cross-
complaint, the Regents of the University of California,
declaring that the special admissions program at the University
of California at Davis Medical School violates the Fourteenth
Amendment to the United States Constitution, Article 1,
Section 21 of the California Constitution, and the Federal Civil
Rights Act [42 U.S.C. § 2000d];"
"4. That plaintiff have and recover his court costs incurred
herein in the sum of $217.35."
App. to Pet. for Cert. 120a.
[Footnote 5/3]
In paragraph 2, the trial court ordered that
"plaintiff [Bakke] is entitled to have his application for
admission to the medical school considered without regard to
his race or the race of any other applicant, and defendants are
hereby restrained and enjoined from considering plaintiff's
race or the race of any other applicant in passing upon his
application for admission."
See n. 2, supra, (emphasis added). The only way in which this
order can be broadly read as prohibiting any use of race in the
admissions process, apart from Bakke's application, is if the
final "his" refers to "any other applicant." But the consistent
use of the pronoun throughout the paragraph to refer to Bakke
makes such a reading entirely unpersuasive, as does the failure
of the trial court to suggest that it was issuing relief to
applicants who were not parties to the suit.
[Footnote 5/4]
Appendix B to Application for Stay A19-A20.
[Footnote 5/5]
18 Cal.3d 34, 64, 553 P.2d 1152, 1172 (1976). The judgment
of the Supreme Court of the State of California affirms only
paragraph 3 of the trial court's judgment. The Supreme Court's
judgment reads as follows:
"IT IS ORDERED, ADJUDGED, AND DECREED by the
Court that the judgment of the Superior Court[,] County of
Yolo[,] in the above-entitled cause, is hereby affirmed insofar
as it determines that the special admission program is invalid;
the judgment is reversed insofar as it denies Bakke an
injunction ordering that he be admitted to the University, and
the trial court is directed to enter judgment ordering Bakke to
be admitted. 'Bakke shall recover his costs on these appeals.'"
[Footnote 5/6]
"This Court . . . reviews judgments, not statements in
opinions." Black v. Cutter Laboratories, 351 U. S. 292, 351 U.
S. 297.
[Footnote 5/7]
"From Hayburn's Case, 2 Dall. 409, to Alma Motor Co. v.
Timken-Detroit Axle Co. [, 329 U. S. 129,] and the Hatch Act
case \[United Public Workers v. Mitchell, 330 U. S. 75,]
decided this term, this Court has followed a policy of strict
necessity in disposing of constitutional issues. The earliest
exemplifications, too well known for repeating the history
here, arose in the Court's refusal to render advisory opinions
and in applications of the related jurisdictional policy drawn
from the case and controversy limitation. U.S.Const., Art. III. .
. ."
"The policy, however, has not been limited to jurisdictional
determinations. For, in addition,"
"the Court [has] developed, for its own governance in the
cases confessedly within its jurisdiction, a series of rules under
which it has avoided passing upon a large part of all the
constitutional questions pressed upon it for decision."
"Thus, as those rules were listed in support of the statement
quoted, constitutional issues affecting legislation will not be
determined in friendly, nonadversary proceedings; in advance
of the necessity of deciding them; in broader terms than are
required by the precise facts to which the ruling is to be
applied; if the record presents some other ground upon which
the case may be disposed of; at the instance of one who fails to
show that he is injured by the statute's operation, or who has
availed himself of its benefits; or if a construction of the
statute is fairly possible by which the question may be
avoided."
Rescue Army v. Municipal Court, 331 U. S. 549, 331 U. S.
568-569 (footnotes omitted). See also Ashwander v. TVA, 297
U. S. 288, 297 U. S. 346-348 (Brandeis, J., concurring).
[Footnote 5/8]
The doctrine reflects both our respect for the Constitution as
an enduring set of principles and the deference we owe to the
Legislative and Executive Branches of Government in
developing solutions to complex social problems. See A.
Bickel, The Least Dangerous Branch 131 (1962).
[Footnote 5/9]
Record 29.
[Footnote 5/10]
H.R.Rep. No. 914, 88th Cong., 1st Sess., pt. 1, p. 18 (1963).
[Footnote 5/11]
It is apparent from the legislative history that the immediate
object of Title VI was to prevent federal funding of segregated
facilities. See, e.g., 110 Cong.Rec. 1521 (1964) (remarks of
Rep. Celler); id. at 6544 (remarks of Sen. Humphrey).
[Footnote 5/12]
In McDonald v. Santa Fe Trail Transp. Co., the Court held that
"Title VII prohibits racial discrimination against . . . white
petitioners . . . upon the same standards as would be applicable
were they Negroes. . . ." 427 U.S. at 427 U. S. 280. Quoting
from our earlier decision in Griggs v Duke Power Co., 401 U.
S. 424, 401 U. S. 431, the Court reaffirmed the principle that
the statute "prohibit[s] [d]iscriminatory preference for any
[racial] group, minority or majority.'" 427 U.S. at 427 U. S.
279 (emphasis in original).
[Footnote 5/13]
See, e.g., 110 Cong.Rec. 1520 (1964) (remarks of Rep.
Celler); id. at 5864 (remarks of Sen. Humphrey); id. at 6561
(remarks of Sen. Kuchel); id. at 7055 (remarks of Sen.
Pastore). (Representative Celler and Senators Humphrey and
Kuchel were the House and Senate floor managers for the
entire Civil Rights Act, and Senator Pastore was the majority
Senate floor manager for Title VI.)
[Footnote 5/14]
Representative Abernethy's comments were typical:
"Title VI has been aptly described as the most harsh and
unprecedented proposal contained in the bill. . . . "
"It is aimed toward eliminating discrimination in federally
assisted programs. It contains no guideposts and no yardsticks
as to what might constitute discrimination in carrying out
federally aided programs and projects. . . ."
"* * * *"
"Presumably, the college would have to have a 'racially
balanced' staff from the dean's office to the cafeteria. . . ."
"The effect of this title, if enacted into law, will interject race
as a factor in every decision involving the selection of an
individual. . . . The concept of 'racial imbalance' would hover
like a black cloud over every transaction. . . ."
Id. at 1619. See also, e.g., id. at 5611-5613 (remarks of Sen.
Ervin); id. at 9083 (remarks of Sen. Gore).
[Footnote 5/15]
E.g., id. at 5863, 5874 (remarks of Sen. Eastland).
[Footnote 5/16]
See, e.g., id. at 8364 (remarks off Sen. Proxmire) ("Taxes are
collected from whites and Negroes, and they should be
expended without discrimination"); id. at 7055 (remarks of
Sen. Pastore) ("[Title VI] will guarantee that the money
collected by colorblind tax collectors will be distributed
Federal and State administrators who are equally colorblind");
and id. at 6543 (remarks of Sen. Humphrey) ("Simple justice
requires that public funds, to which all taxpayers of all races
contribute, not be spent in any fashion which encourages,
entrenches, subsidizes, or results in racial discrimination'")
(quoting from President Kennedy's Message to Congress, June
19, 1963).
[Footnote 5/17]
See, e.g., 110 Cong.Rec. 5253 (1964) (remarks of Sen.
Humphrey); and id. at 7102 (remarks of Sen. Javits). The
parallel between the prohibitions of Title VI and those of the
Constitution was clearest with respect to the immediate goal of
the Act -- an end to federal funding of "separate but equal"
facilities.
[Footnote 5/18]
"As in Monroe \[v. Pape, 365 U. S. 167], we have no occasion
here to"
"reach the constitutional question whether Congress has the
power to make municipalities liable for acts of its officers that
violate the civil rights of individuals."
"365 U.S. at 365 U. S. 191. For in interpreting the statute, it is
not our task to consider whether Congress was mistaken in
1871 in its view of the limit of its power over municipalities;
rather, we must construe the statute in light of the impressions
under which Congress did, in fact, act, see Ries v. Lynskey,
452 F.2d at 175."
Moor v. County of Alameda, 411 U. S. 693, 411 U. S. 709.
[Footnote 5/19]
Both Title VI and Title VII express Congress' belief that, in
the long struggle to eliminate social prejudice and the effects
of prejudice, the principle of individual equality, without
regard to race or religion, was one on which there could be a
"meeting of the minds" among all races and a common
national purpose. See Los Angeles Dept. of Water & Power v.
Manhart, 435 U. S. 702, 435 U. S. 709 ("[T]he basic policy of
the statute [Title VII] requires that we focus on fairness to
individuals, rather than fairness to classes"). This same
principle of individual fairness is embodied in Title VI.
"The basic fairness of title VI is so clear that I find it difficult
to understand why it should create any opposition. . . ."
"* * * *"
"Private prejudices, to be sure, cannot be eliminated overnight.
However, there is one area where no room at all exists for
private prejudices. That is the area of governmental conduct.
As the first Mr. Justice Harlan said in his prophetic dissenting
opinion in Plessy v. Ferguson, 163 U. S. 537, 163 U. S. 559:"
"Our Constitution is color-blind."
"So -- I say to Senators -- must be our Government. . . ."
"Title VI closes the gap between our purposes as a democracy
and our prejudices as individuals. The cuts of prejudice need
healing. The costs of prejudice need understanding. We cannot
have hostility between two great parts of our people without
tragic loss in our human values. . . . "
"Title VI offers a place for the meeting of our minds as to
Federal money."
110 Cong.Rec. 7063-7064 (1964) (remarks of Sen. Pastore).
Of course, one of the reasons marshaled in support of the
conclusion that Title VI was "noncontroversial" was that its
prohibition was already reflected in the law. See ibid. (remarks
of Sen. Pell and Sen. Pastore).
[Footnote 5/20]
For example, private employers now under duties imposed by
Title VII were wholly free from the restraints imposed by the
Fifth and Fourteenth Amendments which are directed only to
governmental action.
In Lau v. Nichols, 414 U. S. 563, the Government's brief
stressed that
"the applicability of Title VI . . . does not depend upon the
outcome of the equal protection analysis. . . . [T]he statute
independently proscribes the conduct challenged by
petitioners, and provides a discrete basis for injunctive relief."
Brief for United States as Amicus Curiae, O.T. 1973, No. 72-
6520, p. 15. The Court, in turn, rested its decision on Title VI.
MR. JUSTICE POWELL takes pains to distinguish Lau from
the case at hand because the Lau decision "rested solely on the
statute." Ante at 438 U. S. 304. See also Washington v. Davis,
426 U. S. 229, 426 U. S. 238-239; Allen v. State Board of
Elections, 393 U. S. 544, 393 U. S. 588 (Harlan, J., concurring
and dissenting).
[Footnote 5/21]
As explained by Senator Humphrey, § 601 expresses a
principle imbedded in the constitutional and moral
understanding of the times.
"The purpose of title VI is to make sure that funds of the
United States are not used to support racial discrimination. In
many instances, the practices of segregation or discrimination,
which title VI seeks to end, are unconstitutional. . . . In all
cases, such discrimination is contrary to national policy, and to
the moral sense of the Nation. Thus, title VI is simply
designed to insure that Federal funds are spent in accordance
with the Constitution and the moral sense of the Nation."
110 Cong.Rec. 6544 (1964) (emphasis added).
[Footnote 5/22]

Petitioner's attempt to rely on regulations issued by HEW for a
contrary reading of the statute is unpersuasive. Where no
discriminatory policy was in effect., HEW's example of
permissible "affirmative action" refers to "special recruitment
policies." 45 CFR § 80.5(j) (1977). This regulation, which was
adopted in 1973, sheds no light on the legality of the
admissions program that excluded Bakke in this case.
[Footnote 5/23]
110 Cong.Rec. 6047 (1964) (remarks of Sen. Pastore).
[Footnote 5/24]
Record 30-31.
[Footnote 5/25]
See, e.g., Lau v. Nichols, supra; Bossier Parish School Board
v. Lemon, 370 F.2d 847 (CA5 1967), cert. denied, 388 U.S.
911; Uzzell v. Friday, 547 F.2d 801 (CA4 1977), opinion on
rehearing en banc, 558 F.2d 727, cert. pending, No. 77-635;
Serna v. Portales, 499 F.2d 1147 (CA10 1974); cf. Chambers
v. Omaha Public School District, 536 F.2d 222, 225 n. 2 (CA8
1976) (indicating doubt over whether a money judgment can
be obtained under Title VI). Indeed, the Government's brief in
Lau v. Nichols, supra, succinctly expressed this common
assumption: "It is settled that petitioners . . . have standing to
enforce Section 601. . . ." Brief for United States as Amicus
Curiae in Lau v. Nichols, O.T. 1973, No. 72-6520, p. 13 n. 5.
[Footnote 5/26]
Supplemental Brief for United States as Amicus Curiae 24-34.
The Government's supplemental brief also suggests that there
may be a difference between a private cause of action brought
to end a particular discriminatory practice and such an action
brought to cut off federal funds. Id. at 28-30. Section 601 is
specifically addressed to personal rights, while § 602 -- the
fund cutoff provision -- establishes "an elaborate mechanism
for governmental enforcement by federal agencies."
Supplemental Brief, supra at 28 (emphasis added). Arguably,
private enforcement of this "elaborate mechanism" would not
fit within the congressional scheme, see separate opinion of
MR. JUSTICE WHITE, ante at 438 U. S. 380-383. But Bakke
did not seek to cut off the University's federal funding; he
sought admission to medical school. The difference between
these two courses of action is clear and significant. As the
Government itself states:
"[T]he grant of an injunction or a declaratory judgment in a
private action would not be inconsistent with the
administrative program established by Section 602. . . . A
declaratory judgment or injunction against future
discrimination would not raise the possibility that funds would
be terminated, and it would not involve bringing the forces of
the Executive Branch to bear on state programs; it therefore
would not implicate the concern that led to the limitations
contained in Section 602."
Supplemental Brief, supra at 30 n. 25.
The notion that a private action seeking injunctive or
declaratory judgment relief is inconsistent with a federal
statute that authorizes termination of funds has clearly been
rejected by this Court in prior cases. See Rosado v. Wyman,
397 U. S. 397, 397 U. S. 420.
[Footnote 5/27]
See 29 U.S.C. § 794 (1976 ed.) (the Rehabilitation Act of
1973) (in particular, the legislative history discussed in Lloyd
v. Regional Transportation Authority, 548 F.2d 1277, 1285-
1286 (CA7 1977)); 20 U.S.C. § 1617 (1976 ed.) (attorney fees
under the Emergency School Aid Act); and 31 U.S.C. § 1244
(1976 ed.) (private action under the Financial Assistance Act).
Of course, none of these subsequent legislative enactments is
necessarily reliable evidence of Congress' intent in 1964 in
enacting Title VI, and the legislation was not intended to
change the existing status of Title VI.
[Footnote 5/28]
Framing the analysis in terms of the four-part Cort v. Ash test,
see 422 U. S. 66, 422 U. S. 78, it is clear that all four parts of
the test are satisfied. (1) Bakke's status as a potential
beneficiary of a federally funded program definitely brings
him within the "class for whose especial benefit the statute
was enacted,'" ibid. (emphasis in original). (2) A cause of
action based on race discrimination has not been "traditionally
relegated to state law." Ibid. (3) While a few excerpts from the
voluminous legislative history suggest that Congress did not
intend to create a private cause of action, see opinion of MR.
JUSTICE POWELL, ante at 438 U. S. 283 n. 18, an
examination of the entire legislative history makes it clear that
Congress had no intention to foreclose a private right of
action. (4) There is ample evidence that Congress considered
private causes of action to be consistent with, if not essential
to, the legislative scheme. See, e.g., remarks of Senator
Ribicoff:
"We come then to the crux of the dispute -- how this right [to
participate in federally funded programs without
discrimination] should be protected. And even this issue
becomes clear upon the most elementary analysis. If Federal
funds are to be dispensed on a nondiscriminatory basis, the
only possible remedies must fall into one of two categories:
first, action to end discrimination; or second, action to end the
payment of funds. Obviously action to end discrimination is
preferable, since that reaches the objective of extending the
funds on a nondiscriminatory basis. But if the discrimination
persists and cannot be effectively terminated, how else can the
principle of nondiscrimination be vindicated except by
nonpayment of funds?"
110 Cong.Rec. 7065 (1964). See also id. at 5090, 6543, 6544
(remarks of Sen. Humphrey); id. at 7103, 12719 (remarks of
Sen. Javits); id. at 7062, 7063 (remarks of Sen. Pastore).
The congressional debates thus show a clear understanding
that the principle embodied in § 601 involves personal federal
rights that administrative procedures would not, for the most
part, be able to protect. The analogy to the Voting Rights Act
of 1965, 42 U.S.C. § 1973 et seq. (1970 ed. and Supp. V), is
clear. Both that Act and Title VI are broadly phrased in terms
of personal rights ("no person shall be denied . . ."); both Acts
were drafted with broad remedial purposes in mind; and the
effectiveness of both Acts would be "severely hampered"
without the existence of a private remedy to supplement
administrative procedures. See Allen v. State Bd. of Elections,
393 U. S. 544, 393 U. S. 556. In Allen, of course, this Court
found a private right of action under the Voting Rights Act.
U.S. Supreme Court
Personnel Adm'r of Massachusetts v. Feeney, 442 U.S. 256
(1979)
Personnel Administrator of Massachusetts v. Feeney
No. 78-233
Argued February 26, 1979
Decided June 5, 1979
442 U.S. 256
APPEAL FROM THE UNITED STATES DISTRICT
COURT
FOR THE DISTRICT OF MASSACHUSETTS
Syllabus
During her 12-year tenure as a state employee, appellee, who
is not a veteran, had passed a number of open competitive civil
service examinations for better jobs, but because of
Massachusetts' veterans' preference statute she was ranked in
each instance below male veterans who had achieved lower
test scores than appellee. Under the statute, all veterans who
qualify for state civil service positions must be considered for
appointment ahead of any qualifying nonveterans. The
statutory preference, which is available to "any person, male
or female, including a nurse," who was honorably discharged
from the United States Armed Forces after at least 90 days of
active service, at least one day of which was during "wartime,"
operates overwhelmingly to the advantage of males. Appellee
brought an action in Federal District Court, alleging that the
absolute preference formula established in the Massachusetts
statute inevitably operates to exclude women from
consideration for the best state civil service jobs, and thus
discriminates against women in violation of the Equal
Protection Clause of the Fourteenth Amendment. A three-
judge court declared the statute unconstitutional and enjoined
its operation, finding that, while the goals of the preference
were legitimate and the statute had not been enacted for the
purpose of discriminating against women, the exclusionary
impact upon women was so severe as to require the State to
further its goals through a more limited form of preference. On
an earlier appeal, this Court vacated the judgment and
remanded the case for further consideration in light of the
intervening decision in Washington v. Davis, 426 U. S. 229,
which held that a neutral law does not violate the Equal
Protection Clause solely because it results in a racially
disproportionate impact, and that, instead, the disproportionate
impact must be traced to a purpose to discriminate on the basis
of race. Upon remand, the District Court reaffirmed its
original judgment, concluding that a veterans' hiring
preference is inherently nonneutral, because it favors a class
from which women have traditionally been excluded, and that
the consequences of the Massachusetts absolute preference
formula for the
Page 442 U. S. 257
employment opportunities of women were too inevitable to
have been "unintended."
Held: Massachusetts, in granting an absolute lifetime
preference to veterans, has not discriminated against women in
violation of the Equal Protection Clause of the Fourteenth
Amendment. Pp. 442 U. S. 271-281.
(a) Classifications based upon gender must bear a close and
substantial relationship to important governmental objectives.
Although public employment is not a constitutional right and
the States have wide discretion in framing employee
qualifications, any state law overtly or covertly designed to
prefer males over females in public employment would require
an exceedingly persuasive justification to withstand a
constitutional challenge under the Equal Protection Clause.
Pp. 442 U. S. 271-273.
(b) When a statute gender-neutral on its face is challenged on
the ground that its effects upon women are disproportionably
adverse, a twofold inquiry is appropriate. The first question is
whether the statutory classification is indeed neutral in the
sense that it is not gender-based. If the classification itself,
covert or overt, is not based upon gender, the second question
is whether the adverse effect reflects invidious gender-based
discrimination. Pp. 442 U. S. 273-274.
(c) Here, the appellee's concession and the District Court's
finding that the Massachusetts statute is not a pretext for
gender discrimination are clearly correct. Apart from the facts
that the definition of "veterans" in the statute has always been
neutral as to gender and that Massachusetts has consistently
defined veteran status in a way that has been inclusive of
women who have served in the military, this is not a law that
can plausibly, or even rationally, be explained only as a
gender-based classification. Significant numbers of
nonveterans are men, and all nonveterans -- male as well as
female -- are placed at a disadvantage. The distinction made
by the Massachusetts statute is, as it seems to be, quite simply
between veterans and nonveterans, not between men and
women. Pp. 442 U. S. 274-275.
(d) Appellee's contention that this veterans' preference is
"inherently nonneutral" or "gender-biased" in the sense that it
favors a status reserved under federal military policy primarily
to men is wholly at odds with the District Court's central
finding that Massachusetts has not offered a preference to
veterans for the purpose of discriminating against women; nor
can it be reconciled with the assumption made by both the
appellee and the District Court that a more limited hiring
preference for veterans could be sustained, since the degree of
the preference makes no constitutional difference. Pp. 442 U.
S. 276-278.
(e) While it would be disingenuous to say that the adverse
consequences of this legislation for women were unintended,
in the sense
Page 442 U. S. 258
that they were not volitional or in the sense that they were not
foreseeable, nevertheless "discriminatory purpose" implies
more than intent as volition or intent as awareness of
consequences; it implies that the decisionmaker selected or
reaffirmed a particular course of action at least in part
"because of," not merely "in spite of," its adverse effects upon
an identifiable group. When the totality of legislative actions
establishing and extending the Massachusetts veterans'
preference are considered, the law remains what it purports to
be: a preference for veterans of either sex over nonveterans of
either sex, not for men over women. Pp. 442 U. S. 278-280.
(f) Although absolute and permanent preferences have always
been subject to the objection that they give the veteran more
than a square deal, the Fourteenth Amendment "cannot be
made a refuge from ill-advised . . . laws." District of Columbia
v. Brooke, 214 U. S. 138, 214 U. S. 150. The substantial edge
granted to veterans by the Massachusetts statute may reflect
unwise policy, but appellee has simply failed to demonstrate
that the law in any way reflects a purpose to discriminate on
the basis of sex. Pp. 442 U. S. 280-281.
451 F.Supp. 143, reversed and remanded.
STEWART, J., delivered the opinion of the Court, in which
BURGER, C.J., and WHITE, POWELL, BLACKMUN,
REHNQUIST, and STEVENS, JJ., joined. STEVENS, J., filed
a concurring opinion, in which WHITE, J., joined, post, p. 442
U. S. 281. MARSHALL, J., filed a dissenting opinion, in
which BRENNAN, J., joined, post, p. 442 U. S. 281.
Page 442 U. S. 259
MR. JUSTICE STEWART delivered the opinion of the Court.
This case presents a challenge to the constitutionality of the
Massachusetts veterans' preference statute, Mass.Gen.Laws
Ann., ch. 31, § 23, on the ground that it discriminates against
women in violation of the Equal Protection Clause of the
Fourteenth Amendment. Under ch. 31, § 23, [Footnote 1] all
veterans who qualify for state civil service positions must be
considered for appointment ahead of any qualifying
nonveterans. The preference operates overwhelmingly to the
advantage of males.
The appellee Helen B. Feeney is not a veteran. She brought
this action pursuant to 42 U.S.C. § 1983, alleging that the
absolute preference formula established in ch. 31, § 23,
inevitably operates to exclude women from consideration for
the best Massachusetts civil service jobs, and us
unconstitutionally denies them the equal protection of the
laws. [Footnote 2] The three-judge District Court agreed, one
judge dissenting. Anthony v. Massachusetts, 415 F.Supp. 485
(Mass.1976). [Footnote 3]
Page 442 U. S. 260
The District Court found that the absolute preference afforded
by Massachusetts to veterans has a devastating impact upon
the employment opportunities of women. Although it found
that the goals of the preference were worthy and legitimate
and that the legislation had not been enacted for the purpose of
discriminating against women, the court reasoned that its
exclusionary impact upon women was nonetheless so severe
as to require the State to further its goals through a more
limited form of preference. Finding that a more modest
preference formula would readily accommodate the State's
interest in aiding veterans, the court declared ch. 31, § 23,
unconstitutional, and enjoined its operation. [Footnote 4]
Upon an appeal taken by the Attorney General of
Massachusetts, [Footnote 5] this Court vacated the judgment
and remanded the case for further consideration in light of our
intervening decision in Washington v. Davis, 426 U. S. 229.
Massachusetts v. Feeney, 434 U.S. 884. The Davis case held
that a neutral law does not violate the Equal Protection Clause
solely because it results in a racially disproportionate impact;
instead, the disproportionate impact must be traced to a
purpose to discriminate on the basis of race. 426 U.S. at 426
U. S. 238-244.
Upon remand, the District Court, one judge concurring and
one judge again dissenting, concluded that a veterans' hiring
preference is inherently nonneutral because it favors a class
from which women have traditionally been excluded, and that
Page 442 U. S. 261
the consequences of the Massachusetts absolute preference
formula for the employment opportunities of women were too
inevitable to have been "unintended." Accordingly, the court
reaffirmed its original judgment. Feeney v. Massachussets,
451 F.Supp. 143. The Attorney General again appealed to this
Court pursuant to 28 U.S.C. § 1253, and probable jurisdiction
of the appeal was noted. 439 U.S. 891.
I
A B
The Federal Government and virtually all of the States grant
some sort of hiring preference to veterans. [Footnote 6] The
Massachusetts preference, which is loosely termed an
"absolute lifetime" preference, is among the most generous
[Footnote 7] It
Page 442 U. S. 262
applies to all positions in the State's classified civil service,
which constitute approximately 60% of the public jobs in the
State. It is available to "any person, male or female, including
a nurse," who was honorably discharged from the United
States Armed Forces after at least 90 days of active service, at
least one day of which was during "wartime." [Footnote 8]
Persons who are deemed veterans and who are otherwise
qualified for a particular civil service job may exercise the
preference at any time and as many times as they wish.
[Footnote 9]
Page 442 U. S. 263
Civil service positions in Massachusetts fall into two general
categories, labor and official. For jobs in the official service,
with which the proofs in this action were concerned, the
preference mechanics are uncomplicated. All applicants for
employment must take competitive examinations. Grades are
based on a formula that gives weight both to objective test
results and to training and experience. Candidates who pass
are then ranked in the order of their respective scores on an
"eligible list." Chapter 31, § 23, requires, however, that
disabled veterans, veterans, and surviving spouses and
surviving parents of veterans be ranked -- in the order of their
respective scores -- above all other candidates. [Footnote 10]
Rank on the eligible list and availability for employment are
the sole factors that determine which candidates are
considered for appointment to an official civil service position.
When a public agency has a vacancy, it requisitions a list of
"certified eligibles" from the state personnel division. Under
formulas prescribed by civil service rules, a small number of
candidates from the top of an appropriate list, three if there is
only one vacancy, are certified. The appointing agency
Page 442 U. S. 264
is then required to choose from among these candidates.
[Footnote 11] Although the veterans' preference thus does not
guarantee that a veteran will be appointed, it is obvious that
the preference gives to veterans who achieve passing scores a
well nigh absolute advantage.
The appellee has lived in Dracut, Mass., most of her life. She
entered the workforce in 1948, and for the next 14 years
worked at a variety of jobs in the private sector. She first
entered the state civil service system in 1963, having
competed successfully for a position as Senior Clerk
Stenographer in the Massachusetts Civil Defense Agency.
There she worked for four years. In 1967, she was promoted to
the position of Federal Funds and Personnel Coordinator in the
same agency. The agency, and with it her job, was eliminated
in 1975.
During her 12-year tenure as a public employee, Ms. Feeney
took and passed a number of open competitive civil service
examinations. On several she did quite well, receiving in 1971
the second highest score on an examination for a job with the
Board of Dental Examiners, and in 1973 the third highest on a
test for an Administrative Assistant position with a mental
health center. Her high scores, however, did not win her a
place on the certified eligible list. Because of the veterans'
preference, she was ranked sixth behind five male veterans on
the Dental Examiner list. She was not certified, and a lower
scoring veteran was eventually appointed. On the 1973
examination, she was placed in a position on the list behind 12
male veterans, 11 of whom had lower scores. Following the
other examinations that she took, her name was similarly
ranked below those of veterans who had achieved passing
grades.
Page 442 U. S. 265
Ms. Feeney's interest in securing a better job in state
government did not wane. Having been consistently eclipsed
by veterans, however, she eventually concluded that further
competition for civil service positions of interest to veterans
would be futile. In 1975, shortly after her civil defense job was
abolished, she commenced this litigation
C same as that settled upon in 1919. This absolute preference --
The veterans' hiring preference in Massachusetts, as in other
jurisdictions, has traditionally been justified as a measure
designed to reward veterans for the sacrifice of military
service, to ease the transition from military to civilian life, to
encourage patriotic service, and to attract loyal and well
disciplined people to civil service occupations. [Footnote 12]
See, e.g., Hutcheson v. Director of Civil Service, 361 Mass.
48, 281 N.E.2d 53 (1972). The Massachusetts law dates back
to 1884, when the State, as part of its first civil service
legislation, gave a statutory preference to civil service
applicants who were Civil War veterans if their qualifications
were equal to those of nonveterans. 1884 Mass. Acts, ch. 320,
§ 14 (sixth). This tie-breaking provision blossomed into a truly
absolute preference in 1895, when the State enacted its first
general veterans' preference law and exempted veterans from
all merit selection requirements. 1895 Mass Acts, ch. 51, § 2.
In response to a challenge brought by a male nonveteran, this
statute was declared violative of state constitutional provisions
guaranteeing that government should be
Page 442 U. S. 266
for the "common good" and prohibiting hereditary titles.
Brown v. Russell, 166 Mass. 14, 43 N.E. 1005 (1896).
The current veterans' preference law has its origins in an 1896
statute, enacted to meet the state constitutional standards
enunciated in Brown v. Russell. That statute limited the
absolute preference to veterans who were otherwise qualified.
[Footnote 13] A closely divided Supreme Judicial Court, in an
advisory opinion issued the same year, concluded that the
preference embodied in such a statute would be valid. Opinion
of the Justices, 166 Mass. 589, 44 N.E. 625 (1896). In 1919,
when the preference was extended to cover the veterans of
World War I, the formula was further limited to provide for a
priority in eligibility, in contrast to an absolute preference in
hiring. [Footnote 14] See Corliss v. Civil Service Comm'rs,
242 Mass. 61, 136 N.E. 356 (1922). In Mayor of Lynn v.
Commissioner of Civil Service, 269 Mass. 410, 414, 169 N.E.
502, 503-504 (1929), the Supreme Judicial Court, adhering to
the views expressed in its 1896 advisory opinion, sustained
this statute against a state constitutional challenge.
Since 1919, the preference has been repeatedly amended to
cover persons who served in subsequent wars, declared or
Page 442 U. S. 267
undeclared. See 1943 Mass Acts, ch.194; 1949 Mass. Acts, ch.
642, § 2 (World War II); 1954 Mass. Acts, ch. 627 (Korea);
1968 Mass. Acts, ch. 531, § 1 (Vietnam). [Footnote 15] The
current preference formula in ch. 31, § 23, is substantially the
even as modified in 1919 -- has never been universally
popular. Over the years, it has been subjected to repeated legal
challenges, see Hutcheson v. Director of Civil Service, supra,
(collecting cases), to criticism by civil service reform groups,
see, e.g., Report of the Massachusetts Committee on Public
Service on Initiative Bill Relative to Veterans' Preference, S.
No. 279 (1926); Report of Massachusetts Special Commission
on Civil Service and Public Personnel Administration 373
(June 15, 1967), and, in 1926, to a referendum in which it was
reaffirmed by a majority of 51.9%. See id. at 38. The present
case is apparently the first to challenge the Massachusetts
veterans' preference on the simple ground that it discriminates
on the basis of sex. [Footnote 16]
D
The first Massachusetts veterans' preference statute defined
the term "veterans" in gender-neutral language. See
Page 442 U. S. 268
1896 Mass.Acts, ch. 517 § 1 ("a person" who served in the
United States Army or Navy), and subsequent amendments
have followed this pattern, see, e.g., 1919 Mass. Acts, ch. 150,
§ 1 ("any person who has served . . ."); 1954 Mass Acts, ch.
627, § 1 ("any person, male or female, including a nurse").
Women who have served in official United States military
units during wartime, then, have always been entitled to the
benefit of the preference. In addition, Massachusetts, through
a 1943 amendment to the definition of "wartime service,"
extended the preference to women who served in unofficial
auxiliary women's units. 1943 Mass. Acts, ch.194. [Footnote
17]
When the first general veterans' preference statute was adopted
in 1896, there were no women veterans. [Footnote 18] The
statute, however, covered only Civil War veterans. Most of
them were beyond middle age, and relatively few were
actively competing for public employment. [Footnote 19]
Thus, the impact of
Page 442 U. S. 269
the preference upon the employment opportunities of
nonveterans as a group and women in particular was slight.
[Footnote 20]
Notwithstanding the apparent attempts by Massachusetts to
include as many military women as possible within the scope
of the preference, the statute today benefits an
overwhelmingly male class. This is attributable in some
measure to the variety of federal statutes, regulations, and
policies that have restricted the number of women who could
enlist in the United States Armed Forces, [Footnote 21] and
largely to the simple
Page 442 U. S. 270
fact that women have never been subjected to a military draft.
See generally Binkin and Bach 21.
When this litigation was commenced, then, over 98% of the
veterans in Massachusetts were male; only 1.8% were female.
And over one-quarter of the Massachusetts population were
veterans. During the decade between 1963 and 1973, when the
appellee was actively participating in the State's merit
selection system, 47,005 new permanent appointments were
made in the classified official service. Forty-three percent of
those hired were women, and 57% were men. Of the women
appointed, 1.8% were veterans, while 54% of the men had
veteran status. A large unspecified percentage of the female
appointees were serving in lower paying positions for which
males traditionally had not applied. [Footnote 22]
Page 442 U. S. 271
On each of 50 sample eligible lists that are part of the record
in this case, one or more women who would have been
certified as eligible for appointment on the basis of test results
were displaced by veterans whose test scores were lower.
At the outset of this litigation, appellants conceded that, for
"many of the permanent positions for which males and
females have competed," the veterans' preference has "resulted
in a substantially greater proportion of female eligibles than
male eligibles" not being certified for consideration. The
impact of the veterans' preference law upon the public
employment opportunities of women has thus been severe.
This impact lies at the heart of the appellee's federal
constitutional claim.
II
The sole question for decision on this appeal is whether
Massachusetts, in granting an absolute lifetime preference to
veterans, has discriminated against women in violation of the
Equal Protection Clause of the Fourteenth Amendment.
A
The equal protection guarantee of the Fourteenth Amendment
does not take from the States all power of classification.
Massachusetts Bd. of Retirement v. Muria, 427 U. S. 307, 427
U. S. 314. Most laws classify, and many affect certain groups
Page 442 U. S. 272
unevenly, even though the law itself treats them no differently
from all other members of the class described by the law.
When the basic classification is rationally based, uneven
effects upon particular groups within a class are ordinarily of
no constitutional concern. New York City Transit Authority v.
Beazer, 440 U. S. 568; Jefferson v. Hackney, 406 U. S. 535,
406 U. S. 548. Cf. James v. Valtierra, 402 U. S. 137. The
calculus of effects, the manner in which a particular law
reverberates in a society, is a legislative, and not a judicial,
responsibility. Dandridge v. Williams, 397 U. S. 471; San
Antonio School Dist. v. Rodriguez, 411 U. S. 1. In assessing
an equal protection challenge, a court is called upon only to
measure the basic validity of the legislative classification.
Barrett v. Indiana, 229 U. S. 26, 229 U. S. 29-30; Railway
Express Agency v. New York, 336 U. S. 106. When some
other independent right is not at stake, see, e.g., Shapiro v.
Thompson, 394 U. S. 618, and when there is no "reason to
infer antipathy," Vance v. Bradley, 440 U. S. 93, 440 U. S. 97,
it is presumed that "even improvident decisions will
eventually be rectified by the democratic process. . . ." Ibid.
Certain classifications, however, in themselves supply a
reason to infer antipathy. Race is the paradigm. A racial
classification, regardless of purported motivation, is
presumptively invalid, and can be upheld only upon an
extraordinary justification. Brown. v. Board of Education, 347
U. S. 483; McLaughlin v. Florida, 379 U. S. 184. This rule
applies as well to a classification that is ostensibly neutral but
is an obvious pretext for racial discrimination. Yick Wo v.
Hopkins, 118 U. S. 356; Guinn v. United States, 238 U. S.
347; cf. Lane v. Wilson, 307 U. S. 268; Gomillion v.
Lightfoot, 364 U. S. 339. But, as was made clear in
Washington v. Davis, 426 U. S. 229, and Arlington Heights v.
Metropolitan Housing Dev. Corp., 429 U. S. 252, even if a
neutral law has a disproportionately adverse effect upon a
racial minority, it is unconstitutional under the Equal
Protection Clause only if that impact can be traced to a
discriminatory purpose.
Page 442 U. S. 273

Classifications based upon gender, not unlike those based
upon race, have traditionally been the touchstone for pervasive
and often subtle discrimination. Caban v. Mohammed, 441 U.
S. 380, 441 U. S. 398 (STEWART, J., dissenting). This
Court's recent cases teach that such classifications must bear a
close and substantial relationship to important governmental
objectives, Craig v. Boren, 429 U. S. 190, 429 U. S. 197, and
are in many settings unconstitutional. Reed v. Reed, 404 U. S.
71; Frontiero v. Richardson, 411 U. S. 677; Weinberger v.
Wiesenfeld, 420 U. S. 636; Craig v. Boren, supra; Califano v
Goldfarb, 430 U. S. 199; Orr v. Orr, 440 U. S. 268; Caban v.
Mohammed, supra. Although public employment is not a
constitutional right, Massachusetts Bd. of Retirement v.
Murgia, supra, and the States have wide discretion in framing
employee qualifications, see, e.g., New York City Transit
Authority v. Beazer, supra, these precedents dictate that any
state law overtly or covertly designed to prefer males over
females in public employment would require an exceedingly
persuasive justification to withstand a constitutional challenge
under the Equal Protection Clause of the Fourteenth
Amendment.
B acknowledged, and the District Court has thus found,
The cases of Washington v. Davis, supra, and Arlington
Heights v. Metropolitan Hosing Dev. Corp., supra, recognize
that, when a neutral law has a disparate impact upon a group
that has historically been the victim of discrimination, an
unconstitutional purpose may still be at work. But those cases
signaled no departure from the settled rule that the Fourteenth
Amendment guarantees equal laws, not equal results. Davis
upheld a job-related employment test that white people passed
in proportionately greater numbers than Negroes, for there had
been no showing that racial discrimination entered into the
establishment or formulation of the test. Arlington Heights
upheld a zoning board decision that tended to perpetuate
racially segregated housing patterns,
Page 442 U. S. 274
since, apart from its effect, the board's decision was shown to
be nothing more than an application of a constitutionally
neutral zoning policy. Those principles apply with equal force
to a case involving alleged gender discrimination.
When a statute gender-neutral on its face is challenged on the
ground that its effects upon women are disproportionably
adverse, a twofold inquiry is thus appropriate. The first
question is whether the statutory classification is indeed
neutral in the sense that it is not gender-based. If the
classification itself, covert or overt, is not based upon gender,
the second question is whether the adverse effect reflects
invidious gender-based discrimination. See Arlington Heights
v. Metropolitan Housing Dev. Corp., supra. In this second
inquiry, impact provides an "important starting point," 429
U.S. at 429 U. S. 266, but purposeful discrimination is "the
condition that offends the Constitution." Swann v. Charlotte-
Mecklenburg Board of Education, 402 U. S. 1, 402 U. S. 16.
It is against this background of precedent that we consider the
merits of the case before us.
III
A
The question whether ch. 31, § 23, establishes a classification
that is overtly or covertly based upon gender must first be
considered. The appellee has conceded that ch. 31, § 23, is
neutral on its face. She has also acknowledged that state hiring
preferences for veterans are not per se invalid, for she has
limited her challenge to the absolute lifetime preference that
Massachusetts provides to veterans. The District Court made
two central findings that are relevant here: first, that ch. 31, §
23, serves legitimate and worthy purposes; second, that the
absolute preference was not established for the purpose of
discriminating against women. The appellee has thus
Page 442 U. S. 275
that the distinction between veterans and nonveterans drawn
by ch. 31, § 23, is not a pretext for gender discrimination. The
appellee's concession and the District Court's finding are
clearly correct.
If the impact of this statute could not be plausibly explained
on a neutral ground, impact itself would signal that the real
classification made by the law was in fact not neutral. See
Washington v. Davis, 426 U.S. at 426 U. S. 242; Arlington
Heights v. Metropolitan Hosing Dev. Corp., supra, at 429 U.
S. 266. But there can be but one answer to the question
whether this veteran preference excludes significant numbers
of women from preferred state jobs because they are women
or because they are nonveterans. Apart from the facts that the
definition of "veterans" in the statute has always been neutral
as to gender and that Massachusetts has consistently defined
veteran status in a way that has been inclusive of women who
have served in the military, this is not a law that can plausibly
be explained only as a gender-based classification. Indeed, it is
not a law that can rationally be explained on that ground.
Veteran status is not uniquely male. Although few women
benefit from the preference, the nonveteran class is not
substantially all female. To the contrary, significant numbers
of nonveterans are men, and all nonveterans -- male as well as
female -- are placed at a disadvantage. Too many men are
affected by ch. 31, § 23, to permit the inference that the statute
is but a pretext for preferring men over women.

Moreover, as the District Court implicitly found, the purposes
of the statute provide the surest explanation for its impact. Just
as there are cases in which impact alone can unmask an
invidious classification, cf. Yick Wo v. Hopkins, 118 U. S.
356, there are others, in which -- notwithstanding impact -- the
legitimate noninvidious purposes of a law cannot be missed.
This is one. The distinction made by ch. 31, § 23, is, as it
seems to be, quite simply between veterans and nonveterans,
not between men and women.
Page 442 U. S. 276
B enacted or subsequently reaffirmed for the purpose of giving
The dispositive question, then, is whether the appellee has
shown that a gender-based discriminatory purpose has, at least
in some measure, shaped the Massachusetts veterans'
preference legislation. As did the District Court, she points to
two basic factors which, in her view, distinguish ch. 31, § 23,
from the neutral rules at issue in the Washington v. Davis and
Arlington Heights cases. The first is the nature of the
preference, which is said to be demonstrably gender-biased in
the sense that it favors a status reserved under federal military
policy primarily to men. The second concerns the impact of
the absolute lifetime preference upon the employment
opportunities of women, an impact claimed to be too
inevitable to have been unintended. The appellee contends that
these factors, coupled with the fact that the preference itself
has little if any relevance to actual job performance, more than
suffice to prove the discriminatory intent required to establish
a constitutional violation.
1
The contention that this veterans' preference is "inherently
nonneutral" or "gender-biased" presumes that the State, by
favoring veterans, intentionally incorporated into its public
employment policies the panoply of sex-based and assertedly
discriminatory federal laws that have prevented all but a
handful of women from becoming veterans. There are two
serious difficulties with this argument. First, it is wholly at
odds with the District Court's central finding that
Massachusetts has not offered a preference to veterans for the
purpose of discriminating against women. Second, it cannot be
reconciled with the assumption made by both the appellee and
the District Court that a more limited hiring preference for
veterans could be sustained. Taken together, these difficulties
are fatal.
To the extent that the status of veteran is one that few
Page 442 U. S. 277
women have been enabled to achieve, every hiring preference
for veterans, however modest or extreme, is inherently gender-
biased. If Massachusetts, by offering such a preference, can be
said intentionally to have incorporated into its state
employment policies the historical gender-based federal
military personnel practices, the degree of the preference
would or should make no constitutional difference. Invidious
discrimination does not become less so because the
discrimination accomplished is of a lesser magnitude.
[Footnote 23] Discriminatory intent is simply not amenable to
calibration. It either is a factor that has influenced the
legislative choice or it is not. The District Court's conclusion
that the absolute veterans' preference was not originally
an advantage to males as such necessarily compels the
conclusion that the State intended nothing more than to prefer
"veterans." Given this finding, simple logic suggests that an
intent to exclude women from significant public jobs was not
at work in this law. To reason that it was, by describing the
preference as "inherently nonneutral" or "gender-biased," is
merely to restate the fact of impact, not to answer the question
of intent.
To be sure, this case is unusual in that it involves a law that,
by design, is not neutral. The law overtly prefers veterans as
such. As opposed to the written test at issue in Davis, it does
not purport to define a job-related characteristic. To the
contrary, it confers upon a specifically described group --
perceived to be particularly deserving -- a competitive
headstart. But the District Court found, and the appellee has
not disputed, that this legislative choice was legitimate. The
basic distinction between veterans and nonveterans, having
been found not gender-based, and the goals of the
Page 442 U. S. 278
preference having been found worthy, ch. 31 must be analyzed
as is any other neutral law that casts a greater burden upon
women as a group than upon men as a group. The enlistment
policies of the Armed Services may well have discriminated
on the basis of sex. See Frontiero v. Richardson, 411 U. S.
677; cf. Schlesinger v. Ballard, 419 U. S. 498. But the history
of discrimination against women in the military is not on trial
in this case.
2
The appellee's ultimate argument rests upon the presumption,
common to the criminal and civil law, that a person intends the
natural and foreseeable consequences of his voluntary actions.
Her position was well stated in the concurring opinion in the
District Court:
"Conceding . . . that the goal here was to benefit the veteran,
there is no reason to absolve the legislature from awareness
that the means chosen to achieve this goal would freeze
women out of all those state jobs actively sought by men. To
be sure, the legislature did not wish to harm women. But the
cutting-off of women's opportunities was an inevitable
concomitant of the chosen scheme -- as inevitable as the
proposition that, if tails is up, heads must be down. Where a
law's consequences are that inevitable, can they meaningfully
be described as unintended?"
451 F.Supp. at 151.
This rhetorical question implies that a negative answer is
obvious, but it is not. The decision to grant a preference to
veterans was, of course, "intentional." So, necessarily, did an
adverse impact upon nonveterans follow from that decision.
And it cannot seriously be argued that the Legislature of
Massachusetts could have been unaware that most veterans are
men. It would thus be disingenuous to say that the adverse
consequences of this legislation for women were unintended in
the sense that they were not volitional or in the sense that they
were not foreseeable.
Page 442 U. S. 279
"Discriminatory purpose," however, implies more than intent
as volition or intent as awareness of consequences. See United
Jewish Organizations v. Carey, 430 U. S. 144, 430 U. S. 179
(concurring opinion). [Footnote 24] It implies that the
decisionmaker, in this case a state legislature, selected or
reaffirmed a particular course of action at least in part
"because of," not merely "in spite of," its adverse effects upon
an identifiable group. [Footnote 25] Yet nothing in the record
demonstrates that this preference for veterans was originally
devised or subsequently reenacted because it would
accomplish the collateral goal of keeping women in a
stereotypic and predefined place in the Massachusetts Civil
Service.
To the contrary, the statutory history shows that the benefit of
the preference was consistently offered to "any person" who
was a veteran. That benefit has been extended to women under
a very broad statutory definition of the term veteran. [Footnote
26] The preference formula itself, which is the focal
Page 442 U. S. 280
point of this challenge, was first adopted -- so it appears from
this record -- out of a perceived need to help a small group of
older Civil War veterans. It has since been reaffirmed and
extended only to cover new veterans. [Footnote 27] When the
totality of legislative actions establishing and extending the
Massachusetts veterans' preference are considered, see
Washington v. Davis, 426 U.S. at 426 U. S. 242, the law
remains what it purports to be: a preference for veterans of
either sex over nonveterans of either sex, not for men over
women.
IV
Veterans' hiring preferences represent an awkward -- and,
many argue, unfair -- exception to the widely shared view that
merit and merit alone should prevail in the employment
policies of government. After a war, such laws have been
enacted virtually without opposition. During peacetime, they
inevitably have come to be viewed in many quarters as
undemocratic and unwise. [Footnote 28] Absolute and
permanent preferences, as the troubled history of this law
demonstrates, have always been subject to the objection that
they give the veteran
Page 442 U. S. 281
more than a square deal. But the Fourteenth Amendment
"cannot be made a refuge from ill-advised . . . laws." District
of Columbia v. Brooke, 214 U. S. 138, 214 U. S. 150. The
substantial edge granted to veterans by ch. 31, § 23, may
reflect unwise policy. The appellee, however, has simply
failed to demonstrate that the law in any way reflects a
purpose to discriminate on the basis of sex.
The judgment is reversed, and the case is remanded for further
proceedings consistent with this opinion.
It is so ordered.
[Footnote 1]
For the text of ch. 31, § 23, see n 10, infra. The general
Massachusetts Civil Service law, Mass.Gen.Laws Ann., ch.
31, was recodified on January 1, 1979, 1978 Mass. Acts, ch.
393, and the veterans' preference is now found at
Mass.Gen.Laws Ann., ch. 31, § 26 (West 1979). Citations in
this opinion, unless otherwise indicated, are to the ch. 31
codification in effect when this litigation was commenced.
[Footnote 2]
No statutory claim was brought under Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e et seq. Section 712 of
the Act, 42 U.S.C. § 2000e-11, provides that
"[n]othing contained in this subchapter shall be construed to
repeal or modify any Federal, State, territorial or local law
creating special rights or preference for veterans."
The parties have evidently assumed that this provision
precludes a Title VII challenge.

[Footnote 3]
The appellee's case had been consolidated with a similar
action brought by Carol A. Anthony, a lawyer whose efforts to
obtain a civil service Counsel I position had been frustrated by
ch. 31, § 23. In 1975, Massachusetts exempted all attorney
positions from the preference, 1975 Mass. Acts, ch. 134, and
Anthony's claims were accordingly found moot by the District
Court. Anthony v. Massachusetts, 415 F.Supp. at 495.
[Footnote 4]
The District Court entered a stay pending appeal, but the stay
was rendered moot by the passage of an interim statute
suspending ch. 31, § 23, pending final judgment and replacing
it with an interim provision granting a modified point
preference to veterans. 1976 Mass. Acts, ch. 200, now codified
at Mass.Gen.Laws Ann., ch. 31, § 26 (West 1979).
[Footnote 5]
The Attorney General appealed the judgment over the
objection of other state officers named as defendants. In
response to our certification of the question whether
Massachusetts law permits this, see Massachusetts v. Feeney,
429 U. S. 66, the Supreme Judicial Court answered in the
affirmative. Feeney v. Commonwealth, 373 Mass. 359, 366
N.E.2d 1262 (1977)
[Footnote 6]
The first comprehensive federal veterans' statute was enacted
in 1944. Veterans' Preference Act of 1944, 58 Stat. 387. The
Federal Government has, however, engaged in preferential
hiring of veterans, through official policies and various special
laws, since the Civil War. See, e.g., Res. of Mar 3, 1865, No.
27, 13 Stat. 571 (hiring preference for disabled veterans). See
generally House Committee on Veterans' Affairs, The
Provision of Federal Benefits for Veterans, An Historical
Analysis of Major Veterans' Legislation, 1862-1954, 84th
Cong., 1st Sess., 258-265 (Comm.Print 1955). For surveys of
state veterans' preference laws, many of which also date back
to the late 19th century, see State Veterans' Laws, Digests of
State Laws Regarding Rights, Benefits, and Privileges of
Veterans and Their Dependents, House Committee on
Veterans' Affairs, 91st Cong., 1st Sess. (1969); Fleming &
Shanor, Veterans Preferences in Public Employment:
Unconstitutional Gender Discrimination?, 26 Emory L.J. 13
(1977).
[Footnote 7]
The forms of veterans' hiring preferences vary widely. The
Federal Government and approximately 41 States grant
veterans a point advantage on civil service examinations,
usually 10 points for a disabled veteran and 5 for one who is
not disabled. See Fleming & Shanor, supra, n 6, at 17, and n.
12 (citing statutes). A few offer only tie-breaking preferences.
Id. at n. 14 (citing statutes). A very few States, like
Massachusetts, extend absolute hiring or positional
preferences to qualified veterans. Id. at n. 13. See, e.g., N. J
Stat.Ann. § 11: 27-4 (West 1976); S.D.Comp.Laws Ann. § 3-
3-1 (1974); Utah Code Ann. § 34-30-11 (1953);
Wash.Rev.Code §§ 41.04.010, 73.16.010 (1976).
[Footnote 8]
Massachusetts Gen.Laws Ann., ch. 4, § 7, Forty-third (West
1976), which supplies the general definition of the term
"veteran," reads in pertinent part:
"'Veteran' shall mean any person, male or female, including a
nurse, (a) whose last discharge or release from his wartime
service, as defined herein, was under honorable conditions and
who (b) served in the army, navy, marine corps, coast guard,
or air force of the United States for not less than ninety days
active service, at least one day of which was for wartime
service. . . ."
Persons awarded the Purple Heart, ch. 4, § 7, Forty-third, or
one of a number of specified campaign badges or the
Congressional Medal of Honor are also deemed veterans.
Mass.Gen.Laws Ann., ch. 31, § 26 (West 1979).
"Wartime service" is defined as service performed by a
"Spanish War veteran," a "World War I veteran," a "World
War II veteran," a "Korean veteran," a "Vietnam veteran," or a
member of the "WAAC." Mass.Gen.Laws Ann., ch. 4, § 7,
Forty-third (West 1976). Each of these terms is further defined
to specify a period of service. The statutory definitions, taken
together, cover the entire period from September 16, 1940, to
May 7, 1975. See ibid.
"WAAC" is defined as follows:
"any woman who was discharged and so served in any corps
or unit of the United States established for the purpose of
enabling women to serve with, or as auxiliary to, the armed
forces of the United States and such woman shall be deemed
to be a veteran."
Ibid.
[Footnote 9]
The Massachusetts preference law formerly imposed a
residency requirement, see 1954 Mass. Acts, ch. 627, § 3
(eligibility conditioned upon Massachusetts domicile prior to
induction or five years' residency in State). The distinction was
invalidated as violative of the Equal Protection Clause in
Stevens v. Campbell, 332 F.Supp. 102, 105 (Mass.1971). Cf.
August v. Bronstein, 369 F.Supp. 190 (SDNY 1974)
(upholding, inter alia, nondurational residency requirement in
New York veterans' preference statute), summarily aff'd, 417
U.S. 901.
[Footnote 10]
Chapter 31, § 23, provides in full:
"The names of persons who pass examinations for
appointment to any position classified under the civil service
shall be placed upon the eligible lists in the following order: --
" placed upon the . . . eligible lists in the order of their
"(1) Disabled veterans . . . in the order of their respective
standing; (2) veterans in the order of their respective standing;
(3) persons described in section twenty-three B [the widow or
widowed mother of a veteran killed in action or who died from
a service-connected disability incurred in wartime service and
who has not remarried] in the order of their respective
standing; (4) other applicants in the order of their respective
standing. Upon receipt of a requisition, names shall be
certified from such lists according to the method of
certification prescribed by the civil service rules. A disabled
veteran shall be retained in employment in preference to all
other persons, including veterans."
A 1977 amendment extended the dependents' preference to
"surviving spouses," and "surviving parents." 1977 Mass.
Acts, ch. 815.
[Footnote 11]
A 1978 amendment requires the appointing authority to file a
written statement of reasons if the person whose name was not
highest is selected. 1978 Mass. Acts, ch. 393, § 11, currently
codified at Mass.Gen.Laws Ann., ch. 31, § 27 (West 1979).
[Footnote 12]
Veterans' preference laws have been challenged so often that
the rationale in their support has become essentially
standardized. See, e.g., Koelfgen v. Jackson, 355 F.Supp. 243
(Minn.1972), summarily aff'd, 410 U.S. 976; August v.
Bronstein, supra; Rios v. Dillman, 499 F.2d 329 (CA5 1974);
cf. Mitchell v. Cohen, 333 U. S. 411, 333 U. S. 419 n. 12. See
generally Blumberg, De Facto and De Jure Sex Discrimination
Under the Equal Protection Clause: A Reconsideration of the
Veterans' Preference in Public Employment, 26 Buffalo
L.Rev. 3 (1977). For a collection of early cases, see Annot.,
Veterans' Preference Laws, 161 A.L.R. 494 (1946).
[Footnote 13]
1896 Mass. Acts, ch. 517, § 2. The statute provided that
veterans who passed examinations should "be preferred in
appointment to all persons not veterans. . . ." A proviso stated:
"But nothing herein contained shall be construed to prevent
the certification and employment of women."
[Footnote 14]
1919 Mass. Acts, ch. 150, § 2. The amended statute provided
that
"the names of veterans who pass examinations . . . shall be
respective standing, above the names of all other applicants,"
and further provided that. "upon receipt of a requisition not
especially calling for women, names shall be certified from
such lists. . . ." The exemption for "women's requisitions" was
retained in substantially this form in subsequent revisions, see,
e.g., 1954 Mass. Acts, ch. 627, § 5. It was eliminated in 1971,
1971 Mass. Acts, ch. 219, when the State made all single-sex
examinations subject to the prior approval of the
Massachusetts Commission Against Discrimination, 1971
Mass. Acts, ch. 221.
[Footnote 15]
A provision requiring public agencies to hire disabled veterans
certified as eligible was added in 1922. 1922 Mass.Acts, ch.
463. It was invalidated as applied in Hutcheson v. Director of
Civil Service, 361 Mass. 480, 281 N.E.2d 53 (1972) (suit by
veteran arguing that absolute preference for disabled veterans
was arbitrary on facts). It has since been eliminated and
replaced with a provision giving disabled veterans an absolute
preference in retention. See Mass.Gen.Laws Ann., ch. 31, § 26
(West 1979). See n 10, supra.
[Footnote 16]
For cases presenting similar challenges to the veterans'
preference laws of other States, see Ballou v. State
Department of Civil Service, 75 N.J. 365, 382 A.2d 1118
(1978) (sustaining New Jersey absolute preference);
Feinerman v. Jones, 356 F.Supp. 252 (MD Pa.1973)
(sustaining Pennsylvania point preference); Branch v. Du
Bois, 418 F.Supp. 1128 (ND Ill.1976) (sustaining Illinois
modified point preference); Wisconsin Nat. Organization for
Women v. Wisconsin, 417 F.Supp. 978 (WD Wis.1976)
(sustaining Wisconsin point preference).
[Footnote 17]
The provision, passed shortly after the creation of the
Women's Army Auxiliary Corps (WAAC), see n 21, infra, is
currently found at Mass.Gen.Laws Ann., ch. 4, § 7, cl. 43
(West 1976), see n 8, supra. "Wartime service" is defined as
service performed by a member of the "WAAC." A "WAAC"
is
"any woman who was discharged and so served in any corps
or unit of the United States established for the purpose of
enabling women to serve with, or as auxiliary to, the armed
forces of the United States and such woman shall be deemed
to be a veteran."
Ibid.
[Footnote 18]
Small numbers of women served in combat roles in every war
before the 20th century in which the United States was
involved, but usually unofficially or disguised as men. See M.
Binkin & S. Bach, Women and the Military 5 (1977)
(hereinafter Binkin and Bach). Among the better known are
Molly Pitcher (Revolutionary War), Deborah Sampson
(Revolutionary War), and Lucy Brewer (War of 1812).
Passing as one "George Baker," Brewer served for three years
as a gunner on the U.S.S. Constitution ("Old Ironsides") and
distinguished herself in several major naval battles in the War
of 1812. See J. Laffin, Women in Battle 116-122 (1967).
[Footnote 19]
By 1887, the average age of Civil War veterans in
Massachusetts was already over 50. Massachusetts Civil
Service Commissioners, Third Annual Report 22 (1887). The
tie-breaking preference which had been established under the
1884 statute had apparently been difficult to enforce, since
many appointing officers "prefer younger men." Ibid. The
1896 statute which established the first valid absolute
preference, see supra at 442 U. S. 266, again covered only
Civil War veterans. 1896 Mass. Acts, ch. 517, § 1.
[Footnote 20]
In 1896, for example, 2,804 persons applied for civil service
positions: 2,031 were men, of whom only 32 were veterans;
773 were women. Of the 647 persons appointed, 525 were
men, of whom only 9 were veterans; 122 were women.
Massachusetts Civil Service Commissioners, Thirteenth
Annual Report 5, 6 (1896). The average age of the applicants
was 38. Ibid.
[Footnote 21]
The Army Nurse Corps, created by Congress in 1901, was the
first official military unit for women, but its members were not
granted full military rank until 1944. See Binkin and Bach 4-
21; M. Treadwell, The Women's Army Corps 6 (Dept. of
Army 1954) (hereinafter Treadwell). During World War I, a
variety of proposals were made to enlist women for work as
doctors, telephone operators, and clerks, but all were rejected
by the War Department. See ibid. The Navy, however,
interpreted its own authority broadly to include a power to
enlist women as Yeoman F's and Marine F's. About 13,000
women served in this rank, working primarily at clerical jobs.
These women were the first in the United States to be admitted
to full military rank and status. See id. at 10.
Official military corps for women were established in response
to the massive personnel needs of World War II. See generally
Binkin and Bach; Treadwell. The Women's Army Auxiliary
Corps (WAAC) -- the unofficial predecessor of the Women's
Army Corps (WAC) -- was created on May 14, 1942, followed
two months later by the WAVES (Women Accepted for
Voluntary Emergency Service). See Binkin and Bach 7. Not
long after, the United States Marine Corps Women's Reserve
and the Coast Guard Women's Reserve (SPAR) were
established. See ibid. Some 350,000 women served in the four
services; some 800 women also served as Women's Airforce
Service Pilots (WASPS). Ibid. Most worked in health care,
administration, and communications; they were also employed
as airplane mechanics, parachute riggers, gunnery instructors,
air traffic controllers, and the like.
The authorizations for the women's units during World War II
were temporary. The Women's Armed Services Integration
Act of 1948, 62 Stat. 356, established the women's services on
a permanent basis. Under the Act, women were given regular
military status. However, quotas were placed on the numbers
who could enlist, 62 Stat. 357, 360-361 (no more than 2% of
total enlisted strength), eligibility requirements were more
stringent than those for men, and career opportunities were
limited. Binkin and Bach 11-12. During the 1950's and 1960's,
enlisted women constituted little more than 1% of the total
force. In 1967, the 2% quota was lifted, § 1 (9)(E), 81 Stat.
375, 10 U.S.C. § 3209(b), and, in the 1970's, many restrictive
policies concerning women's participation in the military have
been eliminated or modified. See generally Binkin and Bach.
In 1972, women still constituted less than 2% of the enlisted
strength. Id. at 14. By 1975, when this litigation was
commenced, the percentage had risen to 4.6%. Ibid.
[Footnote 22]

The former exemption for "women's requisitions," see nn. 13
14 supra, may have operated in the 20th century to protect
these types of jobs from the impact of the preference.
However, the statutory history indicates that this was not its
purpose. The provision dates back to the 1896 veterans'
preference law, and was retained in the law substantially
unchanged until it was eliminated in 1971. See n 14, supra.
Since veterans in 1896 were a small but an exclusively male
class, such a provision was apparently included to ensure that
the statute would not be construed to outlaw a preexisting
practice of single-sex hiring explicitly authorized under the
1884 Civil Service statute. See Rule XIX.3, Massachusetts
Civil Service Law and Rules and Regulations of the
Commissioners (1884) ("In case the request for any . . .
certification, or any law or regulation, shall call for persons of
one sex, those of that sex shall be certified; otherwise sex shall
be disregarded in certification"). The veterans' preference
statute at no point endorsed this practice. Historical materials
indicate, however, that the early preference law may have
operated to encourage the employment of women in positions
from which they previously had been excluded. See Thirteenth
Annual Report, supra, n. 20 at 5, 6; Third Annual Report,
supra, n19, at 23.
[Footnote 23]
This is not to say that the degree of impact is irrelevant to the
question of intent. But it is to say that a more modest
preference, while it might well lessen impact and, as the State
argues, might lessen the effectiveness of the statute in helping
veterans, would not be any more or less "neutral" in the
constitutional sense.
[Footnote 24]
Proof of discriminatory intent must necessarily usually rely on
objective factors, several of which were outlined in Arlington
Heights v. Metropolitan Housing Dev. Corp., 429 U. S. 252,
429 U. S. 266. The inquiry is practical. What a legislature or
any official entity is "up to" may be plain from the results its
actions achieve, or the results they avoid. Often it is made
clear from what has been called, in a different context, "the
give and take of the situation." Cramer v. United States, 325
U. S. 1, 325 U. S. 32-33 (Jackson, J.).
[Footnote 25]
This is not to say that the inevitability or foreseeability of
consequences of a neutral rule has no bearing upon the
existence of discriminatory intent. Certainly, when the adverse
consequences of a law upon an identifiable group are as
inevitable as the gender-based consequences of ch. 31, § 23, a
strong inference that the adverse effects were desired can
reasonably be drawn. But in this inquiry -- made as it is under
the Constitution -- an inference is a working tool, not a
synonym for proof. When, as here, the impact is essentially an
unavoidable consequence of a legislative policy that has in
itself always been deemed to be legitimate, and when, as here,
the statutory history and all of the available evidence
affirmatively demonstrate the opposite, the inference simply
fails to ripen into proof.
[Footnote 26]
See nn. 8 17 supra.
[Footnote 27]
The appellee has suggested that the former statutory exception
for "women's requisitions," see nn. 13 14 supra, supplies
evidence that Massachusetts, when it established and
subsequently reaffirmed the absolute preference legislation,
assumed that women would not or should not compete with
men. She has further suggested that the former provision
extending the preference to certain female dependents of
veterans, see n 10, supra, demonstrates that ch. 31, § 23, is
laced with "old notions" about the proper roles and needs of
the sexes. See Califano v. Goldfarb, 430 U. S. 199;
Weinberger v. Wiesenfeld, 420 U. S. 636. But the first
suggestion is totally belied by the statutory history, see supra
at 442 U. S. 267-271, and nn.19, 20, and the second fails to
account for the consistent statutory recognition of the
contribution of women to this Nation's military efforts.
[Footnote 28]
See generally Hearings on Veterans' Preference Oversight
before the Subcommittee on Civil Service of the House Post
Office and Civil Service Committee, 95th Cong., 1st Sess.
(1977); Report of Comptroller General, Conflicting
Congressional Policies: Veterans' Preference and
Apportionment vs. Equal Employment Opportunity (Sept. 29,
1977).
MR. JUSTICE STEVENS, with whom MR. JUSTICE
WHITE joins, concurring.
While I concur in the Court's opinion, I confess that I am not
at all sure that there is any difference between the two
questions posed ante at 442 U. S. 274. If a classification is not
overtly based on gender, I am inclined to believe the question
whether it is covertly gender based is the same as the question
whether its adverse effects reflect invidious gender-based
discrimination. However the question is phrased, for me, the
answer is largely provided by the fact that the number of
males disadvantaged by Massachusetts' veterans' preference
(1,867,000) is sufficiently large -- and sufficiently close to the
number of disadvantaged females (2,954,000) -- to refute the
claim that the rule was intended to benefit males as a class
over females as a class.
MR. JUSTICE MARSHALL, with whom MR. JUSTICE
BRENNAN joins, dissenting.
Although acknowledging that, in some circumstances,
discriminatory intent may be inferred from the inevitable or
foreseeable impact of a statute, ante at 442 U. S. 279 n. 25, the
Court concludes that no such intent has been established here.
I cannot agree. In my judgment, Massachusetts' choice of an
absolute veterans' preference system evinces purposeful
Page 442 U. S. 282
gender-based discrimination. And because the statutory
scheme bears no substantial relationship to a legitimate
governmental objective, it cannot withstand scrutiny under the
Equal Protection Clause.
I facially neutral policies, this Court has therefore considered
The District Court found that the "prime objective" of the
Massachusetts veterans' preference statute, Mass.Gen.Laws
Ann., ch. 31, § 23, was to benefit individuals with prior
military service. Anthony v. Commonwealth, 415 F.Supp.
485, 497 (Mass.1976). See Feeney v. Massachusetts, 451
F.Supp. 143, 145 (Mass.1978). Under the Court's analysis, this
factual determination
"necessarily compels the conclusion that the State intended
nothing more than to prefer 'veterans.' Given this finding,
simple logic suggests than an intent to exclude women from
significant public jobs was not at work in this law."
Ante at 442 U. S. 277. I find the Court's logic neither simple
nor compelling.
That a legislature seeks to advantage one group does not, as a
matter of logic or of common sense, exclude the possibility
that it also intends to disadvantage another. Individuals in
general, and lawmakers in particular, frequently act for a
variety of reasons. As this Court recognized in Arlington
Heights v. Metropolitan Housing Dev. Corp., 429 U. S. 252,
429 U. S. 265 (1977),
"[r]arely can it be said that a legislature or administrative body
operating under a broad mandate made a decision motivated
solely by a single concern."
Absent an omniscience not commonly attributed to the
judiciary, it will often be impossible to ascertain the sole or
even dominant purpose of a given statute. See McGinnis v.
Royster, 410 U. S. 263, 410 U. S. 276-277 (1973); Ely,
Legislative and Administrative Motivation in Constitutional
Law, 79 Yale L.J. 1205, 1214 (1970). Thus, the critical
constitutional inquiry is not whether an illicit consideration
was the primary or but-for cause of a decision, but rather
whether it had an appreciable role in shaping a given
legislative enactment. Where there is
Page 442 U. S. 283
"proof that a discriminatory purpose has been a motivating
factor in the decision, . . . judicial deference is no longer
justified." Arlington Heights v. Metropolitan Housing Dev.
Corp., supra at 429 U. S. 265-266 (emphasis added).
Moreover, since reliable evidence of subjective intentions is
seldom obtainable, resort to inference based on objective
factors is generally unavoidable. See Beer v. United States,
425 U. S. 130, 425 U. S. 148-149, n. 4 (1976) (MARSHALL,
J., dissenting); cf. Palmer v. Thompson, 403 U. S. 217, 403 U.
S. 224-225 (1971); United States v. O'Brien, 391 U. S. 367,
391 U. S. 383-384 (1968). To discern the purposes underlying
the degree, inevitability, and foreseeability of any
disproportionate impact, as well as the alternatives reasonably
available. See Monroe v. Board of Commissioners, 391 U. S.
450, 391 U. S. 459 (1968); Goss v. Board of Education, 373
U. S. 683, 373 U. S. 688-689 (1963); Gomillion v. Lightfoot,
364 U. S. 339 (1960); Griffin v. Illinois, 351 U. S. 12, 351 U.
S. 17 n. 11 (1956). Cf. Albemarle Paper Co. v. Moody, 422 U.
S. 405, 422 U. S. 425 (1975).
In the instant case, the impact of the Massachusetts statute on
women is undisputed. Any veteran with a passing grade on the
civil service exam must be placed ahead of a nonveteran,
regardless of their respective scores. The District Court found
that, as a practical matter, this preference supplants test results
as the determinant of upper level civil service appointments.
415 F.Supp. at 488-489. Because less than 2% of the women
in Massachusetts are veterans, the absolute preference formula
has rendered desirable state civil service employment an
almost exclusively male prerogative. 451 F.Supp. at 151
(Campbell, J., concurring).
As the District Court recognized, this consequence follows
foreseeably, indeed inexorably, from the long history of
policies severely limiting women's participation in the
military. [Footnote 2/1]
Page 442 U. S. 284
Although neutral in form, the statute is anything but neutral in
application. It inescapably reserves a major sector of public
employment to "an already established class which, as a
matter of historical fact, is 98% male." Ibid. Where the
foreseeable impact of a facially neutral policy is so
disproportionate, the burden should rest on the State to
establish that sex-based considerations played no part in the
choice of the particular legislative scheme. Cf. Castaneda v.
Partida, 430 U. S. 482 (1977); Washington v. Davis, 426 U. S.
229, 426 U. S. 241 (1976); Alexander v. Louisiana, 405 U. S.
625, 405 U. S. 632 (1972); see generally Brest, Palmer v.
Thompson: An Approach to the Problem of Unconstitutional
Legislative Motive, 1971 Sup.Ct.Rev. 95, 123.
Clearly, that burden was not sustained here. The legislative
history of the statute reflects the Commonwealth's patent
appreciation of the impact the preference system would have
on women, and an equally evident desire to mitigate that
impact only with respect to certain traditionally female
occupations. Until 1971, the statute and implementing civil
service
Page 442 U. S. 285
regulations exempted from operation of the preference any job
requisitions "especially calling for women." 1954 Mass. Acts,
ch. 627, § 5. See also 1896 Mass. Acts, ch. 517, § 6; 1919
Mass. Acts, ch. 150, § 2; 1945 Mass. Acts, ch. 725, § 2(e);
1965 Mass. Acts, ch. 53; ante at 442 U. S. 266 nn. 13, 14. In
practice, this exemption, coupled with the absolute preference
for veterans, has created a gender-based civil service
hierarchy, with women occupying low-grade clerical and
secretarial jobs and men holding more responsible and
remunerative positions. See 415 F.Supp. at 488; 451 F.Supp.
at 148 n. 9.
Thus, for over 70 years, the Commonwealth has maintained,
as an integral part of its veterans' preference system, an
exemption relegating female civil service applicants to
occupations traditionally filled by women. Such a statutory
scheme both reflects and perpetuates precisely the kind of
archaic assumptions about women's roles which we have
previously held invalid. See Orr v. Orr, 440 U. S. 268 (1979);
Califano v. Goldfarb, 430 U. S. 199, 430 U. S. 210-211
(1977); Stanton v. Stanton, 421 U. S. 7, 421 U. S. 14 (1975);
Weinberger v. Wiesenfeld, 420 U. S. 636, 420 U. S. 645
(1975). Particularly when viewed against the range of less
discriminatory alternatives available to assist veterans,
[Footnote 2/2] Massachusetts' choice of a formula that so
severely restricts public employment opportunities for women
cannot reasonably be thought gender-neutral. Cf. Albemarle
Paper Co. v. Moody, supra, at 422 U. S. 425. The Court's
conclusion to the contrary -- that "nothing in the record"
evinces a "collateral goal of keeping women in a stereotypic
and predefined place in the
Page 442 U. S. 286
Massachusetts Civil Service," ante at 442 U. S. 279 -- displays
a singularly myopic view of the facts established below.
[Footnote 2/3]
II
To survive challenge under the Equal Protection Clause,
statutes reflecting gender-based discrimination must be
substantially related to the achievement of important
governmental objectives. See Califano v. Webster, 430 U. S.
313, 430 U. S. 316-317 (1977); Craig v. Boren, 429 U. S. 190,
429 U. S. 197 (1976); Reed v. Reed, 404 U. S. 71, 404 U. S.
76 (1971). Appellants here advance three interests in support
of the absolute preference system: (1) assisting veterans in
their readjustment to civilian life; (2) encouraging military
enlistment; and (3) rewarding those who have served their
country. Brief for Appellants 24. Although each of those goals
is unquestionably legitimate, the "mere recitation of a benign,
compensatory purpose" cannot, of itself, insulate legislative
classifications from constitutional scrutiny. Weinberger v.
Wiesenfeld, supra at 420 U. S. 648. And in this case, the
Commonwealth has failed to establish a sufficient relationship
between its objectives and the means chosen to effectuate
them.
With respect to the first interest, facilitating veterans'
transition to civilian status, the statute is plainly overinclusive.
Cf. Trimble v. Gordon, 430 U. S. 762, 430 U. S. 770-772
(1977); Jimenez v. Weinberger, 417 U. S. 628, 417 U. S. 637
(1974). By conferring a permanent preference, the legislation
allows veterans to invoke their advantage repeatedly, without
regard to their date of discharge. As the record demonstrates, a
substantial
Page 442 U. S. 287
majority of those currently enjoying the benefits of the system
are not recently discharged veterans in need of readjustment
assistance. [Footnote 2/4]
Nor is the Commonwealth's second asserted interest,
encouraging military service, a plausible justification for this
legislative scheme. In its original and subsequent
reenactments, the statute extended benefits retroactively to
veterans who had served during a prior specified period. See
ante at 442 U. S. 265-267. If the Commonwealth's "actual
purpose" is to induce enlistment, this legislative design is
hardly well suited to that end. See Califano v. Webster, supra
at 430 U. S. 317; Weinberger v. Wiesenfeld, supra at 420 U. S.
648. For I am unwilling to assume what appellants made no
effort to prove, that the possibility of obtaining an ex post
facto civil service preference significantly influenced the
enlistment decisions of Massachusetts residents. Moreover,
even if such influence could be presumed, the statute is still
grossly overinclusive, in that it bestows benefits on men
drafted as well as those who volunteered.
Finally, the Commonwealth's third interest, rewarding
veterans, does not "adequately justify the salient features" of
this preference system. Craig v. Boren, supra at 429 U. S. 202-
203. See Orr v. Orr, supra at 440 U. S. 281. Where a particular
statutory scheme visits substantial hardship on a class long
subject to discrimination, the legislation cannot be sustained
unless "carefully tuned to alternative considerations.'" Trimble
v. Gordon, supra at 430 U. S. 772. See Caban v. Mohammed,
441 U. S. 380, 441 U. S. 392-393, n. 13 (1979); Mathews v.
Lucas, 427 U. S. 495 (1976). Here, there are a wide variety of
less discriminatory means by which Massachusetts could
effect its compensatory purposes. For example, a point
preference system, such as that maintained by many States and
the Federal Government,
Page 442 U. S. 288
see n. 2, supra, or an absolute preference for a limited
duration, would reward veterans without excluding all
qualified women from upper level civil service positions.
Apart from public employment, the Commonwealth, can, and
does, afford assistance to veterans in various ways, including
tax abatements, educational subsidies, and special programs
for needy veterans. See Mass.Gen.Laws Ann., ch. 59, § 5,
Fifth (West Supp. 1979); Mass.Gen.Laws Ann., ch. 69, §§ 7,
7B (West Supp. 1979); and Mass.Gen.Laws Ann., chs. 115,
115A (West 1969 and Supp. 1978). Unlike these and similar
benefits, the costs of which are distributed across the
taxpaying public generally, the Massachusetts statute exacts a
substantial price from a discrete group of individuals who
have long been subject to employment discrimination,
[Footnote 2/5] and who, "because of circumstances totally
beyond their control, have [had] little if any chance of
becoming members of the preferred class." 415 F.Supp. at
499. See n. 1, supra.
In its present unqualified form, the veterans' preference statute
precludes all but a small fraction of Massachusetts women
from obtaining any civil service position also of interest to
men. See 451 F.Supp. at 151 (Campbell, J., concurring). Given
the range of alternatives available, this degree of preference is
not constitutionally permissible.
I would affirm the judgment of the court below.
[Footnote 2/1]
See Anthony v. Massachusetts, 415 F.Supp. 485, 490, 495-499
(Mass. 1976); Feeney v. Massachusetts, 451 F.Supp. 143, 145,
148 (Mass. 1978). In addition to the 2% quota on women's
participation in the Armed Forces, see ante at 442 U. S. 270 n.
21, enlistment and appointment requirements have been more
stringent for females than males with respect to age, mental
and physical aptitude, parental consent, and educational
attainment. M. Binkin & S. Bach, Women and the Military
(1977) (hereinafter Binkin and Bach); Note, The Equal Rights
Amendment and the Military, 82 Yale L.J. 1533, 1539 (1973).
Until the 1970's, the Armed Forces precluded enlistment and
appointment of women, but not men, who were married or had
dependent children. See 415 F.Supp. at 490; App. 85; Exs. 98,
99, 103, 104. Sex-based restrictions on advancement and
training opportunities also diminished the incentives for
qualified women to enlist. See Binkin and Bach 117, Beans,
Sex Discrimination in the Military, 67 Mil.L.Rev.19, 59-83
(1975). Cf. Schlesinger v. Ballard, 419 U. S. 498, 419 U. S.
508 (1975).
Thus, unlike the employment examination in Washington v.
Davis, 426 U. S. 229 (1976), which the Court found to be
demonstrably job-related, the Massachusetts preference statute
incorporates the results of sex-based military policies
irrelevant to women's current fitness for civilian public
employment. See 415 F.Supp. at 498-499.
[Footnote 2/2]
Only four States afford a preference comparable in scope to
that of Massachusetts. See Fleming & Shanor, Veterans'
Preferences and Public Employment: Unconstitutional Gender
Discrimination?, 26 Emory L.J. 13, 17 n. 13 (1977) (citing
statutes). Other States and the Federal Government grant point
or tie-breaking preferences that do not foreclose opportunities
for women. See id. at 13, and nn. 12, 14; ante at 442 U. S. 261
n. 7; Hearings on Veterans' Preference Oversight before the
Subcommittee on Civil Service of the House Committee on
Post Office and Civil Service, 95th Cong., 1st Sess., 4 (1977)
(statement of Alan Campbell, Chairman, United States Civil
Service Commission).
[Footnote 2/3]
Although it is relevant that the preference statute also
disadvantages a substantial group of men, see ante at 442 U. S.
281 (STEVENS, J., concurring), it is equally pertinent that
47% of Massachusetts men over 18 are veterans, as compared
to 0.8% of Massachusetts women. App. 83. Given this
disparity, and the indicia of intent noted supra at 442 U. S.
284-285, the absolute number of men denied preference
cannot be dispositive, especially since they have not faced the
barriers to achieving veteran status confronted by women. See
n. 1, supra.
[Footnote 2/4]
The eligibility lists for the positions Ms. Feeney sought
included 95 veterans for whom discharge information was
available. Of those 95 males, 64 (67%) were discharged prior
to 1960. App. 106, 150-151, 169-170.
Michael M. v. Superior Court
No. 79-1344
Argued November 4, 1980
Decided March 23, 1981
450 U.S. 464
CERTIORARI TO THE SUPREME COURT OF
CALIFORNIA
Syllabus
Petitioner, then a 17 1/2-year-old male, was charged with
violating California's "statutory rape" law, which defines
unlawful sexual intercourse as "an act of sexual intercourse
accomplished with a female not the wife of the perpetrator,
where the female is under the age of 18 years." Prior to trial,
petitioner sought to set aside the information on both state and
federal constitutional grounds, asserting that the statute
unlawfully discriminated on the basis of gender since men
alone were criminally liable thereunder. The trial court and the
California Court of Appeal denied relief, and on review the
California Supreme Court upheld the statute.
Held: The judgment is affirmed. Pp. 450 U. S. 468-476; 450
U. S. 481-487.
25 Cal.3d 608, 601 P.2d 572, affirmed.
JUSTICE REHNQUIST, joined by CHIEF JUSTICE
BURGER, JUSTICE STEWART, and JUSTICE POWELL,
concluded that the statute does not violate the Equal Protection
Clause of the Fourteenth Amendment. Pp. 450 U. S. 468-476.
(a) Gender-based classifications are not "inherently suspect"
so as to be subject to so-called "strict scrutiny," but will be
upheld if they bear a "fair and substantial relationship" to
legitimate state ends. Reed v. Reed, 404 U. S. 71. Because the
Equal Protection Clause does not "demand that a statute
necessarily apply equally to all persons" or require "things
which are different in fact . . . to be treated in law as though
they were the same," Rinaldi v. Yeager, 384 U. S. 305, 384 U.
S. 309, a statute will be upheld where the gender classification
is not invidious, but rather realistically reflects the fact that the
sexes are not similarly situated in certain circumstances. Pp.
450 U. S. 468-469.
(b) One of the purposes of the California statute in which the
State has a strong interest is the prevention of illegitimate
teenage pregnancies. The statute protects women from sexual
intercourse and pregnancy at an age when the physical,
emotional, and psychological consequences are particularly
severe. Because virtually all of the significant harmful and
identifiable consequences of teenage pregnancy fall on the
female, a legislature acts well within its authority when it
Page 450 U. S. 465
elects to punish only the participant who, by nature, suffers
few of the consequences of his conduct. Pp. 450 U. S. 470-
473.
(c) There is no merit in petitioner's contention that the statute
is impermissibly underinclusive, and must, in order to pass
judicial scrutiny, be broadened so as to hold the female as
criminally liable as the male. The relevant inquiry is not
whether the statute is drawn as precisely as it might have been,
but whether the line chosen by the California Legislature is
within constitutional limitations. In any event, a gender-
neutral statute would frustrate the State's interest in effective
enforcement, since a female would be less likely to report
violations of the statute if she herself would be subject to
prosecution. The Equal Protection Clause does not require a
legislature to enact a statute so broad that it may well be
incapable of enforcement. Pp. 450 U. S. 473-474.
(d) Nor is the statute impermissibly overbroad because it
makes unlawful sexual intercourse with prepubescent females,
incapable of becoming pregnant. Aside from the fact that the
statute could be justified on the grounds that very young
females are particularly susceptible to physical injury from
sexual intercourse, the Constitution does not require the
California Legislature to limit the scope of the statute to older
teenagers and exclude young girls. P. 450 U. S. 475.
(e) And the statute is not unconstitutional as applied to
petitioner who, like the girl involved, was under 18 at the time
of sexual intercourse, on the asserted ground that the statute
presumes in such circumstances that the male is the culpable
aggressor. The statute does not rest on such an assumption, but
instead is an attempt to prevent illegitimate teenage pregnancy
by providing an additional deterrent for men. The age of the
man is irrelevant, since young men are as capable as older men
of inflicting the harm sought to be prevented. P. 450 U. S. 475.
BLACKMUN, J., concluded that the California statutory rape
law is a sufficiently reasoned and constitutional effort to
control at its inception the problem of teenage pregnancies,
and that the California Supreme Court's judgment should be
affirmed on the basis of the applicable test for gender-based
classifications as set forth in Reed v. Reed, 404 U. S. 71, 404
U. S. 76, and Craig v. Boren, 429 U. S. 190, 429 U. S. 197.
Pp. 450 U. S. 481-487.
REHNQUIST, J., announced the judgment of the Court and
delivered an opinion, in which BURGER, C.J. and STEWART
and POWELL, JJ., joined. STEWART, J., filed a concurring
opinion, post, p. 450 U. S. 476. BLACKMUN, J., filed an
opinion concurring in the judgment, post, p. 450 U. S. 481.
BRENNAN, J., filed a dissenting opinion, in which WHITE
and MARSALL, JJ., joined, post, p. 450 U. S. 488.
STEVENS, J., filed a dissenting opinion, post, p. 450 U. S.
496.
Page 450 U. S. 466
JUSTICE REHNQUIST announced the judgment of the Court
and delivered an opinion, in which THE CHIEF JUSTICE,
JUSTICE STEWART, and JUSTICE POWELL joined.
The question presented in this case is whether California's
"statutory rape" law, § 261.5 of the Cal.Penal Code Ann.
(West Supp. 1981), violates the Equal Protection Clause of the
Fourteenth Amendment. Section 261.5 defines unlawful
sexual intercourse as "an act of sexual intercourse
accomplished with a female not the wife of the perpetrator,
where the female is under the age of 18 years." The statute
thus makes men alone criminally liable for the act of sexual
intercourse.
In July, 1978, a complaint was filed in the Municipal Court of
Sonoma County, Cal., alleging that petitioner, then a 17 1/2-
year-old male, had had unlawful sexual intercourse with a
female under the age of 18, in violation of § 261.5. The
evidence adduced at a preliminary hearing showed that, at
approximately midnight on June 3, 1978, petitioner and two
friends approached Sharon, a 16 1/2-year-old female, and her
sister as they waited at a bus stop. Petitioner and Sharon,
Page 450 U. S. 467
who had already been drinking, moved away from the others
and began to kiss. After being struck in the face for rebuffing
petitioner's initial advances, Sharon submitted to sexual
intercourse with petitioner. Prior to trial, petitioner sought to
set aside the information on both state and federal
constitutional grounds, asserting that § 261.5 unlawfully
discriminated on the basis of gender. The trial court and the
California Court of Appeal denied petitioner's request for
relief, and petitioner sought review in the Supreme Court of
California.
The Supreme Court held that "section 261.5 discriminates on
the basis of sex, because only females may be victims and
only males may violate the section." 25 Cal.3d 608, 611, 601
P.2d 572, 574. The court then subjected the classification to
"strict scrutiny," stating that it must be justified by a
compelling state interest. It found that the classification was
"supported not by mere social convention, but by the
immutable physiological fact that it is the female exclusively
who can become pregnant." Ibid. Canvassing "the tragic
human costs of illegitimate teenage pregnancies," including
the large number of teenage abortions, the increased medical
risk associated with teenage pregnancies, and the social
consequences of teenage childbearing, the court concluded
that the State has a compelling interest in preventing such
pregnancies. Because males alone can "physiologically cause
the result which the law properly seeks to avoid," the court
further held that the gender classification was readily justified
as a means of identifying offender and victim. For the reasons
stated below, we affirm the judgment of the California
Supreme Court. [Footnote 1]
Page 450 U. S. 468
As is evident from our opinions, the Court has had some
difficulty in agreeing upon the proper approach and analysis in
cases involving challenges to gender-based classifications.
The issues posed by such challenges range from issues of
standing, see Orr v. Orr, 440 U. S. 268 (1979), to the
appropriate standard of judicial review for the substantive
classification. Unlike the California Supreme Court, we have
not held that gender-based classifications are "inherently
suspect," and thus we do not apply so-called "strict scrutiny"
to those classifications. See Stanton v. Stanton, 421 U. S. 7
(1975). Our cases have held, however, that the traditional
minimum rationality test takes on a somewhat "sharper focus"
when gender-based classifications are challenged. See Craig v.
Boren, 429 U. S. 190, 429 U. S. 210 n.* (1976) (POWELL, J.,
concurring). In Reed v. Reed, 404 U. S. 71 (1971), for
example, the Court stated that a gender-based classification
will be upheld if it
Page 450 U. S. 469
bears a "fair and substantial relationship" to legitimate state
ends, while in Craig v. Boren, supra at 429 U. S. 197, the
Court restated the test to require the classification to bear a
"substantial relationship" to "important governmental
objectives."
Underlying these decisions is the principle that a legislature
may not
"make overbroad generalizations based on sex which are
entirely unrelated to any differences between men and women
or which demean the ability or social status of the affected
class."
Parham v. Hughes, 441 U. S. 347, 441 U. S. 354 (1979)
(plurality opinion of STEWART, J.). But because the Equal
Protection Clause does not "demand that a statute necessarily
apply equally to all persons" or require "things which are
different in fact . . . to be treated in law as though they were
the same,'" Rinaldi v. Yeager, 384 U. S. 305, 384 U. S. 309
(1966), quoting Tigner v. Texas, 310 U. S. 141, 310 U. S. 147
(1940), this Court has consistently upheld statutes where the
gender classification is not invidious, but rather realistically
reflects the fact that the sexes are not similarly situated in
certain circumstances. Parham v. Hughes, supra; Califano v.
Webster, 430 U. S. 313 (1977); Schlesinger v. Ballard, 419 U.
S. 498 (1975); Kahn v. Shevin, 416 U. S. 351 (1974). As the
Court has stated, a legislature may "provide for the special
problems of women." Weinberger v. Wiesenfeld, 420 U. S.
636, 420 U. S. 653 (1975).
Applying those principles to this case, the fact that the
California Legislature criminalized the act of illicit sexual
intercourse with a minor female is a sure indication of its
intent or purpose to discourage that conduct. [Footnote 2]
Precisely why the legislature desired that result is, of course,
somewhat less clear. This Court has long recognized that
"[i]nquiries into congressional motives or purposes are a
hazardous matter," United States v. O'Brien, 391 U. S. 367,
391 U. S. 383-384 (1968); Palmer v. Thompson, 403 U. S.
217, 403 U. S. 224 (1971), and the
Page 450 U. S. 470
search for the "actual" or "primary" purpose of a statute is
likely to be elusive. Arlington Heights v. Metropolitan
Housing Dev. Corp., 429 U. S. 252, 429 U. S. 265 (1977);
McGinnis v. Royster, 410 U. S. 263, 410 U. S. 276-277
(1973). Here, for example, the individual legislators may have
voted for the statute for a variety of reasons. Some legislators
may have been concerned about preventing teenage
pregnancies, others about protecting young females from
physical injury or from the loss of "chastity," and still others
about promoting various religious and moral attitudes towards
premarital sex.
The justification for the statute offered by the State and
accepted by the Supreme Court of California, is that the
legislature sought to prevent illegitimate teenage pregnancies.
That finding, of course, is entitled to great deference. Reitman
v. Mulkey, 387 U. S. 369, 387 U. S. 373-374 (1967). And
although our cases establish that the State's asserted reason for
the enactment of a statute may be rejected, if it "could not
have been a goal of the legislation," Weinberger v.
Wiesenfeld, supra at 420 U. S. 648, n. 16, this is not such a
case.
We are satisfied not only that the prevention of illegitimate
pregnancy is at least one of the "purposes" of the statute, but
also that the State has a strong interest in preventing such
pregancy. At the risk of stating the obvious, teenage
pregnancies, which have increased dramatically over the last
two decades, [Footnote 3] have significant social, medical, and
economic consequences for both the mother and her child, and
the State. [Footnote 4]
Page 450 U. S. 471
Of particular concern to the State is that approximately half of
all teenage pregnancies end in abortion. [Footnote 5] And of
those children who are born, their illegitimacy makes them
likely candidates to become wards of the State. [Footnote 6]
We need not be medical doctors to discern that young men and
young women are not similarly situated with respect to the
problems and the risks of sexual intercourse. Only women
may become pregnant, and they suffer disproportionately the
profound physical, emotional, and psychological
consequences of sexual activity. The statute at issue here
Page 450 U. S. 472
protects women from sexual intercourse at an age when those
consequences are particularly severe. [Footnote 7]
The question thus boils down to whether a State may attack
the problem of sexual intercourse and teenage pregnancy
directly by prohibiting a male from having sexual intercourse
with a minor female. [Footnote 8] We hold that such a statute
is
Page 450 U. S. 473
sufficiently related to the State's objectives to pass
constitutional muster.
Because virtually all of the significant harmful and
inescapably identifiable consequences of teenage pregnancy
fall on the young female, a legislature acts well within its
authority when it elects to punish only the participant who, by
nature, suffers few of the consequences of his conduct. It is
hardly unreasonable for a legislature acting to protect minor
females to exclude them from punishment. Moreover, the risk
of pregnancy itself constitutes a substantial deterrence to
young females. No similar natural sanctions deter males. A
criminal sanction imposed solely on males thus serves to
roughly "equalize" the deterrents on the sexes.
We are unable to accept petitioner's contention that the statute
is impermissibly underinclusive and must, in order to pass
judicial scrutiny, be broadened so as to hold the female as
criminally liable as the male. It is argued that this statute is not
necessary to deter teenage pregnancy because a gender-neutral
statute, where both male and female would be subject to
prosecution, would serve that goal equally well. The relevant
inquiry, however, is not whether the statute is drawn as
precisely as it might have been, but whether the line chosen by
the California Legislature is within constitutional limitations.
Kahn v. Shevin, 416 U.S. at 3 416 U. S. 56, n. 10.
In any event, we cannot say that a gender-neutral statute
would be as effective as the statute California has chosen to
enact. The State persuasively contends that a gender-neutral
statute would frustrate its interest in effective enforcement. Its
view is that a female is surely less likely to report
Page 450 U. S. 474
violations of the statute if she herself would be subject to
criminal prosecution. [Footnote 9] In an area already fraught
with prosecutorial dificulties, we decline to hold that the Equal
Protection Clause requires a legislature to enact a statute so
broad that it may well be incapable of enforcement. [Footnote
10]
Page 450 U. S. 475
We similarly reject petitioner's argument that § 261.5 is
impermissibly overbroad because it makes unlawful sexual
intercourse with prepubescent females, who are, by definition,
incapable of becoming pregnant. Quite apart from the fact that
the statute could well be justified on the grounds that very
young females are particularly susceptible to physical injury
from sexual intercourse, see Rundlett v. Oliver, 607 F.2d 495
(CA1 1979), it is ludicrous to suggest that the Constitution
requires the California Legislature to limit the scope of its rape
statute to older teenagers and exclude young girls.
There remains only petitioner's contention that the statute is
unconstitutional as it is applied to him because he, like Sharon,
was under 18 at the time of sexual intercourse. Petitioner
argues that the statute is flawed because it presumes that, as
between two persons under 18, the male is the culpable
aggressor. We find petitioner's contentions unpersuasive.
Contrary to his assertions, the statute does not rest on the
assumption that males are generally the aggressors. It is,
instead, an attempt by a legislature to prevent illegitimate
teenage pregnancy by providing an additional deterrent for
men. The age of the man is irrelevant, since young men are as
capable as older men of inflicting the harm sought to be
prevented.
In upholding the California statute, we also recognize that this
is not a case where a statute is being challenged on the
grounds that it "invidiously discriminates" against females.
Page 450 U. S. 476
To the contrary, the statute places a burden on males which is
not shared by females. But we find nothing to suggest that
men, because of past discrimination or peculiar disadvantages,
are in need of the special solicitude of the courts. Nor is this a
case where the gender classification is made "solely for . . .
administrative convenience," as in Frontiero v. Richardson,
411 U. S. 677, 411 U. S. 690 (1973) (emphasis omitted), or
rests on "the baggage of sexual stereotypes" as in Orr v. Orr,
440 U.S. at 440 U. S. 283. As we have held, the statute instead
reasonably reflects the fact that the consequences of sexual
intercourse and pregnancy fall more heavily on the female
than on the male.
Accordingly the judgment of the California Supreme Court is
Affirmed.
[Footnote 1]
The lower federal courts and state courts have almost
uniformly concluded that statutory rape law are constitutional.
See, e.g., Rundlett v. Oliver, 607 F.2d 495 (CA1 1979); Hall
v. McKenzie, 537 F.2d 1232 (CA4 1976); Hall v. State, 365
So.2d 1249, 1252-1253 (Ala.App. 1978), cert. denied, 365
So.2d 1253 (Ala.1979); State v. Gray, 122 Ariz. 445, 446-477,
595 P.2d 990, 991-992 (1979); People v. Mackey, 46
Cal.App.3d 755, 760-761, 120 Cal.Rptr. 157, 160, cert.
denied, 423 U.S. 951 (1975); People v. Salinas, 191 Colo. 171,
551 P.2d 703 (1976); State v. Brothers, 384 A.2d 402
(Del.Super.1978); In re W.E.P., 318 A.2d 286, 289-290 (DC
1974); Barnes v. State, 244 Ga. 302, 303-304, 260 S.E.2d 40,
41-42 (1979); State v. Drake, 219 N.W.2d 492, 495-496 (Iowa
1974); State v. Bell, 377 So.2d 303 (La.1979); State v.
Rundlett, 391 A.2d 815 (Me.1978); Green v. State, 270 So.2d
695 (Miss.1972); In re J.D.G., 498 S.W.2d 786, 792-793
(Mo.1973); State v. Meloon, 116 N.H. 669, 366 A.2d 1176
(1976); State v. Thompson, 162 N.J.Super. 302, 392 A.2d 678
(1978); People v. Whidden, 51 N.Y.2d 457, 415 N.E.2d 927
(1980); State v. Wilson, 296 N.C. 298, 311-313, 250 S.E.2d
621, 629-630 (1979); Olson v. State, 588 P.2d 1018
(Nev.1979); State v. Elmore, 24 Ore.App. 651, 546 P.2d 1117
(1976); State v. Ware, ___ R.I. ___ , 418 A.2d 1 (1980); Roe
v. State, 584 S.W.2d 257, 259 (Tenn.Crim.App. 1979); Ex
parte Groves, 571 S.W.2d 888, 892-893 (Tex.Crim.App.
1978); Moore v. McKenzie, 236 S.E.2d 342, 342-343
(W.Va.1977); Flores v. State, 69 Wis.2d 509, 510-511, 230
N.W.2d 637, 638 (1975). Contra, Navedo v. Preisser, 630 F.2d
636 (CA8 1980); United States v. Hicks, 625 F.2d 216 (CA9
1980); Meloon v. Helgemoe, 564 F.2d 602 (CA1 1977)
(limited in Rundlett v. Oliver, supra), cert. denied, 436 U.S.
950 (1978).
[Footnote 2]
The statute was enacted as part of California's first penal code
in 1850, 1850 Cal.Stats., ch. 99, § 47, p. 234, and recodified
and amended in 1970.
[Footnote 3]
In 1976, approximately one million 15-to-19-year-olds
became pregnant, one-tenth of all women in that age group.
Two-thirds of the pregnancies were illegitimate. Illegitimacy
rates for teenagers (births per 1,000 unmarried females ages 14
to 19) increased 75% for 14-to-17-year-olds between 1961 and
1974 and 33% for 18-to-19-year-olds. Alan Guttmacher
Institute, 11 Million Teenagers 10, 13 (1976); C. Chilman,
Adolescent Sexuality In a Changing American Society 195
(NIH Pub. No. 80-1426, 1980).
[Footnote 4]
The risk of maternal death is 60% higher for a teenager under
the age of 15 than for a women in her early twenties. The risk
is 13% higher for 15-to-19-year-olds. The statistics further
show that most teenage mothers drop out of school and face a
bleak economic future. See, e.g., 11 Million Teenagers, supra
at 23, 25; Bennett & Bardon, The Effects of a School Program
On Teenager Mothers and Their Chil&ren, 47
Am.J.Orthopsychiatry 671 (1977); Phipps-Yonas, Teenage
Pregnancy and Motherhood, 50 Am.J.Orthopsychiatry 403,
414 (1980).
[Footnote 5]
This is because teenagers are disproportionately likely to seek
abortions. Center for Disease Control, Abortion Surveillance
1976, pp. 22-24 (1978). In 1978, for example, teenagers in
California had approximately 54,000 abortions and 53,800 live
births. California Center for Health Statistics, Reproductive
Health Status of California Teenage Women 1, 23 (Mar.1980).
[Footnote 6]
The policy and intent of the California Legislature evinced in
other legislation buttresses our view that the prevention of
teenage pregnancy is a purpose of the statute. The preamble to
the Pregnancy Freedom of Choice Act, for example, states:
"The legislature finds that pregnancy among unmarried
persons under 21 years of age constitutes an increasing social
problem in the State of California."
Cal.Welf. & Inst.Code Ann. § 16145 (West 1980).
Subsequent to the decision below, the California Legislature
considered and rejected proposals to render § 261.5 gender
neutral, thereby ratifying the judgment of the Galifornia
Supreme Court. That is enough to answer petitioner's
contention that the statute was the " accidental byproduct of a
traditional way of thinking about females.'" Califano v.
Webster, 430 U. S. 313, 430 U. S. 320 (1977) (quoting
Califano v. Goldfarb, 430 U. S. 199, 430 U. S. 223 (1977)
(STEVENS, J., concurring in judgment)). Certainly this
decision of the California Legislature is as good a source as is
this Court in deciding what is "current" and what is
"outmoded" in the perception of women.
[Footnote 7]
Although petitioner concedes that the State has a "compelling"
interest in preventing teenage pregnancy, he contends that the
"true" purpose of § 261.5 is to protect the virtue and chastity
of young women. As such, the statute is unjustifiable because
it rests on archaic stereotypes. What we have said above is
enough to dispose of that contention. The question for us --
and the only question under the Federal Constitution -- is
whether the legislation violates the Equal Protection Clause of
the Fourteenth .mendment, not whether its supporters may
have endorsed it for reasons no longer generally accepted.
Even if the preservation of female chastity were one of the
motives of the statute, and even if that motive be
impermissible, petitioner's argument must fail because
"[i]t is a familiar practice of constitutional law that this court
will not strike down an otherwise constitutional statute on the
basis of an alleged illicit legislative motive."
United States v. O'Brien, 391 U. S. 367, 391 U. S. 383 (1968).
In Orr v. Orr, 440 U. S. 268 (1979), for example, the Court
rejected one asserted purpose as impermissible, but then
considered other purposes to determine if they could justify
the statute. Similarly, in Washington v. Davis, 426 U. S. 229,
426 U. S. 243 (1976), the Court distinguished Palmer v.
Thompson, 403 U. S. 217 (1971), on the grounds that the
purposes of the ordinance there were not open to impeachment
by evidence that the legislature was actually motivated by an
impermissible purpose. See also Arlington Heights v.
Metropolitan Housing Dev. Corp., 429 U. S. 252, 429 U. S.
270, n. 21 (1977); Mobile v. Bolden, 446 U. S. 55, 446 U. S.
91 (1980) (STEVENS, J., concurring in judgment).
[Footnote 8]
We do not understand petitioner to question a State's authority
to make sexual intercourse among teenagers a criminal act, at
least on a gender-neutral basis. In Carey v. Population
Services International, 431 U. S. 678, 431 U. S. 694, n. 17
(1977) (plurality opinion of BRENNAN, J.), four Members of
the Court assumed for the purposes of that case that a State
may regulate the sexual behavior of minors, while four other
Members of the Court more emphatically stated that such
regulation would be permissible. Id. at 431 U. S. 702, 431 U.
S. 703 (WHITE, J., concurring in part and concurring in
result); id. at 431 U. S. 705-707, 431 U. S. 709 (POWELL, J.,
concurring in part and concurring in judgment); id. at 431 U.
S. 713 (STEVENS, J., concurring in part and concurring in
judgment); id. at 431 U. S. 718 (REHNQUIST, J., dissenting).
The Court has long recognized that State has even broader
authority to protect the physical, mental, and moral wellbeing
of its youth than of its adults. See, e.g., Planned Parenthood of
Central Mo. v. Danforth, 428 U. S. 52, 428 U. S. 72-74
(1976); Ginsberg v. New York, 390 U. S. 629, 390 U. S. 639-
640 (1968); Prince v. Massachusetts, 321 U. S. 158, 321 U. S.
170 (1944).
[Footnote 9]
Petitioner contends that a gender-neutral statute would not
hinder prosecutions because the prosecutor could take into
account the relative burdens on females and males and
generally only prosecute males. But to concede this is to
concede all. If the prosecutor, in exercising discretion, will
virtually always prosecute just the man and not the woman, we
do not see why it is impermissible for the legislature to enact a
statute to the same effect.
[Footnote 10]
The question whether a statute is substantially related to its
asserted goals is, at best, an opaque one. It can be plausibly
argued that a gender-neutral statute would produce fewer
prosecutions than the statute at issue here. See STEWART, J.,
concurring, post at 450 U. S. 481, n. 13. JUSTICE
BRENNAN's dissent argues, on the other hand, that
"even assuming that a gender-neutral statute would be more
difficult to enforce, . . . [c]ommon sense . . . suggests that a
gender-neutral statutory rape law is potentially a greater
deterrent of sexual activity than a gender-based law, for the
simple reason that a gender-neutral law subjects both men and
women to criminal sanctions, and thus arguably has a deterrent
effect on twice as many potential violators."
Post at 450 U. S. 493-494 (emphasis deleted). Where such
differing speculations as to the effect of a statute are plausible,
we think it appropriate to defer to the decision of the
California Supreme Court,
"armed as it was with the knowledge of the facts and
circumstances concerning the passage and potential impact of
[the statute], and familiar with the milieu in which that
provision would operate."
Reitman v. Mulkey, 387 U. S. 369, 387 U. S. 378-379 (1967).
It should be noted that two of the three cases relied upon by
JUSTICE BRENNAN's dissent are readily distinguishable
from the instant one. See post at 450 U. S. 490, n. 3. In both
Navedo v. Preisser, 630 F.2d 636 (CA8 1980), and Meloon v.
Helgemoe, 564 F.2d 602 (CA1 1977), cert. denied, 436 U.S.
950 (1978), the respective governments asserted that the
purpose of the statute vas to protect young women from
physical injury. Both courts rejected the justification on the
grounds that there had been no showing that young females
are more likely than males to suffer physical injury from
sexual intercourse. They further held, contrary to our decision,
that pregnancy prevention was not a "plausible" purpose of the
legislation. Thus, neither court reached the issue presented
here, whether the statute is substantially related to the
prevention of teenage pregnancy. Significantly, Meloon has
been severely limlted by Rundlett v. Oliver, 607 F.2d 495
(CA1 1979), where the court upheld a statutory rape law on
the ground that the State had shown that sexual intercourse
physically injures young women more than males. Here, of
course, even JUSTICE BRENNAN's dissent does not dispute
that young women suffer disproportionately the deleterious
consequences of illegitimate pregnancy.
JUSTICE STEWART, concurring.
Section 261.5, on its face, classifies on the basis of sex. A
male who engages in sexual intercourse with an underage
female who is not his wife violates the statute; a female who
engages in sexual intercourse with an underage male who is
not her husband does not. [Footnote 2/1] The petitioner
contends that this state law, which punishes only males for the
conduct in question, violates his Fourteenth Amendment right
to the equal protection of the law. The Court today correctly
rejects that contention.
A
At the outset, it should be noted that the statutory
discrimination, when viewed as part of the wider scheme of
California law, is not as clearcut as might at first appear.
Females are not freed from criminal liability in California for
engaging in sexual activity that may be harmful. It is unlawful,
for example, for any person, of either sex, to molest, annoy, or
contribute to the delinquency of anyone under 18 years of
Page 450 U. S. 477
age. [Footnote 2/2] All persons are prohibited from
committing "any lewd or lascivious act," including consensual
intercourse, with a child under 14. [Footnote 2/3] And
members of both sexes may be convicted for engaging in
deviant sexual acts with anyone under 18. [Footnote 2/4]
Finally, females may be brought within the proscription of §
261.5 itself, since a female may be charged with aiding and
abetting its violation. [Footnote 2/5]
Section 261.5 is thus but one part of a broad statutory scheme
that protects all minors from the problems and risks attendant
upon adolescent sexual activity. To be sure, § 261.5 creates an
additional measure of punishment for males who engage in
sexual intercourse with females between the ages of 14 and
17. [Footnote 2/6] The question then is whether the
Constitution prohibits a state legislature from imposing this
additional sanction on a gender-specific basis.
B
The Constitution is violated when government, state or
federal, invidiously classifies similarly situated people on the
basis of the immutable characteristics with which they were
Page 450 U. S. 478
born. Thus, detrimental racial classifications by government
always violate the Constitution, for the simple reason that, so
far as the Constitution is concerned, people of different races
are always similarly situated. See Fullilove v. Klutznick, 448
U. S. 448, 448 U. S. 522 (dissenting opinion); McLaughlin v.
Florida, 379 U. S. 184, 379 U. S. 198 (concurring opinion);
Brown v. Board of Ed., 347 U. S. 483; Plessy v. Ferguson, 163
U. S. 537, 163 U. S. 552 (dissenting opinion). By contrast,
while detrimental gender classifications by government often
violate the Constitution, they do not always do so, for the
reason that there are differences between males and females
that the Constitution necessarily recognizes. In this case, we
deal with the most basic of these differences: females can
become pregnant as the result of sexual intercourse; males
cannot.
As was recognized in Parham v. Hughes, 441 U. S. 347, 441
U. S. 354,
"a State is not free to make overbroad generalizations based on
sex which are entirely unrelated to any differences between
men and women or which demean the ability or social status
of the affected class."
Gender-based classifications may not be based upon
administrative convenience, or upon archaic assumptions
about the proper roles of the sexes. Craig v. Boren, 429 U. S.
190; Frontiero v. Richardson, 411 U. S. 677; Reed v. Reed,
404 U. S. 71. But we have recognized that, in certain narrow
circumstances, men and women are not similarly situated; in
these circumstances, a gender classification based on clear
differences between the sexes is not invidious, and a
legislative classification realistically based upon those
differences is not unconstitutional. See Parham v. Hughes,
supra; Califano v. Webster, 430 U. S. 313, 430 U. S. 316-317;
Schlesinger v. Ballard, 419 U. S. 498; cf. San Antonio
Independent School Dist v. Rodriguez, 411 U. S. 1, 411 U. S.
59 (concurring opinion).
"[G]ender-based classifications are not invariably invalid.
When men and women are not, in fact, similarly situated in the
area covered by the legislation in question, the Equal
Protection Clause is not violated."
Caban v. Mohammed, 441 U. S. 380, 441 U. S. 398
(dissenting opinion).
Page 450 U. S. 479
Applying these principles to the classification enacted by the
California Legislature, it is readily apparent that § 261.5 does
not violate the Equal Protection Clause. Young women and
men are not similarly situated with respect to the problems and
risks associated with intercourse and pregnancy, and the
statute is realistically related to the legitimate state purpose of
reducing those problems and risks.
C
As the California Supreme Court's catalog shows, the pregnant
unmarried female confronts problems more numerous and
more severe than any faced by her male partner. [Footnote
2/7] She alone endures the medical risks of pregnancy or
abortion. [Footnote 2/8] She suffers disproportionately the
social, educational, and emotional consequences of pregnancy.
[Footnote 2/9] Recognizing this disproportion,
Page 450 U. S. 480
California has attempted to protect teenage females by
prohibiting males from participating in the act necessary for
conception. [Footnote 2/10]
The fact that males and females are not similarly situated with
respect to the risks of sexual intercourse applies with the same
force to males under 18 as it does to older males. The risk of
pregnancy is a significant deterrent for unwed young females
that is not shared by unmarried males, regardless of their age.
Experienced observation confirms the common sense notion
that adolescent males disregard the possibility of pregnancy
far more than do adolescent females. [Footnote 2/11] And to
the extent that § 261.5 may punish males for intercourse with
prepubescent females, that punishment is justifiable because of
the substantial physical risks for prepubescent females that are
not shared by their male counterparts. [Footnote 2/12]
Page 450 U. S. 481
D in acts made unlawful by § 261.5 between 1975 and 1979
The petitioner argues that the California Legislature could
have drafted the statute differently, so that its purpose would
be accomplished more precisely.
"But the issue, of course, is not whether the statute could have
been drafted more wisely, but whether the lines chosen by
the . . . [l]egislature are within constitutional limitations."
Kahn v. Shevin, 416 U. S. 351, 416 U. S. 356, n. 10. That
other States may have decided to attack the same problems
more broadly, with gender-neutral statutes, does not mean that
every State is constitutionally compelled to do so. [Footnote
2/13]
E The court noted that, from 1971 through 1976, 83.6% of the
In short, the Equal Protection Clause does not mean that the
physiological differences between men and women must be
disregarded. While those differences must never be permitted
to become a pretext for invidious discrimination, no such
discrimination is presented by this case. The Constitution
surely does not require a State to pretend that demonstrable
differences between men and women do not really exist.
[Footnote 2/1]
But see n. 5 and accompanying text, infra.
[Footnote 2/2]
See Cal.Penal Code Ann. §§ 272, 647a (West Supp. 1981).
[Footnote 2/3]
Cal.Penal Code Ann. § 288 (West Supp. 1981). See People v.
Dontanville, 10 Cal.App.3d 783, 796, 89 Cal.Rptr. 172, 180
(2d Dist.).
[Footnote 2/4]
See Cal.Penal Code Ann. §§ 286(b)(1), 288a(b)(1) (West
Supp. 1981) .
[Footnote 2/5]
See Cal.Penal Code Ann. § 31 (West 1970); People v.
Haywood, 131 Cal.App.2d 259, 280 P.2d 180 (2d Dist.);
People v. Lewis, 113 Cal.App.2d 468, 248 P.2d 461 (1st
Dist.). According to statistics maintained by the California
Department of Justice Bureau of Criminal Statistics,
approximately 14% of the juveniles arrested for participation
were females. Moreover, an underage female who is as
culpable as her male partner, or more culpable, may be
prosecuted as a juvenile delinquent. Cal.Welf. & Inst.Code
Ann. § 602 (West Supp. 1981); In re Gladys R., 1 Cal.3d 855,
867-869, 464 P.2d 127, 136-138.
[Footnote 2/6]
Males and females are equally prohibited by § 288 from
sexual intercourse with minors under 14. Compare Cal.Penal
Code Ann. § 288 (West Supp. 1981) with Cal.Penal Code
Ann. §§ 18, 264 (West Supp. 1981).
[Footnote 2/7]
4,860 children born to girls uder 15 in California were
illegitimate, as were 51% of those born to girls 15 to 17. The
court also observed that, while accounting for only 21% of
California pregnancies in 1976, teenagers accounted for 34.7%
of legal abortions. See ante at 450 U. S. 470, n. 3.
[Footnote 2/8]
There is also empirical evidence that sexual abuse of young
females is a more serious problem than sexual abuse of young
males. For example, a review of five studies found that 88% of
sexually abused minors were female. Jaffe, Dynneson, & ten
Bensel, Sexual Abuse of Children, 129 Am.J. of Diseases of
Children 689, 690 (1975). Another study, involving
admissions to a hospital emergency room over a 3-year period,
reported that 86 of 100 children examined for sexual abuse
were girls. Orr & Prietto, Emergency Management of Sexually
Abused Children, 133 Am.J. of Diseased Children 630 (1979).
See also State v. Craig, 169 Mont. 150, 156-157, 545 P.2d
649, 653; Sarafino, An Estimate of Nationwide Incidence of
Sexual Offenses Against Children, 58 Child Welfare 127, 131
(1979).
[Footnote 2/9]
Most teenage mothers do not finish high school, and are
disadvantaged economically thereafter. See Moore, Teenage
Childbirth and Welfare Dependency, 10 Family Planning
Perspectives 233-235 (1978). The suicide rate for teenage
mothers is seven times greater than that for teenage girls
without children. F. Nye, School-Age Parenthood (Wash.State
U.Ext.Bull. No. 667) 8 (1976). And 60% of adolescent
mothers aged 15 to 17 are on welfare within two to five years
of the birth of their children. Teenage Pregnancy, Everybody's
Problem 3-4 (DHEW Publication (HSA) No. 77-5619).
[Footnote 2/10]
Despite the increased availability of contraceptives and sex
education, the pregnancy rates for young women are
increasing. See Alan Guttmacher Institute, 11 Million
Teenagers 12 (1976). See generally C. Chilman, Adolescent
Sexuality in a Changing American Society (NIH Pub. No. 80-
1426, 1980).
The petitioner contends that the statute is overinclusive
because it does not allow a defense that contraceptives were
used, or that procreation was for some other reason
impossible. The petitioner does not allege, however, that he
used a contraceptive, or that pregnancy could not have resulted
from the conduct with which he was charged. But even
assuming the petitioner's standing to raise the claim of
overbreadth, it is clear that a statute recognizing the defenses
he suggests would encounter difficult, if not impossible,
problems of proof.
[Footnote 2/11]
See, e.g., Phipps-Yonas, Tecnage Pregnancy and Motherhood,
50 Am.J.Orthopsychiatry 403, 412 (1980). See also State v.
Rundlett, 391 A.2d 815, 819, n. 13, 822 (Me.); Rundlett v.
Oliver, 607 F.2d 495, 502 (CA1).
[Footnote 2/12]
See Barnes v. State, 244 Ga. 302, 260 S.E.2d 40; see generally
Orr & Prietto, supra; Jaffee, Dynneson, & ten Bensel, supra;
Chilman, supra.
[Footnote 2/13]
The fact is that a gender-neutral statute would not necessarily
lead to a closer fit with the aim of reducing the problems
associated with teenage pregnancy. If both parties were
equally liable to prosecution, a female would be far less likely
to complain; the very complaint would be self-incriminating.
Accordingly, it is possible that a gender-neutral statute would
result in fewer prosecutions than the one before us.
In any event, a state legislature is free to address itself to what
it believes to be the most serious aspect of a broader problem.
"[T]he Equal Protection Clause does not require that a State
must choose between attacking every aspect of a problem or
not attacking the problem at all."
Dandridge v. Williams, 397 U. S. 471, 397 U. S. 486-487; see
also Williamson v. Lee Optical Co., 348 U. S. 483.
JUSTICE BLACKMUN, concurring in the judgment.
It is gratifying that the plurality recognizes that, "[a]t the risk
of stating the obvious, teenage pregnancies . . . have increased
dramatically over the last two decades," and "have significant
social, medical, and economic consequences for both
Page 450 U. S. 482
the mother and.her child, and the State." Ante at 450 U. S. 470
(footnotes omitted). There have been times when I have
wondered whether the Court was capable of this perception,
particularly when it has struggled with the different but not
unrelated problems that attend abortion issues. See, for
example, the opinions (and the dissenting opinions) in Beal v.
Doe, 432 U. S. 438 (1977); Maher v. Roe, 432 U. S. 464
(1977); Poelker v. Doe, 432 U. S. 519 (1977); Harris v.
McRae, 448 U. S. 297 (1980); Williams v. Zbaraz, 448 U. S.
358 (1980); and today's opinion in H.L. v. Matheson, ante p.
450 U. S. 389.
Some might conclude that the two uses of the criminal
sanction -- here flatly to forbid intercourse in order to forestall
teenage pregnancies, and, in Matheson, to prohibit a
physician's abortion procedure except upon notice to the
parents of the pregnant minor -- are vastly different
proscriptions. But the basic social and privacy problems are
much the same. Both Utah's statute in Matheson and
California's statute in this case are legislatively created tools
intended to achieve similar ends and addressed to the same
societal concerns: the control and direction of young people's
sexual activities. The plurality opinion impliedly concedes as
much when it notes that "approximately half of all teenage
pregnancies end in abortion," and that "those children who are
born" are "likely candidates to become wards of the State,"
Ante at 450 U. S. 471, and n. 6.
I, however, cannot vote to strike down the California statutory
rape law, for I think it is a sufficiently reasoned and
constitutional effort to control the problem at its inception. For
me, there is an important difference between this state action
and a State's adamant and rigid refusal to face, or even to
recognize, the "significant . . consequences" -- to the woman --
of a forced or unwanted conception. I have found it difficult to
rule constitutional, for example, state efforts to block, at that
later point, a woman's attempt to deal with the enormity of the
problem confronting her, just as I have rejected state efforts to
prevent women from rationally taking
Page 450 U. S. 483

steps to prevent that problem from arising. See, e.g., Carey v.
Population Services International, 431 U. S. 678 (1977). See
also Griswold v. Connecticut, 381 U. S. 479 (1965). In
contrast, I am persuaded that, although a minor has substantial
privacy rights in intimate affairs connected with procreation,
California's efforts to prevent teenage pregnancy are to be
viewed differently from Utah's efforts to inhibit a woman from
dealing with pregnancy once it has become an inevitability.
as a felony, rather than as a misdemeanor chargeable under §
261.5. But the State has chosen to prosecute in that
Page 450 U. S. 487
manner, and the facts, I reluctantly conclude, may fit the
crime.
Page 450 U. S. 488

Craig v. Boren, 429 U. S. 190 (1976), was an opinion which, * Sharon at the preliminary hearing testified as follows:
in large part, I joined, id. at 429 U. S. 214. The plurality
opinion in the present case points out, ante at 450 U. S. 468- "Q [By the Deputy District Attorney]. On June the 4th, at
469, the Court's respective phrasings of the applicable test in approximately midnight -- midnight of June the 3rd, were you
Reed v. Reed, 404 U. S. 71, 404 U. S. 76 (1971), and in Craig in Rohnert Park?"
v. Boren, 429 U.S. at 429 U. S. 197. I vote to affirm the
judgment of the Supreme Court of California and to uphold "A [by Sharon]. Yes."
the State's gender-based classification on that test and as
exemplified by those two cases and by Schlesinger v. Ballard, "Q. Is that in Sonoma County?"
419 U. S. 498 (1975); Weinberger v. Wiesenfeld, 420 U. S.
636 (1975); and Kahn v. Shevin, 416 U. S. 351 (1974). "A. Yes."

I note also that § 261.5 of the California Penal Code is just one "Q. Did anything unusual happen to you that night in Rohnert
of several California statutes intended to protect the juvenile. Park?"
JUSTICE STEWART, in his concurring opinion,
appropriately observes that § 261.5 is "A. Yes."

"but one part of a broad statutory scheme that protects all "Q. Would you briefly describe what happened that night? Did
minors from the problems and risks attendant upon adolescent you see the defendant that night in Rohnert Park?"
sexual activity."
"A. Yes."
Ante at 450 U. S. 477.
"Q. Where did you first meet him?"
I think too that it is only fair, with respect to this particular
petitioner, to point out that his partner, Sharon, appears not to "A. At a bus stop."
have been an unwilling participant in at least the initial stages
of the intimacies that took place the night of June 3, 1978. * "Q. Was anyone with you?"
Petitioner's and Sharon's nonacquaintance
"A. My sister."
Page 450 U. S. 484
"Q. Was anyone with the defendant?"
with each other before the incident: their drinking; their
withdrawal from the others of the group; their foreplay, in "A. Yes."
which she willingly participated and seems to have
encouraged; "Q. How many people were with the defendant?"

Page 450 U. S. 485 "A. Two."

and the closeness of their ages (a difference of only one year "Q. Now, after you met the defendant, what happened?"
and 18 days) are factors that should make this case an
unattractive one to prosecute at all, and especially to prosecute "A. We walked down to the railroad tracks."

Page 450 U. S. 486 "Q. What happened at the railroad tracks?"

"A. We were drinking at the railroad tracks and we walked "A. He slugged me in the face."
over to this bush and he started kissing me and stuff, and I was
kissing him back, too, at first. Then, I was telling him to stop "Q. With what did he slug you?"
-- "
"A. His fist."
"Q. Yes."
"Q. Where abouts in the face?"
"A. -- and I was telling him to slow down and stop. He said,
'Okay, okay.' But then he just kept doing it. He just kept doing "A. On my chin."
it, and then my sister and two other guys came over to where
we were and my sister said -- told me to get up and come "Q. As a result of that, did you have any bruises or any kind of
home. And then I didn't -- " an injury?"

"Q. Yes." "A. Yeah."

"A. -- and then my sister and -- " "Q. What happened?"

"Q. All right." "A. I had bruises."

"A. -- David, one of the boys that were there, started walking "The Court: Did he hit you one time or did he hit you more
home, and we stayed there, and then later -- " than once?"

"Q. All right." "The Witness: He hit me about two or three times."

"A. -- Bruce left Michael, you know." ****

"The Court: Michael being the defendant?" "Q. Now, during the course of that evening, did the defendant
ask you your age?"
"The Witness: Yeah. We was laying there and we were kissing
each other, and then he asked me if I wanted to walk him over "A. Yeah."
to the park; so we walked over to the park and we sat down on
a bench and then he started kissing me again, and we were "Q. And what did you tell him?"
laying on the bench. And he told me to take my pants off."
"A. Sixteen."
"I said, 'No,' and I was trying to get up and he hit me back
down on the bench, and then I just said to myself, 'Forget it,' "Q. Did you tell him you were sixteen?"
and I let him do what he wanted to do, and he took my pants
off and he was telling me to put my legs around him and stuff "A. Yes."
-- "
"Q. Now, you said you had been drinking, is that correct?"
"Q. Did you have sexual intercourse with the defendant?"
"A. Yes."
"A. Yeah."
"Q. Would you describe your condition as a result of the
"Q. He did put his penis into your vagina?" drinking?"

"A. Yes." "A. I was a little drunk."

"Q. You said that he hit you?" App. 20-23.

"A. Yeah." CROSS-EXAMINATION

"Q. How did he hit you?" "Q. Did you go off with Mr. M. away from the others?"
"A. Yeah."
"Q. Did you go home with her?"
"Q. Why did you do that?"
"A. No."
"A. I don't know. I guess I wanted to."
"Q. You wanted to stay with Mr. M.?"
"Q. Did you have any need to go to the bathroom when you
were there." "A. I don't know."

"A. Yes." "Q. Was this before or after he hit you?"

"Q. And what did you do?" "A. Before."

"A. Me and my sister walked down the railroad tracks to some ****
bushes and went to the bathroom."
"Q. What happened in the five minutes that Bruce stayed there
"Q. Now, you and Mr. M., as I understand it, went off into the with you and Michael?"
bushes, is that correct?"
"A. I don't remember."
"A. Yes."
"Q. You don't remember at all?"
"Q. Okay. And what did you do when you and Mr. M. were
there in the bushes?" "A. (Negative head shake.)"

"A. We were kissing and hugging." "Q. Did you have occasion at that time to kiss Bruce?"

"Q. Were you sitting up?" "A. Yeah."

"A. We were laying down." "Q, You did? You were kissing Bruce at that time?"

"Q. You were lying down. This was in the bushes?" "A. (Affirmative nod.)"

"A. Yes." "Q. Was Bruce kissing you?"

"Q. How far away from the rest of them were you?" "A. Yes."

"A. They were just bushes right next to the railroad tracks. We "Q. And were you standing up at this time?"
just walked off into the bushes; not very far."
"A. No, we were sitting down."
****
"Q. Okay, so at this point in time, you had left Mr, M. and you
"Q. So your sister and the other two boys came over to where were hugging and kissing with Bruce, is that right?"
you were, you and Michael were, is that right?"
"A. Yeah."
"A. Yeah."
"Q. And you were sitting up."
"Q. What did they say to you, if you remember?"
"A. Yes,"
"A. My sister didn't say anything. She said, 'Come on, Sharon,
let's go home.'" "Q. Was your sister still there then?"

"Q. She asked you to go home with her?" "A. No. Yeah, she was at first"

"A. (Affirmative nod.)" "Q. What was she doing?"


"A. She was standing up with Michael and David,"
"Q. Yes. Was she doing anything with Michael and David?"
"A. No, I don't think so."
"Q. Whose idea was it for you and Bruce to kiss? Did you
initiate that?"
"A. Yes."
"Q. What happened after Bruce left?"
"A. Michael asked me if I wanted to go walk to the park."
"Q. And what did you say?"
"A. I said 'Yes.'"
"Q. And then what happened?"
"A. We walked to the park,"
****
"Q. How long did it take you to get to the park?"
"A. About ten or fifteen minutes."
"Q. And did you walk there?"
"A. Yes."
"Q. Did Mr. M. ever mention his name?"
"A. Yes."
Id. at 27-32.
JUSTICE BRENNAN, with whom JUSTICES WHITE and
MARSHALL join, dissenting.
It is disturbing to find the Court so splintered on a case that
presents such a straightforward issue: whether the admittedly
gender-based classification in Cal.Penal Code Ann. 261.5
(West Supp. 1981) bears a sufficient relationship to the State's
asserted goal of preventing teenage pregnancies to survive the
"mid-level" constitutional scrutiny mandated by Craig v.
Boren, 429 U. S. 190 (1976). [Footnote 3/1] Applying the
analytical framework provided by our precedents, I am
convinced that there is only one proper resolution of this issue:
the classification must be declared unconstitutional. I fear that
the plurality opinion and JUSTICES STEWART and
BLACKMUN reach the opposite result by placing too much
emphasis on the desirability of achieving the State's asserted
statutory goal -- prevention of teenage pregnancy -- and not
enough emphasis on the fundamental question of whether the
sex-based discrimination
Page 450 U. S. 489
in the California statute is substantially related to the
achievement of that goal. [Footnote 3/2]
II
After some uncertainty as to the proper framework for
analyzing equal protection challenges to statutes containing
gender-based classifications, see ante at 450 U. S. 468, this
Court settled upon the proposition that a statute containin a
gender-based classification cannot withstand constitutional
challenge unless
Page 450 U. S. 490
the classification is substantially related to the achievement of
an important governmental objective. Kirchberg v. Feenstra,
ante at 450 U. S. 459; Wengler v. Druggists Mutual Ins. Co.,
446 U. S. 142, 446 U. S. 150 (1980); Califano v. Westcott,
443 U. S. 76, 443 U. S. 85 (1979); Caban v. Mohammed, 441
U. S. 380, 441 U. S. 388 (1979); Orr v. Orr, 440 U. S. 268,
440 U. S. 279 (1979); Califano v. Goldfarb, 430 U. S. 199,
430 U. S. 210-211 (1977); Califano v. Webster, 430 U. S. 313,
430 U. S. 316-317 (1977); Craig v. Boren, supra at 429 U. S.
197. This analysis applies whether the classification
discriminates against males or against females. Caban v.
Mohammed, supra at 441 U. S. 394; Orr v. Orr, supra at 440
U. S. 278-279; Craig v. Boren, supra, at 429 U. S. 204. The
burden is on the government to prove both the importance of
its asserted objective and the substantial relationship between
the classification and that objective. See Kirchberg v.
Feenstra, ante at 450 U. S. 461; Wengler v. Druggists Mutual
Ins. Co., supra at 446 U. S. 151-152; Caban v. Mohammed,
supra at 441 U. S. 393; Craig v. Boren, supra at 429 U. S. 204.
And the State cannot meet that burden without showing that a
gender-neutral statute would be a less effective means of
achieving that goal. Wengler v. Druggists Mutual Ins. Co.,
supra at 446 U. S. 151-152; Orr v. Orr, supra, at 440 U. S. 281,
283. [Footnote 3/3]
The State of California vigorously asserts that the "important
governmental objective" to be served by § 261.5 is the
prevention of teenage pregnancy. It claims that its statute
furthers this goal by deterring sexual activity by males -- the
class of persons it considers more responsible for causing
those pregnancies. [Footnote 3/4] But even assuming that
prevention of teenage
Page 450 U. S. 491
pregnancy is an important governmental objective and that it
is, in fact, an objective of § 261.5, see infra, at 450 U. S. 491-
196, California still has the burden of proving that there are
fewer teenage pregnancies under its gender-based statutory
rape law than there would be if the law were gender-neutral.
To meet this burden, the State must show that, because its
statutory rape law punishes only males, and not females, it
more effectively deters minor females from having sexual
intercourse. [Footnote 3/5]
The plurality assumes that a gender-neutral statute would be
less effective than § 261.5 in deterring sexual activity because
a gender-neutral statute would create significant enforcement
problems. The plurality thus accepts the State's assertion that
"a female is surely less likely to report violations of the statute
if she herself would be subject to crimina prosecution.
Page 450 U. S. 492
In an area already fraught with prosecutorial difficulties, we
decline to hold that the Equal Protection Clause requires a
legislature to enact a statute so broad that it may well be
incapable of enforcement."
Ante at 450 U. S. 473-474 (footnotes omitted). However, a
State's bare assertion that its gender-based statutory
classification substantially furthers an important governmental
interest is not enough to meet its burden of proof under Craig
v. Boren. Rather, the State must produce evidence that will
persuade the court that its assertion is true. See Craig v. Boren,
429 U.S. at 429 U. S. 200-204.
The State has not produced such evidence in this case.
Moreover, there are at least two serious flaws in the State's
assertion that law enforcement problems created by a gender-
neutral statutory rape law would make such a statute less
effective than a gender-based statute in deterring sexual
activity.
First, the experience of other jurisdictions, and California
itself, belies the plurality's conclusion that a gender-neutral
statutory rape law "may well be incapable of enforcement."
There are now at least 37 States that have enacted gender-
neutral statutory rape laws. Although most of these laws
protect young persons (of either sex) from the sexual
exploitation of older individuals, the laws of Arizona, Florida,
and Illinois permit prosecution of both minor females and
minor males for engaging in mutual sexual conduct. [Footnote
3/6] California has introduced no evidence that those States
have been handicapped
Page 450 U. S. 493
by the enforcement problems the plurality finds so persuasive.
[Footnote 3/7] Surely, if those States could provide such
evidence, we might expect that California would have
introduced it.
In addition, the California Legislature in recent years has
revised other sections of the Penal Code to make them gender-
neutral. For example, Cal.Penal Code Ann. §§ 286(b)(1) and
288a(b)(1) (West Supp. 1981), prohibiting sodomy and oral
copulation with a "person who is under 18 years of age," could
cause two minor homosexuals to be subjected to criminal
sanctions for engaging in mutually consensual conduct. Again,
the State has introduced no evidence to explain why a gender-
neutral statutory rape law would be any more difficult to
enforce than those statutes.
The second flaw in the State's assertion is that, even assuming
that a gender-neutral statute would be more difficult to
enforce, the State has still not shown that those enforcement
problems would make such a statute less effective than a
gender-based statute in deterring minor females from engaging
in sexual intercourse. [Footnote 3/8] Common sense, however,
suggests
Page 450 U. S. 494
that a gende-neutral statutory rape law is potentially a rgeater
deterrent of sexual activity than a gender-based law, for the
simple reason that a gender-neutral law subjects both men and
women to criminal sanctions, and thus arguably has a deterrent
effect on twice as many potential violators. Even if fewer
persons were prosecuted under the gender-neutral law, as the
State suggests, it would still be true that twice as many persons
would be subject to arrest. The State's failure to prove that a
gender-neutral law would be a less effective deterrent than a
gender-based law, like the State's failure to prove that a
gender-neutral law would be difficult to enforce, should have
led this Court to invalidate § 261.5.
III
Until very recently, no California court or commentator had
suggested that the purpose of California's statutory rape law
was to protect young women from the risk of pregnancy.
Indeed, the historical development of § 261.5 demonstrates
that the law was initially enacted on the premise that young
women, in contrast to young men, were to be deemed legally
incapable of consenting to an act of sexual intercourse.
[Footnote 3/9] Because
Page 450 U. S. 495
their chastity was considered particularly precious, those
young women were felt to be uniquely in need of the State's
protection. [Footnote 3/10] In contrast, young men were
assumed to
Page 450 U. S. 496
be capable of making such decisions for themselves; the law
therefore did not offer them any special protection.
It is perhaps because the gender classifiation in California's
statutory rape law was initially designed to further these
outmoded sexual stereotypes, rather than to reduce the
incidence of teenage pregnancies, that the State has been
unable to demonstrate a substantial relationship beween the
classification and its newly asserted goal. Cf. Califano v.
Goldfarb, 430 U.S. at 430 U. S. 223 (STEVENS, J.,
concurring in judgment). But whatever the reason, the State
has not shown that Cal.Penal Cod § 261.5 is any more
effective than a gender-neutral law would be in deterring
minor females from engaging in sexual intercourse. It has
therefore not met its burden of proving that the statutory
classification is substantially related to the achievement of its
asserted goal.
I would hold that § 261.5 violates the Equal Protection Clause
of the Fourteenth Amendment, and I would reverse the
judgment of the California Supreme Court.
[Footnote 3/1]
The California Supreme Court acknowledged, and indeed the
parties do not dispute, that Cal.Penal Code Ann. § 261.5 (West
Supp. 1981) discriminates on the basis of sex. Ante at 450 U.
S. 467. Because petitioner is male, he faces criminal felony
charges and a possible prison term, while his female partner
remains immune from prosecution. The gender of the
participants, not their relative responsibility, determines which
of them is subject to criminal sanctions under § 2615
As the California Supreme Court stated in People v.
Hernandez, 61 Cal.2d 529, 531, 393 P.2d 673, 674 (1964)
(footnote omitted):
"[E]ven in circumstances where a girl's actual comprehension
contradicts the law's presumption [that a minor female is too
innocent and naive to understand the implications and nature
of her act], the male is deemed criminally responsible for the
act, although himself young and naive and responding to
advances which may have been made to him."
[Footnote 3/2]
None of the three opinions upholding the California statute
fairly applies the equal protection analysis this Court has so
carefully developed since Craig v. Boren, 429 U. S. 190
(1976). The plurality opinion, for example, focusing on the
obvious and uncontested fact that only females can become
pregnant, suggests that the statutory gender discrimination,
rather than being invidious, actually ensures equality of
treatment. Since only females are subject. to a risk of
pregnancy, the plurality opinion concludes that "[a] criminal
sanction imposed solely on males . . . serves to roughly
equalize' the deterrents on the sexes." Ante at 450 U. S. 473.
JUSTICE STEWART adopts a similar approach. Recognizing
that "females can become pregnant as the result of sexual
intercourse; males cannot," JUSTICE STEWART concludes
that "[y]oung women and men are not similarly situated with
respect to the problems and risks associated with intercourse
and pregnancy," and therefore § 261.5 "is realistically related
to the legitimate state purpose of reducing those problems and
risks" (emphasis added). Ante at 450 U. S. 478, 450 U. S. 479.
JUSTICE BLACKMUN, conceding that some limits must. be
placed on a State's power to regulate "the control and direction
of young people's sexual activities," also finds the statute
constitutional. Ante at 450 U. S. 482. He distinguishes the
State's power in the abortion context, where the pregnancy has
already occurred, from its power in the present context, where
the "problem [is] at its inception." He then concludes, without
explanation, that "the California statutory rape law . . . is a
sufficiently reasoned and constitutional effort to control the
problem at its inception." Ibid.
All three of these approaches have a common failing. They
overlook the fact that the State has not met its hurden of
proving that the gender discrimination in § 261.5 is
substantially related to the achievement of the State's asserted
statutory goal. My Brethren seem not to recognize that
California has the burden of proving that a gender-neutral
statutory rape law would be less effective than § 261.5 in
deterring sexual activity leading to teenage pregnancy.
Because they fail to analyze the issue in these terms, I believe
they reach an unsupportable result.
[Footnote 3/3]
Gender-based statutory rape laws were struck down in Navedo
v. Preisser, 630 F.2d 636 (CA8 1980), United State v. Hicks,
625 F.2d 216 (CA9 1980), and Meloon v. Helgemoe, 564 F.2d
602 (CA1 1977), cert. denied, 436 U.S. 950 (1978), precisely
because the government failed to meet this burden of proof.
[Footnote 3/4]
In a remarkable display of sexual stereotyping, the California
Supreme Court stated:
"The Legislature is well within its power in imposing criminal
sanctions against males alone, because they are the only
persons who may physiologically cause the result which the
law properly seeks to avoid."
25 Cal.3d 608, 612, 601 P.2d 572, 575 (1979) (emphasis in
original).
[Footnote 3/5]
Petitioner has not questioned the State's constitutional power
to achieve its asserted objective by criminalizing consensual
sexual activity. However, I note that our cases would not
foreclose such a privacy challenge.
The State is attempting to reduce the incidence of teenage
pregnancy by imposing criminal sanctions on those who
engage in consensual sexual activity with minor females. We
have stressed, however, that,
"[i]f the right of privacy means anything, it is the right of the
individual, married or single, to be free from unwarranted
governmental intrusion into matters so fundamentally
affecting a person as the decision whether to bear or beget a
child."
Eisenstadt v. Baird, 405 U. S. 438, 405 U. S. 453 (1972)
(footnote omitted). Minors, too, enjoy a right of privacy in
connection with decisions affecting procreation. Carey v.
Population Services International, 431 U. S. 678, 431 U. S.
693 (1977). Thus, despite the suggestion of the plurality to the
contrary, ante at 450 U. S. 472-473, n. 8, it is not settled that a
State may rely on a pregnancy prevention justification to make
consensual sexual intercourse among minors a criminal act.
[Footnote 3/6]
See Ariz.Rev.Stat.Ann. § 13-1405 (1978); Fla.Stat. § 794.05
(1979); Ill.Rev.Stat., ch. 38, � 11-5 (1979). In addition, eight
other States permit both parties to be prosecuted when one of
the participants to a consensual act of sexual intercourse is
under the age of 16. See Kan.Stat.Ann. § 21-3503 (1974);
Mass.Gen.Laws Ann., ch. 265, § 23 (West Supp. 1981);
Mich.Comp.Laws § 750.13 (1970); Mont.Code Ann. §§ 45-5-
501 to 45-5-503 (1979); N.H.Rev.Stat. § 632-A:3 (Supp.
1979); Tenn.Code Ann. § 39-3705 (4) (Supp. 1979); Utah
Code Ann. § 76-5-401 (Supp. 1979); Vt.Stat.Ann., Tit. 13, §
3252(3) (Supp. 1980).
[Footnote 3/7]
There is a logical reason for this. In contrast to laws governing
forcible rape, statutory rape laws apply to consensual sexual
activity. Force is not an element of the crime. Since a woman
who consents to an act of sexual intercourse is unlikely to
report her partner to the police -- whether or not she is subject
to criminal sanctions -- enforcement would not be undermined
if the statute were to be made gender-neutral. See n. 8, infra.
[Footnote 3/8]
As it is, § 261.5 seems to be an ineffective deterrent of sexual
activity. Cf. Carey v. Population Services International, supra
at 431 U. S. 695 (substantial reason to doubt that limiting
access to contraceptives will substantially discourage early
sexual behavior). According to statistics provided by the State,
an average of only 61 juvenile males and 352 adult males were
arrested for statutory rape each year between 1975 and 1978.
Brief for Respondent 19. During each of those years, there
were approximately one million Californian girls between the
ages of 13-17. Cal. Dept. of Finance, Population Projections
for California Counties, 1975-2020, with Age/Sex Detail to
2000, Series 150 (1977). Although the record in this case does
not indicate the incidence of sexual intercourse involving
those girls during that period, the California State Department
of Health estimates that there were almost 50,000 pregnancies
among 13-to-17-year-old girls during 1976. Cal.Dept. of
Health, Birth and Abortion Records, and Physician Survey of
Office Abortions (1976). I think it is fair to speculate from this
evidence that a comparison of the number of arrests for
statutory rape in California with the number of acts of sexual
intercourse involving minor females in that State would likely
demonstrate to a male contemplating sexual activity with a
minor female that his chances of being arrested are
reassuringly low. I seriously question, therefore, whether §
261.5, as enforced, has a substantial deterrent effect . See
Craig v. Boren, 429 U.S. at 429 U. S. 214 (STEVENS, J.,
concurring).
[Footnote 3/9]
California's statutory rape law had its origins in the Statutes of
Westminster enacted during the reign of Edward I at the close
of the 13th century (3 Edw. 1, ch. 13 (1275); 13 Edw. 1, ch. 34
(1285)). The age of consent at that time was 12 years, reduced
to 10 years in 1576 (18 Eliz. 1, ch. 7, § 4). This statute was
part of the common law brought to the United States. Thus,
when the first California penal statute was enacted, it
contained a provision (1850 Cal.Stats., ch. 99, § 47, p. 234)
that proscribed sexual intercourse with females under the age
of 10. In 1889, the California statute was amended to make the
age of consent 14 (1889 Cal.Stats., ch.191, § 1, p. 223). In
1897, the age was advanced to 16 (1897 Cal.Stats., ch. 139, §
1, p. 201). In 1913, it was fixed at 18, where it now remains
(1913 Cal.Stats., ch. 122, § 1, p. 212).
Because females generally have not reached puberty by the
age of 10, it is inconceivable that a statute designed to prevent
pregnancy would be directed at acts of sexual intercourse with
females under that age.
The only legislative history available, the draftsmen's notes to
the Penal Code of 1872, supports the view that the purpose of
California's statutory rape law was to protect those who were
too young to give consent. The draftsmen explained that the
"[statutory rape] provision embodies the well settled rule of
the existing law; that a girl under ten years of age is incapable
of giving any consent to an act of intercourse which can
reduce it below the grade of rape."
Code Commissioners' note, subd. 1, following Cal.Penal Code
§ 261, p. 111 (1st ed. 1872). There was no mention whatever
of pregnancy prevention. See also Note, Forcible and Statutory
Rape: An Exploration of the Operation and Objectives of the
Consent Standard, 62 Yale L.J. 55, 74-76 (1952).
[Footnote 3/10]
Past decisions of the California courts confirm that the law
was designed to protect the State's young females from their
own uninformed decisionmaking. In People v. Verdereen, 106
Cal.211, 214-215, 39 P. 607, 608-609 (1895), for example, the
California Supreme Court stated:
"The obvious purpose of [the statutory rape law] is the
protection of society by protecting from violation the virtue of
young and unsophisticated girls. . . . It is the insidious
approach and vile tampering with their persons that primarily
undermines the virtue of young girls, and eventually destroys
it; and the prevention of this, as much as the principal act,
must undoubtedly have been the intent of the legislature."
As recently as 1964, the California Supreme Court decided
People v. Hernandez, 61 Cal.2d at 531, 393 P.2d at 674, in
which it stated that the under-age female
"is presumed too innocent and naive to understand the
implications and nature of her act. . . . The law's concern with
her capacity or lack thereof to so understand is explained in
part by a popular conception of the social, moral and personal
values which are preserved by the abstinence from sexual
indulgence on the part of a young woman. An unwise
disposition of her sexual favor is deemed to do harm both to
herself and the social mores by which the community's
conduct patterns are established. Hence, the law of statutory
rape intervenes in an effort to avoid such a disposition."
It was only in deciding Michael M. that the California
Supreme Court decided, for the first time in the 130-year
history of the statute, that pregnancy prevention had become
one of the purposes of the statute.
JUSTICE STEVENS, dissenting.
Local custom and belief -- rather than statutory laws of
venerable but doubtful ancestry -- will determine the volume
of sexual activity among unmarried teenagers. [Footnote 4/1]
The empirical
Page 450 U. S. 497
evidence clted by the plurality demonstrates the futility of the
notion that a statutory prohibition will significantly affect the
volume of that activity or provide a meaningful solution to the
problems created by it. [Footnote 4/2] Nevertheless, as a
matter of constitutional power, unlike my Brother
BRENNAN, see ante at 450 U. S. 491, n. 5, I would have no
doubt about the validity of a state law prohibiting all
unmarried teenagers from engaging in sexual intercourse. The
societal interests in reducing the incidence of venereal disease
and teenage pregnancy are sufficient, in my judgment, to
justify a prohibition of conduct that increases the risk of those
harms. [Footnote 4/3]
My conclusion that a nondiscriminatory prohibition would be
constitutional does not help me answer the question whether a
prohibition applicable to only half of the joint participants in
the risk-creating conduct is also valid. It cannot be true that the
validity of a total ban is an adequate justification for a
selective prohibition; otherwise, the constitutional objection to
discriminatory rules would be meaningless. The question in
this case is whether the difference between males and females
justifies this statutory discrimination based entirely on sex.
[Footnote 4/4]
Page 450 U. S. 498
The fact that the Court did not immediately acknowledge that
the capacity to become pregnant is what primarily
differentiates the female from the male [Footnote 4/5] does not
impeach the validity of the plurality's newly found wisdom. I
think the plurality is quite correct in making the assumption
that the joint act that this law seeks to prohibit creates a greater
risk of harm for the female than for the male. But the plurality
surely cannot believe that the risk of pregnancy confronted by
the female -- any more than the risk of venereal disease
confronted by males as well a females -- has provided an
effective deterrent to voluntary female participation in the
risk-creating conduct. Yet the plurality' decision seems to rest
on the assumption that the California Legislature acted on the
basis of that rather fanciful notion.
Page 450 U. S. 499
In my judgment, the fact that a class of persons is especially
vulnerable to a risk that a statute is designed to avoid is a
reason for making the statute applicable to that class. The
argument that a special need for protection provides a rational
explanation for an exemption is one I simply do not
comprehend. [Footnote 4/6]
In this case, the fact that a female confronts a greater risk of
harm than a male is a reason for applying the prohibition to
her -- not a reason for granting her a license to use her own
judgment on whether or not to assume the risk. Surely, if we
examine the problem from the point of view of society's
interest in preventing the risk-creating conduct from occurring
at all, it is irrational to exempt 50% of the potential violators.
See dissent of JUSICE BRENNAN, ante at 450 U. S. 493-494.
And, if we view the government's interest as that of a parens
patriae seeking to protect its subjects from harming
themselves, the discrimination is actually perverse. Would a
rational parent making rules for the conduct of twin children
of opposite sex simultaneously forbid the son and authorize
the daughter to engage in conduct that is especially harmful to
the daughter? That is the effect of this statutory classification.
If pregnancy or some other special harm is suffered by one of
the two participants in the prohibited act, that special harm no
doubt would constitute a legitimate mitigating factor in
deciding what, if any, punishment might be appropriate in a
given case. But from the standpoint of fashioning a general
preventive rule -- or, indeed, in determining appropriate
punishment when neither party in fact has suffered any special
Page 450 U. S. 500
harm -- I regard a total exemption for the members of the more
endangered class as utterly irrational.
In my opinion, the only acceptable justification for a general
rule requiring disparate treatment of the two participants in a
joint act must be a legislative judgment that one is more guilty
than the other. The risk-creating conduct that this statute is
designed to prevent requires the participation of two persons --
one male and one female. [Footnote 4/7] In many situations, it
is probably true that one is the aggressor and the other is either
an unwilling, or at least a less willing, participant in the joint
act. If a statute authorized punishment of only one participant
and required the prosecutor to prove that that participant had
been the aggressor, I assume that the discrimination would be
valid. Although the question is less clear, I also assume, for
the purpose of deciding this case, that it would be permissible
to punish only the male participant if one element of the
offense were proof that he had been the aggressor, or at least
in some respects the more responsible participant, in the joint
act. The statute at issue in this case, however, requires no such
proof. The question raised by this statute is whether the State,
consistently with the Federal Constitution, may always punish
the male and never the female when they are equally
responsible or when the female is the more responsible of the
two.
It would seem to me that an impartial lawmaker could give
only one answer to that question. The fact that the California
Legislature has decided to apply its prohibition only to
Page 450 U. S. 501
the male may reflect a legislative judgment that, in the typical
case the male is actually the more guilty party. Any such
judgment must, in turn, assume that the decision to engage in
the risk-creating conduct is always -- or at least typically -- a
male decision. If that assumption is valid, the statutory
classification should also be valid. But what is the support for
the assumption? It is not contained in the record of this case or
in any legislative history or scholarly study that has been
called to our attention. I think it is supported to some extent by
traditional attitudes toward male-female relationships. But the
possibility that such a habitual attitude may reflect nothing
more than an irrational prejudice makes it an insufficient
justification for discriminatory treatment that is otherwise
blatantly unfair. For, as I read this statute, it requires that one,
and only one, of two equally guilty wrongdoers be stigmatized
by a criminal conviction.
I cannot accept the State's argument that the constitutionality
of the discriminatory rule can be saved by an assumption that
prosecutors will commonly invoke this statute only in cases
that actually involve a forcible rape, but one that cannot be
established by proof beyond a reasonable doubt. [Footnote
4/8] That assumption implies that a State has a legitimate
interest in convicting a defendant on evidence that is
constitutionally insufficient. Of course, the State may create a
lesser-included offense that would authorize punishment of the
more guilty party, but surely the interest in obtaining
convictions on inadequate
Page 450 U. S. 502
proof cannot justify a statute that punishes one who is equally
or less guilty than his partner. [Footnote 4/9]
Nor do I find at all persuasive the suggestion that this
discrimination is adequately justified by the desire to
encourage females to inform against their male partners. Even
if the concept of a wholesale informant's exemption were an
acceptable enforcement device, what is the justification for
defining the exempt class entirely by reference to sex, rather
than by reference to a more neutral criterion such as relative
innocence? Indeed, if the exempt class is to be composed
entirely of members of one sex, what is there to support the
view that the statutory purpose will be better served by
granting the informing license to females, rather than to
males? If a discarded male partner informs on a promiscuous
female, a timely threat of prosecution might well prevent the
precise harm the statute is intended to minimize.
Finally, even if my logic is faulty and there actually is some
speculative basis for treating equally guilty males and females
differently, I still believe that any such speculative
justification would be outweighed by the paramount interest in
evenhanded enforcement of the law. A rule that authorizes
punishment of only one of two equally guilty wrongdoers
violates the essence of the constitutional requirement that the
sovereign must govern impartially.
I respectfully dissent.
[Footnote 4/1]
"Common sense indicates that many young people will engage
in sexual activity regardless of what the New York Legislature
does, and further, that the incidence of venereal disease and
premarital pregnancy is affected by the availability or
unavailability of contraceptives. Although young persons
theoretically may avoid those harms by practicing total
abstention, inevitably many will not."
Carey v. Population Services International, 431 U. S. 678, 431
U. S. 714 (STEVENSI J., concurring in part and in judgment).
[Footnote 4/2]
If a million teenagers became pregnant in 1976, see ante at
450 U. S. 470, n. 3, there must be countless violations of the
California statute. The statistics cited by JUSTICE
BRENNAN also indicate, as he correctly observes, that the
statute "seems to be an ineffective deterrent of sexual
activity." See ante at 450 U. S. 493-494, n. 8.
[Footnote 4/3]
See Carey v. Population Services International, supra, at 431
U. S. 713 (STEVENS, J., concurring in part and in judgment).
[Footnote 4/4]
Equal protection analysis is often said to involve different
"levels of scrutiny." It may be more accurate to say that the
burden of sustaining an equal protection challenge is much
heavier in some cases than in others. Racial classifications,
which are subjected to "strict scrutiny," are presumptively
invalid because there is seldom, if ever, any legitimate reason
for treating citizens differently because of their race. On the
other hand, most economic classifications are presumptively
valid because they are a necessary component of most
regulatory programs. In cases involving discrimination
between men and women, the natural differences between the
sexes are sometimes relevant and sometimes wholly irrelevant.
If those differences are obviously irrelevant, the discrimination
should be t.reated as presumptively unlawful in the same way
that racial clasifications are presumptively unlawful. Cf.
Califano v. Goldfarb, 430 U. S. 199, 430 U. S. 223
(STEVENS, J., concurring in judgment). But if, as in this case,
there is an apparent connection between the discrimination and
the fact that only women can become pregnant, it may be
appropriate to presume that the classification is lawful. This
presumption, however, may be overcome by a demonstration
that the apparent justification for the discrimination is illusory
or wholly inadequate. Thus, instead of applying a "mid-level"
form of scrutiny in all sex discrimination cases, perhaps the
burden is heavier in some than in others. Nevertheless, as I
have previously suggested, the ultimate standard in these, as in
all other equal protection cases, is essentially the same. See
Craig v. Boren, 429 U. S. 190, 429 U. S. 211-212 (STEVENS,
J., concurring). Professor Cox recently noted that, however the
level of scrutiny is described, in the final analysis,
"the Court is always deciding whether, in its judgment, the
harm done to the disadvantaged class by the legislative
classification is disproportionate to the public purposes the
measure is likely to achieve."
Cox, Book Review, 94 Harv.L.Rev. 700, 706 (1981).
[Footnote 4/5]
See General Electric Co. v. Gilbert, 429 U. S. 125, 429 U. S.
162 (STEVENS, J., dissenting).
[Footnote 4/6]
A hypothetical racial classification will illustrate my point.
Assume that skin pigmentation provides some measure of
protection against cancer caused by exposure to certain
chemicals in the atmosphere and, therefore, that white
employees confront a greater risk than black employees in
certain industrial settings. Would it be rational to require black
employees to wear protective clothing but to exempt whites
from that requirement? It seems to me that the greater risk of
harm to white workers would be a reason for including them
in the requirement -- not for granting them an exemption.
[Footnote 4/7]
In light of this indisputable biological fact, I find somewhat
puzzling the California Supreme Court's conclusion, quoted by
the plurality, ante at 450 U. S. 467, that males "are the only
persons who may physiologically cause the result which the
law properly seeks to avoid." 25 Cal.3d 608, 612, 601 P.2d
572, 575 (1979) (emphasis in original). Presumably, the
California Supreme Court was referring to the equally
indisputable biological fact that only females may become
pregnant. However, if pregnancy results from sexual
intercourse between two willing participants -- and the
California statute is directed at such conduct -- I would find it
difficult to conclude that the pregnancy was "caused" solely by
the male participant.
[Footnote 4/8]
According to the State of California:
"The statute is commonly employed in situations involving
force, prostitution, pornography, or coercion due to status
relationships, and the state's interest in these situations is
apparent."
Brief for Respondent 3. See also id. at 23-25. The State's
interest in these situations is indeed apparent, and certainly
sufficient to justify statutory prohibition of forcible rape,
prostitution, pornography, and nonforcible, but nonetheless
coerced, sexual intercourse. However, it is not at all apparent
to me how this state interest can justify a statute not
specifically directed to any of these offenses.
[Footnote 4/9]
Both JUSTICE REHNQUIST and JUSTICE BLACKMUN
apparently attach significance to the testimony at the
preliminary hearing indicating that the petitioner struck his
partner. See opinion of REHNQUIST, J., ante at 450 U. S.
467; opinion of BLACKMUN, J., ante at 450 U. S. 483-488,
n. In light of the fact that the petitioner would be equally
guilty of the crime charged in the complaint whether or not
that testimony is true, it obviously has no bearing on the legal
question presented by this case. The question is not whether
"the facts . . . fit the crime," opinion of BLACKMUN, J., ante
at 450 U. S. 487 -- that is a question to be answered at trial --
but rather, whether the statute defining the crime fits the
constitutional requirement that justice be administered in an
evenhanded fashion.
Mississippi University for Women v. Hogan
No. 81-406
Argued March 22, 1982
Decided July 1, 1982
458 U.S. 718
CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR
THE FIFTH CIRCUIT
Syllabus
Held: The policy of petitioner Mississippi University for
Women (MUW), a state-supported university which has from
its inception limited its enrollment to women, of denying
otherwise qualified males (such as respondent) the right to
enroll for credit in its School of Nursing violates the Equal
Protection Clause of the Fourteenth Amendment. Pp. 458 U.
S. 723-733.
(a) The party seeking to uphold a statute that classifies
individuals on the basis of their gender must carry the burden
of showing an "exceedingly persuasive justification" for the
classification. Kirchberg v. Feenstra, 450 U. S. 455, 450 U. S.
461; Personnel Administrator of Mass. v. Feeney, 442 U. S.
256, 442 U. S. 273. The burden is met only by showing at
least that the classification serves "important governmental
objectives and that the discriminatory means employed" are
"substantially related to the achievement of those objectives."
Wengler v. Druggists Mutual Insurance Co., 446 U. S. 142,
446 U. S. 150. The test must be applied free of fixed notions
concerning the roles and abilities of males and females. Pp.
458 U. S. 723-727.
(b) The single-sex admissions policy of MUW's School of
Nursing cannot be justified on the asserted ground that it
compensates for discrimination against women and, therefore,
constitutes educational affirmative action. A State can evoke a
compensatory purpose to justify an otherwise discriminatory
classification only if members of the gender benefited by the
classification actually suffer a disadvantage related to the
classification. Rather than compensating for discriminatory
barriers faced by women, MUW's policy tends to perpetuate
the stereotyped view of nursing as an exclusively woman's
job. Moreover, the State has not shown that the gender-based
classification is substantially and directly related to its
proposed compensatory objective. To the contrary, MUW's
policy of permitting men to attend classes as auditors fatally
undermines its claim that women, at least those in the School
of Nursing, are adversely affected by the presence of men.
Thus, the State has fallen far short of establishing the
"exceedingly persuasive justification" needed to sustain the
gender-based classification. Pp. 458 U. S. 727-731.
(c) Nor can the exclusion of men from MUW's School of
Nursing be justified on the basis of the language of § 901(a)(5)
of Title IX of the Education Amendments of 1972, which
exempts from § 901(a)'s general prohibition

Page 458 U. S. 719
of gender discrimination in federally funded education
programs the admissions policies of public institutions of
undergraduate higher education "that traditionally and
continually from [their] establishment [have] had a policy of
admitting only students of one sex." It is not clear that, as
argued by the State, Congress enacted the statute pursuant to
its power granted by § 5 of the Fourteenth Amendment to
enforce that Amendment, and thus placed a limitation upon the
broad prohibitions of the Equal Protection Clause. Rather,
Congress apparently intended, at most, to create an exemption
from Title IX's requirements. In any event, Congress' power
under § 5
"is limited to adopting measures to enforce the guarantees of
the Amendment; § 5 grants Congress no power to restrict,
abrogate, or dilute these guarantees."
Katzenbach v. Morgan, 384 U. S. 641, 384 U. S. 651, n. 10.
Pp. 458 U. S. 731-733.
646 F.2d 1116 and 653 F.2d 222, affirmed.
O'CONNOR, J., delivered the opinion of the Court, in which
BRENNAN, WHITE, MARSHALL, and STEVENS, JJ.,
joined. BURGER, C.J., post p. 458 U. S. 733, and
BLACKMUN, J., post, p. 458 U. S. 733, filed dissenting
opinions. POWELL, J., filed a dissenting opinion, in which
REHNQUIST, J., joined, post, p. 458 U. S. 735.
JUSTICE O'CONNOR delivered the opinion of the Court.
This case presents the narrow issue of whether a state statute
that excludes males from enrolling in a state-supported
professional nursing school violates the Equal Protection
Clause of the Fourteenth Amendment.
I summary judgment dismissing his claim unless he tendered a
The facts are not in dispute. In 1884, the Mississippi
Legislature created the Mississippi Industrial Institute and
College
Page 458 U. S. 720
for the Education of White Girls of the State of Mississippi,
now the oldest state-supported all-female college in the United
States. 1884 Miss.Gen.Laws, Ch. 30, § 6. The school, known
today as Mississippi University for Women (MUW), has from
its inception limited its enrollment to women. [Footnote 1]
In 1971, MUW established a School of Nursing, initially
offering a 2-year associate degree. Three years later, the
school instituted a 4-year baccalaureate program in nursing,
and today also offers a graduate program. The School of
Nursing has its own faculty and administrative officers, and
establishes its own criteria for admission. [Footnote 2]
Respondent, Joe Hogan, is a registered nurse but does not hold
a baccalaureate degree in nursing. Since 1974, he has worked
as a nursing supervisor in a medical center in Columbus, the
city in which MUW is located. In 1979, Hogan applied for
admission to the MUW School of Nursing's baccalaureate
program. [Footnote 3] Although he was otherwise qualified,
he
Page 458 U. S. 721
was denied admission to the School of Nursing solely because
of his sex. School officials informed him that he could audit
the courses in which he was interested, but could not enroll for
credit. Tr. 26. [Footnote 4]
Hogan filed an action in the United States District Court for
the Northern District of Mississippi, claiming the single-sex
admissions policy of MUW's School of Nursing violated the
Equal Protection Clause of the Fourteenth Amendment. Hogan
sought injunctive and declaratory relief, as well as
compensatory damages.
Following a hearing, the District Court denied preliminary
injunctive relief. App. to Pet. for Cert. A4. The court
concluded that maintenance of MUW as a single-sex school
bears a rational relationship to the State's legitimate interest
"in providing the greatest practical range of educational
opportunities for its female student population." Id. at A3.
Furthermore, the court stated, the admissions policy is not
arbitrary, because providing single-sex schools is consistent
with a respected, though by no means universally accepted,
educational theory that single-sex education affords unique
benefits to students. Ibid. Stating that the case presented no
issue of fact, the court informed Hogan that it would enter
factual issue. When Hogan offered no further evidence, the
District Court entered summary judgment in favor of the State.
Record 73.
The Court of Appeals for the Fifth Circuit reversed, holding
that, because the admissions policy discriminates on the basis
of gender, the District Court improperly used a "rational
relationship" test to judge the constitutionality of the policy.
646 F.2d 1116, 1118 (1981). Instead, the Court of Appeals
stated, the proper test is whether the State has carried the
heavier burden of showing that the gender-based classification
is substantially related to an important governmental
Page 458 U. S. 722

objective. Id. at 1118, 1119. Recognizing that the State has a
significant interest in providing educational opportunities for
all its citizens, the court then found that the State had failed to
show that providing a unique educational opportunity for
females, but not for males, bears a substantial relationship to
that interest. Id. at 1119. Holding that the policy excluding
Hogan because of his sex denies him equal protection of the
laws, the court vacated the summary judgment entered against
Hogan as to his claim for monetary damages, and remanded
for entry of a declaratory judgment in conformity with its
opinion and for further appropriate proceedings. Id. at 1119-
1120.
On rehearing, the State contended that Congress, in enacting §
901(a)(5) of Title IX of the Education Amendments of 1972,
Pub.L. 92-318, 86 Stat. 373, 20 U.S.C. § 1681 et seq.,
expressly had authorized MUW to continue its single-sex
admissions policy by exempting public undergraduate
institutions that traditionally have used single-sex admissions
policies from the gender discrimination prohibition of Title
IX. [Footnote 5] Through that provision, the State argued,
Congress limited the reach of the Fourteenth Amendment by
exercising
Page 458 U. S. 723
its power under § 5 of the Amendment. [Footnote 6] The
Court of Appeals rejected the argument, holding that § 5 of the
Fourteenth Amendment does not grant Congress power to
authorize States to maintain practices otherwise violative of
the Amendment. 653 F.2d 222 (1981).
We granted certiorari, 454 U.S. 962 (1981), and now affirm
the judgment of the Court of Appeals. [Footnote 7]
II
We begin our analysis aided by several firmly established
principles. Because the challenged policy expressly
discriminates among applicants on the basis of gender, it is
subject to scrutiny under the Equal Protection Clause of the
Fourteenth Amendment. Reed v. Reed, 404 U. S. 71, 404 U. S.
75 (1971). That this statutory policy discriminates against
males, rather than against females, does not exempt it from
scrutiny or reduce the standard of review. [Footnote 8] Caban
v. Mohammed,
Page 458 U. S. 724
441 U. S. 380, 441 U. S. 394 (1979); Orr v. Orr, 440 U. S.
268, 440 U. S. 279 (1979). Our decisions also establish that
the party seeking to uphold a statute that classifies individuals
on the basis of their gender must carry the burden of showing
an "exceedingly persuasive justification" for the classification.
Kirchberg v. Feenstra, 450 U. S. 455, 450 U. S. 461 (1981);
Personnel Administrator of Mass. v. Feeney, 442 U. S. 256,
442 U. S. 273 (1979). The burden is met only by showing at
least that the classification serves "important governmental
objectives, and that the discriminatory means employed" are
"substantially related to the achievement of those objectives."
Wengler v. Druggists Mutual Ins. Co., 446 U. S. 142, 446 U.
S. 150 (1980). [Footnote 9]
Although the test for determining the validity of a gender-
based classification is straightforward, it must be applied free
Page 458 U. S. 725
of fixed notions concerning the roles and abilities of males and
females. Care must be taken in ascertaining whether the
statutory objective itself reflects archaic and stereotypic
notions. Thus, if the statutory objective is to exclude or
"protect" members of one gender because they are presumed
to suffer from an inherent handicap or to be innately inferior,
the objective itself is illegitimate. See Frontiero v. Richardson,
411 U. S. 677, 411 U. S. 684-685 (1973) (plurality opinion).
[Footnote 10]
If the State's objective is legitimate and important, we next
determine whether the requisite direct, substantial relationship
between objective and means is present. The purpose of
requiring that close relationship is to assure that the
Page 458 U. S. 726
validity of a classification is determined through reasoned
analysis, rather than through the mechanical application of
traditional, often inaccurate, assumptions about the proper
roles of men and women. [Footnote 11] The need for the
requirement is amply revealed by reference to the broad range
of statutes already invalidated by this Court, statutes that relied
upon the simplistic, outdated assumption that gender could be
used as a "proxy for other, more germane bases of
classification," Craig v. Boren, 429 U. S. 190, 429 U. S. 198
(1976), to establish a link between objective and classification.
[Footnote 12]
Page 458 U. S. 727
Applying this framework, we now analyze the arguments
advanced by the State to justify its refusal to allow males to
enroll for credit in MUW's School of Nursing.
III
A
The State's primary justification for maintaining the single-sex
admissions policy of MUW's School of Nursing is that it
compensates for discrimination against women, and therefore
constitutes educational affirmative action. Brief for Petitioners
8. [Footnote 13] As applied to the School of Nursing, we find
the State's argument unpersuasive.
Page 458 U. S. 728
In limited circumstances, a gender-based classification
favoring one sex can be justified if it intentionally and directly
assists members of the sex that is disproportionately burdened.
See Schlesinger v. Ballard, 419 U. S. 498 (1975). However,
we consistently have emphasized that
"the mere recitation of a benign, compensatory purpose is not
an automatic shield which protects against any inquiry into the
actual purposes underlying a statutory scheme."
Weinberger v. Wiesenfeld, 420 U. S. 636, 420 U. S. 648
(1975). The same searching analysis must be made, regardless
of whether the State's objective is to eliminate family
controversy, Reed v. Reed, 404 U. S. 71 (1971), to achieve
administrative efficiency, Frontiero v. Richardson, 411 U. S.
677 (1973), or to balance the burdens borne by males and
females.
It is readily apparent that a State can evoke a compensatory
purpose to justify an otherwise discriminatory classification
only if members of the gender benefited by the classification
actually suffer a disadvantage related to the classification. We
considered such a situation in Califano v. Webster, 430 U. S.
313 (1977), which involved a challenge to a statutory
classification that allowed women to eliminate more low-
earning years than men for purposes of computing Social
Security retirement benefits. Although the effect of the
classification was to allow women higher monthly benefits
than were available to men with the same earning history, we
upheld the statutory scheme, noting that it took into account
that women "as such have been unfairly hindered from earning
as much as men" and "work[ed] directly to remedy" the
resulting economic disparity. Id. at 430 U. S. 318.
A similar pattern of discrimination against women influenced
our decision in Schlesinger v. Ballard, supra. There, we
considered a federal statute that granted female Naval officers
a 13-year tenure of commissioned service before mandatory
discharge, but accorded male officers only a 9-year tenure. We
recognized that, because women were barred from combat
duty, they had had fewer opportunities for promotion than had
their male counterparts. By allowing
Page 458 U. S. 729
women an additional four years to reach a particular rank
before subjecting them to mandatory discharge, the statute
directly compensated for other statutory barriers to
advancement.
In sharp contrast, Mississippi has made no showing that
women lacked opportunities to obtain training in the field of
nursing or to attain positions of leadership in that field when
the MUW School of Nursing opened its door, or that women
currently are deprived of such opportunities. In fact, in 1970,
the year before the School of Nursing's first class enrolled,
women earned 94 percent of the nursing baccalaureate degrees
conferred in Mississippi and 98.6 percent of the degrees
earned nationwide. U.S. Dept. of Health, Education, and
Welfare, Earned Degrees Conferred: 1969-1970, Institutional
Data 388 (1972). That year was not an aberration; one decade
earlier, women had earned all the nursing degrees conferred in
Mississippi and 98.9 percent of the degrees conferred
nationwide. U.S. Dept. of Health, Education, and Welfare,
Earned Degrees Conferred, 1959-1960: Bachelor's and Higher
Degrees 135 (1960). As one would expect, the labor force
reflects the same predominance of women in nursing. When
MUW's School of Nursing began operation, nearly 98 percent
of all employed registered nurses were female. [Footnote 14]
United States Bureau of Census, 1981 Statistical Abstract of
the United States 402 (1981).
Rather than compensate for discriminatory barriers faced by
women, MUW's policy of excluding males from admission to
the School of Nursing tends to perpetuate the stereotyped view
of nursing as an exclusively woman's job. [Footnote 15] By
assuring
Page 458 U. S. 730
that Mississippi allots more openings in its state-supported
nursing schools to women than it does to men, MUW's
admissions policy lends credibility to the old view that
women, not men, should become nurses, and makes the
assumption that nursing is a field for women a self-fulfilling
prophecy. See Stanton v. Stanton, 421 U. S. 7 (1975). Thus,
we conclude that, although the State recited a "benign,
compensatory purpose," it failed to establish that the alleged
objective is the actual purpose underlying the discriminatory
classification. [Footnote 16]
The policy is invalid also because it fails the second part of the
equal protection test, for the State has made no showing that
the gender-based classification is substantially and directly
related to its proposed compensatory objective. To the
contrary, MUW's policy of permitting men to attend classes as
auditors fatally undermines its claim that women, at least those
in the School of Nursing, are adversely affected by the
presence of men.
Page 458 U. S. 731

MUW permits men who audit to participate fully in classes.
Additionally, both men and women take part in continuing
education courses offered by the School of Nursing, in which
regular nursing students also can enroll. Deposition of Dr.
James Strobel 56-60 and Deposition of Dean Annette K.
Barrar 24-26. The uncontroverted record reveals that admitting
men to nursing classes does not affect teaching style,
Deposition of Nancy L. Herban 4, that the presence of men in
the classroom would not affect the performance of the female
nursing students, Tr. 61 and Deposition of Dean Annette K.
Barrar 7-8, and that men in coeducational nursing schools do
not dominate the classroom. Deposition of Nancy Herban 6. In
sum, the record in this case is flatly inconsistent with the claim
that excluding men from the School of Nursing is necessary to
reach any of MUW's educational goals.
Thus, considering both the asserted interest and the
relationship between the interest and the methods used by the
State, we conclude that the State has fallen far short of
establishing the "exceedingly persuasive justification" needed
to sustain the gender-based classification. Accordingly, we
hold that MUW's policy of denying males the right to enroll
for credit in its School of Nursing violates the Equal
Protection Clause of the Fourteenth Amendment. [Footnote
17]
B
In an additional attempt to justify its exclusion of men from
MUW's School of Nursing, the State contends that MUW is
Page 458 U. S. 732
the direct beneficiary "of specific congressional legislation
which, on its face, permits the institution to exist as it has in
the past." Brief for Petitioners 19. The argument is based upon
the language of § 901(a) in Title IX of the Education
Amendments of 1972, 20 U.S.C. § 1681(a). Although § 901(a)
prohibits gender discrimination in education programs that
receive federal financial assistance, subsection 5 exempts the
admissions policies of undergraduate institutions "that
traditionally and continually from [their] establishment [have]
had a policy of admitting only students of one sex" from the
general prohibition. See n 5, supra. Arguing that Congress
enacted Title IX in furtherance of its power to enforce the
Fourteenth Amendment, a power granted by § 5 of that
Amendment, the State would have us conclude that § 901(a)
(5) is but "a congressional limitation upon the broad
prohibitions of the Equal Protection Clause of the Fourteenth
Amendment." Brief for Petitioners 20.
The argument requires little comment. Initially, it is far from
clear that Congress intended, through § 901(a)(5), to exempt
MUW from any constitutional obligation. Rather, Congress
apparently intended, at most, to exempt MUW from the
requirements of Title IX.
Even if Congress envisioned a constitutional exemption, the
State's argument would fail. Section 5 of the Fourteenth
Amendment gives Congress broad power indeed to enforce the
command of the Amendment and "to secure to all persons the
enjoyment of perfect equality of civil rights and the equal
protection of the laws against State denial or invasion. . . ." Ex
parte Virginia, 100 U. S. 339, 100 U. S. 346 (1880). Congress'
power under § 5, however, "is limited to adopting measures to
enforce the guarantees of the Amendment; § 5 grants Congress
no power to restrict, abrogate, or dilute these guarantees."
Katzenbach v. Morgan, 384 U. S. 641, 384 U. S. 651, n. 10
(1966). Although we give deference to congressional decisions
and classifications, neither Congress nor a State can validate a
law that denies the rights guaranteed by the Fourteenth
Page 458 U. S. 733
Amendment. See, e.g., Califano v. Goldfarb, 430 U. S. 199,
430 U. S. 210 (1977); Williams v. Rhodes, 393 U. S. 23, 393
U. S. 29 (1968).
The fact that the language of § 901(a)(5) applies to MUW
provides the State no solace:
"[A] statute apparently governing a dispute cannot be applied
by judges, consistently with their obligations under the
Supremacy Clause, when such an application of the statute
would conflict with the Constitution. Marbury v. Madison, 1
Cranch 137 (1803)."
Younger v. Harris, 401 U. S. 37, 401 U. S. 52 (1971).
IV
Because we conclude that the State's policy of excluding
males from MUW's School of Nursing violates the Equal
Protection Clause of the Fourteenth Amendment, we affirm
the judgment of the Court of Appeals.
It is so ordered.
[Footnote 1]
The charter of MUW, basically unchanged since its founding,
now provides:
"The purpose and aim of the Mississippi State College for
Women is the moral and intellectual advancement of the girls
of the state by the maintenance of a first-class institution for
their education in the arts and sciences, for their training in
normal school methods and kindergarten, for their instruction
in bookkeeping, photography, stenography, telegraphy, and
typewriting, and in designing, drawing, engraving, and
painting, and their industrial application, and for their
instruction in fancy, general and practical needlework, and in
such other industrial branches as experience, from time to
time, shall suggest as necessary or proper to fit them for the
practical affairs of life."
Miss.Code Ann. § 37-117-3 (1972).
Mississippi maintains no other single-sex public university or
college. Thus, we are not faced with the question of whether
States can provide "separate but equal" undergraduate
institutions for males and females. Cf. Vorchheimer v. School
District of Philadelphia, 532 F.2d 880 (CA3 1975), aff'd by an
equally divided Court, 430 U. S. 703 (1977).
[Footnote 2]
Record, Exhibit 1, 1980-1981 Bulletin of Mississippi
University for Women 31-34, 212-229.
[Footnote 3]
With a baccalaureate degree, Hogan would be able to earn a
higher salary and would be eligible to obtain specialized
training as an anesthetist. Tr. 18.
[Footnote 4]
Dr. James Strobel, President of MUW, verified that men could
audit the equivalent of a full class-load in either night or
daytime classes. Id. at 390.
[Footnote 5]
Section 901(a) of Title IX, Education Amendments of 1972,
Pub.L. 92-318, 86 Stat. 373, 20 U.S.C. § 1681(a), provides in
part:
"(a) No person in the United States shall, on the basis of sex,
be excluded from participation in, be denied the benefits of, or
be subjected to discrimination under any education program or
activity receiving Federal financial assistance, except that:"
"(1) . . . in regard to admissions to educational institutions, this
section shall apply only to institutions of vocational education,
professional education, and graduate higher education, and to
public institutions of undergraduate higher education;"
"* * * *"
"(5) . . . in regard to admissions this section shall not apply to
any public institution of undergraduate higher education which
is an institution that traditionally and continually from its
establishment has had a policy of admitting only students of
one sex. . . ."
[Footnote 6]
Section 5 of the Fourteenth Amendment provides:
"The Congress shall have power to enforce, by appropriate
legislation, the provisions of this article."
[Footnote 7]
Although some statements in the Court of Appeals' decision
refer to all schools within MUW, see 646 F.2d at 1119, the
factual underpinning of Hogan's claim for relief involved only
his exclusion from the nursing program, Complaint �� 8-10,
and the Court of Appeals' holding applies only to Hogan's
individual claim for relief. 646 F.2d at 1119-1120.
Additionally, during oral argument, counsel verified that
Hogan sought only admission to the School of Nursing. Tr. of
Oral Arg. 24. Because Hogan's claim is thus limited, and
because we review judgments, not statements in opinions,
Black v. Cutter Laboratories, 351 U. S. 292 (1956), we decline
to address the question of whether MUW's admissions policy,
as applied to males seeking admission to schools other than
the School of Nursing, violates the Fourteenth Amendment.
[Footnote 8]
Without question, MUW's admissions policy worked to
Hogan's disadvantage. Although Hogan could have attended
classes and received credit in one of Mississippi's state-
supported coeducational nursing programs, none of which was
located in Columbus, he could attend only by driving a
considerable distance from his home. Tr.19-20, 63-65. A
similarly situated female would not have been required to
choose between forgoing credit and bearing that
inconvenience. Moreover, since many students enrolled in the
School of Nursing hold full-time jobs, Deposition of Dean
Annette K. Barrar 29-30, Hogan's female colleagues had
available an opportunity, not open to Hogan, to obtain credit
for additional training. The policy of denying males the right
to obtain credit toward a baccalaureate degree thus imposed
upon Hogan "a burden he would not bear were he female." Orr
v. Orr, 440 U. S. 268, 440 U. S. 273 (1979).
[Footnote 9]
In his dissenting opinion, JUSTICE POWELL argues that a
less rigorous test should apply, because Hogan does not
advance a "serious equal protection claim." Post at 458 U. S.
742. JUSTICE BLACKMUN, without proposing an
alternative test, labels the test applicable to gender-based
discrimination as "rigid" and productive of "needless
conformity." Post at 458 U. S. 734, 458 U. S. 735. Our past
decisions establish, however, that when a classification
expressly discriminates on the basis of gender, the analysis
and level of scrutiny applied to determine the validity of the
classification do not vary simply because the objective appears
acceptable to individual Members of the Court. While the
validity and importance of the objective may affect the
outcome of the analysis, the analysis itself does not change.
Thus, we apply the test previously relied upon by the Court to
measure the constitutionality of gender-based discrimination.
Because we conclude that the challenged statutory
classification is not substantially related to an important
objective, we need not decide whether classifications based
upon gender are inherently suspect. See Stanton v. Stanton,
421 U. S. 7, 421 U. S. 13 (1975).
[Footnote 10]
History provides numerous examples of legislative attempts to
exclude women from particular areas simply because
legislators believed women were less able than men to
perform a particular function. In 1873, this Court remained
unmoved by Myra Bradwell's argument that the Fourteenth
Amendment prohibited a State from classifying her as unfit to
practice law simply because she was female. Bradwell v.
Illinois, 16 Wall. 130 (1873). In his opinion concurring in the
judgment, Justice Bradley described the reasons underlying
the State's decision to determine which positions only men
could fill:
"It is the prerogative of the legislator to prescribe regulations
founded on nature, reason, and experience for the due
admission of qualified persons to professions and callings
demanding special skill and confidence. This fairly belongs to
the police power of the State; and, in my opinion, in view of
the peculiar characteristics, destiny, and mission of woman, it
is within the province of the legislature to ordain what offices,
positions, and callings shall be filled and discharged by men,
and shall receive the benefit of those energies and
responsibilities, and that decision and firmness which are
presumed to predominate in the sterner sex."
Id. at 83 U. S. 142.
In a similar vein, the Court in Goesaert v. Cleary, 335 U. S.
464, 335 U. S. 466 (1948), upheld a legislature's right to
preclude women from bartending, except under limited
circumstances, on the ground that the legislature could devise
preventive measures against "moral and social problems" that
result when women, but apparently not men, tend bar.
Similarly, the many protective labor laws enacted in the late
19th and early 20th centuries often had as their objective the
protection of weaker workers, which the laws assumed meant
females. See generally B. Brown, A. Freedman, H. Katz, & A.
Price, Women's Rights and the Law 209-210 (1977).
[Footnote 11]
For instance, in Stanton v. Stanton, supra, this Court
invalidated a state statute that specified a greater age of
majority for males than for females, and thereby affected the
period during which a divorced parent was responsible for
supporting his children. We did not question the importance or
validity of the State's interest in defining parents' obligation to
support children during their minority. On analysis, however,
we determined that the purported relationship between that
objective and the gender-based classification was based upon
traditional assumptions that
"the female [is] destined solely for the home and the rearing of
the family, and only the male for the marketplace and the
world of ideas. . . . If a specified age of minority is required
for the boy in order to assure him parental support while he
attains his education and training, so, too, is it for the girl."
421 U.S. at 421 U. S. 14-15. Once those traditional notions
were abandoned, no basis for finding a substantial relationship
between classification and objective remained.
[Footnote 12]
See, e.g., Kirchberg v. Feenstra, 450 U. S. 455 (1981) (statute
granted only husbands the right to manage and dispose of
jointly owned property without the spouse's consent); Wengler
v. Druggists Mutual Ins. Co., 446 U. S. 142 (1980) (statute
required a widower, but not a widow, to show he was
incapacitated from earning to recover benefits for a spouse's
death under workers' compensation laws); Orr v. Orr, supra,
(only men could be ordered to pay alimony following
divorce); Craig v. Boren, 429 U. S. 190 (1976) (women could
purchase "nonintoxicating" beer at a younger age than could
men); Stanton v. Stanton, supra (women reached majority at
an earlier age than did men); Weinberger v. Wiesenfeld, 420
U. S. 636 (1975) (widows, but not widowers, could collect
survivors' benefits under the Social Security Act); Frontiero v.
Richardson, 411 U. S. 677 (1973) (determination of spouse's
dependency based upon gender of member of Armed Forces
claiming dependency benefits); Reed v. Reed, 404 U. S. 71
(1971) (statute preferred men to women as administrators of
estates).
[Footnote 13]
In the reply brief, the State understandably retreated from its
contention that MUW was founded to provide opportunities
for women which were not available to men. Reply Brief for
Petitioners 4. Apparently, the impetus for founding MUW
came not from a desire to provide women with advantages
superior to those offered men, but rather from a desire to
provide white women in Mississippi access to state-supported
higher learning. In 1856, Sally Reneau began agitating for a
college for white women. Those initial efforts were
unsuccessful, and, by 1870, Mississippi provided higher
education only for white men and black men and women. E.
Mayes, History of Education in Mississippi 178, 228, 245,
259, 266, 270 (1899) (hereinafter Mayes). See also S. Neilson,
The History of Mississippi State College for Women 4-5
(unpublished manuscript, 1952) (hereinafter Neilson). In 1882,
two years before MUW was chartered, the University of
Mississippi opened its doors to women. However, the
institution was in those early years not "extensively patronized
by females, most of those who come being such as desire to
qualify themselves to teach." Mayes at 178. By 1890, the
largest number of women in any class at the University had
been 23, while nearly 350 women enrolled in the first session
of MUW. Id. at 178, 253. Because the University did not
solicit the attendance of women until after 1920, and did not
accept women at all for a time between 1907 and 1920, most
Mississippi women who attended college attended MUW.
Neilson at 86. Thus, in Mississippi, as elsewhere in the
country, women's colleges were founded to provide some form
of higher education for the academically disenfranchised. See
generally 2 T. Woody, A History of Women's Education in the
United States 137-223 (1929); L. Baker, I'm Radcliffe! Fly
Me! The Seven Sisters and the Failure of Women's Education
22, 136-141 (1976).
[Footnote 14]
Relatively little change has taken place during the past 10
years. In 1980, women received more than 94 percent of the
baccalaureate degrees conferred nationwide, National Center
for Education Statistics, 1981 Digest of Education Statistics
121 (1981), and constituted 96.5 percent of the registered
nurses in the labor force. United States Bureau of Census,
1981 Statistical Abstract of the United States 402 (1981).
[Footnote 15]
Officials of the American Nurses Association have suggested
that excluding men from the field has depressed nurses' wages.
Hearings before the United States Equal Employment
Opportunity Commission on Job Segregation and Wage
Discrimination 510-511, 517-518, 523 (Apr.1980). To the
extent the exclusion of men has that effect, MUW's
admissions policy actually penalizes the very class the State
purports to benefit. Cf. Weinberger v. Wiesenfeld, 420 U. S.
636 (1975).
[Footnote 16]
Even were we to assume that discrimination against women
affects their opportunity to obtain an education or to obtain
leadership roles in nursing, the challenged policy nonetheless
would be invalid, for the State has failed to establish that the
legislature intended the single-sex policy to compensate for
any perceived discrimination. Cf. Califano v. Webster, 430 U.
S. 313, 430 U. S. 318 (1977) (legislative history of the
compensatory statute revealed that Congress "directly
addressed the justification for differing treatment of men and
women" and "purposely enacted the more favorable treatment
for female wage earners. . . ."). The State has provided no
evidence whatever that the Mississippi Legislature has ever
attempted to justify its differing treatment of men and women
seeking nurses' training. Indeed, the only statement of
legislative purpose is that in § 37-117-3 of the Mississippi
Code, see n 1, supra, a statement that relies upon the very sort
of archaic and overbroad generalizations about women that we
have found insufficient to justify a gender-based classification.
E.g., Orr v. Orr, 440 U. S. 268 (1979); Stanton v. Stanton, 421
U. S. 7 (1975).
[Footnote 17]
JUSTICE POWELL's dissent suggests that a second objective
is served by the gender-based classification in that Mississippi
has elected to provide women a choice of educational
environments. Post at 458 U. S. 742-744. Since any gender-
based classification provides one class a benefit or choice not
available to the other class, however, that argument begs the
question. The issue is not whether the benefited class profits
from the classification, but whether the State's decision to
confer a benefit only upon one class by means of a
discriminatory classification is substantially related to
achieving a legitimate and substantial goal.
CHIEF JUSTICE BURGER, dissenting.
I agree generally with JUSTICE POWELL's dissenting
opinion. I write separately, however, to emphasize that the
Court's holding today is limited to the context of a professional
nursing school. Ante at 458 U. S. 723, n. 7, 458 U. S. 727.
Since the Court's opinion relies heavily on its finding that
women have traditionally dominated the nursing profession,
see ante at 458 U. S. 729-731, it suggests that a State might
well be justified in maintaining, for example, the option of an
all-women's business school or liberal arts program.
JUSTICE BLACKMUN, dissenting.
Unless Mississippi University for Women wished to preserve
a historical anachronism, one only states the obvious when he
observes that the University long ago should have replaced its
original statement of purpose and brought its corporate papers
into the 20th century. It failed to do so and, perhaps in partial
consequence, finds itself in this litigation, with the Court's
opinion, ante at 458 U. S. 719-720, and n. 1, now
Page 458 U. S. 734
taking full advantage of that failure, to MUW's embarrassment
and discomfiture.
Despite that failure, times have changed in the intervening 98
years. What was once an "Institute and College" is now a
genuine university, with a 2-year School of Nursing
established 11 years ago and then expanded to a 4-year
baccalaureate program in 1974. But respondent Hogan "wants
in" at this particular location in his home city of Columbus. It
is not enough that his State of Mississippi offers baccalaureate
programs in nursing open to males at Jackson and at
Hattiesburg. Mississippi thus has not closed the doors of its
educational system to males like Hogan. Assuming that he is
qualified -- and I have no reason whatsoever to doubt his
qualifications -- those doors are open, and his maleness alone
does not prevent his gaining the additional education he
professes to seek.
I have come to suspect that it is easy to go too far with rigid
rules in this area of claimed sex discrimination, and to lose --
indeed destroy -- values that mean much to some people by
forbidding the State to offer them a choice while not depriving
others of an alternative choice. JUSTICE POWELL, in his
separate opinion, post, p. 458 U. S. 735, advances this theme
well.
While the Court purports to write narrowly, declaring that it
does not decide the same issue with respect to "separate but
equal" undergraduate institutions for females and males, ante
at 458 U. S. 720, n. 1, or with respect to units of MUW other
than its School of Nursing, ante at 458 U. S. 723, n. 7, there is
inevitable spillover from the Court's ruling today. That ruling,
it seems to me, places in constitutional jeopardy any state-
supported educational institution that confines its student body
in any area to members of one sex, even though the State
elsewhere provides an equivalent program to the complaining
applicant. The Court's reasoning does not stop with the School
of Nursing of the Mississippi University for Women.
I hope that we do not lose all values that some think are
worthwhile (and are not based on differences of race or
religion)
Page 458 U. S. 735
and relegate ourselves to needless conformity. The ringing
words of the Equal Protection Clause of the Fourteenth
Amendment -- what JUSTICE POWELL aptly describes as its
"liberating spirit," post at 458 U. S. 741 -- do not demand that
price.
JUSTICE POWELL, with whom JUSTICE REHNQUIST
joins, dissenting.
The Court's opinion bows deeply to conformity. Left without
honor -- indeed, held unconstitutional -- is an element of
diversity that has characterized much of American education
and enriched much of American life. The Court, in effect,
holds today that no State now may provide even a single
institution of higher learning open only to women students. It
gives no heed to the efforts of the State of Mississippi to
provide abundant opportunities for young men and young
women to attend coeducational institutions, and none to the
preferences of the more than 40,000 young women who, over
the years, have evidenced their approval of an all-women's
college by choosing Mississippi University for Women
(MUW) over seven coeducational universities within the State.
The Court decides today that the Equal Protection Clause
makes it unlawful for the State to provide women with a
traditionally popular and respected choice of educational
environment. It does so in a case instituted by one man, who
represents no class, and whose primary concern is personal
convenience.
It is undisputed that women enjoy complete equality of
opportunity in Mississippi's public system of higher education.
Of the State's 8 universities and 16 junior colleges, all except
MUW are coeducational. At least two other Mississippi
universities would have provided respondent with the nursing
curriculum that he wishes to pursue. [Footnote 2/1] No other
Page 458 U. S. 736
male has joined in his complaint. The only groups with any
personal acquaintance with MUW to file amicus briefs are
female students and alumnae of MUW. And they have
emphatically rejected respondent's arguments, urging that the
State of Mississippi be allowed to continue offering the choice
from which they have benefited.
Nor is respondent significantly disadvantaged by MUW's all-
female tradition. His constitutional complaint is based upon a
single asserted harm: that he must travel to attend the state-
supported nursing schools that concededly are available to
him. The Court characterizes this injury as one of
"inconvenience." Ante at 458 U. S. 724, n. 8. This description
is fair and accurate, though somewhat embarrassed by the fact
that there is, of course, no constitutional right to attend a state-
supported university in one's home town. Thus the Court, to
redress respondent's injury of inconvenience, must rest its
invalidation of MUW's single-sex program on a mode of
"sexual stereotype" reasoning that has no application whatever
to the respondent or to the "wrong" of which he complains. At
best, this is anomalous. And ultimately, the anomaly reveals
legal error -- that of applying a heightened equal protection
standard, developed in cases of genuine sexual stereotyping, to
a narrowly utilized state classification that provides an
additional choice for women. Moreover, I believe that
Mississippi's educational system should be upheld in this case
even if this inappropriate method of analysis is applied.
I teachers and administrators."
Coeducation, historically, is a novel educational theory. From
grade school through high school, college, and graduate and
professional training, much of the Nation's population during
much of our history has been educated in sexually segregated
classrooms. At the college level, for instance, until recently,
some of the most prestigious colleges and universities
Page 458 U. S. 737
-- including most of the Ivy League -- had long histories of
single-sex education. As Harvard, Yale, and Princeton
remained all-male colleges well into the second half of this
century, the "Seven Sister" institutions established a parallel
standard of excellence for women's colleges. Of the Seven
Sisters, Mount Holyoke opened as a female seminary in 1837
and was chartered as a college in 1888. Vassar was founded in
1865, Smith and Wellesley in 1875, Radcliffe in 1879, Bryn
Mawr in 1885, and Barnard in 1889. Mount Holyoke, Smith,
and Wellesley recently have made considered decisions to
remain essentially single-sex institutions. See Carnegie
Commission on Higher Education, Opportunities for Women
in Higher Education 70-75 (1973) (Carnegie Report),
excerpted in B. Babcock, A. Freedman, E. Norton, & S. Ross,
Sex Discrimination and the Law 1013, 1014 (1975)
(Babcock). Barnard retains its independence from Columbia,
its traditional coordinate institution. Harvard and Radcliffe
maintained separate admissions policies as recently as 1975.
[Footnote 2/2]
The sexual segregation of students has been a reflection of,
rather than an imposition upon, the preference of those subject
to the policy. It cannot be disputed, for example, that the
highly qualified women attending the leading women's
colleges could have earned admission to virtually any college
of their choice. [Footnote 2/3] Women attending such colleges
have chosen
Page 458 U. S. 738
to be there, usually expressing a preference for the special
benefits of single-sex institutions. Similar decisions were
made by the colleges that elected to remain open to women
only. [Footnote 2/4]
The arguable benefits of single-sex colleges also continue to
be recognized by students of higher education. The Carnegie
Commission on Higher Education has reported that it
"favor[s] the continuation of colleges for women. They
provide an element of diversity . . . and [an environment in
which women] generally . . . speak up more in their
classes, . . . hold more positions of leadership on campus, . . .
and . . . have more role models and mentors among women
Carnegie Report, quoted in K. Davidson, R. Ginsburg, & H.
Kay, Sex-Based Discrimination 814 (1975 ed.). A 10-year
empirical study by the Cooperative Institutional Research
Program of the American Counsel of Education and the
University of California, Los Angeles, also has affirmed the
distinctive benefits of single-sex colleges and universities. As
summarized in A. Astin, Four Critical Years 232 (1977), the
data established that
"[b]oth [male and female] single-sex colleges facilitate student
involvement in several areas: academic, interaction with
faculty, and verbal aggressiveness. . . . Men's and women's
colleges also have a positive effect on intellectual self-esteem.
Students at single-sex colleges are more satisfied than students
at coeducational colleges
Page 458 U. S. 739
with virtually all aspects of college life. . . . The only area
where students are less satisfied is social life. [Footnote 2/5]"
Despite the continuing expressions that single-sex institutions
may offer singular advantages to their students, there is no
doubt that coeducational institutions are far more numerous.
But their numerical predominance does not establish -- in any
sense properly cognizable by a court -- that individual
preferences for single-sex education are misguided or
illegitimate, or that a State may not provide its citizens with a
choice. [Footnote 2/6]
II
The issue in this case is whether a State transgresses the
Constitution when -- within the context of a public system that
offers a diverse range of campuses, curricula, and educational
Page 458 U. S. 740
alternatives -- it seeks to accommodate the legitimate personal
preferences of those desiring the advantages of an all-women's
college. In my view, the Court errs seriously by assuming --
without argument or discussion -- that the equal protection
standard generally applicable to sex discrimination is
appropriate here. That standard was designed to free women
from "archaic and overbroad generalizations. . . ." Schlesinger
v. Ballard, 419 U. S. 498, 419 U. S. 508 (1975). In no previous
case have we applied it to invalidate state efforts to expand
women's choices. Nor are there prior sex discrimination
decisions by this Court in which a male plaintiff, as in this
case, had the choice of an equal benefit.
The cases cited by the Court therefore do not control the issue
now before us. In most of them, women were given no
opportunity for the same benefit as men. [Footnote 2/7] Cases
involving male plaintiffs are equally inapplicable. In Craig v.
Boren, 429 U. S. 190 (1976), a male under 21 was not
permitted to buy beer anywhere in the State, and women were
afforded no choice as to whether they would accept the
"statistically measured but loose-fitting generalities
concerning the drinking
Page 458 U. S. 741
tendencies of aggregate groups." Id. at 429 U. S. 209. A
similar situation prevailed in Orr v. Orr, 440 U. S. 268, 440 U.
S. 279 (1979), where men had no opportunity to seek alimony
from their divorced wives, and women had no escape from the
statute's stereotypical announcement of "the State's preference
for an allocation of family responsibilities under which the
wife plays a dependent role. . . ." [Footnote 2/8]
By applying heightened equal protection analysis to this case,
[Footnote 2/9] the Court frustrates the liberating spirit of the
Equal Protection Clause. It prohibits the States from providing
women with an opportunity to choose the type of university
they prefer. And yet it is these women whom the Court regards
as the victims of an illegal, stereotyped perception of the role
of women in our society. The Court reasons this way in a case
in which no woman has complained, and the only complainant
is a man who advances no claims on behalf of anyone else.
His claim, it should be recalled, is not that he is being denied a
substantive educational opportunity, or even the right to attend
an all-male or a coeducational college.
Page 458 U. S. 742
See Brief for Respondent 24. [Footnote 2/10] It is only that the
colleges open to him are located at inconvenient distances.
[Footnote 2/11]
III
The Court views this case as presenting a serious equal
protection claim of sex discrimination. I do not, and I would
sustain Mississippi's right to continue MUW on a rational
basis analysis. But I need not apply this "lowest tier" of
scrutiny. I can accept for present purposes the standard applied
by the Court: that there is a gender-based distinction that must
serve an important governmental objective by means that are
substantially related to its achievement. E.g., Wengler v.
Druggists Mutual Ins. Co., 446 U. S. 142, 446 U. S. 150
(1980). The record in this case reflects that MUW has a
historic position in the State's educational system dating back
to 1884. More than 2,000 women presently evidence their
preference for MUW by having enrolled there. The choice is
Page 458 U. S. 743
one that discriminates invidiously against no one. [Footnote
2/12] And the State's purpose in preserving that choice is
legitimate and substantial. Generations of our finest minds,
both among educators and students, have believed that single-
sex, college-level institutions afford distinctive benefits. There
are many persons, of course, who have different views. But
simply because there are these differences is no reason --
certainly none of constitutional dimension -- to conclude that
no substantial state interest is served when such a choice is
made available.
In arguing to the contrary, the Court suggests that the MUW is
so operated as to "perpetuate the stereotyped view of nursing
as an exclusively women's job." Ante at 458 U. S. 729. But as
the Court itself acknowledges, ante at 458 U. S. 720, MUW's
School of Nursing was not created until 1971 -- about 90 years
after the single-sex campus itself was founded. This hardly
supports a link between nursing as a woman's profession and
MUW's single-sex admission policy. Indeed, MUW's School
of Nursing was not instituted until more than a decade after a
separate School of Nursing was established at the
coeducational University of Mississippi at Jackson. See
University of Mississippi, 1982 Undergraduate Catalog 162.
The School of Nursing makes up only one part -- a relatively
small part [Footnote 2/13] -- of MUW's diverse modern
university campus and curriculum. The other departments on
the MUW campus offer a typical range of degrees [Footnote
2/14] and a typical range of subjects. [Footnote 2/15]
Page 458 U. S. 744
There is no indication that women suffer fewer opportunities
at other Mississippi state campuses because of MUW's
admission policy. [Footnote 2/16]
In sum, the practice of voluntarily chosen single-sex education
is an honored tradition in our country, even if it now rarely
exists in state colleges and universities. Mississippi's
accommodation of such student choices is legitimate because
it is completely consensual, and is important because it
permits students to decide for themselves the type of college
education they think will benefit them most. Finally,
Mississippi's policy is substantially related to its long-
respected objective. [Footnote 2/17]
Page 458 U. S. 745
IV
A distinctive feature of America's tradition has been respect
for diversity. This has been characteristic of the peoples from
numerous lands who have built our country. It is the essence
of our democratic system. At stake in this case, as I see it, is
the preservation of a small aspect of this diversity. But that
aspect is by no means insignificant, given our heritage of
available choice between single-sex and coeducational
institutions of higher learning. The Court answers that there is
discrimination -- not just that which may be tolerable, as for
example between those candidates for admission able to
contribute most to an educational institution and those able to
contribute less -- but discrimination of constitutional
dimension. But, having found "discrimination," the Court
finds it difficult to identify the victims. It hardly can claim that
women are discriminated against. A constitutional case is held
to exist solely because one man found it inconvenient to travel
to any of the other institutions made available to him by the
State of Mississippi. In essence, he insists that he has a right to
attend a college in his home community. This simply is not a
sex discrimination case. The Equal Protection Clause was
never intended to be applied to this kind of case. [Footnote
2/18]
[Footnote 2/1]
"[T]wo other Mississippi universities offered coeducational
programs leading to a Bachelor of Science in Nursing -- the
University of Southern Mississippi in Hattiesburg, 178 miles
from Columbus; and the University of Mississippi in Jackson,
147 miles from Columbus. . . ."
"Brief for Respondent 3. See also Tr. of Oral Arg. 8."
[Footnote 2/2]
The history, briefly summarized above, of single-sex higher
education in the Northeast is duplicated in other States. I
mention only my State of Virginia, where, even today, Hollins
College, Mary Baldwin College, Randolph Macon Woman's
College, and Sweet Briar College remain all-women's
colleges. Each has a proud and respected reputation of quality
education.
[Footnote 2/3]
It is true that, historically, many institutions of higher
education -- particularly in the East and South -- were single-
sex. To these extents, choices were by no means universally
available to all men and women. But choices always were
substantial, and the purpose of relating the experience of our
country with single-sex colleges and universities is to
document what should be obvious: generations of Americans,
including scholars, have thought -- wholly without regard to
any discriminatory animus -- that there were distinct
advantages in this type of higher education.
[Footnote 2/4]
In announcing Wellesley's decision in 1973 to remain a
women's college, President Barbara Newell said that
"[t]he research we have clearly demonstrates that women's
colleges produce a disproportionate number of women leaders
and women in responsible positions in society; it does
demonstrate that the higher proportion of women on the
faculty, the higher the motivation for women students."
Carnegie Report, in Babcock, at 1014. Similarly rejecting
coeducation in 1971, the Mount Holyoke Trustees Committee
on Coeducation reported that "the conditions that historically
justified the founding of women's colleges" continued to
justify their remaining in that tradition. Ibid. .
[Footnote 2/5]
In this Court, the benefits of single-sex education have been
asserted by the students and alumnae of MUW. One would
expect the Court to regard their views as directly relevant to
this case:
"[I]n the aspect of life known as courtship or mate-pairing, the
American female remains in the role of the pursued sex,
expected to adorn and groom herself to attract the male.
Without comment on the common sense or equities of this
social arrangement, it remains a sociological fact."
"An institution of collegiate higher learning maintained
exclusively for women is uniquely able to provide the
education atmosphere in which some, but not all, women can
best attain maximum learning potential. It can serve to
overcome the historic repression of the past, and can orient a
woman to function and achieve in the still male-dominated
economy. It can free its students of the burden of playing the
mating game while attending classes, thus giving academic,
rather than sexual, emphasis. Consequently, many such
institutions flourish, and their graduates make significant
contributions to the arts, professions and business."
Brief for Mississippi University for Women Alumnae
Association as Amicus Curiae 2-3.
[Footnote 2/6]
"[T]he Constitution does not require that a classification keep
abreast of the latest in educational opinion, especially when
there remains a respectable opinion to the contrary. . . . Any
other rule would mean that courts, and not legislatures, would
determine all matters of public policy."
Williams v. McNair, 316 F.Supp. 134, 137 (SC 1970)
(footnote omitted), summarily aff'd, 401 U.S. 951 (1971).
[Footnote 2/7]
See Kirchberg v. Feenstra, 450 U. S. 455, 450 U. S. 456
(1981) (invalidating statute "that gave husband, as 'head and
master' of property jointly owned with his wife, the unilateral
right to dispose of such property without his spouse's
consent"); Wengler v. Druggists Mutual Ins. Co., 446 U. S.
142, 446 U. S. 147 (1980) (invalidating law under which the
benefits "that the working woman can expect to be paid to her
spouse in the case of her work-related death are less than those
payable to the spouse of the deceased male wage earner");
Stanton v. Stanton, 421 U. S. 7 (1975) (invalidating statute
that provided a shorter period of parental support obligation
for female children than for male children); Weinberger v.
Wiesenfeld, 420 U. S. 636, 420 U. S. 645 (1975) (invalidating
statute that failed to grant a woman worker "the same
protection which a similarly situated male worker would have
received"); Frontiero v. Richardson, 411 U. S. 677, 411 U. S.
683 (1973) (invalidating statute containing a "mandatory
preference for male applicants"); Reed v. Reed, 404 U. S. 71,
404 U. S. 74 (1971) (invalidating an "arbitrary preference
established in favor of males" in the administration of
decedent's estates).
[Footnote 2/8]
See also Caban v. Mohammed, 441 U. S. 380 (1979)
(invalidating law that both denied men the opportunity --
given to women -- of blocking the adoption of his illegitimate
child by means of withholding his consent, and did not permit
men to counter the statute's generalization that the maternal
role is more important to women than the paternal role is to
men).
[Footnote 2/9]
Even the Court does not argue that the appropriate standard
here is "strict scrutiny" -- a standard that none of our "sex
discrimination" cases ever has adopted. Sexual segregation in
education differs from the tradition, typified by the decision in
Plessy v. Ferguson, 163 U. S. 537 (1896), of "separate but
equal" racial segregation. It was characteristic of racial
segregation that segregated facilities were offered, not as
alternatives to increase the choices available to blacks, but as
the sole alternative. MUW stands in sharp contrast. Of
Mississippi's 8 public universities and 16 public junior
colleges, only MUW considers sex as a criterion for
admission. Women consequently are free to select a
coeducational education environment for themselves if they so
desire; their attendance at MUW is not a matter of coercion.
[Footnote 2/10]
The Court says that "any gender-based classification provides
one class a benefit or choice not available to the other
class. . . ." Ante at 458 U. S. 731, n. 17. It then states that the
issue
"is not whether the benefited class profits from the
classification, but whether the State's decision to confer a
benefit only upon one class by means of a discriminatory
classification is substantially related to achieving a legitimate
and substantial goal."
Ibid. (emphasis added). This is not the issue in this case.
Hogan is not complaining about any benefit conferred upon
women. Nor is he claiming discrimination because Mississippi
offers no all-male college. As his brief states: "Joe Hogan does
not ask to attend an all-male college which offers a Bachelor
of Science in Nursing; he asks only to attend MUW." Brief for
Respondent 24. And he asks this only for his personal
convenience.
[Footnote 2/11]
Students in respondent's position, in
"being denied the right to attend the State college in their
home town, are treated no differently than are other students
who reside in communities many miles distant from any State
supported college or university. The location of any such
institution must necessarily inure to the benefit of some and to
the detriment of others, depending upon the distance the
affected individuals reside from the institution."
Heaton v. Bristol, 317 S.W.2d 86, 99 (Tex.Civ.App.1958),
cert. denied, 359 U. S. 230 (1959), quoted in Williams v.
McNair, 316 F.Supp. at 137.
[Footnote 2/12]
""Such a plan (i.e., giving the student a choice of a single-sex'
and coeducational institutions) exalts neither sex at the
expense of the other, but, to the contrary, recognizes the equal
rights of both sexes to the benefit of the best, most varied
system of higher education that the State can supply.""
Williams v. McNair, supra, at 138, n. 15, quoting Heaton v.
Bristol, supra, at 100.
[Footnote 2/13]

For instance, the School of Nursing takes up 15 pages of
MUW's 234-page course catalog. See Mississippi University
for Women, 81/82 Bulletin 185-200.
[Footnote 2/14]
E.g., Bachelor of Arts; Bachelor of Science; Master of Arts;
Master of Science. See id. at 40. MUW also offers special
preprofessional programs in law, dentistry, medicine,
pharmacy, physical therapy, and veterinary medicine. Ibid.
[Footnote 2/15]
MUW's Bulletin in its Table of Contents lists the following
subjects (offered in its School of Arts and Sciences): Air Force
ROTC; Art; Behavioral Sciences; Biological Sciences;
Business and Economics; Cooperative Education; English and
Foreign Languages; Health, Physical Education, Recreation,
and Dance; History, Journalism and Broadcasting;
Mathematics; Music; Physical Sciences; and Speech
Communication. See id. at 3.
[Footnote 2/16]
For instance, the catalog for the coeducational University of
Mississippi lists in its general description the "Sarah Isom
Center for Women's Studies," which is described as
"dedicated to the development of curriculum and scholarship
about women, the dissemination of information about their
expanding career opportunities, and the establishment of
mutual support networks for women of all ages and
backgrounds."
University of Mississippi, 1982 Undergraduate Catalog 13-14.
This listing precedes information about the University's Law
and Medical Centers. Id. at 14-15.
[Footnote 2/17]
The Court argues that MUW's means are not sufficiently
related to its goal because it has allowed men to audit classes.
The extent of record information is that men have audited 138
courses in the last 10 years. Brief for Respondent 21. On
average, then, men have audited 14 courses a year. MUW's
current annual catalog lists 913 courses offered in one year.
See Mississippi University for Women, 81/82 Bulletin passim.
It is understandable that MUW might believe that it could
allow men to audit courses without materially affecting its
environment. MUW charges tuition, but gives no academic
credit for auditing. The University evidently is correct in
believing that few men will choose to audit under such
circumstances. This deviation from a perfect relationship
between means and ends is insubstantial.
[Footnote 2/18]
The Court, in the opening and closing sentences and note 7 of
its opinion, states the issue in terms only of a "professional
nursing school" and
"decline[s] to address the question of whether MUW's
admissions policy, as applied to males seeking admission to
schools other than the School of Nursing, violates the
Fourteenth Amendment."
This would be a welcome limitation if, in fact, it leaves MUW
free to remain an all-women's university in each of its other
schools and departments -- which include four schools and
more than a dozen departments. Cf. nn. 13-15, supra. The
question the Court does not answer is whether MUW may
remain a women's university in every respect except its School
of Nursing. This is a critical question for this University and
its responsible board and officials. The Court holds today that
they have deprived Hogan of constitutional rights because
MUW is adjudged guilty of sex discrimination. The logic of
the Court's entire opinion, apart from its statements mentioned
above, appears to apply sweepingly to the entire University.
The exclusion of men from the School of Nursing is
repeatedly characterized as "gender-based discrimination,"
subject to the same standard of analysis applied in previous
sex discrimination cases of this Court. Nor does the opinion
anywhere deny that this analysis applies to the entire
University.
The Court nevertheless purports to decide this case
"narrow[ly]." Normally and properly, we decide only the
question presented. It seems to me that, in fact, the issue
properly before us is the single-sex policy of the University,
and it is this issue that I have addressed in this dissent. The
Court of Appeals so viewed this case, and unambiguously held
that a single-sex state institution of higher education no longer
is permitted by the Constitution. I see no principled way -- in
light of the Court's rationale -- to reach a different result with
respect to other MUW schools and departments. But given the
Court's insistence that its decision applies only to the School
of Nursing, it is my view that the Board and officials of MUW
may continue to operate the remainder of the University on a
single-sex basis without fear of personal liability. The standard
of such liability is whether the conduct of the official
"violate[s] clearly established statutory or constitutional rights
of which a reasonable person would have known." Harlow v.
Fitzgerald, 457 U. S. 800, 457 U. S. 818 (1982). The Court
today leaves in doubt the reach of its decision.
Board of Directors, Rotary International v. Rotary Club of
Duarte
No. 86-421
Argued March 30, 1987
Decided May 4, 1987
481 U.S. 537
Syllabus
Rotary International is a nonprofit corporation composed of
local Rotary Clubs. Its purposes are to provide humanitarian
service, to encourage high ethical standards in all vocations,
and to help build world peace and good will. Individuals are
admitted to local club membership according to a
"classification system" based on business, professional, and
institutional activity in the community. Although women are
permitted to attend meetings, give speeches, receive awards,
and form auxiliary organizations, the Rotary constitution
excludes women from membership. Because it had admitted
women to active membership, the Duarte, California, Rotary
Club's membership in the international organization was
terminated. That club and two of its women members filed a
suit alleging that the termination violated California's Unruh
Act (Act), which entitles all persons, regardless of sex, to full
and equal accommodations, advantages, facilities, privileges,
and services in all business establishments in the State. The
state trial court entered judgment for Rotary International,
concluding that neither it nor the Duarte Club is a "business
establishment" within the meaning of the Act. However, the
State Court of Appeal reversed on this point, and rejected the
contention that Rotary's policy of excluding women is
protected by the First Amendment. Accordingly, the court
ordered the Duarte Club's reinstatement, and enjoined the
enforcement of the gender requirements against it.
Held:
1. The Unruh Act does not violate the First Amendment by
requiring California Rotary Clubs to admit women. Pp. 481 U.
S. 544-549.
(a) Application of the Act to local Rotary Clubs does not
interfere unduly with club members' freedom of private
association. In determining whether a particular association is
sufficiently intimate or private to warrant constitutional
protection, consideration must be given to factors such as size,
purpose, selectivity, and whether others are excluded from
critical aspects of the relationship. Here, the relationship
among Rotary Club members does not warrant protection, in
light of the potentially large size of local clubs, the high
turnover rate among club members, the inclusive nature of
each club's membership, the public purposes behind clubs'
service activities, and the fact that the clubs encourage the
Page 481 U. S. 538
participation of strangers in, and welcome media coverage of,
many of their central activities. Pp. 481 U. S. 544-547.
(b) Application of the Act to California Rotary Clubs does not
violate the First Amendment right of expressive association.
Although clubs engage in a variety of commendable service
activities that are protected by the First Amendment, the
evidence fails to demonstrate that admitting women will affect
in any significant way the existing members' ability to carry
out those activities. Moreover, the Act does not require clubs
to abandon or alter their classification and admission systems,
but, in fact, will permit them to have an even more
representative membership with a broadened capacity for
service. Even if the Act does work some slight infringement of
members' rights, that infringement is justified by the State's
compelling interests in eliminating discrimination against
women and in assuring them equal access to public
accommodations. The latter interest extends to the acquisition
of leadership skills and business contacts, as well as tangible
goods and services. Pp. 481 U. S. 548-549.
2. The contentions that the Act is unconstitutionally vague and
overbroad were not properly presented to the state courts, and
therefore will not be reviewed by this Court. Pp. 481 U. S.
549-550.
178 Cal.App.3d 1035, 224 Cal.Rptr. 213, affirmed.
POWELL, J., delivered the opinion of the Court, in which
REHNQUIST, C.J., and BRENNAN, WHITE, MARSHALL,
and STEVENS, JJ., joined. SCALIA, J., concurred in the
judgment. BLACKMUN and O'CONNOR, JJ., took no part in
the consideration or decision of the case.
Manuel T. FRAGANTE, Plaintiff,
v.
CITY AND COUNTY OF HONOLULU, et al., Defendants.
No. CIV 83-1129.
United States District Court, D. Hawaii.
September 29, 1987.
William D. Hoshijo, Esther K. Arinaga, Na Loio No Na
Kanaka, Honolulu, Hawaii, for plaintiff.
Richard D. Wurdeman, Corp. Counsel, Gilbert C. Doles,
Deputy Corp. Counsel, City and County of Honolulu,
Honolulu, Hawaii, for defendants.

FINDINGS OF FACT AND CONCLUSIONS OF LAW AND
ORDER
ROSENBLATT, District Judge, Sitting by Designation.
BACKGROUND
This is an employment discrimination case brought under Title
VII of the Civil Rights Act of 1964, as amended by the Equal
Employment Opportunity Act of 1972, 42 U.S.C. Sec. 2000e-
2 and 2000e-5.
The Plaintiff alleges that Defendants discriminated against
him by disparate treatment on the basis of national origin,
accent, and race when they denied him employment. The
Defendants defend on failure to state a claim and denial of
unlawful discrimination.
FINDINGS OF FACT
The Plaintiff, Manuel T. Fragante, is a United States citizen of
Philippines national origin. He was born September 27, 1921
in Manila. He was well educated, with honors, in the
Philippines. He served as a career officer for 30 years in the
Philippines Armed Forces retiring while holding the position
of Army Adjutant. Most of Mr. Fragante's schooling, both
civilian and military, was conducted primarily in English.
After retirement he had subsequent work experience of a
supervisorial and administrative nature in Manila, Philippines.
In April, 1981 he and his wife immigrated to the United States
where he was naturalized as a citizen in Honolulu, Hawaii in
January, 1983, during which period he worked for the
Honolulu Community Action Program.
The Defendant City and County of Honolulu is a municipal
corporation within the State of Hawaii. Defendants George
Kuwahara, Dennis Kamimura, Peter Leong, Kalani
McCandless and Eileen Anderson were employed by the City
in their respective positions of Assistant Licensing
Administrator, Licensing Administrator, Director *1430 of the
Department of Finance, Secretary to the Licensing
Administrator; and Mayor. Presently Peter Leong and Eileen
Anderson are no longer employed by the City and Kalani
McCandless is deceased.
On November 2, 1981 the City placed an advertisement in the
daily newspapers for an employment opportunity as a Clerk
SR-8. On November 10, 1981 Plaintiff submitted his
application for the advertised position. On December 19, 1981
he took the Civil Service written examination number 043812.
He received a grade of 96 and was ranked number 1 on the list
of eligibles. 721 applicants took the exam, 371 passed and 350
failed.
Mr. Fragante was one of fifteen applicants certified to the
Department of Finance, Motor Vehicles and Licensing
Division in response to a request for eligibles dated March 22,
1982 to fill two Clerk SR-8 vacancies. Of those certified
Plaintiff was ranked number 1.
The employment announcement posted for the SR-8 position
concerning the eligible list and referral stated:
The names of the "top five" qualified applicants with the
highest examination grades will be referred to the employing
agency in the order of their examination grade and availability
for employment according to Civil Service Rules. The
employing agency may select any one of the eligibles referred.
Those not selected will remain on the list for at least one year
for future referrals.
Rule 4.2d of the Civil Service Rules provides, in pertinent
part, "an appointment from such certified lists of eligibles may
be made without regard to rank order."
Thus, Civil Service certified fifteen applicants for the two
positions. The fifteen included the five highest scores
including tied scores, transfer, and reemployment applicants
who also qualified. Four, including Fragante, chose to be
interviewed and five had been interviewed previously. All
nine were considered minimally qualified.
On April 6, 1982, Plaintiff reported to the Division of Motor
Vehicles and Licensing for a scheduled interview. The
interview was conducted by George Kuwahara and Kalani
McCandless. Normally, the administrator would participate as
a third member of the interview panel, but that did not occur in
these interviews.
Kuwahara, a college graduate, regularly conducted interviews
for vacancies in the Division and was involved in 50-100
interviews during the three years he was assistant licensing
administrator.
Kalani McCandless was the division secretary. She worked
under Kuwahara, the number two person in the Division, but
as described by the Administrator, Dennis Kamimura, she was
"really the office manager rather than a secretary." She had
served in almost all of the positions in the Motor Vehicle
Division, was a good interviewer and had vast experience as
an interviewer and as an employee in the Motor Vehicle
Division, having preceded both Kuwahara and Kamimuri in
the Division.
The April 6 interview took approximately 10-15 minutes. The
interview was informal. There were no written interview
questions but it was standard as compared to other interviews
then and on previous vacancies. Although standard, the
interview lacked formality as to standards, instructions,
guidelines, or criteria for its conduct. There was no validation
of questions and the interviewers were not formally trained in
the process.
After the interview, on the same day, Kuwahara and
McCandless scored Plaintiff on an interview rating sheet. The
rating sheet was inadequate. Ratings categories were vague,
qualitative in nature though reduced to qualitative terms, non-
correlative, and not clearly job related nor well defined. Dr.
James Kirkpatrick, an Industrial Psychologist, termed it
seriously flawed. He testified that written tests are acceptable
and reliable. But that the interview and the rating system were
entirely subjective and did not meet federal or any acceptable
standards of collective decision making. He did not have any
familiarity with the activities of the license bureau and never
talked to Fragante.
After all those certified had been interviewed, including
Plaintiff, Kuwahara and *1431 McCandless reviewed the
scores which in reference to Plaintiff had noted "Very
pronounced accent, difficult to understand," "Major drawback,
difficult to understand. Would have problem working on
counter and answering phone. Otherwise, a good candidate,"
and "Heavy Filipino accent. Would be difficult to understand
over telephone." They discussed the applicants in relation to
the job demands and decided by consensus on their
recommendations to the Finance Director, Peter Leong.
In a written recommendation dated April 13, 1982, Kuwahara
requested that Melvin Abe and Morris Miyagi be selected for
the vacancies, and ranked Plaintiff third among the four
applicants interviewed. He was described as follows:
3. Manuel Fragante Retired Phillipine (sic) army officer
speaks with very pronounced accent which is difficult to
understand. He has 37 years of experience in management and
administration and appears more qualified for professional
rather than clerical work. However, because of his accent, I
would not recommend him for this position.
In a letter dated June 7, 1982, McCandless notified Plaintiff
that he was not selected for the clerk position vacancies.
For a subsequent vacancy Kuwahara recommended in a memo
dated June 25, 1982 that Nora Jean Jose be selected as a clerk.
Fragante was not selected because of his accent.
In a letter dated June 28, 1982, Kuwahara informed Plaintiff of
the reason for non-selection:
As to the reason for your non-selection, we felt the two
selected applicants were both superior in their verbal
communication ability. As we indicated in your interview, our
clerks were constantly dealing with the public and the ability
to speak clearly is one of the most important skills required for
the position. Therefore, while we were impressed with your
educational and employment history, we felt the applicants
selected would be better able to work in our office because of
their communication skills.
At the time of the Plaintiff's interview, there was no routine
review, evaluation or validation of interview procedures or
rating systems by employment or labor relation specialists in
the Department of Civil Service.
The duties and responsibilities of the Clerk SR-8 position, as
described in Form DF-141, involved: (1) answering the
telephone; (2) providing motor vehicle registration
information to the public at the counter and as requested by
the general public and financial institutions, motor vehicle
dealers, either by phone or mail; and, (3) acting as field
cashier in accepting motor vehicle renewals and dog and
bicycle licenses during renewal periods. There were other
duties and responsibilities, but all clerks were rotated to
perform the full job descriptions and almost all of the duties
involved contact with the public.
The job is a difficult one because it involves dealing with a
great number of disgruntled members of the public. The clerk
must deal with 200-500 people per day, many of whom are
angry or complaining and who do not want to hear what the
clerk may have to explain concerning their applications or in
answer to their questions. It is a high turnover position where
people leave quickly because of the high stress involving daily
contact with contentious people. The position is the lowest
paid in the city.
Fragante was bypassed because of his "accent." As explained
by Dr. Michael Forman, a PhD and an associate professor of
socio and ethnic linguistics specializing in Filipino
interactions with anglos, there is a misunderstanding as to
what an accent is. Everyone has an accent. It is merely a
manner of pronunciation, often linked to national origin.
While Plaintiff has extensive verbal communication skill in
English it is understandable why the interviewers might reach
their conclusion. And while there is no necessary relationship
between accent and verbal communication, as opined by Dr.
Forman, listeners stop listening to Filipino accents, resulting in
a breakdown of communication. *1432 Hawaii is a socially
and linguistically complex community.
Fragante, in fact, has a difficult manner of pronunciation and
the Court further finds as a fact from his general testimony
that he would often not respond directly to the questions as
propounded. He maintains much of his military bearing.
After receiving notice of the reason for his non-selection, Mr.
Fragante filed a charge of discrimination dated September 2,
1982 and amended January 19, 1983. Harry Fujimori, a Fair
Employment Practices Specialist, investigated the complaint
of race, national origin and age discrimination and determined
that the respondents/defendants did not discriminate against
the plaintiff and issued a right to sue letter from the EEOC.
This complaint followed on October 27, 1983.
CONCLUSIONS OF LAW
The Court has jurisdiction over the parties and subject matter
of this action by virtue of Title VII of the Civil Rights Act of
1964, as amended, 42 U.S.C. Section 2000e et seq. The
Defendant City and County of Honolulu is an employer within
the meaning of Title VII of the Civil Rights Act of 1964.
The rejection by the City of Plaintiff's application for the
position of Clerk SR-8 was not based upon any discrimination
against Plaintiff because of his race or national origin. It was
based on a reasonable policy that is related to the position of
Clerk SR-8 and therefore constitutes a business necessity.
The requirement of being able to communicate clearly and
effectively with an often contentious general public is a bona
fide occupational qualification which is necessary to the City's
business of providing services and assistance to the general
public concerning motor vehicles and licensing matters.
The results of Plaintiff's interview show that his oral
communication skills were hampered by his accent or manner
of speaking, and pronouncing, which made it difficult for the
City interviewers to understand his answers and statements
during the course of the interview.
In spite of the insufficiencies of the rating system and the
weaknesses of the interview process, as applied to the
Plaintiff, they were not discriminating. Nor did the
interviewers utilize them in anyway to discriminate against the
Plaintiff.
The two applicants, who were selected, satisfied the City's
bona fide occupational requirement and therefore were better
qualified than Plaintiff for the position of Clerk SR-8.
The City Civil Service Rule 4.2d allowed the Motor Vehicle
and Licensing Division of the Department of Finance to select
any one of the top five eligibles, among whom was Plaintiff,
without regard to his number one ranking.
Plaintiff's non-selection was not disparate treatment and did
not violate Title VII of the Civil Rights Act of 1964 because
he failed to show that his non-selection was based on any
discriminatory intent or motive by the City.
Plaintiff's non-selection did not violate 42 U.S.C. Sec. 1981
because he has failed to establish any proof of a discriminatory
intent or motive by the City.
Plaintiff's non-selection did not violate his rights under the
Fifth and Fourteenth Amendments of the United States
Constitution because he has failed to establish any proof of a
discriminatory intent or motive by the City.
ORDER
Based on the foregoing Findings of Fact and Conclusions of
Law, it is the decision of this Court that Plaintiff's complaint
be and it is hereby ordered dismissed.
BOY SCOUTS OF AMERICA ET AL. v. DALE
CERTIORARI TO THE SUPREME COURT OF NEW
JERSEY No. 99-699. Argued April 26, 2000-Decided June 28,
2000
Petitioners are the Boy Scouts of America and its Monmouth
Council (collectively, Boy Scouts). The Boy Scouts is a
private, not-for-profit organization engaged in instilling its
system of values in young people. It asserts that homosexual
conduct is inconsistent with those values. Respondent Dale is
an adult whose position as assistant scoutmaster of a New
Jersey troop was revoked when the Boy Scouts learned that he
is an avowed homosexual and gay rights activist. He filed suit
in the New Jersey Superior Court, alleging, inter alia, that the
Boy Scouts had violated the state statute prohibiting
discrimination on the basis of sexual orientation in places of
public accommodation. That court's Chancery Division
granted summary judgment for the Boy Scouts, but its
Appellate Division reversed in pertinent part and remanded.
The State Supreme Court affirmed, holding, inter alia, that the
Boy Scouts violated the State's public accommodations law by
revoking Dale's membership based on his avowed
homosexuality. Among other rulings, the court held that
application of that law did not violate the Boy Scouts' First
Amendment right of expressive association because Dale's
inclusion would not significantly affect members' ability to
carry out their purposes; determined that New Jersey has a
compelling interest in eliminating the destructive
consequences of discrimination from society, and that its
public accommodations law abridges no more speech than is
necessary to accomplish its purpose; and distinguished Hurley
v. IrishAmerican Gay, Lesbian and Bisexual Group of Boston,
Inc., 515 U. S. 557, on the ground that Dale's reinstatement
did not compel the Boy Scouts to express any message.
Held: Applying New Jersey's public accommodations law to
require the Boy Scouts to readmit Dale violates the Boy
Scouts' First Amendment right of expressive association.
Government actions that unconstitutionally burden that right
may take many forms, one of which is intrusion into a group's
internal affairs by forcing it to accept a member it does not
desire. Roberts v. United States Jaycees, 468 U. S. 609, 623.
Such forced membership is unconstitutional if the person's
presence affects in a significant way the group's ability to
advocate public or private viewpoints. New York State Club
Assn., Inc. v. City of New York, 487 U. S. 1, 13. However, the
freedom of expressive association is not absolute; it can be
overridden by regulations adopted to serve compelling
641
state interests, unrelated to the suppression of ideas, that
cannot be achieved through means significantly less restrictive
of associational freedoms. Roberts, 468 U. S., at 623. To
determine whether a group is protected, this Court must
determine whether the group engages in "expressive
association." The record clearly reveals that the Boy Scouts
does so when its adult leaders inculcate its youth members
with its value system. See id., at 636. Thus, the Court must
determine whether the forced inclusion of Dale would
significantly affect the Boy Scouts' ability to advocate public
or private viewpoints. The Court first must inquire, to a
limited extent, into the nature of the Boy Scouts' viewpoints.
The Boy Scouts asserts that homosexual conduct is
inconsistent with the values embodied in the Scout Oath and
Law, particularly those represented by the terms "morally
straight" and "clean," and that the organization does not want
to promote homosexual conduct as a legitimate form of
behavior. The Court gives deference to the Boy Scouts'
assertions regarding the nature of its expression, see
Democratic Party of United States v. Wisconsin ex rel. La
Follette, 450 U. S. 107, 123-124. The Court then inquires
whether Dale's presence as an assistant scoutmaster would
significantly burden the expression of those viewpoints. Dale,
by his own admission, is one of a group of gay Scouts who
have become community leaders and are open and honest
about their sexual orientation. His presence as an assistant
scoutmaster would interfere with the Scouts' choice not to
propound a point of view contrary to its beliefs. See Hurley,
515 U. S., at 576-577. This Court disagrees with the New
Jersey Supreme Court's determination that the Boy Scouts'
ability to disseminate its message would not be significantly
affected by the forced inclusion of Dale. First, contrary to the
state court's view, an association need not associate for the
purpose of disseminating a certain message in order to be
protected, but must merely engage in expressive activity that
could be impaired. Second, even if the Boy Scouts discourages
Scout leaders from disseminating views on sexual issues, its
method of expression is protected. Third, the First Amendment
does not require that every member of a group agree on every
issue in order for the group's policy to be "expressive
association." Given that the Boy Scouts' expression would be
burdened, the Court must inquire whether the application of
New Jersey's public accommodations law here runs afoul of
the Scouts' freedom of expressive association, and concludes
that it does. Such a law is within a State's power to enact when
the legislature has reason to believe that a given group is the
target of discrimination and the law does not violate the First
Amendment. See, e. g., id., at 572. The Court rejects Dale's
contention that the intermediate standard of review enunciated
in United States v. O'Brien, 391 U. S. 367, should be applied
here to evaluate the
642
Syllabus
competing interests of the Boy Scouts and the State. Rather,
the Court applies an analysis similar to the traditional First
Amendment analysis it applied in Hurley. A state requirement
that the Boy Scouts retain Dale would significantly burden the
organization's right to oppose or disfavor homosexual conduct.
The state interests embodied in New Jersey's public
accommodations law do not justify such a severe intrusion on
the freedom of expressive association. In so ruling, the Court
is not guided by its view of whether the Boy Scouts' teachings
with respect to homosexual conduct are right or wrong; public
or judicial disapproval of an organization's expression does
not justify the State's effort to compel the organization to
accept members in derogation of the organization's expressive
message. While the law may promote all sorts of conduct in
place of harmful behavior, it may not interfere with speech for
no better reason than promoting an approved message or
discouraging a disfavored one, however enlightened either
purpose may seem. Hurley, supra, at 579. Pp. 647-661.
160 N. J. 562, 734 A. 2d 1196, reversed and remanded.
REHNQUIST, C. J., delivered the opinion of the Court, in
which O'CONNOR, SCALIA, KENNEDY, and THOMAS,
JJ., joined. STEVENS, J., filed a dissenting opinion, in which
SOUTER, GINSBURG, and BREYER, JJ., joined, post, p.
663. SOUTER, J., filed a dissenting opinion, in which
GINSBURG and BREYER, JJ., joined, post, p. 700.
George A. Davidson argued the cause for petitioners.
With him on the briefs were Carla A. Kerr, David K. Park,
Michael W McConnell, and Sanford D. Brown.
Evan Wolfson argued the cause for respondent. With him on
the brief were Ruth E. Harlow, David Buckel, Jon W
Davidson, Beatrice Dohrn, Patricia M. Logue, Thomas J.
Moloney, Allyson W Haynes, and Lewis H. Robertson.*
*Briefs of amici curiae urging reversal were filed for Agudath
Israel of America by David Zwiebel; for the American Center
for Law and Justice et al. by Jay Alan Sekulow, Vincent
McCarthy, John P. Tuskey, and Laura B. Hernandez; for the
American Civil Rights Union by Peter J. Ferrara; for the
Becket Fund for Religious Liberty by Kevin J. Hasson and
Eric W Treene; for the California State Club Association et al.
by William I. Edlund; for the Center for the Original Intent of
the Constitution by Michael P. Farris; for the Christian Legal
Society et al. by Kimberlee Wood Colby and Carl H. Esbeck;
for the Claremont Institute Center
643
CHIEF JUSTICE REHNQUIST delivered the opinion of the
Court.
Petitioners are the Boy Scouts of America and the Monmouth
Council, a division of the Boy Scouts of America (col-
for Constitutional Jurisprudence by Edwin Meese III; for the
Eagle Forum Education & Legal Defense Fund et al. by Erik
S. Jaffe; for the Family Defense Council et al. by William E.
Fay III; for the Family Research Council by Janet M. LaRue;
for Gays and Lesbians for Individual Liberty by William H.
Mellor, Clint Bolick, and Scott G. Bullock; for the Individual
Rights Foundation by Paul A. Hoffman and Patrick J.
Manshardt; for the Institute for Public Mfairs of the Union of
Orthodox Jewish Congregations of America by Nathan J.
Diament; for the Liberty Legal Institute by Kelly Shackelford
and George B. Flint; for the National Catholic Committee on
Scouting et al. by Von G. Keetch; for the National Legal
Foundation by Barry C. Hodge; for the Pacific Legal
Foundation by John H. Findley; for Public Advocate of the
United States et al. by William J. Olson and John S. Miles; for
the United States Catholic Conference et al. by Mark E.
Chopko and Jeffrey Hunter Moon; and for John J. Hurley et al.
by Chester Darling, Michael Williams, and Dwight G.
Duncan.
Briefs of amici curiae urging affirmance were filed for the
State of New Jersey by John J. Farmer, Jr., Attorney General,
Jeffrey Burstein, Senior Deputy Attorney General, and Charles
S. Cohen, Deputy Attorney General; for the State of New
York et al. by Eliot Spitzer, Attorney General of New York,
Preeta D. Bansal, Solicitor General, and Adam L. Aronson,
Assistant Solicitor General, and by the Attorneys General for
their respective States as follows: Bill Lockyer of California,
Earl I. Anzai of Hawaii, J. Joseph Curran, Jr., of Maryland,
Thomas F. Reilly of Massachusetts, Philip T. McLaughlin of
New Hampshire, W A. Drew Edmondson of Oklahoma; Hardy
Myers of Oregon, William H. Sorrell of Vermont, and
Christine O. Gregoire of Washington; for the city of Atlanta et
al. by Peter T. Barbur, Sara M. Darehshori, James K. Hahn,
David I. Schulman, Jeffrey L. Rogers, Madelyn F. Wessel,
Thomas J. Berning, Lawrence E. Rosenthal, Benna Ruth
Solomon, Michael D. Hess, Leonard J. Koerner, Florence A.
Hutner, and Louise Renne; for the American Association of
School Administrators et al. by Mitchell A. Karlan; for the
American Bar Association by William G. Paul and Robert H.
Murphy; for the American Civil Liberties Union et al. by
Matthew A. Coles, Steven R. Shapiro, Sara L. Mandelbaum,
and Lenora M. Lapidus; for the American Jewish Congress by
Marc D. Stern; for the American Psychological Association by
Paul M. Smith, Nory Miller, James L. McHugh, and Nathalie
F. P. Gil-
644
lectively, Boy Scouts). The Boy Scouts is a private, not-
forprofit organization engaged in instilling its system of values
in young people. The Boy Scouts asserts that homosexual
conduct is inconsistent with the values it seeks to instill.
Respondent is James Dale, a former Eagle Scout whose adult
membership in the Boy Scouts was revoked when the Boy
Scouts learned that he is an avowed homosexual and gay
rights activist. The New Jersey Supreme Court held that New
Jersey's public accommodations law requires that the Boy
Scouts readmit Dale. This case presents the question whether
applying New Jersey's public accommodations law in this way
violates the Boy Scouts' First Amendment right of expressive
association. We hold that it does.
I
James Dale entered Scouting in 1978 at the age of eight by
joining Monmouth Council's Cub Scout Pack 142. Dale
became a Boy Scout in 1981 and remained a Scout until he
turned 18. By all accounts, Dale was an exemplary Scout. In
1988, he achieved the rank of Eagle Scout, one of Scouting's
highest honors.
Dale applied for adult membership in the Boy Scouts in 1989.
The Boy Scouts approved his application for the position of
assistant scoutmaster of Troop 73. Around the same time, Dale
left home to attend Rutgers University. After arriving at
Rutgers, Dale first acknowledged to himself and
foyle; for the American Public Health Association et al. by
Marvin E. Frankel, Jeffrey S. Trachtman, and Kerri Ann Law;
for Bay Area Lawyers for Individual Freedom et al. by
Edward W Swanson and Paula A. Brantner; for Deans of
Divinity Schools and Rabbinical Institutions by David A.
Schulz; for the National Association for the Advancement of
Colored People by Dennis C. Hayes and David T. Goldberg;
for Parents, Families, and Friends of Lesbians and Gays, Inc.,
et al. by John H. Pickering, Daniel H. Squire, and Carol J.
Banta; for the Society of American Law Teachers by Nan D.
Hunter and David Cole; and for Roland Pool et al. by David
M. Gische and Merril Hirsh.
Michael D. Silverman filed a brief for the General Board of
Church and Society of the United Methodist Church et al.
645
others that he is gay. He quickly became involved with, and
eventually became the copresident of, the Rutgers University
Lesbian/Gay Alliance. In 1990, Dale attended a seminar
addressing the psychological and health needs of lesbian and
gay teenagers. A newspaper covering the event interviewed
Dale about his advocacy of homosexual teenagers' need for
gay role models. In early July 1990, the newspaper published
the interview and Dale's photograph over a caption identifying
him as the copresident of the Lesbian/ Gay Alliance.
Later that month, Dale received a letter from Monmouth
Council Executive James Kay revoking his adult membership.
Dale wrote to Kay requesting the reason for Monmouth
Council's decision. Kay responded by letter that the Boy
Scouts "specifically forbid membership to homosexuals." App.
137.
In 1992, Dale filed a complaint against the Boy Scouts in the
New Jersey Superior Court. The complaint alleged that the
Boy Scouts had violated New Jersey's public accommodations
statute and its common law by revoking Dale's membership
based solely on his sexual orientation. New Jersey's public
accommodations statute prohibits, among other things,
discrimination on the basis of sexual orientation in places of
public accommodation. N. J. Stat. Ann. §§ 10:5-4 and 10:5-5
(West Supp. 2000); see Appendix, infra, at 661-663.
The New Jersey Superior Court's Chancery Division granted
summary judgment in favor of the Boy Scouts. The court held
that New Jersey's public accommodations law was
inapplicable because the Boy Scouts was not a place of public
accommodation, and that, alternatively, the Boy Scouts is a
distinctly private group exempted from coverage under New
Jersey's law. The court rejected Dale's common-law claim,
holding that New Jersey's policy is embodied in the public
accommodations law. The court also concluded that the Boy
Scouts' position in respect of active homosexuality was clear
646
and held that the First Amendment freedom of expressive
association prevented the government from forcing the Boy
Scouts to accept Dale as an adult leader.
The New Jersey Superior Court's Appellate Division affirmed
the dismissal of Dale's common-law claim, but otherwise
reversed and remanded for further proceedings. 308 N. J.
Super. 516, 706 A. 2d 270 (1998). It held that New Jersey's
public accommodations law applied to the Boy Scouts and that
the Boy Scouts violated it. The Appellate Division rejected the
Boy Scouts' federal constitutional claims.
The New Jersey Supreme Court affirmed the judgment of the
Appellate Division. It held that the Boy Scouts was a place of
public accommodation subject to the public accommodations
law, that the organization was not exempt from the law under
any of its express exceptions, and that the Boy Scouts violated
the law by revoking Dale's membership based on his avowed
homosexuality. After considering the state-law issues, the
court addressed the Boy Scouts' claims that application of the
public accommodations law in this case violated its federal
constitutional rights "'to enter into and maintain ... intimate or
private relationships ... [and] to associate for the purpose of
engaging in protected speech.'" 160 N. J. 562, 605, 734 A. 2d
1196, 1219 (1999) (quoting Board of Directors of Rotary lnt'l
v. Rotary Club of Duarte, 481 U. S. 537, 544 (1987)). With
respect to the right to intimate association, the court concluded
that the Boy Scouts' "large size, nonselectivity, inclusive
rather than exclusive purpose, and practice of inviting or
allowing nonmembers to attend meetings, establish that the
organization is not 'sufficiently personal or private to warrant
constitutional protection' under the freedom of intimate
association." 160 N. J., at 608-609, 734 A. 2d, at 1221
(quoting Duarte, supra, at 546). With respect to the right of
expressive association, the court "agree[d] that Boy Scouts
expresses a belief in moral values and uses its activities to
encourage the moral development
647
of its members." 160 N. J., at 613, 734 A. 2d, at 1223. But the
court concluded that it was "not persuaded ... that a shared
goal of Boy Scout members is to associate in order to preserve
the view that homosexuality is immoral." Ibid., 734 A. 2d, at
1223-1224 (internal quotation marks omitted). Accordingly,
the court held "that Dale's membership does not violate the
Boy Scouts' right of expressive association because his
inclusion would not 'affect in any significant way [the Boy
Scouts'] existing members' ability to carry out their various
purposes.'" Id., at 615, 734 A. 2d, at 1225 (quoting Duarte,
supra, at 548). The court also determined that New Jersey has
a compelling interest in eliminating "the destructive
consequences of discrimination from our society," and that its
public accommodations law abridges no more speech than is
necessary to accomplish its purpose. 160 N. J., at 619-620,734
A. 2d, at 1227-1228. Finally, the court addressed the Boy
Scouts' reliance on Hurley v. IrishAmerican Gay, Lesbian and
Bisexual Group of Boston, Inc., 515 U. S. 557 (1995), in
support of its claimed First Amendment right to exclude Dale.
The court determined that Hurley did not require deciding the
case in favor of the Boy Scouts because "the reinstatement of
Dale does not compel Boy Scouts to express any message."
160 N. J., at 624, 734 A. 2d, at 1229.
We granted the Boy Scouts' petition for certiorari to determine
whether the application of New Jersey's public
accommodations law violated the First Amendment. 528 U. S.
1109 (2000).
II
In Roberts v. United States Jaycees, 468 U. S. 609, 622
(1984), we observed that "implicit in the right to engage in
activities protected by the First Amendment" is "a
corresponding right to associate with others in pursuit of a
wide variety of political, social, economic, educational,
religious, and cultural ends." This right is crucial in preventing
the majority from imposing its views on groups that would
648
rather express other, perhaps unpopular, ideas. See ibid.
(stating that protection of the right to expressive association is
"especially important in preserving political and cultural
diversity and in shielding dissident expression from
suppression by the majority"). Government actions that may
unconstitutionally burden this freedom may take many forms,
one of which is "intrusion into the internal structure or affairs
of an association" like a "regulation that forces the group to
accept members it does not desire." Id., at 623. Forcing a
group to accept certain members may impair the ability of the
group to express those views, and only those views, that it
intends to express. Thus, "[f]reedom of association ... plainly
presupposes a freedom not to associate." Ibid.
The forced inclusion of an unwanted person in a group
infringes the group's freedom of expressive association if the
presence of that person affects in a significant way the group's
ability to advocate public or private viewpoints. New York
State Club Assn., Inc. v. City of New York, 487 U. S. 1, 13
(1988). But the freedom of expressive association, like many
freedoms, is not absolute. We have held that the freedom
could be overridden "by regulations adopted to serve
compelling state interests, unrelated to the suppression of
ideas, that cannot be achieved through means significantly less
restrictive of associational freedoms." Roberts, supra, at 623.
To determine whether a group is protected by the First
Amendment's expressive associational right, we must
determine whether the group engages in "expressive
association." The First Amendment's protection of expressive
association is not reserved for advocacy groups. But to come
within its ambit, a group must engage in some form of
expression, whether it be public or private.
Because this is a First Amendment case where the ultimate
conclusions of law are virtually inseparable from findings of
fact, we are obligated to independently review the
649
factual record to ensure that the state court's judgment does not
unlawfully intrude on free expression. See Hurley, supra, at
567-568. The record reveals the following. The Boy Scouts is
a private, nonprofit organization. According to its mission
statement:
"It is the mission of the Boy Scouts of America to serve others
by helping to instill values in young people and, in other ways,
to prepare them to make ethical choices over their lifetime in
achieving their full potential.
"The values we strive to instill are based on those found in the
Scout Oath and Law:
"Scout Oath "On my honor I will do my best
"To do my duty to God and my country "and to obey the Scout
Law;
"To help other people at all times;
"To keep myself physically strong, "mentally awake, and
morally straight.
"Scout Law
"A Scout is:
"Trustworthy Obedient
"Loyal Cheerful
"Helpful Thrifty
"Friendly Brave
"Courteous Clean
"Kind Reverent." App. 184.
Thus, the general mission of the Boy Scouts is clear: "[T]o
instill values in young people." Ibid. The Boy Scouts seeks to
instill these values by having its adult leaders spend time with
the youth members, instructing and engaging them in activities
like camping, archery, and fishing. During the time spent with
the youth members, the scoutmasters and assistant
scoutmasters inculcate them with the Boy
650
Scouts' values-both expressly and by example. It seems
indisputable that an association that seeks to transmit such a
system of values engages in expressive activity. See Roberts,
supra, at 636 (O'CONNOR, J., concurring) ("Even the training
of outdoor survival skills or participation in community
service might become expressive when the activity is intended
to develop good morals, reverence, patriotism, and a desire for
self-improvement").
Given that the Boy Scouts engages in expressive activity, we
must determine whether the forced inclusion of Dale as an
assistant scoutmaster would significantly affect the Boy
Scouts' ability to advocate public or private viewpoints. This
inquiry necessarily requires us first to explore, to a limited
extent, the nature of the Boy Scouts' view of homosexuality.
The values the Boy Scouts seeks to instill are "based on" those
listed in the Scout Oath and Law. App. 184. The Boy Scouts
explains that the Scout Oath and Law provide "a positive
moral code for living; they are a list of 'do's' rather than
'don'ts.'" Brief for Petitioners 3. The Boy Scouts asserts that
homosexual conduct is inconsistent with the values embodied
in the Scout Oath and Law, particularly with the values
represented by the terms "morally straight" and "clean."
Obviously, the Scout Oath and Law do not expressly mention
sexuality or sexual orientation. See supra, at 649. And the
terms "morally straight" and "clean" are by no means self-
defining. Different people would attribute to those terms very
different meanings. For example, some people may believe
that engaging in homosexual conduct is not at odds with being
"morally straight" and "clean." And others may believe that
engaging in homosexual conduct is contrary to being "morally
straight" and "clean." The Boy Scouts says it falls within the
latter category.
The New Jersey Supreme Court analyzed the Boy Scouts'
beliefs and found that the "exclusion of members solely on the
basis of their sexual orientation is inconsistent with Boy
651
Scouts' commitment to a diverse and 'representative'
membership ... [and] contradicts Boy Scouts' overarching
objective to reach 'all eligible youth.'" 160 N. J., at 618, 734 A.
2d, at 1226. The court concluded that the exclusion of
members like Dale "appears antithetical to the organization's
goals and philosophy." Ibid. But our cases reject this sort of
inquiry; it is not the role of the courts to reject a group's
expressed values because they disagree with those values or
find them internally inconsistent. See Democratic Party of
United States v. Wisconsin ex rel. La Follette, 450 U. S. 107,
124 (1981) ("[A]s is true of all expressions of First
Amendment freedoms, the courts may not interfere on the
ground that they view a particular expression as unwise or
irrational"); see also Thomas v. Review Bd. of Indiana
Employment Security Div., 450 U. S. 707, 714 (1981)
("[R]eligious beliefs need not be acceptable, logical,
consistent, or comprehensible to others in order to merit First
Amendment protection").
The Boy Scouts asserts that it "teach[es] that homosexual
conduct is not morally straight," Brief for Petitioners 39, and
that it does "not want to promote homosexual conduct as a
legitimate form of behavior," Reply Brief for Petitioners 5. We
accept the Boy Scouts' assertion. We need not inquire further
to determine the nature of the Boy Scouts' expression with
respect to homosexuality. But because the record before us
contains written evidence of the Boy Scouts' viewpoint, we
look to it as instructive, if only on the question of the sincerity
of the professed beliefs.
A 1978 position statement to the Boy Scouts' Executive
Committee, signed by Downing B. Jenks, the President of the
Boy Scouts, and Harvey L. Price, the Chief Scout Executive,
expresses the Boy Scouts' "official position" with regard to
"homosexuality and Scouting":
"Q. Mayan individual who openly declares himself to be a
homosexual be a volunteer Scout leader?
652
"A. No. The Boy Scouts of America is a private, membership
organization and leadership therein is a privilege and not a
right. We do not believe that homosexuality and leadership in
Scouting are appropriate. We will continue to select only those
who in our judgment meet our standards and qualifications for
leadership." App.453-454.
Thus, at least as of 1978-the year James Dale entered
Scouting-the official position of the Boy Scouts was that
avowed homosexuals were not to be Scout leaders.
A position statement promulgated by the Boy Scouts in 1991
(after Dale's membership was revoked but before this litigation
was filed) also supports its current view:
"We believe that homosexual conduct is inconsistent with the
requirement in the Scout Oath that a Scout be morally straight
and in the Scout Law that a Scout be clean in word and deed,
and that homosexuals do not provide a desirable role model
for Scouts." Id., at 457.

This position statement was redrafted numerous times but its
core message remained consistent. For example, a 1993
position statement, the most recent in the record, reads, in part:
"The Boy Scouts of America has always reflected the
expectations that Scouting families have had for the
organization. We do not believe that homosexuals provide a
role model consistent with these expectations. Accordingly,
we do not allow for the registration of avowed homosexuals as
members or as leaders of the BSA." Id., at 461.
The Boy Scouts publicly expressed its views with respect to
homosexual conduct by its assertions in prior litigation. For
example, throughout a California case with similar facts filed
in the early 1980's, the Boy Scouts consistently asserted the
same position with respect to homosexuality that it asserts
today. See Curran v. Mount Diablo Council of Boy
653
Scouts of America, No. C-365529 (Cal. Super. Ct., July 25,
1991); 48 Cal. App. 4th 670, 29 Cal. Rptr. 2d 580 (1994); 17
Cal. 4th 670, 952 P. 2d 218 (1998). We cannot doubt that the
Boy Scouts sincerely holds this view.
We must then determine whether Dale's presence as an
assistant scoutmaster would significantly burden the Boy
Scouts' desire to not "promote homosexual conduct as a
legitimate form of behavior." Reply Brief for Petitioners 5. As
we give deference to an association's assertions regarding the
nature of its expression, we must also give deference to an
association's view of what would impair its expression. See, e.
g., La Follette, supra, at 123-124 (considering whether a
Wisconsin law burdened the National Party's associational
rights and stating that "a State, or a court, may not
constitutionally substitute its own judgment for that of the
Party"). That is not to say that an expressive association can
erect a shield against antidiscrimination laws simply by
asserting that mere acceptance of a member from a particular
group would impair its message. But here Dale, by his own
admission, is one of a group of gay Scouts who have "become
leaders in their community and are open and honest about their
sexual orientation." App. 11. Dale was the copresident of a
gay and lesbian organization at college and remains a gay
rights activist. Dale's presence in the Boy Scouts would, at the
very least, force the organization to send a message, both to
the youth members and the world, that the Boy Scouts accepts
homosexual conduct as a legitimate form of behavior.
Hurley is illustrative on this point. There we considered
whether the application of Massachusetts' public
accommodations law to require the organizers of a private St.
Patrick's Day parade to include among the marchers an
IrishAmerican gay, lesbian, and bisexual group, GLIB,
violated the parade organizers' First Amendment rights. We
noted that the parade organizers did not wish to exclude the
GLIB members because of their sexual orientations, but
because they wanted to march behind a GLIB banner. We
observed:
654
"[A] contingent marching behind the organization's banner
would at least bear witness to the fact that some Irish are gay,
lesbian, or bisexual, and the presence of the organized
marchers would suggest their view that people of their sexual
orientations have as much claim to unqualified social
acceptance as heterosexuals .... The parade's organizers may
not believe these facts about Irish sexuality to be so, or they
may object to unqualified social acceptance of gays and
lesbians or have some other reason for wishing to keep GLIB's
message out of the parade. But whatever the reason, it boils
down to the choice of a speaker not to propound a particular
point of view, and that choice is presumed to lie beyond the
government's power to control." 515 U. S., at 574-575.
Here, we have found that the Boy Scouts believes that
homosexual conduct is inconsistent with the values it seeks to
instill in its youth members; it will not "promote homosexual
conduct as a legitimate form of behavior." Reply Brief for
Petitioners 5. As the presence of GLIB in Boston's St. Patrick's
Day parade would have interfered with the parade organizers'
choice not to propound a particular point of view, the presence
of Dale as an assistant scoutmaster would just as surely
interfere with the Boy Scout's choice not to propound a point
of view contrary to its beliefs.
The New Jersey Supreme Court determined that the Boy
Scouts' ability to disseminate its message was not significantly
affected by the forced inclusion of Dale as an assistant
scoutmaster because of the following findings:
"Boy Scout members do not associate for the purpose of
disseminating the belief that homosexuality is immoral; Boy
Scouts discourages its leaders from disseminating any views
on sexual issues; and Boy Scouts includes sponsors and
members who subscribe to different views
655
in respect of homosexuality." 160 N. J., at 612, 734 A. 2d, at
1223.
We disagree with the New Jersey Supreme Court's conclusion
drawn from these findings.
First, associations do not have to associate for the "purpose" of
disseminating a certain message in order to be entitled to the
protections of the First Amendment. An association must
merely engage in expressive activity that could be impaired in
order to be entitled to protection. For example, the purpose of
the St. Patrick's Day parade in Hurley was not to espouse any
views about sexual orientation, but we held that the parade
organizers had a right to exclude certain participants
nonetheless.
Second, even if the Boy Scouts discourages Scout leaders
from disseminating views on sexual issues-a fact that the Boy
Scouts disputes with contrary evidence-the First Amendment
protects the Boy Scouts' method of expression. If the Boy
Scouts wishes Scout leaders to avoid questions of sexuality
and teach only by example, this fact does not negate the
sincerity of its belief discussed above.
Third, the First Amendment simply does not require that every
member of a group agree on every issue in order for the
group's policy to be "expressive association." The Boy Scouts
takes an official position with respect to homosexual conduct,
and that is sufficient for First Amendment purposes. In this
same vein, Dale makes much of the claim that the Boy Scouts
does not revoke the membership of heterosexual Scout leaders
that openly disagree with the Boy Scouts' policy on sexual
orientation. But if this is true, it is irrelevant.1 The presence of
an avowed homosexual and gay
1 The record evidence sheds doubt on Dale's assertion. For
example, the National Director of the Boy Scouts certified that
"any persons who advocate to Scouting youth that homosexual
conduct is" consistent with Scouting values will not be
registered as adult leaders. App. 746 (emphasis added). And
the Monmouth Council Scout Executive testified that the
656
rights activist in an assistant scoutmaster's uniform sends a
distinctly different message from the presence of a
heterosexual assistant scoutmaster who is on record as
disagreeing with Boy Scouts policy. The Boy Scouts has a
First Amendment right to choose to send one message but not
the other. The fact that the organization does not trumpet its
views from the housetops, or that it tolerates dissent within its
ranks, does not mean that its views receive no First
Amendment protection.
Having determined that the Boy Scouts is an expressive
association and that the forced inclusion of Dale would
significantly affect its expression, we inquire whether the
application of New Jersey's public accommodations law to
require that the Boy Scouts accept Dale as an assistant
scoutmaster runs afoul of the Scouts' freedom of expressive
association. We conclude that it does.
State public accommodations laws were originally enacted to
prevent discrimination in traditional places of public
accommodation-like inns and trains. See, e. g., Hurley, supra,
at 571-572 (explaining the history of Massachusetts' public
accommodations law); Romer v. Evans, 517 U. S. 620, 627-
629 (1996) (describing the evolution of public
accommodations laws). Over time, the public accommodations
laws have expanded to cover more places.2 New Jersey's
statu-
advocacy of the morality of homosexuality to youth members
by any adult member is grounds for revocation of the adult's
membership. Id., at 761.
2 Public accommodations laws have also broadened in scope
to cover more groups; they have expanded beyond those
groups that have been given heightened equal protection
scrutiny under our cases. See Romer, 517 U. S., at 629. Some
municipal ordinances have even expanded to cover criteria
such as prior criminal record, prior psychiatric treatment,
military status, personal appearance, source of income, place
of residence, and political ideology. See 1 Boston, Mass.,
Ordinance No. § 12-9.7 (1999) (ex-offender, prior psychiatric
treatment, and military status); D. C. Code Ann. § 1-2519
(1999) (personal appearance, source of income, place of
residence); Seattle, Wash., Municipal Code § 14.08.090
(1999) (political ideology).
657
tory definition of" '[a] place of public accommodation'" is
extremely broad. The term is said to "include, but not be
limited to," a list of over 50 types of places. N. J. Stat. Ann. §
10:5-5(l) (West Supp. 2000); see Appendix, infra, at 661663.
Many on the list are what one would expect to be places where
the public is invited. For example, the statute includes as
places of public accommodation taverns, restaurants, retail
shops, and public libraries. But the statute also includes places
that often may not carry with them open invitations to the
public, like summer camps and roof gardens. In this case, the
New Jersey Supreme Court went a step further and applied its
public accommodations law to a private entity without even
attempting to tie the term "place" to a physical location.3 As
the definition of "public accommodation" has expanded from
clearly commercial entities, such as restaurants, bars, and
hotels, to membership organizations such as the Boy Scouts,
the potential for conflict between state public accommodations
laws and the First Amendment rights of organizations has
increased.
We recognized in cases such as Roberts and Duarte that States
have a compelling interest in eliminating discrimination
against women in public accommodations. But in each of
these cases we went on to conclude that the enforcement of
these statutes would not materially interfere with the ideas that
the organization sought to express. In Roberts, we said
"[i]ndeed, the Jaycees has failed to demonstrate ...
3 Four State Supreme Courts and one United States Court of
Appeals have ruled that the Boy Scouts is not a place of public
accommodation. Welsh v. Boy Scouts of America, 993 F.2d
1267 (CA7), cert. denied, 510 U. S. 1012 (1993); Curran v.
Mount Diablo Council of the Boy Scouts of America, 17 Cal.
4th 670, 952 P. 2d 218 (1998); Seabourn v. Coronado Area
Council, Boy Scouts of America, 257 Kan. 178, 891 P. 2d 385
(1995); Quinnipiac Council, Boy Scouts of America, Inc. v.
Comm'n on Human Rights & Opportunities, 204 Conn. 287,
528 A. 2d 352 (1987); Schwenk v. Boy Scouts of America,
275 Ore. 327, 551 P. 2d 465 (1976). No federal appellate court
or state supreme court-except the New Jersey Supreme Court
in this case-has reached a contrary result.
658
any serious burdens on the male members' freedom of
expressive association." 468 U. S., at 626. In Duarte, we said:
"[I]mpediments to the exercise of one's right to choose one's
associates can violate the right of association protected by the
First Amendment. In this case, however, the evidence fails to
demonstrate that admitting women to Rotary Clubs will affect
in any significant way the existing members' ability to carry
out their various purposes." 481 U. S., at 548 (internal
quotation marks and citations omitted).
We thereupon concluded in each of these cases that the
organizations' First Amendment rights were not violated by
the application of the States' public accommodations laws.
In Hurley, we said that public accommodations laws "are well
within the State's usual power to enact when a legislature has
reason to believe that a given group is the target of
discrimination, and they do not, as a general matter, violate the
First or Fourteenth Amendments." 515 U. S., at 572. But we
went on to note that in that case "the Massachusetts [public
accommodations] law has been applied in a peculiar way"
because "any contingent of protected individuals with a
message would have the right to participate in petitioners'
speech, so that the communication produced by the private
organizers would be shaped by all those protected by the law
who wished to join in with some expressive demonstration of
their own." Id., at 572-573. And in the associational freedom
cases such as Roberts, Duarte, and New York State Club
Assn., after finding a compelling state interest, the Court went
on to examine whether or not the application of the state law
would impose any "serious burden" on the organization's
rights of expressive association. So in these cases, the
associational interest in freedom of expression has
659
been set on one side of the scale, and the State's interest on the
other.
Dale contends that we should apply the intermediate standard
of review enunciated in United States v. O'Brien, 391 U. S.
367 (1968), to evaluate the competing interests. There the
Court enunciated a four-part test for review of a governmental
regulation that has only an incidental effect on protected
speech-in that case the symbolic burning of a draft card. A law
prohibiting the destruction of draft cards only incidentally
affects the free speech rights of those who happen to use a
violation of that law as a symbol of protest. But New Jersey's
public accommodations law directly and immediately affects
associational rights, in this case associational rights that enjoy
First Amendment protection. Thus, O'Brien is inapplicable.
In Hurley, we applied traditional First Amendment analysis to
hold that the application of the Massachusetts public
accommodations law to a parade violated the First
Amendment rights of the parade organizers. Although we did
not explicitly deem the parade in Hurley an expressive
association, the analysis we applied there is similar to the
analysis we apply here. We have already concluded that a state
requirement that the Boy Scouts retain Dale as an assistant
scoutmaster would significantly burden the organization's right
to oppose or disfavor homosexual conduct. The state interests
embodied in New Jersey's public accommodations law do not
justify such a severe intrusion on the Boy Scouts' rights to
freedom of expressive association. That being the case, we
hold that the First Amendment prohibits the State from
imposing such a requirement through the application of its
public accommodations law.4
4 We anticipated this result in Hurley when we illustrated the
reasons for our holding in that case by likening the parade to a
private membership organization. 515 U. S., at 580. We stated:
"Assuming the parade
660
JUSTICE STEVENS' dissent makes much of its observation
that the public perception of homosexuality in this country has
changed. See post, at 699-700. Indeed, it appears that
homosexuality has gained greater societal acceptance. See
ibid. But this is scarcely an argument for denying First
Amendment protection to those who refuse to accept these
views. The First Amendment protects expression, be it of the
popular variety or not. See, e. g., Texas v. Johnson, 491 U. S.
397 (1989) (holding that Johnson's conviction for burning the
American flag violates the First Amendment); Brandenburg v.
Ohio, 395 U. S. 444 (1969) (per curiam) (holding that a Ku
Klux Klan leader's conviction for advocating unlawfulness as
a means of political reform violates the First Amendment).
And the fact that an idea may be embraced and advocated by
increasing numbers of people is all the more reason to protect
the First Amendment rights of those who wish to voice a
different view.
JUSTICE STEVENS' extolling of Justice Brandeis' comments
in New State Ice Co. v. Liebmann, 285 U. S. 262, 311 (1932)
(dissenting opinion); see post, at 664, 700, confuses two
entirely different principles. In New State Ice, the Court struck
down an Oklahoma regulation prohibiting the manufacture,
sale, and distribution of ice without a license. Justice Brandeis,
a champion of state experimentation in the economic realm,
dissented. But Justice Brandeis was never a champion of state
experimentation in the suppression of free speech. To the
contrary, his First Amendment commentary provides
compelling support for the Court's opinion in this case. In
speaking of the Founders of this Nation, Justice Brandeis
emphasized that they "believed that free-
to be large enough and a source of benefits (apart from its
expression) that would generally justify a mandated access
provision, GLIB could nonetheless be refused admission as an
expressive contingent with its own message just as readily as a
private club could exclude an applicant whose manifest views
were at odds with a position taken by the club's existing
members." Id., at 580-581.
661
dom to think as you will and to speak as you think are means
indispensable to the discovery and spread of political truth."
Whitney v. California, 274 U. S. 357, 375 (1927) (concurring
opinion). He continued:
"Believing in the power of reason as applied through public
discussion, they eschewed silence coerced by law-the
argument of force in its worst form. Recognizing the
occasional tyrannies of governing majorities, they amended
the Constitution so that free speech and assembly should be
guaranteed." Id., at 375-376.
We are not, as we must not be, guided by our views of
whether the Boy Scouts' teachings with respect to homosexual
conduct are right or wrong; public or judicial disapproval of a
tenet of an organization's expression does not justify the
State's effort to compel the organization to accept members
where such acceptance would derogate from the organization's
expressive message. "While the law is free to promote all sorts
of conduct in place of harmful behavior, it is not free to
interfere with speech for no better reason than promoting an
approved message or discouraging a disfavored one, however
enlightened either purpose may strike the government."
Hurley, 515 U. S., at 579.
The judgment of the New Jersey Supreme Court is reversed,
and the case is remanded for further proceedings not
inconsistent with this opinion.
It is so ordered.
APPENDIX TO OPINION OF THE COURT
N. J. Stat. Ann. § 10:5-4 (West Supp. 2000). "Obtaining
employment, accommodations and privileges without
discrimination; civil right
"All persons shall have the opportunity to obtain employment,
and to obtain all the accommodations, advantages, facilities,
and privileges of any place of public accommoda-
662
Appendix to opinion of the Court
tion, publicly assisted housing accommodation, and other real
property without discrimination because of race, creed, color,
national origin, ancestry, age, marital status, affectional or
sexual orientation, familial status, or sex, subject only to
conditions and limitations applicable alike to all persons. This
opportunity is recognized as and declared to be a civil right."
N. J. Stat. Ann. § 10:5-5 (West Supp. 2000). "Definitions "As
used in this act, unless a different meaning clearly appears
from the context:
"l. 'A place of public accommodation' shall include, but not be
limited to: any tavern, roadhouse, hotel, motel, trailer camp,
summer camp, day camp, or resort camp, whether for
entertainment of transient guests or accommodation of those
seeking health, recreation or rest; any producer, manufacturer,
wholesaler, distributor, retail shop, store, establishment, or
concession dealing with goods or services of any kind; any
restaurant, eating house, or place where food is sold for
consumption on the premises; any place maintained for the
sale of ice cream, ice and fruit preparations or their
derivatives, soda water or confections, or where any beverages
of any kind are retailed for consumption on the premises; any
garage, any public conveyance operated on land or water, or in
the air, any stations and terminals thereof; any bathhouse,
boardwalk, or seashore accommodation; any auditorium,
meeting place, or hall; any theatre, motion-picture house,
music hall, roof garden, skating rink, swimming pool,
amusement and recreation park, fair, bowling alley,
gymnasium, shooting gallery, billiard and pool parlor, or other
place of amusement; any comfort station; any dispensary,
clinic or hospital; any public library; any kindergarten,
primary and secondary school, trade or business school, high
school, academy, college and university, or any educational
institution under the supervision of the State Board of
Education, or the Commissioner of Education of the State of
New Jersey.
663
Nothing herein contained shall be construed to include or to
apply to any institution, bona fide club, or place of
accommodation, which is in its nature distinctly private; nor
shall anything herein contained apply to any educational
facility operated or maintained by a bona fide religious or
sectarian institution, and the right of a natural parent or one in
loco parentis to direct the education and upbringing of a child
under his control is hereby affirmed; nor shall anything herein
contained be construed to bar any private secondary or post
secondary school from using in good faith criteria other than
race, creed, color, national origin, ancestry or affectional or
sexual orientation in the admission of students."
JUSTICE STEVENS, with whom JUSTICE SOUTER,
JUSTICE GINSBURG, and JUSTICE BREYER join,
dissenting.
New Jersey "prides itself on judging each individual by his or
her merits" and on being "in the vanguard in the fight to
eradicate the cancer of unlawful discrimination of all types
from our society." Peper v. Princeton Univ. Bd. of Trustees,
77 N. J. 55, 80, 389 A. 2d 465,478 (1978). Since 1945, it has
had a law against discrimination. The law broadly protects the
opportunity of all persons to obtain the advantages and
privileges "of any place of public accommodation." N. J. Stat.
Ann. § 10:5-4 (West Supp. 2000). The New Jersey Supreme
Court's construction of the statutory definition of a "place of
public accommodation" has given its statute a more expansive
coverage than most similar state statutes. And as amended in
1991, the law prohibits discrimination on the basis of nine
different traits including an individual's "sexual orientation." 1
The question in this case is whether that ex-
1 In 1992, the statute was again amended to add "familial
status" as a tenth protected class. It now provides:
"10:5-4 Obtaining employment, accommodations and
privileges without discrimination; civil right
"All persons shall have the opportunity to obtain employment,
and to obtain all the accommodations, advantages, facilities,
and privileges of any
664
pansive construction trenches on the federal constitutional
rights of the Boy Scouts of America (BSA).
Because every state law prohibiting discrimination is designed
to replace prejudice with principle, Justice Brandeis' comment
on the States' right to experiment with "things social" is
directly applicable to this case.
"To stay experimentation in things social and economic is a
grave responsibility. Denial of the right to experiment may be
fraught with serious consequences to the Nation. It is one of
the happy incidents of the federal system that a single
courageous State may, if its citizens choose, serve as a
laboratory; and try novel social and economic experiments
without risk to the rest of the country. This Court has the
power to prevent an experiment. We may strike down the
statute which embodies it on the ground that, in our opinion,
the measure is arbitrary, capricious or unreasonable. We have
power to do this, because the due process clause has been held
by the Court applicable to matters of substantive law as well
as to matters of procedure. But in the exercise of this high
power, we must be ever on our guard, lest we erect our
prejudices into legal principles. If we would guide by the light
of reason, we must let our minds be bold." New State Ice Co.
v. Liebmann, 285 U. S. 262, 311 (1932) (dissenting opinion).
In its "exercise of this high power" today, the Court does not
accord this "courageous State" the respect that is its due.
The majority holds that New Jersey's law violates BSA's right
to associate and its right to free speech. But that law
place of public accommodation, publicly assisted housing
accommodation, and other real property without
discrimination because of race, creed, color, national origin,
ancestry, age, marital status, affectional or sexual orientation,
familial status, or sex, subject only to conditions and
limitations applicable alike to all persons. This opportunity is
recognized as and declared to be a civil right."
665
does not "impos[e] any serious burdens" on BSA's "collective
effort on behalf of [its] shared goals," Roberts v. United States
Jaycees, 468 U. S. 609, 622, 626-627 (1984), nor does it force
BSA to communicate any message that it does not wish to
endorse. New Jersey's law, therefore, abridges no
constitutional right of BSA.
I
James Dale joined BSA as a Cub Scout in 1978, when he was
eight years old. Three years later he became a Boy Scout, and
he remained a member until his 18th birthday. Along the way,
he earned 25 merit badges, was admitted into the prestigious
Order of the Arrow, and was awarded the rank of Eagle Scout-
an honor given to only three percent of all Scouts. In 1989,
BSA approved his application to be an Assistant Scoutmaster.
On July 19, 1990, after more than 12 years of active and
honored participation, the BSA sent Dale a letter advising him
of the revocation of his membership. The letter stated that
membership in BSA "is a privilege" that may be denied
"whenever there is a concern that an individual may not meet
the high standards of membership which the BSA seeks to
provide for American youth." App. 135. Expressing surprise at
his sudden expulsion, Dale sent a letter requesting an
explanation of the decision. Id., at 136. In response, BSA sent
him a second letter stating that the grounds for the decision
"are the standards for leadership established by the Boy Scouts
of America, which specifically forbid membership to
homosexuals." Id., at 137. At that time, no such standard had
been publicly expressed by BSA.
In this case, BSA contends that it teaches the young boys who
are Scouts that homosexuality is immoral. Consequently, it
argues, it would violate its right to associate to force it to
admit homosexuals as members, as doing so would be at odds
with its own shared goals and values. This contention, quite
plainly, requires us to look at what, exactly, are the values that
BSA actually teaches.
666
BSA's mission statement reads as follows: "It is the mission of
the Boy Scouts of America to serve others by helping to instill
values in young people and, in other ways, to prepare them to
make ethical choices over their lifetime in achieving their full
potential." Id., at 184. Its federal charter declares its purpose is
"to promote, through organization, and cooperation with other
agencies, the ability of boys to do things for themselves and
others, to train them in scoutcraft, and to teach them
patriotism, courage, self-reliance, and kindred values, using
the methods which were in common use by Boy Scouts on
June 15, 1916." 36 U. S. C. § 23; see also App. 315-316. BSA
describes itself as having a "representative membership,"
which it defines as "boy membership [that] reflects
proportionately the characteristics of the boy population of its
service area." Id., at 65. In particular, the group emphasizes
that "[n]either the charter nor the bylaws of the Boy Scouts of
America permits the exclusion of any boy .... To meet these
responsibilities we have made a commitment that our
membership shall be representative of all the population in
every community, district, and council." Id., at 66-67
(emphasis in original).
To instill its shared values, BSA has adopted a "Scout Oath"
and a "Scout Law" setting forth its central tenets. For example,
the Scout Law requires a member to promise, among other
things, that he will be "obedient." Accompanying definitions
for the terms found in the Oath and Law are provided in the
Boy Scout Handbook and the Scoutmaster Handbook. For
instance, the Boy Scout Handbook defines "obedient" as
follows:
"A Scout is OBEDIENT. A Scout follows the rules of his
family, school, and troop. He obeys the laws of his community
and country. If he thinks these rules and laws are unfair, he
tries to have them changed in an orderly manner rather than
disobey them." Id., at 188 (emphasis deleted).
667
To bolster its claim that its shared goals include teaching that
homosexuality is wrong, BSA directs our attention to two
terms appearing in the Scout Oath and Law. The first is the
phrase "morally straight," which appears in the Oath ("On my
honor I will do my best ... To keep myself ... morally
straight"); the second term is the word "clean," which appears
in a list of 12 characteristics together constituting the Scout
Law.
The Boy Scout Handbook defines "morally straight," as
such:
"To be a person of strong character, guide your life with
honesty, purity, and justice. Respect and defend the rights of
all people. Your relationships with others should be honest and
open. Be clean in your speech and actions, and faithful in your
religious beliefs. The values you follow as a Scout will help
you become virtuous and self-reliant." Id., at 218 (emphasis
deleted).
The Scoutmaster Handbook emphasizes these points about
being "morally straight":
"In any consideration of moral fitness, a key word has to be
'courage.' A boy's courage to do what his head and his heart
tell him is right. And the courage to refuse to do what his heart
and his head say is wrong. Moral fitness, like emotional
fitness, will clearly present opportunities for wise guidance by
an alert Scoutmaster." Id., at 239-240.
As for the term "clean," the Boy Scout Handbook offers the
following:
"A Scout is CLEAN. A Scout keeps his body and mind fit and
clean. He chooses the company of those who live by these
same ideals. He helps keep his home and community clean.
"You never need to be ashamed of dirt that will wash off. If
you play hard and work hard you can't help get-
668
ting dirty. But when the game is over or the work is done, that
kind of dirt disappears with soap and water.
"There's another kind of dirt that won't come off by washing.
It is the kind that shows up in foul language and harmful
thoughts.
"Swear words, profanity, and dirty stories are weapons that
ridicule other people and hurt their feelings. The same is true
of racial slurs and jokes making fun of ethnic groups or people
with physical or mental limitations. A Scout knows there is no
kindness or honor in such mean-spirited behavior. He avoids it
in his own words and deeds. He defends those who are targets
of insults." Id., at 225-226 (emphasis in original); see also id.,
at 189.2
It is plain as the light of day that neither one of these
principles-"morally straight" and "clean"-says the slightest
thing about homosexuality. Indeed, neither term in the Boy
2 Scoutmasters are instructed to teach what it means to be
"clean" using the following lesson:
"(Hold up two cooking pots, one shiny bright on the inside but
sooty outside, the other shiny outside but dirty inside.) Scouts,
which of these pots would you rather have your food cooked
in? Did I hear somebody say, 'Neither one?'
"That's not a bad answer. We wouldn't have much confidence
in a patrol cook who didn't have his pots shiny both inside and
out.
"But if we had to make a choice, we would tell the cook to use
the pot that's clean inside. The same idea applies to people.
"Most people keep themselves clean outside. But how about
the inside? Do we try to keep our minds and our language
clean? I think that's even more important than keeping the
outside clean.
"A Scout, of course, should be clean inside and out. Water,
soap, and a toothbrush tak[e] care of the outside. Only your
determination will keep the inside clean. You can do it by
following the Scout Law and the example of people you
respect-your parents, your teachers, your clergyman, or a good
buddy who is trying to do the same thing." App.289-290.
669
Scouts' Law and Oath expresses any position whatsoever on
sexual matters.
BSA's published guidance on that topic underscores this point.
Scouts, for example, are directed to receive their sex education
at home or in school, but not from the organization:
"Your parents or guardian or a sex education teacher should
give you the facts about sex that you must know." Boy Scout
Handbook (1992) (reprinted in App. 211). To be sure, Scouts
are not forbidden from asking their Scoutmaster about issues
of a sexual nature, but Scoutmasters are, literally, the last
person Scouts are encouraged to ask: "If you have questions
about growing up, about relationships, sex, or making good
decisions, ask. Talk with your parents, religious leaders,
teachers, or Scoutmaster." Ibid. Moreover, Scoutmasters are
specifically directed to steer curious adolescents to other
sources of information:
"If Scouts ask for information regarding ... sexual activity,
answer honestly and factually, but stay within your realm of
expertise and comfort. If a Scout has serious concerns that you
cannot answer, refer him to his family, religious leader,
doctor, or other professional." Scoutmaster Handbook (1990)
(reprinted in App. 264).
More specifically, BSA has set forth a number of rules for
Scoutmasters when these types of issues come up:
"You may have boys asking you for information or advice
about sexual matters ....
"How should you handle such matters?
"Rule number 1: You do not undertake to instruct Scouts, in
any formalized manner, in the subject of sex and family life.
The reasons are that it is not construed to be Scouting's proper
area, and that you are probably not well qualified to do this.
"Rule number 2: If Scouts come to you to ask questions or to
seek advice, you would give it within your compe-
670
tence. A boy who appears to be asking about sexual
intercourse, however, may really only be worried about his
pimples, so it is well to find out just what information is
needed.
"Rule number 3: You should refer boys with sexual problems
to persons better qualified than you [are] to handle them. If the
boy has a spiritual leader or a doctor who can deal with them,
he should go there. If such persons are not available, you may
just have to do the best you can. But don't try to play a highly
professional role. And at the other extreme, avoid passing the
buck." Scoutmaster Handbook (1972) (reprinted in App.
546547) (emphasis added).
In light of BSA's self-proclaimed ecumenism, furthermore, it
is even more difficult to discern any shared goals or common
moral stance on homosexuality. Insofar as religious matters
are concerned, BSA's bylaws state that it is "absolutely
nonsectarian in its attitude toward ... religious training." Id., at
362. "The BSA does not define what constitutes duty to God
or the practice of religion. This is the responsibility of parents
and religious leaders." Id., at 76. In fact, many diverse
religious organizations sponsor local Boy Scout troops. Brief
for Petitioners 3. Because a number of religious groups do not
view homosexuality as immoral or wrong and reject
discrimination against homosexuals,3 it is exceedingly
difficult to believe that BSA none-
3 See, e. g., Brief for Deans of Divinity Schools and
Rabbinical Institutions as Amicus Curiae 8 ("The diverse
religi[ous] traditions of this country present no coherent moral
message that excludes gays and lesbians from participating as
full and equal members of those institutions. Indeed, the
movement among a number of the nation's major religious
institutions for many decades has been toward public
recognition of gays and lesbians as full members of moral
communities, and acceptance of gays and lesbians as religious
leaders, elders and clergy"); Brief for General Board of
Church and Society of the United Methodist Church et al. as
671
theless adopts a single particular religious or moral philosophy
when it comes to sexual orientation. This is especially so in
light of the fact that Scouts are advised to seek guidance on
sexual matters from their religious leaders (and Scoutmasters
are told to refer Scouts to them); 4 BSA surely is aware that
some religions do not teach that homosexuality is wrong.
II
The Court seeks to fill the void by pointing to a statement of
"policies and procedures relating to homosexuality and
Scouting," App. 453, signed by BSA's President and Chief
Scout Executive in 1978 and addressed to the members of the
Executive Committee of the national organization. Ante, at
651-652. The letter says that the BSA does "not believe that
homosexuality and leadership in Scouting are appropriate."
App. 454. But when the entire 1978 letter is read, BSA's
position is far more equivocal:
"4. Q. Mayan individual who openly declares himself to be a
homosexual be employed by the Boy Scouts of America as a
professional or non-professional?
"A. Boy Scouts of America does not knowingly employ
homosexuals as professionals or non-professionals. We are
unaware of any present laws which would prohibit this policy.
Amicus Curiae 3 (describing views of the United Methodist
Church, the Episcopal Church, the Religious Action Center of
Reform Judaism, the United Church Board for Homeland
Ministries, and the Unitarian Universalist Association, all of
whom reject discrimination on the basis of sexual orientation).
4 See supra, at 667 ("Be ... faithful in your religious beliefs");
supra, at 668, n. 2 ("by following ... the example of ... your
clergyman"); supra, at 669 ("If you have questions about ...
sex, ... [t]alk with your ... religious leade[r]"); ibid. ("If Scouts
ask for information regarding ... sexual activity ... refer him to
his ... religious leader"); supra, at 670 ("You should refer boys
with sexual problems to [their] spiritual leader").
672
"5. Q. Should a professional or non-professional individual
who openly declares himself to be a homosexual be
terminated?
"A. Yes, in the absence of any law to the contrary.
At the present time we are unaware of any statute or ordinance
in the United States which prohibits discrimination against
individual's employment upon the basis of homosexuality. In
the event that such a law was applicable, it would be necessary
for the Boy Scouts of America to obey it, in this case as in
Paragraph J, above. It is our position, however, that
homosexuality and professional or non-professional
employment in Scouting are not appropriate." Id., at 454-455
(emphasis added).
Four aspects of the 1978 policy statement are relevant to the
proper disposition of this case. First, at most this letter simply
adopts an exclusionary membership policy. But simply
adopting such a policy has never been considered sufficient,
by itself, to prevail on a right to associate claim. See infra, at
678-685.
Second, the 1978 policy was never publicly expressed-unlike,
for example, the Scout's duty to be "obedient." It was an
internal memorandum, never circulated beyond the few
members of BSA's Executive Committee. It remained, in
effect, a secret Boy Scouts policy. Far from claiming any
intent to express an idea that would be burdened by the
presence of homosexuals, BSA's public posture-to the world
and to the Scouts themselves-remained what it had always
been: one of tolerance, welcoming all classes of boys and
young men. In this respect, BSA's claim is even weaker than
those we have rejected in the past. See ibid.
Third, it is apparent that the draftsmen of the policy statement
foresaw the possibility that laws against discrimination might
one day be amended to protect homosexuals from employment
discrimination. Their statement clearly provided that, in the
event such a law conflicted with their policy, a Scout's duty to
be "obedient" and "obe[y] the laws," even if "he thinks [the
laws] are unfair," would prevail in such a
673
contingency. See supra, at 666. In 1978, however, BSA
apparently did not consider it to be a serious possibility that a
State might one day characterize the Scouts as a "place of
public accommodation" with a duty to open its membership to
all qualified individuals. The portions of the statement dealing
with membership simply assume that membership in the
Scouts is a "privilege" that BSA is free to grant or to withhold.
The statement does not address the question whether the
publicly proclaimed duty to obey the law should prevail over
the private discriminatory policy if, and when, a conflict
between the two should arise-as it now has in New Jersey. At
the very least, then, the statement reflects no unequivocal view
on homosexuality. Indeed, the statement suggests that an
appropriate way for BSA to preserve its unpublished
exclusionary policy would include an open and forthright
attempt to seek an amendment of New Jersey's statute. ("If he
thinks these rules and laws are unfair, he tries to have them
changed in an orderly manner rather than disobey them.")
Fourth, the 1978 statement simply says that homosexuality is
not "appropriate." It makes no effort to connect that statement
to a shared goal or expressive activity of the Boy Scouts.
Whatever values BSA seeks to instill in Scouts, the idea that
homosexuality is not "appropriate" appears entirely
unconnected to, and is mentioned nowhere in, the myriad of
publicly declared values and creeds of the BSA. That idea
does not appear to be among any of the principles actually
taught to Scouts. Rather, the 1978 policy appears to be no
more than a private statement of a few BSA executives that
the organization wishes to exclude gays-and that wish has
nothing to do with any expression BSA actually engages in.
The majority also relies on four other policy statements that
were issued between 1991 and 1993.5 All of them were
5 The authorship and distribution of these statements remain
obscure.
Unlike the 1978 policy-which clearly identifies the authors as
the President and the Chief Scout Executive of BSA-these
later policies are unsigned. Two of them are initialed (one is
labeled "JCK"; the other says
674
written and issued after BSA revoked Dale's membership.
Accordingly, they have little, if any, relevance to the legal
question before this Court.6 In any event, they do not bolster
BSA's claim.
In 1991, BSA issued two statements both stating: "We believe
that homosexual conduct is inconsistent with the requirement
in the Scout Oath that a Scout be morally straight and in the
Scout Law that a Scout be clean in word and deed, and that
homosexuals do not provide a desirable role model for
Scouts." App. 457-458. A third statement issued in 1992 was
substantially the same. Id., at 459. By 1993, however, the
policy had changed:
"BSA Position
"The Boy Scouts of America has always reflected the
expectations that Scouting families have had for the
organization.
"We do not believe that homosexuals provide a role model
consistent with these expectations.
"Accordingly, we do not allow for the registration of avowed
homosexuals as members or as leaders of the BSA." Id., at
461.
Aside from the fact that these statements were all issued after
Dale's membership was revoked, there are four important
points relevant to them. First, while the 1991 and 1992
"js"), but BSA never tells us to whom these initials belong.
Nor do we know how widely these statements were
distributed. From the record evidence we have, it appears that
they were not as readily available as the Boy Scout and
Scoutmaster Handbooks; indeed, they appear to be quite
difficult to get a hold of. See App. 662, 668-669.
6 Dale's complaint requested three forms of relief: (1) a
declaration that his rights under the New Jersey statute had
been violated when his membership was revoked; (2) an order
reinstating his membership; and (3) compensatory and
punitive damages. Id., at 27. Nothing that BSA could have
done after the revocation of his membership could affect
Dale's first request for relief, though perhaps some possible
postrevocation action could have influenced the other two
requests for relief.
675
statements tried to tie BSA's exclusionary policy to the
meaning of the Scout Oath and Law, the 1993 statement
abandoned that effort. Rather, BSA's 1993 homosexual
exclusion policy was based on its view that including gays
would be contrary to "the expectations that Scouting families
have had for the organization." Ibid. Instead of linking its
policy to its central tenets or shared goals-to teach certain
definitions of what it means to be "morally straight" and
"clean"-BSA chose instead to justify its policy on the
"expectatio[n]" that its members preferred to exclude
homosexuals. The 1993 policy statement, in other words, was
not based on any expressive activity or on any moral view
about homosexuality. It was simply an exclusionary
membership policy, similar to those we have held insufficient
in the past. See infra, at 678-685.
Second, even during the brief period in 1991 and 1992, when
BSA tried to connect its exclusion of homosexuals to its
definition of terms found in the Oath and Law, there is no
evidence that Scouts were actually taught anything about
homosexuality's alleged inconsistency with those principles.
Beyond the single sentence in these policy statements, there is
no indication of any shared goal of teaching that
homosexuality is incompatible with being "morally straight"
and "clean." Neither BSA's mission statement nor its official
membership policy was altered; no Boy Scout or Scoutmaster
Handbook was amended to reflect the policy statement; no
lessons were imparted to Scouts; no change was made to
BSA's policy on limiting discussion of sexual matters; and no
effort was made to restrict acceptable religious affiliations to
those that condemn homosexuality. In short, there is no
evidence that this view was part of any collective effort to
foster beliefs about homosexuality.7
7 Indeed, the record evidence is to the contrary. See, e. g.,
App. 666-669 (affidavit of former Boy Scout whose young
children were Scouts, and was himself an assistant
scoutmaster and Merit Badge counselor) ("I never heard and
am not aware of any discussion about homosexuality that oc-
676
Third, BSA never took any clear and unequivocal position on
homosexuality. Though the 1991 and 1992 policies state one
interpretation of "morally straight" and "clean," the group's
published definitions appearing in the Boy Scout and
Scoutmaster Handbooks take quite another view. And BSA's
broad religious tolerance combined with its declaration that
sexual matters are not its "proper area" render its views on the
issue equivocal at best and incoherent at worst. We have never
held, however, that a group can throw together any mixture of
contradictory positions and then invoke the right to associate
to defend anyone of those views. At a minimum, a group
seeking to prevail over an antidiscrimination law must adhere
to a clear and unequivocal view.
Fourth, at most the 1991 and 1992 statements declare only that
BSA believed "homosexual conduct is inconsistent with the
requirement in the Scout Oath that a Scout be morally straight
and in the Scout Law that a Scout be clean in word and deed."
App. 457 (emphasis added). But New Jersey's law prohibits
discrimination on the basis of sexual orientation. And when
Dale was expelled from the Boy Scouts, BSA said it did so
because of his sexual orientation, not because of his sexual
conduct.8
It is clear, then, that nothing in these policy statements
supports BSA's claim. The only policy written before the
revocation of Dale's membership was an equivocal,
undisclosed statement that evidences no connection between
the group's discriminatory intentions and its expressive
interests. The later policies demonstrate a brief-though ulti-
cUlTed during any Scouting meeting or function .... Prior to
September 1991, I never heard any mention whatsoever of
homosexuality during any Scouting function").
8 At oral argument, BSA's counsel was asked: "[W]hat if
someone is homosexual in the sense of having a sexual
orientation in that direction but does not engage in any
homosexual conduct?" Counsel answered: "[I]f that person
also were to take the view that the reason they didn't engage in
that conduct [was because] it would be morally wrong ... that
person would not be excluded." Tr. of Oral Arg. 8.
677
mately abandoned-attempt to tie BSA's exclusion to its
expression, but other than a single sentence, BSA fails to show
that it ever taught Scouts that homosexuality is not "morally
straight" or "clean," or that such a view was part of the group's
collective efforts to foster a belief. Furthermore, BSA's policy
statements fail to establish any clear, consistent, and
unequivocal position on homosexuality. Nor did BSA have
any reason to think Dale's sexual conduct, as opposed to his
orientation, was contrary to the group's values.
BSA's inability to make its position clear and its failure to
connect its alleged policy to its expressive activities is highly
significant. By the time Dale was expelled from the Boy
Scouts in 1990, BSA had already been engaged in several suits
under a variety of state antidiscrimination public
accommodation laws challenging various aspects of its
membership policy.9 Indeed, BSA had filed amicus briefs
before this Court in two earlier right to associate cases
(Roberts v. United States Jaycees, 468 U. S. 609 (1984), and
Board of Directors of Rotary lnt'l v. Rotary Club of Duarte,
481 U. S. 537 (1987)) pointing to these very cases; it was
clearly on notice by 1990 that it might well be subjected to
state public accommodation antidiscrimination laws, and that a
court might one day reject its claimed right to associate. Yet it
took no steps prior to Dale's expulsion to clarify how its
exclusivity was connected to its expression. It speaks volumes
about the credibility of BSA's claim to a shared goal that
homosexuality is incompatible with Scouting that since at least
1984 it had been aware of this issue-indeed, concerned enough
to twice file amicus briefs before this
9 See, e. g., Quinnipiac Council, Boy Scouts of America v.
Commission on Human Rights and Opportunities, 204 Conn.
287, 528 A. 2d 352 (1987) (challenge to BSA's exclusion of
girls); Curran v. Mount Diablo Council of the Boy Scouts of
America, 147 Cal. App. 3d 712, 195 Cal. Rptr. 325 (1983)
(challenge to BSA's denial of membership to homosexuals;
rejecting BSA's claimed right of association), overruled on
other grounds, 17 Cal. 4th 670, 952 P. 2d 218 (1998).
678
Court-yet it did nothing in the intervening six years (or even in
the years after Dale's explusion) to explain clearly and openly
why the presence of homosexuals would affect its expressive
activities, or to make the view of "morally straight" and
"clean" taken in its 1991 and 1992 policies a part of the values
actually instilled in Scouts through the Handbook, lessons, or
otherwise.
III
BSA's claim finds no support in our cases. We have
recognized "a right to associate for the purpose of engaging in
those activities protected by the First Amendmentspeech,
assembly, petition for the redress of grievances, and the
exercise of religion." Roberts, 468 U. S., at 618. And we have
acknowledged that "when the State interferes with individuals'
selection of those with whom they wish to join in a common
endeavor, freedom of association ... may be implicated." Ibid.
But "[t]he right to associate for expressive purposes is not ...
absolute"; rather, "the nature and degree of constitutional
protection afforded freedom of association may vary
depending on the extent to which ... the constitutionally
protected liberty is at stake in a given case." Id., at 623, 618.
Indeed, the right to associate does not mean "that in every
setting in which individuals exercise some discrimination in
choosing associates, their selective process of inclusion and
exclusion is protected by the Constitution." New York State
Club Assn., Inc. v. City of New York, 487 U. S. 1, 13 (1988).
For example, we have routinely and easily rejected assertions
of this right by expressive organizations with discriminatory
membership policies, such as private schools,lO law
10 Runyon v. McCrary, 427 U. S. 160, 175-176 (1976)
("[T]he Court has recognized a First Amendment right 'to
engage in association for the advancement of beliefs and
ideas ... .' From this principle it may be assumed that parents
have a First Amendment right to send their children to
educational institutions that promote the belief that racial
segregation is desirable, and that the children have an equal
right to attend such insti-
679
firms,l1 and labor organizations.12 In fact, until today, we
have never once found a claimed right to associate in the
selection of members to prevail in the face of a State's
antidiscrimination law. To the contrary, we have squarely held
that a State's antidiscrimination law does not violate a group's
right to associate simply because the law conflicts with that
group's exclusionary membership policy.
In Roberts v. United States Jaycees, 468 U. S. 609 (1984), we
addressed just such a conflict. The Jaycees was a nonprofit
membership organization "'designed to inculcate in the
individual membership ... a spirit of genuine Americanism and
civic interest, and ... to provide ... an avenue for intelligent
participation by young men in the affairs of their community.'"
Id., at 612-613. The organization was divided into local
chapters, described as "'young men's organization[s],'" in
which regular membership was restricted to males between the
ages of 18 and 35. Id., at 613. But Minnesota's Human Rights
Act, which applied to the Jaycees, made it unlawful to "'deny
any person the full and equal
tutions. But it does not follow that the practice of excluding
racial minorities from such institutions is also protected by the
same principle" (citation omitted)).
11 Hishon v. King & Spalding, 467 U. S. 69, 78 (1984)
("[R]espondent argues that application of Title VII in this case
would infringe constitutional rights of ... association. Although
we have recognized that the activities of lawyers may make a
'distinctive contribution ... to the ideas and beliefs of our
society,' respondent has not shown how its ability to fulfill
such a function would be inhibited by a requirement that it
consider petitioner for partnership on her merits. Moreover, as
we have held in another context, '[i]nvidious private
discrimination may be characterized as a form of exercising
freedom of association protected by the First Amendment, but
it has never been accorded affirmative constitutional
protections'" (citations omitted)).
12 Railway Mail Assn. v. Corsi, 326 U. S. 88, 93-94 (1945)
("Appellant first contends that [the law prohibiting racial
discrimination by labor organizations] interfere[s] with its
right of selection to membership .... We see no constitutional
basis for the contention that a state cannot protect workers
from exclusion solely on the basis of race").
680
enjoyment of ... a place of public accommodation because
of ... sex.'" Id., at 615. The Jaycees, however, claimed that
applying the law to it violated its right to associate-in
particular its right to maintain its selective membership policy.
We rejected that claim. Cautioning that the right to associate is
not "absolute," we held that "[i]nfringements on that right may
be justified by regulations adopted to serve compelling state
interests, unrelated to the suppression of ideas, that cannot be
achieved through means significantly less restrictive of
associational freedoms." Id., at 623. We found the State's
purpose of eliminating discrimination is a compelling state
interest that is unrelated to the suppression of ideas. Id., at
623-626. We also held that Minnesota's law is the least
restrictive means of achieving that interest. The Jaycees had
"failed to demonstrate that the Act imposes any serious
burdens on the male members' freedom of expressive
association." Id., at 626. Though the Jaycees had "taken public
positions on a number of diverse issues, [and] ... regularly
engage in a variety of ... activities worthy of constitutional
protection under the First Amendment," there was "no basis in
the record for concluding that admission of women as full
voting members will impede the organization's ability to
engage in these protected activities or to disseminate its
preferred views." Id., at 626-627. "The Act," we held,
"requires no change in the Jaycees' creed of promoting the
interest of young men, and it imposes no restrictions on the
organization's ability to exclude individuals with ideologies or
philosophies different from those of its existing members." Id.,
at 627.
We took a similar approach in Board of Directors of Rotary
Int'l v. Rotary Club of Duarte, 481 U. S. 537 (1987). Rotary
International, a nonprofit corporation, was founded as "'an
organization of business and professional men united
worldwide who provide humanitarian service, encourage high
ethical standards in all vocations, and help build good-
681
will and peace in the world.'" Id., at 539. It admitted a cross
section of worthy business and community leaders, id., at 540,
but refused membership to women. "[T]he exclusion of
women," explained the group's General Secretary, "results in
an 'aspect of fellowship ... that is enjoyed by the present male
membership.'" Id., at 541. That policy also allowed the
organization "to operate effectively in foreign countries with
varied cultures and social mores." Ibid. Though California's
Civil Rights Act, which applied to Rotary International,
prohibited discrimination on the basis of sex, id., at 541-542,
n. 2, the organization claimed a right to associate, including
the right to select its members.
As in Jaycees, we rejected the claim, holding that "the
evidence fails to demonstrate that admitting women to Rotary
Clubs will affect in any significant way the existing members'
ability to carry out their various purposes." 481 U. S., at 548.
"To be sure," we continued, "Rotary Clubs engage in a variety
of commendable service activities that are protected by the
First Amendment. But [California's Civil Rights Act] does not
require the clubs to abandon or alter any of these activities. It
does not require them to abandon their basic goals of
humanitarian service, high ethical standards in all vocations,
good will, and peace. Nor does it require them to abandon
their classification system or admit members who do not
reflect a cross section of the community." Ibid. Finally, even if
California's law worked a "slight infringement on Rotary
members' right of expressive association, that infringement is
justified because it serves the State's compelling interest in
eliminating discrimination against women." Id., at 549.13
13 BSA urged on brief that under the New Jersey Supreme
Court's reading of the State's antidiscrimination law, "Boy
Scout Troops would be forced to admit girls as members" and
"Girl Scout Troops would be forced to admit boys." Brief for
Petitioners 37. The New Jersey Supreme Court had no
occasion to address that question, and no such issue is
tendered for our decision. I note, however, the State of New
Jersey's obser-
682
Several principles are made perfectly clear by Jaycees and
Rotary Club. First, to prevail on a claim of expressive
association in the face of a State's antidiscrimination law, it is
not enough simply to engage in some kind of expressive
activity. Both the Jaycees and the Rotary Club engaged in
expressive activity protected by the First Amendment,14 yet
that fact was not dispositive. Second, it is not enough to adopt
an openly avowed exclusionary membership policy. Both the
Jaycees and the Rotary Club did that as wel1.15 Third, it is not
sufficient merely to articulate some connection between the
group's expressive activities and its exclusionary policy. The
Rotary Club, for example, justified its male-only membership
policy by pointing to the "'aspect of fellowship ... that is
enjoyed by the [exclusively] male membership'" and by
claiming that only with an exclusively male membership
vation that BSA ignores the exemption contained in New
Jersey's law for" 'any place of public accommodation which is
in its nature reasonably restricted exclusively to one sex,'"
including, but not limited to, "'any summer camp, day camp,
or resort camp, bathhouse, dressing room, swimming pool,
gymnasium, comfort station, dispensary, clinic or hospital, or
school or educational institution which is restricted
exclusively to individuals of one sex.''' See Brief for State of
New Jersey as Amicus Curiae 12-13, n. 2 (citing N. J. Stat.
Ann. § 10:5-12(f) (West 1993)).
14 See Roberts v. United States Jaycees, 468 U. S. 609, 626-
627 (1984) ("[T]he organization [has] taken public positions
on a number of diverse issues ... worthy of constitutional
protection under the First Amendment" (citations omitted));
Board of Directors of Rotary Int'l v. Rotary Club of Duarte,
481 U. S. 537, 548 (1987) ("To be sure, Rotary Clubs engage
in a variety of commendable service activities that are
protected by the First Amendment").
15The Jaycees openly stated that it was an organization
designed to serve the interests of "young men"; its local
chapters were described as "'young men's organization[s]"';
and its membership policy contained an express provision
reserving regular membership to young men. Jaycees, 468 U.
S., at 612-613. Likewise, Rotary International expressed its
preference for male-only membership: It proclaimed that it
was" 'an organization of business and professional men'" and
its membership policy expressly excluded women. Rotary
Club, 481 U. S., at 539, 541 (emphasis added).
683
could it "operate effectively" in foreign countries. Rotary
Club, 481 U. S., at 541.
Rather, in Jaycees, we asked whether Minnesota's Human
Rights Law requiring the admission of women "impose[d] any
serious burdens" on the group's "collective effort on behalf of
[its] shared goals." 468 U. S., at 622,626-627 (emphases
added). Notwithstanding the group's obvious publicly stated
exclusionary policy, we did not view the inclusion of women
as a "serious burden" on the Jaycees' ability to engage in the
protected speech of its choice. Similarly, in Rotary Club, we
asked whether California's law would "affect in any significant
way the existing members' ability" to engage in their protected
speech, or whether the law would require the clubs "to
abandon their basic goals." 481 U. S., at 548 (emphases
added); see also Hurley v. Irish-American Gay, Lesbian and
Bisexual Group of Boston, Inc., 515 U. S. 557, 581 (1995)
("[A] private club could exclude an applicant whose manifest
views were at odds with a position taken by the club's existing
members"); New York State Club Assn., 487 U. S., at 13 (to
prevail on a right to associate claim, the group must "be able
to show that it is organized for specific expressive purposes
and that it will not be able to advocate its desired viewpoints
nearly as effectively if it cannot confine its membership to
those who share the same sex, for example, or the same
religion"); NAACP v. Alabama ex rel. Patterson, 357 U. S.
449, 462-463 (1958) (asking whether law "entail[ed] the
likelihood of a substantial restraint upon the exercise by
petitioner's members of their right to freedom of association"
and whether law is "likely to affect adversely the ability of
petitioner and its members to pursue their collective effort to
foster beliefs"). The relevant question is whether the mere
inclusion of the person at issue would "impose any serious
burden," "affect in any significant way," or be "a substantial
restraint upon" the organization's "shared goals," "basic
goals," or "collective effort to foster beliefs." Accordingly, it is
necessary to examine what, exactly, are
684
BSA's shared goals and the degree to which its expressive
activities would be burdened, affected, or restrained by
including homosexuals.
The evidence before this Court makes it exceptionally clear
that BSA has, at most, simply adopted an exclusionary
membership policy and has no shared goal of disapproving of
homosexuality. BSA's mission statement and federal charter
say nothing on the matter; its official membership policy is
silent; its Scout Oath and Law-and accompanying definitions-
are devoid of any view on the topic; its guidance for Scouts
and Scoutmasters on sexuality declare that such matters are
"not construed to be Scouting's proper area," but are the
province of a Scout's parents and pastor; and BSA's posture
respecting religion tolerates a wide variety of views on the
issue of homosexuality. Moreover, there is simply no evidence
that BSA otherwise teaches anything in this area, or that it
instructs Scouts on matters involving homosexuality in ways
not conveyed in the Boy Scout or Scoutmaster Handbooks. In
short, Boy Scouts of America is simply silent on
homosexuality. There is no shared goal or collective effort to
foster a belief about homosexuality at all-let alone one that is
significantly burdened by admitting homosexuals.
As in Jaycees, there is "no basis in the record for concluding
that admission of [homosexuals] will impede the [Boy Scouts']
ability to engage in [its] protected activities or to disseminate
its preferred views" and New Jersey's law "requires no change
in [BSA's] creed." 468 U. S., at 626-627. And like Rotary
Club, New Jersey's law "does not require [BSA] to abandon or
alter any of" its activities. 481 U. S., at 548. The evidence
relied on by the Court is not to the contrary. The undisclosed
1978 policy certainly adds nothing to the actual views
disseminated to the Scouts. It simply says that homosexuality
is not "appropriate." There is no reason to give that policy
statement more weight than Rotary International's assertion
that all-male membership
685
fosters the group's "fellowship" and was the only way it could
"operate effectively." As for BSA's postrevocation statements,
at most they simply adopt a policy of discrimination, which is
no more dispositive than the openly discriminatory policies
held insufficient in Jaycees and Rotary Club; there is no
evidence here that BSA's policy was necessary toor even a
part of-BSA's expressive activities or was ever taught to
Scouts.
Equally important is BSA's failure to adopt any clear position
on homosexuality. BSA's temporary, though ultimately
abandoned, view that homosexuality is incompatible with
being "morally straight" and "clean" is a far cry from the clear,
unequivocal statement necessary to prevail on its claim.
Despite the solitary sentences in the 1991 and 1992 policies,
the group continued to disclaim any single religious or moral
position as a general matter and actively eschewed teaching
any lesson on sexuality. It also continued to define "morally
straight" and "clean" in the Boy Scout and Scoutmaster
Handbooks without any reference to homosexuality. As noted
earlier, nothing in our cases suggests that a group can prevail
on a right to expressive association if it, effectively, speaks out
of both sides of its mouth. A State's antidiscrimination law
does not impose a "serious burden" or a "substantial restraint"
upon the group's "shared goals" if the group itself is unable to
identify its own stance with any clarity.
IV
The majority pretermits this entire analysis. It finds that BSA
in fact" 'teach[es] that homosexual conduct is not morally
straight.'" Ante, at 651. This conclusion, remarkably, rests
entirely on statements in BSA's briefs. See ibid. (citing Brief
for Petitioners 39; Reply Brief for Petitioners 5). Moreover,
the majority insists that we must "give deference to an
association's assertions regarding the nature of its expression"
and "we must also give deference to an association's view of
what would impair its expression." Ante, at
686
653. So long as the record "contains written evidence" to
support a group's bare assertion, "[w]e need not inquire
further." Ante, at 651. Once the organization "asserts" that it
engages in particular expression, ibid., "[w]e cannot doubt" the
truth of that assertion, ante, at 653.
This is an astounding view of the law. I am unaware of any
previous instance in which our analysis of the scope of a
constitutional right was determined by looking at what a
litigant asserts in his or her brief and inquiring no further. It is
even more astonishing in the First Amendment area, because,
as the majority itself acknowledges, "we are obligated to
independently review the factual record." Ante, at 648649. It
is an odd form of independent review that consists of deferring
entirely to whatever a litigant claims. But the majority insists
that our inquiry must be "limited," ante, at 650, because "it is
not the role of the courts to reject a group's expressed values
because they disagree with those values or find them internally
inconsistent," ante, at 651. See also Brief for Petitioners 25
("[T]he Constitution protects [BSA's] ability to control its own
message").
But nothing in our cases calls for this Court to do any such
thing. An organization can adopt the message of its choice,
and it is not this Court's place to disagree with it. But we must
inquire whether the group is, in fact, expressing a message
(whatever it may be) and whether that message (if one is
expressed) is significantly affected by a State's
antidiscrimination law. More critically, that inquiry requires
our independent analysis, rather than deference to a group's
litigating posture. Reflection on the subject dictates that such
an inquiry is required.
Surely there are instances in which an organization that truly
aims to foster a belief at odds with the purposes of a State's
antidiscrimination laws will have a First Amendment right to
association that precludes forced compliance with those laws.
But that right is not a freedom to discriminate at will, nor is it
a right to maintain an exclusionary member-
687
ship policy simply out of fear of what the public reaction
would be if the group's membership were opened up. It is an
implicit right designed to protect the enumerated rights of the
First Amendment, not a license to act on any discriminatory
impulse. To prevail in asserting a right of expressive
association as a defense to a charge of violating an
antidiscrimination law, the organization must at least show it
has adopted and advocated an unequivocal position
inconsistent with a position advocated or epitomized by the
person whom the organization seeks to exclude. If this Court
were to defer to whatever position an organization is prepared
to assert in its briefs, there would be no way to mark the
proper boundary between genuine exercises of the right to
associate, on the one hand, and sham claims that are simply
attempts to insulate nonexpressive private discrimination, on
the other hand. Shielding a litigant's claim from judicial
scrutiny would, in turn, render civil rights legislation a nullity,
and turn this important constitutional right into a farce.
Accordingly, the Court's prescription of total deference will
not do. In this respect, Justice Frankfurter's words seem
particularly apt:
"Elaborately to argue against this contention is to dignify a
claim devoid of constitutional substance. Of course a State
may leave abstention from such discriminations to the
conscience of individuals. On the other hand, a State may
choose to put its authority behind one of the cherished aims of
American feeling by forbidding indulgence in racial or
religious prejudice to another's hurt. To use the Fourteenth
Amendment as a sword against such State power would
stultify that Amendment. Certainly the insistence by
individuals on their private prejudices as to race, color or
creed, in relations like those now before us, ought not to have
a higher constitutional sanction than the determination of a
State to extend the area of nondiscrimination beyond that
which the Constitution itself exacts." Railway
688
Mail Assn. v. Corsi, 326 U. S. 88, 98 (1945) (concurring
opinion).
There is, of course, a valid concern that a court's independent
review may run the risk of paying too little heed to an
organization's sincerely held views. But unless one is prepared
to turn the right to associate into a free pass out of
antidiscrimination laws, an independent inquiry is a necessity.
Though the group must show that its expressive activities will
be substantially burdened by the State's law, if that law truly
has a significant effect on a group's speech, even the subtle
speaker will be able to identify that impact.
In this case, no such concern is warranted. It is entirely clear
that BSA in fact expresses no clear, unequivocal message
burdened by New Jersey's law.
V he would do so in the future. But the only information BSA
Even if BSA's right to associate argument fails, it nonetheless
might have a First Amendment right to refrain from including
debate and dialogue about homosexuality as part of its mission
to instill values in Scouts. It can, for example, advise Scouts
who are entering adulthood and have questions about sex to
talk "with your parents, religious leaders, teachers, or
Scoutmaster," and, in turn, it can direct Scoutmasters who are
asked such questions "not undertake to instruct Scouts, in any
formalized manner, in the subject of sex and family life"
because "it is not construed to be Scouting's proper area." See
supra, at 669-670. Dale's right to advocate certain beliefs in a
public forum or in a private debate does not include a right to
advocate these ideas when he is working as a Scoutmaster.
And BSA cannot be compelled to include a message about
homosexuality among the values it actually chooses to teach
its Scouts, if it would prefer to remain silent on that subject.
In West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624 (1943),
we recognized that the government may not "requir[e]
affirmation of a belief and an attitude of mind," nor
689
"force an American citizen publicly to profess any statement
of belief," even if doing so does not require the person to
"forego any contrary convictions of their own." Id., at 633634.
"[O]ne important manifestation of the principle of free speech
is that one who chooses to speak may also decide 'what not to
say.'" Hurley, 515 U. S., at 573. Though the majority
mistakenly treats this statement as going to the right to
associate, it actually refers to a free speech claim. See id., at
564-565, 580-581 (noting distinction between free speech and
right to associate claims). As with the right to associate claim,
though, the court is obligated to engage in an independent
inquiry into whether the mere inclusion of homosexuals would
actually force BSA to proclaim a message it does not want to
send. Id., at 567.
In its briefs, BSA implies, even if it does not directly argue,
that Dale would use his Scoutmaster position as a "bully
pulpit" to convey immoral messages to his troop, and therefore
his inclusion in the group would compel BSA to include a
message it does not want to impart. Brief for Petitioners 21-22.
Even though the majority does not endorse that argument, I
think it is important to explain why it lacks merit, before
considering the argument the majority does accept.
BSA has not contended, nor does the record support, that Dale
had ever advocated a view on homosexuality to his troop
before his membership was revoked. Accordingly, BSA's
revocation could only have been based on an assumption that
had at the time it revoked Dale's membership was a newspaper
article describing a seminar at Rutgers University on the topic
of homosexual teenagers that Dale attended. The relevant
passage reads:
"James Dale, 19, co-president of the Rutgers University
Lesbian Gay Alliance with Sharice Richardson, also 19, said
he lived a double life while in high school, pretending to be
straight while attending a military academy.
690
"He remembers dating girls and even laughing at homophobic
jokes while at school, only admitting his homosexuality during
his second year at Rutgers.
"'I was looking for a role model, someone who was gay and
accepting of me,' Dale said, adding he wasn't just seeking
sexual experiences, but a community that would take him in
and provide him with a support network and friends." App.
517.
Nothing in that article, however, even remotely suggests that
Dale would advocate any views on homosexuality to his troop.
The Scoutmaster Handbook instructs Dale, like all
Scoutmasters, that sexual issues are not their "proper area,"
and there is no evidence that Dale had any intention of
violating this rule. Indeed, from all accounts Dale was a model
Boy Scout and Assistant Scoutmaster up until the day his
membership was revoked, and there is no reason to believe
that he would suddenly disobey the directives of BSA because
of anything he said in the newspaper article.
To be sure, the article did say that Dale was co-president of
the Lesbian/Gay Alliance at Rutgers University, and that
group presumably engages in advocacy regarding homosexual
issues. But surely many members of BSA engage in
expressive activities outside of their troop, and surely BSA
does not want all of that expression to be carried on inside the
troop. For example, a Scoutmaster may be a member of a
religious group that encourages its followers to convert others
to its faith. Or a Scoutmaster may belong to a political party
that encourages its members to advance its views among
family and friends.16 Yet BSA does not think it is appropriate
for Scoutmasters to proselytize a particular faith to unwilling
Scouts or to attempt to convert them from one
16 Scoutmaster Handbook (1990) (reprinted in App. 273)
("Scouts and Scouters are encouraged to take active part in
political matters as individuals" (emphasis added)).
691
religion to anotherP Nor does BSA think it appropriate for
Scouts or Scoutmasters to bring politics into the troop.18 From
all accounts, then, BSA does not discourage or forbid outside
expressive activity, but relies on compliance with its policies
and trusts Scouts and Scoutmasters alike not to bring
unwanted views into the organization. Of course, a disobedient
member who flouts BSA's policy may be expelled. But there is
no basis for BSA to presume that a homosexual will be unable
to comply with BSA's policy not to discuss sexual matters any
more than it would presume that politically or religiously
active members could not resist the urge to proselytize or
politicize during troop meetings.19 As BSA itself puts it, its
rights are "not implicated unless a prospective leader presents
himself as a role model incon-
17Bylaws of the Boy Scouts of America, Art. IX, § 1, cl. 3
(reprinted in App. 363) ("In no case where a unit is connected
with a church or other distinctively religious organization shall
members of other denominations or faith be required, because
of their membership in the unit, to take part in or observe a
religious ceremony distinctly unique to that organization or
church").
18 Rules and Regulations of the Boy Scouts of America, Art.
IX, § 2, cl. 6 (reprinted in App. 407) ("The Boy Scouts of
America shall not, through its governing body or through any
of its officers, its chartered councils, or members, involve the
Scouting movement in any question of a political character").
19 Consider, in this regard, that a heterosexual, as well as a
homosexual, could advocate to the Scouts the view that
homosexuality is not immoral. BSA acknowledges as much by
stating that a heterosexual who advocates that view to Scouts
would be expelled as well. Id., at 746 ("[Ainy persons who
advocate to Scouting youth that homosexual conduct is
'morally straight' under the Scout Oath, or 'clean' under the
Scout Law will not be registered as adult leaders" (emphasis
added)) (certification of BSA's National Director of Program).
But BSA does not expel heterosexual members who take that
view outside of their participation in Scouting, as long as they
do not advocate that position to the Scouts. Tr. of Oral Arg. 6.
And if there is no reason to presume that such a heterosexual
will openly violate BSA's desire to express no view on the
subject, what reasonother than blatant stereotyping-could
justify a contrary presumption for homosexuals?
692
sistent with Boy Scouting's understanding of the Scout Oath
and Law." Brief for Petitioners 6 (emphases added).20
The majority, though, does not rest its conclusion on the claim
that Dale will use his position as a bully pulpit. Rather, it
contends that Dale's mere presence among the Boy Scouts will
itself force the group to convey a message about
homosexuality-even if Dale has no intention of doing so. The
majority holds that "[t]he presence of an avowed homosexual
and gay rights activist in an assistant scoutmaster's uniform
sends a distinc[t] ... message," and, accordingly, BSA is
entitled to exclude that message. Ante, at 655-656. In
particular, "Dale's presence in the Boy Scouts would, at the
very least, force the organization to send a message, both to
the youth members and the world, that the Boy Scouts accepts
homosexual conduct as a legitimate form of be-
20 BSA cites three media interviews and Dale's affidavit to
argue that he will openly advance a pro-gay agenda while
being a Scoutmaster. None of those statements even remotely
supports that conclusion. And all of them were made after
Dale's membership was revoked and after this litigation
commenced; therefore, they could not have affected BSA's
revocation decision.
In a New York Times interview, Dale said '''I owe it to the
organization to point out to them how bad and wrong this
policy is.''' App. 513 (emphases added). This statement merely
demonstrates that Dale wants to use this litigation-not his
Assistant Scoutmaster position-to make a point, and that he
wants to make the point to the BSA organization, not to the
boys in his troop. At oral argument, BSA conceded that would
not be grounds for membership revocation. Tr. of Oral Arg.
13. In a Seattle Times interview, Dale said Scouting is "'about
giving adolescent boys a role model.''' App. 549. He did not
say it was about giving them a role model who advocated a
position on homosexuality. In a television interview, Dale also
said "I am gay, and I'm very proud of who I am .... I stand up
for what I believe in .... I'm not hiding anything." Id., at 470.
Nothing in that statement says anything about an intention to
stand up for homosexual rights in any context other than in
this litigation. Lastly, Dale said in his affidavit that he is "open
and honest about [his] sexual orientation." Id., at 133. Once
again, like someone who is open and honest about his political
affiliation, there is no evidence in that statement that Dale will
not comply with BSA's policy when acting as a Scoutmaster.
693
havior." Ante, at 653; see also Brief for Petitioners 24 ("By
donning the uniform of an adult leader in Scouting, he would
'celebrate [his] identity' as an openly gay Scout leader").
The majority's argument relies exclusively on Hurley v.
Irish-American Gay, Lesbian and Bisexual Group of Boston,
Inc., 515 U. S. 557 (1995). In that case, petitioners John
Hurley and the South Boston Allied War Veterans Council ran
a privately operated St. Patrick's Day parade. Respondent, an
organization known as "GLIB," represented a contingent of
gays, lesbians, and bisexuals who sought to march in the
petitioners' parade "as a way to express pride in their Irish
heritage as openly gay, lesbian, and bisexual individuals." Id.,
at 561. When the parade organizers refused GLIB's admission,
GLIB brought suit under Massachusetts' antidiscrimination
law. That statute, like New Jersey's law, prohibited
discrimination on account of sexual orientation in any place of
public accommodation, which the state courts interpreted to
include the parade. Petitioners argued that forcing them to
include GLIB in their parade would violate their free speech
rights.
We agreed. We first pointed out that the St. Patrick's Day
parade-like most every parade-is an inherently expressive
undertaking. Id., at 568-570. Next, we reaffirmed that the
government may not compel anyone to proclaim a belief with
which he or she disagrees. Id., at 573-574. We then found that
GLIB's marching in the parade would be an expressive act
suggesting the view "that people of their sexual orientations
have as much claim to unqualified social acceptance as
heterosexuals." Id., at 574. Finally, we held that GLIB's
participation in the parade "would likely be perceived" as the
parade organizers' own speech-or at least as a view which they
approved-because of a parade organizer's customary control
over who marches in the parade. Id., at 575. Though Hurley
has a superficial similarity to the present case, a close
inspection reveals a wide gulf between that case and the one
before us today.
694
First, it was critical to our analysis that GLIB was actually
conveying a message by participating in the parade-otherwise,
the parade organizers could hardly claim that they were being
forced to include any unwanted message at all. Our conclusion
that GLIB was conveying a message was inextricably tied to
the fact that GLIB wanted to march in a parade, as well as the
manner in which it intended to march. We noted the "inherent
expressiveness of marching [in a parade] to make a point," id.,
at 568, and in particular that GLIB was formed for the purpose
of making a particular point about gay pride, id., at 561, 570.
More specifically, GLIB "distributed a fact sheet describing
the members' intentions" and, in a previous parade, had
"marched behind a shamrock-strewn banner with the simple
inscription 'Irish American Gay, Lesbian and Bisexual Group
of Boston.'" Id., at 570. "[A] contingent marching behind the
organization's banner," we said, would clearly convey a
message. Id., at 574. Indeed, we expressly distinguished
between the members of GLIB, who marched as a unit to
express their views about their own sexual orientation, on the
one hand, and homosexuals who might participate as
individuals in the parade without intending to express anything
about their sexuality by doing so. Id., at 572-573.
Second, we found it relevant that GLIB's message "would
likely be perceived" as the parade organizers' own speech. Id.,
at 575. That was so because "[p]arades and demonstrations ...
are not understood to be so neutrally presented or selectively
viewed" as, say, a broadcast by a cable operator, who is
usually considered to be "merely 'a conduit' for the speech"
produced by others. Id., at 575-576. Rather, parade organizers
are usually understood to make the "customary determination
about a unit admitted to the parade." Id., at 575.
Dale's inclusion in the Boy Scouts is nothing like the case in
Hurley. His participation sends no cognizable message to the
Scouts or to the world. Unlike GLIB, Dale did not
695
carry a banner or a sign; he did not distribute any factsheet;
and he expressed no intent to send any message. If there is any
kind of message being sent, then, it is by the mere act of
joining the Boy Scouts. Such an act does not constitute an
instance of symbolic speech under the First Amendment.21
It is true, of course, that some acts are so imbued with
symbolic meaning that they qualify as "speech" under the First
Amendment. See United States v. O'Brien, 391 U. S. 367, 376
(1968). At the same time, however, "[w]e cannot accept the
view that an apparently limitless variety of conduct can be
labeled 'speech' whenever the person engaging in the conduct
intends thereby to express an idea." Ibid. Though participating
in the Scouts could itself conceivably send a message on some
level, it is not the kind of act that we have recognized as
speech. See Dallas v. Stanglin, 490 U. S. 19, 24-25 (1989).22
Indeed, if merely joining a group did constitute symbolic
speech; and such speech were attributable to the group being
joined; and that group has the right to exclude that speech (and
hence, the right to exclude that person from joining), then the
right of free speech effectively becomes a limitless right to
exclude for every organization, whether or not it engages in
any expressive activities. That cannot be, and never has been,
the law.
21 The majority might have argued (but it did not) that Dale
had become so publicly and pervasively identified with a
position advocating the moral legitimacy of homosexuality (as
opposed to just being an individual who openly stated he is
gay) that his leadership position in BSA would necessarily
amount to using the organization as a conduit for publicizing
his position. But as already noted, when BSA expelled Dale, it
had nothing to go on beyond the one newspaper article quoted
above, and one newspaper article does not convert Dale into a
public symbol for a message. BSA simply has not provided a
record that establishes the factual premise for this argument.
22 This is not to say that Scouts do not engage in expressive
activity. It is only to say that the simple act of joining the
Scouts-unlike joining a parade-is not inherently expressive.
696
The only apparent explanation for the majority's holding, then,
is that homosexuals are simply so different from the rest of
society that their presence alone-unlike any other individual's-
should be singled out for special First Amendment treatment.
Under the majority's reasoning, an openly gay male is
irreversibly affixed with the label "homosexual." That label,
even though unseen, communicates a message that permits his
exclusion wherever he goes. His openness is the sole and
sufficient justification for his ostracism. Though unintended,
reliance on such a justification is tantamount to a
constitutionally prescribed symbol of inferiority.23 As counsel
for BSA remarked, Dale "put a banner around his neck when
he ... got himself into the newspaper .... He created a
reputation ... He can't take that banner off. He put it on himself
and, indeed, he has continued to put it on himself." See Tr. of
Oral Arg. 25.
Another difference between this case and Hurley lies in the
fact that Hurley involved the parade organizers' claim to
determine the content of the message they wish to give at a
particular time and place. The standards governing such a
claim are simply different from the standards that govern
BSA's claim of a right of expressive association. Generally, a
private person or a private organization has a right to refuse to
broadcast a message with which it disagrees, and a right to
refuse to contradict or garble its own specific statement at any
given place or time by including the messages of others. An
expressive association claim, however, normally involves the
avowal and advocacy of a consistent position on some issue
over time. This is why a different kind of scrutiny must be
given to an expressive association claim, lest the right of
expressive association simply turn into a right to discriminate
whenever some group can think of an expressive object that
would seem to be inconsistent with the ad-
23 See Yoshino, Suspect Symbols: The Literary Argument for
Heightened Scrutiny for Gays, 96 Colum. L. Rev. 1753,1781-
1783 (1996).
697
mission of some person as a member or at odds with the
appointment of a person to a leadership position in the group.
Furthermore, it is not likely that BSA would be understood to
send any message, either to Scouts or to the world, simply by
admitting someone as a member. Over the years, BSA has
generously welcomed over 87 million young Americans into
its ranks. In 1992 over one million adults were active BSA
members. 160 N. J. 562, 571, 734 A. 2d 1196, 1200 (1999).
The notion that an organization of that size and enormous
prestige implicitly endorses the views that each of those adults
may express in a non-Scouting context is simply mind
boggling. Indeed, in this case there is no evidence that the
young Scouts in Dale's troop, or members of their families,
were even aware of his sexual orientation, either before or
after his public statements at Rutgers University.24 It is
equally farfetched to assert that Dale's open declaration of his
homosexuality, reported in a local newspaper, will effectively
force BSA to send a message to anyone simply because it
allows Dale to be an Assistant Scoutmaster. For an Olympic
gold medal winner or a Wimbledon tennis champion, being
"openly gay" perhaps communicates a message-for example,
that openness about one's sexual orientation is more virtuous
than concealment; that a homosexual person can be a capable
and virtuous person who should be judged like anyone else;
and that homosexuality is not immoralbut it certainly does not
follow that they necessarily send a message on behalf of the
organizations that sponsor the activities in which they excel.
The fact that such persons participate in these organizations is
not usually construed to convey a message on behalf of those
organizations any more than does the inclusion of women,
African-Americans, reli-
24 For John Doe to make a public statement of his sexual
orientation to the newspapers may, of course, be a matter of
great importance to John Doe. Richard Roe, however, may be
much more interested in the weekend weather forecast. Before
Dale made his statement at Rutgers, the Scoutmaster of his
troop did not know that he was gay. App. 465.
698
gious minorities, or any other discrete groUp.25 Surely the
organizations are not forced by antidiscrimination laws to take
any position on the legitimacy of any individual's private
beliefs or private conduct.
The State of New Jersey has decided that people who are open
and frank about their sexual orientation are entitled to equal
access to employment as schoolteachers, police officers,
librarians, athletic coaches, and a host of other jobs filled by
citizens who serve as role models for children and adults alike.
Dozens of Scout units throughout the State are sponsored by
public agencies, such as schools and fire departments, that
employ such role models. BSA's affiliation with numerous
public agencies that comply with New Jersey's law against
discrimination cannot be understood to convey any particular
message endorsing or condoning the activities of all these
people.26
25 The majority simply announces, without analysis, that
Dale's participation alone would "force the organization to
send a message." Ante, at 653. "But ... these are merely
conclusory words, barren of analysis .... For First Amendment
principles to be implicated, the State must place the citizen in
the position of either apparently or actually 'asserting as true'
the message." Wooley v. Maynard, 430 U. S. 705, 721 (1977)
(REHNQUIST, J., dissenting).
26BSA also argues that New Jersey's law violates its right to
"intimate association." Brief for Petitioners 39-47. Our cases
recognize a substantive due process right "to enter into and
carryon certain intimate or private relationships." Rotary Club,
481 U. S., at 545. As with the First Amendment right to
associate, the State may not interfere with the selection of
individuals in such relationships. Jaycees, 468 U. S., at 618.
Though the precise scope of the right to intimate association is
unclear, "we consider factors such as size, purpose, selectivity,
and whether others are excluded from critical aspects of the
relationship" to determine whether a group is sufficiently
personal to warrant this type of constitutional protection.
Rotary Club, 481 U. S., at 546. Considering BSA's size, see
supra, at 697, its broad purposes, and its non selectivity, see
supra, at 666, it is impossible to conclude that being a member
of the Boy Scouts ranks among those intimate relationships
falling within this right, such as marriage, bearing children,
rearing children, and cohabitation with relatives. Rotary Club,
481 U. S., at 545.
699
VI
Unfavorable OpInIOnS about homosexuals "have ancient
roots." Bowers v. Hardwick, 478 U. S. 186, 192 (1986). Like
equally atavistic opinions about certain racial groups, those
roots have been nourished by sectarian doctrine. Id., at 196-
197 (Burger, C. J., concurring); Loving v. Virginia, 388 U. S.
1,3 (1967).27 See also Mathews v. Lucas, 427 U. S. 495, 520
(1976) (STEVENS, J., dissenting) ("Habit, rather than
analysis, makes it seem acceptable and natural to distinguish
between male and female, alien and citizen, legitimate and
illegitimate; for too much of our history there was the same
inertia in distinguishing between black and white"). Over the
years, however, interaction with real people, rather than mere
adherence to traditional ways of thinking about members of
unfamiliar classes, have modified those opinions. A few
examples: The American Psychiatric Association's and the
American Psychological Association's removal of
"homosexuality" from their lists of mental disorders; 28 a
move toward greater understanding within some religious
communities;29 Justice Blackmun's classic opinion in
Bowers;3o
27 In Loving, the trial judge gave this explanation of the
rationale for Virginia's antimiscegenation statute: "'Almighty
God created the races white, black, yellow, malay and red, and
he placed them on separate continents. And but for the
interference with his arrangement there would be no cause for
such marriages. The fact that he separated the races shows that
he did not intend for the races to mix.''' 388 U. S., at 3.
28 Brief for American Psychological Association as Amicus
Curiae 8. 29 See n. 3, supra.
30 The significance of that opinion is magnified by comparing
it with Justice Blackmun's vote 10 years earlier in Doe v.
Commonwealth's Attorney for City of Richmond, 425 U. S.
901 (1976). In that case, six Justicesincluding Justice
Blackmun-voted to summarily affirm the District Court's
rejection of the same due process argument that was later
rejected in Bowers. Two years later, furthermore, Justice
Blackmun joined in a dissent in University of Missouri v. Gay
Lib, 434 U. S. 1080 (1978). In that case, the university had
denied recognition to a student gay rights organization. The
student group argued that in doing so, the university had
violated its free speech and free association rights. The Court
of
700
Georgia's invalidation of the statute upheld in Bowers; 31 and
New Jersey's enactment of the provision at issue in this case.
Indeed, the past month alone has witnessed some remarkable
changes in attitudes about homosexuals.32
That such prejudices are still prevalent and that they have
caused serious and tangible harm to countless members of the
class New Jersey seeks to protect are established matters of
fact that neither the Boy Scouts nor the Court disputes. That
harm can only be aggravated by the creation of a constitutional
shield for a policy that is itself the product of a habitual way of
thinking about strangers. As Justice Brandeis so wisely
advised, "we must be ever on our guard, lest we erect our
prejudices into legal principles."
If we would guide by the light of reason, we must let our
minds be bold. I respectfully dissent.
JUSTICE SOUTER, with whom JUSTICE GINSBURG and
JUSTICE BREYER join, dissenting.
I join JUSTICE STEVENS'S dissent but add this further word
on the significance of Part VI of his opinion. There, JUSTICE
STEVENS describes the changing attitudes toward gay people
and notes a parallel with the decline of stereotypical thinking
about race and gender. The legitimacy of New
Appeals agreed with that argument. A dissent from denial of
certiorari, citing the university's argument, suggested that the
proper analysis might well be as follows:
"[T]he question is more akin to whether those suffering from
measles have a constitutional right, in violation of quarantine
regulations, to associate together and with others who do not
presently have measles, in order to urge repeal of a state law
providing that measle sufferers be quarantined." Id., at 1084
(REHNQUIST, J., dissenting).
31 Powell v. State, 270 Ga. 327, 510 S. E. 2d 18 (1998).
32 See, e. g., Bradsher, Big Carmakers Extend Benefits to Gay
Couples, New York Times, June 9, 2000, p. C1; Marquis, Gay
Pride Day is Observed by About 60 C. 1. A. Workers, New
York Times, June 9, 2000, p. A26; Zernike, Gay Couples are
Accepted as Role Models at Exeter, New York Times, June
12, 2000, p. A18.
701
Jersey's interest in forbidding discrimination on all these bases
by those furnishing public accommodations is, as JUSTICE
STEVENS indicates, acknowledged by many to be beyond
question. The fact that we are cognizant of this laudable
decline in stereotypical thinking on homosexuality should not,
however, be taken to control the resolution of this case.
Boy Scouts of America (BSA) is entitled, consistently with its
own tenets and the open doors of American courts, to raise a
federal constitutional basis for resisting the application of New
Jersey's law. BSA has done that and has chosen to defend
against enforcement of the state public accommodations law
on the ground that the First Amendment protects expressive
association: individuals have a right to join together to
advocate opinions free from government interference. See
Roberts v. United States Jaycees, 468 U. S. 609, 622 (1984).
BSA has disclaimed any argument that Dale's past or future
actions, as distinct from his unapologetic declaration of sexual
orientation, would justify his exclusion from BSA. See Tr. of
Oral Arg. 12-13.
The right of expressive association does not, of course, turn on
the popularity of the views advanced by a group that claims
protection. Whether the group appears to this Court to be in
the vanguard or rearguard of social thinking is irrelevant to the
group's rights. I conclude that BSA has not made out an
expressive association claim, therefore, not because of what
BSA may espouse, but because of its failure to make sexual
orientation the subject of any unequivocal advocacy, using the
channels it customarily employs to state its message. As
JUSTICE STEVENS explains, no group can claim a right of
expressive association without identifying a clear position to
be advocated over time in an unequivocal way. To require
less, and to allow exemption from a public accommodations
statute based on any individual's difference from an alleged
group ideal, however expressed and however inconsistently
claimed, would convert the right of expres-
702
sive association into an easy trump of any antidiscrimination
law.*
If, on the other hand, an expressive association claim has met
the conditions JUSTICE STEVENS describes as necessary,
there may well be circumstances in which the
antidiscrimination law must yield, as he says. It is certainly
possible for an individual to become so identified with a
position as to epitomize it publicly. When that position is at
odds with a group's advocated position, applying an
antidiscrimination statute to require the group's acceptance of
the individual in a position of group leadership could so
modify or muddle or frustrate the group's advocacy as to
violate the expressive associational right. While it is not our
business here to rule on any such hypothetical, it is at least
clear that our estimate of the progressive character of the
group's position will be irrelevant to the First Amendment
analysis if such a case comes to us for decision.
* An expressive association claim is in this respect unlike a
basic free speech claim, as JUSTICE STEVENS points out;
the latter claim, i. e., the right to convey an individual's or
group's position, if bona fide, may be taken at face value in
applying the First Amendment. This case is thus unlike Hurley
v. Irish-American Gay, Lesbian and Bisexual Group of
Boston, Inc., 515 U. S. 557 (1995).
GRATZ ET AL. v. BOLLINGER ET AL.
CERTIORARI BEFORE JUDGMENT TO THE UNITED
STATES COURT OF APPEALS FOR THE SIXTH
CIRCUIT
No. 02-516. Argued April 1, 2003-Decided June 23, 2003
Petitioners Gratz and Hamacher, both of whom are Michigan
residents and Caucasian, applied for admission to the
University of Michigan's (University) College of Literature,
Science, and the Arts (LSA) in 1995 and 1997, respectively.
Although the LSA considered Gratz to be well qualified and
Hamacher to be within the qualified range, both were denied
early admission and were ultimately denied admission. In
order to promote consistency in the review of the many
applications received, the University's Office of
Undergraduate Admissions (OUA) uses written guidelines for
each academic year. The guidelines have changed a number of
times during the period relevant to this litigation. The OUA
considers a number of factors in making admissions decisions,
including high school grades, standardized test scores, high
school quality, curriculum strength, geography, alumni
relationships, leadership, and race. During all relevant periods,
the University has considered MricanAmericans, Hispanics,
and Native Americans to be "underrepresented minorities,"
and it is undisputed that the University admits virtually every
qualified applicant from these groups. The current guidelines
use a selection method under which every applicant from an
underrepresented racial or ethnic minority group is
automatically awarded 20 points of the 100 needed to
guarantee admission.
Petitioners filed this class action alleging that the University's
use of racial preferences in undergraduate admissions violated
the Equal Protection Clause of the Fourteenth Amendment,
Title VI of the Civil Rights Act of 1964, and 42 U.S.C. §
1981. They sought compensatory and punitive damages for
past violations, declaratory relief finding that respondents
violated their rights to nondiscriminatory treatment, an
injunction prohibiting respondents from continuing to
discriminate on the basis of race, and an order requiring the
LSA to offer Hamacher admission as a transfer student. The
District Court granted petitioners' motion to certify a class
consisting of individuals who applied for and were denied
admission to the LSA for academic year 1995 and forward and
who are members of racial or ethnic groups that respondents
treated less favorably on the basis of race. Hamacher, whose
claim was found to challenge racial discrimination on a
classwide basis, was designated as the class representative. On
cross-motions for summary judgment, respondents relied on
Justice Powell's principal opinion in Regents of
[245]
Univ. of Cal. v. Bakke, 438 U.S. 265, 317, which expressed
the view that the consideration of race as a factor in
admissions might in some cases serve a compelling
government interest. Respondents contended that the LSA has
just such an interest in the educational benefits that result from
having a racially and ethnically diverse student body and that
its program is narrowly tailored to serve that interest. The
court agreed with respondents as to the LSA's current
admissions guidelines and granted them summary judgment in
that respect. However, the court also found that the LSA's
admissions guidelines for 1995 through 1998 operated as the
functional equivalent of a quota running afoul of Justice
Powell's Bakke opinion, and thus granted petitioners summary
judgment with respect to respondents' admissions programs
for those years. While interlocutory appeals were pending in
the Sixth Circuit, that court issued an opinion in Grutter v.
Bollinger, post, p. 306, upholding the admissions program
used by the University's Law School. This Court granted
certiorari in both cases, even though the Sixth Circuit had not
yet rendered judgment in this one.
Held:
1. Petitioners have standing to seek declaratory and injunctive
relief.
The Court rejects JUSTICE STEVENS' contention that,
because Hamacher did not actually apply for admission as a
transfer student, his future injury claim is at best conjectural or
hypothetical rather than real and immediate. The "injury in
fact" necessary to establish standing in this type of case is the
denial of equal treatment resulting from the imposition of the
barrier, not the ultimate inability to obtain the benefit.
Northeastern Fla. Chapter, Associated Gen. Contractors of
America v. Jacksonville, 508 U.S. 656, 666. In the face of
such a barrier, to establish standing, a party need only
demonstrate that it is able and ready to perform and that a
discriminatory policy prevents it from doing so on an equal
basis. Ibid. In bringing his equal protection challenge against
the University's use of race in undergraduate admissions,
Hamacher alleged that the University had denied him the
opportunity to compete for admission on an equal basis.
Hamacher was denied admission to the University as a
freshman applicant even though an underrepresented minority
applicant with his qualifications would have been admitted.
Mter being denied admission, Hamacher demonstrated that he
was "able and ready" to apply as a transfer student should the
University cease to use race in undergraduate admissions. He
therefore has standing to seek prospective relief with respect
to the University's continued use of race. Also rejected is
JUSTICE STEVENS' contention that such use in
undergraduate transfer admissions differs from the
University's use of race in undergraduate freshman
admissions, so that Hamacher lacks standing to represent
absent class members challenging the latter. Each year the
QUA produces a document setting forth
[246]
guidelines for those seeking admission to the LSA, including
freshman and transfer applicants. The transfer applicant
guidelines specifically cross-reference factors and
qualifications considered in assessing freshman applicants. In
fact, the criteria used to determine whether a transfer applicant
will contribute to diversity are identical to those used to
evaluate freshman applicants. The only difference is that all
underrepresented minority freshman applicants receive 20
points and "virtually" all who are minimally qualified are
admitted, while "generally" all minimally qualified minority
transfer applicants are admitted outright. While this difference
might be relevant to a narrow tailoring analysis, it clearly has
no effect on petitioners' standing to challenge the University's
use of race in undergraduate admissions and its assertion that
diversity is a compelling state interest justifying its
consideration of the race of its undergraduate applicants. See
General Telephone Co. of Southwest v. Falcon, 457 U.S. 147,
159; Blum v. Yaretsky, 457 U.S. 991, distinguished. The
District Court's carefully considered decision to certify this
class action is correct. Cf. Coopers & Lybrand v. Livesay, 437
U.S. 463, 469. Hamacher's personal stake, in view of both his
past injury and the potential injury he faced at the time of
certification, demonstrates that he may maintain the action.
Pp. 260-268.
2. Because the University's use of race in its current freshman
admissions policy is not narrowly tailored to achieve
respondents' asserted interest in diversity, the policy violates
the Equal Protection Clause. For the reasons set forth in
Grutter v. Bollinger, post, at 327-333, the Court has today
rejected petitioners' argument that diversity cannot constitute a
compelling state interest. However, the Court finds that the
University's current 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 educational diversity. In Bakke, Justice Powell
explained his view that it would be permissible for a university
to employ an admissions program in which "race or ethnic
background may be deemed a 'plus' in a particular applicant's
file." 438 U.S., at 317. He emphasized, however, the
importance of considering each particular applicant as an
individual, assessing all of the qualities that individual
possesses, and in turn, evaluating that individual's ability to
contribute to the unique setting of higher education. The
admissions program Justice Powell described did not
contemplate that any single characteristic automatically
ensured a specific and identifiable contribution to a
university's diversity. See id., at 315. The current LSA policy
does not provide the individualized consideration Justice
Powell contemplated. The only consideration that
accompanies the 20-point automatic distribution to all
applicants from underrepresented minorities is a factual
review to determine whether an individual is a member
[247]
of one of these minority groups. Moreover, unlike Justice
Powell's example, where the race of a "particular black
applicant" could be considered without being decisive, see id.,
at 317, the LSA's 20-point distribution has the effect of
making "the factor of race . . . decisive" for virtually every
minimally qualified underrepresented minority applicant, ibid.
The fact that the LSA has created the possibility of an
applicant's file being flagged for individualized consideration
only emphasizes the flaws of the University's system as a
whole when compared to that described by Justice Powell. The
record does not reveal precisely how many applications are
flagged, but it is undisputed that such consideration is the
exception and not the rule in the LSA's program. Also, this
individualized review is only provided after admissions
counselors automatically distribute the University's version of
a "plus" that makes race a decisive factor for virtually every
minimally qualified underrepresented minority applicant. The
Court rejects respondents' contention that the volume of
applications and the presentation of applicant information
make it impractical for the LSA to use the admissions system
upheld today in Grutter. The fact that the implementation of a
program capable of providing individualized consideration
might present administrative challenges does not render
constitutional an otherwise problematic system. See, e.g.,
Richmond v. J. A. Croson Co., 488 U.S. 469, 508. Nothing in
Justice Powell's Bakke opinion signaled that a university may
employ whatever means it desires to achieve diversity without
regard to the limits imposed by strict scrutiny. Pp. 268-275.
3. Because the University's use of race in its current freshman
admissions policy violates the Equal Protection Clause, it also
violates Title VI and § 1981. See, e. g., Alexander v.
Sandoval, 532 U.S. 275, 281; General Building Contractors
Assn. v. Pennsylvania, 458 U.S. 375, 389-390. Accordingly,
the Court reverses that portion of the District Court's decision
granting respondents summary judgment with respect to
liability. Pp. 275-276.
Reversed in part and remanded.
REHNQUIST, C. J., delivered the opinion of the Court, in
which O'CONNOR, SCALIA, KENNEDY, and THOMAS,
JJ., joined. O'CONNOR, J., filed a concurring opinion, in
which BREYER, J., joined in part, post, p. 276. THOMAS, J.,
filed a concurring opinion, post, p. 281. BREYER, J., filed an
opinion concurring in the judgment, post, p. 281. STEVENS,
J., filed a dissenting opinion, in which SOUTER, J., joined,
post, p. 282. SOUTER, J., filed a dissenting opinion, in which
GINSBURG, J., joined as to Part II, post, p. 291. GINSBURG,
J., filed a dissenting opinion, in which SOUTER, J., joined,
and in which BREYER, J., joined as to Part I, post, p. 298.
[248]
Counsel
Kirk O. Kolbo argued the cause for petitioners. With him on
the briefs were David F. Herr, R. Lawrence Purdy, Michael C.
McCarthy, Michael E. Rosman, Hans Bader, and Kerry L.
Morgan.
Solicitor General Olson argued the cause for the United States
as amicus curiae urging reversal. With him on the brief were
Assistant Attorney General Boyd and Deputy Solicitor
General Clement.
John Payton argued the cause for respondents. With him on
the brief for respondent Bollinger et al. were John H.
Pickering, Brigida Benitez, Craig Goldblatt, Terry A.
Maroney, Maureen E. Mahoney, Marvin Krislov, Jonathan
Alger, Jeffrey Lehman, Evan Caminker, Philip J. Kessler, and
Leonard M. Niehoff Theodore M. Shaw, Norman J. Chachkin,
James L. Cott, Melissa S. Woods, Christopher A. Hansen,
Brent E. Simmons, Michael J. Steinberg, Antonia Hernandez,
Patricia Mendoza, Godfrey J. Dillard, and Milton R. Henry
filed a brief for respondent Patterson et al. [Footnote *]
[249]
CHIEF JUSTICE REHNQUIST delivered the opinion of the
Court.
We granted certiorari in this case to decide whether "the
University of Michigan's use of racial preferences in under-
[250]
graduate admissions violate[s] the Equal Protection Clause of
the Fourteenth Amendment, Title VI of the Civil Rights Act of
1964 (42 U.S.C. § 2000d), or 42 U.S.C. § 1981." Brief
[251]
for Petitioners i. Because we find that the manner in which the
University considers the race of applicants in its undergraduate
admissions guidelines violates these constitutional and
statutory provisions, we reverse that portion of the District
Court's decision upholding the guidelines.
I
A
Petitioners Jennifer Gratz and Patrick Hamacher both applied
for admission to the University of Michigan's (University)
College of Literature, Science, and the Arts (LSA) as residents
of the State of Michigan. Both petitioners are Caucasian.
Gratz, who applied for admission for the fall of 1995, was
notified in January of that year that a final decision regarding
her admission had been delayed until April. This delay was
based upon the University's determination that, although Gratz
was" 'well qualified,'" she was" 'less competitive than the
students who ha[d] been admitted on first review.'" App. to
Pet. for Cert. 109a. Gratz was notified in April that the LSA
was unable to offer her admission. She enrolled in the
University of Michigan at Dearborn, from which she
graduated in the spring of 1999.
Hamacher applied for admission to the LSA for the fall of
1997. A final decision as to his application was also postponed
because, though his "'academic credentials [were] in the
qualified range, they [were] not at the level needed for first
review admission.'" Ibid. Hamacher's application was
subsequently denied in April 1997, and he enrolled at
Michigan State University.[Footnote 1]
[252]
In October 1997, Gratz and Hamacher filed a lawsuit in the
United States District Court for the Eastern District of
Michigan against the University, the LSA,[Footnote 2] James
Duderstadt, and Lee Bollinger.[Footnote 3] Petitioners'
complaint was a class-action suit alleging "violations and
threatened violations of the rights of the plaintiffs and the class
they represent to equal protection of the laws under the
Fourteenth Amendment . . . , and for racial discrimination in
violation of 42 U.S.C. §§ 1981, 1983 and 2000d et seq." App.
33. Petitioners sought, inter alia, compensatory and punitive
damages for past violations, declaratory relief finding that
respondents violated petitioners' "rights to nondiscriminatory
treatment," an injunction prohibiting respondents from
"continuing to discriminate on the basis of race in violation of
the Fourteenth Amendment," and an order requiring the LSA
to offer Hamacher admission as a transfer student.[Footnote 4]
Id., at 40.
The District Court granted petitioners' motion for class
certification after determining that a class action was
appropriate pursuant to Federal Rule of Civil Procedure 23(b)
(2). The certified class consisted of "those individuals who
applied for and were not granted admission to the College of
[253]
Literature, Science & the Arts of the University of Michigan
for all academic years from 1995 forward and who are
members of those racial or ethnic groups, including Caucasian,
that defendants treat[ed] less favorably on the basis of race in
considering their application for admission." App. 70-71. And
Hamacher, whose claim the District Court found to challenge
a "'practice of racial discrimination pervasively applied on a
classwide basis,'" was designated as the class representative.
Id., at 67, 70. The court also granted petitioners' motion to
bifurcate the proceedings into a liability and damages phase.
Id., at 71. The liability phase was to determine "whether
[respondents'] use of race as a factor in admissions decisions
violates the Equal Protection Clause of the Fourteenth
Amendment to the Constitution." Id., at 70.[Footnote 5]
B In 1997, the University modified its admissions procedure.
The University has changed its admissions guidelines a
number of times during the period relevant to this litigation,
and we summarize the most significant of these changes
briefly. The University's Office of Undergraduate Admissions
(OUA) oversees the LSA admissions process.[Footnote 6] In
order to promote consistency in the review of the large number
of applications received, the OUA uses written guidelines for
each academic year. Admissions counselors make admissions
decisions in accordance with these guidelines.
OUA considers a number of factors in making admissions
decisions, including high school grades, standardized test
scores, high school quality, curriculum strength, geography,
alumni relationships, and leadership. OUA also considers race.
During all periods relevant to this litigation, the Uni-
[254]
versity has considered African-Americans, Hispanics, and
Native Americans to be "underrepresented minorities," and it
is undisputed that the University admits "virtually every
qualified . . . applicant" from these groups. App. to Pet. for
Cert.ll1a.
During 1995 and 1996, OUA counselors evaluated
applications according to grade point average combined with
what were referred to as the "SCUGA" factors. These factors
included the quality of an applicant's high school (S), the
strength of an applicant's high school curriculum (C), an
applicant's unusual circumstances (U), an applicant's
geographical residence (G), and an applicant's alumni
relationships (A). After these scores were combined to
produce an applicant's "GPA 2" score, the reviewing
admissions counselors referenced a set of "Guidelines" tables,
which listed GPA 2 ranges on the vertical axis, and American
College Test/Scholastic Aptitude Test (ACT/SAT) scores on
the horizontal axis. Each table was divided into cells that
included one or more courses of action to be taken, including
admit, reject, delay for additional information, or postpone for
reconsideration.
In both years, applicants with the same GPA 2 score and
ACT/SAT score were subject to different admissions
outcomes based upon their racial or ethnic status.[Footnote 7]
For example, as a Caucasian in-state applicant, Gratz's GPA 2
score and ACT score placed her within a cell calling for a
postponed decision on her application. An in-state or out-
ofstate minority applicant with Gratz's scores would have
fallen within a cell calling for admission.
[255]
Specifically, the formula for calculating an applicant's GPA 2
score was restructured to include additional point values under
the "U" category in the SCUGA factors. Under this new
system, applicants could receive points for underrepresented
minority status, socioeconomic disadvantage, or attendance at
a high school with a predominantly underrepresented minority
population, or underrepresentation in the unit to which the
student was applying (for example, men who sought to pursue
a career in nursing). Under the 1997 procedures, Hamacher's
GPA 2 score and ACT score placed him in a cell on the in-
state applicant table calling for postponement of a final
admissions decision. An underrepresented minority applicant
placed in the same cell would generally have been admitted.
Beginning with the 1998 academic year, the OUA dispensed
with the Guidelines tables and the SCUGA point system in
favor of a "selection index," on which an applicant could score
a maximum of 150 points. This index was divided linearly into
ranges generally calling for admissions dispositions as
follows: 100-150 (admit); 95-99 (admit or postpone); 90-94
(postpone or admit); 75-89 (delay or postpone); 74 and below
(delay or reject).
Each application received points based on high school grade
point average, standardized test scores, academic quality of an
applicant's high school, strength or weakness of high school
curriculum, in-state residency, alumni relationship, personal
essay, and personal achievement or leadership. Of particular
significance here, under a "miscellaneous" category, an
applicant was entitled to 20 points based upon his or her
membership in an underrepresented racial or ethnic minority
group. The University explained that the" 'development of the
selection index for admissions in 1998 changed only the
mechanics, not the substance, of how race and ethnicity [were]
considered in admissions.'" App. to Pet. for Cert.116a.
[256]
In all application years from 1995 to 1998, the guidelines
provided that qualified applicants from underrepresented
minority groups be admitted as soon as possible in light of the
University's belief that such applicants were more likely to
enroll if promptly notified of their admission. Also from 1995
through 1998, the University carefully managed its rolling
admissions system to permit consideration of certain
applications submitted later in the academic year through the
use of "protected seats." Specific groups-including athletes,
foreign students, ROTC candidates, and underrepresented
minorities-were "protected categories" eligible for these seats.
A committee called the Enrollment Working Group (EWG)
projected how many applicants from each of these protected
categories the University was likely to receive after a given
date and then paced admissions decisions to permit full
consideration of expected applications from these groups. If
this space was not filled by qualified candidates from the
designated groups toward the end of the admissions season, it
was then used to admit qualified candidates remaining in the
applicant pool, including those on the waiting list.
During 1999 and 2000, the OUA used the selection index,
under which every applicant from an underrepresented racial
or ethnic minority group was awarded 20 points. Starting in
1999, however, the University established an Admissions
Review Committee (ARC), to provide an additional level of
consideration for some applications. Under the new system,
counselors may, in their discretion, "flag" an application for
the ARC to review after determining that the applicant (1) is
academically prepared to succeed at the University,[Footnote
8] (2) has achieved a minimum selection index score, and (3)
possesses a quality or characteristic important to the
University's com-
[257]
position of its freshman class, such as high class rank, unique
life experiences, challenges, circumstances, interests or talents,
socioeconomic disadvantage, and underrepresented race,
ethnicity, or geography. After reviewing "flagged"
applications, the ARC determines whether to admit, defer, or
deny each applicant.
C
The parties filed cross-motions for summary judgment with
respect to liability. Petitioners asserted that the LSA's use of
race as a factor in admissions violates Title VI of the Civil
Rights Act of 1964, 78 Stat. 252, 42 U.S.C. § 2000d, and the
Equal Protection Clause of the Fourteenth Amendment.
Respondents relied on Justice Powell's opinion in Regents of
Univ. of Gal. v. Bakke, 438 U.S. 265 (1978), to respond to
petitioners' arguments. As discussed in greater detail in the
Court's opinion in Grutter v. Bollinger, post, at 323-325,
Justice Powell, in Bakke, expressed the view that the
consideration of race as a factor in admissions might in some
cases serve a compelling government interest. See 438 U.S., at
317. Respondents contended that the LSA has just such an
interest in the educational benefits that result from having a
racially and ethnically diverse student body and that its
program is narrowly tailored to serve that interest.
Respondent-intervenors asserted that the LSA had a
compelling interest in remedying the University's past and
current discrimination against minorities.[Footnote 9]
[258]
The District Court began its analysis by reviewing this Court's
decision in Bakke. See 122 F. Supp. 2d 811, 817 (ED Mich.
2000). Although the court acknowledged that no decision from
this Court since Bakke has explicitly accepted the diversity
rationale discussed by Justice Powell, see 122 F. Supp. 2d, at
820-821, it also concluded that this Court had not, in the years
since Bakke, ruled out such a justification for the use of race,
122 F. Supp. 2d, at 820-821. The District Court concluded that
respondents and their amici curiae had presented "solid
evidence" that a racially and ethnically diverse student body
produces significant educational benefits such that achieving
such a student body constitutes a compelling governmental
interest. See id., at 822-824.
The court next considered whether the LSA's admissions
guidelines were narrowly tailored to achieve that interest. See
id., at 824. Again relying on Justice Powell's opinion in
Bakke, the District Court determined that the admissions
program the LSA began using in 1999 is a narrowly tailored
means of achieving the University's interest in the educational
benefits that flow from a racially and ethnically diverse
student body. See 122 F. Supp. 2d, at 827. The court
emphasized that the LSA's current program does not utilize
rigid quotas or seek to admit a predetermined number of
minority students. See ibid. The award of 20 points for
membership in an underrepresented minority group, in the
District Court's view, was not the functional equivalent of a
quota because minority candidates were not insulated from
review by virtue of those points. See id., at 828. Likewise, the
court rejected the assertion that the LSA's program operates
like the two-track system Justice Powell found objectionable
in Bakke on the grounds that LSA applicants are not
competing for different groups of seats. See 122 F. Supp. 2d,
at 828-829. The court also dismissed petitioners' assertion that
the LSA's current system is nothing more than a means by
which to achieve racial balancing. See id., at 831. The court
explained that the LSA does not seek to
[259]
achieve a certain proportion of minority students, let alone a
proportion that represents the community. See ibid.
The District Court found the admissions guidelines the LSA
used from 1995 through 1998 to be more problematic. In the
court's view, the University's prior practice of "protecting" or
"reserving" seats for underrepresented minority applicants
effectively kept nonprotected applicants from competing for
those slots. See id., at 832. This system, the court concluded,
operated as the functional equivalent of a quota and ran afoul
of Justice Powell's opinion in Bakke.[Footnote 10] See 122 F.
Supp. 2d, at 832.
Based on these findings, the court granted petitioners' motion
for summary judgment with respect to the LSA's admissions
programs in existence from 1995 through 1998, and
respondents' motion with respect to the LSA's admissions
programs for 1999 and 2000. See id., at 833. Accordingly, the
District Court denied petitioners' request for injunctive relief.
See id., at 814.
The District Court issued an order consistent with its rulings
and certified two questions for interlocutory appeal to the
Sixth Circuit pursuant to 28 U.S.C. § 1292(b). Both parties
appealed aspects of the District Court's rulings, and the Court
of Appeals heard the case en banc on the same day as Grutter
v. Bollinger. The Sixth Circuit later issued an opinion in
Grutter, upholding the admissions program used by the
University of Michigan Law School, and the petitioner in that
case sought a writ of certiorari from this Court. Petitioners
asked this Court to grant certiorari in this case as
[260]
well, despite the fact that the Court of Appeals had not yet
rendered a judgment, so that this Court could address the
constitutionality of the consideration of race in university
admissions in a wider range of circumstances. We did so. See
537 U.S. 1044 (2002).
II
As they have throughout the course of this litigation,
petitioners contend that the University's consideration of race
in its undergraduate admissions decisions violates § 1 of the
Equal Protection Clause of the Fourteenth Amendment,
[Footnote 11] Title VI,[Footnote 12] and 42 U.S.C. § 1981.
[Footnote 13] We consider first whether petitioners have
standing to seek declaratory and injunctive relief, and, finding
that they do, we next consider the merits of their claims.
A
Although no party has raised the issue, JUSTICE STEVENS
argues that petitioners lack Article III standing to seek
injunctive relief with respect to the University's use of race in
undergraduate admissions. He first contends that because
Hamacher did not "actually appl[y] for admission as a transfer
student[,] [h]is claim of future injury is at best 'conjectural or
hypothetical' rather than 'real and immediate.'" Post, at 285
(dissenting opinion). But whether Hamacher "actually applied"
for admission as a transfer student is not
[261]
determinative of his ability to seek injunctive relief in this
case. If Hamacher had submitted a transfer application and
been rejected, he would still need to allege an intent to apply
again in order to seek prospective relief. If JUSTICE
STEVENS means that because Hamacher did not apply to
transfer, he must never really have intended to do so, that
conclusion directly conflicts with the finding of fact entered
by the District Court that Hamacher "intends to transfer to the
University of Michigan when defendants cease the use of race
as an admissions preference." App. 67.[Footnote 14]
It is well established that intent may be relevant to standing in
an equal protection challenge. In Clements v. Fashing, 457
U.S. 957 (1982), for example, we considered a challenge to a
provision of the Texas Constitution requiring the immediate
resignation of certain state officeholders upon their
announcement of candidacy for another office. We concluded
that the plaintiff officeholders had Article III standing because
they had alleged that they would have announced their
candidacy for other offices were it not for the "automatic
resignation" provision they were challenging. Id., at 962;
accord, Turner v. Fouche, 396 U.S. 346, 361-362, n. 23 (1970)
(plaintiff who did not own property had standing to challenge
property ownership requirement for membership on school
board even though there was no evidence that plaintiff had
applied and been rejected); Quinn v. Millsap, 491 U.S. 95,
103, n. 8 (1989) (plaintiffs who did not own property had
standing to challenge property ownership requirement for
membership on government board even though they lacked
standing to challenge the requirement "as applied"). Likewise,
in Northeastern Fla. Chapter, Associated Gen. Contractors of
America v. Jacksonville, 508 U.S. 656 (1993), we considered
whether an association challenging an ordinance that gave
preferential treatment to certain
[262]
minority-owned businesses in the award of city contracts
needed to show that one of its members would have received a
contract absent the ordinance in order to establish standing. In
finding that no such showing was necessary, we explained that
"[t]he 'injury in fact' in an equal protection case of this variety
is the denial of equal treatment resulting from the imposition
of the barrier, not the ultimate inability to obtain the
benefit . . .. And in the context of a challenge to a set-aside
program, the 'injury in fact' is the inability to compete on an
equal footing in the bidding process, not the loss of contract."
Id., at 666. We concluded that in the face of such a barrier,
"[t]o establish standing . . . , a party challenging a set-aside
program like Jacksonville's need only demonstrate that it is
able and ready to bid on contracts and that a discriminatory
policy prevents it from doing so on an equal basis." Ibid.
In bringing his equal protection challenge against the
University's use of race in undergraduate admissions,
Hamacher alleged that the University had denied him the
opportunity to compete for admission on an equal basis. When
Hamacher applied to the University as a freshman applicant,
he was denied admission even though an underrepresented
minority applicant with his qualifications would have been
admitted. See App. to Pet. for Cert. 115a. After being denied
admission, Hamacher demonstrated that he was "able and
ready" to apply as a transfer student should the University
cease to use race in undergraduate admissions. He therefore
has standing to seek prospective relief with respect to the
University's continued use of race in undergraduate
admissions.
JUSTICE STEVENS raises a second argument as to standing.
He contends that the University's use of race in undergraduate
transfer admissions differs from its use of race in
undergraduate freshman admissions, and that therefore
Hamacher lacks standing to represent absent class members
challenging the latter. Post, at 286-287 (dissenting opinion).
[263]
As an initial matter, there is a question whether the relevance
of this variation, if any, is a matter of Article III standing at all
or whether it goes to the propriety of class certification
pursuant to Federal Rule of Civil Procedure 23(a). The parties
have not briefed the question of standing versus adequacy,
however, and we need not resolve the question today:
Regardless of whether the requirement is deemed one of
adequacy or standing, it is clearly satisfied in this case.
[Footnote 15]
From the time petitioners filed their original complaint
through their brief on the merits in this Court, they have
consistently challenged the University's use of race in
undergraduate admissions and its asserted justification of
promoting "diversity." See, e.g., App. 38; Brief for Petitioners
13. Consistent with this challenge, petitioners requested
injunctive relief prohibiting respondents "from continuing to
discriminate on the basis of race." App. 40. They sought to
certify a class consisting of all individuals who were not
members of an underrepresented minority group who either
had applied for admission to the LSA and been rejected or
who intended to apply for admission to the LSA, for all
academic years from 1995 forward. Id., at 35-36. The District
Court determined that the proposed class satisfied the
requirements of the Federal Rules of Civil Procedure,
including the requirements of numerosity, commonality, and
typicality. See Fed. Rule Civ. Proc. 23(a); App. 70. The court
further concluded that Hamacher was an adequate repre-
[264]
sentative for the class in the pursuit of compensatory and
injunctive relief for purposes of Rule 23(a)(4), see id., at 6169,
and found "the record utterly devoid of the presence of . . .
antagonism between the interests of . . . Hamacher, and the
members of the class which [he] seek[s] to represent," id., at
61. Finally, the District Court concluded that petitioners' claim
was appropriate for class treatment because the University's
"'practice of racial discrimination pervasively applied on a
classwide basis.'" Id., at 67. The court certified the class
pursuant to Federal Rule of Civil Procedure 23(b)(2), and
designated Hamacher as the class representative. App. 70.
JUSTICE STEVENS cites Blum v. Yaretsky, 457 U.S. 991
(1982), in arguing that the District Court erred. Post, at 289. In
Blum, we considered a class-action suit brought by Medicaid
beneficiaries. The named representatives in Blum challenged
decisions by the State's Medicaid Utilization Review
Committee (URC) to transfer them to lower levels of care
without, in their view, sufficient procedural safeguards. After
a class was certified, the plaintiffs obtained an order
expanding class certification to include challenges to URC
decisions to transfer patients to higher levels of care as well.
The defendants argued that the named representatives could
not represent absent class members challenging transfers to
higher levels of care because they had not been threatened
with such transfers. We agreed. We noted that "[n]othing in
the record . . . suggests that any of the individual respondents
have been either transferred to more intensive care or
threatened with such transfers." 457 U.S., at 1001. And we
found that transfers to lower levels of care involved a number
of fundamentally different concerns than did transfers to
higher ones. Id., at 1001-1002 (noting, for example, that
transfers to lower levels of care implicated beneficiaries'
property interests given the concomitant decrease in Medicaid
benefits, while transfers to higher levels of care did not).
[265]
In the present case, the University's use of race in
undergraduate transfer admissions does not implicate a
significantly different set of concerns than does its use of race
in undergraduate freshman admissions. Respondents
challenged Hamacher's standing at the certification stage, but
never did so on the grounds that the University's use of race in
undergraduate transfer admissions involves a different set of
concerns than does its use of race in freshman admissions.
Respondents' failure to allege any such difference is simply
consistent with the fact that no such difference exists. Each
year the OUA produces a document entitled "COLLEGE OF
LITERATURE, SCIENCE AND THE ARTS GUIDELINES
FOR ALL TERMS," which sets forth guidelines for all
individuals seeking admission to the LSA, including freshman
applicants, transfer applicants, international student applicants,
and the like. See, e.g., 2 App. in No. 01-1333 etc. (CA6), pp.
507-542. The guidelines used to evaluate transfer applicants
specifically cross-reference factors and qualifications
considered in assessing freshman applicants. In fact, the
criteria used to determine whether a transfer applicant will
contribute to the University's stated goal of diversity are
identical to that used to evaluate freshman applicants. For
example, in 1997, when the class was certified and the District
Court found that Hamacher had standing to represent the class,
the transfer guidelines contained a separate section entitled
"CONTRIBUTION TO A DIVERSE STUDENT BODY." 2
id., at 531. This section explained that any transfer applicant
who could "contribut[e] to a diverse student body" should
"generally be admitted" even with substantially lower
qualifications than those required of other transfer applicants.
Ibid. (emphasis added). To determine whether a transfer
applicant was capable of "contribut[ing] to a diverse student
body," admissions counselors were instructed to determine
whether that transfer applicant met the "criteria as defined in
Section IV of the 'u' category of [the] SCUGA" factors used to
assess
[266]
freshman applicants. Ibid. Section IV of the "u" category,
entitled "Contribution to a Diverse Class," explained that
"[t]he University is committed to a rich educational experience
for its students. A diverse, as opposed to a homogenous,
student population enhances the educational experience for all
students. To insure a diverse class, significant weight will be
given in the admissions process to indicators of students
contribution to a diverse class." 1 id., at 432. These indicators,
used in evaluating freshman and transfer applicants alike, list
being a member of an underrepresented minority group as
establishing an applicant's contribution to diversity. See 3 id.,
at 1133-1134, 1153-1154. Indeed, the only difference between
the University's use of race in considering freshman and
transfer applicants is that all underrepresented minority
freshman applicants receive 20 points and "virtually" all who
are minimally qualified are admitted, while "generally" all
minimally qualified minority transfer applicants are admitted
outright. While this difference might be relevant to a narrow
tailoring analysis, it clearly has no effect on petitioners'
standing to challenge the University's use of race in
undergraduate admissions and its assertion that diversity is a
compelling state interest that justifies its consideration of the
race of its undergraduate applicants.[Footnote 16]
[267]
Particularly instructive here is our statement in General
Telephone Co. of Southwest v. Falcon, 457 U.S. 147 (1982),
that "[i]f [defendant-employer] used a biased testing procedure
to evaluate both applicants for employment and incumbent
employees, a class action on behalf of every applicant or
employee who might have been prejudiced by the test clearly
would satisfy the . . . requirements of Rule 23(a)." Id., at 159,
n. 15 (emphasis added). Here, the District Court found that the
sole rationale the University had provided for any of its race-
based preferences in undergraduate admissions was the
interest in "the educational benefits that result from having a
diverse student body." App. to Pet. for Cert. 8a. And
petitioners argue that an interest in "diversity" is not a
compelling state interest that is ever capable of justifying the
use of race in undergraduate admissions. See, e.g., Brief for
Petitioners 11-13. In sum, the same set of concerns is
implicated by the University's use of race in evaluating all
undergraduate admissions applications under the guidelines.
[Footnote 17] We therefore agree with the District Court's
[268]
carefully considered decision to certify this class-action
challenge to the University's consideration of race in
undergraduate admissions. See App. 67 (" 'It is a singular
policy . . . applied on a classwide basis' "); cf. Coopers &
Lybrand v. Livesay, 437 U.S. 463, 469 (1978) ("[T]he class
determination generally involves considerations that are
enmeshed in the factual and legal issues comprising the
plaintiff's cause of action" (internal quotation marks omitted)).
Indeed, classaction treatment was particularly important in this
case because "the claims of the individual students run the risk
of becoming moot" and the "[t]he class action vehicle . . .
provides a mechanism for ensuring that a justiciable claim is
before the Court." App. 69. Thus, we think it clear that
Hamacher's personal stake, in view of both his past injury and
the potential injury he faced at the time of certification,
demonstrates that he may maintain this class-action challenge
to the University's use of race in undergraduate admissions.
B
Petitioners argue, first and foremost, that the University's use
of race in undergraduate admissions violates the Fourteenth
Amendment. Specifically, they contend that this Court has
only sanctioned the use of racial classifications to remedy
identified discrimination, a justification on which respondents
have never relied. Brief for Petitioners 15-16. Petitioners
further argue that "diversity as a basis for employing racial
preferences is simply too open-ended, illdefined, and
indefinite to constitute a compelling interest capable of
supporting narrowly-tailored means." Id., at 17-18, 40-41. But
for the reasons set forth today in Grutter v. Bollinger, post, at
327-333, the Court has rejected these arguments of petitioners.
[269]
Petitioners alternatively argue that even if the University's
interest in diversity can constitute a compelling state interest,
the District Court erroneously concluded that the University's
use of race in its current freshman admissions policy is
narrowly tailored to achieve such an interest. Petitioners argue
that the guidelines the University began using in 1999 do not
"remotely resemble the kind of consideration of race and
ethnicity that Justice Powell endorsed in Bakke." Brief for
Petitioners 18. Respondents reply that the University's current
admissions program is narrowly tailored and avoids the
problems of the Medical School of the University of
California at Davis program CD. C. Davis) rejected by Justice
Powell.[Footnote 18] They claim that their program "hews
closely" to both the admissions program described by Justice
Powell as well as the Harvard College admissions program
that he endorsed. Brief for Respondent Bollinger et al. 32.
Specifically, respondents contend that the LSA's policy
provides the individualized consideration that "Justice Powell
considered a hallmark of a constitutionally appropriate
admissions program." Id., at 35. For the reasons set out below,
we do not agree.
[270]
It is by now well established that "all racial classifications
reviewable under the Equal Protection Clause must be strictly
scrutinized." Adarand Constructors, Inc. v. Pena, 515 U.S.
200, 224 (1995). This "'standard of review . . . is not
dependent on the race of those burdened or benefited by a
particular classification.'" Ibid. (quoting Richmond v. J. A.
Croson Co., 488 U.S. 469, 494 (1989) (plurality opinion)).
Thus, "any person, of whatever race, has the right to demand
that any governmental actor subject to the Constitution justify
any racial classification subjecting that person to unequal
treatment under the strictest of judicial scrutiny." Adarand,
515 U.S., at 224.
To withstand our strict scrutiny analysis, respondents must
demonstrate that the University's use of race in its current
admissions program employs "narrowly tailored measures that
further compelling governmental interests." Id., at 227.
Because "[r]acial classifications are simply too pernicious to
permit any but the most exact connection between justification
and classification," Fullilove v. Klutznick, 448 U.S. 448, 537
(1980) (STEVENS, J., dissenting), our review of whether such
requirements have been met must entail "'a most searching
examination.'" Adarand, supra, at 223 (quoting Wygant v.
Jackson Bd. of Ed., 476 U.S. 267, 273 (1986) (plurality
opinion of Powell, J.)). We find that the University's policy,
which automatically distributes 20 points, or one-fifth of the
points needed to guarantee admission, to every single
"underrepresented minority" applicant solely because of race,
is not narrowly tailored to achieve the interest in educational
diversity that respondents claim justifies their program.
In Bakke, Justice Powell reiterated that "[p]referring members
of anyone group for no reason other than race or ethnic origin
is discrimination for its own sake." 438 U.S., at 307. He then
explained, however, that in his view it would be permissible
for a university to employ an admissions program in which
"race or ethnic background may be
[271]
deemed a 'plus' in a particular applicant's file." Id., at 317. He
explained that such a program might allow for "[t]he file of a
particular black applicant [to] be examined for his potential
contribution to diversity without the factor of race being
decisive when compared, for example, with that of an
applicant identified as an Italian-American if the latter is
thought to exhibit qualities more likely to promote beneficial
educational pluralism." Ibid. Such a system, in Justice Powell's
view, would be "flexible enough to consider all pertinent
elements of diversity in light of the particular qualifications of
each applicant." Ibid.
Justice Powell's opinion in Bakke emphasized the importance
of considering each particular applicant as an individual,
assessing all of the qualities that individual possesses, and in
turn, evaluating that individual's ability to contribute to the
unique setting of higher education. The admissions program
Justice Powell described, however, did not contemplate that
any single characteristic automatically ensured a specific and
identifiable contribution to a university's diversity. See id., at
315. See also Metro Broadcasting, Inc. v. FCC, 497 U.S. 547,
618 (1990) (O'CONNOR, J., dissenting) (concluding that the
Federal Communications Commission's policy, which
"embodie[d] the related notions . . . that a particular applicant,
by virtue of race or ethnicity alone, is more valued than other
applicants because [the applicant is] 'likely to provide [a]
distinct perspective,'" "impermissibly value[d] individuals"
based on a presumption that "persons think in a manner
associated with their race"). Instead, under the approach
Justice Powell described, each characteristic of a particular
applicant was to be considered in assessing the applicant's
entire application.
The current LSA policy does not provide such individualized
consideration. The LSA's policy automatically distributes 20
points to every single applicant from an "underrepresented
minority" group, as defined by the University. The only
consideration that accompanies this distribution of
[272]
points is a factual review of an application to determine
whether an individual is a member of one of these minority
groups. Moreover, unlike Justice Powell's example, where the
race of a "particular black applicant" could be considered
without being decisive, see Bakke, 438 U.S., at 317, the LSA's
automatic distribution of 20 points has the effect of making
"the factor of race . . . decisive" for virtually every minimally
qualified underrepresented minority applicant. Ibid.[Footnote
19]
Also instructive in our consideration of the LSA's system is
the example provided in the description of the Harvard
College Admissions Program, which Justice Powell both
discussed in, and attached to, his opinion in Bakke. The
example was included to "illustrate the kind of significance
attached to race" under the Harvard College program. Id., at
324. It provided as follows:
"The Admissions Committee, with only a few places left to
fill, might find itself forced to choose between A, the child of
a successful black physician in an academic community with
promise of superior academic performance, and B, a black
who grew up in an inner-city ghetto of semi-literate parents
whose academic achievement was lower but who had
demonstrated energy and leadership as well as an apparently-
abiding interest in black power. If a good number of black
students much like A but few like B had already been
admitted, the Committee might prefer B; and vice versa. If C,
a white student with extraordinary artistic talent, were also
seeking one of the remaining places, his unique quality might
give him an edge over both A and B. Thus, the critical criteria
are often individual qualities or experience not depend-
[273]
ent upon race but sometimes associated with it." Ibid.
(emphasis added).
This example further demonstrates the problematic nature of
the LSA's admissions system. Even if student C's
"extraordinary artistic talent" rivaled that of Monet or Picasso,
the applicant would receive, at most, five points under the
LSA's system. See App. 234-235. At the same time, every
single underrepresented minority applicant, including students
A and B, would automatically receive 20 points for submitting
an application. Clearly, the LSA's system does not offer
applicants the individualized selection process described in
Harvard's example. Instead of considering how the differing
backgrounds, experiences, and characteristics of students A,
B, and C might benefit the University, admissions counselors
reviewing LSA applications would simply award both A and
B 20 points because their applications indicate that they are
African-American, and student C would receive up to 5 points
for his "extraordinary talent."[Footnote 20]
Respondents emphasize the fact that the LSA has created the
possibility of an applicant's file being flagged for
individualized consideration by the ARC. We think that the
flagging program only emphasizes the flaws of the
University's system as a whole when compared to that
described by Justice Powell. Again, students A, B, and C
illustrate the point. First, student A would never be flagged.
This is because, as the University has conceded, the effect of
automatically awarding 20 points is that virtually every
qualified underrepresented minority applicant is admitted.
Student A, an applicant "with promise of superior academic
performance," would certainly fit this description. Thus, the
result of the automatic distribution of 20 points is that the
Univer-
[274]
sity would never consider student Ns individual background,
experiences, and characteristics to assess his individual
"potential contribution to diversity," Bakke, supra, at 317.
Instead, every applicant like student A would simply be
admitted.
It is possible that students Band C would be flagged and
considered as individuals. This assumes that student B was not
already admitted because of the automatic 20-point
distribution, and that student C could muster at least 70
additional points. But the fact that the "review committee can
look at the applications individually and ignore the points,"
once an application is flagged, Tr. of Oral Arg. 42, is of little
comfort under our strict scrutiny analysis. The record does not
reveal precisely how many applications are flagged for this
individualized consideration, but it is undisputed that such
consideration is the exception and not the rule in the operation
of the LSNs admissions program. See App. to Pet. for Cert.
117a ("The ARC reviews only a portion of all of the
applications. The bulk of admissions decisions are executed
based on selection index score parameters set by the EWG").
[Footnote 21] Additionally, this individualized review is only
provided after admissions counselors automatically distribute
the University's version of a "plus" that makes race a decisive
factor for virtually every minimally qualified underrepresented
minority applicant.
[275]
Respondents contend that "[t]he volume of applications and
the presentation of applicant information make it impractical
for [LSA] to use the . . . admissions system" upheld by the
Court today in Grutter. Brief for Respondent Bollinger et al. 6,
n. 8. But the fact that the implementation of a program capable
of providing individualized consideration might present
administrative challenges does not render constitutional an
otherwise problematic system. See J. A. Croson Co., 488 U.S.,
at 508 (citing Frontiero v. Richardson, 411 U.S. 677, 690
(1973) (plurality opinion of Brennan, J.) (rejecting
"'administrative convenience'" as a determinant of
constitutionality in the face of a suspect classification)).
Nothing in Justice Powell's opinion in Bakke signaled that a
university may employ whatever means it desires to achieve
the stated goal of diversity without regard to the limits
imposed by our strict scrutiny analysis.
We conclude, therefore, that because the University's use of
race in its current freshman admissions policy is not narrowly
tailored to achieve respondents' asserted compelling interest in
diversity, the admissions policy violates the Equal Protection
Clause of the Fourteenth Amendment.[Footnote 22] We
further find that the admissions policy also violates Title VI
and
[276]
42 U.S.C. § 1981.[Footnote 23] Accordingly, we reverse that
portion of the District Court's decision granting respondents
summary judgment with respect to liability and remand the
case for proceedings consistent with this opinion.
It is so ordered.
JUSTICE O'CONNOR, concurring.[Footnote *-1]
I
Unlike the law school admissions policy the Court upholds
today in Grutter v. Bollinger, post, p. 306, the procedures
employed by the University of Michigan's (University) Office
of Undergraduate Admissions do not provide for a meaningful
individualized review of applicants. Cf. Regents of Univ. of
Gal. v. Bakke, 438 U.S. 265 (1978) (principal opinion of
Powell, J.). The law school considers the various diversity
qualifications of each applicant, including race, on a case-
bycase basis. See Grutter v. Bollinger, post, at 337-339. By
contrast, the Office of Undergraduate Admissions relies on the
selection index to assign every underrepresented minority
applicant the same, automatic 20-point bonus without
consideration of the particular background, experiences, or
[277]
qualities of each individual applicant. Cf. ante, at 271-272,
273. And this mechanized selection index score, by and large,
automatically determines the admissions decision for each
applicant. The selection index thus precludes admissions
counselors from conducting the type of individualized
consideration the Court's opinion in Grutter, post, at 334,
requires: consideration of each applicant's individualized
qualifications, including the contribution each individual's race
or ethnic identity will make to the diversity of the student
body, taking into account diversity within and among all racial
and ethnic groups. Cf. ante, at 272-273 (citing Bakke, supra, at
324).
On cross-motions for summary judgment, the District Court
held that the admissions policy the University instituted in
1999 and continues to use today passed constitutional muster.
See 122 F. Supp. 2d 811, 827 (ED Mich. 2000). In their
proposed summary of undisputed facts, the parties jointly
stipulated to the admission policy's mechanics. App. to Pet. for
Cert. 116a-118a. When the University receives an application
for admission to its incoming class, an admissions counselor
turns to a Selection Index Worksheet to calculate the
applicant's selection index score out of 150 maximum possible
points-a procedure the University began using in 1998. App.
256. Applicants with a score of over 100 are automatically
admitted; applicants with scores of 95 to 99 are categorized as
"admit or postpone"; applicants with 90-94 points are
postponed or admitted; applicants with 75-89 points are
delayed or postponed; and applicants with 74 points or fewer
are delayed or rejected. The Office of Undergraduate
Admissions extends offers of admission on a rolling basis and
acts upon the applications it has received through periodic
"[m]ass [a]ction[s]." Ibid.
In calculating an applicant's selection index score, counselors
assign numerical values to a broad range of academic factors,
as well as to other variables the University considers important
to assembling a diverse student body, including race. Up to
110 points can be assigned for academic per-
[278]
for mance, and up to 40 points can be assigned for the other,
nonacademic factors. Michigan residents, for example, receive
10 points, and children of alumni receive 4. Counselors may
assign an outstanding essay up to 3 points and may award up
to 5 points for an applicant's personal achievement, leadership,
or public service. Most importantly for this case, an applicant
automatically receives a 20 point bonus if he or she possesses
anyone of the following "miscellaneous" factors: membership
in an underrepresented minority group; attendance at a
predominantly minority or disadvantaged high school; or
recruitment for athletics.
In 1999, the University added another layer of review to its
admissions process. After an admissions counselor has
tabulated an applicant's selection index score, he or she may
"flag" an application for further consideration by an
Admissions Review Committee, which is composed of
members of the Office of Undergraduate Admissions and the
Office of the Provost. App. to Pet. for Cert. 117a. The review
committee meets periodically to discuss the files of "flagged"
applicants not already admitted based on the selection index
parameters. App. 275. After discussing each flagged
application, the committee decides whether to admit, defer, or
deny the applicant. Ibid.
Counselors may flag an applicant for review by the committee
if he or she is academically prepared, has a selection index
score of at least 75 (for non-Michigan residents) or 80 (for
Michigan residents), and possesses one of several qualities
valued by the University. These qualities include "high class
rank, unique life experiences, challenges, circumstances,
interests or talents, socioeconomic disadvantage, and under-
represented race, ethnicity, or geography." App. to Pet. for
Cert. 117a. Counselors also have the discretion to flag an
application if, notwithstanding a high selection index score,
something in the applicant's file suggests that the applicant
may not be suitable for admission. App. 274. Finally, in "rare
circumstances," an admissions counselor
[279]
may flag an applicant with a selection index score below the
designated levels if the counselor has reason to believe from
reading the entire file that the score does not reflect the
applicant's true promise. Ibid.
II
Although the Office of Undergraduate Admissions does assign
20 points to some "soft" variables other than race, the points
available for other diversity contributions, such as leadership
and service, personal achievement, and geographic diversity,
are capped at much lower levels. Even the most outstanding
national high school leader could never receive more than five
points for his or her accomplishments-a mere quarter of the
points automatically assigned to an underrepresented minority
solely based on the fact of his or her race. Of course, as Justice
Powell made clear in Bakke, a university need not "necessarily
accor[d]" all diversity factors "the same weight," 438 U.S., at
317, and the "weight attributed to a particular quality may vary
from year to year depending upon the 'mix' both of the student
body and the applicants for the incoming class," id., at
317318. But the selection index, by setting up automatic,
predetermined point allocations for the soft variables, ensures
that the diversity contributions of applicants cannot be
individually assessed. This policy stands in sharp contrast to
the law school's admissions plan, which enables admissions
officers to make nuanced judgments with respect to the
contributions each applicant is likely to make to the diversity
of the incoming class. See Grutter v. Bollinger, post, at 337
("[T]he Law School's race-conscious admissions program
adequately ensures that all factors that may contribute to
student body diversity are meaningfully considered alongside
race in admissions decisions").
The only potential source of individualized consideration
appears to be the Admissions Review Committee. The
evidence in the record, however, reveals very little about how
[280]
the review committee actually functions. And what evidence
there is indicates that the committee is a kind of afterthought,
rather than an integral component of a system of
individualized review. As the Court points out, it is undisputed
that the" '[committee] reviews only a portion of all of the
applications. The bulk of admissions decisions are executed
based on selection index score parameters set by the
[Enrollment Working Group].'" Ante, at 274 (quoting App. to
Pet. for Cert. 117a). Review by the committee thus represents
a necessarily limited exception to the Office of Undergraduate
Admissions' general reliance on the selection index. Indeed,
the record does not reveal how many applications admissions
counselors send to the review committee each year, and the
University has not pointed to evidence demonstrating that a
meaningful percentage of applicants receives this level of
discretionary review. In addition, eligibility for consideration
by the committee is itself based on automatic cutoff levels
determined with reference to selection index scores. And there
is no evidence of how the decisions are actually made-what
type of individualized consideration is or is not used. Given
these circumstances, the addition of the Admissions Review
Committee to the admissions process cannot offset the
apparent absence of individualized consideration from the
Office of Undergraduate Admissions' general practices.
For these reasons, the record before us does not support the
conclusion that the University's admissions program for its
College of Literature, Science, and the Arts-to the extent that it
considers race-provides the necessary individualized
consideration. The University, of course, remains free to
modify its system so that it does so. Cf. Grutter v. Bollinger,
post, p. 306. But the current system, as I understand it, is a
nonindividualized, mechanical one. As a result, I join the
Court's opinion reversing the decision of the District Court.
[281]
JUSTICE THOMAS, concurring.
I join the Court's opinion because I believe it correctly applies
our precedents, including to day's decision in Grutter v.
Bollinger, post, p. 306. For similar reasons to those given in
my separate opinion in that case, see post, p. 349 (opinion
concurring in part and dissenting in part), however, I would
hold that a State's use of racial discrimination in higher
education admissions is categorically prohibited by the Equal
Protection Clause.
I make only one further observation. The University of
Michigan's College of Literature, Science, and the Arts (LSA)
admissions policy that the Court today invalidates does not
suffer from the additional constitutional defect of allowing
racial "discriminat[ion] among [the] groups" included within
its definition of underrepresented minorities, Grutter, post, at
336 (opinion of the Court); post, at 374 (THOMAS, J.,
concurring in part and dissenting in part), because it awards all
underrepresented minorities the same racial preference. The
LSA policy falls, however, because it does not sufficiently
allow for the consideration of nonracial distinctions among
underrepresented minority applicants. Under to day's
decisions, a university may not racially discriminate between
the groups constituting the critical mass. See post, at 374-375;
Grutter, post, at 329-330 (opinion of the Court) (stating that
such "racial balancing . . . is patently unconstitutional"). An
admissions policy, however, must allow for consideration of
these nonracial distinctions among applicants on both sides of
the single permitted racial classification. See ante, at 272-273
(opinion of the Court); ante, at 276-277 (O'CONNOR, J.,
concurring).
JUSTICE BREYER, concurring in the judgment.
I concur in the judgment of the Court though I do not join its
opinion. I join JUSTICE O'CONNOR'S opinion except insofar
as it joins that of the Court. I join Part I of JUSTICE
GINSBURG'S dissenting opinion, but I do not dissent from
the
[282]
Court's reversal of the District Court's decision. I agree with
JUSTICE GINSBURG that, in implementing the
Constitution's equality instruction, government
decisionmakers may properly distinguish between policies of
inclusion and exclusion, post, at 301, for the former are more
likely to prove consistent with the basic constitutional
obligation that the law respect each individual equally, see
U.S. Const., Arndt. 14.
JUSTICE STEVENS, with whom JUSTICE SOUTER joins,
dissenting.
Petitioners seek forward-looking relief enjoining the
University of Michigan from continuing to use its current
raceconscious freshman admissions policy. Yet unlike the
plaintiff in Grutter v. Bollinger, post, p. 306,[Footnote 2-1] the
petitioners in this case had already enrolled at other schools
before they filed their class-action complaint in this case.
Neither petitioner was in the process of reapplying to
Michigan through the freshman admissions process at the time
this suit was filed, and neither has done so since. There is a
total absence of evidence that either petitioner would receive
any benefit from the prospective relief sought by their lawyer.
While some unidentified members of the class may very well
have standing to seek prospective relief, it is clear that neither
petitioner does. Our precedents therefore require dismissal of
the action.
I
Petitioner Jennifer Gratz applied in 1994 for admission to the
University of Michigan's (University) College of Literature,
Science, and the Arts (LSA) as an undergraduate for the 1995-
1996 freshman class. After the University delayed action on
her application and then placed her name on an extended
waiting list, Gratz decided to attend the University of
Michigan at Dearborn instead; she graduated in 1999.
[283]
Petitioner Patrick Hamacher applied for admission to LSA as
an undergraduate for the 1997-1998 freshman class. After the
University postponed decision on his application and then
placed his name on an extended waiting list, he attended
Michigan State University, graduating in 2001. In the
complaint that petitioners filed on October 14, 1997,
Hamacher alleged that "[h]e intends to apply to transfer [to the
University of Michigan] if the discriminatory admissions
system described herein is eliminated." App. 34.
At the class certification stage, petitioners sought to have
Hamacher represent a class pursuant to Federal Rule of Civil
Procedure 23(b)(2).[Footnote 2-2] See App. 71, n. 3. In
response, Michigan contended that "Hamacher lacks standing
to represent a class seeking declaratory and injunctive relief."
Id., at 63. Michigan submitted that Hamacher suffered "'no
threat of imminent future injury'" given that he had already
enrolled at another undergraduate institution.[Footnote 2-3]
Id., at 64. The District Court rejected Michigan's contention,
concluding that Hamacher had standing to seek injunctive
relief because the complaint alleged that he intended to apply
to Michigan as a transfer student. See id., at 67 ("To the extent
that plaintiff Hamacher reapplies to the University of
Michigan, he will again face the same 'harm' in that race will
continue to be a factor in admissions"). The District Court,
accordingly, certified Hamacher as the sole class
representative and limited the claims of the class to injunctive
and declaratory relief. See id., at 70-71.
In subsequent proceedings, the District Court held that the
1995-1998 admissions system, which was in effect when both
petitioners' applications were denied, was unlawful but
[284]
that Michigan's new 1999-2000 admissions system was
lawful. When petitioners sought certiorari from this Court,
Michigan did not cross-petition for review of the District
Court's judgment concerning the admissions policies that
Michigan had in place when Gratz and Hamacher applied for
admission in 1994 and 1996 respectively. See Brief for
Respondent Bollinger et al. 5, n. 7. Accordingly, we have
before us only that portion of the District Court's judgment
that upheld Michigan's new freshman admissions policy.
II
Both Hamacher and Gratz, of course, have standing to seek
damages as compensation for the alleged wrongful denial of
their respective applications under Michigan's old freshman
admissions system. However, like the plaintiff in Los Angeles
v. Lyons, 461 U.S. 95 (1983), who had standing to recover
damages caused by "chokeholds" administered by the police in
the past but had no standing to seek injunctive relief
preventing future chokeholds, petitioners' past injuries do not
give them standing to obtain injunctive relief to protect third
parties from similar harms. See id., at 102 (" '[P]ast exposure
to illegal conduct does not in itself show a present case or
controversy regarding injunctive relief . . . if unaccompanied
by any continuing, present adverse effects'" (quoting O'Shea v.
Littleton, 414 U.S. 488, 495-496 (1974))). To seek forward-
looking, injunctive relief, petitioners must show that they face
an imminent threat of future injury. See Adarand Constructors,
Inc. v. Pena, 515 U.S. 200, 210-211 (1995). This they cannot
do given that when this suit was filed, neither faced an
impending threat of future injury based on Michigan's new
freshman admissions policy.[Footnote 2-4]
[285]
Even though there is not a scintilla of evidence that the
freshman admissions program now being administered by
respondents will ever have any impact on either Hamacher or
Gratz, petitioners nonetheless argue that Hamacher has a
personal stake in this suit because at the time the complaint
was filed, Hamacher intended to apply to transfer to Michigan
once certain admission policy changes occurred.[Footnote 2-5]
See App. 34; see also Tr. of Oral Arg. 4-5. Petitioners' attempt
to base Hamacher's standing in this suit on a hypothetical
transfer application fails for several reasons. First, there is no
evidence that Hamacher ever actually applied for admission as
a transfer student at Michigan. His claim of future injury is at
best "conjectural or hypothetical" rather than "real and
immediate." O'Shea v. Littleton, 414 U.S., at 494
[286]
(internal quotation marks omitted); see also Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560 (1992).
Second, as petitioners' counsel conceded at oral argument, the
transfer policy is not before this Court and was not addressed
by the District Court. See Tr. of Oral Arg. 4-5 (admitting that
"[t]he transfer admissions policy itself is not before you-the
Court"). Unlike the University's freshman policy, which is
detailed at great length in the Joint Appendix filed with this
Court, the specifics of the transfer policy are conspicuously
missing from the Joint Appendix filed with this Court.
Furthermore, the transfer policy is not discussed anywhere in
the parties' briefs. Nor is it ever even referenced in the District
Court's Dec. 13, 2000, opinion that upheld Michigan's new
freshman admissions policy and struck down Michigan's old
policy. Nonetheless, evidence filed with the District Court by
Michigan demonstrates that the criteria used to evaluate
transfer applications at Michigan differ significantly from the
criteria used to evaluate freshman undergraduate applications.
Of special significance, Michigan's 2000 freshman admissions
policy, for example, provides for 20 points to be added to the
selection index scores of minority applicants. See ante, at 271.
In contrast, Michigan does not use points in its transfer policy;
some applicants, including minority and socioeconomically
disadvantaged applicants, "will generally be admitted" if they
possess certain qualifications, including a 2.5 undergraduate
grade point average (GPA), sophomore standing, and a 3.0
high school GPA. 10 Record 16 (Exh. C). Because of these
differences, Hamacher cannot base his right to complain about
the freshman admissions policy on his hypothetical injury
under a wholly separate transfer policy. For "[i]f the right to
complain of one administrative deficiency automatically
conferred the right to complain of all administrative
deficiencies, any citizen aggrieved in one respect could bring
the whole structure of state administration before the courts
for review." Lewis v. Casey, 518 U.S. 343,
[287]
358-359, n. 6 (1996) (emphasis in original); see also Blum v.
Yaretsky, 457 U.S. 991, 999 (1982) ("[A] plaintiff who has
been subject to injurious conduct of one kind [does not]
possess by virtue of that injury the necessary stake in litigating
conduct of another kind, although similar").[Footnote 2-6]
Third, the differences between the freshman and the transfer
admissions policies make it extremely unlikely, at best, that an
injunction requiring respondents to modify the freshman
admissions program would have any impact on Michigan's
transfer policy. See Allen v. Wright, 468 U.S. 737, 751 (1984)
("[R]elief from the injury must be 'likely' to follow from a
favorable decision"); Schlesinger v. Reservists Comm. to Stop
the War, 418 U.S. 208, 222 (1974) ("[T]he discrete factual
context within which the concrete injury occurred or is
threatened insures the framing of relief no broader than
required by the precise facts to which the court's ruling would
be applied"). This is especially true in light of petitioners'
unequivocal disavowal of any request for equitable relief that
would totally preclude the use of race in the processing of all
admissions applications. See Tr. of Oral Arg. 14-15.
The majority asserts that petitioners "have challenged any use
of race by the University in undergraduate admissions"-
freshman and transfer alike. Ante, at 266, n. 16 (emphasis in
original). Yet when questioned at oral argument about whether
petitioners' challenge would impact both private and public
universities, petitioners' counsel stated: "Your Honor, I want
to be clear about what it is that we're arguing for here today.
We are not suggesting an ab-
[288]
solute rule forbidding any use of race under any
circumstances. What we are arguing is that the interest
asserted here by the University, this amorphous, ill-defined,
unlimited interest in diversity is not a compelling interest." Tr.
of Oral Arg. 14 (emphasis added). In addition, when asked
whether petitioners took the position that the only permissible
use of race is as a remedy for past discrimination, petitioners'
lawyer stated: "I would not go that far . . .. [T]here may be
other reasons. I think they would have to be extraordinary and
rare . . .. " Id., at 15. Consistent with these statements,
petitioners' briefs filed with this Court attack the University's
asserted interest in "diversity" but acknowledge that race could
be considered for remedial reasons. See, e.g., Brief for
Petitioners 16-17.
Because Michigan's transfer policy was not challenged by
petitioners and is not before this Court, see supra, at 286, we
do not know whether Michigan would defend its transfer
policy on diversity grounds, or whether it might try to justify
its transfer policy on other grounds, such as a remedial
interest. Petitioners' counsel was therefore incorrect in
asserting at oral argument that if the University's asserted
interest in "diversity" were to be "struck down as a rationale,
then the law would be [the] same with respect to the transfer
policy as with respect to the original [freshman admissions]
policy." Tr. of Oral Arg. 7-8. And the majority is likewise
mistaken in assuming that "the University's use of race in
undergraduate transfer admissions does not implicate a
significantly different set of concerns than does its use of race
in undergraduate freshman admissions." Ante, at 265. Because
the transfer policy has never been the subject of this suit, we
simply do not know (1) whether Michigan would defend its
transfer policy on "diversity" grounds or some other grounds,
or (2) how the absence of a point system in the transfer policy
might impact a narrow tailoring analysis of that policy.
[289]
At bottom, petitioners' interest in obtaining an injunction for
the benefit of younger third parties is comparable to that of the
unemancipated minor who had no standing to litigate on
behalf of older women in H. L. v. Matheson, 450 U.S. 398,
406-407 (1981), or that of the Medicaid patients transferred to
less intensive care who had no standing to litigate on behalf of
patients objecting to transfers to more intensive care facilities
in Blum v. Yaretsky, 457 U.S., at 1001. To have standing, it is
elementary that the petitioners' own interests must be
implicated. Because neither petitioner has a personal stake in
this suit for prospective relief, neither has standing.
III
It is true that the petitioners' complaint was filed as a class
action and that Hamacher has been certified as the
representative of a class, some of whose members may well
have standing to challenge the LSA freshman admissions
program that is presently in effect. But the fact that "a suit may
be a class action . . . adds nothing to the question of standing,
for even named plaintiffs who represent a class 'must allege
and show that they personally have been injured, not that
injury has been suffered by other, unidentified members of the
class to which they belong and which they purport to
represent.'" Simon v. Eastern Ky. Welfare Rights
Organization, 426 U.S. 26, 40, n. 20 (1976) (quoting Warth v.
Seldin, 422 U.S. 490,502 (1975)); see also 1 A. Conte & H.
Newberg, Class Actions § 2:5 (4th ed. 2002) ("[O]ne cannot
acquire individual standing by virtue of bringing a class
action").[Footnote 2-7] Thus, in Blum, we squarely held that
the interests of members of the class could not satisfy the
requirement that the class representatives have a personal
interest in obtaining the particular equitable relief being
sought. The class in
[290]
Blum included patients who wanted a hearing before being
transferred to facilities where they would receive more
intensive care. The class representatives, however, were in the
category of patients threatened with a transfer to less intensive
care facilities. In explaining why the named class
representatives could not base their standing to sue on the
injury suffered by other members of the class, we stated:
"Respondents suggest that members of the class they represent
have been transferred to higher levels of care as a result of
[utilization review committee] decisions. Respondents,
however, 'must allege and show that they personally have been
injured, not that injury has been suffered by other, unidentified
members of the class to which they belong and which they
purport to represent.' Warth v. Seldin, 422 U.S. 490, 502
(1975). Unless these individuals 'can thus demonstrate the
requisite case or controversy between themselves personally
and [petitioners], "none may seek relief on behalf of himself or
any other member of the class." O'Shea v. Littleton, 414 U.S.
488, 494 (1974).' Ibid." 457 U.S., at 1001, n.13.
Much like the class representatives in Blum, Hamacherthe sole
class representative in this case-cannot meet Article Ill's
threshold personal-stake requirement. While unidentified
members of the class he represents may well have standing to
challenge Michigan's current freshman admissions policy,
Hamacher cannot base his standing to sue on injuries suffered
by other members of the class.
IV
As this case comes to us, our precedents leave us no
alternative but to dismiss the writ for lack of jurisdiction.
Neither petitioner has a personal stake in the outcome of the
case, and neither has standing to seek prospective relief on
behalf of unidentified class members who mayor may not
[291]
have standing to litigate on behalf of themselves. Accordingly,
I respectfully dissent.
JUSTICE SOUTER, with whom JUSTICE GINSBURG joins
as to Part II, dissenting.
I agree with JUSTICE STEVENS that Patrick Hamacher has
no standing to seek declaratory or injunctive relief against a
freshman admissions policy that will never cause him any
harm. I write separately to note that even the Court's new gloss
on the law of standing should not permit it to reach the issue it
decides today. And because a majority of the Court has chosen
to address the merits, I also add a word to say that even if the
merits were reachable, I would dissent from the Court's
judgment.
I
The Court's finding of Article III standing rests on two
propositions: first, that both the University of Michigan's
undergraduate college's transfer policy and its freshman
admissions policy seek to achieve student body diversity
through the "use of race," ante, at 261-263,265-269, and
second, that Hamacher has standing to challenge the transfer
policy on the grounds that diversity can never be a
"compelling state interest" justifying the use of race in any
admissions decision, freshman or transfer, ante, at 269. The
Court concludes that, because Hamacher's argument, if
successful, would seal the fate of both policies, his standing to
challenge the transfer policy also allows him to attack the
freshman admissions policy. Ante, at 266, n. 16 ("[P]etitioners
challenged any use of race by the University to promote
diversity, including through the transfer policy"); ante, at 267,
n. 16 (" '[T]he University considers race for a purpose to
achieve a diversity that we believe is not compelling, and if
that is struck down as a rationale, then the [result] would be
[the] same with respect to the transfer policy as with respect to
the [freshman] admissions policy, Your Honor'" (quoting Tr.
of Oral Arg. 7-8)). I agree with JUSTICE STEVENS'S cri-
[292]
tique that the Court thus ignores the basic principle of Article
III standing that a plaintiff cannot challenge a government
program that does not apply to him. See ante, at 286-287, and
n. 6 (dissenting opinion).[Footnote 3-1]
But even on the Court's indulgent standing theory, the decision
should not go beyond a recognition that diversity can serve as
a compelling state interest justifying race-conscious decisions
in education. Ante, at 268 (citing Grutter v. Bollinger, post, at
327-333). Since, as the Court says, "petitioners did not raise a
narrow tailoring challenge to the transfer policy," ante, at 266,
n. 16, our decision in Grutter is fatal to Hamacher's sole attack
upon the transfer policy, which is the only policy before this
Court that he claims aggrieved him. Hamacher's challenge to
that policy having failed, his standing is presumably spent.
The further question whether the freshman admissions plan is
narrowly tailored to achieving student body diversity remains
legally irrelevant to Hamacher and should await a plaintiff
who is actually hurt by it.[Footnote 3-2]
[293]
II
The cases now contain two pointers toward the line between
the valid and the unconstitutional in race-conscious
admissions schemes. Grutter reaffirms the permissibility of
individualized consideration of race to achieve a diversity of
students, at least where race is not assigned a preordained
value in all cases. On the other hand, Justice Powell's opinion
in Regents of Univ. of Cal. v. Bakke, 438 U.S. 265 (1978),
rules out a racial quota or set-aside, in which race is the sole
fact of eligibility for certain places in a class. Although the
freshman admissions system here is subject to argument on the
merits, I think it is closer to what Grutter approves than to
what Bakke condemns, and should not be held
unconstitutional on the current record.
The record does not describe a system with a quota like the
one struck down in Bakke, which "insulate[d]" all nonminority
candidates from competition from certain seats. Bakke, supra,
at 317 (opinion of Powell, J.); see also Richmond v. J. A.
Croson Co., 488 U.S. 469, 496 (1989) (plurality opinion)
(stating that Bakke invalidated "a plan that completely
eliminated nonminorities from consideration for a specified
percentage of opportunities"). The Bakke plan "focused solely
on ethnic diversity" and effectively told nonminority
applicants that "[n]o matter how strong their qualifications,
quantitative and extracurricular, including their own potential
for contribution to educational diversity, they are never
afforded the chance to compete with applicants from the
preferred groups for the [set-aside] special admissions seats."
Bakke, supra, at 315, 319 (opinion of Powell, J.) (emphasis in
original).
The plan here, in contrast, lets all applicants compete for all
places and values an applicant's offering for any place not only
on grounds of race, but on grades, test scores, strength of high
school, quality of course of study, residence, alumni
relationships, leadership, personal character, socioeconomic
[294]
disadvantage, athletic ability, and quality of a personal essay.
Ante, at 255. A nonminority applicant who scores highly in
these other categories can readily garner a selection index
exceeding that of a minority applicant who gets the 20-point
bonus. Cf. Johnson v. Transportation Agency, Santa Clara
Cty., 480 U.S. 616, 638 (1987) (upholding a program in which
gender "was but one of numerous factors [taken] into account
in arriving at [a] decision" because "[n]o persons are
automatically excluded from consideration; all are able to have
their qualifications weighed against those of other applicants"
(emphasis deleted)).
Subject to one qualification to be taken up below, this scheme
of considering, through the selection index system, all of the
characteristics that the college thinks relevant to student
diversity for everyone of the student places to be filled fits
Justice Powell's description of a constitutionally acceptable
program: one that considers "all pertinent elements of
diversity in light of the particular qualifications of each
applicant" and places each element "on the same footing for
consideration, although not necessarily according them the
same weight." Bakke, supra, at 317. In the Court's own words,
"each characteristic of a particular applicant [is] considered in
assessing the applicant's entire application." Ante, at 271. An
unsuccessful nonminority applicant cannot complain that he
was rejected "simply because he was not the right color"; an
applicant who is rejected because "his combined qualifications
. . . did not outweigh those of the other applicant" has been
given an opportunity to compete with all other applicants.
Bakke, supra, at 318 (opinion of Powell, J.).
The one qualification to this description of the admissions
process is that membership in an underrepresented minority is
given a weight of 20 points on the iSO-point scale. On the face
of things, however, this assignment of specific points does not
set race apart from all other weighted considerations.
Nonminority students may receive 20 points for athletic
ability, socioeconomic disadvantage, attendance at a so-
[295]
cioeconomically disadvantaged or predominantly minority
high school, or at the Provost's discretion; they may also
receive 10 points for being residents of Michigan, 6 for
residence in an underrepresented Michigan county, 5 for
leadership and service, and so on.
The Court nonetheless finds fault with a scheme that
"automatically" distributes 20 points to minority applicants
because "[t]he only consideration that accompanies this
distribution of points is a factual review of an application to
determine whether an individual is a member of one of these
minority groups." Ante, at 271-272. The objection goes to the
use of points to quantify and compare characteristics, or to the
number of points awarded due to race, but on either reading
the objection is mistaken.
The very nature of a college's permissible practice of awarding
value to racial diversity means that race must be considered in
a way that increases some applicants' chances for admission.
Since college admission is not left entirely to inarticulate
intuition, it is hard to see what is inappropriate in assigning
some stated value to a relevant characteristic, whether it be
reasoning ability, writing style, running speed, or minority
race. Justice Powell's plus factors necessarily are assigned
some values. The college simply does by a numbered scale
what the law school accomplishes in its "holistic review,"
Grutter, post, at 337; the distinction does not imply that
applicants to the undergraduate college are denied
individualized consideration or a fair chance to compete on the
basis of all the various merits their applications may disclose.
Nor is it possible to say that the 20 points convert race into a
decisive factor comparable to reserving minority places as in
Bakke. Of course we can conceive of a point system in which
the "plus" factor given to minority applicants would be so
extreme as to guarantee every minority applicant a higher rank
than every nonminority applicant in the university's
admissions system, see 438 U.S., at 319, n. 53 (opinion of
Powell, J.). But petitioners do not have a convincing ar-
[296]
gument that the freshman admissions system operates this
way. The present record obviously shows that nonminority
applicants may achieve higher selection point totals than
minority applicants owing to characteristics other than race,
and the fact that the university admits "virtually every
qualified under-represented minority applicant," App. to Pet.
for Cert. 111a, may reflect nothing more than the likelihood
that very few qualified minority applicants apply, Brief for
Respondent Bollinger et al. 39, as well as the possibility that
self-selection results in a strong minority applicant pool. It
suffices for me, as it did for the District Court, that there are
no Bakke-like set-asides and that consideration of an
applicant's whole spectrum of ability is no more ruled out by
giving 20 points for race than by giving the same points for
athletic ability or socioeconomic disadvantage.
Any argument that the "tailoring" amounts to a set-aside, then,
boils down to the claim that a plus factor of 20 points makes
some observers suspicious, where a factor of 10 points might
not. But suspicion does not carry petitioners' ultimate burden
of persuasion in this constitutional challenge, Wygant v.
Jackson Bd. of Ed., 476 U.S. 267, 287-288 (1986) (plurality
opinion of Powell, J.), and it surely does not warrant
condemning the college's admissions scheme on this record.
Because the District Court (correctly, in my view) did not
believe that the specific point assignment was constitutionally
troubling, it made only limited and general findings on other
characteristics of the university's admissions practice, such as
the conduct of individualized review by the Admissions
Review Committee. 122 F. Supp. 2d 811, 829-830 (ED Mich.
2000). As the Court indicates, we know very little about the
actual role of the review committee. Ante, at 274 ("The record
does not reveal precisely how many applications are flagged
for this individualized consideration [by the committee]"); see
also ante, at 279-280 (O'CONNOR, J., concurring) ("The
evidence in the record . . . reveals very little about how the
review committee actually functions"). The point system
cannot operate as a de facto set-aside if the
[297]
greater admissions process, including review by the
committee, results in individualized review sufficient to meet
the Court's standards. Since the record is quiet, if not silent, on
the case-by-case work of the committee, the Court would be
on more defensible ground by vacating and remanding for
evidence about the committee's specific determinations.
[Footnote 3-3]
Without knowing more about how the Admissions Review
Committee actually functions, it seems especially unfair to
treat the candor of the admissions plan as an Achilles' heel. In
contrast to the college's forthrightness in saying just what plus
factor it gives for membership in an underrepresented
minority, it is worth considering the character of one
alternative thrown up as preferable, because supposedly not
based on race. Drawing on admissions systems used at public
universities in California, Florida, and Texas, the United
States contends that Michigan could get student diversity in
satisfaction of its compelling interest by guaranteeing
admission to a fixed percentage of the top students from each
high school in Michigan. Brief for United States as Amicus
Curiae 18; Brief for United States as Amicus Curiae in Grutter
While there is nothing unconstitutional about such a practice,
it nonetheless suffers from a serious disadvantage.[Footnote 3-
4] It
[298]
is the disadvantage of deliberate obfuscation. The "percentage
plans" are just as race conscious as the point scheme (and
fairly so), but they get their racially diverse results without
saying directly what they are doing or why they are doing it.
In contrast, Michigan states its purpose directly and, if this
were a doubtful case for me, I would be tempted to give
Michigan an extra point of its own for its frankness. Equal
protection cannot become an exercise in which the winners are
the ones who hide the ball.
III
If this plan were challenged by a plaintiff with proper standing
under Article III, I would affirm the judgment of the District
Court granting summary judgment to the college. As it is, I
would vacate the judgment for lack of jurisdiction, and I
respectfully dissent.
JUSTICE GINSBURG, with whom JUSTICE SOUTER joins,
dissenting. [Footnote *-2]
I 316 (1986) (STEVENS, J., dissenting). Actions designed to
Educational institutions, the Court acknowledges, are not
barred from any and all consideration of race when making
admissions decisions. Ante, at 268; see Grutter v. Bollinger,
post, at 326-333. But the Court once again maintains that the
same standard of review controls judicial inspection of all
official race classifications. Ante, at 270 (quoting Adarand
Constructors, Inc. v. Pena, 515 U.S. 200, 224 (1995);
Richmond v. J. A. Croson Co., 488 U.S. 469, 494 (1989)
(plurality opinion)). This insistence on "consistency,"
Adarand, 515 U.S., at 224, would be fitting were our Nation
free of the vestiges of rank discrimination long reinforced by
law, see id., at 274-276, and n. 8 (GINSBURG, J., dissenting).
But we are not far distant from an overtly discriminatory past,
and the effects of centuries of law-sanctioned inequality
remain painfully evident in our communities and schools.
[299]
In the wake "of a system of racial caste only recently ended,"
id., at 273 (GINSBURG, J., dissenting), large disparities
endure. Unemployment,l poverty,2 and access to health care3
vary disproportionately by race. Neighborhoods and schools
remain racially divided.4 African-American and Hispanic
children are all too often educated in poverty-
[300]
stricken and underperforming institutions.5 Adult
AfricanAmericans and Hispanics generally earn less than
whites with equivalent levels of education.6 Equally
credentialed job applicants receive different receptions
depending on their race.7 Irrational prejudice is still
encountered in real estate markets 8 and consumer
transactions.9 "Bias both
[301]
conscious and unconscious, reflecting traditional and
unexamined habits of thought, keeps up barriers that must
come down if equal opportunity and nondiscrimination are
ever genuinely to become this country's law and practice." Id.,
at 274 (GINSBURG, J., dissenting); see generally Krieger,
Civil Rights Perestroika: Intergroup Relations After
Affirmative Action, 86 Calif. L. Rev. 1251, 1276-1291 (1998).
The Constitution instructs all who act for the government that
they may not "deny to any person . . . the equal protection of
the laws." Arndt. 14, § 1. In implementing this equality
instruction, as I see it, government decisionmakers may
properly distinguish between policies of exclusion and
inclusion. See Wygant v. Jackson Bd. of Ed., 476 U.S. 267,
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. See Carter, When Victims Happen To Be Black, 97
Yale L. J. 420, 433-434 (1988) ("[T]o say that two centuries of
struggle for the most basic of civil rights have been mostly
about freedom from racial categorization rather than freedom
from racial oppressio[n] is to trivialize the lives and deaths of
those who have suffered under racism. To pretend . . . that the
issue presented in [Regents of Univ. of Cal. v. Bakke, 438
U.S. 265 (1978)] was the same as the issue in [Brown v. Board
of Education, 347 U.S. 483 (1954)] is to pretend that history
never happened and that the present doesn't exist.").
Our jurisprudence ranks race a "suspect" category, "not
because [race] is inevitably an impermissible classification,
but because it is one which usually, to our national shame, has
been drawn for the purpose of maintaining racial inequality."
Norwalk Core v. Norwalk Redevelopment Agency, 395 F.2d
920, 931-932 (CA2 1968) (footnote omitted). But where race
is considered "for the purpose of achieving equality," id., at
932, no automatic proscription is in order.
[302]
For, as insightfully explained: "The Constitution is both color
blind and color conscious. To avoid conflict with the equal
protection clause, a classification that denies a benefit, causes
harm, or imposes a burden must not be based on race. In that
sense, the Constitution is color blind. But the Constitution is
color conscious to prevent discrimination being perpetuated
and to undo the effects of past discrimination." United States
v. Jefferson County Bd. of Ed., 372 F.2d 836, 876 (CA5 1966)
(Wisdom, J.); see Wechsler, The Nationalization of Civil
Liberties and Civil Rights, Supp. to 12 Tex. Q. 10, 23 (1968)
(Brown may be seen as disallowing racial classifications that
"impl[y] an invidious assessment" while allowing such
classifications when "not invidious in implication" but
advanced to "correct inequalities"). Contemporary human
rights documents draw just this line; they distinguish between
policies of oppression and measures designed to accelerate de
facto equality. See Grutter, post, at 344 (GINSBURG, J.,
concurring) (citing the United Nations-initiated Conventions
on the Elimination of All Forms of Racial Discrimination and
on the Elimination of All Forms of Discrimination against
Women).
The mere assertion of a laudable governmental purpose, of
course, should not immunize a race-conscious measure from
careful judicial inspection. See Jefferson County, 372 F. 2d, at
876 ("The criterion is the relevancy of color to a legitimate
governmental purpose."). Close review is needed "to ferret out
classifications in reality malign, but masquerading as benign,"
Adarand, 515 U.S., at 275 (GINSBURG, J., dissenting), and to
"ensure that preferences are not so large as to trammel unduly
upon the opportunities of others or interfere too harshly with
legitimate expectations of persons in oncepreferred groups,"
id., at 276.
II
Examining in this light the admissions policy employed by the
University of Michigan's College of Literature, Science, and
the Arts (College), and for the reasons well stated by
[303]
JUSTICE SOUTER, I see no constitutional infirmity. See
ante, at 293-298 (dissenting opinion). Like other topranking
institutions, the College has many more applicants for
admission than it can accommodate in an entering class. App.
to Pet. for Cert. 108a. Every applicant admitted under the
current plan, petitioners do not here dispute, is qualified to
attend the College. Id., at ll1a. The racial and ethnic groups to
which the College accords special consideration (African-
Americans, Hispanics, and Native-Americans) historically
have been relegated to inferior status by law and social
practice; their members continue to experience classbased
discrimination to this day, see supra, at 298-30l. There is no
suggestion that the College adopted its current policy in order
to limit or decrease enrollment by any particular racial or
ethnic group, and no seats are reserved on the basis of race.
See Brief for Respondent Bollinger et al. 10; Tr. of Oral Arg.
41-42 (in the range between 75 and 100 points, the review
committee may look at applications individually and ignore
the points). Nor has there been any demonstration that the
College's program unduly constricts admissions opportunities
for students who do not receive special consideration based on
race. Cf. Liu, The Causation Fallacy: Bakke and the Basic
Arithmetic of Selective Admissions, 100 Mich. L. Rev. 1045,
1049 (2002) ("In any admissions process where applicants
greatly outnumber admittees, and where white applicants
greatly outnumber minority applicants, substantial preferences
for minority applicants will not significantly diminish the odds
of admission facing white applicants.").[Footnote 4-10]
[304]
The stain of generations of racial oppression is still visible in
our society, see Krieger, 86 Calif. L. Rev., at 1253, and the
determination to hasten its removal remains vital. One can
reasonably anticipate, therefore, that colleges and universities
will seek to maintain their minority enrollment-and the
networks and opportunities thereby opened to minority
graduates-whether or not they can do so in full candor through
adoption of affirmative action plans of the kind here at issue.
Without recourse to such plans, institutions of higher
education may resort to camouflage. For example, schools
may encourage applicants to write of their cultural traditions
in the essays they submit, or to indicate whether English is
their second language. Seeking to improve their chances for
admission, applicants may highlight the minority group
associations to which they belong, or the Hispanic surnames of
their mothers or grandparents. In turn, teachers'
recommendations may emphasize who a student is as much as
what he or she has accomplished. See, e.g., Steinberg, Using
Synonyms for Race, College Strives for Diversity,
[305]
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.[Footnote
4-11]
***
For the reasons stated, I would affirm the judgment of the
District Court.
[Footnote *]
Briefs of amici curiae urging reversal were filed for the State
of Florida et al. by Charlie Crist, Attorney General of Florida,
Christopher M. Kise, Solicitor General, Louis F. Hubener,
Deputy Solicitor General, and Daniel Woodring; for the Cato
Institute by Robert A. Levy, Timothy Lynch, James L.
Swanson, and Samuel Estreicher; for the Center for Equal
Opportunity et al. by Roger Clegg and C. Mark Pickrell; for
the Center for Individual Freedom by Renee L. Giachino; for
the Center for New Black Leadership by Clint Bolick, William
H. Mellor, and Richard D. Komer; for the Center for the
Advancement of Capitalism by David Reed Burton; for the
Claremont Institute Center for Constitutional Jurisprudence by
Edwin Meese III; for the Michigan Association of Scholars by
William F. Mohrman; for the National Association of Scholars
by William H. Allen, Oscar M. Garibaldi, and Keith A.
Noreika; for the Pacific Legal Foundation by John H. Findley;
and for the Reason Foundation by Martin S. Kaufman.

Briefs of amici curiae urging affirmance were filed for
Members of the United States Congress by Leslie T. Thornton
and Steven M. Schneebaum; for the State of Maryland et al.
by J. Joseph Curran, Jr., Attorney General of Maryland,
Andrew H. Baida, Solicitor General, Mark J. Davis and
William F. Brockman, Assistant Attorneys General, Eliot
Spitzer, Attorney General of New York, Caitlin J. Halligan,
Solicitor General, Michelle Aronowitz, Deputy Solicitor
General, and Julie Mathy Sheridan and Sachin S. Pandya,
Assistant Solicitors General, and by the Attorneys General for
their respective jurisdictions as follows: Terry Goddard of
Arizona, Bill Lockyer of California, Ken Salazar of Colorado,
Richard Blumenthal of Connecticut, Lisa Madigan of Illinois,
Thomas J. Miller of Iowa, G. Steven Rowe of Maine, Thomas
F. Reilly of Massachusetts, Mike Hatch of Minnesota, Mike
McGrath of Montana, Patricia A. Madrid of New Mexico, Roy
Cooper of North Carolina, W A. Drew Edmondson of
Oklahoma, Hardy Myers of Oregon, Patrick Lynch of Rhode
Island, William H. Sorrell of Vermont, Iver A. Stridiron of the
Virgin Islands, Christine Q Gregoire of Washington, Darrell
V. McGraw, Jr., of West Virginia, and Peggy A.
Lautenschlager of Wisconsin; for the State of New Jersey by
David Samson, Attorney General, Jeffrey Burstein, Assistant
Attorney General, and Donna Arons and Anne Marie Kelly,
Deputy Attorneys General; for New York City Council
Speaker A. Gifford Miller et al. by Jack Greenberg and Saul
B. Shapiro; for the City of Philadelphia, Pennsylvania, et al.
by Victor A. Bolden and Nelson A. Diaz; for the American
Educational Research Association et al. by Angelo N.
Ancheta; for the American Jewish Committee et al. by Stewart
D. Aaron, Thomas M. Jancik, Jeffrey P. Sinensky, Kara H.
Stein, and Richard T. Foltin; for the American Psychological
Association by Paul R. Friedman, William F. Sheehan, and
Nathalie F. P. Gilfoyle; for Amherst College et al. by Charles
S. Sims; for the Authors of the Texas Ten Percent Plan by
Rolando L. Rios; for the Bay Mills Indian Community et al.
by Vanya S. Hogen; for the College Board by Janet Pitterle
Holt; for Columbia University et al. by Floyd Abrams, Susan
Buckley, and James J. Mingle; for Harvard University et al. by
Laurence H. Tribe, Jonathan S. Massey, Beverly Ledbetter,
Robert B. Donin, and Wendy S. White; for Howard University
by Janell M. Byrd; for the Lawyers' Committee for Civil
Rights Under Law et al. by John S. Skilton, Barbara R.
Arnwine, Thomas J. Henderson, Dennis C. Hayes, Marcia D.
Greenberger, Judith L. Lichtman, and Jocelyn C. Frye; for the
Leadership Conference on Civil Rights et al. by Robert N.
Weiner and William L. Taylor; for the National Coalition of
Blacks for Reparations in America et al. by Kevin Outterson;
for the National Education Association et al. by Robert H.
Chanin, John M. West, Elliot Mincberg, Larry P. Weinberg,
and John C. Dempsey; for the National Urban League et al. by
William A. Norris and Michael C. Small; for the New
America Alliance by Thomas R. Julin and D. Patricia Wallace;
for Northeastern University by Daryl J. Lapp and Lisa A.
Sinclair; for the NOW Legal Defense and Education Fund et
al. by Wendy R. Weiser and Martha F. Davis; for the United
Negro College Fund et al. by Drew S. Days III and Beth S.
Brinkmann; for the University of Pittsburgh et al. by David C.
Frederick and Sean A. Lev; for Lieutenant General Julius W.
Becton, Jr., et al. by Virginia A. Seitz, Joseph R. Reeder,
Robert P. Charrow, and Kevin E. Stern; for Senator Thomas
A. Daschle et al. by David T. Goldberg and Penny Shane; for
the Hayden Family by Roy C. Howell; and for Glenn C. Loury
et al. by Jeffrey F. Liss and James J. Halpert.
Briefs of amici curiae were filed for Michigan Governor
Jennifer M. Granholm by John D. Pirich and Mark A.
Goldsmith; for the American Federation of Labor and
Congress of Industrial Organizations by Harold Craig Becker,
David J. Strom, Jonathan P. Hiatt, and Daniel W Sherrick; for
the Asian American Legal Foundation by Daniel C. Girard and
Gordon M. Fauth, Jr.; for the Anti-Defamation League by
Martin E. Karlinsky and Steven M. Freeman; for Banks
Broadcasting, Inc., by Elizabeth G. Taylor; for the Black
Women Lawyers Association of Greater Chicago, Inc., by
Sharon E. Jones; for Carnegie Mellon University et al. by W
Thomas McGough, Jr., Kathy M. Banke, Gary L. Kaplan, and
Edward N. Stoner II; for the Equal Employment Advisory
Council by Jeffrey A. Norris and Ann Elizabeth Reesman; for
Exxon Mobil Corp. by Richard R. Brann; for General Motors
Corp. by Kenneth S. Geller, Eileen Penner, and Thomas A.
Gottschalk; for Human Rights Advocates et al. by Constance
de la Vega; for the Massachusetts Institute of Technology et
al. by Donald B. Ayer, Elizabeth Rees, Debra L. Zumwalt, and
Stacey J. Mobley; for the National Asian Pacific American
Legal Consortium et al. by Mark A. Packman, Jonathan M.
Cohen, Karen K. Narasaki, Vincent A. Eng, and Trang Q.
Tran; for the National Council of La Raza et al. by Vilma S.
Martinez and Jeffrey L. Bleich; for the National School
Boards Association et al. by Julie Underwood and Naomi
Gittins; for 3M et al. by David W DeBruin, Deanne E.
Maynard, Daniel Mach, Russell W Porter, Jr., Charles R.
Wall, Martin J. Barrington, Deval L. Patrick, John R. Parker,
Jr., William J. O'Brien, Gary P. Van Graafeiland, Kathryn A.
Oberly, Randall E. Mehrberg, Donald M. Remy, Ben W
Heineman, Jr., Brackett B. Denniston III, Elpidio Villarreal,
Wayne A. Budd, J. Richard Smith, Stewart S. Hudnut, John A.
Shutkin, Theodore L. Banks, Kenneth C. Frazier, David R.
Andrews, Jeffrey B. Kindler, Teresa M. Holland, Charles W.
Gerdts III, John L. Sander, Mark P. Klein, and Stephen P.
Sawyer; for Representative John Conyers, Jr., et al. by Paul J.
Lawrence and Anthony R. Miles; for Duane C. Ellison, by Mr.
Ellison, pro se, and Carl V. Angelis; and for Representative
Richard A. Gephardt et al. by Andrew L. Sandler and Mary L.
Smith.
[Footnote 1]

Although Hamacher indicated that he "intend[ed] to apply to
transfer if the [LSA's] discriminatory admissions system [is]
eliminated," he has since graduated from Michigan State
University. App. 34.
[Footnote 2]
2 The University of Michigan Board of Regents was
subsequently named as the proper defendant in place of the
University and the LSA. See id., at 17.
[Footnote 3]
3 Duderstadt was the president of the University during the
time that Gratz's application was under consideration. He has
been sued in his individual capacity. Bollinger was the
president of the University when Hamacher applied for
admission. He was originally sued in both his individual and
official capacities, but he is no longer the president of the
University. Id., at 35.
[Footnote 4]
A group of Mrican-American and Latino students who applied
for, or intended to apply for, admission to the University, as
well as the Citizens for Mfirmative Action's Preservation, a
nonprofit organization in Michigan, sought to intervene
pursuant to Federal Rule of Civil Procedure 24. See App. 13-
14. The District Court originally denied this request, see id., at
14-15, but the Sixth Circuit reversed that decision. See Gratz
v. Bollinger, 188 F.3d 394 (1999).
[Footnote 5]
The District Court decided also to consider petitioners' request
for injunctive and declaratory relief during the liability phase
of the proceedings. App. 71.
[Footnote 6]
Our description is taken, in large part, from the "Joint
Proposed Summary of Undisputed Facts Regarding
Admissions Process" filed by the parties in the District Court.
App. to Pet. for Cert. 108a-117a.
[Footnote 7]
In 1995, counselors used four such tables for different groups
of applicants: (1) in-state, nonminority applicants; (2) out-of-
state, nonminority applicants; (3) in-state, minority applicants;
and (4) out-of-state, minority applicants. In 1996, only two
tables were used, one for in-state applicants and one for out-
of-state applicants. But each cell on these two tables contained
separate courses of action for minority applicants and
nonminority applicants whose GPA 2 scores and ACT/SAT
scores placed them in that cell.
[Footnote 8]
LSA applicants who are Michigan residents must accumulate
80 points from the selection index criteria to be flagged, while
out-of-state applicants need to accumulate 75 points to be
eligible for such consideration. See App. 257.
[Footnote 9]
The District Court considered and rejected respondent-
intervenors' arguments in a supplemental opinion and order.
See 135 F. Supp. 2d 790 (ED Mich. 2001). The court
explained that respondent-intervenors "failed to present any
evidence that the discrimination alleged by them, or the
continuing effects of such discrimination, was the real
justification for the LSA's race-conscious admissions
programs." Id., at 795. We agree, and to the extent respondent-
intervenors reassert this justification, a justification the
University has never asserted throughout the course of this
litigation, we affirm the District Court's disposition of the
issue.
[Footnote 10]
The District Court determined that respondents Bollinger and
Duderstadt, who were sued in their individual capacities under
Rev. Stat. § 1979, 42 U.S.C. § 1983, were entitled to summary
judgment based on the doctrine of qualified immunity. See
122 F. Supp. 2d, at 833-834. Petitioners have not asked this
Court to review this aspect of the District Court's decision.
The District Court denied the Board of Regents' motion for
summary judgment with respect to petitioners' Title VI claim
on Eleventh Amendment immunity grounds. See id., at 834-
836. Respondents have not asked this Court to review this
aspect of the District Court's decision.
[Footnote 11]
The Equal Protection Clause of the Fourteenth Amendment
explains that "[n]o State shall .&nbps;. . deny to any person
within its jurisdiction the equal protection of the laws."
[Footnote 12]
Title VI provides that "[n]o person in the United States shall,
on the ground of race, color, or national origin, be excluded
from participation in, be denied the benefits of, or be subjected
to discrimination under any program or activity receiving
Federal financial assistance." 42 U.S.C. §2000d.
[Footnote 13]
Section 1981(a) provides:
"All persons within the jurisdiction of the United States shall
have the same right in every State and Territory to make and
enforce contracts, . . . and to the full and equal benefit of all
laws and proceedings for the security of persons and property
as is enjoyed by white citizens."
[Footnote 14]
This finding is further corroborated by Hamacher's request
that the District Court "[r]equir[e] the LSA College to offer
[him] admission as a transfer student." App. 40.
[Footnote 15]
Although we do not resolve here whether such an inquiry in
this case is appropriately addressed under the rubric of
standing or adequacy, we note that there is tension in our prior
cases in this regard. See, e.g., Burns, Standing and Mootness
in Class Actions: A Search for Consistency, 22 U. C. D. L.
Rev. 1239, 1240-1241 (1989); General Telephone Co. of
Southwest v. Falcon, 457 U.S. 147, 149 (1982) (Mexican-
American plaintiff alleging that he was passed over for a
promotion because of race was not an adequate representative
to "maintain a class action on behalf of MexicanAmerican
applicants" who were not hired by the same employer); Blum
v. Yaretsky, 457 U.S. 991 (1982) (class representatives who
had been transferred to lower levels of medical care lacked
standing to challenge transfers to higher levels of care).
[Footnote 16]
Because the University's guidelines concededly use race in
evaluating both freshman and transfer applications, and
because petitioners have challenged any use of race by the
University in undergraduate admissions, the transfer
admissions policy is very much before this Court. Although
petitioners did not raise a narrow tailoring challenge to the
transfer policy, as counsel for petitioners repeatedly explained,
the transfer policy is before this Court in that petitioners
challenged any use of race by the University to promote
diversity, including through the transfer policy. See Tr. of Oral
Arg. 4 ("[T]he [transfer] policy is essentially the same with
respect to the consideration of race"); id., at 5 ("The transfer
policy considers race"); id., at 6 (same); id., at 7 ("[T]he
transfer policy and the [freshman] admissions policy are
fundamentally the same in the respect that they both consider
race in the admissions process in a way that is
discriminatory"); id., at 7-8 ("[T]he University considers race
for a purpose to achieve a diversity that we believe is not
compelling, and if that is struck down as a rationale, then the
[result] would be [the] same with respect to the transfer policy
as with respect to the [freshman] admissions policy, Your
Honor").
[Footnote 17]
Indeed, as the litigation history of this case demonstrates, "the
classaction device save[d] the resources of both the courts and
the parties by permitting an issue potentially affecting every
[class member] to be litigated in an economical fashion."
Califano v. Yamasaki, 442 U.S. 682, 701 (1979). This case
was therefore quite unlike General Telephone Co. of
Southwest v. Falcon, 457 U.S. 147 (1982), in which we found
that the named representative, who had been passed over for a
promotion, was not an adequate representative for absent class
members who were never hired in the first instance. As we
explained, the plaintiff's "evidentiary approaches to the
individual and class claims were entirely different. He
attempted to sustain his individual claim by proving
intentional discrimination. He tried to prove the class claims
through statistical evidence of disparate impact. . . . It is clear
that the maintenance of respondent's action as a class action
did not advance 'the efficiency and economy of litigation
which is a principal purpose of the procedure.''' Id., at 159
(quoting American Pipe & Constr. Co. v. Utah, 414 U.S. 538,
553 (1974)).
[Footnote 18]
U. C. Davis set aside 16 of the 100 seats available in its first
year medical school program for "economically and/or
educationally disadvantaged" applicants who were also
members of designated "minority groups" as defined by the
university. "To the extent that there existed a pool of at least
minimally qualified minority applicants to fill the 16 special
admissions seats, white applicants could compete only for 84
seats in the entering class, rather than the 100 open to minority
applicants." Regents of Univ. of Gal. v. Bakke, 438 U.S. 265,
274, 289 (1978) (principal opinion). Justice Powell found that
the program employed an impermissible twotrack system that
"disregard[ed] . . . individual rights as guaranteed by the
Fourteenth Amendment." Id., at 320. He reached this
conclusion even though the university argued that "the
reservation of a specified number of seats in each class for
individuals from the preferred ethnic groups" was "the only
effective means of serving the interest of diversity." Id., at
315. Justice Powell concluded that such arguments
misunderstood the very nature of the diversity he found to be
compelling. See ibid.
[Footnote 19]
JUSTICE SOUTER recognizes that the LSA's use of race is
decisive in practice, but he attempts to avoid that fact through
unsupported speculation about the self-selection of minorities
in the applicant pool. See post, at 296 (dissenting opinion).
[Footnote 20]
JUSTICE SOUTER is therefore wrong when he contends that
"applicants to the undergraduate college are [not] denied
individualized consideration." Post, at 295. As JUSTICE
O'CONNOR explains in her concurrence, the LSA's program
"ensures that the diversity contributions of applicants cannot
be individually assessed." Post, at 279.
[Footnote 21]
JUSTICE SOUTER is mistaken in his assertion that the Court
"take[s] it upon itself to apply a newly-formulated legal
standard to an undeveloped record." Post, at 297, n. 3. He
ignores the fact that respondents have told us all that is
necessary to decide this case. As explained above, respondents
concede that only a portion of the applications are reviewed by
the ARC and that the "bulk of admissions decisions" are based
on the point system. It should be readily apparent that the
availability of this review, which comes after the automatic
distribution of points, is far more limited than the
individualized review given to the "large middle group of
applicants" discussed by Justice Powell and described by the
Harvard plan in Bakke. 438 U.S., at 316 (internal quotation
marks omitted).
[Footnote 22]
JUSTICE GINSBURG in her dissent observes that "[o]ne can
reasonably anticipate . . . that colleges and universities will
seek to maintain their minority enrollment . . . whether or not
they can do so in full candor through adoption of affirmative
action plans of the kind here at issue." Post, at 304. She goes
on to say that "[i]f honesty is the best policy, surely
Michigan's accurately described, fully disclosed College
affirmative action program is preferable to achieving similar
numbers through winks, nods, and disguises." Post, at 305.
These observations are remarkable for two reasons. First, they
suggest that universities-to whose academic judgment we are
told in Grutter v. Bollinger, post, at 328, we should deferwill
pursue their affirmative-action programs whether or not they
violate the United States Constitution. Second, they
recommend that these violations should be dealt with, not by
requiring the universities to obey the Constitution, but by
changing the Constitution so that it conforms to the conduct of
the universities.
[Footnote 23]
We have explained that discrimination that violates the Equal
Protection Clause of the Fourteenth Amendment committed by
an institution that accepts federal funds also constitutes a
violation of Title VI. See Alexander v. Sandoval, 532 U.S.
275, 281 (2001); United States v. Fordice, 505 U.S. 717, 732,
n. 7 (1992); Alexander v. Choate, 469 U.S. 287, 293 (1985).
Likewise, with respect to § 1981, we have explained that the
provision was "meant, by its broad terms, to proscribe
discrimination in the making or enforcement of contracts
against, or in favor of, any race." McDonald v. Santa Fe Trail
Transp. Co., 427 U.S. 273, 295-296 (1976). Furthermore, we
have explained that a contract for educational services is a
"contract" for purposes of § 1981. See Runyon v. McCrary,
427 U.S. 160, 172 (1976). Finally, purposeful discrimination
that violates the Equal Protection Clause of the Fourteenth
Amendment will also violate § 1981. See General Building
Contractors Assn., Inc. v. Pennsylvania, 458 U.S. 375, 389-
390 (1982).
[Footnote *-1]
JUSTICE BREYER joins this opinion, except for the last
sentence.
[Footnote 2-1]
In challenging the use of race in admissions at Michigan's law
school, Barbara Grutter alleged in her complaint that she "has
not attended any other law school" and that she "still desires to
attend the Law School and become a lawyer." App. in No. 02-
241, p. 30.
[Footnote 2-2]
2 Petitioners did not seek to have Gratz represent the class
pursuant to Federal Rule of Civil Procedure 23(b)(2). See
App. 71, n. 3.
[Footnote 2-3]
In arguing that Hamacher lacked standing, Michigan also
asserted that Hamacher "would need to achieve a 3.0 grade
point average to attempt to transfer to the University of
Michigan." Id., at 64, n. 2. The District Court rejected this
argument, concluding that "Hamacher's present grades are not
a factor to be considered at this time." Id., at 67.
[Footnote 2-4]
In responding to questions about petitioners' standing at oral
argument, petitioners' counsel alluded to the fact that
Michigan might continually change the details of its
admissions policy. See Tr. of Oral Arg. 9. The change in
Michigan's freshman admissions policy, however, is not the
reason why petitioners cannot establish standing to seek
prospective relief. Rather, the reason they lack standing to
seek forward-looking relief is that when this suit was filed,
neither faced a "'real and immediate threat'" of future injury
under Michigan's freshman admissions policy given that they
had both already enrolled at other institutions. Adarand
Constructors, Inc. v. Pena, 515 U.S. 200, 210-211 (1995)
(quoting Los Angeles v. Lyons, 461 U.S. 95, 105 (1983)).
Their decision to obtain a college education elsewhere
distinguishes this case from Allan Bakke's single-minded
pursuit of a medical education from the University of
California at Davis. See Regents of Univ. of Cal. v. Bakke,
438 U.S. 265 (1978); cf. DeFunis v. Odegaard, 416 U.S. 312
(1974) (per curiam).
[Footnote 2-5]
Hamacher clearly can no longer claim an intent to transfer into
Michigan's undergraduate program given that he graduated
from college in 2001. However, this fact alone is not
necessarily fatal to the instant class action because we have
recognized that, if a named class representative has standing at
the time a suit is initiated, class actions may proceed in some
instances following mootness of the named class
representative's claim. See, e. g., Sosna v. Iowa, 419 U.S.
393,402 (1975) (holding that the requisite Article III "case or
controversy" may exist "between a named defendant and a
member of the class represented by the named plaintiff, even
though the claim of the named plaintiff has become moot");
Franks v. Bowman Transp. Co., 424 U.S. 747 (1976). The
problem in this case is that neither Gratz nor Hamacher had
standing to assert a forward-looking, injunctive claim in
federal court at the time this suit was initiated.
[Footnote 2-6]
Under the majority's view of standing, there would be no end
to Hamacher's ability to challenge any use of race by the
University in a variety of programs. For if Hamacher's right to
complain about the transfer policy gives him standing to
challenge the freshman policy, presumably his ability to
complain about the transfer policy likewise would enable him
to challenge Michigan's law school admissions policy, as well
as any other race-based admissions policy used by Michigan.
[Footnote 2-7]
Of course, the injury to Hamacher would give him standing to
claim damages for past harm on behalf of class members, but
he was certified as the class representative for the limited
purpose of seeking injunctive and declaratory relief.
[Footnote 3-1]
The Court's holding arguably exposes a weakness in the rule
of Blum v. Yaretsky, 457 U.S. 991 (1982), that Article III
standing may not be satisfied by the unnamed members of a
duly certified class. But no party has invited us to reconsider
Blum, and I follow JUSTICE STEVENS in approaching the
case on the assumption that Blum is settled law.
[Footnote 3-2]
For that matter, as the Court suggests, narrow tailoring
challenges against the two policies could well have different
outcomes. Ante, at 266. The record on the decisionmaking
process for transfer applicants is understandably thin, given
that petitioners never raised a narrow tailoring challenge
against it. Most importantly, however, the transfer policy does
not use a points-based "selection index" to evaluate transfer
applicants, but rather considers race as one of many factors in
making the general determination whether the applicant would
make a "'contribution to a diverse student body.''' Ante, at 265
(quoting 2 App. in No. 01-1333 etc. (CA6), p. 531
(capitalization omitted)). This limited glimpse into the transfer
policy at least permits the inference that the university engages
in a "holistic review" of transfer applications consistent with
the program upheld today in Grutter v. Bollinger, post, at 337.
[Footnote 3-3]
The Court surmises that the committee does not contribute
meaningfully to the university's individualized review of
applications. Ante, at 273-274. The Court should not take it
upon itself to apply a newly formulated legal standard to an
undeveloped record. Given the District Court's statement that
the committee may examine "any number of applicants,
including applicants other than under-represented minority
applicants," 122 F. Supp. 2d 811, 830 (ED Mich. 2000), it is
quite possible that further factual development would reveal
the committee to be a "source of individualized consideration"
sufficient to satisfy the Court's rule, ante, at 279 (O'CONNOR,
J., concurring). Determination of that issue in the first instance
is a job for the District Court, not for this Court on a record
that is admittedly lacking.
[Footnote 3-4]
Of course it might be pointless in the State of Michigan, where
minorities are a much smaller fraction of the population than
in California, Florida, or Texas. Brief for Respondents
Bollinger et al. 48-49.
[Footnote *-2]
JUSTICE BREYER joins Part I of this opinion.
[Footnote 4-1]
See, e.g., U.S. Dept. of Commerce, Bureau of Census,
Statistical Abstract of the United States: 2002, p. 368 (2002)
(Table 562) (hereinafter Statistical Abstract) (unemployment
rate among whites was 3.7% in 1999, 3.5% in 2000, and 4.2%
in 2001; during those years, the unemployment rate among
African-Americans was 8.0%, 7.6%, and 8.7%, respectively;
among Hispanics, 6.4%, 5.7%, and 6.6%).
[Footnote 4-2]
See, e.g., U.S. Dept of Commerce, Bureau of Census, Poverty
in the United States: 2000, p. 291 (2001) (Table A) (In 2000,
7.5% of non-Hispanic whites, 22.1 % of Mrican-Americans,
10.8% of Asian-Americans, and 21.2% of Hispanics were
living in poverty.); S. Staveteig & A. Wigton, Racial and
Ethnic Disparities: Key Findings from the National Survey of
America's Families 1 (Urban Institute Report B-5, Feb. 2000)
("Blacks, Hispanics, and Native Americans . . . each have
poverty rates almost twice as high as Asians and almost three
times as high as whites.").
[Footnote 4-3]
See, e.g., U.S. Dept. of Commerce, Bureau of Census, Health
Insurance Coverage: 2000, p. 391 (2001) (Table A) (In 2000,
9.7% of non-Hispanic whites were without health insurance,
as compared to 18.5% of MricanAmericans, 18.0% of Asian-
Americans, and 32.0% of Hispanics.); Waidmann & Rajan,
Race and Ethnic Disparities in Health Care Access and
Utilization: An Examination of State Variation, 57 Med. Care
Res. and Rev. 55, 56 (2000) ("On average, Latinos and
African Americans have both worse health and worse access
to effective health care than do non-Hispanic whites . . . . ").
[Footnote 4-4]
See, e.g., U.S. Dept. of Commerce, Bureau of Census, Racial
and Ethnic Residential Segregation in the United States: 1980-
2000 (2002) (documenting residential segregation); E.
Frankenberg, C. Lee, & G. Orfield, A Multiracial Society with
Segregated Schools: Are We Losing the Dream? 4 (Jan. 2003),
http://www.civilrightsproject.harvard.edu/research/reseg03/Ar
eWeLosingtheDream.pdf (all Internet materials as visited June
2, 2003, and available in Clerk of Court's case file) ("[W]hites
are the most segregated group in the nation's public schools;
they attend schools, on average, where eighty percent of the
student body is white."); id., at 28 ("[A]lmost three-fourths of
black and Latino students attend schools that are
predominantly minority . . . . More than one in six black
children attend a school that is 99-100% minority . . . . One in
nine Latino students attend virtually all minority schools.").
[Footnote 4-5]
See, e.g., Ryan, Schools, Race, and Money, 109 Yale L. J.
249, 273-274 (1999) ("Urban public schools are attended
primarily by African-American and Hispanic students";
students who attend such schools are disproportionately poor,
score poorly on standardized tests, and are far more likely to
drop out than students who attend nonurban schools.).
[Footnote 4-6]
See, e.g., Statistical Abstract 140 (Table 211).
[Footnote 4-7]
See, e.g., Holzer, Career Advancement Prospects and
Strategies for Low-Wage Minority Workers, in Low-Wage
Workers in the New Economy 228 (R. Kazis & M. Miller eds.
2001) ("[I]n studies that have sent matched pairs of minority
and white applicants with apparently equal credentials to apply
for jobs, whites routinely get more interviews and job offers
than either black or Hispanic applicants."); M. Bertrand & S.
Mullainathan, Are Emily and Brendan More Employable than
Lakisha and Jamal?: A Field Experiment on Labor Market
Discrimination (Nov. 18, 2002),
http://gsb.uchicago.edu/pdf/bertrand.pdf; Mincy, The Urban
Institute Audit Studies: Their Research and Policy Context, in
Clear and Convincing Evidence: Measurement of
Discrimination in America 165-186 (M. Fix & R. Struyk eds.
1993).
[Footnote 4-8]
See, e.g., M. Turner et al., Discrimination in Metropolitan
Housing Markets: National Results from Phase I HDS 2000,
pp. i, iii (Nov. 2002),
http://www.huduser.org/Publications/pdf/Phase1_Report.pdf
(paired testing in which "two individuals-one minority and the
other white-pose as otherwise identical home seekers, and visit
real estate or rental agents to inquire about the availability of
advertised housing units" revealed that "discrimination still
persists in both rental and sales markets of large metropolitan
areas nationwide"); M. Turner & F. Skidmore, Mortgage
Lending Discrimination: A Review of Existing Evidence 2
(1999) (existing research evidence shows that minority
homebuyers in the United States "face discrimination from
mortgage lending institutions.").
[Footnote 4-9]
See, e.g., Ayres, Further Evidence of Discrimination in New
Car Negotiations and Estimates of its Cause, 94 Mich. L. Rev.
109, 109-110 (1995) (study in which 38 testers negotiated the
purchase of more than 400 automobiles confirmed earlier
finding "that dealers systematically offer lower prices to white
males than to other tester types").
[Footnote 4-10]

The United States points to the "percentage plans" used in

California, Florida, and Texas as one example of a "race-
neutral alternativ[e]" that would permit the College to enroll
meaningful numbers of minority students. Brief for United
States as Amicus Curiae 14; see U.S. Commission on Civil
Rights, Beyond Percentage Plans: The Challenge of Equal
Opportunity in Higher Education 1 (Nov. 2002),
http://www.usccr.gov/pubs/percent2/percent2.pdf>
(percentage plans guarantee admission to state universities for
a fixed percentage of the top students from high schools in the
State). Calling such 10% or 20% plans "race-neutral" seems to
me disingenuous, for they "unquestionably were adopted with
the specific purpose of increasing representation of Mrican-
Americans and Hispanics in the public higher education
system." Brief for Respondent Bollinger et al. 44; see C. Horn
& S. Flores, Percent Plans in College Admissions: A
Comparative Analysis of Three States' Experiences 14-19
(2003),
http://www.civilrightsproject.harvard.edu/research/affirmative
action/tristate.pdf. Percentage plans depend for their
effectiveness on continued racial segregation at the secondary
school level: They can ensure significant minority enrollment
in universities only if the majority-minority high school
population is large enough to guarantee that, in many schools,
most of the students in the top 10% or 20% are minorities.
Moreover, because such plans link college admission to a
single criterion-high school class rank-they create perverse
incentives. They encourage parents to keep their children in
low-performing segregated schools, and discourage students
from taking challenging classes that might lower their grade
point averages. See Selingo, What States Aren't Saying About
the 'X-Percent Solution,' Chronicle of Higher Education, June
2, 2000, p. A31. And even if percentage plans could boost the
sheer numbers of minority enrollees at the undergraduate
level, they do not touch enrollment in graduate and
professional schools.

[Footnote 4-11]

Contrary to the Court's contention, I do not suggest "changing

the Constitution so that it conforms to the conduct of the
universities." Ante, at 275, n. 22. In my view, the Constitution,
properly interpreted, permits government officials to respond
openly to the continuing importance of race. See supra, at 301-
302. Among constitutionally permissible options, those that
candidly disclose their consideration of race seem to me
preferable to those that conceal it.