Grutter v. Bollinger (2003)

Grutter v. Bollinger (2003)

539 U.S. 306

The University of Michigan Law School is one of the nation’s top law schools, receiving more than 3,500 applications each year for a class of around 350 students. Through its official admissions policy, it seeks to achieve student-body diversity through compliance with Regents of University of California. v. Bakke (1978). Focusing on students’ academic ability coupled with a flexible assessment of their talents, experiences, and potential, the policy requires admissions officials to evaluate each applicant based on all the information available in the file, including a personal statement, letters of recommendation, an essay describing how the applicant will contribute to law school life and diversity, and the applicant’s undergraduate grade point average (GPA) and Law School Admissions Test (LSAT) score. Additionally, it requires officials to look beyond grades and scores to so-called soft variables, such as recommenders’ enthusiasm, the quality of the undergraduate institution, the applicant’s essay, and the areas and difficulty of undergraduate course selection. Although the policy does not define diversity solely in terms of racial and ethnic status, it does reaffirm the law school’s commitment to “one particular type of diversity” with special reference to the inclusion of African American, Hispanic American, and Native American students, who otherwise might not be represented in the student body in meaningful numbers. By enrolling a “critical mass” of underrepresented minority students, the policy seeks to ensure their ability to contribute to the law school’s character and to the legal profession.

When the law school denied admission to Barbara Grutter, a white Michigan resident with a 3.8 GPA and 161 LSAT score, she filed this suit, alleging that the law school had discriminated against her on the basis of race in violation of the Fourteenth Amendment, Title VI of the Civil Rights Act of 1964, and 42 U.S.C. §1981; that she was rejected because the law school uses race as a “predominant” factor, giving applicants belonging to certain minority groups a significantly greater chance of admission than students with similar credentials from disfavored racial groups; and that the law school had no compelling interest to justify that use of race. The US District Court for the Eastern District of Michigan found the law school’s use of race as an admissions factor unlawful, but the Sixth Circuit reversed, holding that Justice Powell’s opinion in Bakke was binding precedent, establishing diversity as a compelling state interest, and that the law school’s use of race was narrowly tailored because race was merely a “potential ‘plus’ factor” and because its program was virtually identical to the Harvard admissions program described approvingly by Justice Powell and appended to his Bakke opinion. The Supreme Court granted certiorari.

Opinion of the Court: O’Connor, Stevens, Souter, Breyer, Ginsburg.

Concurring opinion: Ginsburg, Breyer.

Concurring in part and dissenting in part: Scalia, Thomas; Thomas, Scalia.

Dissenting opinions: Rehnquist, Scalia, Kennedy, Thomas; Kennedy.

JUSTICE O’CONNOR delivered the opinion of the Court.

… We granted certiorari to resolve the disagreement among the Courts of Appeals on a question of national importance: Whether diversity is a compelling interest that can justify the narrowly tailored use of race in selecting applicants for admission to public universities. Compare Hopwood v. Texas (CA5 1996) (holding that diversity is not a compelling state interest), with Smith v. University of Wash. Law School (CA9 2000) (holding that it is).

We last addressed the use of race in public higher education over 25 years ago. In the landmark Bakke case, we reviewed a racial set-aside program that reserved 16 out of 100 seats in a medical school class for members of certain minority groups. The decision produced six separate opinions, none of which commanded a majority of the Court. Four Justices would have upheld the program against all attack on the ground that the government can use race to “remedy disadvantages cast on minorities by past racial prejudice” (joint opinion of Brennan, White, Marshall, and Blackmun, JJ.). Four other Justices avoided the constitutional question altogether and struck down the program on statutory grounds (opinion of Stevens, J., joined by Burger, C. J., and Stewart and Rehnquist, JJ.). Justice Powell provided a fifth vote not only for invalidating the set-aside program, but also for reversing the state court’s injunction against any use of race whatsoever. The only holding for the Court in Bakke was that a “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.” Thus, we reversed that part of the lower court’s judgment that enjoined the university “from any consideration of the race of any applicant.”

Since this Court’s splintered decision in Bakke, Justice Powell’s opinion announcing the judgment of the Court has served as the touchstone for constitutional analysis of race-conscious admissions policies. Public and private universities across the Nation have modeled their own admissions programs on Justice Powell’s views on permissible race-conscious policies. We therefore discuss Justice Powell’s opinion in some detail.

Justice Powell began by stating that “the guarantee of equal protection cannot mean one thing when applied to one individual and something else when applied to a person of another color. If both are not accorded the same protection, then it is not equal.” In Justice Powell’s view, when governmental decisions “touch upon an individual’s race or ethnic background, he is entitled to a judicial determination that the burden he is asked to bear on that basis is precisely tailored to serve a compelling governmental interest.” Under this exacting standard, only one of the interests asserted by the university survived Justice Powell’s scrutiny…. Justice Powell approved the university’s use of race to further only one interest: “the attainment of a diverse student body.” With the important proviso that “constitutional limitations protecting individual rights may not be disregarded,” Justice Powell grounded his analysis in the academic freedom that “long has been viewed as a special concern of the First Amendment.” … Justice Powell was, however, careful to emphasize that in his view race “is only one element in a range of factors a university properly may consider in attaining the goal of a heterogeneous student body.” …

… [F]or the reasons set out below, today we endorse Justice Powell’s view that student body diversity is a compelling state interest that can justify the use of race in university admissions….

We have held that all racial classifications imposed by government “must be analyzed by a reviewing court under strict scrutiny.” This means that such classifications are constitutional only if they are narrowly tailored to further compelling governmental interests. “Absent searching judicial inquiry into the justification for such race-based measures,” we have no way to determine what “classifications are ‘benign’ or ‘remedial’ and what classifications are in fact motivated by illegitimate notions of racial inferiority or simple racial politics.”

Strict scrutiny is not “strict in theory, but fatal in fact.” Although all governmental uses of race are subject to strict scrutiny, not all are invalidated by it…. When race-based action is necessary to further a compelling governmental interest, such action does not violate the constitutional guarantee of equal protection so long as the narrow-tailoring requirement is also satisfied.

Context matters when reviewing race-based governmental action under the Equal Protection Clause…. Not every decision influenced by race is equally objectionable and strict scrutiny is designed to provide a framework for carefully examining the importance and the sincerity of the reasons advanced by the governmental decisionmaker for the use of race in that particular context.

With these principles in mind, we turn to the question whether the Law School’s use of race is justified by a compelling state interest. Before this Court, as they have throughout this litigation, respondents assert only one justification for their use of race in the admissions process: obtaining “the educational benefits that flow from a diverse student body.” In other words, the Law School asks us to recognize, in the context of higher education, a compelling state interest in student body diversity.

We first wish to dispel the notion that the Law School’s argument has been foreclosed, either expressly or implicitly, by our affirmative-action cases decided since Bakke. It is true that some language in those opinions might be read to suggest that remedying past discrimination is the only permissible justification for race-based governmental action. See, e.g., Richmond v. J. A. Croson Co. (1989). But we have never held that the only governmental use of race that can survive strict scrutiny is remedying past discrimination. Nor, since Bakke, have we directly addressed the use of race in the context of public higher education. Today, we hold that the Law School has a compelling interest in attaining a diverse student body.

The Law School’s educational judgment that such diversity is essential to its educational mission is one to which we defer. The Law School’s assessment that diversity will, in fact, yield educational benefits is substantiated by respondents and their amici. Our scrutiny of the interest asserted by the Law School is no less strict for taking into account complex educational judgments in an area that lies primarily within the expertise of the university. Our holding today is in keeping with our tradition of giving a degree of deference to a university’s academic decisions, within constitutionally prescribed limits.

We have long recognized that, given the important purpose of public education and the expansive freedoms of speech and thought associated with the university environment, universities occupy a special niche in our constitutional tradition. In announcing the principle of student body diversity as a compelling state interest, Justice Powell invoked our cases recognizing a constitutional dimension, grounded in the First Amendment, of educational autonomy: “The freedom of a university to make its own judgments as to education includes the selection of its student body.” From this premise, Justice Powell reasoned that by claiming “the right to select those students who will contribute the most to the ‘robust exchange of ideas,’” a university “seeks to achieve a goal that is of paramount importance in the fulfillment of its mission.” Our conclusion that the Law School has a compelling interest in a diverse student body is informed by our view that attaining a diverse student body is at the heart of the Law School’s proper institutional mission, and that “good faith” on the part of a university is “presumed” absent “a showing to the contrary.”

As part of its goal of “assembling a class that is both exceptionally academically qualified and broadly diverse,” the Law School seeks to “enroll a ‘critical mass’ of minority students.” The Law School’s interest is not simply “to assure within its student body some specified percentage of a particular group merely because of its race or ethnic origin.” That would amount to outright racial balancing, which is patently unconstitutional. Rather, the Law School’s concept of critical mass is defined by reference to the educational benefits that diversity is designed to produce….

The Law School’s claim of a compelling interest is further bolstered by its amici, who point to the educational benefits that flow from student body diversity. In addition to the expert studies and reports entered into evidence at trial, numerous studies show that student body diversity promotes learning outcomes, and “better prepares students for an increasingly diverse workforce and society, and better prepares them as professionals.”

These benefits are not theoretical but real, as major American businesses have made clear that the skills needed in today’s increasingly global marketplace can only be developed through exposure to widely diverse people, cultures, ideas, and viewpoints. What is more, high-ranking retired officers and civilian leaders of the United States military assert that, “based on [their] decades of experience,” a “highly qualified, racially diverse officer corps … is essential to the military’s ability to fulfill its principle mission to provide national security.” …

Moreover, universities, and in particular, law schools, represent the training ground for a large number of our Nation’s leaders. Individuals with law degrees occupy roughly half the state governorships, more than half the seats in the United States Senate, and more than a third of the seats in the United States House of Representatives. The pattern is even more striking when it comes to highly selective law schools. A handful of these schools accounts for 25 of the 100 United States Senators, 74 United States Courts of Appeals judges, and nearly 200 of the more than 600 United States District Court judges.

In order to cultivate a set of leaders with legitimacy in the eyes of the citizenry, it is necessary that the path to leadership be visibly open to talented and qualified individuals of every race and ethnicity. All members of our heterogeneous society must have confidence in the openness and integrity of the educational institutions that provide this training. As we have recognized, law schools “cannot be effective in isolation from the individuals and institutions with which the law interacts.” Access to legal education (and thus the legal profession) must be inclusive of talented and qualified individuals of every race and ethnicity, so that all members of our heterogeneous society may participate in the educational institutions that provide the training and education necessary to succeed in America.

The Law School does not premise its need for critical mass on “any belief that minority students always (or even consistently) express some characteristic minority viewpoint on any issue.” To the contrary, diminishing the force of such stereotypes is both a crucial part of the Law School’s mission, and one that it cannot accomplish with only token numbers of minority students. Just as growing up in a particular region or having particular professional experiences is likely to affect an individual’s views, so too is one’s own, unique experience of being a racial minority in a society, like our own, in which race unfortunately still matters. The Law School has determined, based on its experience and expertise, that a “critical mass” of underrepresented minorities is necessary to further its compelling interest in securing the educational benefits of a diverse student body.

Even in the limited circumstance when drawing racial distinctions is permissible to further a compelling state interest, government is still “constrained in how it may pursue that end: The means chosen to accomplish the [government’s] asserted purpose must be specifically and narrowly framed to accomplish that purpose. The purpose of the narrow tailoring requirement is to ensure that “the means chosen ‘fit’ … the compelling goal so closely that there is little or no possibility that the motive for the classification was illegitimate racial prejudice or stereotype.”

Since Bakke, we have had no occasion to define the contours of the narrow-tailoring inquiry with respect to race-conscious university admissions programs. That inquiry must be calibrated to fit the distinct issues raised by the use of race to achieve student body diversity in public higher education….

To be narrowly tailored, a race-conscious admissions program cannot use a quota system—it cannot “insulate each category of applicants with certain desired qualifications from competition with all other applicants.” Instead, a university may consider race or ethnicity only as a “‘plus’ in a particular applicant’s file,” without “insulating the individual from comparison with all other candidates for the available seats.” In other words, an admissions program must be “flexible enough to consider all pertinent elements of diversity in light of the particular qualifications of each applicant, and to place them on the same footing for consideration, although not necessarily according them the same weight.”

We find that the Law School’s admissions program bears the hallmarks of a narrowly tailored plan. As Justice Powell made clear in Bakke, truly individualized consideration demands that race be used in a flexible, nonmechanical way. It follows from this mandate that universities cannot establish quotas for members of certain racial groups or put members of those groups on separate admissions tracks. Nor can universities insulate applicants who belong to certain racial or ethnic groups from the competition for admission. Universities can, however, consider race or ethnicity more flexibly as a “plus” factor in the context of individualized consideration of each and every applicant.

We are satisfied that the Law School’s admissions program, like the Harvard plan described by Justice Powell, does not operate as a quota. Properly understood, a “quota” is a program in which a certain fixed number or proportion of opportunities are “reserved exclusively for certain minority groups.” …

Justice Powell’s distinction between the medical school’s rigid 16-seat quota and Harvard’s flexible use of race as a “plus” factor is instructive. Harvard certainly had minimum goals for minority enrollment, even if it had no specific number firmly in mind. What is more, Justice Powell flatly rejected the argument that Harvard’s program was “the functional equivalent of a quota” merely because it had some “‘plus’” for race, or gave greater “weight” to race than to some other factors, in order to achieve student body diversity.

The Law School’s goal of attaining a critical mass of underrepresented minority students does not transform its program into a quota. As the Harvard plan described by Justice Powell recognized, there is of course “some relationship between numbers and achieving the benefits to be derived from a diverse student body, and between numbers and providing a reasonable environment for those students admitted.” …

That a race-conscious admissions program does not operate as a quota does not, by itself, satisfy the requirement of individualized consideration. When using race as a “plus” factor in university admissions, a university’s admissions program must remain flexible enough to ensure that each applicant is evaluated as an individual and not in a way that makes an applicant’s race or ethnicity the defining feature of his or her application. The importance of this individualized consideration in the context of a race-conscious admissions program is paramount.

Here, the Law School engages in a highly individualized, holistic review of each applicant’s file, giving serious consideration to all the ways an applicant might contribute to a diverse educational environment. The Law School affords this individualized consideration to applicants of all races. There is no policy, either de jure or de facto, of automatic acceptance or rejection based on any single “soft” variable. Unlike the program at issue in Gratz v. Bollinger, the Law School awards no mechanical, predetermined diversity “bonuses” based on race or ethnicity. Like the Harvard plan, the Law School’s admissions policy “is flexible enough to consider all pertinent elements of diversity in light of the particular qualifications of each applicant, and to place them on the same footing for consideration, although not necessarily according them the same weight.”

We also find that, like the Harvard plan Justice Powell referenced in Bakke, the Law School’s race-conscious admissions program adequately ensures that all factors that may contribute to student body diversity are meaningfully considered alongside race in admissions decisions. With respect to the use of race itself, all underrepresented minority students admitted by the Law School have been deemed qualified. By virtue of our Nation’s struggle with racial inequality, such students are both likely to have experiences of particular importance to the Law School’s mission, and less likely to be admitted in meaningful numbers on criteria that ignore those experiences….

Petitioner and the United States argue that the Law School’s plan is not narrowly tailored because race-neutral means exist to obtain the educational benefits of student body diversity that the Law School seeks. We disagree. Narrow tailoring does not require exhaustion of every conceivable race-neutral alternative. Nor does it require a university to choose between maintaining a reputation for excellence or fulfilling a commitment to provide educational opportunities to members of all racial groups…. We agree with the Court of Appeals that the Law School sufficiently considered workable race-neutral alternatives. The District Court took the Law School to task for failing to consider race-neutral alternatives such as “using a lottery system” or “decreasing the emphasis for all applicants on undergraduate GPA and LSAT scores.” But these alternatives would require a dramatic sacrifice of diversity, the academic quality of all admitted students, or both….

We acknowledge that “there are serious problems of justice connected with the idea of preference itself.” Narrow tailoring, therefore, requires that a race-conscious admissions program not unduly harm members of any racial group…. We are satisfied that the Law School’s admissions program does not…. [I]n the context of its individualized inquiry into the possible diversity contributions of all applicants, the Law School’s race-conscious admissions program does not unduly harm nonminority applicants.

We are mindful, however, that “[a] core purpose of the Fourteenth Amendment was to do away with all governmentally imposed discrimination based on race.” Accordingly, race-conscious admissions policies must be limited in time. This requirement reflects that racial classifications, however compelling their goals, are potentially so dangerous that they may be employed no more broadly than the interest demands. Enshrining a permanent justification for racial preferences would offend this fundamental equal protection principle. We see no reason to exempt race-conscious admissions programs from the requirement that all governmental use of race must have a logical end point. The Law School, too, concedes that all “race-conscious programs must have reasonable durational limits.”

In the context of higher education, the durational requirement can be met by sunset provisions in race-conscious admissions policies and periodic reviews to determine whether racial preferences are still necessary to achieve student body diversity…. We take the Law School at its word that it would “like nothing better than to find a race-neutral admissions formula” and will terminate its race-conscious admissions program as soon as practicable. It has been 25 years since Justice Powell first approved the use of race to further an interest in student body diversity in the context of public higher education. Since that time, the number of minority applicants with high grades and test scores has indeed increased. We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.

In summary, the Equal Protection Clause does not prohibit the Law School’s narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body. Consequently, petitioner’s statutory claims based on Title VI and 42 U.S.C. §1981 also fail. The judgment of the Court of Appeals for the Sixth Circuit, accordingly, is affirmed.

JUSTICE GINSBURG, with whom JUSTICE BREYER joins, concurring.

The Court’s observation that race-conscious programs “must have a logical end point” accords with the international understanding of the office of affirmative action. The International Convention on the Elimination of All Forms of Racial Discrimination, ratified by the United States in 1994 endorses “special and concrete measures to ensure the adequate development and protection of certain racial groups or individuals belonging to them, for the purpose of guaranteeing them the full and equal enjoyment of human rights and fundamental freedoms.” But such measures, the Convention instructs, “shall in no case entail as a consequence the maintenance of unequal or separate rights for different racial groups after the objectives for which they were taken have been achieved.”

The Court further observes that “it has been 25 years since Justice Powell first approved the use of race to further an interest in student body diversity in the context of public higher education.” For at least part of that time, however, the law could not fairly be described as “settled,” and in some regions of the Nation, overtly race-conscious admissions policies have been proscribed. See Hopwood v. Texas(1996). Moreover, it was only 25 years before Bakke that this Court declared public school segregation unconstitutional, a declaration that, after prolonged resistance, yielded an end to a law-enforced racial caste system, itself the legacy of centuries of slavery. See Brown v. Board of Education (1954).

It is well documented that conscious and unconscious race bias, even rank discrimination based on race, remain alive in our land, impeding realization of our highest values and ideals. As to public education, data for the years 2000–2001 show that 71.6% of African-American children and 76.3% of Hispanic children attended a school in which minorities made up a majority of the student body. And schools in predominantly minority communities lag far behind others measured by the educational resources available to them.

However strong the public’s desire for improved education systems may be, it remains the current reality that many minority students encounter markedly inadequate and unequal educational opportunities…. From today’s vantage point, one may hope, but not firmly forecast, that over the next generation’s span, progress toward nondiscrimination and genuinely equal opportunity will make it safe to sunset affirmative action.

THE CHIEF JUSTICE, with whom JUSTICE SCALIA, JUSTICE KENNEDY, and JUSTICE THOMAS join, dissenting.

… The Law School claims it must take the steps it does to achieve a “‘critical mass’” of underrepresented minority students. But its actual program bears no relation to this asserted goal. Stripped of its “critical mass” veil, the Law School’s program is revealed as a naked effort to achieve racial balancing….

Before the Court’s decision today, we consistently applied the same strict scrutiny analysis regardless of the government’s purported reason for using race and regardless of the setting in which race was being used…. Although the Court recites the language of our strict scrutiny analysis, its application of that review is unprecedented in its deference.

Respondents’ asserted justification for the Law School’s use of race in the admissions process is “obtaining ‘the educational benefits that flow from a diverse student body.’” They contend that a “critical mass” of underrepresented minorities is necessary to further that interest. Respondents and school administrators explain generally that “critical mass” means a sufficient number of underrepresented minority students to achieve several objectives: To ensure that these minority students do not feel isolated or like spokespersons for their race; to provide adequate opportunities for the type of interaction upon which the educational benefits of diversity depend; and to challenge all students to think critically and reexamine stereotypes. These objectives indicate that “critical mass” relates to the size of the student body. Respondents further claim that the Law School is achieving “critical mass.”

In practice, the Law School’s program bears little or no relation to its asserted goal of achieving “critical mass.” Respondents explain that the Law School seeks to accumulate a “critical mass” of eachunderrepresented minority group. But the record demonstrates that the Law School’s admissions practices with respect to these groups differ dramatically and cannot be defended under any consistent use of the term “critical mass.”

From 1995 through 2000, the Law School admitted between 1,130 and 1,310 students. Of those, between 13 and 19 were Native American, between 91 and 108 were African Americans, and between 47 and 56 were Hispanic. If the Law School is admitting between 91 and 108 African Americans in order to achieve “critical mass,” thereby preventing African-American students from feeling “isolated or like spokespersons for their race,” one would think that a number of the same order of magnitude would be necessary to accomplish the same purpose for Hispanics and Native Americans…. In order for this pattern of admission to be consistent with the Law School’s explanation of “critical mass,” one would have to believe that the objectives of “critical mass” offered by respondents are achieved with only half the number of Hispanics and one-sixth the number of Native Americans as compared to African Americans. But respondents offer no race-specific reasons for such disparities. Instead, they simply emphasize the importance of achieving “critical mass,” without any explanation of why that concept is applied differently among the three underrepresented minority groups.

These different numbers, moreover, come only as a result of substantially different treatment among the three underrepresented minority groups…. [I]n 2000, 12 Hispanics who scored between a 159–160 on the LSAT and earned a GPA of 3.00 or higher applied for admission and only 2 were admitted. Meanwhile, 12 African Americans in the same range of qualifications applied for admission and all 12 were admitted. Likewise, that same year, 16 Hispanics who scored between a 151–153 on the LSAT and earned a 3.00 or higher applied for admission and only 1 of those applicants was admitted. Twenty-three similarly qualified African Americans applied for admission and 14 were admitted.

These statistics have a significant bearing on petitioner’s case. Respondents have never offered any race-specific arguments explaining why significantly more individuals from one underrepresented minority group are needed in order to achieve “critical mass” or further student body diversity. They certainly have not explained why Hispanics, who they have said are among “the groups most isolated by racial barriers in our country,” should have their admission capped out in this manner….

Only when the “critical mass” label is discarded does a likely explanation for these numbers emerge. The Court states that the Law School’s goal of attaining a “critical mass” of underrepresented minority students is not an interest in merely “‘assuring within its student body some specified percentage of a particular group merely because of its race or ethnic origin.’” The Court recognizes that such an interest “would amount to outright racial balancing, which is patently unconstitutional.” The Court concludes, however, that the Law School’s use of race in admissions, consistent with Justice Powell’s opinion in Bakke, only pays “‘some attention to numbers.’”

But the correlation between the percentage of the Law School’s pool of applicants who are members of the three minority groups and the percentage of the admitted applicants who are members of these same groups is far too precise to be dismissed as merely the result of the school paying “some attention to [the] numbers.” … [F]rom 1995 through 2000 the percentage of admitted applicants who were members of these minority groups closely tracked the percentage of individuals in the school’s applicant pool who were from the same groups…. For example, in 1995, when 9.7% of the applicant pool was African American, 9.4% of the admitted class was African American. By 2000, only 7.5% of the applicant pool was African American, and 7.3% of the admitted class was African American. This correlation is striking…. The tight correlation between the percentage of applicants and admittees of a given race, therefore, must result from careful race based planning by the Law School. It suggests a formula for admission based on the aspirational assumption that all applicants are equally qualified academically, and therefore that the proportion of each group admitted should be the same as the proportion of that group in the applicant pool….

I do not believe that the Constitution gives the Law School such free rein in the use of race. The Law School has offered no explanation for its actual admissions practices and, unexplained, we are bound to conclude that the Law School has managed its admissions program, not to achieve a “critical mass,” but to extend offers of admission to members of selected minority groups in proportion to their statistical representation in the applicant pool. But this is precisely the type of racial balancing that the Court itself calls “patently unconstitutional.”

Finally, I believe that the Law School’s program fails strict scrutiny because it is devoid of any reasonably precise time limit on the Law School’s use of race in admissions…. The Court suggests a possible 25-year limitation on the Law School’s current program. Respondents, on the other hand, remain more ambiguous, explaining that “the Law School of course recognizes that race-conscious programs must have reasonable durational limits, and the Sixth Circuit properly found such a limit in the Law School’s resolve to cease considering race when genuine race-neutral alternatives become available.” These discussions of a time limit are the vaguest of assurances. In truth, they permit the Law School’s use of racial preferences on a seemingly permanent basis. Thus, an important component of strict scrutiny—that a program be limited in time—is casually subverted. The Court, in an unprecedented display of deference under our strict scrutiny analysis, upholds the Law School’s program despite its obvious flaws. We have said that when it comes to the use of race, the connection between the ends and the means used to attain them must be precise. But here the flaw is deeper than that; it is not merely a question of “fit” between ends and means. Here the means actually used are forbidden by the Equal Protection Clause of the Constitution.

JUSTICE SCALIA, with whom JUSTICE THOMAS joins, concurring in part and dissenting in part.

The “educational benefit” that the University of Michigan seeks to achieve by racial discrimination consists, according to the Court, of “‘cross-racial understanding’” and “‘better preparation of students for an increasingly diverse workforce and society,’” all of which is necessary not only for work, but also for good “citizenship.” This is not, of course, an “educational benefit” on which students will be graded on their Law School transcript (Works and Plays Well with Others: B1) or tested by the bar examiners (Q: Describe in 500 words or less your cross-racial understanding). For it is a lesson of life rather than law—essentially the same lesson taught to (or rather learned by, for it cannot be “taught” in the usual sense) people three feet shorter and twenty years younger than the full-grown adults at the University of Michigan Law School, in institutions ranging from Boy Scout troops to public-school kindergartens. If properly considered an “educational benefit” at all, it is surely not one that is either uniquely relevant to law school or uniquely “teachable” in a formal educational setting. And therefore: If it is appropriate for the University of Michigan Law School to use racial discrimination for the purpose of putting together a “critical mass” that will convey generic lessons in socialization and good citizenship, surely it is no less appropriate—indeed, particularly appropriate—for the civil service system of the State of Michigan to do so. There, also, those exposed to “critical masses” of certain races will presumably become better Americans, better Michiganders, better civil servants. And surely private employers cannot be criticized—indeed, should be praised—if they also “teach” good citizenship to their adult employees through a patriotic, all-American system of racial discrimination in hiring. The nonminority individuals who are deprived of a legal education, a civil service job, or any job at all by reason of their skin color will surely understand.

Unlike a clear constitutional holding that racial preferences in state educational institutions are impermissible, or even a clear anticonstitutional holding that racial preferences in state educational institutions are OK, today’s Grutter-Gratz split double header seems perversely designed to prolong the controversy and the litigation. Some future lawsuits will presumably focus on whether the discriminatory scheme in question contains enough evaluation of the applicant “as an individual” and sufficiently avoids “separate admissions tracks” to fall under Grutter rather than Gratz. Some will focus on whether a university has gone beyond the bounds of a “‘good faith effort’” and has so zealously pursued its “critical mass” as to make it an unconstitutional de facto quota system, rather than merely “‘a permissible goal.’” Other lawsuits may focus on whether, in the particular setting at issue, any educational benefits flow from racial diversity. Still other suits may challenge the bona fides of the institution’s expressed commitment to the educational benefits of diversity that immunize the discriminatory scheme in Grutter. (Tempting targets, one would suppose, will be those universities that talk the talk of multiculturalism and racial diversity in the courts but walk the walk of tribalism and racial segregation on their campuses—through minority-only student organizations, separate minority housing opportunities, separate minority student centers, even separate minority-only graduation ceremonies.) And still other suits may claim that the institution’s racial preferences have gone below or above the mystical Grutter-approved “critical mass.” Finally, litigation can be expected on behalf of minority groups intentionally short changed in the institution’s composition of its generic minority “critical mass.” I do not look forward to any of these cases. The Constitution proscribes government discrimination on the basis of race, and state-provided education is no exception.

JUSTICE THOMAS, with whom JUSTICE SCALIA joins, concurring in part and dissenting in part.

Frederick Douglass, speaking to a group of abolitionists almost 140 years ago, delivered a message lost on today’s majority:

In regard to the colored people, there is always more that is benevolent, I perceive, than just, manifested towards us. What I ask for the negro is not benevolence, not pity, not sympathy, but simply justice. The American people have always been anxious to know what they shall do with us…. I have had but one answer from the beginning. Do nothing with us! Your doing with us has already played the mischief with us. Do nothing with us! If the apples will not remain on the tree of their own strength, if they are wormeaten at the core, if they are early ripe and disposed to fall, let them fall! … And if the negro cannot stand on his own legs, let him fall also. All I ask is, give him a chance to stand on his own legs! Let him alone! … Your interference is doing him positive injury.” What the Black Man Wants: An Address Delivered in Boston, Massachusetts, on 26 January 1865, reprinted in 4 The Frederick Douglass Papers 59, 68 (J. Blassingame & J. McKivigan, eds. 1991). (emphasis in original)

Like Douglass, I believe blacks can achieve in every avenue of American life without the meddling of university administrators. Because I wish to see all students succeed whatever their color, I share, in some respect, the sympathies of those who sponsor the type of discrimination advanced by the University of Michigan Law School (Law School). The Constitution does not, however, tolerate institutional devotion to the status quo in admissions policies when such devotion ripens into racial discrimination. Nor does the Constitution countenance the unprecedented deference the Court gives to the Law School, an approach inconsistent with the very concept of “strict scrutiny.”

No one would argue that a university could set up a lower general admission standard and then impose heightened requirements only on black applicants. Similarly, a university may not maintain a high admission standard and grant exemptions to favored races. The Law School, of its own choosing, and for its own purposes, maintains an exclusionary admissions system that it knows produces racially disproportionate results. Racial discrimination is not a permissible solution to the self-inflicted wounds of this elitist admissions policy.

The majority upholds the Law School’s racial discrimination not by interpreting the people’s Constitution, but by responding to a faddish slogan of the cognoscenti. Nevertheless, I concur in part in the Court’s opinion. First, I agree with the Court insofar as its decision, which approves of only one racial classification, confirms that further use of race in admissions remains unlawful. Second, I agree with the Court’s holding that racial discrimination in higher education admissions will be illegal in 25 years. I respectfully dissent from the remainder of the Court’s opinion and the judgment, however, because I believe that the Law School’s current use of race violates the Equal Protection Clause and that the Constitution means the same thing today as it will in 300 months….

Unlike the majority, I seek to define with precision the interest being asserted by the Law School before determining whether that interest is so compelling as to justify racial discrimination. The Law School maintains that it wishes to obtain “educational benefits that flow from student body diversity,” … One must consider the Law School’s refusal to entertain changes to its current admissions system that might produce the same educational benefits. The Law School adamantly disclaims any race-neutral alternative that would reduce “academic selectivity,” which would in turn “require the Law School to become a very different institution, and to sacrifice a core part of its educational mission.”

In other words, the Law School seeks to improve marginally the education it offers without sacrificing too much of its exclusivity and elite status. The proffered interest that the majority vindicates today, then, is not simply “diversity.” Instead the Court upholds the use of racial discrimination as a tool to advance the Law School’s interest in offering a marginally superior education while maintaining an elite institution. Unless each constituent part of this state interest is of pressing public necessity, the Law School’s use of race is unconstitutional. I find each of them to fall far short of this standard.

A close reading of the Court’s opinion reveals that all of its legal work is done through one conclusory statement: The Law School has a “compelling interest in securing the educational benefits of a diverse student body.” No serious effort is made to explain how these benefits fit with the state interests the Court has recognized (or rejected) as compelling, or to place any theoretical constraints on an enterprising court’s desire to discover still more justifications for racial discrimination….

Justice Powell’s opinion in Bakke and the Court’s decision today rest on the fundamentally flawed proposition that racial discrimination can be contextualized so that a goal, such as classroom aesthetics [defined by Justice Thomas elsewhere in his opinion to mean the Law School’s wish “to have a certain appearance, from the shape of the desks and tables in its classrooms to the color of the students sitting at them.”], can be compelling in one context but not in another. This “we know it when we see it” approach to evaluating state interests is not capable of judicial application. Today, the Court insists on radically expanding the range of permissible uses of race to something as trivial (by comparison) as the assembling of a law school class. I can only presume that the majority’s failure to justify its decision by reference to any principle arises from the absence of any such principle.

Under the proper standard, there is no pressing public necessity in maintaining a public law school at all and, it follows, certainly not an elite law school. Likewise, marginal improvements in legal education do not qualify as a compelling state interest.

While legal education at a public university may be good policy or otherwise laudable, it is obviously not a pressing public necessity when the correct legal standard is applied. Additionally, circumstantial evidence as to whether a state activity is of pressing public necessity can be obtained by asking whether all States feel compelled to engage in that activity. Evidence that States, in general, engage in a certain activity by no means demonstrates that the activity constitutes a pressing public necessity, given the expansive role of government in today’s society. The fact that some fraction of the States reject a particular enterprise, however, creates a presumption that the enterprise itself is not a compelling state interest. In this sense, the absence of a public, American Bar Association (ABA) accredited, law school in Alaska, Delaware, Massachusetts, New Hampshire, and Rhode Island provides further evidence that Michigan’s maintenance of the Law School does not constitute a compelling state interest.

As the foregoing makes clear, Michigan has no compelling interest in having a law school at all, much less an elite one. Still, even assuming that a State may, under appropriate circumstances, demonstrate a cognizable interest in having an elite law school, Michigan has failed to do so here….

The only cognizable state interests vindicated by operating a public law school are, therefore, the education of that State’s citizens and the training of that State’s lawyers…. The Law School today, however, does precious little training of those attorneys who will serve the citizens of Michigan. In 2002, graduates of the University of Michigan Law School made up less than 6% of applicants to the Michigan bar, even though the Law School’s graduates constitute nearly 30% of all law students graduating in Michigan. Less than 16% of the Law School’s graduating class elects to stay in Michigan after law school. Thus, while a mere 27% of the Law School’s 2002 entering class are from Michigan, only half of these, it appears, will stay in Michigan.

In sum, the Law School trains few Michigan residents and overwhelmingly serves students, who, as lawyers, leave the State of Michigan…. The Law School’s decision to be an elite institution does little to advance the welfare of the people of Michigan or any cognizable interest of the State of Michigan.

Again, the fact that few States choose to maintain elite law schools raises a strong inference that there is nothing compelling about elite status…. The Court never explicitly holds that the Law School’s desire to retain the status quo in “academic selectivity” is itself a compelling state interest, and, as I have demonstrated, it is not. Therefore, the Law School should be forced to choose between its classroom aesthetic and its exclusionary admissions system—it cannot have it both ways….

Moreover one would think, in light of the Court’s decision in United States v. Virginia (1996), that before being given license to use racial discrimination, the Law School would be required to radically reshape its admissions process, even to the point of sacrificing some elements of its character. In Virginia, a majority of the Court, without a word about academic freedom, accepted the all-male Virginia Military Institute’s (VMI) representation that some changes in its “adversative” method of education would be required with the admission of women, but did not defer to VMI’s judgment that these changes would be too great. Instead, the Court concluded that they were “manageable.” That case involved sex discrimination, which is subjected to intermediate, not strict, scrutiny. So in Virginia, where the standard of review dictated that greater flexibility be granted to VMI’s educational policies than the Law School deserves here, this Court gave no deference. Apparently where the status quo being defended is that of the elite establishment—here the Law School—rather than a less fashionable Southern military institution, the Court will defer without serious inquiry and without regard to the applicable legal standard.

Virginia is also notable for the fact that the Court relied on the “experience” of formerly single-sex institutions, such as the service academies, to conclude that admission of women to VMI would be “manageable.” Today, however, the majority ignores the “experience” of those institutions that have been forced to abandon explicit racial discrimination in admissions.

The sky has not fallen at Boalt Hall at the University of California, Berkeley, for example. Prior to Proposition 209’s adoption which bars the State from “granting preferential treatment … on the basis of race … in the operation of … public education,” Boalt Hall enrolled 20 blacks and 28 Hispanics in its first-year class for 1996. In 2002, without deploying express racial discrimination in admissions, Boalt’s entering class enrolled 14 blacks and 36 Hispanics. Total underrepresented minority student enrollment at Boalt Hall now exceeds 1996 levels. Apparently the Law School cannot be counted on to be as resourceful. The Court is willfully blind to the very real experience in California and elsewhere, which raises the inference that institutions with “reputations for excellence” rivaling the Law School’s have satisfied their sense of mission without resorting to prohibited racial discrimination….

… [I]n the national debate on racial discrimination in higher education admissions, much has been made of the fact that elite institutions utilize a so-called “legacy” preference to give the children of alumni an advantage in admissions. This, and other, exceptions to a “true” meritocracy give the lie to protestations that merit admissions are in fact the order of the day at the Nation’s universities. The Equal Protection Clause does not, however, prohibit the use of unseemly legacy preferences or many other kinds of arbitrary admissions procedures. What the Equal Protection Clause does prohibit are classifications made on the basis of race. So while legacy preferences can stand under the Constitution, racial discrimination cannot. I will not twist the Constitution to invalidate legacy preferences or otherwise impose my vision of higher education admissions on the Nation. The majority should similarly stay its impulse to validate faddish racial discrimination the Constitution clearly forbids.

Similarly no modern law school can claim ignorance of the poor performance of blacks, relatively speaking, on the Law School Admissions Test (LSAT). Nevertheless, law schools continue to use the test and then attempt to “correct” for black underperformance by using racial discrimination in admissions so as to obtain their aesthetic student body. The Law School’s continued adherence to measures it knows produce racially skewed results is not entitled to deference by this Court. The Law School itself admits that the test is imperfect, … [a]nd the Law School’s amici cannot seem to agree on the fundamental question whether the test itself is useful.

Having decided to use the LSAT, the Law School must accept the constitutional burdens that come with this decision. The Law School may freely continue to employ the LSAT and other allegedly merit-based standards in whatever fashion it likes. What the Equal Protection Clause forbids, but the Court today allows, is the use of these standards hand-in-hand with racial discrimination. An infinite variety of admissions methods are available to the Law School. Considering all of the radical thinking that has historically occurred at this country’s universities, the Law School’s intractable approach toward admissions is striking.

The Court will not even deign to make the Law School try other methods, however, preferring instead to grant a 25-year license to violate the Constitution. And the same Court that had the courage to order the desegregation of all public schools in the South now fears, on the basis of platitudes rather than principle, to force the Law School to abandon a decidedly imperfect admissions regime that provides the basis for racial discrimination.

… I must contest the notion that the Law School’s discrimination benefits those admitted as a result of it…. [N]owhere in any of the filings in this Court is any evidence that the purported “beneficiaries” of this racial discrimination prove themselves by performing at (or even near) the same level as those students who receive no preferences.

The silence in this case is deafening to those of us who view higher education’s purpose as imparting knowledge and skills to students, rather than a communal, rubber-stamp, credentialing process. The Law School is not looking for those students who, despite a lower LSAT score or undergraduate grade point average, will succeed in the study of law. The Law School seeks only a facade—it is sufficient that the class looks right, even if it does not perform right….

Beyond the harm the Law School’s racial discrimination visits upon its test subjects, no social science has disproved the notion that this discrimination “engenders attitudes of superiority or, alternatively, provokes resentment among those who believe that they have been wronged by the government’s use of race.” “These programs stamp minorities with a badge of inferiority and may cause them to develop dependencies or to adopt an attitude that they are ‘entitled’ to preferences.”

It is uncontested that each year, the Law School admits a handful of blacks who would be admitted in the absence of racial discrimination. Who can differentiate between those who belong and those who do not? The majority of blacks are admitted to the Law School because of discrimination, and because of this policy all are tarred as undeserving. This problem of stigma does not depend on determinacy as to whether those stigmatized are actually the “beneficiaries” of racial discrimination. When blacks take positions in the highest places of government, industry, or academia, it is an open question today whether their skin color played a part in their advancement. The question itself is the stigma—because either racial discrimination did play a role, in which case the person may be deemed “otherwise unqualified,” or it did not, in which case asking the question itself unfairly marks those blacks who would succeed without discrimination. Is this what the Court means by “visibly open”? …

The Court also holds that racial discrimination in admissions should be given another 25 years before it is deemed no longer narrowly tailored to the Law School’s fabricated compelling state interest. While I agree that in 25 years the practices of the Law School will be illegal, they are, for the reasons I have given, illegal now. The majority does not and cannot rest its time limitation on any evidence that the gap in credentials between black and white students is shrinking or will be gone in that timeframe. In recent years there has been virtually no change, for example, in the proportion of law school applicants with LSAT scores of 165 and higher who are black. In 1993 blacks constituted 1.1% of law school applicants in that score range, though they represented 11.1% of all applicants. In 2000 the comparable numbers were 1.0% and 11.3%. No one can seriously contend, and the Court does not, that the racial gap in academic credentials will disappear in 25 years. Nor is the Court’s holding that racial discrimination will be unconstitutional in 25 years made contingent on the gap closing in that time….

For the immediate future, however, the majority has placed its imprimatur on a practice that can only weaken the principle of equality embodied in the Declaration of Independence and the Equal Protection Clause. “Our Constitution is color-blind, and neither knows nor tolerates classes among citizens.” Plessy v. Ferguson (1896) (Harlan, J., dissenting). It has been nearly 140 years since Frederick Douglass asked the intellectual ancestors of the Law School to “do nothing with us!” and the Nation adopted the Fourteenth Amendment. Now we must wait another 25 years to see this principle of equality vindicated. I therefore respectfully dissent from the remainder of the Court’s opinion and the judgment.