GRATZ ET AL. v. BOLLINGER ET AL.
No. 02-516
Supreme Court of the United States
June 23, 2003
Argued April 1, 2003
539 U.S. 244
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.*
*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
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
CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.
We granted certiorari in this case to decide whether “the University of Michigan‘s use of racial preferences in undergraduate admissions violate[s] the Equal Protection Clause of the Fourteenth Amendment, Title VI of the Civil Rights Act of 1964 (
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.1
The District Court granted petitioners’ motion for class certification after determining that a class action was appropriate pursuant to
B
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.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-
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.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-of-state minority applicant with Gratz‘s scores would have fallen within a cell calling for admission.
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.
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,8 (2) has achieved a minimum selection index score, and (3) possesses a quality or characteristic important to the University‘s com-
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,
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
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.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
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,11 Title VI,12 and
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
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
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).
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
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).
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.17 We therefore agree with the District Court‘s
B
Petitioners argue, first and foremost, that the University‘s use of race in undergraduate admissions violates the
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 any one 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
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
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-
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.”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-
It is possible that students B and C would be flagged and considered as individuals. This assumes that student B was not already admitted because of the automatic 20-point distribution, and that student C could muster at least 70 additional points. But the fact that the “review committee can look at the applications individually and ignore the points,” once an application is flagged, Tr. of Oral Arg. 42, is of little comfort under our strict scrutiny analysis. The record does not reveal precisely how many applications are flagged for this individualized consideration, but it is undisputed that such consideration is the exception and not the rule in the operation of the LSA‘s admissions program. See App. to Pet. for Cert. 117a (“The ARC reviews only a portion of all of the applications. The bulk of admissions decisions are executed based on selection index score parameters set by the EWG“).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.
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
It is so ordered.
JUSTICE O‘CONNOR, concurring.*
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 Cal. 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-by-case 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
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 Gratz v. Bollinger, 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-
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
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 317-318. 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
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.
I join the Court‘s opinion because I believe it correctly applies our precedents, including today‘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 today‘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
JUSTICE STEVENS, with whom JUSTICE SOUTER joins, dissenting.
Petitioners seek forward-looking relief enjoining the University of Michigan from continuing to use its current race-conscious freshman admissions policy. Yet unlike the plaintiff in Grutter v. Bollinger, post, p. 306,1 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.
At the class certification stage, petitioners sought to have Hamacher represent a class pursuant to
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
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. Peña, 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.4
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, 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“).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-
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.
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“).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
“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.” Id., at 1001, n. 13.
Much like the class representatives in Blum, Hamacher—the sole class representative in this case—cannot meet
IV
As this case comes to us, our precedents leave us no alternative but to dismiss the writ for lack of jurisdiction. Neither petitioner has a personal stake in the outcome of the case, and neither has standing to seek prospective relief on behalf of unidentified class members who may or may not
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
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.2
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 non-minority 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
Subject to one qualification to be taken up below, this scheme of considering, through the selection index system, all of the characteristics that the college thinks relevant to student diversity for every one of the student places to be filled fits Justice Powell‘s description of a constitutionally acceptable program: one that considers “all pertinent elements of diversity in light of the particular qualifications of each applicant” and places each element “on the same footing for consideration, although not necessarily according them the same weight.” Bakke, supra, at 317. 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 150-point scale. On the face of things, however, this assignment of specific points does not set race apart from all other weighted considerations. Nonminority students may receive 20 points for athletic ability, socioeconomic disadvantage, attendance at a so-
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-
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
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 v. Bollinger, O. T. 2002, No. 02-241, pp. 13-17.
While there is nothing unconstitutional about such a practice, it nonetheless suffers from a serious disadvantage.4 It
III
If this plan were challenged by a plaintiff with proper standing under
JUSTICE GINSBURG, with whom JUSTICE SOUTER joins, dissenting.*
I
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. Peña, 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.
*JUSTICE BREYER joins Part I of this opinion.
The Constitution instructs all who act for the government that they may not “deny to any person . . . the equal protection of the laws.”
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.
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 once-preferred 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
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,
*
For the reasons stated, I would affirm the judgment of the District Court.