*1 OF THE OF REGENTS UNIVERSITY CALIFORNIA v.
BAKKE Argued No. 76-811. October 1977 Decided June *3 Powell, J., announced the Court’s judgment and filed opinion an expressing his views of case, in I, III-A, Parts and V-C of which White, J., joined; and in I Parts and V-C of which BreNNAN, Marshall, and BlacemuN, JJ., joined. BreNNAN, White, Marshall, and Blace- dis- judgment part in concurring in MUN, JJ., opinion filed an J., post, Marshall, White, J., post, p. 379, part, post, p. senting 324. SteveNS, post, separate opinions. J., p. 402, filed BlackmuN, p. 387, and dissenting judgment part concurring in the J., opinion filed an joined, J., RehNQUist, JJ., Burger, and Stewart and part, C. in which post, p. 408. him on Cox petitioner. for With
Archibald argued the cause Owens, Mishkin, Donald L. Jack B. were Paul J. the briefs Reidhaar.
Reynold Colvin and filed briefs for H. the cause argued respondent. McCree
Solicitor General argued for the United the cause Attorney States as amicus curiae. With him on the briefs were Solici Bell, Attorney Days, Deputy General General Assistant Wallace, Dunsay Sil Landsberg, tor General Brian K. Jessica ver, Eisenstein, Miriam and Vincent O’Rourke.* R. F. by Gorton, urging amici curiae
*Briefs of reversal were filed Slade Attor- Attorney General, ney General, Wilson, B. and James Senior Assistant Washington al.; by Gora, M. Larson, et E. Richard Joel State of Jay Marson, Rosen, Okrand, Dorsen, C. Fred Norman Charles Sanford Ginsburg, Ruth and Frank Askin for the American Civil Liberties Bader by Edgar Cahn, Camper Cahn, al.; S. Jean S. Union et and Robert Catz for Law; by William Jack Chow for the Asian American the Antioch School Assn, Bay Area; Pye, McKay, Bar A. Kenneth Robert B. Greater Feller, David E. and Ernest Gellhorn for the Association of American *4 Myers Schools; by Law John Holt for the Association of American Medi- Assn, by Colleges; Jerome B. and Peter Roos cal Fcdk for the Bar of San Assn, Margolin by Ephraim al.; Francisco et for the Black Law Students University California, Berkeley Law; by at the School of John T. Baker University by School; for the Black Law Students Union of Yale Law Annamay Sheppard Hyman T. and Jonathan M. for the Board Gover- Rutgers, University Jersey, al.; by nors of State of New et Robert J. Willey University Chapter for the Cleveland State Black American Assn.; by Harding, Law John Mason Rosenthal, Students Albert J. Daniel Brest, Siena, Steiner, Poliak, Iris James V. Louis H. Michael I. Sovem and University al.; by et Herbert for Columbia 0. Reid for Howard Univer- Harry Slagle sity; by B. L. Reese and Orin for the Law School Admission Council; by Jenner, Jr., Stephen Poliak, Marshall, Albert E. J. Burke
Mr. Justice Powell announced the judgment of the Court. This case presents challenge to the special admissions program of the petitioner, the Medical School of the University of California at Davis, which is designed to assure the admis- Redlich, William, Norman Robert A. Murphy, and E. Caldwell for the Lawyers’ Committee for Civil Rights Law; Under by Alice Daniel and James E. Coleman, Jr., for the Legal Corp.; by Services Nathaniel R. Jones, Colley, Nathaniel S. Stanley Assn, and Goodman for the National for the Advancement of Colored People; by Jack Greenberg, James M. III, Nabrit Charles Ralston, S. Schnapper, Eric and David E. Kendall for Legal NAACP Defense and Educational Fund, Inc.; by Stephen V. Assn, Bomse for the National Minority al.; by et Contractors Richard Sobol, B. Wright Marian Edelman, Stephen P. Berzon, Joseph L. Rauh, Jr., for the National Council of Churches of Christ in the United al.; States by et Barbara Morris, A. Joan Bertin Lowy, and H. Diana Greene for the Employment National Project, Law Inc.; by Herbert 0. Reid Clay and J. Smith, Jr., for the National Medical Assn., Inc., ah; et by Robert Hermann for the Puerto Legal Rican Defense and Education al.; Fund et by Robert Sedler, Allen Lesnick, Howard and Arval A. Morris for the Society of American Teachers; Law for the American Medical Assn.; Student and for the on Legal Council Opportunity. Education Briefs of amici curiae urging affirmance were by filed Lawrence A. Polt- Wayne rock and Giampietro B. for the American Federation of Teachers; by Abraham Goldstein, S. Nathan Z. Dershowitz, Arthur J. Gajarsa, Thad- deus L. Kowalski, Anthony J. Fornelli, Howard L. Greenberger, Samuel Rabinove, Themis Anastos, N. Julian E. Kulas, and Alan M. Dershowitz for the American Jewish Committee al; by et McNeill Stokes and Ira J. Smotherman, Jr., for the American Assn.; Subcontractors by Philip B. Kurland, Daniel D. Polsby, Larry M. Lavinsky, Arnold Forster, Dennis Rapps, Anthony J. Fornelli, Leonard Greenwald, and David I. Ashe for the Anti-Defamation League of B’nai ah; B’rith et by Charles Bakaly G. and Lawrence B. Kraus for the Chamber of Commerce of the United States; by Roger A. Clark, Jerome K. Tankel, and Glen R. Murphy for the Fraternal Order of al.; Police et by Judith R. Cohn for the Order Italy Sons of America; by Ronald A. Zumbrun, John H. Findley, and William Harvey F. for the Legal Pacific Foundation; by Benjamin Vinar Caplan David I. Queens for Jewish Community al.; Council et by Jennings P. Felix Young Americans for Freedom. Briefs of amici curiae were filed Matthew W. Finkin for the Ameri- Assn, can of University Professors; by John W. Finley, Jr., Michael *5 minority certain from students of number specified of a sion respond- sustained of California Court Superior The groups. violated program petitioner’s holding challenge, ent’s Rights Act Civil of the VI Title Constitution, California Protection Equal seq., and the 200Ód et § 42 U. C.S. enjoined The court Amendment. Fourteenth of the Clause the race race or respondent’s considering from petitioner re- It decisions. making admissions applicant any other Medi- to the admission respondent’s order however, fused, burden his carried he had holding that School, cal con- for the but admitted been have would that he proving Supreme Court statutory violations. and stitutional judg- court’s trial of the portions those affirmed California unlawful program and special admissions declaring the ment any appli- race of considering the from petitioner enjoining Dowd for the Edward H. Theberge, and Cannon, Leonard J. Blinick, John by al.; Integrity et Ken- and Nondiscrimination Academic on Committee Ronald Douglas McDowell, Williams, S. and McGuiness, E. Robert C. neth E. Council; by Advisory Charles Employment Equal for M. Green by California; Comm’n of Employment Practice the Fair for Wilson Department of Laekner, Director A. for Obledo Jerome G. Mario Roos, Martinez, and Peter D. by S. ah; California, et Vilma Health and Defense Legal Mexican American Santiago for the Ralph Abascal Assn, of by for National al.; S. Goodwin Eva Fund et Educational Confer- S. Hinds for the National Officers; by Lennox Action Affirmative Ginsburg for the National Fund by for Lawyers; David Black ence R. Echo- Wabaunsee, Students; by A. John Walter Minority Engineering Law Students American for the Native W. Fredericks Hawk, Thomas and Broderick, by Joseph A. al; et Davis University of California Ferguson II, Harry E. DeJarmon, E. LeMarquis James Brown, Calvin Smith for Marsh, Jr., James W. Harmon, A. William Groves, H. John Assn, Walentyno- by F. Lawyers; Leonard of Black Carolina the North al.; by Daniel Luevano and M. Congress et Polish American for the wicz Assn, by al.; et Students Black Law UCLA E. for John McDermott Ginger, Branton, Jr., Fagan Ann Sam pro se; by Leo Henry A. Waxman al.; Cobbs, D., et Sperber M. M. for R. Price Rosenwein, Laurence Spitler Galliano; by T. Daniel Ralph J. Nolan for John S. Hoy. Timothy J.
cant.† It modified portion that of the judgment re denying spondent’s requested injunction and directed the trial court to order his admission.
For in the reasons stated the I following opinion, believe so much that judgment the the court California as holds petitioner’s special admissions program unlawful directs and respondent that be admitted to the Medical School must be affirmed. For the expressed separate reasons in opinion, my Brothers The Chief Justice, Justice Stewart, Mr. Mr. Justice Rehnquist, and Mr. Justice concur in this Stevens judgment. judgment
† Mk views as Justice SteveNS the of the California court prohibiting limited only passing upon the consideration of race in application. Post, Bakke’s however, remembered, at 408-411. It must be petitioner that cross-complained declaratory here in the trial court for judgment special program that its was constitutional and lost. The trial judgment special program court’s that the was unlawful was affirmed by Supreme the opinion California Court in an which left no doubt that holding petitioner’s the reason for its was use of race in consideration any application. Moreover, candidate’s explaining in scope of its holding, quite clearly petitioner court prohibited stated that from taking any way making race into account in admissions decisions: University
“In addition, may properly does, as it in fact consider other in evaluating applicant, factors an personal such as the interview, recom- mendations, character, relating profession matters to the needs of the society, applicant’s professional such as an goals. In short, by employed University standards for admission constitutionally are not except they infirm to the extent racially discriminatory are utilized in a Disadvantaged manner. applicants of eligible all races must be sympathetic consideration, may applicant rejected and no be because of race, his in favor of another qualified, who is less measured standards applied regard reiterate, without to race. We in view of the dissent’s misinterpretation, compel University only we do not to utilize objective highest ‘the academic credentials’ as the criterion for admission.” 34, 54-55, (1976) (footnote 18 Cal. 3d 2d omitted). P. explicit This statement it unreasonable to makes assume that the reach of judgment California court’s can be limited in suggested by the manner Mr. Justice SteveNS. following
I conclude for the reasons stated also portion judgment enjoining of the court’s opinion in its petitioner according any from consideration race process expressed must reversed. For reasons admissions my Brothers separate opinions, Mr. Brennan, Mr. Justice Mr. Mr. White, Marshall, Justice Justice Justice judgment. concur in this Blackmun *7 in in part part. and reversed
Affirmed ‡ I University of California at Davis The Medical School In opened entering in 1968 with an class of 50 students. entering students, size of the class was increased to 100 for program at which it remains. No disad- level admissions vantaged minority opened, students existed when the school no blacks, and the first class Asians but no contained three next Mexican-Americans, and no American Indians. Over the years, faculty special program two devised a admissions representation “disadvantaged” increase the students special program each Medical School class.1 The consisted BreNNAN, White, Marshall, Justice Mr. Justice Mr. Justice ‡Mr. join opinion. and Mr. Justice BlackmuN I Parts and V-C of this Mr. joins opinion. III-A also Part of this Justice White applicants entering Material distributed to for the class in 1973 special program described the admissions as follows: “A special Committee, up subcommittee of the Admissions made faculty minority groups, and applications medical students from evaluates economically educationally backgrounds. from disadvantaged and/or The applicant may designate requests application on the form he or she categorically such an evaluation. Ethnic minorities are not considered Program they disadvantaged under the Task Force unless are from back- grounds. goals 1) range goal Our are: A and short the identification potential recruitment of candidates for admission to medical in the school future, 2) long-range goal near Our is to stimulate career interest in professions among junior high high health school students. receiving pertinent
“After all applicants information selected will receive a separate system admissions operating coordination with the regular process. admissions
Under the regular admissions procedure, a candidate could submit application his to the Medical School beginning in July year preceding the year academic admission was sought. Record 149. Because the large number of applications,2 the admissions committee screened each one to select candidates for further consideration. Candidates whose overall undergraduate grade point averages fell below 2.5 on a scale of 4.0 were summarily rejected. Id., at 63. About a letter inviting them to our School of Medicine in Davis for an interview. are interviews conducted faculty least one member and one student member of the Task Force Committee. Recommendations are then made to the Admissions Committee of the medical school. Some of the Task Faculty Force are also members of the Admissions Committee.
“Long-range goals approached will be by meeting with counselors and students of large schools with minority populations, as well as with local youth and adult community groups. “Applications for financial aid are only available applicant has after accepted been only can registration. awarded after *8 Financial aid is available to students in the form of scholarships and loans. In addition to Regents’ the Scholarships and President’s Scholarship programs, the medical participates school in the Health Scholarship Professions Program, whieh makes funds available to students who might otherwise be not able pursue to a medical education. Other scholarships and awards are avail- able to students who special meet eligibility qualifications. Medical students eligible are also participate to the Federally in Insured Student Loan Program and the American Medical Association Education and Research Foundation Program. Loan
“Applications for Admission are available from:
“Admissions Office School of Medicine University of California Davis, California 95616” Record 195. The letter the following year distributed virtually was iden- tical, except that the third paragraph was omitted. 2For the 1973 entering class of 100 seats, the Davis Medical School 2,464 received applications. Id., at 117. For the entering class, 3,737 applications were Id., submitted. at 289. interview. personal for a was invited applicants of six out one rated was candidate interviews, each Following the Ibid. other four interviewers his 1 to a scale on rating embraced The committee. the admissions members grade overall candidate’s summaries, interviewers’ on courses, scores science average point grade average, point letters (MCAT), Test Admissions College Medical bio- other activities, extracurricular recommendation, together added ratings were The Id., at 62. data. graphical five Since score. “benchmark” candidate’s each at arrive perfect 1973, candidate each rated members committee so candidate, each rated six members 1974, 500; was score then committee full The 600. was score perfect offers made applicant each scores file and reviewed respon- was chairman The basis.3 “rolling” on a admission They were waiting list. on the names placing sible had chairman instead, order; numerical in strict placed Id., at skills.” “special persons include discretion 63-64. separate awith operated program admissions special minority members were whom majority committee, a form, can- application 163. On Id., at groups. wished they whether indicate asked were didates disadvan- educationally “economically and/or as considered whether was question form on the applicants; taged” “minority of a members as considered to be they wished viewed apparently School Medical group,” Id., Indians.” “American “Asians,” and “Chícanos,” “Blacks,” were questions If these 216-218. 203-205, 65-66, to the forwarded application affirmatively, answered *9 “disad- definition No formal committee. admissions special they 3 were upon as and acted considered were is, applications That period over a place filling the class took process the received, so file on against those still considered being applications months, with later Id., 64. year. at the in earlier from
275 vantaged” was ever id., at produced, but 163-164, the chairman special the committee screened each application to see whether it reflected economic or deprivation.4 educational Having passed this initial hurdle, applications the then were rated by special the committee a fashion similar to that used general the admissions committee, except special candi- dates did not have to grade meet the point 2.5 average cutoff applied to regular applicants. About one-fifth of the total special number of applicants were invited for interviews in 1973 and 1974.5 Following each interview, special committee assigned special each applicant a benchmark spe- score. The cial committee then presented its top choices to general admissions committee. The latter did not rate or compare the special candidates against the general id., applicants, 388, but could reject special recommended candidates for failure to meet requirements course specific Id., or other deficiencies. at 171-172. special The committee continued to recommend special applicants until a prescribed number by faculty vote were admitted. While the 50, overall class size was still prescribed 8; number was in 1973 and when the 1974, class size had doubled to 100, prescribed special number of admissions Id., also doubled, 16. at 164,166. From the year increase class through size—1971—
1974, special program resulted in of 21 the admission black students, 30 and 12 Mexican-Americans, Asians, for a total of 63 minority students. Over the same period, regular ad- program missions produced black, Mexican-Americans, normally among chairman cheeked to if, see things, other applicant granted had been a waiver of fee, application school’s required test; applicant means whether the during college had worked interrupted support his education to family; himself or his and whether applicant minority group. Id., was a member of a at 65-66. entering 1973, For the special class the total applicants number whom 73 were In persons applied white. to the special committee, Id., of whom were white. at 133-134. *10 276 Although students.6 minority of 44 a total Asians, for 37
and large program special to the applied disadvantaged whites of admission offer an none received supra, 5,n. see numbers, special least, 1974, at Indeed, process. through special only “disadvantaged” considered explicitly committee minority designated of one of members who were applicants 171. Record groups. Davis to the applied who male is a white Bakke
Allan Bakke’s years In both 1974. 1973 in both and School Medical pro- admissions general under considered was application was interview His 1973 interview. an and he received gram, very “a Bakke considered who West, C. Dr. Theodore 225. Id., at school.” medical applicant [the] desirable was Bakke 468 out score benchmark Despite strong a no year, in the late come had application His rejected. below with scores process admissions general in the applicants completed. was application Bakke’s accepted after 470 were at unfilled slots special admissions four were Id., at There 69. Id., considered. was not Bakke for however, time, H. George to Dr. Bakke wrote rejection, his 1973 After 70. at Admissions and Chairman Dean Associate Lowrey, program admissions special protesting Committee, Id., at 259. quota. ethnic racial operated 6 minority comparison of year-by-year provides following table School: the Davis Medical admissions Total Admissions Program General Admissions
Special Total Asians Blacks Chícanos Asians Total Blacks Chícanos 0 12 4 4 0 0 8 5 3 1970 1 24 8 9 0 2 15 9 4 1971 0 11 27 11 0 5 16 6 6 1972 0 31 15 2 13 2 16 6 8 1973 25 5 9 0 4 16 program Id,., at 216-218. Sixteen special admitted under persons were ibid., classes, the start before one Asian withdrew but waiting list. general admissions from vacancy a candidate filled was 5. n. Brief Petitioner 1974 application
Bakke’s completed early year. in the *11 Id., at 70. His student interviewer him gave an overall rating of 94, him finding “friendly, well tempered, conscientious and Id., delightful speak faculty with.” at 229. His inter- viewer was, by coincidence, Lowrey the same Dr. whom he protest had written in special of the program. admissions Dr. Lowrey found Bakke “rather limited in his approach” to the problems of the profession medical found disturbing “very Bakke’s definite opinions which on his were based more personal viewpoints upon study problem.” than of the total Id., at 226. Dr. Lowrey gave Bakke the lowest of his six ratings, an 86; Id., his total was 549 out of 600. at 230. application Bakke’s Again, rejected. was In neither did year the chairman of the admissions Dr. committee, Lowrey, exer- place Id., cise his discretion to waiting Bakke on list. In applicants 64. both years, special were admitted under the program grade point MCAT and bench- averages, scores, mark scores significantly lower than Bakke’s.7
After the second rejection, filed Bakke the instant suit California,8 Superior of sought Court He mandatory, injunctive, declaratory relief his compelling admission the Medical School. He alleged that the Medical School’s special operated admissions him program to exclude from the
7 following compares point The grade average, table Bakke’s science grade point average, overall average and MCAT scores with the scores of regular special admittees admittees both 1973 and Record 1974. 210,223,231, 234: Entering Class in 1973 (Percentiles) MCAT Quanti- Gen. SGPA OGPA Verbal tative Science Infor.
Bakke . 3.44 3.46 96 94 97 72 Average regular
admittees. 3.51 3.49 81 76 83 69 Average special
admittees. 2.62 24 2.88 46 35 33 278 under rights of his violation race, his on the basis
school Amendment,9 Fourteenth of the Clause Equal Protection of Title § and 601 Constitution,10 California I, 21, § Art. C. 42 78 U. S. Stat. Rights Act of the Civil VI declaration cross-complained for University 2000d.11 § The trial lawful. program admissions special its in 1974 Entering Class (Percentiles) MCAT Gen. Quanti- Infor. Science tative Verbal SGPA OGPA 72 97 3.46 3.44 Bakke. Average regular 3.29 3.36 admittees.
Average special *12 18 37 30 2.62 2.42
admittees. benchmark program also special had under the Applicants admitted rejected Bakke, including many students, significantly lower than scores special rating though the program, general admissions even the under Id., “disadvantage.” at overcoming system gave credit for apparently 388. with his intentions filing suit, Bakke discussed the Prior to actual Med at the Davis of Admissions Storandt, Assistant to the Dean Peter C. sympathy Bakke’s expressed Id., 259-269. Storandt ical School. imply amici strategy. litigation Several advice on position and offered no indica “collusive.” There is Bakke’s discussions render suit that these School or of the Medical however, views were those tion, Storandt’s correspondence aware of Storandt’s anyone the school even else at was University. longer Bakke. is no and conversations with Storandt any jurisdiction any deny person within . . its shall State . 9 “[N]or equal protection of the laws.” may granted which be special or shall ever privileges immunities “No any altered, revoked, Legislature; nor shall repealed or not be which, upon or citizen, citizens, granted privileges immunities or class of terms, granted citizens.” not be the same shall all I, 7, to Art. recently repealed provisions its added § This section of the State Constitution. 252, provides as VI, Title 78 Stat. follows: 601 of Section race, color, or shall, ground United on the person in the States “No participation in, be the benefits from denied origin, be excluded national receiving activity any program subjected to discrimination under of, or be financial Federal assistance.”
court found that special program operated aas racial quota, because minority applicants special program were rated only against one another, Record places in the class of 100 were Id., reserved for them. at 295-296. Declaring that the University could not race into take account in making admissions decisions, the trial court the chal held lenged program violative of the Federal Constitution, State Constitution, and VI. Title The court refused to order Bakke’s admission, holding however, that he had failed to carry his burden of proving that he would have been admitted but for the existence of the special program. appealed
Bakke
from
portion
of the trial
judgment
court
denying him admission, and the University appealed from the
decision that
special
its
admissions program was unlawful and
the order enjoining it from considering
in the
race
processing
of applications.
Supreme
Court of California transferred
the case directly from the trial court, “because of the impor-
tance of the issues involved.”
that the of because rejected may be applicant that required “no ment measured qualified, who less of another his favor race, Id., 553 55, at to race.” regard applied without by standards 2d, P. at 1166. since Bakke court ruled that the
Turning
appeal,
to Bakke’s
against
had
University
discriminated
that the
established
had
to
shifted
proof
the burden
race,
basis of his
on the
him
been
not have
he would
University to demonstrate
the
pro-
special
admissions
in the
even
absence
admitted
court anal-
The
553
at 1172.
Id.,
63-64,
2d,,
P.
gram.13
at
Title VII
under
plaintiff
to that of a.
Bakke’s situation
ogized
2000e-17
§§
42
C.
U. S.
Act
Rights
Civil
the
Transporta-
g., Franks v. Bowman
see, e.
(1970
Supp. V),
ed.,
63-64,
3d, at
(1976)..
18 Cal.
Co.,
tion
424 U. S.
initially ordered
On
the court
basis,
1172.
this
553 P.
2d,
the
under
whether,
determining
purpose
for the
a remand
been
would have
proof,
Bakke
burden
newly allocated
in the
entering
class
1973 or the
to
either
admitted
A Appli-
to
program.
special
App.
admissions
absence
below,
rehearing
In
for
petition
Stay
for
48.
cation
its
carry that
inability to
conceded its
University
however, the
Stay
A19-A20.14
B
App.
Application
burden.
The issue of
challenged
aspect of
decision.
this
Petitioner has
then,
us.
proof,,
is not before
burden of
proper placement of
never
arguing that he
standing,
lacks
suggest that Bakke
amici
Several
injury
from the Medical School—will
showed that his
—exclusion
“fabricated”
decision,
petitioner
by a favorable
redressed
proof. Peti
inability
burden of
by conceding
meet its
jurisdiction
its
t.o
charge
standing,'
as this
but inasmuch
object to Bakke’s
does not
tioner
rejected.
Ill,
it must be
jurisdiction
Art.
considered
under
concerns our
question
petitioner’s concession.
appears
First,
to be no reason
there
disguise
of law or
attempt
stipulate to a conclusion
It
was not an
Hocking Valley
Co.,
R.
Co. v.
Cf.
&
facts of record.
actual
Swift
U. S.
been
prove
hiewould have
been unable to
Second,
if Bakke had
even
he
special program, it
not follow that
would
absence
admitted in
*14
California court thereupon
opinion
amended its
to direct that
the trial court enter judgment ordering Bakke’s admission to
the Medical School. 18 Cal. 3d, at 64, 553 P. 2d, at 1172.
That order was stayed pending review in this Court. 429 U. S.
953 (1976). We granted certiorari to consider the important
constitutional
issue.
II In this Court parties neither briefed nor argued the applicability of Title VI of the Civil Rights Act of 1964. Rather, as had the California court, they focused exclusively upon the validity the special admissions program under the Equal Protection Clause. Because it was possible, however, that a decision on Title VI might obviate resort to consti tutional interpretation, see Ashwander v. A,TV 297 U. S. 288, 346-348 (1936) (concurring opinion), we requested sup plementary briefing on the statutory issue. 434 S.U. (1977).
A At the outset we face the question whether a right of action for private parties exists under Title VI. Respondent argues there is a private right of action, invoking the test set forth in Cort Ash, 422 U. S. 78 (1975). He contends lacked standing. The constitutional element of standing plaintiff’s any demonstration of injury to himself that is likely to be redressed favorable decision of his claim. Warth v. Seldin, 422 S. 490, U. The trial court found an such injury, apart from failure to be admitted, in the University’s decision not permit Bakke to compete for all 100 places in the class, simply because of his race. Record 323. Hence requirements constitutional of Art. Ill were met. question of Bakke’s admission vel non is merely one of relief.
Nor is it fatal to Bakke’s standing that he was not a “disadvantaged” applicant. Despite program’s purported emphasis on disadvantage, it was minority enrollment program with a secondary disadvantage element. White disadvantaged students were never considered under special program, and the University acknowledges goal its in devising the program was to increase minority enrollment. *15 282 that favor, his right federal a creates statute the
that actions,15 private permit to intent an reveals history legislative of purposes remedial further would actions such that under rights federal of enforcement and that statute, In the States. to relegated is not generally Act Rights Civil have decisions court lower several he cites addition, of right private of a existence or assumed recognized of right private of a existence denies Petitioner action.16 supra, 11, n. 601, see of § function the sole action, arguing under action administrative for predicate to establish was view, In its 2000d-l.17 §C. S. 42 U. 252, 78 Stat. 602, § section funds under of federal curtailment administrative recipients upon imposed be to only sanction Case). (1964) (remarks of Sen. Cong. 5255 g., Rec. 110 15 See,e. 16 847, 2d 851-852 Lemon, F. 370 v. School Board Parish g., Bossier E. Educa Board v. (1967); Natonabah 911 denied, U. S. 388 of (CA5), cert. Transportar Regional Lloyd v. 1973); cf. (NM 716, 724 Supp. tion, 355 F. (Title Reha 1977) V of (CA7 1277, 1284-1287 Authority, F. 2d 548 tion ed.)); Piascik seq. (1976 et C. 29 U. S. of §790 Act bilitation 1976) (ND Ohio n. 1 Supp. Art, 426 F. Museum Cleveland of seq. 1681 et C. 1972, U. S. § Amendments (Title IX Education ed.)). (1976 reads follows: as §2000d-l, S. C. in U. 602, as set forth Section to extend empowered is agency which and department “Each Federal by way grant, activity, any program or assistance financial Federal guaranty, or insurance a contract of than other loan, or contract of this 2000d provisions of section effectuate directed authorized rules, regulations, by issuing activity or program respect to such with title achievement consistent shall be applicability which general or orders assistance authorizing financial objectives the statute regulation, or rule, such No is taken. the action with which connection by the President. approved until unless and effective become shall order may section to this adopted pursuant requirement any Compliance with grant to continue or of or refusal (1) the termination effected be whom any recipient as to activity to or program such under assistance opportunity record, after finding on express an has been there termination requirement, such but comply with such hearing, failure to of a thereof, entity, part or political particular to the be limited shall refusal or andj made shall finding has been such a recipient to whom other
violated § 601. Petitioner points also out that Title VI con- tains no explicit grant of private right action, con- trast II, Titles III, IV, VII, the same statute, U. S. C. §§ (a), 2000a-3 2000b-2, 2000c-8, and 2000e-5 (f) (1970 ed. Supp. V).18
We find it unnecessary to resolve
question
this
in the instant
*16
case. The question of respondent’s right to bring an action
under Title VI was neither argued nor
decided
either of the
courts below, and this Court has been hesitant
to review
questions not addressed below. McGoldrick v. Compagnie
Generale Transatlantique,
tion of crystal, is not word declared, “[a] Holmes Justice as Mr. *17 thought living aof the skin is unchanged, transparent and according to content in color vary greatly may v. Towne it is used.” in which time and the circumstances seek therefore, must, We (1918). Eisner, 418, 245 U. S. meaning precise determining the in is available aid whatever Interest Public Colorado v. us. Train before statute of the States United (1976), quoting 101, U. Group, 426 S. Research 543-544 Assns., U. S. Trucking American VI of history Title legislative of the voluminous Examination of entities funding federal to halt intent congressional a reveals similar discrimination racial of prohibition a that violate of statements Although isolated Constitution. of the that be marshaled can context, out of taken legislators, various color- purely enacted 601§ that proposition of support Pro- Equal to the reach regard scheme,19without blind as follows: stated Humphrey example, Senator For disaster administration segregation in “Racial discrimination justice sense to our offensive shocking; and particularly relief tection Clause, these comments must be read against background of both the problem Congress was addressing and the broader view of the statute emerges from full examination of legislative debates.
The problem confronting Congress was discrimination against Negro citizens at the hands of recipients of federal moneys. Indeed, the color pronouncements blindness cited margin at n. generally occur in the midst of extended remarks dealing evils segregation in federally funded programs. Over and over again, proponents of bill detailed the plight Negroes seeking equal treatment in such programs.20 There simply was no reason for Congress to con- sider the validity of hypothetical preferences that might be accorded minority citizens; the legislators were dealing with the real and pressing problem of how guarantee those citi- zens equal treatment.
In addressing that problem, supporters of Title repeatedly VI declared that the bill enacted principles. constitutional Tor example, Representative Celler, the Chairman of the House Judiciary Committee and floor manager of legislation the House, emphasized this in introducing the bill:
“The bill would offer assurance hospitals financed by Federal money deny would not adequate care to Ne- groes. It prevent would abuse food distribution pro- grams whereby Negroes have been known to be denied food play. fair Human suffering draws no lines, color and the administration help to the sufferers should Id., not.” at 6547. id., See also (remarks Aliott); Sen. (remarks of Sen. *18 Kuchel); 2494, (remarks 6047 of Pastore). Sen. id., But see at 15893 (remarks Rep. of MacGregor); (remarks 13821 of Sen. Saltonstall); 10920 (remarks of Javits); Sen. (remarks 5807 Keating). of Sen. 20See, g., id., e. (remarks at 7064r-7065 of Ribicoff); Sen. 7054r-7055 (remarks of Pastore); Sen. (remarks 6543-6544 of Sen. Humphrey); 2595 (remarks Rep. of Donohue); (remarks 2467-2468 Rep. of Celler); 1643, (remarks 2481-2482 Rep. of Ryan.); Rep. H. R. No. Cong., 88th 1st Sess., pt. 2, pp. 2A-25 286 food. such given were persons white when supplies
surplus only- now accorded benefits the Negroes assure would It fi- education high[er] of programs in students white the short, assure in would, It funds. Federal nanced of enjoyment the in treatment equal right existing pri- of any rights destroy It would funds. Federal Cong. 110 association.” of freedom property vate added). (emphasis (1964) 1519 Rec. Title that view Celler’s Representative shared sponsors
Other principles.21 constitutional embodied VI purpose the that declared Humphrey Senate, Senator the In spent are funds Federal that insure “to VI was of Title the of sense moral the Constitution accordance VI Title agreed Ribicoff Id., Senator 6544. at Nation.” is a there “Basically, standard: constitutional embraced of use in the discrimination against restriction constitutional procedure out spells simply VI title funds; and federal Other 13333. Id., at restriction.” enforcing be used views.22 similar expressed Senators constitutional of a incorporation of evidence Further of refusals repeated appears VI Title into standard “dis term define precisely supporters
legislation’s but failure,23 this criticized sharply Opponents crimination.” meaning replied merely bill proponents Lindsay). Rep. 21 (remarks (1964) 2467 g., 110 Cong. Rec. See, e. (remarks of Matsunaga); 2731-2732 Rep. (remarks of id., 2766 at See also (remarks Donohue); 1527-1528 Rep. (remarks of 2595 Dawson); Rep. Celler). Rep. (remarks Allott); 22 7064 Sen. (remarks of 12675, 12677 g., id., at See, e. (remarks Pastore); 5243 (remarks of Sen. 7057, 7062-7064 Pell); of Sen. Clark). of Sen. (remarks of Johnston); 5863 of Sen. (remarks g., id., e. See, Sen. (remarks Ervin); Sen. (remarks Eastland); Sen. Rep. (remarks Dowdy); Rep. (remarks of Talmadge); Abemethy).
287 “discrimination” would be made clear by reference to the Constitution or other existing law. For example, Senator noted Humphrey the relevance of the Constitution: I “As said, have the bill has simple purpose. That purpose is give fellow Negroes same citizens — —the rights and opportunities that white people take for granted. This is no more than what was preached prophets, and by Christ Himself. It is no more than what our Constitution guarantees.” Id., at 6553.24 In view of legislative the clear intent, Title VI be held must to proscribe only those racial classifications that would violate the Equal Protection Clause or the Fifth Amendment.
Ill A does not deny Petitioner that decisions on based race ethnic origin by faculties and administrations state univer- sities are reviewable under the Fourteenth See, Amendment. g., e. Missouri ex rel. Gaines Canada, v. 305 (1938); U. S. 337 Sipuel v. Board Regents, 332 631 (1948); U. S. Sweatt v. Painter, 339 U. (1950); S. 629 McLaurin v. Oklahoma State Regents, 339 U. 637 S. For his respondent does part, not argue that all racial or ethnic classifications per are se g., invalid. e. See, Hirabayashi States, v. United 320 U. 81S. (1943); Korematsu States, v. United 214 (1944); U. S. Lee Washington, v. 390 U. S. 334 (1968) (Black, Harlan, and Stewart, JJ., concurring); United Organizations Jewish Carey, 430 U. 144 (1977). S. parties disagree do as judicial level of scrutiny to applied special to the admissions program. argues Petitioner the court below erred in applying strict scrutiny, this inexact term has been id., See also (remarks (remarks Ribieoff); of Sen. Pastore); of Sen. (remarks Javits); 5606-5607 of Sen. 5253, 5863-5864, (remarks Humphrey). of Sen. *20 asserts, petitioner review, of level cases. That our in applied “dis.- disadvantage that classifications be reserved should Carotene v. States United See minorities.” insular and crete on Respondent, 4 (1938). n. 144, 152 Co., 304 U. S. Products correctly court California the that hand, contends other the accorded scrutiny judicial of degree that the the notion rejected mem- upon hinges classification ethnic racial or particular a recognized duly minority and insular and in discrete bership a Amendment] Fourteenth [by the established “rights the 22 Kraemer, U. S. 334 Shelley v. rights.” personal are (1948). judicial of scope over crucial battle to this route
En over action sharp preliminary fight a parties review,25 program. admissions special characterization proper minor of establishing “goal” it to view as prefers Petitioner echo Respondent, School. in the Medical ity representation quota.26 a racial below, labels ing the courts controversy. 25 scholarly of amount generated a considerable has issue That Discrimination, 41 Constitutionality Racial of Reverse g., Ely, See, The e. “Benign” Scrutiny of Greenawalt, Judicial (1974); 723 L. Rev. Chi. U. 559 L. Rev. Admissions, 75 Colum. in School Law Preference Racial Equality for Unequal an World: Equal Kaplan, Justice (1975); Rev, Action Horowitz, Affirmative (1966); Karst & 363 Negro, L. 61 Nw. U. O’Neil, Prefer Racial (1974); 955 Protection, L. Rev. Equal Va. 60 and 925 L. Rev. Context, Va. 60 Larger The Higher Education: ence Constitutionality Prefer and the Posner, Case The DeFunis (1974); Redish, Pref 1; Sup. Minorities, Ct. Rev. 1974 Racial Treatment ential An Clause: Equal Protection Law School Admissions erential (1974) ; 343 Rev. L. UCLA Arguments, Competing Analysis of the Responsibility Political Education: Higher Sandalow, Preferences Racial Pref Sedler, Racial (1975); Chi. Rev. 653 Role, 42 L. U. the Judicial University Regents of Baldee erence, Reality and the Constitution: Heuristic Seeburger, A (1977); L. Rev. California, 17 Santa Clara L. Rev. Admissions, U. Pitt. Preferential Against Argument can but be met must requirement “quota” defines Petitioner applicants. minority quality regardless exceeded, never number total “floor” under is no there declares Petitioner This semantic distinction is point: beside the special program admissions is undeniably a classification based on race and ethnic background. To the extent there existed a pool of at least minimally, qualified minority applicants to fill the 16 special admissions seats, applicants white could compete only for 84 seats the entering class, rather than open the 100 to minority applicants. Whether this limitation is described quota as a or a goal, it is a line drawn on the basis race and ethnic status.27
The guarantees of the Fourteenth Amendment extend to all persons. Its language explicit: “No State deny shall.. . *21 to person any jurisdiction within its the equal protection of the laws.” It beyond settled question that the “rights created by the first section of the Fourteenth Amendment are, by its guaranteed terms, to the rights individual. estab- The lished personal are rights,” Shelley v. Kraemer, supra, at 22. Accord, Missouri ex rel. Gaines Canada, v. supra, 351; at McCabe v. Atchison, T. & F. Co., S. R. 235 U. 151, S. 161-162 (1914). guarantee of equal protection cannot one mean thing when applied one to individual and something when else minority admitted; students completely unqualified will not students admitted simply to “quota.” meet a Neither is “ceiling,” there a since an unlimited number could be admitted through general proc- admissions ess. On this special basis the program admissions does petitioner’s not meet quota. definition of a The court below petitioner found —and deny does not white —that applicants not compete could places for the 16 solely reserved for the special program. admissions 18 3d, Cal. 44, 2d, at 553 P. at 1159. Both courts below characterized this “quota” system. as a 27Moreover, University’s special program admissions involves a purposeful, acknowledged use of racial criteria. This is not a situation in which the classification on its face is racially neutral, but has a dispropor tionate impact. racial In situation, plaintiff must establish an intent to Arlington Heights discriminate. Metropolitan v. Homing Corp., Dev. 429 252, U. S. Washington Davis, (1977); 26A-265 v. 229, 426 U. S. 242 (1976); see Yick Wo Hopkins, v. 118 U. S. 356 not accorded If both are color. of another person ato applied equal. is not then it protection, same erred below the court argues petitioner Nevertheless, program admissions special scrutiny 'strict applying “discrete not are respondent, males, such because white from protection extraordinary requiring minority” insular Co., Products Carolene process. political majoritarian never has however, rationale, This n. 4. 152-153, supra, subjecting prerequisite decisions as in our invoked been has this scrutiny. Nor strict distinctions or ethnic racial neces insularity constitute discreteness held that Court particular classification holding that a sary preconditions to a ex William ret. Oklahoma Skinner v. g., e. See, is invidious.28 Rash, 380 U. S. Carrington v. (1942); son, 535, S.U. may be relevant characteristics (1965). These 94-97 89, classifications types of new or to add whether deciding classifi particular whether a categories “suspect” list Massachusetts g., e. See, close examination. cation survives (1976) 307, Murgia, U. S. v. Retirement Board of Rodriguez, School Dist. Independent Antonio (age); San Richardson, 403 Graham v. (wealth); (1973) 411 U. S. classifi ethnic (aliens). Racial (1971) S.U. with examination *22 subject stringent are however, cations, as We declared characteristics. these additional regard out recognize racial distinctions explicitly to cases in first much suspect: of their solely because citizens between “Distinctions people free odious to a very nature ancestry are their 28 decisions specific in Products, first reference our Carolene After Minersville insularity” appears in “discreteness elements of to the dissenting). (1940) (Stone, J., 586, Gobitis, 606 310 U. S. v. School District 112, Mitchell, Oregon 400 S. v. U. appear 1970. until The next does These dissenting part). in part J., concurring (Stewart, n. 14 295 only one recognizing suspect class upon in relied have been elements Richardson, 403 v. g., E. Graham involving aliens. those group cases, 365, U. S.
whose institutions are upon founded the doctrine of equality.” Hirabayashi, 320 U. S., at 100. 11 legal
“[A] restrictions'which curtail the civil rights a single racial group are immediately suspect. That say not to that all such restrictions are unconstitutional. It is say that courts must subject them to the most rigid scrutiny.” Korematsu, 323 U. atS., 216.
The Court has never questioned the validity of pro- those nouncements. Racial and ethnic distinctions any sort are inherently suspect and thus call for the most exacting judicial examination.
B This perception of racial and ethnic distinctions is rooted in our Nation’s constitutional and demographic history. The Court’s initial view the Fourteenth Amendment was that its “one pervading purpose” was “the freedom of the slave race, the security firm establishment of that freedom, and protection of the newly-made freeman and citizen from the oppressions of those who had formerly exercised dominion over him.” Slaughter-House Cases, 16 Wall. 71 (1873). The Equal Protection Clause, however, was “[virtually strangled in infancy by post-civil-war judicial reaction- ism.” It was relegated to decades of relative desuetude while the Due Process Clause of the Fourteenth Amendment, after a germinal short period, flourished as a cornerstone . the Court’s defense property and liberty of contract See, g., Mugler e. Kansas, v. 123 U. S. (1887); Allgeyer v. Louisiana, 165 U. S. (1897); Lochner New York, 198 U. S. 45 (1905). In that cause, the Fourteenth Amendment’s “one pervading purpose” was displaced. See, g., e. Plessy v. Ferguson, U. S. 537 (1896). It was only as the era of sub stantive due process came to a close, see, g., e. Nebbia v. New *23 29Tussman & tenBroek, Equal The Protection of the Laws, 37 Calif. L. 341,381 Rev. (1949). 292 Parrish, Hotel Coast Co. v. West
York, (1934); 502 291 U. S. began Clause Protection Equal (1937), 379 300 U. S. States g., United see, e. vitality, of genuine measure to attain a v. Okla Skinner Products, (1938); 144 Carolene 304 U. S. v. Williamson, supra. ex homa rel. guarantees peg longer possible it was no
By that time equality struggle Fourteenth Amendment of the Pro Equal dormancy of During the minority. racial one min Nation become a had the United States Clause, tection strug extent 31—and to struggle some had to orities.30 Each monolithic of a prejudices not overcome the gles still32—to minority of various composed “majority” of a majority, but cases— unfairly many perhaps groups whom said— disadvantage willingness to characteristic was that a shared many filled with stock the Nation groups.33 other As to all extended gradually Clause was lands, reach discrimination. from official protection seeking groups ethnic (1880) 308 Virginia, 100 U. 303, S. v. West Strauder See U. Hopkins, 118 S. Yick Wo v. (dictum); (Celtic Irishmen) 41 (1915) Raich, 33, Truax 239 U. S. (Chinese); v. (1886) 356 Korematsu, supra (Japanese); aliens); (Austrian resident (Mexican-Ameri Texas, (1954) 475 Hernandez S. U. the Court said protection, equal cans) guarantees . (1960). 177-246 Jones, Immigration American M. Immigrant Abbott, The (1955); Strangers G. in the Land Higham, J. 66-73, Immigration Roberts, (1917); The New Community P. A Immigrants and Unions: Fenton, (1912). also 86-91, See E. 248-261 Study (1975). Case 561-562 primarily but not groups, religious ethnic “Members various ancestry, such European Eastern, exclusively Middle, and Southern groups, continue to Italians, Catholics, Greeks, and Slavic Jews, job because levels middle-management, and other executive, excluded from origin.” religion upon national based their of discrimination and/or (b) CFR 60-50.1 § supra 31, 270- 75; Abbott, n. at Roberts, supra n. G. g.,E. P. supra. generally 271. n. See
Yick Wo, “are universal in their application, to all persons within the territorial jurisdiction, without regard to any differ- ences of race, of color, or of nationality; and the equal pro- tection of the laws is a pledge of the protection of equal laws.” S.,U. at 369.
Although many of the Framers of the Fourteenth Amend
ment conceived of its primary function as bridging the vast
distance between members of the Negro race and the white
“majority,” Slaughter-House Cases, supra,
the Amendment
itself was framed in universal terms, without reference to color,
ethnic origin, or condition of prior servitude. As this Court
recently remarked in interpreting the 1866 Civil Rights Act to
extend to claims of racial discrimination against white persons,
“the 39th Congress was intent upon establishing in the fed
eral law a broader principle than would have been necessary
simply to meet
the particular and immediate plight of the
newly freed Negro slaves.” McDonald v. Santa Fe Trail
Transportation Co.,
» for the adopt us urges Petitioner that hold and Clause Protection Equal of the view restrictive can- “majority” white members against discrimination “benign.”34 can be characterized purpose if its suspect not be White, Mr. BreNNAn, Mr. Justice of Mr. Justice the view In of notion pliable the Blacicmun, Justice and Marshall, Mr. Justice classifications., g., See, e. analyzing racial element the “stigma” is crucial in terms not framed is Clause Equal Protection post, 362. mean clearly constitutional no defined Certainly has the word “stigma.” All state- standardless. judgment that is subjective ing. reflects It the basis on rearrange benefits burdens and imposed classifications by individuals deep resentment likely be viewed race are opportunities equal rights and persons of to innocent The denial burdened. as invidious. may perceived deprived therefore outrage so may those notion in the comfort likely find little are individuals These membership in price merely to endure is they asked are deprivation supposedly inspired imposition is its majority dominant lightly dismiss One should aiding others. benign purpose that accom of mistreatment perception of, unfairness inherent skin the basis on privileges allocating benefits and system of panies, a Brennan, Mr. Justice Moreover, Mr. Justice origin. color and ethnic The clock of our liberties, however, cannot be turned back to 1868. Brown v. Board Education, supra, at 492; accord, Loving Virginia, supra, at 9. It is far too late to argue that the guarantee equal protection persons all permits recognition of special wards entitled to a degree of protection greater than that accorded others.35 “The Fourteenth Amend- ment is not directed solely against discrimination due to a ‘two-class theory’ is, upon based —that differences between ‘white’ and Negro.” Hernandez, 347 S.,U. at 478.
Once the artificial line of a “two-class theory” of the Four- teenth Amendment put aside, the difficulties entailed varying the level of judicial review to a according perceived “preferred” status of particular racial or ethnic minority are intractable. The concepts of “majority” and “minority” necessarily reflect temporary arrangements and political judg- ments. As observed above, “majority” white itself is *26 composed of various minority groups, most of can lay which claim to a history prior of at discrimination the hands of the State private and individuals. Not all of groups these can preferential receive treatment and corresponding judicial toler- White, Mr. Justice Marshall, and Mr. Justice BlackmuN offer no principle deciding for preferential whether benign classifications a reflect purpose remedial or a stigmatic malevolent classification, since they are willing in this accept case to post mere hoc by declarations an isolated entity state medical faculty school by particularized —a find- —unadorned ings past of discrimination, to establish a purpose. such remedial 35Professor Bickel noted the self-contradiction of that view: great “The lesson of the decisions of Supreme Court and the lesson of contemporary history have been the same for generation: at least a discrimination on the basis of race illegal, is immoral, unconstitutional, inherently wrong, and destructive of society. democratic Now this is to be unlearned and we are told that this is not a matter of fundamental principle only but a matter of whose ox gored. is Those for whom racial equality was demanded are equal to be more than Having others. found support in the equality, Constitution for they support now claim for inequality under the same Constitution.” A. Bickel, The Morality of Consent nationality, of race and in terms drawn distinctions of
anee minority new be a left would “majority” only for then the principled is no There Protestants. Anglo-Saxon of white “heightened merit would which groups deciding for basis would be not.36 Courts would and judicial solicitude” consequent prejudice extent of the to evaluate asked into may be taken race that agreement with the view IAs am in my Brothers agree I with program, in an admissions as a factor account portion of Marshall, BlackmuN BreNNAN, White, be reversed. race must proscribe all consideration judgment that would opinion. their said in disagree much that is I V, But See Part infra. petitioner’s, program such as justification a for They require as would discrimination form (i) been some findings: there has only two post, “society at by large,” at minority groups against preferred discrimination), history petitioner no had (it being conceded sought impact disparate that the to believe” (ii) that “there is reason “product” such discrimination: program is be rectified failure that it was—that the we hold to conclude—as it was reasonable “If procedures regular under qualify at Davis for admission minorities to discrimination, there is a then past principally to the effects of due discrimination, respond- pervasive racial that, but for reasonable likelihood qualify even the absence admission failed to have ent would Post, at 365-366. special program.” Davis’ admissions unprecedented in our constitutional hypothesis is The breadth this regrettable fact easily denies step taken. No one system. is The first country various against discrimination this has been societal that there speculative step, however, involves groups. The second racial and ethnic by society large, “would have Bakke leap: but for this discrimination Negro applicants nothing said qualify for admission” because failed to — *27 post, better scores. cf., 57—would have made Asians, g., e. at 374 n. about supports conclusion, the authors this word in the record Not one applying pre- a use in such to opinion offer no standard courts This failure other racial or ethnic classifications. sumption to of causation record that each of may on this one, if it be concluded grave since is by special program entitled to petitioner’s is minority groups preferred determine that seem difficult presumption, it would to the benefit of discrimi- minority groups that have suffered “societal any of the dozens of Part it, any social See area of intercourse. cannot claim nation” also IY-B, infra.
harm suffered by various minority groups. Those whose
societal injury is thought to exceed some arbitrary level of toler-
ability then would be entitled
preferential
to
classifications at
expense
of individuals belonging to other groups. Those
classifications would be free from exacting judicial scrutiny.
As
preferences
these
began to have their desired effect, and the
consequences
past'discrimination
were undone,
judicial
new
rankings would be necessary. The kind of variable sociological
and political analysis necessary
produce
to
such rankings
simply
not
does
lie within the judicial competence
if
—even
they otherwise were politically feasible and socially desirable.37
37Mr.
Douglas
Justice
has noted
problems
associated with such
inquiries:
“The reservation of a proportion of the
school
law
class for members
minority
selected
groups
fraught
with . . . dangers, for one must
immediately determine which groups are to receive such favored treat-
ment and which are to be excluded, the proportions of the class that are to
be
each,
allocated to
and even
by
the criteria
which to determine whether
an individual is a member of a
group.
favored
Plessy
Ferguson,
[Cf.
—Moreover, be may always First, it itself. of preference the idea may Courts benign. in fact preference is a so-called clear members individual upon imposed burdens asked to validate general group’s advance in order to group particular aof S., Carey, U. Organizations v. Jewish United interest. See in Nothing concurring part). J., 172-173 (Brennan, may be individuals the notion supports the Constitution order to burdens impermissible suffer otherwise asked Second, groups. their ethnic standing of the societal enhance stereotypes common may only reinforce programs preferential success to achieve unable groups are holding that certain having no rela- on a factor based special protection without Odegaard, v. DeFunis worth. See tionship individual there dissenting). Third, J., (1974) (Douglas, 312, S.U. in re- persons forcing innocent inequity a measure griev- redressing the burdens to bear position spondent’s making. of their ances not Protection Clause Equal meaning hitching the
By
as a
holding,
would be
we
considerations,
transitory
these
classifications
scrutiny of
judicial
principle, that
constitutional
with the
may vary
background
ethnic
touching on racial and
constitutional
Disparate
political
forces.
and flow of
ebb
to exacerbate
may
well
serve
classifications
of such
tolerance
356;
v.
Hopkins,
Terrace
118 U. S.
See,
g., Yick Wo v.
e.
manner.
handed
This
Oyama
California,
633.
197;
332 U. S.
v.
racial and ethnic antagonisms
rather
than alleviate them.
United Jewish Organizations, supra, at 173-174 (Brennan,
J.,
concurring in part). Also, the mutability of a constitutional
based
principle,
upon shifting political and social judgments,
undermines the chances for consistent application of the Con
stitution from
generation
one
to the
a
next,
critical feature of
its coherent interpretation.
Pollock v. Farmers’ Loan & Trust
Co., 157 U.
S.
650-651 (1895) (White, J., dissenting).
In
expounding the Constitution,
the Court’s role is to discern
“principles sufficiently absolute to give them roots throughout
the community and continuity over significant periods of time,
and to lift them above the level of
pragmatic
political
judgments of particular
time and place.” A. Cox, The Role
of the Supreme Court in American Government 114 (1976).
If it is the individual who is entitled
judicial
protection
against classifications based upon his racial or ethnic back-
ground because such distinctions impinge upon personal rights,
rather than the individual only because of his membership in
particular
group, then constitutional standards may be ap-
plied consistently. Political judgments regarding the necessity
for the particular classification may be weighed in the consti-
tutional balance, Korematsu v. United States,
n. at 27.
c has Court this occasions several on contends Petitioner the most applying without classifications preferential approved petitioner upon which the cases Most of scrutiny. exacting desegregation, school areas: from three drawn are relies Each sex discrimination. discrimination, and employment from different materially a situation presented cited the cases this case. facts of involved Each inapposite. are cases desegregation The school *30 violations. constitutional clearly determined for remedies Education, Board Charlotte-Mecklenburg g., v. E. Swann (1971); 39 Barresi, 402 U. S. v. McDaniel (1971); 1 402 U. S. Racial (1968). 430 Board, S. 391 U. County School Green v. the vindica for designed as remedies thus were classifications scope Moreover, entitlement.39 constitutional tion of the extent permitted exceed was the remedies 39 deviating from allegedly decisions court three lower cites Petitioner Nitkowski, v. desegregation cases: rule in school general this Offermann 2d 452 Board, 357 F. County School 1967); v. (CA2 Wanner 2d 22 F. 378 261 Barksdale, F. 2d 348 v. Springfield School Committee 1966); (CA4 have system held school involved a (CA1 1965). these, Of Wanner segregation; racial maintaining enjoined from jure segregated and been de Jewish 2d, United at 454. Cf. necessary. 357 F. districting was deemed (1977). In Barksdale Carey, 144 Organizations 430 U. S. v. Offer- dis designed voluntary districting to eliminate mann, approve did courts any however, was there neither, patterns. In criminatory attendance pupil transportation planned extensive board showing that the school Keyes v. School District privacy interests. See liberty might or threaten J., concurring part (Powell, (1973) 189, 240-250 1, U. No. 413 S. equal deprived oppor of an students dissenting part). Nor were white tunity for education. pupil bused wholly that of dissimilar to position is Respondent’s neighbor- comparable in another school neighborhood to a school from his ar- Petitioner did not desegregation decree. with a compliance
hood in in order to medical a different school range respondent to attend for instead, him admission School; it denied desegregate Davis Medical altogether of a education. him medical may deprived have
301
Brinkman,
Board
Education
g., Dayton
E.
v.
violations.
717
Bradley,
Milliken v.
418 U. S.
(1977);
The
Trans
v. Bowman
example,
cause. For
in Franks
petitioner’s
a retroactive
Co.,
approved
we
(1976),
portation
U. S.
had
who
truckdrivers
seniority
Negro
to a class of
award
society at
by
just
been the victims of discrimination —not
relief
While this
in that case.
respondent
but
large,
held neces
employees,
other
imposed some burdens on
“
on
injuries
suffered
'to
whole
sary
make [the victims]
” Id., at
discrimination.’
employment
unlawful
account of
Moody,
U. S.
quoting
Paper
Albemarle
Co.
various
fashioned
Appeals
Courts of
have
for constitutional
as remedies
preferences
of racial
types
injuries
identified,
race-based
resulting
(cid:127)statutory violations
*31
g., Bridge
preference.
to the
E.
held entitled
to individuals
Commission,
Civil Service
Guardians,
Bridgeport
Inc. v.
port
315
452
2d
Gallagher,
F.
1973); Carter
(CA2
2d 1333
v.
482 F.
id.,
327. Such
rehearing
banc,
en
on
(CA8 1972), modified
or ad
legislative
upheld where
have been
preferences also
made deter
responsibility
with the
body charged
ministrative
affected,
industries
by
past discrimination
the
of
minations
rectify the
appropriate
remedies deemed
fashioned
and
Eastern
g.,
Association
Contractors
E.
discrimination.
of
Labor,
(CA3),
Contractors of (1974); cf. Katzenbach 957 denied, 416 U. S. cert. 1973), (CA1 ap never But we have (1966). 641 Morgan, 384 U. S. v. proved of absence classifications proved preferential statutory violations.41 or constitutional sup- applicable standard as to the petitioner’s Nor is view not are classifications gender-based fact that ported Webster, v. scrutiny. g.,E. level of to this subjected Califano Boren, 429 U. S. v. Craig (1977); 316-317 313, 430 U. S. concurring). Gender-based J., (1976) 211 n. 190, (Powell, prac- analytical likely create less are distinctions East remedy. Association Contractors preferential imposition of a Ogilvie, 2d 471 F. Assn. Builders v. Pennsylvania; Southern Illinois ern 1970); (NJ McCrane, Supp. 1284 Joyce (CA7 1972); v. 320 F. 680 District, 35, 2d 249 St. Community College 19 Ohio Cuyahoga v. Weiner Con (1970). also Rosetti See denied, S. 1004 907, 396 U. E. 2d cert. N. (CA7 1975); Associated 1039, Brennan, 2d 1041 tracting v. 508 Co. F. (CA1 Altshuler, 2d 9 Massachusetts, 490 F. Inc. v. Contractors General Rom v. (1974); Constr. Co. denied, Northeast 416 957 U. S. 1973), cert. (1973). 754, 752, 383, 390, 2d 761 381, 485 F. ney, App. C. 157 D. U. S. admin question congressionally authorized into not call This does case approval or under Title VII decrees actions, such consent istrative 1965,42 U. S. C. Rights Act of plans Voting under reapportionment § legis cases, has been detailed V). In there (1970 ed., Supp. such 1973c § previous constitutional indicia of various lative consideration Katzenbach, S. v. 383 U. violations, g., e. Carolina statutory South been bodies have (1966) (§5), particular administrative 308-310 such viola to detect monitoring activities in charged various order with Hampton Mow Sun v. See appropriate remedies. tions formulate (1976). Wong, S.U. review an occasion to presented
Furthermore, we are
here
pursuant
powers
Thirteenth
by Congress
to its
under
legislation
§
remedy
effects
Amendment
5 of the Fourteenth
Amendment and §
(1966);
Morgan, 384 U.
S.
prior
Katzenbach
discrimination.
previously
have
Mayer Co.,
303 problems tical present preferential programs premised on or racial ethnic respect gender only criteria. With there are two possible classifications. The incidence of the burdens imposed by preferential classifications is clear. There no are groups rival which can claim are entitled to they, too, preferential treatment. questions group Classwide as suffering previous injury groups fairly can be bur relatively dened are for manageable reviewing See, courts. g., ano Goldfarb, e. v. 430 212-217 (1977); U. S. 199, Calif Weinberger Wiesenfeld, U. S. questions
resolution of these same the context racial preferences presents ethnic far more complex and in problems gender-based tractable than classifications. More perception importantly, racial classifications as in herently odious lengthy tragic history stems from a gender-based classifications do not In share. the Court sum, inherently has never viewed such or suspect classification as comparable purpose to racial or ethnic classifications for the protection analysis. of equal Nichols,
Petitioner also (1974), cites Lau v. U. S. support proposition favoring that discrimination judicial approval racial ethnic minorities has received with- out exacting inquiry ordinarily “suspect” accorded clas- Lau, sifications. In we held that the failure of the San system provide Francisco school remedial instruc- English 1,800 spoke tion students of who no some oriental ancestry English amounted to a of Title of the Civil Rights violation VI pro- Act of 2000d, regulations S. C. and the § U. mulgated required thereunder. remedial regulations Those inability English instruction where excluded to understand ancestry participation children of from in educational foreign programs. we found that U. at 568. Because S., meaningful opportunity students in Lau were “a denied ibid., participate in the educational we remanded program,” fashioning for the of a remedial order. *33 argument. petitioner’s support little provides
Lau construed had been statute, the solely on rested decision educational to reach agency administrative responsible the individuals subjecting effect of the have “which practices state- these “Under ibid. We stated: discrimination,” to merely of treatment equality is no there standards imposed textbooks, facilities, same the students by providing understand who do students curriculum; for teachers, and meaningful educa- any from foreclosed effectively are English did approved “preference” the Moreover, Id., at 566. tion.” “meaningful the relevant the denial not result benefit — program”- in the educational participate to opportunity —to prefer- by that deprived student No other else. anyone school Francisco’s in San ability participate the ence assist- required similar regulations applicable system, and deficiencies. linguistic suffered similar who students for all ance result). concurring J., Id., at 570-571 (Stewart, our that recent contends vein,42 petitioner In similar 430 U. S. Carey, Organizations v. Jewish in United decision classifications racial approve willingness indicates (1977), denominating minorities, without certain to benefit designed had York New The State “suspect.” the classifications objections meet plan reapportionment its redrawn Act Rights Voting 5 of § of Justice under Department V). Specifically, Supp. (1970 ed., 1973c § 42 U. S. C. power the electoral enhance redrawn districts voting were Mancari, S.U. Morton v. cites our decision also Petitioner of tradk' prefer members may the State that proposition (1974), for hiring pref approved a Mancari, we groups. In tionally disadvantaged Depart of the Affairs Indian Bureau of in the qualified Indians erence for however, case, (BIA). observed in We ment Interior Indeed, found Id., we generis. 554. at is sui BIA legal status criterion reason employment all, “an but racial was not preference make and to- self-government Indian ably to further cause designed are and activities . . whose lives groups . . . . responsive to BIA more unique Ibid. fashion.” in a by the BIA governed of certain “nonwhite” voters found to have been the victims of unlawful “dilution” original under the reapportionment plan. United Jewish Organizations, Lau, like properly *34 viewed aas case in which remedy the for an administrative finding discrimination encompassed measures improve to the previously disadvantaged group’s ability to participate, without excluding individuals belonging any group other from enjoyment of the relevant opportunity meaningful par- — ticipation in the electoral process.
In this case, unlike Lau and United Jewish Organizations, there has been no determination legislature or a respon- sible administrative agency that the University engaged in a practice discriminatory requiring remedial efforts. Moreover, the operation of petitioner’s special admissions program is quite different from the remedial approved measures in those cases. prefers It the designated minority groups at expense of other individuals who totally are foreclosed from competi- tion for special the 16 admissions in every seats Medical School class. Because of that foreclosure, some individuals are excluded from enjoyment of a state-provided benefit —admis- sion to the Medical they otherwise would receive. School— When a classification denies an opportunities individual or benefits enjoyed by others solely because of his race or ethnic background, it must be regarded as suspect. g.,E. McLaurin v. Oklahoma State Regents, 339 U. atS., 641-642.
IV
We have held that in
justify
“order to
the use of a suspect
classification, a State must
interest,is
show
its purpose
or
both
permissible
constitutionally
and substantial, and that its
use of the classification is 'necessary ...
to the accomplish-
ment’ of its purpose or the safeguarding of its interest.”
In re Griffiths, 413 U. S.
721-722
(1973)
(footnotes
omitted); Loving v. Virginia, 388 U.
McLaughlin
11;
S.,
Florida,
n. group victimized “majority" to a by reparation the of formaas serves That Reparations Black for The Case Bittker, B. as a whole. much subjected to has been preference ethnic or justification for racial 25, at supra n. Posner, 581; 25, at supra n. Greenawalt, g.,B. criticism. preferences that ethnic argued been Finally, has it n. 33. 16-17, and other whom examples of success by providing group the “compensate” interest group’s advancing thereby the emulate, group will members bar the to overcome generations new encouraging in society’s interest pur For 391. supra 25, at n. Redish, past. the frustrations riers and separately. considered not be need subgoals analysis these poses of fifth conceivably could serve in admissions classifications Racial appraisal fair articulate: petitioner does purpose, one in bias cultural light of some the promise in academic each individual’s back- and ethnic race that extent To procedures. testing or grading inaccuracies curing established only to extent were considered ground no there argued that be might performance, academic predicting suggests either however, record, Nothing this at all. “preference” were School by Medical considered factors quantitative any program special admissions petitioner's culturally or biased ethnic or Furthermore, if race any biases. such correct formulated prediction unbiased at an solely arrive used were background be would seats numbers of fixed reservation success, academic inexplicable.
A
If petitioner’s purpose is to assure within its student body-
specified
some
percentage
particular
of a
group merely because
of its race or ethnic origin,
preferential
such a
purpose must be
rejected not as insubstantial but as facially invalid. Preferring
members of any one group for no reason other than race or
ethnic origin is discrimination for its own sake. This the
Constitution
g.,
forbids. E.
Loving Virginia,
v.
supra,
11;
at
McLaughlin
Florida,
supra, at 196; Brown v. Board of
Education,
B The State has certainly a legitimate and substantial interest ameliorating, eliminating where feasible, disabling effects of identified discrimination. The line deseg- of school regation cases, commencing Brown, impor- attests tance of this state goal and the judiciary commitment of the to affirm all lawful means toward its In attainment. school cases, the States were required by order to court redress the wrongs worked specific instances of racial discrimina- tion. That was far goal more focused than the remedying the effects of “societal an discrimination,” amorphous concept of injury may ageless in its reach past. into the
We have approved never persons classification that aids perceived as members of relatively groups victimized *36 expense of other innocent judi- individuals in of the absence cial, legislative, or findings administrative of constitutional or statutory See, g., States, violations. e. United Teamsters v. 431 U. 324, S. 367-376 (1977); Organizations, United Jewish 430 U. S., 155-156; Katzenbach, at South Carolina 383 U. S. v. 301, 308 (1966). findings After such been the made, have governmental in preferring injured interest of members the groups expense at the of is others since the substantial, legal rights of the victims must be vindicated. In such case, the been will have remedy consequent injury and the extent the Also, defined. administratively or judicially, legislatively, over- continuing subject usually remains action remedial other harm possible work least that will to assure sight such Without for benefit. competing persons innocent cannot violations,44 it statutory or constitutional findings Marshall, White, Mr. Justice BreNNAN, Mr. Justice Mr. Justice holdings Court’s scope of this misconceive BlacicmuN and Mr. Justice is impact” alone “disparate they suggest VII when Title under analogy, civil and, by other of that statute to establish violation sufficient this was 363-366, 42. That and n. post, at See rights measures. in decision quite in the seminal clear VII was made meaning of Title (1971): Co., 401 U. S. Power Griggs Duke v. area, this minority majority, precisely is or any group, “Discriminatory preference for Congress is required by isWhat proscribed. Congress has only what and unnecessary employment barriers arbitrary, artificidl, and the removal of racial the basis invidiously on to discriminate operate barriers when added). (emphasis Id., classification.” impermissible other or only if the Title VII relief under impact basis is a disparate Thus, ibid., lacks necessity,” or on “business question is not founded practice id., See question,” at 432. relationship employment “a manifest 802-803, 805-806 Green, Corp. 411 U. S. Douglas McDonnell also litera- general opposed to some record —as Nothing in this White, Justice BreNNAN, Mr. Justice Mr. by Mr. Justice ture cited that the remotely suggests BlackmuN —even Marshall, and Mr. Justice Medical Davis program at general impact of the admissions disparate grades disparate scores test sort of from resulting primarily School, justification. supra, without educational in n. set forth impact without Griggs disparate presumption Moreover, the —that of discrimina- the existence established justification any showing business determinations, legislative on based the statute —was violation tion in handicapped various had past discrimination here, wholly absent traced impact could be disparate such an extent minority groups to past discrimination: instances to identifiable opportunities employment equality of sought] to achieve “[Congress an identifiable past to favor in the operated that have barriers remove practices, Act, employees. Under over other employees group of white in terms face, neutral even on their tests neutral
procedures, *37 said that the government any greater has interest in helping one individual than in refraining from harming another. Thus, the government has no justification compelling such inflicting harm.
Petitioner does not purport
to have made, and
in no
is
position to
such
make,
findings.
Its broad mission is educa-
tion, not
the formulation of any legislative policy or the
adjudication
particular
claims of illegality. For reasons
similar to those stated in
III
Part
of this opinion,
isolated
segments of
vast governmental
our
structures are not com-
petent
to make those decisions, at
least
in the
absence
legislative
mandates
legislatively determined criteria.45
Cf. Hampton Mow
v.
Sun Wong,
Hence, of as victims perceived School Medical Davis faculty that a classification justify does discrimination” “societal bear who respondent, like upon persons disadvantages imposes beneficiaries harm for whatever responsibility no To suffered. thought to have are program admissions special heretofore remedy a convert would otherwise hold all that privilege into a rights legal for violations reserved pleas- at their grant could the Nation throughout institutions of societal victims as perceived groups are to whatever ure Cf. approved. never step we is a have That discrimination. S.U. Spangler, Education v. Board City Pasadena C program, its purpose another identifies, Petitioner communities services delivery of health-care improving situa- that in some be assumed may It currently underserved. its care of facilitating the health interest a State’s tions suspect use support the sufficiently compelling to is citizens record in the virtually no evidence is there But classification. program admissions special petitioner’s that indicating court The goal.46 promote geared needed either proof: this failure of addressed below minority cannot assure concedes University
“The of whom all program, under entered who doctors disadvantaged in a practicing ‘interest’ an expressed correct may be It do so. actually will community, intention, this carry out them will that some assume minority practice in they will likely more it is is a to such underservice respect record with only evidence Record 473. newspaper article.
communities than the average white (See doctor. Sanda low, Racial in Higher Education: Political Preferences Responsibility and the Judicial Role (1975) U. L. Chi. Rev. 653, 688.) Nevertheless, there are precise more reliable ways to identify applicants who genuinely are interested in the problems medical minorities than An race. applicant of whatever race who has demon strated his concern for disadvantaged minorities in the past and who declares that practice in such community *39 is his professional primary goal would be more likely to contribute to alleviation of the medical shortage than one who is entirely chosen on the basis race and disad vantage. In short, there is no empirical data to demon strate any that one race is more selflessly socially oriented byor contrast that another is more selfishly acquisitive.” 18 Cal. 3d, 56, 553 2d, P. at 1167.
Petitioner has simply not carried its burden of demonstrating prefer must members of particular groups ethnic over all other individuals order promote better health-care delivery to deprived citizens. Indeed, petitioner has not shown that preferential its classification is likely to any have significant effect on problem.47
D The fourth goal asserted by petitioner is the attainment of a diverse student body. This clearly is a constitutionally per- 47It is not clear petitioner’s two-track system, adopted even if throughout country, substantially would increase representation of blacks in profession. the medical That is the finding study by of a recent & Mishell, Sleeth Under-Representation Black in United States Medical Schools, 297 England New J. of Med. 1146 Those authors main tain that the cause of black underrepresentation lies in the small size pool qualified national applicants. black In view, their this problem is poor premedical traceable experiences of black under graduates, and can be effectively remedied only by developing remedial programs for black students they college. before enter Academic higher education. for an institution goal missible constitutional enumerated specifically not a though freedom, First special concern as a been viewed long right, has its own university to make of a freedom Amendment. its student the selection includes to education judgments “four essen- summarized Frankfurter Mr. Justice body. freedom: academic that constitute freedoms” tial “ provide university of a business ‘It is the exper- speculation, conducive to most is atmosphere which there in which atmosphere It is an creation. iment university of a freedoms” four essential prevail “the —to teach, may who grounds on academic itself determine may who taught, how it shall taught, may be what ” Hampshire, Sweezy v. New study.’ be admitted result). (concurring (1957) U. S. of these safeguarding to the commitment national
Our emphasized communities university freedoms within : (1967) U. S. Regents, 385 Board Keyishian v. aca- safeguarding committed to deeply Nation “Our usof to all value of transcendent which is freedom demic *40 freedom That concerned. teachers merely to the and not Amendment.... First of the concern special is therefore through trained leaders upon depends Nation’s future The of ideas exchange robust to that exposure wide tongues, [rather] of a multitude ‘out of truth discovers selection.’ authoritative kind of any through than 372.” Press, Supp. F. Associated States v. United creation” —so and experiment “speculation, atmosphere The widely believed higher education —is quality to the essential the Court As body.48 student a diverse by promoted University has described some of Princeton president body: student a diverse from benefits derived through informally. It occurs learning occurs great deal “[A] religions, and races, sexes; of different among of both students interactions in Keyishian,
noted is not much say too depends upon “nation’s future through leaders wide trained exposure” to the ideas and mores of students diverse as this Nation of many peoples.
Thus, arguing that its universities must be accorded the right to select those students who will contribute the most to the “robust exchange petitioner counter- ideas,” invokes a vailing constitutional Amendment. interest, First In light, petitioner this must be viewed as seeking achieve goal that is of paramount importance in the fulfillment of its mission. may
It be argued that there is views greater force these undergraduate at the level than a medical school where the training professional competency. is centered on primarily But even at graduate level, experience our tradition and lend support diversity to the view that the contribution of Painter, In substantial. Sweatt v. 339 U. S., backgrounds; areas, come and rural who from cities from various states variety interests, talents, countries; perspec- and who have a wide tives; directly indirectly, able, and who are to learn from their differ- deeply ences another and to stimulate one to reexamine even their most assumptions graduate held themselves and their about world. As a wise commenting aspect process, of ours observed in on this educational very they only much ‘People do not learn when are surrounded likes of themselves.’ if, things, how, when, even
“In the nature of it is hard to know ‘learning through diversity’ actually It does not this informal occurs. everyone. many, however, unplanned, casual encounters occur For class, chemistry student roommates, organic fellow sufferers an squad, par- library, or other workers in the teammates on a basketball *41 yet and government can be subtle ticipants in class or student affairs growth.” understanding personal powerful improved and sources of Weekly Race, Princeton Alumni Bowen, Admissions and the Relevance 26, 1977). (Sept. legal reference to specific with point similar made a Court education: learning legal ground proving the school, law
“The from the in isolation be effective cannot practice, and interacts. the law which with institutions and individuals law would practiced has no one who Few students from removed vacuum, study in an academic choose to with exchange views the of ideas interplay the concerned.” is law otherwise An population. heterogeneous a serve Physicians background— particular a with medical student qualified advantaged or culturally ethnic, geographic, it be whether medi- school professional bring ato disadvantaged may— training ideas that enrich the outlooks, experiences, cine render graduates equip its better body and of its student humanity.49 service to their vital understanding with range in a element only however, one diversity, Ethnic goal in-attaining the may consider university properly factors university must Although a body. student heterogeneous of a toas judgments making the sensitive discretion wide have protecting limitations constitutional admitted, should who urges— Respondent disregarded. not be rights may individual admis- dual petitioner’s have held—-that courts below and the impermissibly classification racial is a sions program As the Amendment. Fourteenth under rights his infringes univer- in the context of compelling diversity is interest remains whether question program, sity’s admissions level, undergraduate decisions, those like admissions Graduate society “assessing potential contributions are concerned graduation her following his or each individual candidate —contribu poet, the doctor and way include the in the defined broadest tions keenest affairs and government participant in business most active parent.” solitary and the concerned organized, the scholar things all critic of Id., at 10.
program’s racial classification is necessary promote this interest. In re Griffiths, U. atS., 721-722.
V A It may be assumed that the specified reservation of a number of seats in each class for individuals from preferred ethnic groups would contribute to the attainment of considerable ethnic diversity in the body. student But petitioner’s argu- ment that this is only effective means of serving the inter- est of diversity is seriously In flawed. a most fundamental sense the argument misconceives the of nature the state interest that would justify consideration of race or ethnic background. It is not an in simple interest diversity, ethnic specified which- a percentage body student is in effect guaranteed to be members of selected ethnic groups, remaining percentage an undifferentiated of stu- aggregation dents. The diversity that furthers a compelling state interest encompasses a far broader array qualifications and charac- teristics which racial or ethnic origin is but a single though important element. special Petitioner’s admissions program, solely focused on ethnic hinder diversity, would rather than further attainment genuine diversity.50
Nor would the state interest in genuine diversity be served by expanding petitioner’s system two-track into a multitrack program prescribed with a number seats set aside for each identifiable category applicants. Indeed, is inconceivable that a university would pursue thus of petitioner’s logic two-track program to the illogical end of insulating each category applicants with certain qualifications from desired competition with all other applicants.
50 Manning, See The Pursuit of Higher Fairness in Admissions to Education, Carnegie Policy Higher Council on Education, Studies in Higher Selective Admissions in Education 57-59 university programs, of other admissions experience educational achieving into which take race account diversity Amendment, demonstrates valued the First *43 group places minority number of to a assignment of a fixed An illuminating necessary is not a means toward that end. College in example program: is found the Harvard con- expanded “In has years recent Harvard College disadvantaged cept diversity students from include College now economic, groups. racial and ethnic Harvard Louisianans but also only recruits not Californians or minority students. and Chicanos and other ... blacks diversity “In has meant practice, this new definition decisions. that race has been a factor some admission large When Committee on Admissions reviews group applicants middle who 'admissible’ and are courses, the capable good work in their doing deemed just applicant tip race of an the balance in his favor may spent may tip or a life on a farm geographic origin A from balance in other farm candidates’ cases. boy College Idaho can Harvard that a bring something to student can Similarly, Bostonian cannot offer. a black usually bring something person a cannot white Appendix offer. ... [See hereto.]
“In not Harvard has College admissions Committee target-quotas musicians, set for the number of or of blacks, physicists football players, Californians to be admitted given year. . But neces- . . that awareness [of sity of including more a token number of black than does not mean the Committee sets a students] minimum number of or of people blacks from west of the Mississippi who are to admitted. It only means in choosing among applicants thousands of who are only 'admissible’ but academically strong have other qualities, Committee, a number criteria mind, pays many some attention to distribution among
types and categories of students.” App. to Brief for Columbia University, Harvard University, Stanford Uni- versity, and the University of as Amici Pennsylvania, Curiae 2-3.
In such an admissions program,51 race or ethnic background may be deemed a “plus” in particular applicant’s yet file, does not insulate the individual comparison from with all other candidates for thé available seats. The file a par- ticular black applicant may be examined for potential his contribution to diversity without the factor of race being decisive when compared, for example, with that of an applicant identified as an Italian-American if the latter is thought qualities exhibit more likely promote beneficial educational pluralism. qualities Such could include exceptional personal *44 talents, unique work or service experience, leadership potential, maturity, demonstrated history compassion, of overcoming disadvantage, to ability communicate with the or poor, other qualifications deemed important. In short, an admissions program operated in this isway flexible enough to consider all pertinent elements of diversity in light of particular qualifications of each applicant, and place to them on the same footing for consideration, although not necessarily according them the same weight. Indeed, weight attributed to a
51The admissions program at Princeton has been described in similar terms:
“While race is not in and of itself a consideration in determining basic qualifications, and while there are obviously significant differences in back- ground experience and among applicants every race, in some situations race can be helpful enabling information in the admission officer to under- stand fully more particular what a accomplished candidate has against —and what Similarly, odds. family such factors as previous circumstances and opportunities educational may relevant, be conjunction either in with race (with ethnic background they may which be associated) or on their supra own.” Bowen, n. at 8-9. For an illuminating discussion of such flexible systems, admissions see Manning, supra n. at 57-59. upon depending year from vary year may quality particular for applicants and body student “mix” both class. incoming individual as an applicant each treats program kind
This on out loses who applicant process. admissions in the “plus” receiving candidate seat another the last available fore- been have not will background of ethnic basis on the he because simply seat for that consideration all from closed It would surname. wrong or had the right color not the may have qualifications, combined only that his mean outweigh those not did factors, nonobjective similar included been have would qualifications His applicant. other no basis have he would competitively, fairly and weighed Fourteenth under treatment unequal complain Amendment.52 program which admissions an suggested that has been
It more subtle simply a factor is as one only race considers racial according effective —means no less sophisticated —but dis- A intent facial program. the Davis than preference pro- preference petitioner’s is evident however, criminate, infirmity facial No such case. denied this gram back- or ethnic race where program in an admissions exists fairly against weighed element —to simply one ground boundary line,” “A process. selection elements —in other “is connection, another remarked Frankfurter Justice Mr. Dilworth, 322 McLeod v. being narrow.” the worse none *45 assume would And a court (1944). U. S. nondiscriminatory facially a employ professing university, a the func- for a cover it as operate would policy, admissions good faith short, In system. quota of a equivalent tional consideration right to individualized respondent this of The denial special petitioner’s evil principal is the race regard to his without BreNnaN, Justice opinion Mr. in the Nowhere program. admissions BlackmuN Marshall, Mr. Justice White, Justice Mr. Justice Mr. addressed. denial is this .even presumed
would be
in the
of a showing
absence
con-
the
trary in the manner permitted by our
g.,
cases. See,
Arling-
e.
ton Heights v. Metropolitan Housing Dev.
Corp.,
U. S.
252 (1977); Washington
Davis,
B In summary, it is evident special that the Davis admissions program involves the use of an explicit racial classification never before by countenanced this Court. It applicants tells who are not Negro, Asian, Chicano totally are they excluded from specific a percentage of the seats an entering No class. matter how strong their qualifications, quantitative and extracurricular, their including potential own for contribu- tion to educational diversity, they are never the afforded chance to compete with applicants from preferred the for groups the special admissions seats. At preferred same time, 53Universities, prosecutor like Swain, may make individualized decisions, in background which ethnic plays part, a under presumption legality legitimate purpose. long university educational So as the proceeds on individualized, an case-by-case basis, there is no warrant judicial interference in process. applicant academic If an can establish that the institution does not a policy comparisons, adhere to of individual systematic or can show that a groups results, exclusion of certain presumption legality might be overcome, creating necessity proving legitimate purpose. educational strong
There policy also are correspond reasons that to the constitutional petitioner’s preference distinction between program and one that assures competition measure of among applicants. all program will Petitioner’s inherently as by viewed public unfair generally appli- aswell cants for admission to state universities. Fairness in competi- individual tion for opportunities, especially provided by those State, widely is a cherished American Indeed, ethic. in a sense, broader underlying an assumption of the rule of law is the system worthiness of a justice based on fairness to the individual. As Mr. Justice Frankfurter declared in connection, “[j]ustice another satisfy must appearance justice.” v. United States, 348 U. S. Offutt *46 compete every for seat opportunity applicants have the class. its is petitioner’s preferential program
The fatal flaw in Fourteenth disregard rights guaranteed of individual as 22. Shelley Kraemer, 334 Such S., Amendment. U. distribution rights are not But when a State’s absolute. ancestry or the hinges on imposition benefits or of burdens is entitled to a dem- person’s color of a that individual skin, necessary to challenged onstration that classification promote a substantial interest. Petitioner has failed to state portion this of the Cali- carry this burden. For reason, holding petitioner’s special admis- judgment fornia court’s program sions under the Fourteenth Amendment must invalid be affirmed.
C enjoining petitioner considering In from ever the race any recognize the courts below failed to applicant, however, legitimately may State has substantial interest that involving by properly program be served devised admissions competitive origin. For consideration of race ethnic judgment this so much of the California court’s reason, any any race of enjoins petitioner from consideration of the applicant must reversed.
VI respect respondent’s injunction entitlement to an With has directing School, petitioner his admission to the Medical carry of proving that, conceded that could not burden its pro- special but the existence of its unlawful admissions respondent Hence, still would not have been admitted. gram, portion respondent injunction, is entitled to the judgment must be affirmed.54 permit remanding petitioner is no occasion for case There might happened operating type if it had have been reconstruct what Healthy supra. legitimate V, in Part Cf. Mt. program described as *47 APPENDIX TO OPINION OF POWELL, J.
Harvard College Admissions Program55 For the past 30 years Harvard College has received each year applications for admission that greatly exceed the number places in the freshman class. The number of applicants who are deemed be not “qualified” is small. comparatively The vast majority of applicants demonstrate through test high scores, school records and teachers’ recommendations that they have the academic ability to do adequate work at Harvard, and perhaps to do it with distinction. Faced with the dilemma of choosing among a large number of “qualified” candidates, the Committee on Admissions could use single criterion of scholarly and excellence attempt to determine who among the candidates were likely to perform best academically. But for the past years on Committee Admissions has never adopted this approach. The belief has been that if scholarly excellence were the sole or even predominant cri- terion, Harvard College would lose a great deal of its vitality and intellectual excellence and that quality of the educa- City Board Ed. Doyle, U. S. 274, 284-287 In Mt. Healthy, there was considerable doubt protected whether First Amend- activity ment had been the “but for” Doyle’s cause of protested discharge. Here, contrast, question there nois as to the sole reason respondent’s rejection purposeful racial discrimination — in the form special of the admis- sions program. Having injured respondent solely on the basis of an unlawful classification, petitioner cannot hypothesize now that it might have employed lawful means of achieving the same Arlington result. See Heights v. Metropolitan Housing Corp., Dev. S.,U. at 265-266. No one say can how—or petitioner even operated would have if— its admis- process sions if it had known legitimate alternatives were available. Nor is there a record revealing legitimate grounds alternative for the existed, decision as there was in Healthy. Mt. In sum, a remand would result in fictitious recasting past conduct. 55This statement appears in the Appendix to the Brief for Columbia University, Harvard University, Stanford University, and University of Pennsylvania, as Amici Curiae. Final suffer. would students to all offered experience tional Admission Bender, Chairman J. Report W. Financial Admissions Dean Scholarship Committee Consequently, after 1960). seq. (Cambridge, 20 et pp. Aid, will seem potential intellectual whose students those selecting out of an so 150 or faculty perhaps extraordinary — seeks— Committee 1,100 over class of entering —the impor- This has seemed choices. its variety making *48 to ingredient a critical it adds part because ... tant Harvard experience [in of the educational the effectiveness educar our students’ The . College]. . . effectiveness he to Committee to the has seemed experience tional interests, variety by a wide importantly affected goals as career talents, backgrounds and fine arrange- housing and libraries, laboratories our faculty and Report Final Glimp, Fred L. of Admissions (Dean ments. Register Sciences, 65 Official of Arts and Faculty to the (1968) 25, 93, 104-105 No. University of Harvard supplied). (emphasis ingredient diversity an essential adds belief
The College Harvard a tenet long been has process educational diversity however, years ago, twenty or Fifteen admissions. and Massachu- York, New California, from students meant and painters violinists, boys; farm city dwellers and setts; poten- classicists; historians biologists, players; football result politicians. academics and stockbrokers, tial Harvard attended minorities or racial few ethnic very expanded has College Harvard years In recent College. disadvantaged from to include diversity students concept now College Harvard groups. and ethnic racial economic, blacks but also Louisianans only Californians recruits Contemporary students. minority other Chicanos College Harvard that if mean in the United States conditions students, its first-rate education offer a continue is to representation minority in the undergraduate body cannot be ignored by the Committee on Admissions.
In practice, this new definition of diversity has meant that race has been a factor in some admission decisions. When the Committee on Admissions large reviews the group middle applicants who are “admissible” and deemed capable of doing good work in their courses, race an applicant may tip the balance in his just favor as geographic or a life origin spent on a farm may tip the balance in other candidates’ cases. A boy farm from Idaho can bring something to Col- Harvard lege that a Bostonian cannot offer. Similarly, a black student can usually bring something that person a white cannot offer. The quality of the experience educational of all the students in Harvard College depends in part on these in the differences background and outlook that bring students with them.
In Harvard College admissions the Committee has not set target-quotas for the number of or of blacks, musicians, foot- players, ball physicists or Californians admitted given year. At the same time the Committee is that if aware *49 Harvard College is to provide truly a heterogen[e]ous environ- ment that reflects the rich diversity of the United States, provided cannot be without some attention to numbers. It would not make sense, for example, to have 10 or students out 1,100 whose homes are west of the Com- Mississippi. parably, 10 or 20 black students could not begin to bring their classmates and to each other variety points view, backgrounds and experiences of in the blacks United States. Their small numbers might also create a sense of isolation among the black students themselves and thus make it more difficult for them to develop and poten- achieve their tial. Consequently, when its making decisions, Committee on Admissions is aware that there is relationship some between numbers and .achieving to be benefits from derived a diverse student body, and between numbers and providing a reasonable environment for those students admitted. But sets a Committee not mean does awareness of the from west people or of of blacks number minimum in only It means to be admitted. who are Mississippi only are not who applicants thousands among choosing qualities, strong other academically have but “admissible” some mind, pays in of criteria a number Committee, with categories and many types among to distribution attention students. help to illustrate required sometimes further refinements
The Admissions The to race. attached of significance the kind find itself might left to places fill, only a few Committee, with black child of a successful theA, choose between forced superior community promise with in an academic physician up in an black who grew and performance, B, academic academic whose parents of semi-literate inner-city ghetto energy had demonstrated lower but who achievement was in black interest apparently-abiding as an leadership as well A but much like of black students If number good power. might the Committee admitted, already B been like few had with extraor- student If a white C, versa. B; and prefer vice remaining one seeking talent, were also dinary artistic both edge him an over might give quality unique his places, qual- individual are often critical criteria A B. Thus, but sometimes upon race dependent experience ities it. associated White, of Mr.
Opinion Mr. Justice Brennan, Justice con- and Mr. Blackmun, Justice Marshall, Mr. Justice part. in dissenting judgment part curring in the judgment of reversing part today, Court power constitutional California, affirms Supreme Court *50 affirmatively to to act Governments of Federal and State difficulty issue for all. opportunity equal achieve pro- may use race-conscious government presented-—-whether past discrimination— continuing effects redress grams and the mature consideration which each of our Brethren has brought have resulted in many no opinions, single one speaking for the Court. But this should not and must mask the central meaning today’s opinions: Government may take race into account when it acts not to demean or any insult racial group, but remedy disadvantages cast on minorities by past racial prejudice, least when appropriate findings have been made by judicial, legislative, or adminis- trative bodies with competence to act in this area.
The Chief
and our Brothers Stewart, Rehnquist,
Justice
and Stevens, have concluded that Title VI of the Civil Rights
Act of 1964, 78 Stat.
amended, 42 U. S.
et
2000d
§C.
seq., prohibits programs such as that at the Davis Medical
School. On this statutory theory alone, they would hold that
respondent Allan Bakke’s rights have been violated and that
he must, therefore, be admitted to the Medical School. Our
Brother Powell,
reaching the Constitution, concludes that,
although
may
race
be taken into
in university
account
ad-
missions, the particular special
program
admissions
used
petitioner, which resulted in the exclusion of respondent
Bakke, was not shown to be necessary to
petitioner’s
achieve
goals.
stated
Accordingly, these
Members
form
Court
a majority of five affirming
judgment
Supreme
Court of California insofar as it holds that respondent Bakke
“is entitled to an order that he be admitted to the University.”
3d
18 Cal.
34, 64,
We with Mr. Justice that, as applied to the Powell us, case before Title VI goes no further in prohibiting the use of race than the Equal Protection Clause of the Fourteenth Amendment itself. We also agree that effect Supreme California Court’s affirmance of the judgment of the Superior Court of California would be prohibit the Univer- sity from in the future establishing programs affirmative-action ante, take race into account. See at 271 n. Since we conclude that the affirmative admissions program at the Davis *51 326 judg- the reverse would we constitutional, is School
Medical that agrees Powell respects. Justice all Mr. in below ment and, permissible are university admissions of -race uses some the reversing votes five to make with us joins he therefore, University from the prohibits as insofar below judgment future.1 the programs race-conscious establishing I are Men “all that principle on the founded was Nation Our acknowledgment requires candor Yet equal.” created 13 Colonies forge the Constitution, our of Framers the equality of principle this compromised openly Nation, one into com- this of consequences slavery. The antithesis: its our called aptly been have known well are promise recent how recount is well Still, it Dilemma.” “American of our promise the when come, yet has if it been, has time the opportunity of actuality equal into flowered has principles or color. race regardless for all Con- embodiment Amendment, Fourteenth been has equality, in human belief abiding of our stitution its half than more only slightly for our land law Clause Protection Equal half, half of And years. as late that, so moribund largely was Amendment importance up the sum could Holmes Mr. Justice con- resort the “last was that it remarking Clause 200, 208 Bell, 274 U. S. Buck arguments.” stitutional turned early Clause desuetude, than Worse (1927). condemning free, set intended it was whom those against status law, before status equal” but “separate ato them “Harvard” plan, like that a Powell Justice Mr. agree with We also so least approach, our under 316-318, constitutional is ante, at
plan, see body necessi student integrated an achieve race the use long as discrimination. past effects lingering by the tated Ferguson, S. 537 163 U. Plessy v. See always separate but seldom equal. until only Not 1954— years ago *52 this odious by doctrine interred our decision —was in Brown v. Board Education, (Brown 347 483 I), S.U. of and its progeny,3 proclaimed separate that schools public and of facilities all sorts inherently unequal were and forbidden under our Constitution. Even then inequality was not eliminated with speed.” “all deliberate Brown v. Board 4 Education, 349 U. S. 301 In (1955). 1968 and again of for 1971,5 example, we were forced to remind school boards of their obligation to eliminate racial discrimination root glance branch. And a at our docket6 and at dockets of lower courts will show that even today officially sanctioned discrim ination is not of thing past.
Against
background,
this
claims that
law must be “color-
blind” or that the datum of race is no longer
public
relevant to
policy must be
aspiration
seen as
rather
description
than as
of
reality. This
not
denigrate
is
to
aspiration;
reality
rebukes
us
race
has too often
by
been used
those who would
stigmatize
oppress
minorities.
we
we
and,
Yet
as
cannot —
shall
need not under
demonstrate,
our Constitution or Title
VI, which
extends
merely
the constraints of the Fourteenth^ —(cid:127)
private parties
Amendment
who receive
funds —let
federal
color
myopia
blindness become
reality
which masks the
many
equal”
“created
have been treated within our lifetimes
as inferior
by
by
both
the law and
their fellow citizens.
3
City
Improvement
Assn. v.
Detiege,
New Orleans
II VI Title whether decide must we question threshold funds of federal recipients bars of Act Rights Civil mem- disadvantaged consideration preferential giving from enable designed program of a part minorities racial bers racial by imposed obstacles surmount individuals such Brother our V-C I and Parts joinWe discrimination.7 conclusion his agree usof three opinion Powell’s ques- resolve us to require does case this II that Part VI.8 Title under of action right private ais there whether tion racial uses those only prohibits Title VI view, In our if Amendment Fourteenth violate would criteria not bar does agencies; its State employed *53 means aas minorities of racial treatment preferential such that extent the to discrimination societal past remedying The Amendment. Fourteenth the is consistent action inter- regulations administrative VI, Title history legislative executive congressional subsequent statute, the preting this compel Court of this decisions prior the action, prop- to support lends sources these None conclusion. efforts race-conscious bar all to intended Congress that osition to programs financed federally benefits extend to full from excluded historically been have who minorities life. American benefits
A request Kennedy’s President VI—from Title history of au- agencies departments executive grant Congress that provides: of Title VI Section color, or race, ground of shall, on the States United in the person “No of, benefits in, denied be participation from excluded be origin, national activity receiving or any program under discrimination to subjected be 2000d. C. 42 U. S. § assistance.” financial Federal private-right-of- address should we believes Justice White Mr. stating his opinion separate filed has he Accordingly, issue. action post, See VI. Title under action right of private no is there that view p. 379.
thority to cut off federal programs funds to that discrimi- against nate Negroes through final legislation enactment of incorporating his proposals one fixed purpose: —reveals give the Executive Branch of Government clear authority terminate federal funding private programs that use race as a means of disadvantaging minorities in a manner that would be prohibited by the Constitution if engaged by government.
This purpose was first expressed in Kennedy’s President June 19, 1963, message Congress proposing legislation subsequently became the Civil Rights Act of 1964.9
9“Simple justice requires public funds, to taxpayers which all of all contribute, races not spent any be fashion which encourages, entrenches, subsidizes or results in racial Direct discrimination. discrimination Federal, State or governments local prohibited by is the Constitution. But discrimination, indirect through the use of funds, just Federal invidious; and it should necessary be to resort prevent to the courts to each individual Congress violation. and the respon Executive have their uphold sibilities to also .... Constitution “Many providing statutes assistance, Federal however, financial define precision with such both the role and the upon Administrator’s conditions specified amounts given shall be designated recipients amount of administrative discretion remaining might be used to —which withhold funds if discrimination questionable. were not ended —is at best No administrator has the authority unlimited to invoke the Constitution opposition to the Congress. mandate always Nor would *54 helpful require to unconditionally proposed is often withdrawal —as —the of all Federal funds urgently from programs by needed Negroes as well whites; may only for this penalize those who least it deserve without ending discrimination. of permitting
“Instead this issue to political become a device often exploited by opposed those to progress, social or economic it would be better at pass this to single comprehensive time provision making it clear that the Federal any Government is required, statute, under not to furnish any kind by way of financial loan, contract, of grant, guaranty, assistance — insurance, any or program activity otherwise —to in or which racial dis- permit crimination occurs. This not would the Federal Government to cut off all Federal aid of all as a punishing kinds of an means area for the occurring discrimination clarify authority therein —but it would the Judiciary House the of Chairman the Celler, Representative legislation manager floor and the Committee, express unequivocally in words Title VI House, introduced with Government Federal to provide intent ing the not used subsidize were funds its assuring that of means imposed standards with inconsistent discrimination racial and upon state Amendments Fifth by the Fourteenth federal action. financed hospitals offer assurance
“The bill would care adequate deny not money would by Federal distribution of food abuse prevent It would Negroes. denied to be known been have Negroes whereby programs such given were persons when white supplies surplus food now accorded benefits Negroes assure It would food. education high[er] programs students only white short, assure would, in It funds. by Federal financed enjoyment in the treatment equal existing right private any rights destroy not would funds. It Federal Rec. Cong. of association.” freedom or property (1964). from apart VI, that Title Celler Representative It was clear even activities federally funded all it fact that reached to invoke control or federal sufficient state the absence sub- placing new Amendments, was Fifth Fourteenth rather criteria, but racial the use upon limitations stantive right to existing “the activities to such designed to extend Amend- those under enjoyed by Negroes treatment” equal of Title VI purpose defined specifically he later ments, way: in this Federal that the rather anomalous seems
“In general, on the discrimination abet aid and should Government money origin granting or national color, race, basis assistance or financial Federal funds respect to any administrator Cong. Rec. discriminatory practices.” 109 *55 and other kinds of financial aid. It seems rather shock- ing, moreover, that while we have on the one hand the 14th amendment, which is supposed to do away discrimination it provides for equal since protection of the laws, on the other hand, we have the Federal Government aiding and abetting persist those who in practicing racial discrimination.
“It is for these bring reasons we forth title VI. The enactment title VI will serve to override specific provisions of law which contemplate Federal assistance racially segregated Id., institutions.” at 2467. Representative Celler also filed a memorandum setting forth legal basis for the enactment of Title VI which reiterated the theme of his oral remarks: “In exercising authority its fix the terms on which Federal funds will be . disbursed . ,. Congress clearly power has to legislate so as to insure that the Federal Government does not become involved in a violation of the Id., Constitution.” at 1528.
Other sponsors of the legislation agreed with Representative Celler that the function of Title VI was to end the Federal complicity Government’s in conduct, particularly segre- gation or exclusion of Negroes, inconsistent with the stand- ards to be found in the antidiscrimination provisions Representative Constitution. Lindsay, also a member of the Judiciary Committee, candidly in the acknowledged, course of explaining Title VI was why necessary, that it did not create any new standard of equal beyond treatment that contained in the Constitution:
“Both the Federal Government and the States are under constitutional mandates not to discriminate. Many have raised question as to legislation whether is required at all. Does not the already Executive power have the distribution Federal funds to apply those conditions which will enable the Federal Government itself to live up to the mandate the Constitution and to require *56 332 up to the to live entities government local and
States amend- 14th and the 5th especially Constitution, most Id., at 2467. ments?” the authorize to needed was legislation explained that
He then exist- because Branch Executive the funding by of termination funds of expenditure contemplate to seemed ing legislation views Ibid. The institutions. segregated racially support to purpose concerning Lindsay and Celler Representatives and sponsors by other shared Title VI were function there is Nowhere House.10 in the legislation of the proponents federal to terminate intended Title VI any suggestion or of race consideration other than reason any funding incon- manner in a recipient institution origin national Constitution. incorporated in the standards with the sistent identical an reveals Title VI consideration The Senate’s legisla- scope purpose concerning understanding opened manager, floor the Senate Humphrey, tion. Senator of the analysis section-by-section with a the Senate debate purpose stated succinctly he in which Act Rights Civil VI: Title funds to make sure VI is of title purpose
“The discrimi racial support not used are States the United segregation practices many In instances nation. unconsti are end, seeks to title VI which discrimination, togo Federal funds clearly so wherever This is tutional. It discrimination. in racial engages agency a State private, support togo funds where Federal be so may also decision Simkims institutions, under segregated 4,A. (C. F. 2d 323 959 Hospital, Memorial Cone H. Moses cases, In all (1964)]. 938 S.U. denied, 1963), [cert. policy, contrary to national discrimination such simply VI is title Thus, Nation. sense the moral id., 2481- Dawson); at (1964) (Rep. g., Cong. 10 See, e. Rec. id., (Rep. at 2595 Matsunaga); id., (Rep. Ryan); (Rep. Donahue).
designed to insure that Federal spent funds are in accord- ance with the Constitution and the moral sense of the Id., at 6544. Nation.”
Senator Humphrey, in words echoing statements in House, explained legislation accomplish was needed this ob- jective because necessary it was uncertainty con- eliminate *57 cerning power agencies federal to terminate financial assistance programs to engaging in in racial discrimination the face of various federal statutes which appeared to author- grants ize racially to segregated Although institutions. Ibid. Senator Humphrey realized that Title VI reached conduct which, because of governmental insufficient action, might be beyond the reach of the Constitution, was clear him it to the substantive imposed by standard the statute was the Fifth and Fourteenth Amendments. supporters
Senate repeatedly expressed Title VI agree- ment with Senator Humphrey’s description legislation of the as providing explicit authority obligation apply the standards of the Constitution recipients to all of federal funds. Senator Bibicoff described the limited function of Title VI:
“Basically, there is a constitutional restriction against .discrimination in the use funds; of Federal VI and title simply spells procedure out the to be used in enforcing Id., that restriction.” at 13333.
Other strong proponents legislation of the in the Senate repeatedly expressed their intent to assure that federal funds only spent would in accordance constitutional stand ards. See remarks of id., Senator Pastore, 7062; at 7057, id., Senator Clark, 5243; id., at Senator Allott, 12677.11
11There is language 2000d-5, also- in 42 U. S. C. enacted which § supports the conclusion that Title Vi's of the Constitu standard tion. provides Section 2000d~5 purpose determining that “for the Title VI intended Congress contention that Respondent’s minorities designed to enable programs bar affirmative-action participate effects of discrimination disadvantaged by examina- by an is also refuted federally programs financed thought Congress which type of the of conduct tion reveal that debates VI. The by means of Title prohibiting eradi- by primarily desire motivated legislation was programs support federal financial very specific evil: cate a par- them from excluding Negroes disadvantaged Again facilities. separate them with ticipation providing purpose that the emphasized of Title VI again supporters federally funded ac- segregation statute was to end discriminatory uses of race disad- other tivities and to end in his theme Humphrey set the Negroes. Senator vantaging Title VI to the Senate: speech presenting by the United contributed “Large money sums of are operation, construction, for the year each States schools. segregated maintenance *58 grants Federal Act, under the Hill-Burton “Similarly, Negroes only or admit whites hospitals which are made to only. . .. part substantial also,
“In education higher forth, and so medical schools colleges, to grants Federal institutions. segregated to going is still the South VI], com- compliance with agency is in [Title a local educational whether court judgment a Federal or by agency with a final order pliance such by operated such system desegregation of the school or school for the VI], compliance insofar with deemed agency shall be [Title provision This judgment are concerned.” in the order or matters covered agencies simul- subjecting local educational clearly to avoid intended adminis- and the federal jurisdiction the federal courts taneously remedial measures imposition with the agencies in connection trative congressional reflects segregation. Its inclusion designed end school to those requirements imposed by are identical Title VI judgment that the by the federal courts. interpreted imposed the Constitution as “Nor In is this all. States, agricultural several exten- sion supported by services, Federal maintain funds, racially segregated Negroes offices for and whites. . .. “ . . training supported . Vocational with Fed- courses, eral given in funds, segregated are institutions schools and and often limit in less Negroes training occupa- skilled tions. In particular reported Negroes localities it is have been cut off from surplus relief or denied rolls, agricultural commodities, deprived otherwise benefit of federally assisted programs, retaliation their participation in registration voter sit-in dem- drives, Id., onstrations and the like.” at 6543-6544.
See also the remarks {id., 7054-7055); of Senator Pastore at {id., Senator Ribicoff Clark {id., 7064-7065); at Senator at {id., 5243, 9086); Senator 7102).12 Javits The conclusion to be drawn from foregoing is clear. Congress recognized that Negroes, in congres- some cases with sional were acquiescence, being against discriminated in the administration programs and denied the full benefits of activities receiving support. federal financial It was aware there many federally were programs funded and institu- tions which against discriminated in a minorities manner inconsistent the standards of the Fifth and Fourteenth Amendments but whose might activities not involve sufficient state or federal action so as to be in violation of these Amend- ments. Moreover, Congress believed that it was questionable whether Branch possessed legal Executive authority to funding terminate the ground activities on the they racially discriminated against Negroes in a manner violative of the standards contained in the Fourteenth and Fifth *59 already seen, proponents As has been of Title inVI the House were motivated the identical Representative concern. See remarks of (110 (1964)); Ryan Cong. Representative Celler Rec. 2467 (id., 1643, at 2481-2482); Rep. Cong., Sess., H. 88th pt. 2, R. No. 1st Additional Representatives Views of Seven 24-25 Govern- was to end the Congress’
Amendments. solution racial dis- constitutionally forbidden complicity ment’s au- with the by providing crimination the Executive Branch support its financial thority obligation terminate and the in a manner any activity employed which racial criteria by the condemned Constitution. Congress which might argued
Of be course, require enacted Title VI the Constitution strict understood then enshrined that neutrality racial or color blindness, concept statutory interpretation as a law. Later rule use permit clarification of Constitution remedial of race- dislodge prohibition race would then Title YI’s reasons to compelling conscious action. there are three But reject hypothesis. such a prop- adopted no decision of this Court has ever
First, infra, osition that Constitution must be colorblind. See at 355-356. Oven if in 1964 that the Consti-
Second, argued it could be Congress might conceivably blindness, tution color require surely codify such view unless would not have chosen to history of clearly required legislative it. Constitution to induce Title well as the statute reveals a desire VI, itself, voluntary of nondiscrimina- compliance requirement 2000d-l tory Act, § treatment.13 See 602 of the U. C. § S. unless it has been (no funds shall terminated and until by voluntary compliance be secured “determined cannot means”); Rep. pt. 1, p. H. R. No. 88th 1st Cong., Sess., id., (1963); Cong (1964) (Sen. Pasture); Rec. 13700 (Sen. Humphrey). Congress It is inconceivable that at 6546 encourage voluntary efforts to eliminate the evil intended forbidding at of racial discrimination while the same time voluntary acknowledged use of race-conscious cure remedies to statutory a reading or obvious of Title VI as violations. Yet upon adversely race prohibiting predicated all action White, post, separate opinion 382-383, Mr. See Justice n. 2. *60 any affects individual would require recipients guilty of dis- crimination to await the imposition of such remedies Executive Branch. Indeed, such an interpretation of Title VI prevent would recipients of federal funds from taking race into account even when necessary to bring their programs into compliance with federal constitutional requirements. This would be a remarkable reading of a statute designed to eliminate constitutional violations, especially in light of judi- cial decisions holding that under certain circumstances the remedial use of racial criteria not only permissible but is constitutionally required to eradicate constitutional viola- tions. For example, Board Education v. Swann, 402 U. S. 43 (1971), the Court held that a statute forbidding the assignment of students on the basis race uncon- stitutional because it would hinder the implementation of necessary remedies to accomplish the desegregation of a school system: “Just as the race of students must be con- sidered in determining whether a constitutional violation has occurred, so also must race be considered formulating a remedy,” Id., at Surely Congress did not intend to prohibit use racial criteria when constitutionally re- quired or to terminate the funding any entity which imple- mented such a remedy. clearly It desired encourage all remedies, including the use of race, necessary to eliminate racial discrimination in violation of the Constitution rather than requiring the recipient to judicial await adjudication of unconstitutionality judicial imposition of racially oriented remedy.
Third, legislative history shows that Congress specifi- cally any eschewed static definition of discrimination in favor of broad language that could be shaped by experience, administrative necessity, judicial evolving doctrine. Although it is clear from the debates that the supporters of Title VI intended to ban uses prohibited race by the Constitution and, more specifically, the of segre- maintenance “discrim- the term defined precisely they never facilities, gated *61 participation from exclusion an constituted or what ination,” This failure was of race. ground on the of benefits or a denial complained: Ervin Senator opponents. its upon not lost reference, in this as used word “The 'discrimination/ than the other whatever, explanation no contextual has individ- against’ be 'is to discrimination that the provision federally assisted from benefiting in or participating uals With specified. ground on the activities programs and by refer- this condemned discrimination context, this unequally treated an individual only when occurs ence or national religion, color, race, his because of unfairly or treatment? or unfair unequal constitutes What origin. They say. VI do title section 601 and Section to the executive question of that the determination leave with- program, each administering agencies department the con- out what is point whatever any guideline out Rec. 5612 Cong. intent.” gressional 1619); at Abernethy {id., Representative remarks See also Talmadge {id., 1632); Senator Dowdy at {id., Representative these 6052). Despite {id., at Sparkman 5251); Senator at in the include refused supporters legislation’s criticisms, definition explicit more debate a in provide or even statute prohibited. VI what Title Specific clear. definitions failure is for this explanation principal legislation’s views of in the undesirable,
were the Constitu- was that Vi’s standard Title because backers, administratively and should could and one tion {id., at Humphrey remarks Senator See applied. judicially 13333); Senator {id., at Ribicoff 6553); Senator 5606-5607, at {id., Javits 7057); Senator {id., at Pastore throughout strong emphasis was a there Indeed, 6050).14 proponents Vi’s of Title expectations also reflect These remarks their core the conduct the Constitution to application that the
Congress’ consideration of Title VI the Executive providing on Branch with apply- considerable in flexibility interpreting prohibition Attorney ing discrimination. against racial Kennedy regulations General Robert had not testified that been written into the rules and legislation itself because regulations defining pro- differ from one might discrimination gram another so that would assume different term in meanings pre- different This determination to contexts.15 flexibility serve of Title VI was shared the administration legislation’s supporters. offered When Senator Johnston expressly an amendment that would authorized federal have grantees placing to take into children race account adoptive opposed amend- *62 homes, foster Senator Pastore the which on the ment, ultimately vote, was defeated 56-29 that to act ground federal administrators could be trusted reasonably and no would danger they that there was that prohibit the of such circumstances. use racial criteria under Id., at 13695.
Congress’ of incorporate resolve not a static definition to In discrimination 1963 and surprising. into Title VI is not 1964, debated, when Title VI was the courts had drafted and only recently applied Equal the Protection Clause to strike public scope down racial in the America, discrimination and of in of principle that Clause’s nondiscrimination was a state flux rapid Many and such as whether questions, evolution. only jure the Fourteenth Amendment barred de discrimination inor at least some de discrimina circumstances reached facto yet judicial had not resolution. tion, received an authoritative congressional The of the evolu debate reflects an awareness segregation federally Negroes programs of in funded and concem —the programs their exclusion from the full benefits of such clear. See —was supra, 333-336; infra, 340-342, at n. 17. 15Testimony Attorney Kennedy Hearings of in before the Sen General Judiciary Cong., ate on the on 1731 and 1st Committee S. S. 88th Sess., (1963). 398-399 of racial the area in law constitutional change that
tionary 1964.16 in undergoing discrimination with prohibition Vi’s Title of equating Congress’ sum, In Amendments, Fourteenth Fifth and commands which discrimination racial that define precisely its refusal the statute that expectation its prohibit, intended con- compel the manner, flexible ain be administered would statute’s of the meaning intended Congress clusion the commands interpretation with to evolve prohibition of racial use any claim Thus, Constitution. of the must the statute language plain by the is barred criteria its VI of Title purpose remedial of the light fail em- language nature cryptic history. legislative concern Congress’ reflects merely VI Title ployed means aas standards of racial use then-prevalent determination its Negroes disadvantaging excluding or recently have We discrimination. absolutely such prohibit “ meaning construction aid ''[w]hen held can certainly there available, is statute, as used words, clear use, however forbids its law” “rule be no ’ ” Train v. examination.” “superficial on may appear words 1,S. Group, 426 U. Research Interest Public Colorado Assns., Trucking American States v. United quoting (1976), when, so especially This 543-544 S. 310 U. *63 is believed of what application literal the here, case is the is so that assuming statute, of the language plain the Congress’ conflict in direct to results lead would plain, purpose.17 legislative expressed unequivocally id., Humphrey); 16 (Sen. (1964) 6544, 13820 g., 110 Cong. See, e. Ree. Allott).. (Sen. id., 12677 Javits); at (Sen. 6050 at theory Title of support colorblind for a finds Stevens 17 Our Brother weight to a gives undue interpretation history, but his legislative its inVI legislative pages the thousands among from passages few isolated id., 6047, 7055 at (Sen. Humphrey); id., at 6547 history VI. See of Title Kuchel). id., at 6561 (Sen. Allott); (Sen. id., at 12675 Pastore); (Sen. congressional supporting far short fall fragmentary comments These B Section 602 of 42 VI, Title U. S. C. 2000d-l, § instructs federal agencies to promulgate regulations Title interpreting prohibit intent racially conscious admissions program designed to likely assist those who are injuries to have suffered from the past effects of discrimination. In the place, first these statements must be read in the context in they which were made. The speakers concern of the was far removed injuries from the may incidental upon be inflicted non- by minorities the preferences. use of racial It was rather with the evil of segregation Negroes federally in programs and, financed in some cases, arbitrary their exclusion on account of race from benefits of such programs. Indeed, in this context there can be no doubt that the Four- teenth Amendment does color command blindness and forbids the use of racial criteria. No given by consideration legislators, however, was these permissibility to the preference of racial designed to redress the effects of injuries suffered as a result of Significantly one’s color. legisla- one of the tors, Pastore, Senator and perhaps Kuchel, also Senator who described Title VI as proscribing decisionmaking upon based color, skin also made it clear that Title VI does not the use of outlaw racial criteria in all circum- supra, stances. See 339-340; Cong. at Ree. id., See also (Rep. Celler). at 2494 Moreover, many there are in legis- statements history explicitly lative indicating Congress require neither intended prohibit nor to preferences remedial use racial where not otherwise required prohibited by Representative MacGregor Constitution. directly problem preferential addressed treatment: your “Your mine, mail and contacts and constituents, mine with our great degree indicates a misunderstanding People about this bill. com- plain 'balancing’ about racial public schools, open occupancy about in housing, preferential quotas about treatment or employment. There is a Congress mistaken belief legislating in these areas in this bill. When we drafted this bill excluded largely we these issues because problems by questions raised these controversial are properly more governmental handled at a level close to people by American communities and individuals themselves. spelled The Senate has out our specifically.” Id., intentions more at 15893. legislators explained Other the achievement of racial balance ele-
mentary secondary schools where there had segregation been no compelled by law Title VI but was rather judgment left to the state and See, id., local g., (Sen. communities. e. at Javits); id., (Sen. at 5807, Keating); id., (Sens. Humphrey *64 statute, terms of the under which, the regulations, These YI. considerable are entitled approval, Presidential require Nichols, g., Lau v. e. See, VI. construing Title deference (Sen. id., Kuchel); at 13695 (Sen. id., also, at 6562 Saltonstall). See Pastore). the found in to be remarks the scattered be said of the same can Much 1964, C. U. S. Rights Act of the Civil history YII of of Title legislative dis employment Y), prohibits Supp. seq. (1970 and ed. et §2000e those con similar in terms somewhat basis race on the crimination fail or (a) (1) (unlawful “to 2000e-2 VI, 42 U. S. C. see Title § tained in color, race, individual's “because of such any applicant hire” refuse to any deliberate the effect that .”), to origin ... sex, national religion, or by required the is not balance a racial employer to maintain by an attempt (1964) See, g., Cong. Rec. e. it. might fact violate statute (Rep. id., Humphrey); at 2560 (Sen. Case); id., at (Sens. Clark and Congress intended no indication that again, there is Goodell). Once surmount minorities to preferences to voluntary assist use of racial the bar discrimination. Even by past remnants imposed the obstacles maintaining deliberately employers prohibits from assuming VII that Title itself, an force as end composition in their work particular racial question, any consideration imply, in the absence of does this as a tool for preferences use of racial to bar the Congress intended com other remedying past discrimination objective of achieving the requirements of contrary may to the well be former ends. The pelling involved), (where is while state Amendment action the Fourteenth Indeed, as dis very considerations. different constitutional presents latter requiring Title VII as 353, has construed infra, this Court cussed advancing those who hiring purpose preferences for racial use of discriminatory employment practices, by past adversely affected have been Franks innocent of discrimination. employees expense of other even at (1976). Although Co., 767-768 Transportation 424 U. S. Bowman v. remedy the require employers take action to clearly does not Title VII than their by hands other minorities imposed upon racial disadvantages goals remedial objective perfectly consistent with own, such an Paper Moody, 422 762-770; Albemarle Co. id., at statute. See legislative his in the no more indication (1975). There is U. S. prohibit Congress desired to in that Title VI tory than of Title VII Constitu it is permitted action to extent affirmative such subsequent congressional yet judicial decisions as well executive tion, reme does not forbid race-conscious clearly that Title VII action establish 353-355, and n. 28. infra, at dial action. See
Title 45 CFR (b) § 80.3 (6) (i) (1977) provides:
“In administering program regarding which the recipient has previously discriminated against persons on ground of race, color, or national origin, recipient must take action affirmative to overcome the effects of prior discrimination.”
Title 45 CFR (i) § 80.5 (1977) upon elaborates this requirement:
“In some situations, even though past discriminatory practices attributable recipient or applicant have been abandoned, the consequences of practices such con- tinue to impede the full availability of a benefit. If the efforts required of the applicant or recipient under § 80.6 (d)', provide information as to the availability of the program or activity and rights of beneficiaries under this regulation, have failed to overcome these conse- quences, it will become necessary the requirement under stated in (i) § 80.3 (b) (6) for applicant such or recipient to take additional steps make the benefits nationality previously groups fully available to racial and might take This action subject to discrimination. obtaining for arrangements example, special form, will insure making referrals selections ade- to discrimination are previously subjected groups quately served.” *66 is a need clearly establish that where there regulations
These discriminatory or past racially to effects of overcome insti- federally funded exclusionary practices in- a engaged required permitted but tution, only race-conscious action is not course, of VI.18 Of accomplish objectives the remedial Title has been guilty there the Medical is no evidence that School consequently regulations these past of discrimination and program preferential not of compel employ would it to a difficult minorities. It would be- admissions behalf racial much less VI, however, explain from the of Title language compels race-con- legislative why from its the statute history, recipient engaged has scious remedies where a institution past discrimination but such remedial action where prohibits past a effects of discrimina- minorities, racial result of the imposed by tion are excluded recipient, entities other than from funded HEW was federally programs. the benefits fully interpretation incongruous aware of the nature such an of Title VI. (b)(6)(h) provides: 45 CFR 80.3 (1977) §
Title prior discrimination, “Even in the absence of such a recipient in take affirmative administering program may which, action to overcome the effects of conditions resulted purpose specify regulations has stated that the “to HEW these steps equitably that affirmative to make more available are not services required necessary prohibited steps and that such are to overcome when consequences prior Reg. discrimination.” Fed. agencies provide pursuant Other which financial assistance federal regulations. adopted Supplemental similar See Brief for Title VI have United States as Amicus n Curiae n. 14. in limiting participation by persons particular race, color, or national origin.”
An explanatory regulation explicitly states that the affirmative action (b) § 80.3 (6) (ii) contemplates includes the use preferences: racial
“Even though applicant an or recipient has never used discriminatory policies, the services and benefits of the or program activity it administers may not fact be equally to some available racial nationality groups. In such circumstances, an applicant or recipient may prop- erly give special consideration to race, color, or national origin make the benefits program of its more widely available to such groups, then being adequately served. For example, where a university is not ade- quately serving particular members of a racial or nation- ality group, it may special establish policies recruitment *67 to make its program better known and more readily available to such group, and take steps provide other to group adequate more service.” 45 CFR § 80.5 (j)
This interpretation of Title fully VI is consistent with the emphasis statute’s upon voluntary remedial action and reflects views an agency19 responsible for achieving its objectives.20 19Moreover, the delegated President has to the Attorney respon General sibility coordinating for the enforcement of Title by depart VI federal agencies
ments and and has directed departments him to “assist the agencies in accomplishing effective implementation.” Exec. Order No. 11764, (1971-1975 3 CFR 849 Comp.). Accordingly, the views of the Solicitor General, as well as HEW, those of that the prefer use of racial ences for remedial purposes is consistent with Title VI are entitled to con respect. siderable administers HEW least explicitly at two programs. race-conscious concerning Details may them be found Management in the Office of of a statute construction that the recognized has The Court deserving particularly with its execution by charged those its has directed attention Congress respect where Cf. Red it unaltered. and left construction administrative 381; FCC, at Zemel S., Broadcasting Co. v. U. Lion recently took Congress 11-12 (1965). Rusk, U. S. an amendment action when considered this kind of just and Wel- Health, Education, of Labor and Departments restricted would have bill for appropriation fare by the funded in programs remedial use race significantly by originally submitted amendment, as The appropriation. funds Ashbrook, provided “[n]one Representative out or carry initiate, may Act be used in this appropriated system other any or action any of affirmative program enforce employ- policies or regard admission goals quotas any require discrimination encourage or practices which ment Cong. age.” sex or creed, religion, of race, the basis on 205-206, 401-402. Federal Assistance Domestic Budget, Catalogue as its “Minority Support,” has 13.375, Biomedical program, first No. objectives: ethnic'minority faculty, students, and the number of
“To increase investi- for opportunities broaden the engaged in biomedical research. To gators students, faculty, minority research of in biomedical ethnic participation programs support biomedical research providing investigators eligible institutions.” (1) four-year col- program is limited to grants under this Eligibility for minority universities, professional with over and health schools leges, 50% necessarily significant four-year but enrollments; (2) institutions with encourage- they history minority have a provided enrollment over 50% minority *68 (3) two-year colleges minorities; with and assistance to ment 50% pur- made (4) Indian Tribal Councils. Grants enrollment; and American $9,711,000for 1977. program are estimated to total this to suant “Minority Access To Research program, 13.880, No. entitled The second minority train to objective institutions Careers,” to “assist has as its Grants in health related fields.” numbers of scientists teachers greater directly individuals and institutions are made to to program this under grants enabling to individuals. them make purpose Rec. 19715 (1977). In support Representa- measure, tive Ashbrook argued that the 1964 Civil Rights Act never authorized imposition of affirmative action and that this was a creation of the bureaucracy. Id., 19722. He at ex- plicitly stated, however, that he permitting favored univer- sities to adopt affirmative-action programs giving consider- ation to identity racial opposed but imposition of such programs by the Id., Government. His amend- 19715.. ment was itself amended to position by only reflect this bar- ring the imposition of by race-conscious remedies HEW:
“None of the funds appropriated in may this Act obligated or expended in connection with issuance, or implementation, any enforcement rule, regulation, standard, guideline, recommendation, or order issued the Secretary of Health, Education, Welfare which for purposes of compliance any or ratio, quota, other numerical requirement related to race, color, na- creed, tional, or origin, sex requires any individual or entity to any take respect action with (1) or hiring promo- tion policies or practices of such or individual or entity, (2) the policies practices admissions or of such individ- ual entity.” Id., at 19722.
This amendment was adopted by the House. Ibid. The Senate bill, however, contained no such upon restriction authority HEW's impose race-conscious remedies upon Committee, Conference the urging of Secretary HEW, deleted the provision House from the bill.21 More significant for present purposes, however, is the fact that even proponents of imposing upon limitations imple- HEW’s mentation of Title VI did challenge right federally funded educational voluntarily institutions prefer- extend ences to racial minorities. Rep. 95-538, p. (1977); 21 H. R. Conf. No. Cong. Rec. 26188 Cong., (1977); See H. J. 95-205, 95th 1st Sess. Res. Pub. L. 1460. Stat.
348 of passage the subsequent action congressional
Finally, Congress’ views about doubt any possible VI eliminates Title pur- the for preferences racial permissibility concerning the confirms It disadvantaged racial minorities. assisting pose now not does prohibit and intend to Congress did that part race as consideration prohibits VI Title that believe there where even discrimination remedy for societal of a has preference extending institution showing that no finding that any judicial nor discrimination past guilty been been have preference the racial beneficiaries particular by societal discrimination. adversely affected explicitly legislation22 enacted Congress year last Just public any local “for be made shall grants no requiring that satisfactory assurance gives applicant unless the project works centum per 10 least at that Secretary Commerce] [of minority expended grant shall be each amount of of the “minority term statute defines The enterprises.” business centum per 50 least business, at “a enterprise” business aof minority in case or, members by group is owned which stock of the business, centum per at least owned publicly The term minority group members.” is owned terms: racial explicitly is defined members” “minority group Soanish- Negroes, are who United States of the “citizens Although Aleuts.” Eskimos, and Indians, Orientals, speaking, “to requirement from this exemption an contains the statute otherwise,” Secretary this determines the extent possibility with only to deal provided clause escape sufficient not contain might country of the areas certain enterprises” compliance permit “minority business qualified legislation.23 provisions quota with legislation history race-conscious of this legislative to deal attempt a deliberate represents reveals ed.). (1976 (f)(2) S. 42 U. C. §6705 91 Stat. id., 5327-5330. (1977); Cong. Ree. *70 the excessive rate of unemployment among minority citizens and to encourage the development minority viable con- trolled enterprises.24 It was believed that such “set-aside” was required in order to enable still minorities, “new on the scene” and “relatively small,” compete larger with (cid:127)more established companies which always would be successful in underbidding minority enterprises. 123 Rec. 5327 Cong. (1977) (Rep. Mitchell). is significant What most about the congressional consideration of the measure is that although the use of a racial quota or “set-aside” recipient of fed- eral funds would constitute a direct violation of if Title VI that statute were read to prohibit race-conscious no action, mention made during the debates in either the House or the Senate of even the possibility that the quota provisions for minority contractors might any conflict way with or modify Title It VI. is inconceivable purported that such a conflict would escaped have congressional attention through an inadvertent failure to recognize the relevance of Title VI. Indeed, the Act of which this affirmative-action provision is a part also provision contains a barring discrimination on the basis of sex which states prohibition that this “will be enforced through agency provisions and rules similar to those already established, respect to racial and other discrimination under Title VI of the Civil Rights Act of 1964.” 42 U. S. C. (1976 6709 ed.). § Thus Congress was fully aware the ap- plicability of Title VI to the funding public works projects. Under these circumstances, enactment of the “set- 10% aside” for minority enterprises congressional reflects a judg- ment that the remedial use of permissible race is under Title VI. We have repeatedly recognized that subsequent legisla- tion reflecting an interpretation of an earlier Act is entitled to great weight in determining the meaning of the earlier stat- Red ute. Lion Broadcasting FCC, Co. v. 395 U. atS., 380- 24 id., (Sen. See Brooke). 7156 243-244 States, S.U. United Erlenbaugh v.
381; 64- Stewart, 311 U. S. States v. United also See (1940).25 C suggest strongly also Court of this Prior decisions such race where use of the remedial prohibit Title VI does Nichols, In Lau constitutionally permissible. action the San failure held that (1974), Court U. S. discussed quota provision the enactment addition In 10% meas mandating race-conscious other Acts passed Congress has also supra, Although minorities. by racial experienced disadvantages ures to overcome *71 they VI, Title meaning of bearing upon the less direct have these statutes measures remedial race-conscious Congress believes that do demonstrate circumstances. some at least under and desirable permissible both to be volun limit to Congress intended the likelihood turn undercuts This in (a) of the example, 7 For § implement similar measures. tary to efforts Act, 1977, provides: Authorization Foundation Science National an initiate shall Foundation Science Director of National “The minority and groups, women, qualified members for search intensive National positions in the level fill executive handicapped individuals subsection, requirement this carrying out the In Foundation. Science been active have closely which organizations shall work the Director technical and of the scientific recognition and utilization seeking greater The Direc- handicapped individuals. women, minorities, capabilities women, handicapped minorities, representation improve the tor shall mecha- other panels, and all committees, advisory review on individuals community provides assistance by which the scientific nisms ed.). (1976 C. following S. 2056, note U. § 90 Stat. Foundation.” Minority funding of authorizes the the Act also importantly, more Perhaps Act, 90 (c) (2) Stat. Section Education. Centers Graduate 2056, requires these Centers: enrollment; minority student “(A) have substantial centers; minority population near “(B) geographically are located minority assisting encouraging and “(C) a commitment demonstrate faculty; researchers, and students, for the engineering in science regional resource a “(F) serve as will serve; and designed to Center is community
minority which the undergradu- nearby programs with joint develop educational “(G) will Francisco system school to provide English-language instruc- tion to students of Chinese ancestry do not speak who English, provide or to them with instruction in Chinese, constituted a violation of Title VI. The Court relied upon an HEW regulation stipulates that a recipient of federal funds “may not . . . utilize criteria or methods of administration which have the effect of subjecting individuals to discrimina- tion” or have “the effect of or defeating substantially impairing accomplishment of objectives of the program respect as individuals of particular race, color, or origin.” national 45 CFR (b) § (2) 80.3 interpreted It this regulation as requiring San Francisco to extend the same educational benefits to Chinese-speaking students to English-speaking students, even though there was no finding allegation city’s that the failure to do so was a result of a purposeful design to dis- criminate on the basis of race.
Lau significant in two respects. related it indicates First, in at least some circumstances agencies responsible for the administration of may Title require VI recipients who have guilty been any constitutional depart violations from policy of color blindness-and to be cognizant impact of their upon actions racial minorities. clearly Lau Secondly, requires that institutions receiving federal funds be accorded *72 considerable latitude voluntarily undertaking race-conscious action designed to remedy the exclusion of significant num- ate higher' institutions of education which minority have a substantial stu- dent enrollment.” ' again, Once there is no legislative indication in history this of Act or Congress any inconsistency elsewhere that saw between the race-conscious legislation nature of such meaning And, of Title again, VI. once unlikely is in the Congress extreme that a which believed that it had recipients commanded of federal absolutely funds to be colorblind would expend itself federal funds in such race-conscious manner. See also the Railroad Regulatory Revitalization and Reform Act of 1976, 45 S. C. U. (1976 seq. ed.), 801 et seq. (1976 § U. S. et ed.); C. 1657a the Emer- § gency Act, School Aid seq. (1976 U. S. ed.). C. 1601 et § pro- federally funded from the benefits bers of minorities ques- yet considered the Court has not grams. Although this construing analogy our decisions by presumably, tion, Title be in violation would not a medical school VII, Title underrepresentation of the serious under Lau because VI it could body long as in its student minorities racial correlated suffi- requirements its entrance demonstrate that minority in medical students ciently performance of with the inconsistent It would be profession.26 medical school and the regula- and the HEW emphasis of Title VI with Lau that an institu- require voluntary action, however, on tions of the law before to be in violation adjudicated tion to be wait action undertake corrective voluntarily being permitted to failure and reasonable belief that upon based a good-faith is satisfy requirements minorities to entrance of certain racial as doctors but performance ultimate a measure their not discrimination. past societal lingering effects result of our Lau, light read in recognize especially when We Davis, Washington 426 U. S. subsequent decision in govern- proposition that (1976), rejected general which a racially it has solely because mental action is unconstitutional upon being predicated be read as disproportionate impact, may Title VI circumstances, under some at least that, view prohibited proscribes might conduct for the reasons opinion, now of the Constitution. we are Since applicable alike standard, Title Vi’s above, set forth no funds, of federal is broader public private recipients concerning the serious doubts Constitution’s, than the we have that decision. premise to be the appears correctness of what impact alone accepting implication Lau’s even However, prima facie to establish a sufficient is some contexts Title Vi’s contrary to our view that VI, violation of Title absolutely coextensive discrimination definition racial respondent assist the this would not Constitution’s, with the *73 26 Griggs Co., (1971). Power Cf. v. Duke U. S.
in the least. First, for the reasons discussed supra, at 336-350, regardless of whether Title prohibitions VTs extend beyond the Constitution’s, the evidence fails to establish, and, indeed, compels the rejection of, the proposition that Congress in- tended prohibit recipients of federal funds from voluntarily employing race-conscious measures to eliminate effects of past societal discrimination against racial minorities such as Negroes. Secondly, Lau for itself, the reasons set forth in the immediately preceding paragraph, strongly supports view that voluntary race-conscious remedial action permissible is under Title VI. If discriminatory racial impact alone enough to demonstrate at prima least a facie Title VI viola- tion, it is difficult to believe that the Title would forbid the Medical School from attempting correct the racially exclu- sionary effects of its initial policy admissions during first years two of the School’s operation.
The Court has also declined to adopt a “colorblind” interpre-
tation of other statutes containing nondiscrimination provi-
sions similar to that
contained
Title VI. We have held
under Title VII
where employment
requirements have a
disproportionate impact upon racial
they
minorities
constitute
a statutory violation, even in the absence of discriminatory
intent, unless
employer
is able to demonstrate
requirements
are sufficiently related to the needs of the
job.27 More significantly,
the Court has required that pref-
erences be given by employers to members of racial minori-
ties as
remedy
past
violations of Title VII, even where
there has been no finding that
the employer has acted with a
discriminatory intent.28 Finally, we have construed the Voting
27Ibid.; Albemarle Paper
Moody,
Co. v.
(1975).
Rights voting any barring provision a contains which V), Supp. of right “the abridges or denies that qualification or procedure race- approved Appeals of Courts of number 103) a 1972, 86 Stat. of See, discrimination. employment effects of remedy the to action conscious 2d Vogler, F. 407 v. Workers Asbestos Insulators & Frost g., Heat & e. 2d F. Workers, 428 v. Electrical States 1969); United (CA5 1047 v. States United (1970); 943 S. denied, U. 400 (CA6), cert. 149-150 1965, the President- 1969). In (CA8 123 2d Workers, F. 416 Sheetmetal as Comp.), which (1964-1965 339 CFR 11246, 3 No. Order Exec. issued re Comp.), (1966-1970 684 11375, 3 CFR No. by Order Exec. amended dispro remedy the to action affirmative to take contractors quired federal in construction the in minorities racial employment of low portionately race concluding that opinion an issued Attorney General dustry. The conflict did not 11246 No. by Order required Exec. consciousness Title VII: making from employers prohibits say Title VII that to not correct “It is any in the stage for consideration origin factor a national race or of discrimination legal The definition employees. obtaining process of opinions judicial recognized now well it is one, but evolving an by the by or statute imposed nondiscrimination, whether obligation may permit circumstances, and, in some require does not Constitution, alternative consequences racial indifference obliviousness neutral outwardly application involve of action courses (1969). 405, 411 Atty. Op. Gen. 42 criteria.” v. Eastern Pa. Assn. See, g., Contractors e. agreed. courts The federal S. 854 denied, 404 U. cert. (CA3), 159 Labor, F. 2d Secretary of affirmative race-conscious 2d, at held, F. (which also (1971) Assn. Builders Illinois VI); Southern Title under permissible was action enacting the Congress, Moreover, 1972). (CA7 2d 680 F. Ogilvie, 471 proposals rejected considered VII, explicitly Title 1972 amendments interpretations judicial prevailing and the No. Order Exec. to alter race-con requiring, circumstances some and in permitting, Title VII Study in the Plan: A Philadelphia Comment, The See action. scious 723, 747-757 L. Rev. Chi. Power, 39 U. Dynamics Executive Title VTI amendments analysis of section-by-section reveals on H. R. Report Committee Conference undertaken interpretations judicial now) (as prevailing then accept resolve Title scope of VII: any areas itself, or not address does new law any area where “In assumed indicated, is not intent contrary specific where
any citizen of the United States to vote on account of race or color,” as permitting States to voluntarily take race into ac- count in a way that fairly represents the voting strengths of different racial groups in order to comply with the commands of the statute, even where the gain result is a for one racial *75 group at the expense of others.29
These prior decisions are indicative of the Courtis unwilling- ness to construe remedial designed statutes to eliminate dis- against crimination racial minorities in a manner which would impede efforts to attain objective. this There is justifica- no tion for departing from this course case Title VI and frustrating the clear judgment of Congress that race-conscious remedial is permissible. action
We turn, therefore, to our analysis of Equal Protection Clause of the Fourteenth Amendment.
Ill
A
The assertion of human equality is closely associated with
the proposition that differences in color or creed, birth or
status, are neither significant nor relevant
way
to the
in which
persons should be treated. Nonetheless, the position that such
factors must be “constitutionally
an irrelevance,” Edwards
v. California,
deed, we of occasions. statutory “overriding an implied always have cases
Our (1964), 192 184, Florida, S.U. McLaughlin v. purpose,” See, classifications. racial justify would found that could be (1967); U. S. Virginia, ibid.; Loving v. g., e. (1944); States, 323 U. S. United v. Korematsu 81, 100-101 States, 320 U. S. United Hirabayashi v. (1971), Barresi, U. S. v. McDaniel recently,
More Court Supreme Georgia unanimously reversed this Court adopted voluntarily plan desegregation that a held had which basis on the students assigned board, local school by a And colorblind. was not because it invalid per se race, held, we Swann Education Carolina Board North colorblind mandating statute unanimously, again back “against not stand could plans school-assignment would remedies on limit *76 a such since segregation,” ground at S., 402 U. of Brown [/].” promise illusory the “render 45-46. are classifications racial that therefore, conclude,
We Accordingly, Amendment. Fourteenth under the se invalid per be should role our articulating what problem to the we turn race. by classifies expressly that action state reviewing B always are classifications racial that argues Respondent weigh the should Court that this consequently, and, suspect admis- special by Davis’ served objectives importance addition, In compelling. are they see if program sions judg- in its whether, inquire must Court this he asserts classifications racial alternatives are ment, there hand, other on the Petitioner, purposes. Davis’ suit would accept petitioner’s simply role proper our states program its used classifications racial determination benign its us are tells to what reasonably related are purposes. reject We petitioner’s view, but, because prior our cases are in many respects inapposite to that before us now, we find it necessary with precision define the meaning of that inexact term, “strict scrutiny.”
Unquestionably we have held that
government
practice or
statute which restricts “fundamental rights” or which contains
“suspect classifications” is to
subjected
to “strict scrutiny”
and can be justified only if it furthers a compelling govern-
ment purpose and, even then, only if no less restrictive alterna-
tive is available.30
g.,
e.
See,
San Antonio Independent
School District v. Rodriguez, 411 U.
1,S.
16-17 (1973); Dunn
v. Blumstein, 405
S.
U.
But no fundamental right
is involved here. See San Antonio, supra, at 29-36. Nor do
whites as a class
any
have
of the “traditional
indicia of sus-
pectness: the class is not
saddled
such disabilities,
sub-
or
jected to such
history
of purposeful unequal
treatment,
relegated to such a position of political powerlessness as to
command extraordinary
protection from
majoritarian
political process.” Id.,
28;
see United States v. Carolene
Co.,
Products
ment —are (1886);32 374 356, S. 118 U. Hopkins, Yick v.Wo See more. (1880); 308 303, S.U. Virginia, West Strauder v. accord, Cali v. Oyama States, 223; at supra, v. United Korematsu concurring); J., (Murphy, (1948) 633, 663 U. S. fornia, 332 Florida, supra, v. McLaughlin (1954); I, U. S. Brown Reitman 11-12; at Virginia, supra, Loving v. 191-192; at Jewish United (1967); 375-376 S. Mulkey, 387 U. v. (UJO) (1977) 144, 165 430 U. S. Carey, v. Organizations Rehnquist Stevens, by joined J., (opinion White, concurring part).33 in id., (opinion JJ.); at neatly fit not does this case fact that hand, the other On mean not cases does race for framework analytic prior our into rational- loose very applying by analyzed be it should that always is least that very is that of review standard basis “ recitation mere cases.34 ‘[T]he equal protection in applied shield an automatic is not purpose compensatory benign, of a refusal for reason resisted, [the no that be cannot conclusion 32“[T]he national hostility to the race except exists permits to Chinese] to issue therefore, is, The discrimination belong .... petitioners ity to which . . . illegal .” recognized Ferguson the Court Plessy v. Indeed, even in would to another inferior one race presumed by race that classification S., 544r-551. 163 U. at See to be condemned. have gen cases argument supported Paradoxically, petitioner’s cases, race scrutiny” standard “strict thought to establish erally Korematsu (1943), and S. 81 States, 320 U. Hirabayashi v. United example, Hirabayashi, In States, S. 214 323 U. United rational, sus racial classification that a a claim Court, responding to a conclusion solely the basis on racial classification tained a been might have say facts which negative it could double Japanese differentiating citizens ground for no afford available “could S., A at 101. 320 U. States.” in the United ancestry groups from other S., at Korematsu, 323 U. see analysis was followed similar mode “imme were racial classifications there that though the Court stated even Id., scrutiny.” rigid subject “the most diately and should be suspect” 216.
359 protects against any inquiry into the purposes actual ” underlying statutory a scheme.’ Webster, ano v. 430 Calif S. 317 313, U. (1977), quoting Weinberger 420 Wiesenfeld, v. U. 636, S. 648 (1975). Instead, a number of considerations— developed in gender-discrimination carry cases but which even more force applied when to racial classifications —lead us to conclude that racial classifications designed to further reme “ purposes dial important 'must serve governmental objectives substantially must be related to achievement of those ” objectives.’ Webster, v. supra, quoting at 317, Califano Craig Boren, v. 429 U. S. (1976).35 190, 197 disagree We our suggestion, ante, Brother Powell’s at that 303, presence groups of “rival they, which can claim too, are entitled preferential distinguishes treatment” gender cases or is relevant to question scope judicial review of race classifications. We are not asked to determine groups whether other than those favored program Davis similarly should favored. All we to do are asked is to pronounce constitutionality of what Davis has done. But, were any we asked given to decide group whether rival —German- Americans example for constitutionally preferential be accorded —must treatment, we '“principled basis,” ante, do have a 296, deciding at this question, one that is well in our program established cases: The Davis expressly sets out four preferred classes Ante, which receive status. clearly 274. The program distinguishes whites, but one cannot reason from this a conclusion German-Americans, group, as a national are singled out for invidious And program treatment. even if the had Davis differential impact German-Americans, they on have no would constitu- they prove tional claim unless could invidiously that Davis intended against discriminate Arlington Heights German-Americans. See v. Metro- politan Housing Corp., Dev. 252, (1977); Washington 429 U. S. 264-265 Davis, 229, U. S. 238-241 If shown, this could not be principle then “the scrutiny that calls for the closest of distinctions in laws denying rights fundamental ... inapplicable,” is Morgan, Katzenbach v. (1966), U. S. only question and the it whether was rational for Davis to groups preferred conclude greater had claim to compensation groups than the ibid.) it excluded. San See Antonio Inde- pendent School Rodriguez, District v. (1973) U. (applying S. 38-39 Katzenbach test to state action intended to remove discrimination in edu- *79 often too [has] classifications like, “gender-based First, race, politi stigmatize stereotype and inexcusably utilized been Shevin, 416 v. Kahn society.” of segments powerless cally carefully aWhile opinion). (dissenting (1974) 357 351, U. S. could discrimination remedy past designed to statute tailored Schlesinger Webster, supra; v. vices, see these avoid Califano we Shevin, supra, v. Kahn (1975); 498 Ballard, 419 U. S. v. and honest between line that recognized have nonetheless and discrimination past of the effects of appraisal thoughtful statute that clear and so is not stereotyping paternalistic all stigmatizing capable patently is the latter on based Ballard, Schlesinger v. inferiority. Cf. badge of with a women concur (opinion 3n. 174, at UJO, supra, 508; at supra, (1977) 223 199, 430 S.U. Coldfarb, v. part); in ring Califano Stanton also See judgment). concurring J., (Stevens, de programs State 14-15 7, U. S. Stanton, 421 v. dis racial past effects ameliorate ostensibly to signed since stigma, hazard same obviously create crimination the views reinforce separatism racial may promote they are minorities racial members believe who of those UJO, See own. on their succeeding incapable inherently (opin ante, at part); concurring 172 (opinion at supra, J.). ion of Powell, v. Weber see illegitimacy, gender and like Second, race, im- is an 164 (1972), S. Co., 406 U. Surety & Casualty Aetna powerless are possessors its characteristic mutable se invalid per a classification While set aside. or escape charac- immutable basis an on the classes divides it because such true it is nevertheless 355-356, at teristic, supra, see burdens “legal belief deep our contrary to are divisions or responsibility individual relationship to some should bear may they although groups, of rival Thus, claims opportunity). eational problems relatively simple create thorny political problems, create courts.
wrongdoing,” Weber, supra, 175; Frontiero Richardson, (1973) U. S. (opinion of Brennan, White, and Marshall, JJ.), and that sanctioned, advancement sponsored, approved by should ideally State be based on individual merit or or at achievement, the least on factors within the control, of an UJO, individual. See atS., (opinion 430 U. concurring Kotch part); v. Board River Port Pilot Comm’rs, 330 U. (1947) S. J., dissenting). (Rutledge,
Because this principle is so it deeply might sup- rooted posed that would be considered in legislative process *80 weighed against benefits of programs individ- preferring uals because of their race. necessarily But this is so: The “natural consequence of our governing processes ’[may well that the most 'discrete and be] insular’ of . whites . . will upon be called to bear the immediate, direct costs benign UJO, discrimination.” supra, (opinion at 174 concurring part). Moreover, it clear is from our cases that are there limits beyond majorities may not go they classify when on the basis of Weber, immutable See, g., characteristics. e. supra. Thus, even if concern for individualism is weighed political by the process, weighing that cannot waive the per- rights sonal of individuals under the Fourteenth Amendment. Lucas See v. Assembly, Colorado General 377 U. 736 S. In sum, significant because of the risk that racial classifica- tions established for ostensibly benign purposes can be mis- causing used, effects not unlike those created invidious it is classifications, inappropriate inquire only whether there any is conceivable might basis that sustain such a classifica- Instead, justify tion. such a an important classification articulated purpose and for its use must be shown. In addi- any tion, statute must be stigmatizes any stricken that or that group singles represented out those least well in the process to political benign bear the brunt of a program. Thus, review under our Fourteenth should Amendment 362 “ fact,” because theory and fatal 'strict’ in
strict —not searching and fatality strict causes stigma is —but nonetheless.
IV past the effects purpose remedying Davis’ articulated impor- sufficiently cases, our under is, discrimination societal programs admissions of race-conscious the use justify tant minority concluding sound basis there is a where chronic, substantial underrepresentation is of minor- access impeding handicap past discrimination Medical to the School. ities
A
Board,
S.
391 U.
County School
Green v.
least since
At
has itself
body which
public
that a
been clear
(1968), it has
cannot
discrimination
engaged
racial
adjudged to have
been
Clause
Protection
Equal
with the
compliance
bring
into
itself
neutral
adopting a
unlawful acts and
its
simply by ending
Charlotte-Mecklenburg
Swann v.
years later,
Three
stance.
companion
and its
Education,
(1971),
402 U. S.
Board of
U. S.
County,
Mobile
Comm’rs
Davis
School
cases,
Barresi,
(1971);
402 U.
McDaniel v.
S.
(1971);
*81
Swann,
43
402 U. S.
Board
Education v.
Carolina
North
of
racially
past
neutral
for
dis
that
remedies
reiterated
(1971),
past
dis
inadequate
consequences
were
where
crimination
See,
present
or control
decisions.
criminatory
influence
acts
Charlotte-Mecklenburg,
And
Court
supra,
28.
g.,
at
e.
orders
desegregation
courts could enter
held both that
further
race,
to
faculty
reference
assigned students
which
Davis,
Charlotte-Mecklenburg,
supra;
supra; United States v.
Ed.,
(1969), and
County Board
plans which express made reference necessary to race if this was discrimination. McDaniel v. remedy to past effects of Barresi, supra. we Moreover, stated that even boards, school in the absence of judicial a finding past discrimination, could adopt voluntarily plans assigned students with creating the end of racial pluralism by fixed establishing ratios of black and white students in each school. Charlotte- Mecklenburg, supra, at In 16. each the creation of instance, unitary systems, school in which of past the effects discrimina Creen, tion supra, had been “eliminated branch,” root and 438, was recognized compelling goal social justifying overt use race.
Finally, the conclusion educational institutions that state may constitutionally adopt programs designed to admissions historically avoid exclusion of disadvantaged even minorities, programs when explicitly such race into finds account, take support congressional direct in our cases construing legislation designed present past overcome the effects of discrimina- Congress tion. can and has actions outlawed which have a disproportionately mem- unjustified impact upon adverse and bers of racial minorities required and has or authorized race- disadvantaged by conscious action such put individuals impact position they enjoyed. in the otherwise have might Co., See Franks Transportation Bowman U. S. States, Teamsters v. United (1976); 324 (1977). U. S. require Such relief does not as predicate proof recipients! \ preferential individually advancement have been discrimi- against; \ enough recipient nated it that each is within a general persons likely class to have been the of dis- victims id., objection crimination. See at 357-362. Nor is an J preference such relief upset minorities will the settled Franks, supra. expectations of In nonminorities. See addi- held tion, Congress, we have remove equal barriers to *82 has required employers can and to use crite- opportunity, test fairly qualifications ria that reflect the of minority applicants 364 interpret this means nonminority applicants, even if
vis-á-vis light of his race. See applicant qualifications of an ing (1975).37 435 422 Moody, Co. v. U. S. Paper Albemarle simply by presence distinguished These cases cannot be for race-conscious findings discrimination, judicial not findings have approved where such have been remedies UJO; ano Barresi, see supra; been made. McDaniel v. Calif Ballard, 419 Schlednger Webster, (1977); 313 v. 430 S. v. U. (1975); Shewn, 416 U. S. (1974). 351 See 498 Kahn v. U. S. Indeed, Morgan, 384 U. Katzenbach S. also constitutional judicial determination a requirement re for race-conscious predicate as a statutory or violation requirement self-defeating. Such actions would be medial voluntary com to achieve severely undermine efforts would society our And of law. requirements pliance with voluntary ef the value of always stressed jurisprudence have interven Judicial objectives of the law. forts to further the illegal conduct cessation of last resort to achieve tion is a prerequisite rather than a remedying its effects action.38 employment Albemarle, approved “differential validation” In we requires employer procedure that an S., 422 U. at 435. That
tests. See minority job appli of, for a example, for must ensure that a test score nonminority applicant. thing of 50 for a means the same as a score cant minority of 50 for a By implication, it determined that a test score were whites, the test corresponded “potential employment” to a for employer hired consistently with Title VII unless could not be used nonminority though might hire even he minorities with scores Thus, clear that below 60. it is applicants with scores above 50 but equal may adopt race-conscious opportunity, have to employers, to ensure practices. hiring put great Rights Act of 1964 Indeed, Titles of the Civil VI VII supra, at 336-338. action. See emphasis on in remedial voluntarism Equal Employment Opportunity has Commission And, significantly, the employers adopt prefer recently authorizing racial proposed guidelines they basis for have a reasonable ences as a remedial measure where
365 Nor can cases distinguished our be on ground entity using explicit racial classifications itself had violated § of the Fourteenth regu Amendment or an antidiscrimination for lation, again race-conscious been approved remedies have UJO, where this is not the S., (opinion case. See 430 U. at 157 of White, joined by J., Stevens, Brennan, Blackmun, id., Rbhnquist JJ.);39 (opinion at 167 J., joined by White, Webster, supra, ano v. and Stevens, JJ.);40 317; cf. at Calif Shevin, Kahn supra. Moreover, presence or absence past by employers largely discrimination universities or respondent’s irrelevant to resolving constitutional claims. by The claims of those burdened the race-conscious actions of university who employer adjudged has been in never violation of any an law more or antidiscrimination are less entitled to than the of the burdened deference claims Transportation Franks v. Bowman nonminority in workers Co., supra, in employer which the had violated Title VII, employees past each case the are innocent discrimination. although might argued it And, that, employer be where has an expectations violated an antidiscrimination of non- law, the minority products are themselves of discrimination workers Franks, supra, “tainted,” and hence see at and therefore easily argument upset, more the same can be made respondent. respect If it was reasonable to conclude —as qualify we hold that was—that failure of minorities due regular procedures for admission Davis under principally past effects of than there is discrimination, pervasive likelihood but for racial discrim- that, reasonable believing they might otherwise held in violation of Title VII. Reg. See Fed.
proving past “[T]he “[T]he [Voting Rights] State is unconstitutional [not] powerless to Act’s apportionments prohibition minimize the ... ....’’ is not dependent consequences upon regularly practiced it is polls.” racial discrimination voters when at the for admission qualify would have failed respondent ination, program.41 special Davis’ admissions in the absence even Act have Rights Civil under Title VII our cases Thus, previ minority participation to achieve order that, held *84 or require may life, Congress public areas ously segregated disadvantaged likely for those treatment preferential authorize been has legislation discrimination.. Such racial by societal inten findings requirement a even without sustained to or authorized required those by discrimination racial tional determination case-by-case or treatment, a preferential accord racial discrimination. from benefited suffered to be those r.sthat may also conclusion that States compel the decisions These \ substan to overcome designed programs race-conscious adopt \ there is underrepresentation where reason minority chronic tial, past racial42 product is a believe that evil addressed 41 Brother by suggesting, as our distinguished cannot be Our cases anyone “the relevant deprived of them does, that none of in Powell of the deprived whites cases have Ante, school at 304. Our benefit.” deprived choice; have our Title VII cases of their neighborhood school seniority expectations; settled nondiscriminating employees of their in strength. of these bloc-voting Each deprived the Hassidim UJO here. constitutionally respondent’s cognizable as is juries was disagree providing Mr. Powell do not understand Justice We compelling purpose suffi a remedy past prejudice can constitute for racial Yet, petitioner scrutiny. ante, because at 305. See to meet strict cient allow it to exer administering university, he would not corporation is a “judicial, legislative, administrative or power in the absence cise such Ante, we statutory 307. While findings violations.” of constitutional had Davis been follow a in this case would that reversal agree fortiori mandated or if a federal statute discrimination guilty invidious racial any policy that had a applying admissions from refrain that universities Barresi, 402 g., v. impact, see, e. unjustified racial McDaniel disparate and Transportation Co., 424 U. S. (1971); Bowman Franks v. U. 39S. significance Davis has (1976), it of constitutional we do not think adjudged. so been delegate governmental Generally, in which a State chooses the manner Sweezy Hampshire, 354 U. S. New it to decide. Cf. functions under power Congress’ pursuant Title VII was enacted Amendment. Fourteenth of the § Clause and the Commerce Clause under the Commerce Congress acted To the extent that governmental of race use restricted power, it was Due of the component equal 'decisionmaking by protection same precisely to the Amendment Fifth of the Process Clause Amend- Fourteenth by § as are the States extent rests on Title VII extent that to the Therefore, ment.43 as Franks decisions such our power, Commerce Clause by result). California, con- concurring in (Frankfurter, J., (1957) authority operation of place over chosen to provision, has stitutional Const., Cal. Regents. See University Board of of California in the University found not is to be (a). Control over Art. 9§ legisla- full Regents have been vested who legislature, rather in the but adjudicative powers administrative, and (including policymaking), tive App. Regents, 266 Cal. ibid.; Ishimatsu v. California. See citizens of *85 Regents, Goldberg (1968); 756, v. 863-864, 762-763 Rptr. 72 854, Cal. 2d Op. (1967); Cal. 463, 30 874, Rptr. 468 867, 57 Cal. App. 2d 248 Cal. legislature, have the (“The Regents, not the 162, (1957) Atty. 166 Gen. University”). power regard the in rule-making policy-making or general supra, we, our Sweezy, unlike choice, permissible see certainly is This requires Equal that Protection Clause nothing in the find Powell, Brother the scope power by limiting the of principle depart from established us to may constitu- narrowly powers than the that may more Regents exercise Assembly. by tionally the be wielded administrative plenary legislative and exercise Regents the can
Because not use that Davis could to insist form over substance power, it elevates adjudged in violation it had been programs until remedial race-conscious Equal For, Pro- if the statute. antidiscrimination or an Constitution the Regents could predicate, the required as a such a violation Clause tection disparate treatment not prohibiting regulation promulgated a simply have students, qualified and could have only by need to admit justified the regulation on the basis such a been in violation to have declared Davis during first applied the policy exclusionary of the admissions effect infra, 370. years operation. See of its two 43 same Amendment area analysis in Fifth “Equal protection Buckley Valeo, v. 424 U. S. Amendment.” Fourteenth that under the Wiesenfeld, Weinberger 420 U. v. S. citing (1976) (per curiam), 1, 93 n. 2 States, implicitly v. United (1977), Teamsters U. S. consistent with use of race is affirmative recognize that the Amendment component of the Fifth protection equal extent Amendment. To the with the Fourteenth therefore Amend- 5 of the Fourteenth Congress pursuant § acted that em- recognize Congress was impliedly that those cases ment, preferential treatment to accord powered provision under order to overcome past discrimination to victims see no reason to conclude that segregation, and we effects 1 of the voluntarily accomplish § under cannot States Four- under 5 of the Congress § Fourteenth Amendment what compel validly may authorize or either teenth Amendment A persons contrary position do. private States recognizing understanding, conflict with the traditional would to initiate measures consistent competence the States policy congressional pre-emp- federal the absence of ywith Nothing legisla- subject tion of the matter. whatever history of either the Fourteenth Amendment or the tive Rights remotely even suggests Civil Acts the States are furthering purpose equal foreclosed from fundamental the Amendment opportunity to which and those Acts are Indeed, voluntary initiatives addressed. the States goal equal opportunity recog- achieve the national have been nized to be to its attainment. “To use the Fourteenth essential against power Amendment as a sword such State would stul- Corsi, Railway Mail Assn. tify Amendment.” (1945) J., concurring).44 U. S. We there- (Frankfurter, *86 Assn, Railway forbidding Mail held that a state statute racial dis by organizations abridge crimination certain labor did not the Associa process rights tion's due secured the Fourteenth Amendment because policy that result “would be a distortion of the in that manifested amend ment, adopted prevent legislation which was designed state to perpetuat^ S., discrimination on basis of race or color.” 326 U. That 94. case principle voluntarily go beyond thus established the that a State could eliminating required private what the Fourteenth Amendment racial discrimination.
fore conclude that Davis' goal of admitting minority students disadvantaged by the effects of past discrimination is suffi- ciently important justify use of race-conscious admissions criteria.
B Properly construed, therefore, prior our cases unequivocally show that a state government may adopt race-conscious programs if the purpose of such programs is to remove the disparate racial impact its actions might otherwise have and if there is reason to believe that the disparate impact is itself the product past discrimination, whether its own or that of society at large. There is no question that Davis' program is valid under this test. on
Certainly, the basis of the undisputed factual submis- sions before this Court, Davis had a sound basis for believing problem of underrepresentation of minorities was sub- stantial and chronic and that problem was attributable to handicaps imposed on minority applicants by past present racial discrimination. Until at least 1973, the practice of medicine in country this was, in if fact, not in law, largely the prerogative of whites.45 In 1950, for example, while Negroes 45 According to 89 schools responding questionnaire to a sent to 112 (all medical schools of the then-accredited medical schools in the United except States Howard and Meharry), substantial efforts admit minority students did not begin until 1968. year That was the year earliest of in volvement for of the schools; an 34% additional became involved 66% during years 1969 to 1973. See C. Odegaard, Minorities in Medicine: From Receptive Passivity to Action, Positive 1966-1976, p. (1977) (hereinafter Odegaard). These efforts were reflected in significant increase in the percentage minority M. graduates. D. The number of American Negro graduates increased from in 1970 to 2.2% 1973 and 3.3% Significant 1975. percentage 5.0% increases in the number of Mexi can-Ameriean, American Indian, and mainland Puerto graduates Rican were also recorded during years. those Id., at 40. The statistical information cited in this and the following notes was compiled by Government officials or medical educators, and has been *87 370 con- physicians Negro population, total the of
constituted 10%
The
physicians.46
of
number
total
the
of
only
stituted
2.2%
in
educated
were
moreover,
these,
of
majority
overwhelming
and
Howard
schools,
medical
Negro
predominantly
two
of
proportion
the
between
gap
the
1970,
By
Meharry.47
population
in the
proportion
their
and
medicine
in
Negroes
medicine
in
employed
Negroes
of
number
The
widened:
had
48
had
population
Negro
the
while
frozen
remained
2.2%
pre-
to
admittees
Negro
of
number
to
increased
11.1%.49
in
declined
had
moreover,
schools,
medical
white
dominantly
19.
Odegaard
1964.
1955
years
during the
numbers
absolute
the
believe
reason
very good
had
Davis
Moreover,
medi-
in
minorities
of
underrepresentation
of
pattern
national
admissions
single
retained
if
perpetuated
would
cine
1969,
and
in 1968
classes
entering
the
example,
For
standard.
1
only
included
used,
a standard
such
which
in
years
the
year.
each
for
50 admittees
out
Negroes
2
and
Chicano
underrepresenta-
of
pattern
this
from
relief
any
there
isNor
in
program
admissions
regular
the
statistics
in
tion
years.50
later
persistent
and
serious
conclude
could
clearly
Davis
depicted
medicine
in
minorities
of
underrepresentation
minority
under
handicaps
of
result
is the
statistics
these
delib-
of
background
of a
consequence
aas
labor
applicants
education
in
minorities
against
discrimination
purposeful
erate,
nor
parties
Neither
briefs.
many
attention
our
brought
discussion.
our
to in
alluded
statistics
validity
challenge the
amici
(1958).
xxvii, 3
Medicine, pp.
46
and
Reitzes, Negroes
D.
physi
Negro
percentage
example, the
47
1964, for
1955
Between
schools
at these
trained
were
who
States
United
graduated
cians
19.
Odegaard
See
from
ranged
75.8%.
69.0%
Minorities
Welfare,
Education,
48
Health,
Dept.
S.U.
1974).
May
75-22,
(HRA)
(Pub. No.
7
Fields
Health
Women
Census, vol.
Census,
Commerce, Bureau
Dept. S. U.
pt.
Table
J.).
Powell,
(opinion
6n.
ante, at
See
*88
and in society generally, as well
inas
profession.
medical
From the inception of our national
life, Negroes have been
subjected
unique
legal disabilities impairing
to equal
access
educational opportunity. Under
penal
slavery,
sanctions were
imposed upon anyone attempting to educate Negroes.51 After
enactment of the Fourteenth Amendment
the States continued
to deny Negroes equal educational opportunity, enforcing a
strict policy of segregation that
itself stamped Negroes as
inferior,
I,
Brown
347 U.
S.
(1954),
relegated
minori
ties to inferior educational institutions,52 and that denied them
intercourse
the mainstream of professional life necessary to
advancement.
See Sweatt v. Painter,
Green v. County School Board,
51See,
g.,
e.
R. Wade, Slavery in the Cities: The South 1820-1860,
pp. 90-91 (1964).
52 For an example of unequal facilities in California schools, see Soria v.
Oxnard School Dist. Board,
C The second prong our test —whether the Davis program stigmatizes any discrete group or individual and whether race 56Congress and the Executive have adopted also a series of race- programs, conscious each predicated on an understanding equal oppor tunity by cannot be neutrality achieved because of the past effects of and present discrimination. supra, See at 348-349. objectives program’s of the light in reasonably used —is is program. Davis by the clearly satisfied oper way any in program Davis’ not even claimed
It or insular, and discrete any out or single to stigmatize ates harm will Nor nonminority group. identifiable, any even by ex minorities upon racial imposed to that comparable result likely be of race the on separation grounds or clusion ex establish an example, not, for It does program. and exclusive from apart minority students for preserve clusive effects overcome tois purpose its Rather, of whites. are whites True, together. the races bringing by segregation program, admissions special in the participation from excluded of whites number to reduce operates only this fact but in order program admissions regular in be admitted their than percentage of a reasonable admission permit —less under otherwise 57—of population of the California proportion applicants.58 minority qualified represented Califor approximately constitute alone and Chícanos Negroes 22% in contained from data computed percentage This population. nia’s 6-4, 139. Table California, sec. 49, pt. supra Census, n. is buttressed program special admissions constitutionality of the School, a the Medical in positions only restriction its 16% California, see minority in population that of than less percentage qualified admission minority applicants deemed ibid., to those profes medical and the Medical School to the likely to contribute deemed minority putting goal This is consistent with 67. Record sion. evil for the in if not been they have would position applicants question not raise case does Accordingly, this discrimination. racial if it unconstitutional be would of race use a remedial even whether qualified appli preference to minority applicants unqualified admitted consideration, racial minorities preferential admitted, a result cants representation proportional in excess of their significantly in numbers inadequately might well programs Such population. relevant *91 pro allusion objectives. Our remedial by legitimate justified admin State population of the in the of minorities portional percentage figure or either to establish is not intended program istering the case, In this benchmark. constitutional as a universe population
Nor was Bakke in any sense stamped as by inferior Medical School’s rejection of him. Indeed, it is conceded satisfied, all that he those regarded criteria by school generally relevant to academic performance better than most of the minority members who were admitted. Moreover, there is absolutely no basis for concluding that Bakke’s re- jection as a result of Davis’ use of preference racial will affect him throughout his life in the same way as the segregation of the Negro schoolchildren in Brown I would have affected them. Unlike discrimination against racial minorities, use of preferences racial for remedial purposes does not in- a pervasive flict injury upon individual whites in the sense that wherever they go or whatever do they is there signifi- cant likelihood that they will be treated as second-class citizens because of their color. This distinction does not mean that the exclusion of a white resulting from the preferential use of race is not sufficiently serious to require justification; but it does mean that the injury inflicted by such a policy not distinguishable from disadvantages caused by a range wide of government actions, none which has ever been thought impermissible for that reason alone.
In addition, there is simply no evidence that the Davis pro- gram discriminates intentionally or unintentionally against any minority group which it purports to benefit. The pro- gram does not establish a quota in the invidious sense of a ceiling on the number of minority applicants to be admitted. Nor can the program reasonably regarded as stigmatizing the program’s beneficiaries their race as inferior. Davis program does not simply advance qualified less appli- ; cants rather, compensates applicants, who it is uncontested are qualified fully to study medicine, for educational disad- vantages which it was reasonable to conclude product were a even respondent, as we understand him, does argue that, if special admissions program is otherwise constitutional, the allotment of places in each entering special class admittees is unconstitutionally high. *92 376 students these admitted, Once discrimination.
state-fostered regularly as requirements degree same satisfy must in faculty same by taught they are students; admitted by evaluated is performance their and classes; same are students admitted regularly by which standards same and performance their circumstances, these Under judged. admitted regularly with the equally regarded be must degrees minor- Since standing. for compete they whom with students well less as regarded be justifiably cannot graduates ity special by virtue nonminority graduates than qualified conclude basis no reasonable there program, admissions would programs such using at schools minority graduates programs. of such existence by the inferior as stigmatized D Davis conclusion courts’ the lower with disagree We ob- of its light unreasonable was race use program’s prac- no are there argues, petitioner as First, jectives. ends its achieve could means tical measures. of race-conscious use without future foreseeable family edu- poverty as (such factor any respect With substitute as a be used may background) cational greatly whites discrimination, past indicator an as race up make whites because simply minorities racial outnumber therefore population total percentage larger far every socio- at terms absolute minorities outnumber far medical of recent class of a example, For level.59 economic income, $10,000 than less families from applicants school aby headed families Of all 71% were white.60 least Income, Family Structure 49, Sources supra n. Census, See 1-12. pp. Waldman, in B. presented from data computed percentage This Medical in Traditional Disadvantage Reflected and Racial Economic Medical S.U. Applicants Study A Factors: Selection School American (Association A-23) (Table A-15), 42 (Table Schools 1977). Colleges Medical
person not a high school graduate which included related children under were white 80% were racial 20% *93 minorities.61 Moreover, while race is positively correlated with differences GPA and MCAT scores, economic disadvantage is not. Thus, it appears that economically disadvantaged whites do not score less well than economically advantaged whites, while economically advantaged blacks score less well than do disadvantaged whites.62 These statistics graphically illustrate the University’s purpose to integrate its classes by com- pensating for past discrimination could not be achieved by a general preference for the economically disadvantaged or the children parents of limited education unless such groups were to make up the entire class.
Second, the Davis admissions program does not simply equate minority status with disadvantage. Rather, Davis considers on an individual basis each applicant’s personal his- tory to determine whether he or she likely has been disad- vantaged by racial discrimination. The record makes clear that only minority applicants likely to have been isolated from the mainstream of American life are considered in the special program; other minority applicants are eligible only through the regular admissions program. True, procedure by which disadvantage is detected is informal, but we have never insisted that educators conduct their affairs through adjudicatory proceedings, and such insistence here is misplaced. A case-by-case inquiry into the extent to which each individual applicant has been affected, either directly or indirectly, by racial discrimination, would seem to be, as a practical matter, virtually impossible, despite the fact there are excellent reasons for concluding that such effects generally exist. When individual measurement is impossible or extremely impractical, is there nothing prevent a State figure This computed from data contained in Census, supra 49, n. pt. 1, United States Summary, Table 209. 62See Waldman, supra n. at 10-14 (Figures 1-5). least ends, at its achieve means to categorical using from Cf. Gaston goal. to the closely related is category where (1969); 295-296 States, U. S. United County v. clear is And it (1966). Morgan, 384 U. S. v. Katzenbach vic- been has person that a proof specific cases our from offer- predicate necessary not a is discrimination timized great. of victimization probability where him relief ing States, U. S. United Teamsters See
E be said cannot program admissions special Davis’ Finally, set aside it has because simply the Constitution to violate appli- minority qualified places number predetermined *94 factor a positive as minority status using than rather cants disadvantaged of applications evaluating in considered adjudica- of constitutional purposes For applicants. minority In approaches. two difference between is no there tion, consideration special accords program any admissions degree of the determination minorities, racial disadvantaged any given unavoidable, and given to be preference candidate a white the exclusion in that results preference program than a constitutionally acceptable or less more is no pref- of the the extent Furthermore, at Davis. that as such applicants many minority on how depends inevitably erence any particular to admit is seeking school particular minority applicants qualified number long as so year no certainly sensible, and is no There number. that exceeds set adding a example, between, constitutional, distinction disadvantaged rating admissions to the points number of preference expression anas applicants minority of an in the admission result this will expectation appli- minority qualified number determined approximately applicants for such places number a fixed setting cants done here.63 Justice Powell’s conten- despite applicant, Mr. white The excluded The “Harvard” program, see ante, at 316-318, as those employing it readily concede, openly and successfully employs a racial criterion for the purpose of ensuring that some places scarce of higher institutions education are allocated to disadvantaged minority students. That the Harvard approach does not also make public the extent of pref- erence and the precise workings of system while the Davis program employs a specific, openly stated number, does not condemn the latter plan for purposes of Fourteenth Amend- ment adjudication. It may be that the Harvard plan is more acceptable to the public than is the “quota.” Davis If is, it any State, including California, is free to adopt it in preference to a less acceptable just alternative, as it is generally free, as far as the Constitution is concerned, to abjure granting any preferences racial in its admissions program. But there is no basis for preferring particular preference program simply because achieving the same goals that the Davis Medical School is pursuing, proceeds in a manner is not immediately apparent public.
y Accordingly, we would reverse the judgment of the Supreme Court of California holding the Medical spe'cial School's admissions program unconstitutional directing respond- ent’s admission, as well as portion of the judgment enjoin- *95 ing the Medical School from according any consideration to race in admissions process. the
Me. Justice White.
I write separately concerning the question of whether Title VI of the Civil Rights Act of 1964, U. C. § S. 2000d seq., et provides for private a cause of action. Four Justices are apparently of the view that such private a cause of action tion to the contrary, ante, 52, 318 n. receives no more or less “individ- ualized consideration” approach under our than under his. case. purposes it for this assume and four Justices
exists,
If
an affirmative answer.
merely to assume
unwilling
I am
the
Court
exists,
of action
this
private
no
cause
in fact
re-
to consider
jurisdiction
without
courts as well are
lower
obliged
I
not
it,
As
see
if we are
claim.
spondent’s Title VI
jurisdic-
threshold
to address this
it is at least advisable
so,
do
Griffin, 226,
U.
United States v.
S.
See
tional issue.
to address
inappropriate
it is
just as
(1938).1 Furthermore,
statutory
determining whether
issues without
constitutional
question-
is
at least
dispositive,
us are
grounds urged before
statutory issue
a novel and difficult
adjudicate
practice
able
jurisdiction
we have
considering whether
without
first
of whether
question
I
the
address
Consequently,
it.
decide
VI.
under Title
bring suit
respondent may
both of
terms
VI,
under Title
A
action
private cause
touching the
jurisdiction . . .
that “lack of
It
clear from
is also
Griffin
. .” 303
by
parties . .
be waived
subject
litigation
cannot
matter of
Doyle, 429
Healthy City
Ed. v.
Bd.
S.,
Mount
U.
at 229. See also
Mottley, 211 U. S.
Co. v.
(1977);
R.
274, 278
Louisville & Nashville
U. S.
Swan, 111 U. S.
R. Co.
(1908); Mansfield, C.
L. M.
v.
149, 152
&
adjudicate a Title VI
(1974),
did
Nichols,
we
In
The role of Title VI was to terminate federal financial support for public private institutions or programs that discriminated on the basis race. Section 601, U. S. C. § 2000d, imposed the proscription that no on the person, grounds of race, color, national origin, was to be excluded from or against discriminated under any program or activity receiving federal financial assistance. But there is no express provision for private actions to enforce Title VI, and it would be quite if incredible Congress, after so carefully attending to
the matter of private actions in other Titles of the Act, intended silently to create a private cause action to enforce Title VI. It is also evident from the face of § U. S. C. § 2000d-l, that Congress intended the departments and agen- *97 general the regulation, or by rule to refine, to define cies agency only judicial review subject to of § proscription Section procedures. established in accordance action or department Every federal for enforcement: provides implement to support is financial furnishing agency of which each regulation, or rule by appropriate proscription funding Termination by President. requires approval after only but authorized, is noncompliance sanction as a secure voluntary means to failure after the hearing and a until place may not take termination Moreover, compliance. appropriate files with the involved agency department report full written a and Senate of the House committees action and for such grounds the circumstances provided, was Judicial review elapsed thereafter. days have assistance. terminating financial actions at least for a Congress as by regarded funding Termination history replete is legislative step, and enforcement serious every possibility occur until not it would with assurances that private To allow exhausted.2 had been for conciliation are not to be used ‘Federal funds principle “Yet, [that before any implemented the detriment is support discrimination’] racial re conduct is giving of what State, regulations notice agency, or person, program. . . . administering the up by agency quired be drawn must they to and effective, must be submitted regulations become Before such by President. approved before long road effective, to travel having there is still a “Once become compliance compel imposed. Formal action any is sanction whatsoever first, must be there following has occurred: only place after the can take second, there voluntary compliance; attempt to obtain an unsuccessful report circum- third, hearing; a written an administrative must be appropriate be filed with action must grounds for and the such stances days have fourth, 30 must Senate; and the House and committees a Fed- denying benefits under filing the action elapsed such between final is no means because Finally, that action even program. eral by judicial postponed and can be further judicial review subject irrepara- in order to avoid pending review granting temporary relief action any additional safe- indeed to concoct injury'. It be difficult would
blé individual to sue to cut off funds under Title VI would com- promise these assurances and short circuit the procedural pre- conditions provided in Title VI. If the Federal Government may off cut funds except pursuant to an agency rule, approved by the President, and presented to appropriate committee of Congress for layover period, and after volun- tary means to achieve compliance have *98 it is failed, incon- ceivable that Congress intended to permit individuals to circumvent these administrative prerequisites themselves.
Furthermore, although Congress intended Title VI to end federal financial support for racially discriminatory policies only public but private also- institutions and programs, it is extremely unlikely that Congress, without a word indicat- ing that to intended do so, contemplated creating an inde- pendent, private statutory cause of action against private all as well public agencies might be in violation section. There is no doubt that Congress regarded private litigation as an important tool to attack discriminatory prac- tices. It does not at all follow, however, that Congress antici- pated new private actions under Title VI itself. Wherever a discriminatory program was a public undertaking, such as public a private school, remedies were already available under other statutes, a private remedy under Title VI was guards to incorporate in such procedure.” a Cong. 110 Rec. (1964) 6749 (Sen. Moss). authority “[T]he to cut off funds hedged about with a number of procedural restrictions. . . . [There follow details of the preliminary steps.] “In short, title VI is a reasonable, moderate, cautious, carefully worked out situation, solution .to a that clearly legislative calls for Id., action.” at (Sen. 6544 Humphrey). “Actually, no action whatsoever can be taken against anyone until the agency Federal involved has advised appro- priate person of his failure comply with requirements nondiscrimination voluntary until efforts to compliance secure Id., have failed.” at 1519 (Rep. Celler) (emphasis added). See also remarks of Sen. (id., Ribicoff at 7066-7067); Sen. (id., Proxmire at 8345); (id., Sen. Kuchel 6562). at safeguards These were incorporated 42 U. into S. C. 2000d-l. § Signifi this fact. well aware was Congress unnecessary. H. Moses Simkins reference frequent was there cantly, cert. 1963), (CA4 2d 959 323 F. Hospital, Memorial Cone congressional throughout (1964), S. denied, U. (Sen. (1964) Cong. Rec. g., e. See, deliberations. circum appropriate under held that Simkins Humphrey). use “massive hospital private of a operation stances, the sharing state-federal extensive funds and public purposes action” “state constituted plan” common 967. It 2d, 323 F. Amendment. Fourteenth action private VI Title course, create unnecessary, already within were they where discriminators private against they were when But remedies. private existing the reach “every holding that carefully disclaimed Simkins not —and automatically government or state federal by the subvention ” difficult ibid3 —it is action,’ in 'state beneficiary involves or receipt of federal state mere held that never has Court This In actor. recipient federal state make the is sufficient funds *99 received private schools (1973), Harrison, 413 U. S. v. Norwood on ban Amendment’s subject the Fourteenth held were aid state a aid” with “tangible financial required discrimination, test the Court’s but reinforce, support private discrimina facilitate, tendency to “significant Parking Wilmington of Burton v. mandate Id., The at 466. tion.” weigh circumstances (1961), to sift facte Authority, S. U. private or state whether determine case to support in each governmental of on rule based for automatic abandoned an involved, has not been was action receipt funds. of Rights Civil on the congressional debates Contemporaneous with the Board, S. 218 377 U. v. School in decision this Act Court’s Griffin parents for provided tax concessions were grants and (1964). Tuition racially. Court schools, discriminated private in of students holding to the carefully limited its action, but sufficient state found and mean- schools Prince Edward “[C]losing the presented: circumstances schools segregated white private support of the contributing while equal protection petitioners place denied their took Id., at 232. laws.” nor at YI, Title the enactment Hence, neither at time receipt of spoken, has mere has this Court the extent present time to silently private to believe Congress created a remedy to terminate conduct that previously had been entirely beyond the reach of federal law.
For those who believe, contrary my views, that Title VI was intended to create a stricter standard color blindness than the Constitution itself requires, the result of private no cause of action follows even more readily. In that case Congress must be seen to have banned degrees of discrimi- nation, as well types of discriminators, not previously reached by law. A Congress careful enough to provide that existing private causes of action preserved would be (in III Titles and IV) would not leave inference vast a new extension of private enforcement power. And Congress so exceptionally concerned with the satisfaction procedural preliminaries before confronting fund recipients with the choice of a cutoff or of stopping discriminating would not permit private parties to pose precisely that same dilemma in a greatly widened category of cases with no procedural requirements whatsoever.
Significantly, least three legislators instances who played major role the passage of Title VI explicitly stated private that a right of action under Title VI does not exist.4 state funds created state action. Moreover, Simkins has not met with universal approval among the United States Appeals. Courts of See cases Orange cited Greco Hospital Memorial Corp., 423 U. S. (1975) (White, J., dissenting denial certiorari). from 4 “Nowhere in this section you do comparable find a right legal action person for a who feels he has been rights denied his participate in the benefits of Federal funds. Only Nowhere. those who have been cut off can *100 go to present court and their claim.” Cong. (1964) Rec. 2467 (Rep. Gill). good case could “[A] be remedy made that a provided is for the State or local official who practicing is discrimination, provided but none is for the Id., victim of the (Sen. Kuchel). discrimination.” at 6562 “Parenthetically, while we favored the right inclusion of the to sue on part the of the agency, State, the facility or the deprived which was of implicit, explicit intent, legislative of “indication As an Ash, Cort one,” deny or to remedy a such create to either and imagined, be cannot statements clearer at S.,U. action of cause such deny to purpose explicit Cort, “an under example, for Keating, Senator Id., 82. at controlling.” [is] suffering “person the to sue” “right private a proposed refused of Justice Department the but discrimination”; from are These acquiesced.5 the Senator it, include to absence the They indicate statements. ambiguous neutral, any of do Nor remedy. a private create to intent legislative cause private between distinctions nice make statements these as funds, off cut one to discrimination enjoin to of action opin- his join who three Justices and the Stevens Justice Mr. Indeed, n. 26. 419-420, at post, See would. apparently ion of either effect practical the since they did, if odd be would private If identical. would action cause private type per- were § 601 violative allegedly conduct enjoin suits presented would be funds federal recipients mitted, the than rather court, what the ending either choice the within practice discriminatory be a determined agency, thereby funds refusing federal orVI of Title meaning is This predicate.6 jurisdictional statute's from escaping if suit recipients confront would choice same precisely would types actions Both funds. off to cut brought were carefully so processes administrative jeopardize equally law. into structured right granting provision of a inclusion favored funds, alsowe Federal not included This suffering discrimination. from person
to sue grate- are and I Connecticut from the Senator However, both bill. in the Department.” Justice adopted suggestions were other our ful Keating). (Sen. Id., at 7065 5 Ibid. Federal assist eligible.for those “Sometimes stated: Ribicoff Senator As nondiscrimina agree to a unwilling to aid, reject such may elect ance theirs.” responsibility course, the they choose If requirement. tion Id., 7067.
This Court has always required “that the inference of such a
private cause of action not otherwise
authorized
the statute
must be consistent with the evident legislative intent and, of
course, with the effectuation of the purposes intended to be
served by the Act.” National Railroad Passenger Corp. v.
National Association
Railroad Passengers,
Because my each of colleagues either has a different view or a private assumes cause of action, however, the merits of the Title VI issue must be My addressed. views that regard, as well my views respect equal protection issue, are included in joint opinion that my Brothers Brennan, Blackmtjn Marshall, and I have filed.7 Mr. Justice Marshall.
I agree with judgment of the Court only insofar as it permits a university to consider the race of applicant an making admissions I decisions. do not agree that petitioner’s admissions program violates the Constitution. For it must be remembered that, during most of past 200 years, the Constitution as interpreted by this Court did prohibit most ingenious pervasive forms of discrimination against Negro. Now, when a State acts to remedy effects of that legacy of I discrimination, cannot believe that this same Constitution stands as a barrier.
I A Three hundred fifty years ago, the Negro dragged to this country in chains to be sold into slavery. Uprooted from his homeland and thrust into bondage for labor, forced join
7 I I, also III-A, Parts and V-C of Mr. Justice opinion. Powell’s *102 to unlawful It was rights. legal all of deprived was the slave family and his from away be sold could read; he him to teach him maiming killing and master; his of the whim friends at and brutalized slavery of system The a crime. slave.1 and master both dehumanized American the into was etched rights human of denial The When self-government. establishing attempts at first Colonies' from independence their to seek determined colonists the their cataloguing document unique drafted they England, “self-evident” as proclaiming and King the against grievances “with endowed are and equal” created men are “all Liberty “Life, to those including Rights,” unalienable certain and truths self-evident Happiness.” pursuit the and only apply to however, intended, were rights unalienable Inde- Declaration draft An earlier men. to white Continental to Jefferson submitted-by Thomas pendence, King against charges among the had included Congress, itself, nature human against war cruel waged has “[h]e in the liberty life and rights sacred most violating its him, offended never who people a distant persons in another slavery into them carrying captivating transpor- their death miserable incur or to hemisphere, 88. Franklin thither.” tation deleted; be charge insisted delegation
The Southern trade, in the slave implicated were themselves colonists difficult more made it have might claim this inclusion England the ties slavery once continuation justify aon embarked colonists Thus, even severed. were require known well too perhaps is- here history recounted 1 The rely I on authorities acknowledge the I must But documentation. 1974) (4th ed. Slavery Freedom Franklin, From J. retelling it. (1975) (hereinafter Simple Justice Kluger, Franklin); R. (hereinafter (3d ed. Crow Jimof Strange Career Woodward, The Kluger); C. Woodward). (hereinafter 1974) course to secure their own freedom and equality, they ensured perpetuation of the system that deprived a whole race of those rights.
The implicit protection of slavery embodied in the Declara- tion of Independence was explicit made in the Constitution, which treated a slave as being equivalent to three-fifths of a person for purposes of apportioning representatives and taxes among the States. Art. 2. I, § The Constitution also con- tained a clause ensuring that “Migration or Importation” of slaves into the existing States would legal until at least I, 9,§ Art. fugitive slave clause requiring that *103 when a slave escaped to another State, he must be returned on the claim the master, Art. 2. In IV, § their declaration of the principles that were provide the cornerstone of the new Nation, therefore, plain Framers made it that “we the people,” for whose protection the Constitution was designed, did not include those whose skins were the wrong color. As Professor John Hope Franklin has observed, Americans “proudly accepted the challenge and responsibility of their new political freedom by establishing the machinery safeguards and that insured the continued enslavement of blacks.” Franklin 100.
The individual States likewise established the
machinery
protect the system of slavery through the promulgation of the
Slave
which
Codes,
were designed primarily to defend the
property interest of the owner in his slave. The
position
the Negro slave as mere property was confirmed by this Court
in Dred Scott
Sandford,
B officially erased was property Negro status of The long- But the Civil War. of the at the end emancipation his slavery, from Negro freeing while emancipation, awaited any meaningful citizenship equality him bring did of “laws system replaced by Slavery was way. burdens, and disabilities onerous colored race upon the imposed liberty, life, pursuit rights in the curtailed their of little was freedom their extent to such an property Cases, 16 Wall. Slaughter-House value.” Fif- Fourteenth, Thirteenth, passage Despite denied systematically Negro Amendments, teenth com- to secure. supposed were Amendments rights those Govern- and Federal State inactions bined actions and inferiority legal position in a Negroes maintained ments War. after Civil century another *104 re-enslave steps to first States took
The Southern War, of the Civil end following the Immediately Negroes. Codes, Black passed legislatures provisional many limited other among things, which, Codes, to the Slave similar permitted and property or rent to own Negroes rights Over the employment contracts. for breach of imprisonment managed to disenfranchise decades, South several next by various Amendment Fifteenth spite Negroes deliberately complicated bal- taxes, poll including techniques, qualifications, literacy property processes, loting primary. the white finally being imposed legal to the disabilities
Congress responded in the Southern States passing the Reconstruction Acts the Civil Rights Acts. Congress also responded to the needs of the Negroes at the end of the Civil War by establishing the Bureau of Refugees, Freedmen, and Abandoned Lands, better known as the Freedmen’s Bureau, to supply food, hospitals, land, and education to the newly freed slaves. Thus, for a time it seemed as if the Negro might be protected from the continued denial of his civil rights and might be relieved disabilities that prevented him from taking his place as a free and equal citizen.
That time, however, was short-lived. Reconstruction came to a close, and, with the assistance of this Court, the Negro was rapidly stripped of his new civil rights. In the words of Vann C. Woodward: “By narrow and ingenious interpretation Supreme [the Court’s] decisions over period of years had away whittled a great part of the authority presumably given the government for protection of civil rights.” Woodward 139'.
The Court began by interpreting the Civil War Amendments
in a manner that sharply curtailed their
protec-
substantive
tions. See,
g.,
e.
Slaughter-House Cases, supra; United States
Reese,
v.
“We the enforced assumption in the to consist argument race with the colored stamps races of the two separation reason If it is so, inferiority. this badge the colored solely because but act, in the found anything Id., at it.” upon construction put that chooses to race 551. bank- recognized opinion dissenting
Mr. Harlan’s Justice “real He noted reasoning. Court’s ruptcy are so citizens colored “that legislation meaning” sit allowed they cannot be degraded inferior He Id., at 560. citizens.” occupied by white public coaches n other enacted in were if like laws fear that his expressed *106 States, “the effect would inbe the highest degree mischievous.” Id., at 563. Although slavery would have disappeared, States would retain power “to interfere with the full enjoyment of the blessings of freedom; to regulate civil rights, common to all citizens, upon the basis of race; and to place in a condition of legal inferiority a large body of American citizens . .. .” Ibid.
The fears of Mr. Justice Harlan were soon to be realized. In the wake Plessy, many expanded States their Jim Crow laws, had up until that time been limited primarily passenger trains and schools. The segregation of the races was extended to areas, residential parks, hospitals, theaters, waiting rooms, and bathrooms. There were even statutes and ordinances which separate authorized phone booths for Negroes and whites, which required that by textbooks used children of one kept race be separate from those used the other, and which required that Negro prostitutes and white kept separate districts. In after Plessy, the Charlestown News and Courier printed a parody Jim Crow laws:
“ 'If there must be Jim Crow cars on the railroads, there should be Jim Crow cars on the railways. street Also on all passenger If boats. ... there are to be Jim Crow cars, moreover, there should be Jim Crow waiting saloons at all stations, Jim Crow eating houses. . . . There should be Jim Crow sections of the jury box, and a sep- arate Jim Crow dock and witness in every stand court— ” Jim and a Crow Bible for colored witnesses to kiss.5 Woodward 68. irony is that many years before had passed, with the
exception of the Jim Crow witness stand, "all improbable applications of principle suggested by the editor in derision had put been into practice to and including the Jim —down Id., Crow Bible.” at 69.
Nor were laws restricting rights of Negroes limited many of the Northern to the States. In solely Southern prevented from right vote, Negro was denied States, restaurants, theaters, and excluded from serving juries, on Federal Gov- Wilson, President hotels, and inns. Under buildings; in Government began require segregation ernment *107 bath- off; separate curtained Negro employees of were desks provided; in the were separate tables cafeterias rooms and When segregated. were Congress galleries and even the President Wilson policies attacked, were his segregationist “ bene- but a humiliating was ‘not responded segregation “ ” more safe ‘rendering Negroes] fit’ and that he was [the likely to be discriminated of office and less possession their ” 91. against.’ Kluger into the of races continued segregation enforced The In Wars, Negroes both World century. of the 20th middle military separate for confined part were the most to units; military segregation not until 1948 that an end to was history of the And the by ordered Truman. President too is public from white schools Negro of children exclusion Ne- here. That require repeating well known and recent public graduate from delibérately excluded groes were opportunity to thereby denied the professional schools—and well and the like —is also engineers, doctors, lawyers, become Crow of the Jim It is of course true some established. foster) helped had (which the of this Court laws decisions leading in a series of decisions down this Court were struck Education, (1954). 483 Brown Board 347 U. S. up to v. Virginia, Sweatt v. g., Morgan e. (1946); v. U. S. See, Oklahoma State Painter, McLaurin (1950); 339 U. S. did Regents, decisions, however, U. Those S. they Negroes automatically nor did move segregation, end inferiority equality. The legal one position from a years citizen- slavery and of of second-class years legacy easily emancipation not be so in the wake of could ship eliminated.
II position of the Negro today in America is the tragic but inevitable consequence of centuries of unequal treatment. Measured by any benchmark comfort or achievement, meaningful equality remains a distant dream for the Negro.
A Negro today child has a life expectancy which is shorter by more than five years than that of a white child.2 The Negro child’s mother is over three times likely more die complications in childbirth,3 mortality infant rate Negroes nearly is twice that for whites.4 The median income of the Negro family only that of the median of 60% a white family,5 and the percentage of Negroes who live in families with incomes below the poverty is nearly line four whites;6 greater times than that of
When the Negro child reaches working age, he finds that America offers him significantly less than it offers his white *108 counterpart. For Negro adults, unemployment the rate is twice that of whites,7 and the unemployment rate for Negro teenagers nearly is three times of that white teenagers.8 A' Negro completes male who years four of college expect can a median annual income of merely $110 more than a white male who has only high diploma.9 school Although Negroes 2 Dept. U. S. Commerce, of Bureau of Census, the Statistical Abstract of the United (1977) (Table States 65 94). 3Id., (Table at 102). 70 4 Ibid. Dept. U. S. Commerce, of Bureau of Census, the Current Population Reports, P-60, p. Series (1977) No. (Table 1). 6Id., (Table at 20 14). 7U. S. Dept. Labor, of Bureau of Statistics, Labor Employment and Earnings, January 1978, p. (Table 44). 8Ibid. Dept. U. S. Commerce, of Census, Bureau of the Current Population Reports, P-60, Series p. No. 105, (Table 198 (1977) 47). of the only are they population,10 the of 1.2%
represent 11.5% dentists, of the physicians, the of judges, lawyers 2.3% 2% university college and of the engineers of the 2.6% 1.1% professors.11 of history and the- figures those between relationship denied. be cannot Negro to the afforded
unequal treatment is past impact the the death from birth every point At Negro. position disfavored the still reflected devas- and its discrimination history of sorry light of In into Negro bringing the Negroes, on lives tating impact interest a state should life of American mainstream America that ensure tois To to do so fail order. highest society. a divided remain forever will
Ill requires Amendment Fourteenth believe that I do not cases past nor our history its fate. Neither accept tous may university to the conclusion any support lend discrimination society’s effects remedy the cumulative number increase in an effort to to race consideration giving Negro doctors. percentage A ago remarked long Court This phrase any section construction just any
“in fair and look necessary to amendments, it War] of these [Civil spirit pervading have said was we which purpose designed to they were all, evil them 72. Cases, Wall., *109 Slaughter-House remedy . .” . . intended Amendment Fourteenth that the plain It is of effects remedy the designed measures prohibit Abstract, 10 Census, Statistical of Commerce, Bureau of Dept. U. S. 24). (Table supra, at 25 11 census). (based 1970 662) on (Table Id., 407-408 at Nation’s past treatment of Negroes. Congress The that passed the Fourteenth Congress Amendment is the same passed the 1866 provided Freedmen’s Bureau an Act, Act many of its only benefits to Negroes. July 1866, Act of 16, ch. 200, Stat. 173; supra, see at 391. Freed- Although the men’s legislation Bureau provided thereby aid for refugees, including persons white within some of measures, the relief 174; Stat. see also Act 3, of 13 Stat. 90, Mar. ch. 507, the bill was dismay many to the of regarded, Congress- "solely men, entirely for the freedmén, and to the exclusion of persons all other Cong. . . 39th Globe, Cong., . .” Sess., 1st 544 (1866) (remarks Rep. Taylor). id., of See also (remarks at 634-635 Rep. Ritter); id., App. 78, at 80-81 (remarks Rep. Chanler). Indeed, bitterly the bill was opposed on ground that it to make negro "undertakes respects superior some . gives . . and . . them favors that . poor boy Id., white in the North get.” cannot at (remarks McDougall). id., of Sen. (remarks See also at id., Hendricks); (remarks Sen. at 362 Saulsbury); of Sen. id., (remarks at 397 Willey); id., (remarks Sen. at 544 Rep. Taylor). supporters by bill’s defended it—not re- butting of special by the claim pointing treatment —but for such need treatment: very
“The discrimination it makes between 'destitute and suffering’ negroes, suffering pau- destitute and white proceeds upon the pers, distinction the omitted that, case, rights already sufficiently civil and immunities are protected by possession political power, the ab- sence of which in the provided gov- case for necessitates protection.” Id., App. ernmental (remarks Rep. at Phelps).
Despite objection special to the the bill would treatment provide Id., passed Congress. it was Negroes, President Johnson bill 688. vetoed this and also a subse- quent bill contained modifications; prin- some one of his *110 398 bene- special they gave was that both bills objections to
cipal Presidents Papers of the Messages 8 Negroes. to fits of the concerns the Rejecting (1897). 3623 3599, 3620, 3596, overrode Congress opponents, the bill’s President and Sess., 1st Cong., 39th Cong. Globe, second veto. President’s (1866). 3850 3842, objec- rejected the considered and Congress that
Since special concerning Bureau Act Freedmen’s to 1866 tions it Amendment, Fourteenth proposed the Negroes also to relief was intended Amendment Fourteenth inconceivable abe It “would relief measures. race-conscious all prohibit to amendment, in that policy manifested distortion perpetuate designed legislation state prevent adopted Railway Mail or color,” of race basis on the discrimination barred hold (1945), Corsi, S. v. U. Assn. that discrimination. effects of remedy action state Framers the intent pervert would result Such equality genuine for the equality substituting abstract to achieve. intended Amendment was
B Court’s this joint opinion, in our demonstrated As been has of race-conscious constitutionality past cases establish desegregation school with the Beginning measures. remedial legislative judicial absent a that even recognized we cases, constitu- board violation, a school of constitutional finding making school- race students consider the tionally could Charlotte-Mecklenburg v. Swann See assignment decisions. McDaniel Education, (1971); 402 U. S. Board of that a moreover, noted, We Barresi, S. 39, U. for the assignment of students against prohibition “fiat inevitably con- must creating racial balance purpose of to disestablish authorities duty of school flict Swarm, the held systems. As we have dual school degree particular compel any does Constitution *111 racial balance or mixing, but past when and continuing constitutional violations are likely some found, ratios are to be useful as starting points shaping in An remedy. absolute prohibition against use of such a device—even as a starting point implicit command —contravenes of Green County v. Board, School S. 430 (1968), U. that all reasonable methods be available to formulate an remedy.” effective Board Swann, Education v. 43, S. U.
As we have “[a]ny observed, approach other would freeze the quo status very target of desegregation proc- all esses.” Barresi, McDaniel v. supra, at 41.
Only last Term, in United Jewish Organizations
Carey,
v.
430 U.
S.
(1977),
upheld
we
a New York reapportionment
plan that was deliberately drawn on the basis of race to
enhance the
power
electoral
Negroes
Ricans;
Puerto
plan had the effect of diluting the electoral strength of the
Hasidic Jewish community. We
willing
were
UJO sanc
tion the remedial
use
a racial
though
classification even
disadvantaged otherwise “innocent” individuals.
In another
case
Term,
last
ano Webster,
Nothing in those suggests cases a university cannot similarly remedy act to past discrimination.12 It is true that 12Indeed, the University action of the support finds regulations in the promulgated under Department Title VI Health, Education, approved by Welfare and President, federally which authorize a funded institution take steps affirmative past overcome against discrimination UK) classifica- both and Webster the use of the disfavored predicated legislative action, on administrative tion findings but in neither had bodies made that there case those specific had been violations or that the individ- constitutional of dis- actually been the victims uals to be benefited had those cases each of Rather, the classification crimination. need of was in group was based on a determination that past discrimination. remedy type because of some a univer- conclusion that ample support There is thus so- remedy past sity can measures employ race-conscious finding that those the need for a discrimination, cietal without *112 actually of that discrimination. benefited were victims
IV university I Court that a applaud judgment While th!e more than it is may process, consider race in its admissions years of class-based little ironic after several hundred that, hold unwilling is against Negroes, discrimination the Court permissi- remedy for discrimination is that a class-based that today’s judgment ignores the fact declining hold, In so ble. years Negroes have been discrimi- that for several hundred solely because of rather individuals, nated not as but against, 20th-century unnecessary skins. It the color of their they that Negroes to have individual demonstrate America of our discrimination; the racism been victims of racial have of wealth regardless society pervasive none, has been so that impact. experi- managed escape its has position, not kind, been Negroes in America has different ence of groups. It is not from of other ethnic just in degree, peo- a whole history slavery but also that merely the alone has law. And that mark inferior ple were marked as melting pot great America as the has The dream of endured. guilty prior discrimination. groups even the institution was where (b) (6) (ii) (1977). 45 CFR §80.3
not been realized for the Negro; because of his skin color he never even made it into pot.
These differences in the experience of the Negro make it
difficult for me to accept
Negroes
cannot be afforded
greater protection under the Fourteenth Amendment where it
is necessary to remedy the effects of past discrimination.
In
the Civil Rights Cases, supra, the Court wrote that the Negro
emerging from slavery must cease “to be the special favorite
of the laws.” 109 U. S., at
see
25;
supra, at 392. We cannot
in light of the
history
the last
yield
century
to that view.
Had the Court in that decision and others been willing to “do
for human liberty and the fundamental
rights of American
citizenship, what it did ...
protection
of slavery and
the rights of the masters of fugitive slaves,”
Most importantly, had the Court been willing in 1896, in^~ Plessy v. Ferguson, to hold that the Equal Protection Clause forbids differences in treatment based on race, we would not be faced with this dilemma in 1978. We must remember, however, the principle that the “Constitution is color- blind” appeared only in opinion of the lone dissenter. U. S., at 559. The majority of the Court rejected prin- *113 ciple of color blindness, and for the next years, from Plessy to Brown v. Board Education, ours was a Nation where, hy law, an individual could be given “special” treatment based on the color of his skin. It is because of a legacy of unequal treatment that we now permit
must the institutions of society this give to considera- tion to race in making decisions about who will hold the positions of influence, affluence, and prestige in America. For far too long, the doors to positions those have been shut to Negroes. If we are ever to become a fully integrated society, one in which the color of a person’s skin will not determine the opportunities available him or her, we must be willing any- believe that I do not doors. those open steps to take a find that still and past America’s into truly look can one impermissible. is past of that effects remedy for individual, only involves this case that said has been It there that however, doubt, I University. this and Bakke, persons number of determining the capable computer case. this decision by the affected may be that institutions of the Attorney General by the we are told example, For adopted have agencies federal least 27 that at States United take funds of federal recipients requiring regulations “ which of conditions the effects action overcome ‘affirmative particular of a by persons ... limiting participation resulted ” Brief for Supplemental origin.’ national color, race, I added). 16 (emphasis Amicus Curiae United States governments local of state number guess even cannot may be programs, affirmative-action up set have today’s decision. by affected Civil War After the circle. full come have we
I fear that programs. action” “affirmative several started our Government Ferguson Plessy v. Cases and Rights Civil in the This Court For equality. complete toward the movement destroyed was nonaction this taken, and no action century almost Brown we Then had the courts. approval the tacit Congress, Acts Rights Civil Education and Board of Now, we programs. affirmative-action numerous followed stop affirma time to this in, stepping again Court this have University by the used type programs tive-action California. Blackmun. Justice
Mr. ante, p. in the opinion, course, fully, of participate I White, my Brothers Brennan, the names bears observations general only I some add myself. Marshall, fewa then me, and significance particular hold *114 equal protection. on comments
I At least until the early 1970’s, apparently only very small number, less than 2%, the physicians, attorneys, and medi- cal and law students the United States were members of what we now refer to as minority groups. In ap- addition, proximately three-fourths of our Negro physicians were trained only at two medical schools. If ways are not found to remedy that situation, the country can never achieve its professed goal of a society that is not race conscious.
I yield to no one in my earnest hope that the time will come when an “affirmative action” program is unnecessary and is, in truth, only a relic of past. I hope would that we could reach this stage within a decade at the most. But story of Brown v. Board Education, 347 U. S. (1954), decided almost a quarter of a century ago, suggests that hope is a slim one. At some time, beyond however, any period of what some would claim is only transitional inequality, the United States must and will reach a stage of maturity where action along this line is no longer necessary. Then persons will be regarded as persons, and discrimination of the type we address today will be an ugly feature of history that is instructive but that is behind us.
The number of qualified, indeed highly qualified, appli- cants for admission to existing medical schools the United far States exceeds the number of places available. Wholly apart from racial and ethnic considerations, therefore, the se- process lection inevitably results in the denial of admission to many qualified persons, indeed, far more than the number of those who granted are admission. Obviously, it is a denial to the deserving. This inescapable fact brought into sharp focus here because Allan Bakke is not himself charged with discrimination and yet is the one who is disadvantaged, and because the Medical School of the University of California Davis itself is not charged with historical discrimination.
One theoretical solution to the need for more minority *115 enlarge graduate our would be higher education members enter, could qualified were and who desired Then all schools. this Unfortunately, vanish. would of and discrimination talk ap- that resources vast The realistic. nor feasible is neither And the not available. simply are be required would parently numerical strict the graduates, professional more need all. been demonstrated perhaps has sense, 84-16 divi- significance particular real is no There social, philosophical, theoretical, same The Davis. sion at necessarily would considerations and constitutional legal, had program special admissions Davis’ case if apply places or 4 12 or 8 on is, that number, any lesser on focused only 1. on indeed, or, over deeply disturbed us so ironic to have is somewhat
It yet to and consciousness, is an element race where program higher institutions we are, fact, be aware the graduate than undergraduate more on the albeit learning, to those point up to a preferences conceded given have level, alumni, children skills, to of athletic possessed and institutions, on the largess their may bestow who affluent and famous, celebrities, the connections having to those powerful. learning are higher of admission institutions Programs for administra- and for academicians basically responsibility in con- judiciary, they employ. specialists tors and The admin- for this. trained poorly ill-equipped and trast, are institutions of educational management and istration special within the are judges competence beyond the educators always educators, provided competence me, Por bounds. and constitutional legal within perform ex- rare be the must judiciary by the interference therefore, rule. and not ception
II (a) Fourteenth propositions accept course, I, distinc- ethnic racial and (b) personal; rights are Amendment tions where they are stereotypes are inherently suspect call for exacting judicial scrutiny; (c) academic freedom is a special concern of the First Amendment; (d) the Four- teenth Amendment has expanded beyond its original 1868 con- cept and now is recognized to have point reached a where, *116 as Mr. Justice ante, states, Powell quoting from the Court’s opinion in McDonald v. Santa Fe Trail Transp. Co., 427 U. S. (1976), it embraces a “broader principle.”
This enlargement does not mean for me, however, that the Fourteenth Amendment has broken away from its moorings and original its intended purposes. original Those aims per- sist. And in that, a distinct sense, is what “affirmative ac- tion,” in the face of proper is facts, all about. If this conflicts with idealistic equality, that tension is original Fourteenth Amendment tension, constitutionally conceived and constitu- tionally imposed, and part it is of the Amendment’s very nature until complete equality is achieved the area. In this sense, equal constitutional protection is a shield. I emphasize in particular that the decided cases not are easily to be brushed aside. Many, of course, are not precisely on point, but neither are they point. off Racial factors have been given consideration in the school desegregation cases, in the employment cases, Lau v. Nichols, S.U. 563 (1974), and United Jewish Organizations Carey, 430 U. S. (1977). To be sure, some of may these be “distinguished” on ground that victimization was directly present. But who is to say that victimization is present not for some members of today’s minority groups, although it is aof lesser per- and haps degree. different petitioners The in United Jewish Orga- nizations certainly complained bitterly of their reapportion- ment treatment, I rather doubt they that regard the “remedy” there imposed as one that was “to improve” the group’s ability to participate, as Mr. Justice Powell describes ante, it, at 305. And surely in Lau v. Nichols we looked to ethnicity. be, seems as Powell convinced, Mr. Justice not
I am one program Davis between difference that constitutionally sig- very profound is Harvard employed indistinct is a thin two between line The nificant. Because work. is at application subjective In each, one. for primarily are programs admission that my conviction accept representation willing to I am educators, in its administration good faith one where is program Harvard program, such agree I professed. well as as practiced is factors, many only one of is background or ethnic race where system. two-track than Davis’ formulated better program is a such program under say that may course, cynical, con- Davis covertly what accomplish may one Harvard’s despite its for far, go I need openly. it does cedes con- within isme, program, Davis aspect, the two-track surely barely It so. though perhaps bounds, stitutional *117 I am Organizations, Jewish United inas and, stigma, free violation. a constitutional infer willing to not preference governmental that perhaps, noting, worth It is in vet- see it We legal life. our stranger to a been has aid-to-the-handicapped it in We see preferences. erans’ see tax. We income progressive in the it We see programs. on of these some may excuse We programs.- Indian in the or, protection constitutional specific they have that ground Gov- of the wards are benefited those Indians, as with may not and exist preferences Nevertheless, these ernment. indicated, I have as field, inAnd the admissions ignored. be athletic geography, always used have institutions educational and pressure, alumni largess, financial anticipated ability, that kind. factors other edges on components only as additional
I add these my Brothers Brennan, join I as to question central (cid:127) is approach. It general more our Marshall White, finds it constitu- at least Court know gratifying ethnic take race institution academic for an tional many, among factor, one as into consideration background the administration of its admissions program. I presume that factor always has been there, though perhaps not con- ceded or even admitted. is It a fact of life, however, a part of the real world of which we are part. all a The sooner we get down the road toward accepting and being part real world, and not shutting it out and from away us, the sooner will these difficulties vanish from the scene.
I suspect that it would be impossible to arrange an affirma- tive-action program in a racially neutral way and have it successful. To ask that this so is to demand impos- sible. In order to get beyond racism, we must first take account of race. There is no other way. And in order to treat persons some equally, we must treat them differently. We cannot —we dare not —let Equal Protection Clause perpetuate racial supremacy.
So the ultimate question, as it was at the
beginning
this
is:
litigation,
Among the qualified, how does one choose?
A long time
ago,
time measured for this
Nation, Chief
both
Justice,
wise and farsighted, said:
“In considering this question, then, we must never forget,
that it is a constitution we are expounding.” McCulloch
v. Maryland,
In the same opinion, the Great Chief Justice further observed:
“Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, *118 which are plainly adapted to that end, which are not prohibited, but consist with the letter spirit and of the constitution, are Id., constitutional.” at 421.
More recently, one destined to become a Justice of this Court observed:
“The great generalities of the constitution have a con- tent and significance a that vary age from to age.” B. Cardozo, The Nature of the Judicial Process 17 (1921). United States of the President became a who educator And an said: mere is not States United of the Constitution
“But the is spirit its life, and a vehicle it is document: lawyers’ Constitutional Wilson, age.” W. of the spirit always States the United in Government ever-present flexibility and and of breadth precepts
These again, Today, law. constitutional our basic modernity are principles Constitution. The same expounding we are in case Bakke’s govern in case McCulloch’s governed answer. no other can be There 1978. Justice, Chief Mr. The with whom Stevens, Justice Me. Rehnquist concur- join, Mr. Justice and Stewart,
Justice part. dissenting and part judgment ring on precisely focus the outset important always is It important particularly It the Court.1 controversy before issues of the identification correct case because in this do so to ex- appropriate necessary or it is whether will determine any admissions legal status any opinion about press petitioner’s. than other program
I two is between controversy action. a class is not This special challenged petitioner’s Bakke Allan litigants. specific place in him a denied claiming program, admissions Federal in violation his race because school medical Rights the Civil Title VI and Constitutions and California seq. Supreme et The California C. 2000d § U. S. 1964,42 ofAct If the him admitted. ordered challenge his upheld Court legal announce undertaken have Gourt Members 1 Four opinion judgment. See Justices of this Court’s effect constitutional It is ante, at 324^325. BlackkuN, Marshall, White, BeeNNAN, Court or speak majority can only a necessary to state hardly Court. any judgment of the meaning” of “central is the what determine *119 state court was correct its view that the University’s special program was illegal, and that Bakke was therefore unlawfully excluded from the Medical School because of his we race, should affirm its judgment, regardless of our views about the legality of admissions programs are now before Court.
The judgment as originally by entered the trial court con- tained four separate paragraphs, two which are of critical importance.2 Paragraph 3 declared that the University’s spe- cial admissions program violated the Fourteenth Amendment, the State Constitution, Title VI. The trial court did not order the University to admit Bakke because it concluded Bakke had not shown that he would have been admitted if there had been no special program. Instead, paragraph 2 of its judgment it ordered the University to Bakke’s consider application for admission without regard to his race or the race of any other applicant. The order did not any include broad judgment first entered read, trial court in its entirety, as follows: “IT IS HEREBY ORDERED, AND ADJUDGED DECREED: “1. Defendant, Regents University California, judg- have against ment plaintiff, Allan Bakke, denying mandatory injunction requested by plaintiff ordering his admission University to the of California
at Davis School; Medical plaintiff “2. That is entitled have application his for admission the medical school considered regard without to his race or the race of any applicant, other hereby defendants are enjoined restrained and considering plaintiff’s from race or the any race of applicant other passing upon application his admission; for “3. Cross-defendant Allan Bakke judgment have against cross-com- plainant, Regents University California, declaring that the special program admissions University of California at Davis Medical School violates the Fourteenth Amendment to the United States Constitution, Article Section 21 of the Constitution, California and the Rights Federal Civil Act U. ; S. C. [42 § 2000d] plaintiff “4. That have his recover court costs incurred herein in the sum of App. $217.35.” Pet. Cert. 120a. *120 process; in the admissions of race any use against
prohibition University’s consideration to the clearly limited were its terms University since the has Because application.3 Bakke’s court’s trial 2 of the paragraph Bakke, to admit been ordered any significance. longer no has order is not that holding Court, Supreme
The California the incorrectly placed trial court the ruled that challenged, been admitted have he would showing that burden Bakke on University then con- The of discrimination. in the absence proving burden not meet the it ceded “that [could] Bakke’s in Mr. not result program did admissions special the 4 Su- California Accordingly, the be admitted.” failure to order- judgment to enter the court trial directed preme Court para- superseded order Since that admission.5 ing Bakke’s 3 is “plaintiff [Baldee] court ordered paragraph the trial In consid medical school to the for admission application have his entitled to and any applicant, other the race race or regard his ered without plaintiff’s considering enjoined from hereby restrained are defendants for application his passing upon applicant any other race of race or the way only added). The supra (emphasis 2,n. See admission.” any race in broadly prohibiting use read as be order can this final “his” if the application, is apart from Bakke’s process, admissions pronoun consistent use But the “any applicant.” other refers to entirely reading such a makes to refer to Bakke throughout paragraph suggest that was court to of the trial failure unpersuasive, as does the to the suit. parties applicants who were issuing relief Stay A19-A20. Application B Appendix judgment 1152, P. 2d 3d 5 18 Cal. only 3 of paragraph affirms of California Supreme of the State Court judgment reads as follows: Supreme judgment. The Court’s court’s trial Court that ADJUDGED, DECREED ORDERED, AND “IT IS County Yolo[,] in the above- Court[,] Superior judgment of the special as it determines hereby affirmed insofar cause, is entitled as it denies judgment is reversed insofar invalid; the program is admission University, ordering that he admitted injunction be Bakke an ordering to be admitted. judgment Bakke directed to enter the trial is court appeals.” his on these recover costs “Bakke shall graph of the trial court’s judgment, there is no outstanding injunction forbidding any consideration of racial criteria in processing applications.
It is therefore clear perfectly question that whether race can ever used as a factor in an admissions decision is not an issue in this case, that discussion of that issue inappropriate.6
II petitioner Both and respondent have asked us to determine *121 the legality the University’s special admissions program by reference to the Constitution. Our settled practice, however, tois avoid the decision of a constitutional issue if a case can fairly be decided on a “If statutory ground. there one is doctrine more deeply rooted any than other in process the constitutional adjudication, it is we not ought to pass on questions of constitutionality . . . unless such adjudication is Spector unavoidable.” Motor Co. McLaughlin, 323 U. S. 101, 105.7 The important more the the force issue, more 6“This Court . . . judgments, reviews opinions.” statements in Black v. Laboratories, Cutter 292, 351 U. S. 297. Hayburn’s “From Case, 409, Dall. to Alma Motor Co. v. Timken- Detroit [, Axle Co. 129,] U. S. and the Hatch Act case Public United v. Mitchell, Workers 330 U. S. term, decided this 75] this Court has policy a followed necessity strict in disposing of constitutional issues. The earliest exemplifications, too well known repeating history for here, arose in the Court’s refusal advisory to render opinions and in applications jurisdictional of the related policy drawn from case and controversy Const., limitation. S. Art. U. III. . . . “The policy, however, not been jurisdictional has limited to determina- For, tions. in addition, ‘the Court developed, governance its [has] for own confessedly
in the cases jurisdiction, within its a series of rules under it has avoided passing upon large part questions all constitutional pressed upon Thus, decision.’ as those rules were support fisted in quoted, of the statement constitutional affecting issues legislation will not be in friendly, determined nonadversary proceedings; in of the advance necessity of deciding them; in broader required terms than by are precise facts to which ruling applied; to be if the record presents presented we are case, this In doctrine.8 to this there is impor- unusual undoubted question a constitutional raised claim statutory dispositive however, Since, tance. in the decided squarely case, of this inception very at the the California affirmed judgment court trial of the portion Only if it. confront duty to plain is our Court, it Supreme it be would statutory issue on the prevail should petitioner pro- admissions University’s whether the to decide necessary Fourteenth of the Protection Clause Equal gram violated Amendment.
Ill 78 Stat. Rights Act Civil Section provides: 2000d, §C. 42 U. S. ground shall, on States United person
“No participa- from origin, be excluded national or color, race, subjected or of, denied in, be benefits tion receiving activity any program under discrimination assistance.” financial Federal ex policy, admissions special its through University, of medical its program participation from Bakke
cluded *122 acknowl also University race. The his of because education financial federal receiving is, still was, that edges therefore of the statute plain language The assistance.9 result different A below. judgment affirmance requires of; at the instance may disposed be upon the case ground some other which operation, by injured the statute’s he is fails to show of one who the statute is benefits; construction or if a itsof himself availed who has Army v. Rescue may be question avoided.” fairly possible omitted). also See (footnotes 549, 568-569 S. Court, 331 U. Municipal concurring). J., (Brandéis, 288, 346-348 A, 297 U. S. TV v. Ashwander 8 an as respect the Constitution both our reflects doctrine The Legislative to the owe we and the deference principles enduring set complex social developing solutions of Government Branches Executive (1962). 131 Dangerous Branch Bickel, The Least A. problems. See 29. Record cannot be justified unless that language misstates the actual intent of the Congress that enacted the statute or the statute is not enforceable in a private action. Neither conclusion is warranted.
Title VI is an integral part of the far-reaching Civil Rights Act of 1964. No when doubt, this legislation was de- being bated, Congress directly concerned with the legality “reverse discrimination” or “affirmative action” programs. Its attention was focused on problem at hand, the “glaring .. . discrimination against Negroes which exists throughout our Nation,” and, with respect to Title VI, the federal funding segregated facilities.11 genesis of the legislation, however, did not limit the breadth of the solution adopted. Just responded Congress problem of employment discrimi- nation by enacting provision protects all see races, McDonald v. Santa Fe Trail Transp. Co., 427 U. 273, 279,12 S. so, too, its answer problem to the of federal funding of segregated facilities stands as a broad prohibition against the exclusion any individual from a federally funded program “on the ground of race.” In the words the House Report, Title VI stands for general “the principle no person . . . be excluded from participation on ground ... of race, color, or national origin under any program or activity receiving Federal financial assistance.” Rep. H. R. No. 914, 88th 10H. R. Rep. No. 88th Cong., Sess., 1st pt. 1, p. apparent It legislative from the history that object the immediate Title VT prevent was to federal funding of segregated g., See, facilities. e. 110 Cong. (1964) Rec. 1521 (remarks of Rep. Celler); id., (re at 6544 marks of Humphrey). Sen. 12In McDonald v. Santa Fe Transp. Trail Co., the Court held that “Title prohibits VII racial against discrimination . . . petitioners white . . . upon the same standards as would applicable they were Negroes . . . .” S.,U. at 280. Quoting from our earlier Griggs decision in Duke *123 Power Co., 401 U. S. the Court reaffirmed the principle that the “prohibit statute ‘[d]iscriminatory preference [s] any group, [racial] ” minority majority.’ or S., 427 U. at 279 (emphasis original). in 414 This added). (emphasis (1963) 25 p. pt. 1, 1st
Cong., Sess., throughout echoed 601 was § and Title VI of view broad same the one of every by stressed was and debate congressional the Act.13 for the spokesmen major applicants of that exclusion however, contends,
Petitioner exclusion if the Title VI not violate does race the basis on or qualification No such stigma. racial no with it carries is of “exclusion” prohibition categorical 601’s §of limitation language The history. or its statute by justified “ex- follow words clear; perfectly section entire outlawing explicit qualify modify do not from” cluded grounds. on the stated any exclusion only reading. The this history reinforces legislative The nonminority exclusion allow 601§ would suggestion then legislation of the opponents from came applicants word meaning discussion way of a only 14 “dis- term feared that the opponents “discrimination.” id., Celler); Rep. (remarks (1964) Cong. See, g., Rec. e. (remarks of Sen. id., at Humphrey); (remarks of Sen. at 5864 Celler Pastare). (Representative (remarks of Sen. Kuehel); id., at floor and Senate the House Kuehel Humphrey and were and Senators Pastore and Senator Rights Act, entire Civil managers for the VI.) manager for Title majority floor Senate typical: were Abernethy’s comments Representative unprecedented most harsh as the aptly described has “Title VI been in bill.... proposal contained federally pro- assisted eliminating discrimination toward “It is aimed might yardsticks as to what guideposts and no no It grams. contains federally programs aided carrying out discrimination constitute projects. . . . from 'racially staff balanced’ college to have
“Presumably have would . .. the cafeteria. officeto the dean’s interject as a factor race law, will title, if enacted into effect of “The this The con- an .... involving individual every selection decision every cloud over like a black hover cept of 'racial imbalance’ would (remarks g., id., 5611-5613 also, e. Id., at 1619. See . . . .” transaction Gore). (remarks of Ervin); id., at 9083 Sen. of Sen. *124 crimination” would be read as mandating quotas racial and “racially balanced” colleges and universities, pressed and they specific a definition of term in order to avoid this possibility.15 In response, proponents of the legislation gave repeated assurances that the Act would be “colorblind” application.16 its Senator Humphrey, floor Senate manager for the expressed Act, this position follows: as word
“[T]he ‘discrimination’ has been used in many a court case. What really means bill is dis- tinction in treatment . . given . to different individuals because their race, different religion national origin. . ..
“The answer to this question by was meant ‘dis- [what is that if race not crimination’] we do not factor, have to worry about discrimination because of . race. . . The Internal Revenue provide does not colored Code that people do not have to pay or that taxes, they pay can their taxes 6 everyone months later than 110 Cong. else.” Rec. 5864 (1964). we started to treat
“[I]f Americans as Americans, not as fat ones, thin ones, short ones, tall ones, brown ones, green yellow ones, ones, or white but as ones, Americans. If we did that we would need worry not about dis- Id., crimination.” at 5866. g., id., (remarks E. Eastland). of Sen. g., See, id., (remarks e. at 8346 Proxmire) (“Taxes of Sen. are col
lected from Negroes, they whites expended should be without discrimination”); id., (remarks at 7055 Pastore) (“[Title of Sen. VI] guarantee money will by that collected colorblind tax collectors will be distributed Federal and equally State administrators who are colorblind”); id., (remarks at 6543 Humphrey) (“ of Sen. ‘Simple justice requires public funds, to which all taxpayers of all races contribute, spent any fashion encourages, entrenches, subsidizes, or results discrimination’”) in racial (quoting from President Kennedy’s Message Congress, 19,1963).. June clear it seems these, such answers giving In itself Constitution VI assumed of Title proponents government,17 part on standard a colorblind required *125 an only codifies legislation that the mean not does that but prohibition statutory The prohibition. existing constitutional contained projects federally funded against discrimination Fifth the of what paraphrasing simple than a more in 601§ pro The Act’s require. would Amendment Fourteenth or their view with consistent VI Title considered plainly ponents an effective provide to they sought and the Constitution of of what distillation As a view.18 implement to weapon demanded the Constitution believed Act supporters the force, independent has 601§ Governments, Federal and of State in the found to that in addition emphasis and language with Constitution.19 Humphrey); 17 (remarks Sen. of (1964) Cong. 5253 Rec. g., 110 See, e. pro the Javits). parallel between of Sen. (remarks id., at clearest Constitution those of VI Title of hibitions funding of federal end to goal the Act—an of the immediate respect equal” facilities. but “separate here no occasion 167], have U. S. we Pape, 365 Monroe “As in [v. to make power Congress has question whether constitutional ‘reach rights of the civil that violate its officers of for acts
municipalities liable it is statute interpreting the For in S., at'191. 365 U. individuals.’ of view in its mistaken in Congress was whether consider task to our construe rather, must municipalities; we over power its limits act, in fact Congress did which impressions under light statute Alameda, 411 County Moor v. 2d, 175.” Lynskey, 452 F. Ries v. see 693, 709. U. S. long that, in the Congress’ express belief VII and Title Title VI Both prejudice, the effects prejudice social struggle to eliminate one religion, was regard to race equality, without individual principle of among races and all “meeting minds” be a there could on v. Power & Dept. Water Angeles Los purpose. See national common the statute policy of (“[T]he [Title basic Manhart, 435 U. S. fairness rather than on fairness individuals focus requires we VII]
As with other provisions of the Civil Rights Act, Congress’ expression of its policy to end racial discrimination may independently proscribe conduct the Constitution does not.20 However, we need not decide congruence lack—or of congruence the controlling statute and the Constitution —of classes”). This principle same of individual fairness is embodied in Title VI.
“The basic fairness title VI is so clear that I find it difficult to why understand it should any opposition. create . . . “Private prejudices, sure, to be cannot be eliminated overnight. How- ever, there is one area where no room at private all prejudices. exists That is governmental the area of conduct. As the first Mr. Justice Harlan prophetic said his dissenting Plessy opinion in Ferguson, 163 U. S.
537, 559: *126 “ ‘Our is Constitution color-blind.’ say “So—I to Senators —must be our Government. . . . “Title VI closes gap the purposes between our democracy aas and our prejudices as individuals. The prejudice of cuts need healing. The costs prejudice of need understanding. We cannot hostility have between two great parts of our people tragic without loss in our human values .... “Title place VI offers a meeting the minds our as to Federal money.” Cong. 110 Rec. (1964) (remarks Pastore). 7063-7064 of Sen. course, Of one of the reasons support marshaled in of the conclusion that Title VI was “noncontroversial” prohibition was that its already ibid, reflected in the (remarks law. See of Sen. Pastore). Pell and Sen. example, private employers For now under imposed by duties Title VII wholly were free from the imposed by restraints the Fifth and Fourteenth Amendments which only governmental are directed to action. In Lau v. Nichols, 563, U. S. the Government’s brief stressed that “the applicability of Title . depend VI . . does not upon the outcome of equal protection analysis. . . . independently proscribes [T]he statute by the conduct petitioners challenged provides a discrete basis for injunctive relief.” Brief for Curiae, United States as Amicus O. T. 72-6520, p. No. 15. The Court, turn, rested its decision on Title VI. Me. Justice Powell pains takes distinguish Lau from the case at hand because the Lau solely decision “rested on the statute.” Ante, at 304. See Washington also Davis, 426 U. 229, 238-239; S. Allen v. State Board of Elections, 393 U. S. 588 (Harlan, J., concurring and dissenting). crystal is on exclusion VI ban of the Title meaning since from anyone excluding the basis be cannot Race clear: program. federally funded in a participation justifies history legislative in the nothing short, In not should 601§ language broad that conclusion distinct awith dealing areWe meaning. its natural given par- time with a particular enacted statutory prohibition, any prior nor language its mind; neither concerns ticular Act, Rights in the Civil place its suggests interpretation constitutional a simply is debate, long after won prohibits Act terms In unmistakable appendage.21 programs federally funded from individuals exclusion during succinctly phrased As of their race.22 because say “permissible it is Title VI debate, under Senate only person, ‘no’ to another say but person; 'yes’ to one skin,” his color of because cannot Title VI argues that petitioner however, Belatedly, unpersuasive is claim litigant. private be enforced injunctive and requested Bakke case. of this context in the joined then itself VI; petitioner under Title declaratory relief principle expresses Humphrey, by' explained § As Senator understanding of the times. moral and- the constitutional imbedded United States funds of the sure is to make title VI purpose “The many In instances racial discrimination. support used are not are end, discrimination, title VI seeks to segregation or practices of contrary to discrimination cases, all such ... In unconstitutional. *127 is Thus, title VI of the Nation. sense the moral policy, and to national in accordance spent are funds that Federal designed to insure simply Cong. 6544 110 Rec. sense of the Nation.” moral and the the Constitution added). (1964) (emphasis 22 by a regulations HEW for rely issued on attempt Petitioner’s discriminatory no unpersuasive. is Where reading the statute contrary action” example permissible “affirmative effect, HEW’s policy was (j) This 80.5 policies.” 45 CFR “special § recruitment refers legality light 1973, no on sheds adopted regulation, which in this case. Bakke program that excluded admissions Pastore). (remarks (1964) Sen. Cong. Rec. 6047 23 110
419 issue on the question of the legality of its program under by Title VI asking for declaratory judgment it was compliance with the statute.24 Its during view state-court litigation private was that a cause of action does exist under Title VI. petitioner Because questions the availability private cause of action the first time in this Court, the question is not properly before us. See McGoldrick v. Compagnie Generate Transatlantique, 309 U. 430, 434, S. if Even it were, petitioner’s original is in assumption accord with the federal courts’ interpretation consistent of the Act. To date, the courts, including this Court, have unanimously concluded or assumed that a private action may be maintained under Title VI.25 The United States has taken the same position; in its amicus curiae brief specific directed to this issue, concluded that such a remedy is clearly available,26 24Record 30-31. 25See, g., e. Nichols, supra; Lau v. Bossier Parish School Board v.
Lemon,
(CA5
370 F. 2d
1967),
denied,
cert.
911;
388 U. S.
Uzzell v.
Friday, 547
1977), opinion
F. 2d 801 (CA4
on rehearing
banc,
en
558 F. 2d
727,
77-635;
pending,
cert.
No.
Portales,
Serna v.
(CA10
definitely ” action ibid, A cause of (2) original). (emphasis enacted,’ statute state relegated to “traditionally not been has race discrimination on based legislative voluminous excerpts from a few (3) While Ibid. law.” cause private create not intend Congress did history suggest that 18, an examina ante, 283 n. Powell, Justice Mr. action, opinion see no Congress had it clear history makes legislative entire tion ample evi (4) There right of action. private to foreclose intention consistent causes action private Congress considered dence *129 petitioner’s tardy attack on the propriety Bakke’s suit under Title requires VI that it rejected. be
The University’s special admissions program violated Title VI of the Civil Rights Act of excluding from Bakke the Medical School because his race. It is therefore our duty to affirm the judgment ordering Bakke admitted to the University. I
Accordingly, concur in the Court’s judgment insofar itas affirms the judgment of the Supreme Court of To California. the extent it purports to do I anything else, respectfully dissent. with, if not to, legislative essential g., See, e. scheme. remarks
Senator Ribicoff: “We come then to the crux of the dispute right this participate [to —how in federally programs funded without protected. be discrimination] should And this even issue upon becomes clear elementary analysis. most If Federal funds are dispensed to be nondiscriminatory on a basis, only possible remedies must fall categories: into one of two First, action end discrimination; second, action payment to end the Obviously funds. action to end preferable discrimination is since that objective reaches of extending the funds on a nondiscriminatory basis. But if the dis- persists crimination and cannot effectively be terminated, how else can. the principle of be nondiscrimination except by vindicated nonpayment of funds?” 110 Cong. Rec. 7065 id., See also 5090, 6543, at (remarks of Sen. Humphrey); id., 7103, (remarks at of Sen. Ja.vits); id., 7062, (remarks Pastore). of Sen. congressional The debates thus show a understanding clear principle embodied in personal 601 involves rights § federal that adminis- procedures trative would not, for part, the most protect. be able to analogy to the Voting Rights Act of seq. U. C. (1970 S. 1973 et § ed. and Supp. V), is clear. Both that Act and Title broadly VI are phrased in personal terms of rights (“no person .”) ; shall denied . . both were Acts drafted with broad purposes remedial mind; and the effectiveness of both Acts “severely would be hampered” without the exist- ence private of a remedy supplement procedures. administrative See Allen v. State Bd. Elections, 393 U. S. 556. In Allen, course, this Court private found a right of action under the Voting Rights Act.