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BUSINESS LAW 2 CHAPTER ONE
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123 S.Ct. 2411 Page 1
539 U.S. 244, 123 S.Ct. 2411, 91 Fair Empl.Prac.Cas. (BNA) 1803, 84 Empl. Prac. Dec. P 41,416, 156 L.Ed.2d 257,
71 USLW 4480, 177 Ed. Law Rep. 851, 03 Cal. Daily Op. Serv. 5362, 2003 Daily Journal D.A.R. 6783, 16 Fla. L.
Weekly Fed. S 387
(Cite as: 539 U.S. 244, 123 S.Ct. 2411)
Justice O'Connor filed concurring opinion in which

Justice Breyer joined in part.
Supreme Court of the United States
Jennifer GRATZ and Patrick Hamacher, Petition- Justice Thomas filed concurring opinion.
ers,
v. Justice Breyer filed opinion concurring in the judg-
Lee BOLLINGER et al. ment.
No. 02-516.
Justice Souter filed dissenting opinion in which
Argued April 1, 2003. Justice Ginsburg joined in part.
Decided June 23, 2003.
Justice Ginsburg filed dissenting opinion in which
Rejected Caucasian in-state applicants for admis- Justice Souter joined and Justice Breyer joined in
sion to University of Michigan's College of Literat- part.
ure, Science and the Arts (LSA) filed class action
West Headnotes
complaint against, inter alia, board of regents al-
leging that university's use of racial preferences in [1] Constitutional Law 92 915
undergraduate admissions violated Equal Protection
Clause, Title VI, and § 1981 and seeking, inter alia, 92 Constitutional Law
compensatory and punitive damages for past viola- 92VI Enforcement of Constitutional Provisions
tions, declaratory and injunctive relief, and order 92VI(A) Persons Entitled to Raise Constitu-
requiring LSA to offer one of them admission as tional Questions; Standing
transfer student. Action was certified as class action 92VI(A)11 Equal Protection
and bifurcated into damages and liability phases. 92k915 k. In General. Most Cited
On cross-motions for summary judgment with re- Cases
spect to liability phase only, the United States Dis- (Formerly 92k42.2(2))
trict Court for the Eastern District of Michigan, 122 Intent may be relevant to standing in Equal Protec-
F.Supp.2d 811,Patrick J. Duggan, J., granted petition challenge. U.S.C.A. Const. Art. 3, § 2, cl. 1;
tioners' motion with respect to admissions programs U.S.C.A. Const.Amend. 14.
in existence from 1995 through 1998, but denied
motion with respect to admissions programs for [2] Constitutional Law 92 915
1999 and 2000. During pendency of interlocutory
92 Constitutional Law
appeal to the United States Court of Appeals for the
92VI Enforcement of Constitutional Provisions
Sixth Circuit, certiorari was granted. The Supreme
92VI(A) Persons Entitled to Raise Constitu-
Court, Chief Justice Rehnquist, held that: (1) peti-
tional Questions; Standing
tioners had standing to seek declaratory and in-
92VI(A)11 Equal Protection
junctive relief; (2) university's current freshman ad-
92k915 k. In General. Most Cited
missions policy violated Equal Protection Clause
Cases
because its use of race was not narrowly tailored to
(Formerly 92k42.2(2))
achieve respondents' asserted compelling state in-
The injury in fact necessary to establish standing in
terest in diversity; and (3) Title VI and § 1981 were
case involving an Equal Protection challenge is
also violated by that policy.
denial of equal treatment resulting from imposition
Reversed in part and remanded. of barrier, not ultimate inability to obtain benefit; in
© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.

123 S.Ct. 2411 Page 2
Weekly Fed. S 387
(Cite as: 539 U.S. 244, 123 S.Ct. 2411)
face of such barrier, to establish standing party ging freshman admissions or make him inadequate
need only demonstrate that it is ready and able to representative of that class; guidelines used to eval-
perform and that discriminatory policy prevents it uate transfer applicants specifically cross-ref-
from doing so on equal basis. U.S.C.A. Const. Art. erenced factors and qualifications considered in as-
3, § 2, cl. 1; U.S.C.A. Const.Amend. 14. sessing freshman applicants, criteria used to de-
termine whether transfer applicant would contribute
[3] Constitutional Law 92 922 to university's stated goal of diversity were identic-
al to those used to evaluate freshman applicants,
and sole difference that all underrepresented minor-
92VI Enforcement of Constitutional Provisions
ity freshman applicants received 20 points and
92VI(A) Persons Entitled to Raise Constitu-
“virtually” all who were minimally qualified were
tional Questions; Standing
admitted whereas “generally” all minimally quali-
92VI(A)11 Equal Protection
fied minority transfer applicants were admitted out-
92k922 k. Education. Most Cited
right, though possibly relevant to narrow tailoring
Cases
analysis, clearly had no effect on applicant's stand-
(Formerly 92k42.2(2))
ing. U.S.C.A. Const. Art. 3, § 2, cl. 1; Fed.Rules
Caucasian applicant for admission to University of
Civ.Proc.Rule 23(a)(4), 28 U.S.C.A.
Michigan College of Literature, Science and the
Arts (LSA) had standing to seek prospective relief [5] Colleges and Universities 81 9.15
with respect to Equal Protection challenge to Uni-
versity's continued use of race in undergraduate ad- 81 Colleges and Universities
missions, regardless of whether he actually applied 81k9 Students
for admission as transfer student; when he applied 81k9.15 k. Admission or Matriculation. Most
to University as freshman applicant, he was denied Cited Cases
admission even though underrepresented minority
applicant with his qualifications would have been Constitutional Law 92 3280(3)
admitted, and after being denied admission he
demonstrated that he was “able and ready” to apply
92XXVI Equal Protection
as transfer student should University cease to use
92XXVI(B) Particular Classes
race in undergraduate admissions. U.S.C.A. Const.
92XXVI(B)8 Race, National Origin, or
Art. 3, § 2, cl. 1; U.S.C.A. Const.Amend. 14.
Ethnicity
[4] Federal Civil Procedure 170A 187.5 92k3275 Education
92k3280 Post-Secondary Institu-
170A Federal Civil Procedure tions
170AII Parties 92k3280(3) k. Admissions. Most
170AII(D) Class Actions Cited Cases
170AII(D)3 Particular Classes Represen- (Formerly 92k220(3))
ted State university's interest in achieving educational
170Ak187.5 k. Students, Parents, and diversity could constitute compelling state interest
Faculty. Most Cited Cases capable of supporting narrowly tailored means, for
State university's use of race in undergraduate purposes of determining whether that university's
transfer admissions did not differ from its use of policy of using race in undergraduate admissions
race in undergraduate freshman admissions, so fact decisions violated Equal Protection Clause of Four-
that petitioner was transfer applicant did not bar his teenth Amendment. U.S.C.A. Const.Amend. 14.
standing to represent absent class members challen-

123 S.Ct. 2411 Page 3
Weekly Fed. S 387
(Cite as: 539 U.S. 244, 123 S.Ct. 2411)
[6] Constitutional Law 92 3078 guarantee admission, to every single

“underrepresented minority” applicant solely be-
92 Constitutional Law cause of race; that policy was not narrowly tailored
92XXVI Equal Protection to asserted compelling state interest in achieving
92XXVI(A) In General educational diversity. U.S.C.A. Const.Amend. 14.
92XXVI(A)6 Levels of Scrutiny
92k3069 Particular Classes [8] Civil Rights 78 1055
92k3078 k. Race, National Origin,
or Ethnicity. Most Cited Cases 78 Civil Rights
(Formerly 92k215) 78I Rights Protected and Discrimination Prohib-
All racial classifications reviewable under Equal ited in General
Protection Clause must be strictly scrutinized, and 78k1055 k. Publicly Assisted Programs.
this standard of review is not dependent on race of Most Cited Cases
those burdened or benefited by a particular classi- (Formerly 78k126)
fication; thus, any person, of whatever race, has Discrimination that violates Equal Protection
right to demand that any governmental actor subject Clause of Fourteenth Amendment committed by in-
to Constitution justify any racial classification sub- stitution that accepts federal funds also constitutes
jecting that person to unequal treatment under violation of Title VI. U.S.C.A. Const.Amend. 14;
strictest of judicial scrutiny. U.S.C.A. Civil Rights Act of 1964, § 601, 42 U.S.C.A. §
Const.Amend. 14. 2000d.
[7] Colleges and Universities 81 9.15 [9] Civil Rights 78 1041
81 Colleges and Universities 78 Civil Rights

81k9 Students 78I Rights Protected and Discrimination Prohib-
81k9.15 k. Admission or Matriculation. Most ited in General
Cited Cases 78k1041 k. Contracts, Trade, and Commer-
cial Activity. Most Cited Cases
Constitutional Law 92 3280(3) (Formerly 78k118)
92 Constitutional Law Civil Rights 78 1061

92XXVI Equal Protection
92XXVI(B) Particular Classes 78 Civil Rights
92XXVI(B)8 Race, National Origin, or 78I Rights Protected and Discrimination Prohib-
Ethnicity ited in General
92k3275 Education 78k1059 Education
92k3280 Post-Secondary Institu- 78k1061 k. Admission. Most Cited Cases
tions (Formerly 78k127.1)
92k3280(3) k. Admissions. Most Section 1981 was meant, by its broad terms, to pro-
Cited Cases scribe discrimination in making or enforcement of
(Formerly 92k220(3)) contracts against, or in favor of, any race, and con-
Equal protection rights of Caucasian applicants to tract for educational services is “contract” for pur-
University of Michigan's undergraduate College of poses of that statute. 42 U.S.C.A. § 1981.
Literature, Science and the Arts (LSA) were viol-
[10] Civil Rights 78 1033(1)
ated by University's policy of automatically distrib-
uting 20 points, or one-fifth of those needed to 78 Civil Rights

123 S.Ct. 2411 Page 4
Weekly Fed. S 387
(Cite as: 539 U.S. 244, 123 S.Ct. 2411)
78I Rights Protected and Discrimination Prohib- both were denied early admission and were ulti-
ited in General mately denied admission. In order to promote con-
78k1030 Acts or Conduct Causing Depriva- sistency in the **2414 review of the many applica-
tion tions received, the University's Office of Under-
78k1033 Discrimination in General graduate Admissions (OUA) uses written
78k1033(1) k. In General. Most Cited guidelines for each academic year. The guidelines
Cases have changed a number of times during the period
(Formerly 78k111) relevant to this litigation. The OUA considers a
Purposeful discrimination that violates Equal Pro- number of factors in making admissions decisions,
tection Clause of Fourteenth Amendment will also including high school grades, standardized test
violate § 1981. U.S.C.A. Const.Amend. 14; 42 scores, high school quality, curriculum strength,
U.S.C.A. § 1981. geography, alumni relationships, leadership, and
race. During all relevant periods, the University has
[11] Civil Rights 78 1061 considered African-Americans, Hispanics, and Nat-
ive Americans to be “underrepresented minorities,”
78 Civil Rights
and it is undisputed that the University admits vir-
78I Rights Protected and Discrimination Prohib-
tually every qualified applicant from these groups.
ited in General
The current guidelines use a selection method under
78k1059 Education
which every applicant from an underrepresented ra-
78k1061 k. Admission. Most Cited Cases
cial or ethnic minority group is automatically awar-
(Formerly 78k127.1)
ded 20 points of the 100 needed to guarantee ad-
Because Equal Protection Clause was violated
mission.
thereby, Title VI and § 1981 were also violated by
state university's undergraduate admissions policy Petitioners filed this class action alleging that the
of automatically distributing 20 points, or one-fifth University's use of racial preferences in under-
of those needed to guarantee admission, to every graduate admissions violated the Equal Protection
single “underrepresented minority” applicant solely Clause of the Fourteenth Amendment, Title VI of
because of race. 42 U.S.C.A. § 1981; Civil Rights the Civil Rights Act of 1964, and 42 U.S.C. § 1981.
Act of 1964, § 601, 42 U.S.C.A. § 2000d. They sought compensatory and punitive damages
FN* for past violations, declaratory relief finding that
**2413 *244 Syllabus
respondents violated their rights to nondiscriminat-
FN* The syllabus constitutes no part of the ory treatment, an injunction prohibiting respondents
opinion of the Court but has been prepared from continuing to discriminate on the basis of
by the Reporter of Decisions for the con- race, and an order requiring the LSA to offer
venience of the reader. See United States v. Hamacher admission as a transfer student. The Dis-
Detroit Timber & Lumber Co., 200 U.S. trict Court granted petitioners' motion to certify a
321, 337, 26 S.Ct. 282, 50 L.Ed. 499. class consisting of individuals who applied for and
were denied admission to the LSA for academic
Petitioners Gratz and Hamacher, both of whom are year 1995 and forward and who are members of ra-
Michigan residents and Caucasian, applied for ad- cial or ethnic groups that respondents treated less
mission to the University of Michigan's favorably on the basis of race. Hamacher, whose
(University) College of Literature, Science, and the claim was found to challenge racial discrimination
Arts (LSA) in 1995 and 1997, respectively. Al- on a classwide basis, was designated as the class
though the LSA considered Gratz to be well quali- representative. On cross-motions for summary
fied and Hamacher to be within the qualified range, judgment, respondents relied on Justice Powell's

123 S.Ct. 2411 Page 5
Weekly Fed. S 387
(Cite as: 539 U.S. 244, 123 S.Ct. 2411)
principal opinion in *245Regents of Univ. of Cal. v. doing so on an equal basis. Ibid. In bringing his
Bakke, 438 U.S. 265, 317, 98 S.Ct. 2733, 57 equal protection challenge against the University's
L.Ed.2d 750, which expressed the view that the use of race in undergraduate admissions, Hamacher
consideration of race as a factor in admissions alleged that the University had denied him the op-
might in some cases serve a compelling govern- portunity to compete for admission on an equal
ment interest. Respondents contended that the LSA basis. Hamacher was denied admission to the Uni-
has just such an interest in the educational benefits versity as a freshman applicant even though an un-
that result from having a racially and ethnically di- derrepresented minority applicant with his qualific-
verse student body and that its program is narrowly ations would have been admitted. After being
tailored to serve that interest. The court agreed with denied admission, Hamacher demonstrated that he
respondents as to the LSA's current admissions was “able and ready” to apply as a transfer student
guidelines and granted them summary judgment in should the University cease to use race in under-
that respect. However, the court also found that the graduate admissions. He therefore has standing to
LSA's admissions guidelines for 1995 through 1998 seek prospective relief with respect to the Uni-
operated as the functional equivalent of a quota versity's continued use of race. Also rejected is
running afoul of Justice Powell's Bakke opinion, Justice STEVENS' contention that such use in un-
and thus granted petitioners summary judgment dergraduate transfer admissions differs from the
with respect to respondents' admissions programs University's use of race in undergraduate freshman
for those years. While interlocutory appeals were admissions, so that Hamacher lacks standing to rep-
pending in the Sixth Circuit, that court issued an resent absent class members challenging the latter.
opinion in Grutter v. Bollinger, ante, 539 U.S. 306, Each year the OUA produces a document setting
123 S.Ct. 2325, 156 L.Ed.2d 304, upholding the ad- forth *246 guidelines for those seeking admission
missions program used by the University's Law to the LSA, including freshman and transfer applic-
School. This Court granted certiorari in both cases, ants. The transfer applicant guidelines specifically
even though the Sixth Circuit had not yet rendered cross-reference factors and qualifications con-
judgment in this one. sidered in assessing freshman applicants. In fact,
the criteria used to determine whether a transfer ap-
Held: plicant will contribute to diversity are identical to
those used to evaluate freshman applicants. The
1. Petitioners have standing to seek declaratory and
only difference is that all underrepresented minority
injunctive relief. The Court rejects Justice
freshman applicants receive 20 points and
STEVENS' contention that, because Hamacher did
“virtually” all who are minimally qualified are ad-
not actually apply for admission as a transfer stu-
mitted, while “generally” all minimally qualified
dent, his future injury claim is at best conjectural or
minority transfer applicants are admitted outright.
hypothetical rather than real and immediate. The
While this difference might be relevant to a narrow
“injury in fact” necessary to establish standing in
tailoring analysis, it clearly has no effect on peti-
this type of case is the denial of equal treatment
tioners' standing to challenge the University's use of
resulting from the imposition of the barrier, not the
race in undergraduate admissions and its assertion
ultimate inability to obtain the benefit. Northeast-
that diversity is a compelling state interest justify-
ern Fla. Chapter, Associated Gen. Contractors of
ing its consideration of the race of its undergraduate
America v. Jacksonville, 508 U.S. 656, 666, 113
applicants. See General Telephone Co. of Southw-
S.Ct. 2297, 124 L.Ed.2d 586. In the face of such a
est v. Falcon, 457 U.S. 147, 159, 102 S.Ct. 2364,
barrier, to establish standing, a party need only
72 L.Ed.2d 740; Blum v. Yaretsky, 457 U.S. 991,
demonstrate that it is able and ready to perform and
102 S.Ct. 2777, 73 L.Ed.2d 534, distinguished. The
that a discriminatory**2415 policy prevents it from
District Court's carefully considered decision to

123 S.Ct. 2411 Page 6
Weekly Fed. S 387
(Cite as: 539 U.S. 244, 123 S.Ct. 2411)
certify this class action is correct. Cf. Coopers & the race of a “particular black applicant” could be
Lybrand v. Livesay, 437 U.S. 463, 469, 98 S.Ct. considered without being decisive, see id., at 317,
2454, 57 L.Ed.2d 351. Hamacher's personal stake, 98 S.Ct. 2733, the LSA's 20-point distribution has
in view of both his past injury and the potential in- the effect of making “the factor of race ... decisive”
jury he faced at the time of certification, demon- for virtually every minimally qualified underrepres-
strates that he may maintain the action. Pp. ented minority applicant, ibid. The fact that the
2422-2426. LSA has created the possibility of an applicant's
file being flagged for individualized consideration
2. Because the University's use of race in its current only emphasizes the flaws of the University's sys-
freshman admissions policy is not narrowly tailored tem as a whole when compared to that described by
to achieve respondents' asserted interest in di- Justice Powell. The record does not reveal precisely
versity, the policy violates the Equal Protection how many applications are flagged, but it is undis-
Clause. For the reasons set forth in Grutter v. puted that such consideration is the exception and
Bollinger, ante, 539 U.S., at 327-333, 123 S.Ct. not the rule in the LSA's program. Also, this indi-
2325, 2003 WL 21433492, the Court has today re- vidualized review is only provided after admissions
jected petitioners' argument that diversity cannot counselors automatically distribute the University's
constitute a compelling state interest. However, the version of a “plus” that makes race a decisive factor
Court finds that the University's current policy, for virtually every minimally qualified underrepres-
which automatically distributes 20 points, or one- ented minority applicant. The Court rejects re-
fifth of the points needed to guarantee admission, to spondents' contention that the volume of applica-
every single “underrepresented minority” applicant tions and the presentation of applicant information
solely because of race, is not narrowly tailored to make it impractical for the LSA to use the admis-
achieve educational diversity. In Bakke, Justice sions system upheld today in Grutter. The fact that
Powell explained his view that it would be permiss- the implementation of a program capable of provid-
ible for a university to employ an admissions pro- ing individualized consideration might present ad-
gram in which “race or ethnic background may be ministrative challenges does not render constitu-
deemed a ‘plus' in a particular applicant's file.” 438 tional an otherwise problematic system. See, e.g.,
U.S., at 317, 98 S.Ct. 2733. He emphasized, Richmond v. J.A. Croson Co., 488 U.S. 469, 508,
however, the importance of considering each partic- 109 S.Ct. 706, 102 L.Ed.2d 854. Nothing in Justice
ular applicant as an individual, assessing all of the Powell's Bakke opinion signaled that a university
qualities that individual possesses, and in turn, may employ whatever means it desires to achieve
evaluating that individual's ability to contribute to diversity without regard to the limits imposed by
the unique setting of higher education. The admis- strict scrutiny. Pp. 2426-2430.
sions program Justice Powell described did not con-
template that any single characteristic automatically 3. Because the University's use of race in its current
ensured a specific and identifiable contribution to a freshman admissions policy violates the Equal Pro-
university's diversity. See id., at 315, 98 S.Ct. 2733. tection Clause, it also violates Title VI and § 1981.
The current LSA policy does **2416 not provide See, e.g., Alexander v. Sandoval, 532 U.S. 275,
the individualized consideration Justice Powell con- 281, 121 S.Ct. 1511, 149 L.Ed.2d 517; General
templated. The only consideration that accompanies Building Contractors Assn. v. Pennsylvania, 458
the 20-point automatic distribution to all applicants U.S. 375, 389-390, 102 S.Ct. 3141, 73 L.Ed.2d 835.
from underrepresented minorities is a factual re- Accordingly, the Court reverses that portion of the
view to determine whether an individual is a mem- District Court's decision granting respondents sum-
ber *247 of one of these minority groups. mary judgment with respect to liability. Pp.
Moreover, unlike Justice Powell's example, where 2430-2431.

123 S.Ct. 2411 Page 7
Weekly Fed. S 387
(Cite as: 539 U.S. 244, 123 S.Ct. 2411)
Reversed in part and remanded. frey J. Dillard, Milton R. Henry, Reginald M. Turn-
er, Citizens For Affirmative Action's Preservation,
REHNQUIST, C.J. delivered the opinion of the Detroit, MI, Counsel for Patterson Respondents.
Court, in which O'CONNOR, SCALIA,
KENNEDY, and THOMAS, JJ., joined. Marvin Krislov, Jonathan Alger, University of
O'CONNOR, J., filed a concurring opinion, in Michigan, Office of the Vice President and General
which BREYER, J., joined in part, post, p. 2431. Counsel, Ann Arbor, MI, Jeffrey Lehman, Evan
THOMAS, J., filed a concurring opinion, post, p. Caminker, University of Michigan Law School,
2433. BREYER, J., filed an opinion concurring in Ann Arbor, MI, Philip J. Kessler, Leonard M. Nie-
the judgment, post, p. 2433. STEVENS, J., filed a hoff, Butzel Long, Ann Arbor, MI, John H. Picker-
dissenting opinion, in which SOUTER, J., joined, ing, John Payton, Counsel of Record, Brigida Ben-
post, p. 2434. SOUTER, J., filed a dissenting opin- itez, Stuart F. Delery, Craig Goldblatt, Anne
ion, in which GINSBURG, J., joined as to Part II, Harkavy, Terry A. Maroney, Wilmer, Cutler &
post, p. 2438. GINSBURG, J., filed a dissenting Pickering, Washington, DC, Maureen E. Mahoney,
opinion, in which SOUTER, J., joined, and in J. Scott Ballenger, Nathaniel A. Vitan, Latham &
which BREYER, J., joined as to Part I, post, p. Watkins, Washington, DC, Counsel for Respond-
2442. ents.
*248 Kirk O. Kolbo, Minneapolis, MN, for peti-
tioners. For U.S. Supreme Court Briefs, See:2003 WL
164186 (Pet.Brief)2003 WL 367216
Theodore B. Olson, Great Falls, VA, for the United (Resp.Brief)2003 WL 402237 (Resp.Brief)2003
States as amicus curiae, by special leave of the WL 1610798 (Reply.Brief)
Court, supporting the petitioners.
*249 Chief Justice REHNQUIST delivered the
John Payton, Washington, DC, for respondents. opinion of the Court.
Michael E. Rosman, Hans Bader Center for Indi- We granted certiorari in this case to decide whether
vidual Rights, Washington, D.C., Kerry L. Morgan, “the University of Michigan's use of racial prefer-
Pentiuk, Couvreur & Kobiljak, P.C., Wyandotte, ences in undergraduate*250 admissions violate[s]
MI, David F. Herr, Counsel of Record, Kirk O. the Equal Protection Clause of the Fourteenth
Kolbo, R. Lawrence Purdy, Michael C. McCarthy, Amendment, Title VI of the Civil Rights Act of
Kai H. Richter, Maslon, Edelman, Borman & 1964 (42 U.S.C. § 2000d), or 42 U.S.C. § 1981.”
Brand, LLP, Minneapolis, MN, for petitioners. Brief *251 for Petitioners i. Because we find that
the manner in which the University considers the
**2417 Christopher A. Hansen, E. Vincent Warren, race of applicants in its undergraduate admissions
American Civil Liberties Union Foundation, New guidelines violates these constitutional and stat-
York City, Elaine R. Jones, Director-Counsel, utory provisions, we reverse that portion of the Dis-
Theodore M. Shaw, Norman J. Chachkin, James L. trict Court's decision upholding the guidelines.
Cott, Melissa S. Woods, NAACP Legal Defense
and Educational Fund, Inc., New York City, Brent
E. Simmons, ACLU Fund of Michigan, Lansing, I
MI, Michael J. Steinberg, ACLU Fund of Michigan,
Detroit, MI, Antonia Hernandez, President and A
General Counsel, Thomas Saenz, Patricia Mendoza,
Victor Viramontes, Mexican American Legal De-
fense and Education Fund, Los Angeles, CA, God- Petitioners Jennifer Gratz and Patrick Hamacher

123 S.Ct. 2411 Page 8
Weekly Fed. S 387
(Cite as: 539 U.S. 244, 123 S.Ct. 2411)
both applied for admission to the University of criminatory treatment,” an injunction prohibiting
Michigan's (University) College of Literature, Sci- respondents from “continuing to discriminate on
ence, and the Arts (LSA) as residents of the State of the basis of race in violation of the Fourteenth
Michigan. Both petitioners are Caucasian. Gratz, Amendment,” and an order requiring the LSA to of-
FN4
who applied for admission for the fall of 1995, was fer Hamacher admission as a transfer student.
notified in January of that year that a final decision Id., at 40.
regarding her admission had been delayed until
April. This delay was based upon the University's FN2. The University of Michigan Board of
determination that, although Gratz was “ ‘well Regents was subsequently named as the
qualified,’ ” she was “ ‘less competitive than the proper defendant in place of the University
students who ha[d] been admitted on first review.’ ” and the LSA. See id., at 17.
App. to Pet. for Cert. 109a. Gratz was notified in
FN3. Duderstadt was the president of the
April that the LSA was unable to offer her admis-
University during the time that Gratz's ap-
sion. She enrolled in the University of Michigan at
plication was under consideration. He has
Dearborn, from which she graduated in the spring
been sued in his individual capacity.
of 1999.
Bollinger was the president of the Uni-
Hamacher applied for admission to the LSA for the versity when Hamacher applied for admis-
fall of 1997. A final decision as to his application sion. He was originally sued in both his in-
was also postponed because, though his “ dividual and official capacities, but he is
‘academic credentials [were] in the qualified range, no longer the president of the University.
they [were] not at the level needed for first review Id., at 35.
admission.’ ” Ibid. Hamacher's application was sub-
FN4. A group of African-American and
sequently denied in April 1997, and he enrolled at
FN1 Latino students who applied for, or inten-
Michigan State University.
ded to apply for, admission to the Uni-
FN1. Although Hamacher indicated that he versity, as well as the Citizens for Affirm-
“intend[ed] to apply to transfer if the ative Action's Preservation, a nonprofit or-
[LSA's] discriminatory admissions system ganization in Michigan, sought to inter-
[is] eliminated,” he has since graduated vene pursuant to Federal Rule of Civil Pro-
from Michigan State University. App. 34. cedure 24. See App. 13-14. The District
Court originally denied this request, see
*252 In October 1997, Gratz and Hamacher filed a id., at 14-15, but the Sixth Circuit reversed
lawsuit in the United States District Court for the that decision. See Gratz v. Bollinger, 188
Eastern District of Michigan **2418 against the F.3d 394 (1999).
FN2
University, the LSA, James Duderstadt, and
FN3 The District Court granted petitioners' motion for
Lee Bollinger. Petitioners' complaint was a
class-action suit alleging “violations and threatened class certification after determining that a class ac-
violations of the rights of the plaintiffs and the class tion was appropriate pursuant to Federal Rule of
they represent to equal protection of the laws under Civil Procedure 23(b)(2). The certified class con-
the Fourteenth Amendment ..., and for racial dis- sisted of “those individuals who applied for and
crimination in violation of 42 U.S.C. §§ 1981, 1983 were not granted admission to the College of *253
and 2000d et seq. ” App. 33. Petitioners sought, Literature, Science & the Arts of the University of
inter alia, compensatory and punitive damages for Michigan for all academic years from 1995 forward
past violations, declaratory relief finding that re- and who are members of those racial or ethnic
spondents violated petitioners' “rights to nondis- groups, including Caucasian, that defendants

123 S.Ct. 2411 Page 9
Weekly Fed. S 387
(Cite as: 539 U.S. 244, 123 S.Ct. 2411)
treat[ed] less favorably on the basis of race in con- University*254 has considered African-Americans,
sidering their application for admission.” App. Hispanics, and Native Americans to be
70-71. And Hamacher, whose claim the District “underrepresented minorities,” and it is undisputed
Court found to challenge a “ ‘practice of racial dis- that the University admits “virtually every qualified
crimination pervasively applied on a classwide ... applicant” from these groups. App. to Pet. for
basis,’ ” was designated as the class representative. Cert. 111a.
Id., at 67, 70. The court also granted petitioners'
motion to bifurcate the proceedings into a liability During 1995 and 1996, OUA counselors evaluated
and damages phase. Id., at 71. The liability phase applications according to grade point average com-
was to determine “whether [respondents'] use of bined with what were referred to as the “SCUGA”
race as a factor in admissions decisions violates the factors. These factors included the quality of an ap-
Equal Protection Clause of the Fourteenth Amend- plicant's high school (S), the strength of an applic-
FN5 ant's high school curriculum (C), an applicant's un-
ment to the Constitution.” Id., at 70.
usual circumstances (U), an applicant's geographic-
FN5. The District Court decided also to al residence (G), and an applicant's alumni relation-
consider petitioners' request for injunctive ships (A). After these scores were combined to pro-
and declaratory relief during the liability duce an applicant's “GPA 2” score, the reviewing
phase of the proceedings. App. 71. admissions counselors referenced a set of
“Guidelines” tables, which listed GPA 2 ranges on
the vertical axis, and American College Test/
B
Scholastic Aptitude Test (ACT/SAT) scores on the
The University has changed its admissions horizontal axis. Each table was divided into cells
guidelines a number of times during the period rel- that included one or more courses of action to be
evant to this litigation, and we summarize the most taken, including admit, reject, delay for additional
significant of these changes briefly. The Uni- information, or postpone for reconsideration.
versity's Office of Undergraduate Admissions
FN6 In both years, applicants with the same GPA 2
(OUA) oversees the LSA admissions process.
score and ACT/SAT score were subject to different
In order to promote consistency in the review of the
admissions outcomes based upon their racial or eth-
large number of applications received, the OUA FN7
nic status. For example, as a Caucasian in-state
uses written guidelines for each academic year. Ad-
applicant, Gratz's GPA 2 score and ACT score
missions counselors make admissions decisions in
placed her within a cell calling for a postponed de-
accordance with these guidelines.
cision on her application. An in-state or out-of-state
FN6. Our description is taken, in large minority applicant with Gratz's scores would have
part, from the “Joint Proposed Summary of fallen within a cell calling for admission.
Undisputed Facts Regarding Admissions
FN7. In 1995, counselors used four such
Process” filed by the parties in the District
tables for different groups of applicants:
Court. App. to Pet. for Cert. 108a-117a.
(1) in-state, nonminority applicants; (2)
OUA considers a number of factors in making ad- out-of-state, nonminority applicants; (3)
missions decisions, including high school grades, in-state, minority applicants; and (4) out-
standardized test scores, high school quality, cur- of-state, minority applicants. In 1996, only
riculum **2419 strength, geography, alumni rela- two tables were used, one for in-state ap-
tionships, and leadership. OUA also considers race. plicants and one for out-of-state applicants.
During all periods relevant to this litigation, the But each cell on these two tables contained
separate courses of action for minority ap-

123 S.Ct. 2411 Page 10
Weekly Fed. S 387
(Cite as: 539 U.S. 244, 123 S.Ct. 2411)
plicants and nonminority applicants whose stance, of how race and ethnicity [were] considered
GPA 2 scores and ACT/SAT scores placed in admissions.’ ” App. to Pet. for Cert. 116a.
them in that cell.
*256 In all application years from 1995 to 1998, the
*255 In 1997, the University modified its admis- guidelines provided that qualified applicants from
sions procedure. Specifically, the formula for calcu- underrepresented minority groups be admitted as
lating an applicant's GPA 2 score was restructured soon as possible in light of the University's belief
to include additional point values under the “U” that such applicants were more likely to enroll if
category in the SCUGA factors. Under this new promptly notified of their admission. Also from
system, applicants could receive points for under- 1995 through 1998, the University carefully man-
represented minority status, socioeconomic disad- aged its rolling admissions system to permit consid-
vantage, or attendance at a high school with a pre- eration of certain applications submitted later in the
dominantly underrepresented minority population, academic year through the use of “protected seats.”
or underrepresentation in the unit to which the stu- Specific groups-including athletes, foreign students,
dent was applying (for example, men who sought to ROTC candidates, and underrepresented minorities-
pursue a career in nursing). Under the 1997 proced- were “protected categories” eligible for these seats.
ures, Hamacher's GPA 2 score and ACT score A committee called the Enrollment Working Group
placed him in a cell on the in-state applicant table (EWG) projected how many applicants from each
calling for postponement of a final admissions de- of these protected categories the University was
cision. An underrepresented minority applicant likely to receive after a given date and then paced
placed in the same cell would generally have been admissions decisions to permit full consideration of
admitted. expected applications from these groups. If this
space was not filled by qualified candidates from
Beginning with the 1998 academic year, the OUA the designated groups toward the end of the admis-
dispensed with the Guidelines tables and the sions season, it was then used to admit qualified
SCUGA point system in favor of a “selection in- candidates remaining in the applicant pool, includ-
dex,” on which an applicant could score a maxim- ing those on the waiting list.
um of 150 points. This index was divided linearly
into ranges generally calling for admissions dispos- During 1999 and 2000, the OUA used the selection
itions as follows: 100-150 (admit); 95-99 (admit or index, under which every applicant from an under-
postpone); 90-94 (postpone or admit); 75-89 (delay represented racial or ethnic minority group was
or postpone); 74 and below (delay or reject). awarded 20 points. Starting in 1999, however, the
University established an Admissions Review Com-
Each application received points based on high mittee (ARC), to provide an additional level of con-
school grade point average, standardized test sideration for some applications. Under the new
scores, academic quality of an applicant's high system, counselors may, in their discretion, “flag”
school, strength or weakness of high school cur- an application for the ARC to review after determ-
riculum, in-state residency, alumni relationship, ining that the applicant (1) is academically prepared
personal essay, and personal achievement or leader- FN8
to succeed at the University, (2) has achieved a
ship. Of particular significance here, under a minimum selection index score, and (3) possesses a
“miscellaneous” category, an applicant was entitled quality or characteristic important to the Uni-
to 20 points based upon his or her membership in versity's composition*257 of its freshman class,
an underrepresented racial or ethnic minority group. such as high class rank, unique life experiences,
The University explained that the **2420 “ challenges, circumstances, interests or talents, so-
‘development of the selection index for admissions cioeconomic disadvantage, and underrepresented
in 1998 changed only the mechanics, not the sub-

123 S.Ct. 2411 Page 11
Weekly Fed. S 387
(Cite as: 539 U.S. 244, 123 S.Ct. 2411)
race, ethnicity, or geography. After reviewing tinuing effects of such discrimination, was
“flagged” applications, the ARC determines wheth- the real justification for the LSA's race-
er to admit, defer, or deny each applicant. conscious admissions programs.” Id., at
795. We agree, and to the extent respond-
FN8. LSA applicants who are Michigan ent-intervenors reassert this justification, a
residents must accumulate 80 points from justification the University has never asser-
the selection index criteria to be flagged, ted throughout the course of this litigation,
while out-of-state applicants need to accu- we affirm the District Court's disposition
mulate 75 points to be eligible for such of the issue.
consideration. See App. 257.
**2421 *258 The District Court began its analysis
by reviewing this Court's decision in Bakke. See
C
122 F.Supp.2d 811, 817 (E.D.Mich.2000). Al-
The parties filed cross-motions for summary judg- though the court acknowledged that no decision
ment with respect to liability. Petitioners asserted from this Court since Bakke has explicitly accepted
that the LSA's use of race as a factor in admissions the diversity rationale discussed by Justice Powell,
violates Title VI of the Civil Rights Act of 1964, 78 see 122 F.Supp.2d, at 820-821, it also concluded
Stat. 252, 42 U.S.C. § 2000d, and the Equal Protec- that this Court had not, in the years since Bakke,
tion Clause of the Fourteenth Amendment. Re- ruled out such a justification for the use of race,
spondents relied on Justice Powell's opinion in Re- 122 F.Supp.2d, at 820-821. The District Court con-
gents of Univ. of Cal. v. Bakke, 438 U.S. 265, 98 cluded that respondents and their amici curiae had
S.Ct. 2733, 57 L.Ed.2d 750 (1978), to respond to presented “solid evidence” that a racially and eth-
petitioners' arguments. As discussed in greater de- nically diverse student body produces significant
tail in the Court's opinion in Grutter v. Bollinger, educational benefits such that achieving such a stu-
ante, 539 U.S., at 323-325, 123 S.Ct. 2325, 2003 dent body constitutes a compelling governmental
WL 21433492, Justice Powell, in Bakke, expressed interest. See id., at 822-824.
the view that the consideration of race as a factor in
The court next considered whether the LSA's ad-
admissions might in some cases serve a compelling
missions guidelines were narrowly tailored to
government interest. See 438 U.S., at 317, 98 S.Ct.
achieve that interest. See id., at 824. Again relying
2733. Respondents contended that the LSA has just
on Justice Powell's opinion in Bakke, the District
such an interest in the educational benefits that res-
Court determined that the admissions program the
ult from having a racially and ethnically diverse
LSA began using in 1999 is a narrowly tailored
student body and that its program is narrowly
means of achieving the University's interest in the
tailored to serve that interest. Respondent-interven-
educational benefits that flow from a racially and
ors asserted that the LSA had a compelling interest
ethnically diverse student body. See 122 F.Supp.2d,
in remedying the University's past and current dis-
FN9 at 827. The court emphasized that the LSA's current
crimination against minorities.
program does not utilize rigid quotas or seek to ad-
FN9. The District Court considered and re- mit a predetermined number of minority students.
jected respondent-intervenors' arguments See ibid. The award of 20 points for membership in
in a supplemental opinion and order. See an underrepresented minority group, in the District
135 F.Supp.2d 790 (E.D.Mich.2001). The Court's view, was not the functional equivalent of a
court explained that respondent-interven- quota because minority candidates were not insu-
ors “failed to present any evidence that the lated from review by virtue of those points. See id.,
discrimination alleged by them, or the con- at 828. Likewise, the court rejected the assertion

123 S.Ct. 2411 Page 12
Weekly Fed. S 387
(Cite as: 539 U.S. 244, 123 S.Ct. 2411)
that the LSA's program operates like the two-track District Court denied petitioners' request for in-
system Justice Powell found objectionable in Bakke junctive relief. See id., at 814.
on the grounds that LSA applicants are not compet-
ing for different groups of seats. See 122 The District Court issued an order consistent with
F.Supp.2d, at 828-829. The court also dismissed pe- its rulings and certified two questions for inter-
titioners' assertion that the LSA's current system is locutory appeal to the Sixth Circuit pursuant to 28
nothing more than a means by which to achieve ra- U.S.C. § 1292(b). Both parties appealed aspects of
cial balancing. See id., at 831. The court explained the District Court's rulings, and the Court of Ap-
that the LSA does not seek to *259 achieve a cer- peals heard the case en banc on the same day as
tain proportion of minority students, let alone a pro- Grutter v. Bollinger. The Sixth Circuit later issued
portion that represents the community. See ibid. an opinion in Grutter, upholding the admissions
program used by the University of Michigan Law
The District Court found the admissions guidelines School, and the petitioner in that case sought a writ
the LSA used from 1995 through 1998 to be more of certiorari from this Court. Petitioners asked this
problematic. In the court's view, the University's Court to grant certiorari in this case as *260 well,
prior practice of “protecting” or “reserving” seats despite the fact that the Court of Appeals had not
for underrepresented minority applicants effectively yet rendered a judgment, so that this Court could
kept nonprotected applicants from competing for address the constitutionality of the consideration of
those slots. See id., at 832. This system, the court race in university admissions in a wider range of
concluded, operated as the functional equivalent of circumstances. We did so. See 537 U.S. 1044, 123
a quota and ran afoul of Justice Powell's opinion in S.Ct. 617, 154 L.Ed.2d 514 (2002).
FN10
Bakke. See 122 F.Supp.2d, at 832.
FN10. The District Court determined that II

respondents Bollinger and Duderstadt, who
As they have throughout the course of this litiga-
were sued in their individual capacities un-
tion, petitioners contend that the University's con-
der Rev. Stat. § 1979, 42 U.S.C. § 1983,
sideration of race in its undergraduate admissions
were entitled to summary judgment based
decisions violates § 1 of the Equal Protection
on the doctrine of qualified immunity. See FN11
Clause of the Fourteenth Amendment, Title
122 F.Supp.2d, at 833-834. Petitioners FN12 FN13
VI, and 42 U.S.C. § 1981. We consider
have not asked this Court to review this as-
first whether petitioners have standing to seek de-
pect of the District Court's decision. The
claratory and injunctive relief, and, finding that
District Court denied the Board of Regents'
they do, we next consider the merits of their claims.
motion for summary judgment with respect
to petitioners' Title VI claim on Eleventh FN11. The Equal Protection Clause of the
Amendment immunity grounds. See id., at Fourteenth Amendment explains that “[n]o
834-836. Respondents have not asked this State shall ... deny to any person within its
Court to review this aspect of the District jurisdiction the equal protection of the
Court's decision. laws.”
Based on these findings, the court granted petition- FN12. Title VI provides that “[n]o person
ers' motion for summary judgment with respect to in the United States shall, on the ground of
the LSA's admissions programs in existence from race, color, or national origin, be excluded
1995 through 1998, and respondents' motion with from participation in, be denied the bene-
respect to the LSA's admissions programs for 1999 fits of, or be subjected to discrimination
and 2000. See id., at 833. Accordingly, **2422 the

123 S.Ct. 2411 Page 13
Weekly Fed. S 387
(Cite as: 539 U.S. 244, 123 S.Ct. 2411)
under any program or activity receiving [1][2] It is well established that intent may be relev-
Federal financial assistance.” 42 U.S.C. § ant to standing in an equal protection challenge. In
2000d. Clements v. Fashing, 457 U.S. 957, 102 S.Ct. 2836,
73 L.Ed.2d 508 (1982), for example, we considered
FN13. Section 1981(a) provides: a challenge to a provision of the Texas Constitution
requiring the immediate resignation of certain state
“All persons within the jurisdiction of
officeholders upon their announcement of candid-
the United States shall have the same
acy for another office. We concluded that the
right in every State and Territory to
**2423 plaintiff officeholders had Article III stand-
make and enforce contracts, ... and to the
ing because they had alleged that they would have
full and equal benefit of all laws and
announced their candidacy for other offices were it
proceedings for the security of persons
not for the “automatic resignation” provision they
and property as is enjoyed by white cit-
were challenging. Id., at 962, 102 S.Ct. 2836; ac-
izens.”
cord, Turner v. Fouche, 396 U.S. 346, 361-362, n.
A 23, 90 S.Ct. 532, 24 L.Ed.2d 567 (1970) (plaintiff
who did not own property had standing to challenge
Although no party has raised the issue, Justice property ownership requirement for membership on
STEVENS argues that petitioners lack Article III school board even though there was no evidence
standing to seek injunctive relief with respect to the that plaintiff had applied and been rejected); Quinn
University's use of race in undergraduate admis- v. Millsap, 491 U.S. 95, 103, n. 8, 109 S.Ct. 2324,
sions. He first contends that because Hamacher did 105 L.Ed.2d 74 (1989) (plaintiffs who did not own
not “actually appl[y] for admission as a transfer stu- property had standing to challenge property owner-
dent[,][h]is claim of future injury is at best ship requirement for membership on government
‘conjectural or hypothetical’ rather than ‘real and board even though they lacked standing to chal-
immediate.’ ” Post, at 2436 (dissenting opinion). lenge the requirement “as applied”). Likewise, in
But whether Hamacher “actually applied” for ad- Northeastern Fla. Chapter, Associated Gen. Con-
mission as a transfer student is not *261 determin- tractors of America v. Jacksonville, 508 U.S. 656,
ative of his ability to seek injunctive relief in this 113 S.Ct. 2297, 124 L.Ed.2d 586 (1993), we con-
case. If Hamacher had submitted a transfer applica- sidered whether an association challenging an or-
tion and been rejected, he would still need to allege dinance that gave preferential treatment to certain
an intent to apply again in order to seek prospective *262 minority-owned businesses in the award of
relief. If Justice STEVENS means that because city contracts needed to show that one of its mem-
Hamacher did not apply to transfer, he must never bers would have received a contract absent the or-
really have intended to do so, that conclusion dir- dinance in order to establish standing. In finding
ectly conflicts with the finding of fact entered by that no such showing was necessary, we explained
the District Court that Hamacher “intends to trans- that “[t]he ‘injury in fact’ in an equal protection
fer to the University of Michigan when defendants case of this variety is the denial of equal treatment
cease the use of race as an admissions preference.” resulting from the imposition of the barrier, not the
FN14
App. 67. ultimate inability to obtain the benefit .... And in
the context of a challenge to a set-aside program,
FN14. This finding is further corroborated the ‘injury in fact’ is the inability to compete on an
by Hamacher's request that the District equal footing in the bidding process, not the loss of
Court “[r]equir[e] the LSA College to offer contract.” Id., at 666, 113 S.Ct. 2297. We con-
[him] admission as a transfer student.” cluded that in the face of such a barrier, “[t]o estab-
App. 40. lish standing ..., a party challenging a set-aside pro-

123 S.Ct. 2411 Page 14
Weekly Fed. S 387
(Cite as: 539 U.S. 244, 123 S.Ct. 2411)
gram like Jacksonville's need only demonstrate that Class Actions: A Search for Consistency,
it is able and ready to bid on contracts and that a 22 U.C.D.L.Rev. 1239, 1240-1241 (1989);
discriminatory policy prevents it from doing so on General Telephone Co. of Southwest v.
an equal basis.” Ibid. Falcon, 457 U.S. 147, 149, 102 S.Ct. 2364,
72 L.Ed.2d 740 (1982)
[3] In bringing his equal protection challenge (Mexican-American plaintiff alleging that
against the University's use of race in undergradu- he was passed over for a promotion be-
ate admissions, Hamacher alleged that the Uni- cause of race was not an adequate repres-
versity had denied him the opportunity to compete entative to “maintain a class action on be-
for admission on an equal basis. When Hamacher half of Mexican-American applicants” who
applied to the University as a freshman applicant, were not hired by the same employer);
he was denied admission even though an underrep- Blum v. Yaretsky, 457 U.S. 991, 102 S.Ct.
resented minority applicant with his qualifications 2777, 73 L.Ed.2d 534 (1982) (class repres-
would have been admitted. See App. to Pet. for entatives who had been transferred to
Cert. 115a. After being denied admission, Hamach- lower levels of medical care lacked stand-
er demonstrated that he was “able and ready” to ap- ing to challenge transfers to higher levels
ply as a transfer student should the University cease of care).
to use race in undergraduate admissions. He there-
fore has standing to seek prospective relief with re- **2424 From the time petitioners filed their origin-
spect to the University's continued use of race in al complaint through their brief on the merits in this
undergraduate admissions. Court, they have consistently challenged the Uni-
versity's use of race in undergraduate admissions
[4] Justice STEVENS raises a second argument as and its asserted justification of promoting
to standing. He contends that the University's use of “diversity.” See, e.g., App. 38; Brief for Petitioners
race in undergraduate transfer admissions differs 13. Consistent with this challenge, petitioners re-
from its use of race in undergraduate freshman ad- quested injunctive relief prohibiting respondents
missions, and that therefore Hamacher lacks stand- “from continuing to discriminate on the basis of
ing to represent absent class members challenging race.” App. 40. They sought to certify a class con-
the latter. Post, at 2436 (dissenting opinion). *263 sisting of all individuals who were not members of
As an initial matter, there is a question whether the an underrepresented minority group who either had
relevance of this variation, if any, is a matter of applied for admission to the LSA and been rejected
Article III standing at all or whether it goes to the or who intended to apply for admission to the LSA,
propriety of class certification pursuant to Federal for all academic years from 1995 forward. Id., at
Rule of Civil Procedure 23(a). The parties have not 35-36. The District Court determined that the pro-
briefed the question of standing versus adequacy, posed class satisfied the requirements of the Feder-
however, and we need not resolve the question al Rules of Civil Procedure, including the require-
today: Regardless of whether the requirement is ments of numerosity, commonality, and typicality.
deemed one of adequacy or standing, it is clearly See Fed. Rule Civ. Proc. 23(a); App. 70. The court
FN15
satisfied in this case. further concluded that Hamacher was an adequate
representative*264 for the class in the pursuit of
FN15. Although we do not resolve here
compensatory and injunctive relief for purposes of
whether such an inquiry in this case is ap-
Rule 23(a)(4), see id., at 61-69, and found “the re-
propriately addressed under the rubric of
cord utterly devoid of the presence of ... antagon-
standing or adequacy, we note that there is
ism between the interests of ... Hamacher, and the
tension in our prior cases in this regard.
members of the class which [he] seek[s] to repres-
See, e.g., Burns, Standing and Mootness in

123 S.Ct. 2411 Page 15
Weekly Fed. S 387
(Cite as: 539 U.S. 244, 123 S.Ct. 2411)
ent,” id., at 61. Finally, the District Court con- on the grounds that the University's use of race in
cluded that petitioners' claim was appropriate for undergraduate transfer admissions involves a differ-
class treatment because the University's “ ‘practice ent set **2425 of concerns than does its use of race
of racial discrimination pervasively applied on a in freshman admissions. Respondents' failure to al-
classwide basis.’ ” Id., at 67. The court certified the lege any such difference is simply consistent with
class pursuant to Federal Rule of Civil Procedure the fact that no such difference exists. Each year the
23(b)(2), and designated Hamacher as the class rep- OUA produces a document entitled “COLLEGE OF
resentative. App. 70. LITERATURE, SCIENCE AND THE ARTS
GUIDELINES FOR ALL TERMS,” which sets
Justice STEVENS cites Blum v. Yaretsky, 457 U.S. forth guidelines for all individuals seeking admis-
991, 102 S.Ct. 2777, 73 L.Ed.2d 534 (1982), in ar- sion to the LSA, including freshman applicants,
guing that the District Court erred. Post, at 2437. In transfer applicants, international student applicants,
Blum, we considered a class-action suit brought by and the like. See, e.g., 2 App. in No. 01-1333 etc.
Medicaid beneficiaries. The named representatives (CA6), pp. 507-542. The guidelines used to evalu-
in Blum challenged decisions by the State's Medi- ate transfer applicants specifically cross-reference
caid Utilization Review Committee (URC) to trans- factors and qualifications considered in assessing
fer them to lower levels of care without, in their freshman applicants. In fact, the criteria used to de-
view, sufficient procedural safeguards. After a class termine whether a transfer applicant will contribute
was certified, the plaintiffs obtained an order ex- to the University's stated goal of diversity are
panding class certification to include challenges to identical to that used to evaluate freshman applic-
URC decisions to transfer patients to higher levels ants. For example, in 1997, when the class was cer-
of care as well. The defendants argued that the tified and the District Court found that Hamacher
named representatives could not represent absent had standing to represent the class, the transfer
class members challenging transfers to higher guidelines contained a separate section entitled
levels of care because they had not been threatened “CONTRIBUTION TO A DIVERSE STUDENT
with such transfers. We agreed. We noted that BODY.” 2 id., at 531. This section explained that
“[n]othing in the record ... suggests that any of the any transfer applicant who could “contribut[e] to a
individual respondents have been either transferred diverse student body ” should “generally be admit-
to more intensive care or threatened with such ted” even with substantially lower qualifications
transfers.” 457 U.S., at 1001, 102 S.Ct. 2777. And than those required of other transfer applicants.
we found that transfers to lower levels of care in- Ibid. (emphasis added). To determine whether a
volved a number of fundamentally different con- transfer applicant was capable of “contribut[ing] to
cerns than did transfers to higher ones. Id., at a diverse student body,” admissions counselors
1001-1002, 102 S.Ct. 2777 (noting, for example, were instructed to determine whether that transfer
that transfers to lower levels of care implicated be- applicant met the “criteria as defined in Section IV
neficiaries' property interests given the concomitant of the ‘U’ category of [the] SCUGA” factors used
decrease in Medicaid benefits, while transfers to to assess *266 freshman applicants. Ibid. Section
higher levels of care did not). IV of the “U” category, entitled “Contribution to a
Diverse Class,” explained that “[t]he University is
*265 In the present case, the University's use of
committed to a rich educational experience for its
race in undergraduate transfer admissions does not
students. A diverse, as opposed to a homogenous,
implicate a significantly different set of concerns
student population enhances the educational experi-
than does its use of race in undergraduate freshman
ence for all students. To insure a diverse class, sig-
admissions. Respondents challenged Hamacher's
nificant weight will be given in the admissions pro-
standing at the certification stage, but never did so
cess to indicators of students contribution to a di-

123 S.Ct. 2411 Page 16
Weekly Fed. S 387
(Cite as: 539 U.S. 244, 123 S.Ct. 2411)
verse class.” 1 id., at 432. These indicators, used in that we believe is not compelling, and if
evaluating freshman and transfer applicants alike, that is struck down as a rationale, then the
list being a member of an underrepresented minor- [result] would be [the] same with respect
ity group as establishing an applicant's contribution to the transfer policy as with respect to the
to diversity. See 3 id., at 1133-1134, 1153-1154. In- [freshman] admissions policy, Your Hon-
deed, the only difference between the University's or”).
use of race in considering freshman and transfer ap-
plicants is that all underrepresented minority fresh- **2426 *267 Particularly instructive here is our
man applicants receive 20 points and “virtually” all statement in General Telephone Co. of Southwest v.
who are minimally qualified are admitted, while Falcon, 457 U.S. 147, 102 S.Ct. 2364, 72 L.Ed.2d
“generally” all minimally qualified minority trans- 740 (1982), that “[i]f [defendant-employer] used a
fer applicants are admitted outright. While this dif- biased testing procedure to evaluate both applicants
ference might be relevant to a narrow tailoring ana- for employment and incumbent employees, a class
lysis, it clearly has no effect on petitioners' standing action on behalf of every applicant or employee
to challenge the University's use of race in under- who might have been prejudiced by the test clearly
graduate admissions and its assertion that diversity would satisfy the ... requirements of Rule 23(a).”
is a compelling state interest that justifies its con- Id., at 159, n. 15, 102 S.Ct. 2364 (emphasis added).
sideration of the race of its undergraduate applic- Here, the District Court found that the sole ra-
FN16 tionale the University had provided for any of its
ants.
race-based preferences in undergraduate admissions
FN16. Because the University's guidelines was the interest in “the educational benefits that
concededly use race in evaluating both result from having a diverse student body.” App. to
freshman and transfer applications, and be- Pet. for Cert. 8a. And petitioners argue that an in-
cause petitioners have challenged any use terest in “diversity” is not a compelling state in-
of race by the University in undergraduate terest that is ever capable of justifying the use of
admissions, the transfer admissions policy race in undergraduate admissions. See, e.g., Brief
is very much before this Court. Although for Petitioners 11-13. In sum, the same set of con-
petitioners did not raise a narrow tailoring cerns is implicated by the University's use of race
challenge to the transfer policy, as counsel in evaluating all undergraduate admissions applica-
FN17
for petitioners repeatedly explained, the tions under the guidelines. We therefore
transfer policy is before this Court in that agree with the District Court's *268 carefully con-
petitioners challenged any use of race by sidered decision to certify this class-action chal-
the University to promote diversity, in- lenge to the University's consideration of race in
cluding through the transfer policy. See Tr. undergraduate admissions. See App. 67 (“ ‘It is a
of Oral Arg. 4 (“[T]he [transfer] policy is singular policy ... applied on a classwide basis' ”);
essentially the same with respect to the cf. Coopers & Lybrand v. Livesay, 437 U.S. 463,
consideration of race”); id., at 5 (“The 469, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978) ( “[T]he
transfer policy considers race”); id., at 6 class determination generally involves considera-
(same); id., at 7 (“[T]he transfer policy and tions that are enmeshed in the factual and legal is-
the [freshman] admissions policy are fun- sues comprising the plaintiff's cause of action”
damentally the same in the respect that (internal quotation marks omitted)). Indeed, class-
they both consider race in the admissions action treatment was particularly important in this
process in a way that is discriminatory”); case because “the claims of the individual students
id., at 7-8 (“[T]he University considers run the risk of becoming moot” and the “[t]he class
race for a purpose to achieve a diversity action vehicle ... provides a mechanism for ensur-

123 S.Ct. 2411 Page 17
Weekly Fed. S 387
(Cite as: 539 U.S. 244, 123 S.Ct. 2411)
ing that a justiciable claim is before the Court.” ally, they contend that this Court has only sanc-
App. 69. Thus, we think it clear that Hamacher's tioned the use of racial classifications to remedy
personal stake, in view of both his past injury and identified discrimination, a justification on which
the potential injury he faced at the time of certifica- respondents have never relied. Brief for Petitioners
tion, demonstrates that he may maintain this class- 15-16. Petitioners further argue that “diversity as a
action challenge to the University's use of race in basis for employing racial preferences is simply too
undergraduate admissions. open-ended, ill-defined, and indefinite to constitute
a compelling interest capable of supporting nar-
FN17. Indeed, as the litigation history of rowly-tailored means.” Id., at 17-18, 40-41. But for
this case demonstrates, “the class-action the reasons set forth today in **2427Grutter v.
device save[d] the resources of both the Bollinger, ante, 539 U.S., at 327-333, 123 S.Ct.
courts and the parties by permitting an is- 2325, 2003 WL 21433492, the Court has rejected
sue potentially affecting every [class mem- these arguments of petitioners.
ber] to be litigated in an economical fash-
ion.” Califano v. Yamasaki, 442 U.S. 682, *269 Petitioners alternatively argue that even if the
701, 99 S.Ct. 2545, 61 L.Ed.2d 176 (1979). University's interest in diversity can constitute a
This case was therefore quite unlike Gen- compelling state interest, the District Court erro-
eral Telephone Co. of Southwest v. Falcon, neously concluded that the University's use of race
457 U.S. 147, 102 S.Ct. 2364, 72 L.Ed.2d in its current freshman admissions policy is nar-
740 (1982), in which we found that the rowly tailored to achieve such an interest. Petition-
named representative, who had been ers argue that the guidelines the University began
passed over for a promotion, was not an using in 1999 do not “remotely resemble the kind
adequate representative for absent class of consideration of race and ethnicity that Justice
members who were never hired in the first Powell endorsed in Bakke.” Brief for Petitioners 18.
instance. As we explained, the plaintiff's Respondents reply that the University's current ad-
“evidentiary approaches to the individual missions program is narrowly tailored and avoids
and class claims were entirely different. He the problems of the Medical School of the Uni-
attempted to sustain his individual claim versity of California at Davis program (U.C. Davis)
FN18
by proving intentional discrimination. He rejected by Justice Powell. They claim that
tried to prove the class claims through stat- their program “hews closely” to both the admis-
istical evidence of disparate impact.... It is sions program described by Justice Powell as well
clear that the maintenance of respondent's as the Harvard College admissions program that he
action as a class action did not advance endorsed. Brief for Respondent Bollinger et al 32.
‘the efficiency and economy of litigation Specifically, respondents contend that the LSA's
which is a principal purpose of the proced- policy provides the individualized consideration
ure.’ ” Id., at 159, 102 S.Ct. 2364 (quoting that “Justice Powell considered a hallmark of a con-
American Pipe & Constr. Co. v. Utah, 414 stitutionally appropriate admissions program.” Id.,
U.S. 538, 553, 94 S.Ct. 756, 38 L.Ed.2d at 35. For the reasons set out below, we do not
713 (1974)). agree.
FN18. U.C. Davis set aside 16 of the 100

B seats available in its first year medical
school program for “economically and/or
[5] Petitioners argue, first and foremost, that the
educationally disadvantaged” applicants
University's use of race in undergraduate admis-
who were also members of designated
sions violates the Fourteenth Amendment. Specific-

123 S.Ct. 2411 Page 18
Weekly Fed. S 387
(Cite as: 539 U.S. 244, 123 S.Ct. 2411)
“minority groups” as defined by the uni- use of race in its current admissions program em-
versity. “To the extent that there existed a ploys “narrowly tailored measures that further com-
pool of at least minimally qualified minor- pelling governmental interests.” Id., at 227, 115
ity applicants to fill the 16 special admis- S.Ct. 2097. Because “[r]acial classifications are
sions seats, white applicants could compete simply too pernicious to permit any but the most
only for 84 seats in the entering class, exact connection between justification and classi-
rather than the 100 open to minority ap- fication,” Fullilove v. Klutznick, 448 U.S. 448, 537,
plicants.” Regents of Univ. of Cal. v. 100 S.Ct. 2758, 65 L.Ed.2d 902 (1980) (STEVENS,
Bakke, 438 U.S. 265, 274, 289, 98 S.Ct. J., dissenting), our review of whether such require-
2733, 57 L.Ed.2d 750 (1978) (principal ments have been met must entail “ ‘a most search-
opinion). Justice Powell found that the pro- ing examination.’ ” Adarand, supra, at 223, 115
gram employed an impermissible two- S.Ct. 2097 (quoting Wygant v. Jackson Bd. of Ed.,
track system that “disregard [ed] ... indi- 476 U.S. 267, 273, 106 S.Ct. 1842, 90 L.Ed.2d 260
vidual rights as guaranteed by the Four- (1986) (plurality opinion of Powell, J.)). We find
teenth Amendment.” Id., at 320, 98 S.Ct. that the University's policy, which automatically
2733. He reached this conclusion even distributes 20 points, or one-fifth of the points
though the university argued that “the re- needed to guarantee admission, to every single
servation of a specified number of seats in “underrepresented minority” applicant solely be-
each class for individuals from the pre- cause of race, is not narrowly tailored to achieve
ferred ethnic groups” was “the only effect- the interest in educational diversity**2428 that re-
ive means of serving the interest of di- spondents claim justifies their program.
versity.” Id., at 315, 98 S.Ct. 2733. Justice
Powell concluded that such arguments mis- In Bakke, Justice Powell reiterated that
understood the very nature of the diversity “[p]referring members of any one group for no
he found to be compelling. See ibid. reason other than race or ethnic origin is discrimin-
ation for its own sake.” 438 U.S., at 307, 98 S.Ct.
[6] *270 It is by now well established that “all ra- 2733. He then explained, however, that in his view
cial classifications reviewable under the Equal Pro- it would be permissible for a university to employ
tection Clause must be strictly scrutinized.” an admissions program in which “race or ethnic
Adarand Constructors, Inc. v. Peña, 515 U.S. 200, background may be *271 deemed a ‘plus' in a par-
224, 115 S.Ct. 2097, 132 L.Ed.2d 158 (1995). This ticular applicant's file.” Id., at 317, 98 S.Ct. 2733.
“ ‘standard of review ... is not dependent on the He explained that such a program might allow for
race of those burdened or benefited by a particular “[t]he file of a particular black applicant [to] be ex-
classification.’ ” Ibid. (quoting Richmond v. J.A. amined for his potential contribution to diversity
Croson Co., 488 U.S. 469, 494, 109 S.Ct. 706, 102 without the factor of race being decisive when com-
L.Ed.2d 854 (1989) (plurality opinion)). Thus, “any pared, for example, with that of an applicant identi-
person, of whatever race, has the right to demand fied as an Italian-American if the latter is thought to
that any governmental actor subject to the Constitu- exhibit qualities more likely to promote beneficial
tion justify any racial classification subjecting that educational pluralism.” Ibid. Such a system, in
person to unequal treatment under the strictest of Justice Powell's view, would be “flexible enough to
judicial scrutiny.” Adarand, 515 U.S., at 224, 115 consider all pertinent elements of diversity in light
S.Ct. 2097. of the particular qualifications of each applicant.”
Ibid.
[7] To withstand our strict scrutiny analysis, re-
spondents must demonstrate that the University's Justice Powell's opinion in Bakke emphasized the

123 S.Ct. 2411 Page 19
Weekly Fed. S 387
(Cite as: 539 U.S. 244, 123 S.Ct. 2411)
importance of considering each particular applicant unsupported speculation about the self-
as an individual, assessing all of the qualities that selection of minorities in the applicant
individual possesses, and in turn, evaluating that in- pool. See post, at 2441-2442 (dissenting
dividual's ability to contribute to the unique setting opinion).
of higher education. The admissions program
Justice Powell described, however, did not contem- Also instructive in our consideration of the LSA's
plate that any single characteristic automatically en- system is the example provided in the description
sured a specific and identifiable contribution to a of the Harvard College Admissions Program, which
university's diversity. See id., at 315, 98 S.Ct. 2733. Justice Powell both discussed in, and attached to,
See also Metro Broadcasting, Inc. v. FCC, 497 U.S. his opinion in Bakke. The example was included to
547, 618, 110 S.Ct. 2997, 111 L.Ed.2d 445 (1990) “illustrate the kind of significance attached to race”
(O'CONNOR, J., dissenting) (concluding that the under the Harvard College program. Id., at 324, 98
Federal Communications Commission's policy, S.Ct. 2733. It provided as follows:
which “embodie[d] the related notions ... that a par-
“The Admissions Committee, with only a few
ticular applicant, by virtue of race or ethnicity
places left to fill, might find itself forced to
alone, is more valued than other applicants because
choose between A, the child of a successful black
[the applicant is] ‘likely to provide [a] distinct per-
physician in an academic community with prom-
spective,’ ” “impermissibly value[d] individuals”
ise of superior academic performance, and B, a
based on a presumption that “persons think in a
black who grew up in an inner-city ghetto of
manner associated with their race”). Instead, under
semi-literate parents whose academic**2429
the approach Justice Powell described, each charac-
achievement was lower but who had demon-
teristic of a particular applicant was to be con-
strated energy and leadership as well as an appar-
sidered in assessing the applicant's entire applica-
ently abiding interest in black power. If a good
tion.
number of black students much like A but few
The current LSA policy does not provide such indi- like B had already been admitted, the Committee
vidualized consideration. The LSA's policy auto- might prefer B; and vice versa. If C, a white stu-
matically distributes 20 points to every single ap- dent with extraordinary artistic talent, were also
plicant from an “underrepresented minority” group, seeking one of the remaining places, his unique
as defined by the University. The only considera- quality might give him an edge over both A and
tion that accompanies this distribution of *272 B. Thus, the critical criteria are often individual
points is a factual review of an application to de- qualities or experience not dependent*273 upon
termine whether an individual is a member of one race but sometimes associated with it. ” Ibid.
of these minority groups. Moreover, unlike Justice (emphasis added).
Powell's example, where the race of a “particular
This example further demonstrates the problematic
black applicant” could be considered without being
nature of the LSA's admissions system. Even if stu-
decisive, see Bakke, 438 U.S., at 317, 98 S.Ct.
dent C's “extraordinary artistic talent” rivaled that
2733, the LSA's automatic distribution of 20 points
of Monet or Picasso, the applicant would receive, at
has the effect of making “the factor of race ... decis-
most, five points under the LSA's system. See App.
ive” for virtually every minimally qualified under-
FN19 234-235. At the same time, every single underrep-
represented minority applicant. Ibid.
resented minority applicant, including students A
FN19. Justice SOUTER recognizes that the and B, would automatically receive 20 points for
LSA's use of race is decisive in practice, submitting an application. Clearly, the LSA's sys-
but he attempts to avoid that fact through tem does not offer applicants the individualized se-
lection process described in Harvard's example. In-

123 S.Ct. 2411 Page 20
Weekly Fed. S 387
(Cite as: 539 U.S. 244, 123 S.Ct. 2411)
stead of considering how the differing backgrounds, points. But the fact that the “review committee can
experiences, and characteristics of students A, B, look at the applications individually and ignore the
and C might benefit the University, admissions points,” once an application is flagged, Tr. of Oral
counselors reviewing LSA applications would Arg. 42, is of little comfort under our strict scrutiny
simply award both A and B 20 points because their analysis. The record does not reveal precisely how
applications indicate that they are African-Amer- many applications are flagged for this individual-
ican, and student C would receive up to 5 points for ized consideration, but it is undisputed that such
FN20
his “extraordinary talent.” consideration is the exception and not the rule in
the operation of the LSA's admissions program. See
FN20. Justice SOUTER is therefore wrong App. to Pet. for Cert. 117a (“The ARC reviews only
when he contends that “applicants to the a portion of all of the applications. The bulk of ad-
undergraduate college are [not] denied in- missions decisions are executed based on selection
dividualized consideration.” Post, at 2441. FN21
index score parameters set by the EWG”).
As Justice O'CONNOR explains in her **2430 Additionally, this individualized review is
concurrence, the LSA's program “ensures only provided after admissions counselors automat-
that the diversity contributions of applic- ically distribute the University's version of a “plus”
ants cannot be individually assessed.” that makes race a decisive factor for virtually every
Post, at 2432. minimally qualified underrepresented minority ap-
plicant.
Respondents emphasize the fact that the LSA has
created the possibility of an applicant's file being FN21. Justice SOUTER is mistaken in his
flagged for individualized consideration by the assertion that the Court “take[s] it upon it-
ARC. We think that the flagging program only em- self to apply a newly-formulated legal
phasizes the flaws of the University's system as a standard to an undeveloped record.” Post,
whole when compared to that described by Justice at 2442, n. 3. He ignores the fact that re-
Powell. Again, students A, B, and C illustrate the spondents have told us all that is necessary
point. First, student A would never be flagged. This to decide this case. As explained above, re-
is because, as the University has conceded, the ef- spondents concede that only a portion of
fect of automatically awarding 20 points is that vir- the applications are reviewed by the ARC
tually every qualified underrepresented minority and that the “bulk of admissions decisions”
applicant is admitted. Student A, an applicant “with are based on the point system. It should be
promise of superior academic performance,” would readily apparent that the availability of this
certainly fit this description. Thus, the result of the review, which comes after the automatic
automatic distribution of 20 points is that the Uni- distribution of points, is far more limited
versity*274 would never consider student A's indi- than the individualized review given to the
vidual background, experiences, and characteristics “large middle group of applicants” dis-
to assess his individual “potential contribution to cussed by Justice Powell and described by
diversity,” Bakke, supra, at 317, 98 S.Ct. 2733. In- the Harvard plan in Bakke. 438 U.S., at
stead, every applicant like student A would simply 316, 98 S.Ct. 2733 (internal quotation
be admitted. marks omitted).
It is possible that students B and C would be *275 Respondents contend that “[t]he volume of
flagged and considered as individuals. This as- applications and the presentation of applicant in-
sumes that student B was not already admitted be- formation make it impractical for [LSA] to use the
cause of the automatic 20-point distribution, and ... admissions system” upheld by the Court today in
that student C could muster at least 70 additional

123 S.Ct. 2411 Page 21
Weekly Fed. S 387
(Cite as: 539 U.S. 244, 123 S.Ct. 2411)
Grutter. Brief for Respondent Bollinger et al. 6, n. ons. First, they suggest that universities-to
8. But the fact that the implementation of a program whose academic judgment we are told in
capable of providing individualized consideration Grutter v. Bollinger, ante, 539 U.S., at
might present administrative challenges does not 328, 123 S.Ct. 2325, 2003 WL 21433492,
render constitutional an otherwise problematic sys- we should defer-will pursue their affirmat-
tem. See J.A. Croson Co., 488 U.S., at 508, 109 ive-action programs whether or not they
S.Ct. 706 (citing Frontiero v. Richardson, 411 U.S. violate the United States Constitution.
677, 690, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973) Second, they recommend that these viola-
(plurality opinion of Brennan, J.) (rejecting “ tions should be dealt with, not by requiring
‘administrative convenience’ ” as a determinant of the universities to obey the Constitution,
constitutionality in the face of a suspect classifica- but by changing the Constitution so that it
tion)). Nothing in Justice Powell's opinion in Bakke conforms to the conduct of the universities.
signaled that a university may employ whatever
means it desires to achieve the stated goal of di- FN23. We have explained that discrimina-
versity without regard to the limits imposed by our tion that violates the Equal Protection
strict scrutiny analysis. Clause of the Fourteenth Amendment com-
mitted by an institution that accepts federal
[8][9][10][11] We conclude, therefore, that because funds also constitutes a violation of Title
the University's use of race in its current freshman VI. See Alexander v. Sandoval, 532 U.S.
admissions policy is not narrowly tailored to 275, 281, 121 S.Ct. 1511, 149 L.Ed.2d 517
achieve respondents' asserted compelling interest in (2001); United States v. Fordice, 505 U.S.
diversity, the admissions policy violates the Equal 717, 732, n. 7, 112 S.Ct. 2727, 120
Protection Clause of the Fourteenth Amendment. L.Ed.2d 575 (1992); Alexander v. Choate,
FN22
We further find that the admissions policy 469 U.S. 287, 293, 105 S.Ct. 712, 83
also violates Title VI and *276 42 U.S.C. § 1981. L.Ed.2d 661 (1985). Likewise, with re-
FN23
Accordingly, we reverse**2431 that portion spect to § 1981, we have explained that the
of the District Court's decision granting respondents provision was “meant, by its broad terms,
summary judgment with respect to liability and re- to proscribe discrimination in the making
mand the case for proceedings consistent with this or enforcement of contracts against, or in
opinion. favor of, any race.” McDonald v. Santa Fe
Trail Transp. Co., 427 U.S. 273, 295-296,
FN22. Justice GINSBURG in her dissent 96 S.Ct. 2574, 49 L.Ed.2d 493 (1976). Fur-
observes that “[o]ne can reasonably anti- thermore, we have explained that a con-
cipate ... that colleges and universities will tract for educational services is a
seek to maintain their minority enrollment “contract” for purposes of § 1981. See
... whether or not they can do so in full Runyon v. McCrary, 427 U.S. 160, 172, 96
candor through adoption of affirmative ac- S.Ct. 2586, 49 L.Ed.2d 415 (1976). Fi-
tion plans of the kind here at issue.” Post, nally, purposeful discrimination that viol-
at 2446. She goes on to say that “[i]f hon- ates the Equal Protection Clause of the
esty is the best policy, surely Michigan's Fourteenth Amendment will also violate §
accurately described, fully disclosed Col- 1981. See General Building Contractors
lege affirmative action program is prefer- Assn., Inc. v. Pennsylvania, 458 U.S. 375,
able to achieving similar numbers through 389-390, 102 S.Ct. 3141, 73 L.Ed.2d 835
winks, nods, and disguises.” Ibid. These (1982).
observations are remarkable for two reas-

123 S.Ct. 2411 Page 22
Weekly Fed. S 387
(Cite as: 539 U.S. 244, 123 S.Ct. 2411)
It is so ordered. versity instituted in 1999 and continues to use today

FN*
Justice O'CONNOR, concurring. passed constitutional muster. See 122 F.Supp.2d
811, 827 (E.D.Mich.2000). In their proposed sum-
FN* Justice BREYER joins this opinion, mary of undisputed facts, the parties jointly stipu-
except for the last sentence. lated to the admission policy's mechanics. App. to
Pet. for Cert. 116a-118a. When the University re-
I ceives an application for admission to its incoming
class, an admissions counselor turns to a Selection
Unlike the law school admissions policy the Court Index Worksheet to calculate the applicant's selec-
upholds today in Grutter v. Bollinger, ante, 539 tion index score out of 150 maximum possible
U.S. 306, 123 S.Ct. 2325, 2003 WL 21433492, the points-a procedure the University began using in
procedures employed by the University of 1998. App. 256. Applicants with a score of over
Michigan's (University) Office of Undergraduate 100 are automatically admitted; applicants with
Admissions do not provide for a meaningful indi- scores of 95 to 99 are categorized as “admit or post-
vidualized review of applicants. Cf. Regents of pone”; applicants with 90-94 points are postponed
Univ. of Cal. v. Bakke, 438 U.S. 265, 98 S.Ct. 2733, or admitted; applicants with 75-89 points are
57 L.Ed.2d 750 (1978) (principal opinion of Pow- delayed or postponed; and applicants with 74 points
ell, J.). The law school considers the various di- or fewer are delayed or rejected. The Office of Un-
versity qualifications of each applicant, including dergraduate Admissions extends offers of admis-
race, on a case-by-case basis. See Grutter v. sion on a rolling basis and acts upon the applica-
Bollinger, ante, 539 U.S., at 337-339, 123 S.Ct. tions it has received through periodic “[m]ass
2325, 2003 WL 21433492. By contrast, the Office [a]ction [s].” Ibid.
of Undergraduate Admissions relies on the selec-
tion index to assign every underrepresented minor- In calculating an applicant's selection index score,
ity applicant the same, automatic 20-point bonus counselors assign numerical values to a broad range
without consideration of the particular background, of academic factors, as well as to other variables
experiences, or *277 qualities of each individual the University considers important to assembling a
applicant. Cf. ante, at 2428, 2429. And this mech- diverse student body, including race. Up to 110
anized selection index score, by and large, automat- points can be assigned for academic performance,
ically determines the admissions decision for each *278 and up to 40 points can be assigned for the
applicant. The selection index thus precludes ad- other, nonacademic factors. Michigan residents, for
missions counselors from conducting the type of in- example, receive 10 points, and children of alumni
dividualized consideration the Court's opinion in receive 4. Counselors may assign an outstanding
Grutter, ante, 539 U.S., at 334, 123 S.Ct. 2325, essay up to 3 points and may award up to 5 points
2003 WL 21433492, requires: consideration of each for an applicant's personal achievement, leadership,
applicant's individualized qualifications, including or public service. Most importantly for this case, an
the contribution each individual's race or ethnic applicant automatically receives a 20 point bonus if
identity will make to the diversity of the student he or she possesses any one of the following
body, taking into account diversity within and “miscellaneous” factors: membership**2432 in an
among all racial and ethnic groups. Cf. ante, at underrepresented minority group; attendance at a
2428-2429 (citing Bakke, supra, at 324, 98 S.Ct. predominantly minority or disadvantaged high
2733). school; or recruitment for athletics.
On cross-motions for summary judgment, the Dis- In 1999, the University added another layer of re-
trict Court held that the admissions policy the Uni- view to its admissions process. After an admissions

123 S.Ct. 2411 Page 23
Weekly Fed. S 387
(Cite as: 539 U.S. 244, 123 S.Ct. 2411)
counselor has tabulated an applicant's selection in- ally assigned to an underrepresented minority
dex score, he or she may “flag” an application for solely based on the fact of his or her race. Of
further consideration by an Admissions Review course, as Justice Powell made clear in Bakke, a
Committee, which is composed of members of the university need not “necessarily accor[d]” all di-
Office of Undergraduate Admissions and the Office versity factors “the same weight,” 438 U.S., at 317,
of the Provost. App. to Pet. for Cert. 117a. The re- 98 S.Ct. 2733, and the “weight attributed to a par-
view committee meets periodically to discuss the ticular quality may vary from year to year depend-
files of “flagged” applicants not already admitted ing upon the ‘mix’ both of the student body and the
based on the selection index parameters. App. 275. applicants for the incoming class,” id., at 317-318,
After discussing each flagged application, the com- 98 S.Ct. 2733. But the selection index, by setting
mittee decides whether to admit, defer, or deny the up automatic, predetermined point allocations for
applicant. Ibid. the soft variables, ensures that the diversity contri-
butions of applicants cannot be individually as-
Counselors may flag an applicant for review by the sessed. This policy stands in sharp contrast to the
committee if he or she is academically prepared, law school's admissions plan, which enables admis-
has a selection index score of at least 75 (for non- sions officers to make nuanced judgments with re-
Michigan residents) or 80 (for Michigan residents), spect to the contributions each applicant is likely to
and possesses one of several qualities valued by the make to the diversity of the incoming class. See
University. These qualities include “high class Grutter v. Bollinger, ante, 539 U.S., at 337, 123
rank, unique life experiences, challenges, circum- S.Ct. 2325, 2003 WL 21433492 (“[T]he Law
stances, interests or talents, socioeconomic disad- School's race-conscious admissions program ad-
vantage, and under-represented race, ethnicity, or equately ensures that all factors that may contribute
geography.” App. to Pet. for Cert. 117a. Counselors to student body diversity are meaningfully con-
also have the discretion to flag an application if, sidered alongside race in admissions decisions”).
notwithstanding a high selection index score,
something in the applicant's file suggests that the The only potential source of individualized consid-
applicant may not be suitable for admission. App. eration appears to be the Admissions Review Com-
274. Finally, in “rare circumstances,” an admissions mittee. The evidence in the record, however, re-
counselor *279 may flag an applicant with a selec- veals very little about how *280 the review com-
tion index score below the designated levels if the mittee actually functions. And what evidence there
counselor has reason to believe from reading the is indicates that the committee is a kind of after-
entire file that the score does not reflect the applic- thought, rather than an integral component of a sys-
ant's true promise. Ibid. tem of individualized review. As the Court points
out, it is undisputed that the “ ‘[committee] reviews
only a portion of all of the applications. **2433
II
The bulk of admissions decisions are executed
Although the Office of Undergraduate Admissions based on selection index score parameters set by
does assign 20 points to some “soft” variables other the [Enrollment Working Group].’ ” Ante, at 2429
than race, the points available for other diversity (quoting App. to Pet. for Cert. 117a). Review by the
contributions, such as leadership and service, per- committee thus represents a necessarily limited ex-
sonal achievement, and geographic diversity, are ception to the Office of Undergraduate Admissions'
capped at much lower levels. Even the most out- general reliance on the selection index. Indeed, the
standing national high school leader could never re- record does not reveal how many applications ad-
ceive more than five points for his or her accom- missions counselors send to the review committee
plishments-a mere quarter of the points automatic- each year, and the University has not pointed to

123 S.Ct. 2411 Page 24
Weekly Fed. S 387
(Cite as: 539 U.S. 244, 123 S.Ct. 2411)
evidence demonstrating that a meaningful percent- within its definition of underrepresented minorities,
age of applicants receives this level of discretionary Grutter, ante, 539 U.S., at 336, 123 S.Ct. 2325,
review. In addition, eligibility for consideration by 2003 WL 21433492 (opinion of the Court); ante,
the committee is itself based on automatic cutoff 539 U.S., at 374, 123 S.Ct. 2325 (THOMAS, J.,
levels determined with reference to selection index concurring in part and dissenting in part), because it
scores. And there is no evidence of how the de- awards all underrepresented minorities the same ra-
cisions are actually made-what type of individual- cial preference. The LSA policy falls, however, be-
ized consideration is or is not used. Given these cir- cause it does not sufficiently allow for the consider-
cumstances, the addition of the Admissions Review ation of nonracial distinctions among underrepres-
Committee to the admissions process cannot offset ented minority applicants. Under today's decisions,
the apparent absence of individualized considera- a university may not racially discriminate between
tion from the Office of Undergraduate Admissions' the groups constituting the critical mass. See ante,
general practices. 539 U.S., at 374-375, 123 S.Ct. 2325; Grutter, ante,
539 U.S., at 329-330, 123 S.Ct. 2325, 2003 WL
For these reasons, the record before us does not 21433492 (opinion of the Court) (stating that such
support the conclusion that the University's admis- “racial balancing ... is patently unconstitutional”).
sions program for its College of Literature, Science, An admissions policy, however, must allow for
and the Arts-to the extent that it considers race- consideration of these nonracial distinctions among
provides the necessary individualized considera- applicants on both sides of the single permitted ra-
tion. The University, of course, remains free to cial classification. See ante, at 2428-2429 (opinion
modify its system so that it does so. Cf. Grutter v. of the Court); ante, at 2431 (O'CONNOR, J., con-
Bollinger, ante, 539 U.S. 306, 123 S.Ct. 2325, 2003 curring).
WL 21433492. But the current system, as I under- Justice BREYER, concurring in the judgment.
stand it, is a nonindividualized, mechanical one. As I concur in the judgment of the Court though I do
a result, I join the Court's opinion reversing the de- not join its opinion. I join Justice O'CONNOR'S
cision of the District Court. opinion except insofar as it joins that of the Court. I
*281 Justice THOMAS, concurring. join Part I of Justice GINSBURG'S dissenting opin-
I join the Court's opinion because I believe it cor- ion, but I do not dissent from the *282 Court's re-
rectly applies our precedents, including today's de- versal of the District Court's **2434 decision. I
cision in Grutter v. Bollinger, ante, 539 U.S. 306, agree with Justice GINSBURG that, in implement-
123 S.Ct. 2325, 2003 WL 21433492. For similar ing the Constitution's equality instruction, govern-
reasons to those given in my separate opinion in ment decisionmakers may properly distinguish
that case, see ante, 539 U.S., at 349, 123 S.Ct. between policies of inclusion and exclusion, post,
2325, 2003 WL 21433492 (opinion concurring in at 2444, for the former are more likely to prove
part and dissenting in part), however, I would hold consistent with the basic constitutional obligation
that a State's use of racial discrimination in higher that the law respect each individual equally, see
education admissions is categorically prohibited by U.S. Const., Amdt. 14.
the Equal Protection Clause.
Justice STEVENS, with whom Justice SOUTER
I make only one further observation. The Uni- joins, dissenting.
versity of Michigan's College of Literature, Sci- Petitioners seek forward-looking relief enjoining
ence, and the Arts (LSA) admissions policy that the the University of Michigan from continuing to use
Court today invalidates does not suffer from the ad- its current race-conscious freshman admissions
ditional constitutional defect of allowing racial policy. Yet unlike the plaintiff in Grutter v.
“discriminat[ion] among [the] groups” included Bollinger, ante, 539 U.S. 306, 123 S.Ct. 2325, 2003

123 S.Ct. 2411 Page 25
Weekly Fed. S 387
(Cite as: 539 U.S. 244, 123 S.Ct. 2411)
FN1
WL 21433492, the petitioners in this case had have Hamacher represent a class pursuant to Feder-
FN2
already enrolled at other schools before they filed al Rule of Civil Procedure 23(b)(2). See App.
their class-action complaint in this case. Neither pe- 71, n. 3. In response, Michigan contended that
titioner was in the process of reapplying to “Hamacher lacks standing to represent a class seek-
Michigan through the freshman admissions process ing declaratory and injunctive relief.” Id., at 63.
at the time this suit was filed, and neither has done Michigan submitted that Hamacher suffered “ ‘no
so since. There is a total absence of evidence that threat of imminent future injury’ ” given that he
either petitioner would receive any benefit from the had already enrolled at another undergraduate insti-
FN3
prospective relief sought by their lawyer. While tution. Id., at 64. The District Court rejected
some unidentified members of the class may very Michigan's contention, concluding that Hamacher
well have standing to seek prospective relief, it is had standing to seek injunctive relief because the
clear that neither petitioner does. Our precedents complaint alleged that he intended to apply to
therefore require dismissal of the action. Michigan as a transfer student. See id., at 67 (“To
the extent that plaintiff Hamacher reapplies to the
FN1. In challenging the use of race in ad- University of Michigan, he will again face the same
missions at Michigan's law school, Barbara ‘harm’ in that race will continue to be a factor in
Grutter alleged in her complaint that she admissions”). **2435 The District Court, accord-
“has not attended any other law school” ingly, certified Hamacher as the sole class repres-
and that she “still desires to attend the Law entative and limited the claims of the class to in-
School and become a lawyer.” App. in No. junctive and declaratory relief. See id., at 70-71.
02-241, p. 30.
FN2. Petitioners did not seek to have Gratz
represent the class pursuant to Federal
I
Rule of Civil Procedure 23(b)(2). See App.
Petitioner Jennifer Gratz applied in 1994 for admis- 71, n. 3.
sion to the University of Michigan's (University)
FN3. In arguing that Hamacher lacked
College of Literature, Science, and the Arts (LSA)
standing, Michigan also asserted that
as an undergraduate for the 1995-1996 freshman
Hamacher “would need to achieve a 3.0
class. After the University delayed action on her
grade point average to attempt to transfer
application and then placed her name on an exten-
to the University of Michigan.” Id., at 64,
ded waiting list, Gratz decided to attend the Uni-
n. 2. The District Court rejected this argu-
versity of Michigan at Dearborn instead; she gradu-
ment, concluding that “Hamacher's present
ated in 1999. *283 Petitioner Patrick Hamacher ap-
grades are not a factor to be considered at
plied for admission to LSA as an undergraduate for
this time.” Id., at 67.
the 1997-1998 freshman class. After the University
postponed decision on his application and then In subsequent proceedings, the District Court held
placed his name on an extended waiting list, he at- that the 1995-1998 admissions system, which was
tended Michigan State University, graduating in in effect when both petitioners' applications were
2001. In the complaint that petitioners filed on Oc- denied, was unlawful but *284 that Michigan's new
tober 14, 1997, Hamacher alleged that “[h]e intends 1999-2000 admissions system was lawful. When
to apply to transfer [to the University of Michigan] petitioners sought certiorari from this Court,
if the discriminatory admissions system described Michigan did not cross-petition for review of the
herein is eliminated.” App. 34. District Court's judgment concerning the admis-
sions policies that Michigan had in place when
At the class certification stage, petitioners sought to
Gratz and Hamacher applied for admission in 1994

123 S.Ct. 2411 Page 26
Weekly Fed. S 387
(Cite as: 539 U.S. 244, 123 S.Ct. 2411)
and 1996 respectively. See Brief for Respondent seek forward-looking relief is that when
Bollinger et al. 5, n. 7. Accordingly, we have before this suit was filed, neither faced a “ ‘real
us only that portion of the District Court's judgment and immediate threat’ ” of future injury
that upheld Michigan's new freshman admissions under Michigan's freshman admissions
policy. policy given that they had both already en-
rolled at other institutions. Adarand Con-
structors, Inc. v. Peña, 515 U.S. 200,
II
210-211, 115 S.Ct. 2097, 132 L.Ed.2d 158
Both Hamacher and Gratz, of course, have standing (1995) (quoting Los Angeles v. Lyons, 461
to seek damages as compensation for the alleged U.S. 95, 105, 103 S.Ct. 1660, 75 L.Ed.2d
wrongful denial of their respective applications un- 675 (1983)). Their decision to obtain a col-
der Michigan's old freshman admissions system. lege education elsewhere distinguishes this
However, like the plaintiff in Los Angeles v. Lyons, case from Allan Bakke's single-minded
461 U.S. 95, 103 S.Ct. 1660, 75 L.Ed.2d 675 pursuit of a medical education from the
(1983), who had standing to recover damages University of California at Davis. See Re-
caused by “chokeholds” administered by the police gents of Univ. of Cal. v. Bakke, 438 U.S.
in the past but had no standing to seek injunctive 265, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978)
relief preventing future chokeholds, petitioners' ; cf. DeFunis v. Odegaard, 416 U.S. 312,
past injuries do not give them standing to obtain in- 94 S.Ct. 1704, 40 L.Ed.2d 164 (1974) (per
junctive relief to protect third parties from similar curiam).
harms. See id., at 102, 103 S.Ct. 1660 (“ ‘[P]ast ex-
*285 Even though there is not a scintilla of evid-
posure to illegal conduct does not in itself show a
ence that the freshman admissions program now be-
present case or controversy regarding injunctive re-
ing administered by respondents will ever have any
lief ... if unaccompanied by any continuing, present
impact on either Hamacher or Gratz, petitioners
adverse effects' ” (quoting O'Shea v. Littleton, 414
nonetheless argue that Hamacher has a personal
U.S. 488, 495-496, 94 S.Ct. 669, 38 L.Ed.2d 674
stake in this suit because at the time the complaint
(1974))). To seek forward-looking, injunctive re-
was filed, Hamacher intended to apply to transfer to
lief, petitioners must show that they face an immin-
Michigan once certain admission policy changes
ent threat of future injury. See Adarand Construct- FN5
occurred. See App. 34; see also Tr. of Oral
ors, Inc. v. Peña, 515 U.S. 200, 210-211, 115 S.Ct.
**2436 Arg. 4-5. Petitioners' attempt to base Hama-
2097, 132 L.Ed.2d 158 (1995). This they cannot do
cher's standing in this suit on a hypothetical transfer
given that when this suit was filed, neither faced an
application fails for several reasons. First, there is
impending threat of future injury based on
FN4 no evidence that Hamacher ever actually applied
Michigan's new freshman admissions policy.
for admission as a transfer student at Michigan. His
FN4. In responding to questions about pe- claim of future injury is at best “conjectural or hy-
titioners' standing at oral argument, peti- pothetical” rather than “real and immediate.”
tioners' counsel alluded to the fact that O'Shea v. Littleton, 414 U.S., at 494, 94 S.Ct. 669
Michigan might continually change the de- *286 internal quotation marks omitted); see also
tails of its admissions policy. See Tr. of Lujan v. Defenders of Wildlife, 504 U.S. 555, 560,
Oral Arg. 9. The change in Michigan's 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992).
freshman admissions policy, however, is
FN5. Hamacher clearly can no longer
not the reason why petitioners cannot es-
claim an intent to transfer into Michigan's
tablish standing to seek prospective relief.
undergraduate program given that he
Rather, the reason they lack standing to

123 S.Ct. 2411 Page 27
Weekly Fed. S 387
(Cite as: 539 U.S. 244, 123 S.Ct. 2411)
graduated from college in 2001. However, selection index scores of minority applicants. See
this fact alone is not necessarily fatal to the ante, at 2428. In contrast, Michigan does not use
instant class action because we have recog- points in its transfer policy; some applicants, in-
nized that, if a named class representative cluding minority and socioeconomically disadvant-
has standing at the time a suit is initiated, aged applicants, “will generally be admitted” if
class actions may proceed in some in- they possess certain qualifications, including a 2.5
stances following mootness of the named undergraduate grade point average (GPA), sopho-
class representative's claim. See, e.g., more standing, and a 3.0 high school GPA. 10 Re-
Sosna v. Iowa, 419 U.S. 393, 402, 95 S.Ct. cord 16 (Exh. C). Because of these differences,
553, 42 L.Ed.2d 532 (1975) (holding that Hamacher cannot base his right to complain about
the requisite Article III “case or contro- the freshman admissions policy on his hypothetical
versy” may exist “between a named de- injury under a wholly separate transfer policy. For
fendant and a member of the class repres- “[i]f the right to complain of one administrative de-
ented by the named plaintiff, even though ficiency automatically conferred the right to com-
the claim of the named plaintiff has be- plain of all administrative deficiencies, any citizen
come moot”); Franks v. Bowman Transp. aggrieved in one respect could bring the whole
Co., 424 U.S. 747, 96 S.Ct. 1251, 47 structure of state administration before the courts
L.Ed.2d 444 (1976). The problem in this for review.” *287Lewis v. Casey, 518 U.S. 343,
case is that neither Gratz nor Hamacher 358-359, n. 6, 116 S.Ct. 2174, 135 L.Ed.2d 606
had standing to assert a forward-looking, (1996) (emphasis in original); see also Blum v.
injunctive claim in federal court at the time Yaretsky, 457 U.S. 991, 999, 102 S.Ct. 2777, 73
this suit was initiated. L.Ed.2d 534 (1982) (“[A] plaintiff who has been
subject to injurious conduct of one kind [does not]
Second, as petitioners' counsel conceded at oral ar- possess by virtue of that injury the necessary stake
gument, the transfer policy is not before this Court in litigating conduct of another kind, although sim-
and was not addressed by the District Court. See Tr. FN6
ilar”).
of Oral Arg. 4-5 (admitting that “[t]he transfer ad-
missions policy itself is not before you-the Court”). FN6. Under the majority's view of stand-
Unlike the University's freshman policy, which is ing, there would be no end to Hamacher's
detailed at great length in the Joint Appendix filed ability to challenge any use of race by the
with this Court, the specifics of the transfer policy University in a variety of programs. For if
are conspicuously missing from the Joint Appendix Hamacher's right to complain about the
filed with this Court. Furthermore, the transfer transfer policy gives him standing to chal-
policy is not discussed anywhere in the parties' lenge the freshman policy, presumably his
briefs. Nor is it ever even referenced in the District ability to complain about the transfer
Court's Dec. 13, 2000, opinion that upheld policy likewise would enable him to chal-
Michigan's new freshman admissions policy and lenge Michigan's law school admissions
struck down Michigan's old policy. Nonetheless, policy, as well as any other race-based ad-
evidence filed with the District Court by Michigan missions policy used by Michigan.
demonstrates that the criteria used to evaluate trans-
fer applications at Michigan differ significantly Third, the differences between the freshman and the
from the criteria used to evaluate freshman under- transfer admissions policies make it extremely un-
graduate applications. Of special significance, likely, at best, that an injunction requiring respond-
Michigan's 2000 freshman admissions policy, for ents to modify the freshman admissions program
example, provides for 20 points to be added to the would have any impact on Michigan's transfer

123 S.Ct. 2411 Page 28
Weekly Fed. S 387
(Cite as: 539 U.S. 244, 123 S.Ct. 2411)
policy. See **2437Allen v. Wright, 468 U.S. 737, see supra, at 2436, we do not know whether
751, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984) Michigan would defend its transfer policy on di-
(“[R]elief from the injury must be ‘likely’ to follow versity grounds, or whether it might try to justify its
from a favorable decision”); Schlesinger v. Reserv- transfer policy on other grounds, such as a remedial
ists Comm. to Stop the War, 418 U.S. 208, 222, 94 interest. Petitioners' counsel was therefore incorrect
S.Ct. 2925, 41 L.Ed.2d 706 (1974) (“[T]he discrete in asserting at oral argument that if the University's
factual context within which the concrete injury oc- asserted interest in “diversity” were to be “struck
curred or is threatened insures the framing of relief down as a rationale, then the law would be [the]
no broader than required by the precise facts to same with respect to the transfer policy as with re-
which the court's ruling would be applied”). This is spect to the original [freshman admissions] policy.”
especially true in light of petitioners' unequivocal Tr. of Oral Arg. 7-8. And the majority is likewise
disavowal of any request for equitable relief that mistaken in assuming that “the University's use of
would totally preclude the use of race in the pro- race in undergraduate transfer admissions does not
cessing of all admissions applications. See Tr. of implicate a significantly different set of concerns
Oral Arg. 14-15. than does its use of race in undergraduate freshman
admissions.” Ante, at 2424. Because the transfer
The majority asserts that petitioners “have chal- policy has never been the subject of this suit, we
lenged any use of race by the University in under- simply do not know (1) whether Michigan would
graduate admissions”-freshman and transfer alike. defend its transfer policy on “diversity” grounds or
Ante, at 2425, n. 16 (emphasis in original). Yet some other grounds, or (2) how the absence of a
when questioned at oral argument about whether point system in the transfer policy might impact a
petitioners' challenge would impact both private narrow tailoring analysis of that policy.
and public universities, petitioners' counsel stated:
“Your Honor, I want to be clear about what it is *289 At bottom, petitioners' interest in obtaining an
that we're arguing for here today. We are not sug- injunction for the benefit of younger third parties is
gesting an absolute*288 rule forbidding any use of comparable to that of the unemancipated minor
race under any circumstances. What we are arguing who had no standing to litigate on behalf of older
is that the interest asserted here by the University, women in H.L. v. Matheson, 450 U.S. 398,
this amorphous, ill-defined, unlimited interest in di- 406-407, 101 S.Ct. 1164, 67 L.Ed.2d 388 (1981), or
versity is not a compelling interest.” Tr. of Oral that of the Medicaid patients transferred to less in-
Arg. 14 (emphasis added). In addition, when asked tensive care who had no standing to litigate on be-
whether petitioners took the position that the only half of patients objecting to transfers to more in-
permissible use of race is as a remedy for past dis- tensive care facilities in Blum v. Yaretsky, 457 U.S.,
crimination, petitioners' lawyer stated: “I would not at 1001, 102 S.Ct. 2777. To have standing, it is ele-
go that far.... [T]here may be other reasons. I think mentary that the petitioners' own interests must be
they would have to be extraordinary and rare ... .” implicated. Because neither petitioner has a person-
Id., at 15. Consistent with these statements, peti- al stake in this suit for prospective relief, neither
tioners' briefs filed with this Court attack the Uni- has standing.
versity's asserted interest in “diversity” but ac-
knowledge that race could be considered for re-
III
medial reasons. See, e.g., Brief for Petitioners
16-17. It is true that the petitioners' complaint was filed as
a class action and that Hamacher**2438 has been
Because Michigan's transfer policy was not chal-
certified as the representative of a class, some of
lenged by petitioners and is not before this Court,
whose members may well have standing to chal-

123 S.Ct. 2411 Page 29
Weekly Fed. S 387
(Cite as: 539 U.S. 244, 123 S.Ct. 2411)
lenge the LSA freshman admissions program that is Warth v. Seldin, 422 U.S. 490, 502[, 95 S.Ct.
presently in effect. But the fact that “a suit may be 2197, 45 L.Ed.2d 343] (1975). Unless these indi-
a class action ... adds nothing to the question of viduals ‘can thus demonstrate the requisite case
standing, for even named plaintiffs who represent a or controversy between themselves personally
class ‘must allege and show that they personally and [petitioners], “none may seek relief on behalf
have been injured, not that injury has been suffered of himself or any other member of the class.”
by other, unidentified members of the class to O'Shea v. Littleton, 414 U.S. 488, 494[, 94 S.Ct.
which they belong and which they purport to rep- 669, 38 L.Ed.2d 674] (1974).’ Ibid.” 457 U.S., at
resent.’ ” Simon v. Eastern Ky. Welfare Rights Or- 1001, n. 13, 102 S.Ct. 2777.
ganization, 426 U.S. 26, 40, n. 20, 96 S.Ct. 1917,
48 L.Ed.2d 450 (1976) (quoting Warth v. Seldin, Much like the class representatives in Blum, Hama-
422 U.S. 490, 502, 95 S.Ct. 2197, 45 L.Ed.2d 343 cher-the sole class representative in this case-
(1975)); see also 1 A. Conte & H. Newberg, Class cannot meet Article III's threshold personal-stake
Actions § 2:5 (4th ed. 2002) (“[O]ne cannot acquire requirement. While unidentified members of the
individual standing by virtue of bringing a class ac- class he represents may well have standing to chal-
FN7 lenge Michigan's current freshman admissions
tion”). Thus, in Blum, we squarely held that the
interests of members of the class could not satisfy policy, Hamacher cannot base his standing to sue
the requirement that the class representatives have a on injuries suffered by other members of the class.
personal interest in obtaining the particular equit-
able relief being sought. The class in *290 Blum in- IV
cluded patients who wanted a hearing before being
transferred to facilities where they would receive As this case comes to us, our precedents leave us no
more intensive care. The class representatives, alternative but to dismiss the writ for lack of juris-
however, were in the category of patients diction. Neither petitioner has a personal stake in
threatened with a transfer to less intensive care fa- the outcome of the case, and neither has standing to
cilities. In explaining why the named class repres- seek prospective relief on behalf of unidentified
entatives could not base their standing to sue on the class members who may or may not *291 have
injury suffered by other members of the class, we standing to litigate on behalf of themselves. Ac-
stated: cordingly, I respectfully dissent.
FN7. Of course, the injury to Hamacher Justice SOUTER, with whom Justice GINSBURG
would give him standing to claim damages joins as to Part II, dissenting.
for past harm on behalf of class members, I agree with Justice STEVENS that Patrick Hama-
but he was certified as the class represent- cher has no standing to seek declaratory or injunct-
ative for the limited purpose of seeking in- ive relief against a freshman admissions policy that
junctive and declaratory relief. will never cause him any harm. I write separately to
note that even the Court's new gloss on the law of
“Respondents suggest that members of the class standing should not permit it to reach the issue it
they represent have been transferred to higher decides today. And because a majority of the Court
levels of care as a result of [utilization review has chosen to address the merits, I also add a word
committee] decisions. Respondents, however, to say that even if the merits were reachable,
‘must allege and show that they personally have **2439 I would dissent from the Court's judgment.
been injured, not that injury has been suffered by
other, unidentified members of the class to which
they belong and which they purport to represent.’ I

123 S.Ct. 2411 Page 30
Weekly Fed. S 387
(Cite as: 539 U.S. 244, 123 S.Ct. 2411)
The Court's finding of Article III standing rests on Bollinger, ante, 539 U.S., at 327-333, 123 S.Ct.
two propositions: first, that both the University of 2325, 2003 WL 21433492). Since, as the Court
Michigan's undergraduate college's transfer policy says, “petitioners did not raise a narrow tailoring
and its freshman admissions policy seek to achieve challenge to the transfer policy,” ante, at 2425, n.
student body diversity through the “use of race,” 16, our decision in Grutter is fatal to Hamacher's
ante, at 2422-2427, and second, that Hamacher has sole attack upon the transfer policy, which is the
standing to challenge the transfer policy on the only policy before this Court that he claims ag-
grounds that diversity can never be a “compelling grieved him. Hamacher's challenge to that policy
state interest” justifying the use of race in any ad- having failed, his standing is presumably spent. The
missions decision, freshman or transfer, ante, at further question whether the freshman admissions
2427. The Court concludes that, because Hamach- plan is narrowly tailored to achieving student body
er's argument, if successful, would seal the fate of diversity remains legally irrelevant to Hamacher
both policies, his standing to challenge the transfer and should await a plaintiff who is actually hurt by
FN2
policy also allows him to attack the freshman ad- it.
missions policy. Ante, at 2425, n. 16 (“[P]etitioners
challenged any use of race by the University to pro- FN2. For that matter, as the Court sug-
mote diversity, including through the transfer gests, narrow tailoring challenges against
policy”); ibid. (“ ‘[T]he University considers race the two policies could well have different
for a purpose to achieve a diversity that we believe outcomes. Ante, at 2425. The record on the
is not compelling, and if that is struck down as a ra- decisionmaking process for transfer applic-
tionale, then the [result] would be [the] same with ants is understandably thin, given that peti-
respect to the transfer policy as with respect to the tioners never raised a narrow tailoring
[freshman] admissions policy, Your Honor’ ” challenge against it. Most importantly,
(quoting Tr. of Oral Arg. 7-8)). I agree with Justice however, the transfer policy does not use a
STEVENS's critique*292 that the Court thus ig- points-based “selection index” to evaluate
nores the basic principle of Article III standing that transfer applicants, but rather considers
a plaintiff cannot challenge a government program race as one of many factors in making the
that does not apply to him. See ante, at 2436, and n. general determination whether the applic-
FN1 ant would make a “ ‘contribution to a di-
6 (dissenting opinion).
verse student body.’ ” Ante, at 2425
FN1. The Court's holding arguably exposes (quoting 2 App. in No. 01-1333 etc.
a weakness in the rule of Blum v. Yaretsky, (CA6), p. 531 (capitalization omitted)).
457 U.S. 991, 102 S.Ct. 2777, 73 L.Ed.2d This limited glimpse into the transfer
534 (1982), that Article III standing may policy at least permits the inference that
not be satisfied by the unnamed members the university engages in a “holistic re-
of a duly certified class. But no party has view” of transfer applications consistent
invited us to reconsider Blum, and I follow with the program upheld today in Grutter
Justice STEVENS in approaching the case v. Bollinger, ante, 539 U.S., at 337, 123
on the assumption that Blum is settled law. S.Ct. 2325, 2003 WL 21433492.
But even on the Court's indulgent standing theory,

the decision should not go beyond a recognition *293 II
that diversity can serve as a compelling state in-
The cases now contain two pointers toward the line
terest justifying race-conscious decisions in educa-
between the valid and the unconstitutional in race-
tion. Ante, at 2426-2427 (citing Grutter v.
conscious admissions schemes. Grutter reaffirms

123 S.Ct. 2411 Page 31
Weekly Fed. S 387
(Cite as: 539 U.S. 244, 123 S.Ct. 2411)
the permissibility of individualized consideration of of a minority applicant who gets the 20-point bo-
race to achieve a diversity of students, at least nus. Cf. Johnson v. Transportation Agency, Santa
where race is not assigned a preordained value in Clara Cty., 480 U.S. 616, 638, 107 S.Ct. 1442, 94
all cases. On the other hand, Justice Powell's opin- L.Ed.2d 615 (1987) (upholding a program in which
ion in **2440Regents of Univ. of Cal. v. Bakke, 438 gender “was but one of numerous factors [taken]
U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978), into account in arriving at [a] decision” because
rules out a racial quota or set-aside, in which race is “[n]o persons are automatically excluded from con-
the sole fact of eligibility for certain places in a sideration; all are able to have their qualifications
class. Although the freshman admissions system weighed against those of other applicants”
here is subject to argument on the merits, I think it (emphasis deleted)).
is closer to what Grutter approves than to what
Bakke condemns, and should not be held unconsti- Subject to one qualification to be taken up below,
tutional on the current record. this scheme of considering, through the selection
index system, all of the characteristics that the col-
The record does not describe a system with a quota lege thinks relevant to student diversity for every
like the one struck down in Bakke, which one of the student places to be filled fits Justice
“insulate[d]” all nonminority candidates from com- Powell's description of a constitutionally acceptable
petition from certain seats. Bakke, supra, at 317, 98 program: one that considers “all pertinent elements
S.Ct. 2733 (opinion of Powell, J.); see also Rich- of diversity in light of the particular qualifications
mond v. J.A. Croson Co., 488 U.S. 469, 496, 109 of each applicant” and places each element “on the
S.Ct. 706, 102 L.Ed.2d 854 (1989) (plurality opin- same footing for consideration, although not neces-
ion) (stating that Bakke invalidated “a plan that sarily according them the same weight.” Bakke,
completely eliminated nonminorities from consider- supra, at 317, 98 S.Ct. 2733. In the Court's own
ation for a specified percentage of opportunities”). words, “each characteristic of a particular applicant
The Bakke plan “focused solely on ethnic diversity” [is] considered in assessing the applicant's entire
and effectively told nonminority applicants that application.” Ante, at 2428. An unsuccessful non-
“[n]o matter how strong their qualifications, quant- minority applicant cannot complain that he was re-
itative and extracurricular, including their own po- jected “simply because he was not the right color”;
tential for contribution to educational diversity, an applicant who is rejected because “his combined
they are never afforded the chance to compete with qualifications ... did not outweigh those of the other
applicants from the preferred groups for the applicant” has been given an opportunity to com-
[set-aside] special admissions seats.” Bakke, supra, pete with all other applicants. Bakke, supra, at 318,
at 315, 319, 98 S.Ct. 2733 (opinion of Powell, J.) 98 S.Ct. 2733 (opinion of Powell, J.).
(emphasis in original).
The one qualification to this description of the ad-
The plan here, in contrast, lets all applicants com- missions process is that membership in an under-
pete for all places and values an applicant's offering represented minority is given a weight of 20 points
for any place not only on grounds of race, but on on the 150-point scale. On the face of things,
grades, test scores, strength of high school, quality however, this assignment of specific points does
of course of study, residence, alumni relationships, not set race apart from all other weighted consider-
leadership, personal character, socioeconomic *294 ations. Nonminority students may receive 20 points
disadvantage, athletic ability, and quality of a per- for athletic ability, socioeconomic disadvantage, at-
sonal essay. Ante, at 2419-2420. A nonminority ap- tendance at a socioeconomically *295 disadvant-
plicant who scores highly in these other categories aged or predominantly minority high school, or at
can readily garner a selection index exceeding that the Provost's discretion; they may also receive 10

123 S.Ct. 2411 Page 32
Weekly Fed. S 387
(Cite as: 539 U.S. 244, 123 S.Ct. 2411)
points for being residents of **2441 Michigan, 6 ity applicants may achieve higher selection point
for residence in an underrepresented Michigan totals than minority applicants owing to character-
county, 5 for leadership and service, and so on. istics other than race, and the fact that the uni-
versity admits “virtually every qualified under-
The Court nonetheless finds fault with a scheme represented minority applicant,” App. to Pet. for
that “automatically” distributes 20 points to minor- Cert. 111a, may reflect nothing more than the like-
ity applicants because “[t]he only consideration that lihood that very few qualified minority applicants
accompanies this distribution of points is a factual apply, Brief for Respondent Bollinger et al. 39, as
review of an application to determine whether an well as the possibility that self-selection results in a
individual is a member of one of these minority strong minority applicant pool. It suffices for me, as
groups.” Ante, at 2428. The objection goes to the it did for the District Court, that there are no Bakke-
use of points to quantify and compare characterist- like set-asides and that consideration of an applic-
ics, or to the number of points awarded due to race, ant's whole spectrum of ability is no more ruled out
but on either reading the objection is mistaken. by giving 20 points for race than by giving the
same points for athletic ability or socioeconomic
The very nature of a college's permissible practice
disadvantage.
of awarding value to racial diversity means that
race must be considered in a way that increases Any argument that the “tailoring” amounts to a set-
some applicants' chances for admission. Since col- aside, then, boils down to the claim that a plus
lege admission is not left entirely to inarticulate in- factor of 20 points makes some observers suspi-
tuition, it is hard to see what is inappropriate in as- cious, where a factor of 10 points might not. But
signing some stated value to a relevant characterist- suspicion does not carry petitioners' ultimate bur-
ic, whether it be reasoning ability, writing style, den of persuasion in this constitutional challenge,
running speed, or minority race. Justice Powell's Wygant v. Jackson Bd. of Ed., 476 U.S. 267,
plus factors necessarily are assigned some values. 287-288, 106 S.Ct. 1842, 90 L.Ed.2d 260 (1986)
The college simply does by a numbered scale what (plurality opinion of Powell, J.), and it surely does
the law school accomplishes in its “holistic re- not warrant condemning the college's admissions
view,” Grutter, ante, 539 U.S., at 337, 123 S.Ct. scheme on this record. Because the District Court
2325, 2003 WL 21433492; the distinction does not (correctly, in my view) did not believe that the spe-
imply that applicants to the undergraduate college cific point assignment was constitutionally troub-
are denied individualized consideration or a fair ling, it made only limited and general findings on
chance to compete on the basis of all the various other characteristics of the university's admissions
merits their applications may disclose. practice, such as the conduct of individualized re-
view by the Admissions Review Committee. 122
Nor is it possible to say that the 20 points convert
F.Supp.2d 811, 829-830 (E.D.Mich.2000). As the
race into a decisive factor comparable to reserving
Court indicates, we know very little about the actu-
minority places as in Bakke. Of course we can con-
al role of the review committee. Ante, at 2429
ceive of a point system in which the “plus” factor
(“The record does not reveal precisely how many
given to minority applicants would be so extreme
applications are flagged for this individualized
as to guarantee every minority applicant a higher
**2442 consideration [by the committee]”); see
rank than every nonminority applicant in the uni-
also ante, at 2432 (O'CONNOR, J., concurring)
versity's admissions system, see 438 U.S., at 319, n.
(“The evidence in the record ... reveals very little
53, 98 S.Ct. 2733 (opinion of Powell, J.). But peti-
about how the review committee actually func-
tioners do not have a convincing argument*296 that
tions”). The point system cannot operate as a de
the freshman admissions system operates this way.
facto set-aside if the *297 greater admissions pro-
The present record obviously shows that nonminor-

123 S.Ct. 2411 Page 33
Weekly Fed. S 387
(Cite as: 539 U.S. 244, 123 S.Ct. 2411)
cess, including review by the committee, results in United States as Amicus Curiae 18; Brief for
individualized review sufficient to meet the Court's United States as Amicus Curiae in Grutter v.
standards. Since the record is quiet, if not silent, on Bollinger, O.T.2002, No. 02-241, pp. 13-17.
the case-by-case work of the committee, the Court
would be on more defensible ground by vacating While there is nothing unconstitutional about such a
and remanding for evidence about the committee's practice, it nonetheless suffers from a serious disad-
FN3 FN4
specific determinations. vantage. It *298 is the disadvantage of deliber-
ate obfuscation. The “percentage plans” are just as
FN3. The Court surmises that the commit- race conscious as the point scheme (and fairly so),
tee does not contribute meaningfully to the but they get their racially diverse results without
university's individualized review of ap- saying directly what they are doing or why they are
plications. Ante, at 2429-2430. The Court doing it. In contrast, Michigan states its purpose
should not take it upon itself to apply a directly and, if this were a doubtful case for me, I
newly-formulated legal standard to an un- would be tempted to give Michigan an extra point
developed record. Given the District of its own for its frankness. Equal protection cannot
Court's statement that the committee may become an exercise in which the winners are the
examine “any number of applicants, in- ones who hide the ball.
cluding applicants other than under-
represented minority applicants,” 122 FN4. Of course it might be pointless in the
F.Supp.2d 811, 830 (E.D.Mich.2000), it is State of Michigan, where minorities are a
quite possible that further factual develop- much smaller fraction of the population
ment would reveal the committee to be a than in California, Florida, or Texas. Brief
“source of individualized consideration” for Respondents Bollinger et al. 48-49.
sufficient to satisfy the Court's rule, ante,
at 2432 (O'CONNOR, J., concurring). De- III
termination of that issue in the first in-
stance is a job for the District Court, not If this plan were challenged by a plaintiff with
for this Court on a record that is admittedly proper standing under Article III, I would affirm
lacking. the judgment of the District Court granting sum-
mary judgment to the college. As it is, I would va-
Without knowing more about how the Admissions cate the judgment for lack of jurisdiction, and I re-
Review Committee actually functions, it seems es- spectfully dissent.
pecially unfair to treat the candor of the admissions
plan as an Achilles' heel. In contrast to the college's Justice GINSBURG, with whom Justice SOUTER
FN*
forthrightness in saying just what plus factor it joins, dissenting.
gives for membership in an underrepresented
minority, it is worth considering the character of FN* Justice BREYER joins Part I of this
one alternative thrown up as preferable, because opinion.
supposedly not based on race. Drawing on admis-
sions systems used at public universities in Califor- I
nia, Florida, and Texas, the United States contends
that Michigan could get student diversity in satis- Educational institutions, the Court acknowledges,
faction of its compelling interest by guaranteeing are not barred from any and all consideration of
admission to a fixed percentage of the top students race when making admissions decisions. Ante, at
from each high school in Michigan. Brief for 2426-2427; see Grutter v. Bollinger, ante, 539 U.S.,

123 S.Ct. 2411 Page 34
Weekly Fed. S 387
(Cite as: 539 U.S. 244, 123 S.Ct. 2411)
at 326-333, 123 S.Ct. 2325, 2003 WL 21433492. Bureau of Census, Statistical Abstract of
But the Court once again maintains that the same the United States: 2002, p. 368 (2002)
standard of review controls judicial inspection of (Table 562) (hereinafter Statistical Ab-
all official race classifications. Ante, at 2427 stract) (unemployment rate among whites
(quoting **2443 Adarand Constructors, Inc. v. was 3.7% in 1999, 3.5% in 2000, and 4.2%
Peña, 515 U.S. 200, 224, 115 S.Ct. 2097, 132 in 2001; during those years, the unemploy-
L.Ed.2d 158 (1995); Richmond v. J.A. Croson Co., ment rate among African-Americans was
488 U.S. 469, 494, 109 S.Ct. 706, 102 L.Ed.2d 854 8.0%, 7.6%, and 8.7%, respectively;
(1989) (plurality opinion)). This insistence on among Hispanics, 6.4%, 5.7%, and 6.6%).
“consistency,” Adarand, 515 U.S., at 224, 115 S.Ct.
2097, would be fitting were our Nation free of the FN2. See, e.g., U.S. Dept of Commerce,
vestiges of rank discrimination long reinforced by Bureau of Census, Poverty in the United
law, see id., at 274-276, and n. 8, 115 S.Ct. 2097 States: 2000, p. 291 (2001) (Table A) (In
(GINSBURG, J., dissenting). But we are not far 2000, 7.5% of non-Hispanic whites, 22.1%
distant from an overtly discriminatory past, and the of African-Americans, 10.8% of Asian-
effects of centuries of law-sanctioned inequality re- Americans, and 21.2% of Hispanics were
main painfully evident in our communities and living in poverty.); S. Staveteig & A. Wig-
schools. ton, Racial and Ethnic Disparities: Key
Findings from the National Survey of
*299 In the wake “of a system of racial caste only America's Families 1 (Urban Institute Re-
recently ended,” id., at 273, 115 S.Ct. 2097 port B-5, Feb.2000) (“Blacks, Hispanics,
(GINSBURG, J., dissenting), large disparities en- and Native Americans ... each have
FN1 FN2
dure. Unemployment, poverty, and access poverty rates almost twice as high as Asi-
FN3
to health care vary disproportionately by race. ans and almost three times as high as
Neighborhoods and schools remain racially divided. whites.”).
FN4
African-American and Hispanic children are
all too often educated in poverty-stricken*300 and FN3. See, e.g., U.S. Dept. of Commerce,
FN5 Bureau of Census, Health Insurance Cov-
underperforming institutions. Adult African-
Americans and Hispanics generally earn less than erage: 2000, p. 391 (2001) (Table A) (In
FN6 2000, 9.7% of non-Hispanic whites were
whites with equivalent levels of education.
Equally credentialed job applicants receive differ- without health insurance, as compared to
FN7 18.5% of African-Americans, 18.0% of
ent receptions depending on their race. Irration-
al prejudice is still encountered in **2444 real es- Asian-Americans, and 32.0% of Hispan-
FN8 FN9 ics.); Waidmann & Rajan, Race and Ethnic
tate markets and consumer transactions.
“Bias both *301 conscious and unconscious, re- Disparities in Health Care Access and Util-
flecting traditional and unexamined habits of ization: An Examination of State Vari-
thought, keeps up barriers that must come down if ation, 57 Med. Care Res. and Rev. 55, 56
equal opportunity and nondiscrimination are ever (2000) (“On average, Latinos and African
genuinely to become this country's law and prac- Americans have both worse health and
tice.” Id., at 274, 115 S.Ct. 2097 (GINSBURG, J., worse access to effective health care than
dissenting); see generally Krieger, Civil Rights do non-Hispanic whites ... .”).
Perestroika: Intergroup Relations After Affirmative
FN4. See, e.g., U.S. Dept. of Commerce,
Action, 86 Calif. L.Rev. 1251, 1276-1291 (1998).
Bureau of Census, Racial and Ethnic Res-
FN1. See, e.g., U.S. Dept. of Commerce, idential Segregation in the United States:
1980-2000 (2002) (documenting residen-

123 S.Ct. 2411 Page 35
Weekly Fed. S 387
(Cite as: 539 U.S. 244, 123 S.Ct. 2411)
tial segregation); E. Frankenberg, C. Lee, ment on Labor Market Discrimination

& G. Orfield, A Multiracial Society with (Nov. 18, 2002), http://
Segregated Schools: Are We Losing the gsb.uchicago.edu/pdf/bertrand.pdf; Mincy,
Dream? 4 (Jan.2003), http:// The Urban Institute Audit Studies: Their
www.civilrightsproject.harvard.edu/researc Research and Policy Context, in Clear and
h/reseg03/AreWeLosingtheDream.pdf (all Convincing Evidence: Measurement of
Internet materials as visited June 2, 2003, Discrimination in America 165-186 (M.
and available in Clerk of Court's case file) Fix & R. Struyk eds.1993).
(“[W]hites are the most segregated group
in the nation's public schools; they attend FN8. See, e.g., M. Turner et al., Discrimin-
schools, on average, where eighty percent ation in Metropolitan Housing Markets:
of the studend body is white.”); id., at 28 National Results from Phase I HDS 2000,
(“[A]lmost three-fourths of black and pp. i, iii (Nov.2002), ht-
Latino students attend schools that are pre- tp://www.huduser.org/Publications/pdf/Pha
dominantly minority.... More than one in se1_Report.pdf (paired testing in which
six black children attend a school that is “two individuals-one minority and the oth-
99-100% minority.... One in nine Latino er white-pose as otherwise identical home-
students attend virtually all minority seekers, and visit real estate or rental
schools.”). agents to inquire about the availability of
advertised housing units” revealed that
FN5. See, e.g., Ryan, Schools, Race, and “discrimination still persists in both rental
Money, 109 Yale L.J. 249, 273-274 (1999) and sales markets of large metropolitan
(“Urban public schools are attended areas nationwide”); M. Turner & F. Skid-
primarily by African-American and His- more, Mortgage Lending Discrimination:
panic students”; students who attend such A Review of Existing Evidence 2 (1999)
schools are disproportionately poor, score (existing research evidence shows that
poorly on standardized tests, and are far minority homebuyers in the United States
more likely to drop out than students who “face discrimination from mortgage lend-
attend nonurban schools.). ing institutions.”).
FN6. See, e.g., Statistical Abstract 140 FN9. See, e.g., Ayres, Further Evidence of
(Table 211). Discrimination in New Car Negotiations
and Estimates of its Cause, 94 Mich.
FN7. See, e.g., Holzer, Career Advance- L.Rev. 109, 109-110 (1995) (study in
ment Prospects and Strategies for Low- which 38 testers negotiated the purchase of
Wage Minority Workers, in Low-Wage more than 400 automobiles confirmed
Workers in the New Economy 228 (R. earlier finding “that dealers systematically
Kazis & M. Miller eds. 2001) (“[I]n stud- offer lower prices to white males than to
ies that have sent matched pairs of minor- other tester types”).
ity and white applicants with apparently
equal credentials to apply for jobs, whites The Constitution instructs all who act for the gov-
routinely get more interviews and job of- ernment that they may not “deny to any person ...
fers than either black or Hispanic applic- the equal protection of the laws.” Amdt. 14, § 1. In
ants.”); M. Bertrand & S. Mullainathan, implementing this equality instruction, as I see it,
Are Emily and Brendan More Employable government decisionmakers may properly distin-
than Lakisha and Jamal?: A Field Experi- guish between policies of exclusion and inclusion.

123 S.Ct. 2411 Page 36
Weekly Fed. S 387
(Cite as: 539 U.S. 244, 123 S.Ct. 2411)
See Wygant v. Jackson Bd. of Ed., 476 U.S. 267, ing such classifications when “not invidious in im-
316, 106 S.Ct. 1842, 90 L.Ed.2d 260 (1986) plication” but advanced to “correct inequalities”).
(STEVENS, J., dissenting). Actions designed to Contemporary human rights documents draw just
burden groups long denied full citizenship stature this line; they distinguish between policies of op-
are not sensibly ranked with measures taken to pression and measures designed to accelerate de
hasten the day when entrenched discrimination and facto equality. See Grutter, ante, 539 U.S., at 344,
its aftereffects have been extirpated. See Carter, 123 S.Ct. 2325, 2003 WL 21433492 (GINSBURG,
When Victims Happen To Be Black, 97 Yale L.J. J., concurring) (citing the United Nations-initiated
420, 433-434 (1988) (“[T]o say that two centuries Conventions on the Elimination of All Forms of
of struggle for the most basic of civil rights have Racial Discrimination and on the Elimination of All
been mostly about freedom from racial categoriza- Forms of Discrimination against Women).
tion rather than freedom from racial oppressio[n] is
to trivialize the lives and deaths of those who have The mere assertion of a laudable governmental pur-
suffered under racism. To pretend ... that the issue pose, of course, should not immunize a race-
presented in [ Regents of Univ. of Cal. v. Bakke, conscious measure from careful judicial inspection.
438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750 See Jefferson County, 372 F.2d, at 876 (“The cri-
(1978)] was the same as the issue in [ Brown v. terion is the relevancy of color to a legitimate gov-
Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 ernmental purpose.”). Close review is needed “to
L.Ed. 873 (1954)] is to pretend that history never ferret out classifications in reality malign, but mas-
happened and that the present doesn't exist.”). querading as benign,” Adarand, 515 U.S., at 275,
115 S.Ct. 2097 (GINSBURG, J., dissenting), and to
Our jurisprudence ranks race a “suspect” category, “ensure that preferences are not so large as to tram-
“not because [race] is inevitably an impermissible mel unduly upon the opportunities of others or in-
classification, but because it is one which usually, terfere too harshly with legitimate expectations of
to our national shame, has been drawn for the pur- persons in once-preferred groups,” id., at 276, 115
pose of maintaining racial inequality.” Norwalk S.Ct. 2097.
Core v. Norwalk Redevelopment Agency, 395 F.2d
920, 931-932 (C.A.2 1968) (footnote omitted). But
II
where race is considered “for the purpose of
achieving equality,” id., at 932, no automatic pro- Examining in this light the admissions policy em-
scription is in order. *302 For, as insightfully ex- ployed by the University of Michigan's College of
plained: “The Constitution is both color blind and Literature, Science, and the Arts (College), and for
color conscious. To avoid conflict with the equal the reasons well stated by *303 Justice SOUTER, I
protection clause, a classification that denies a be- see no constitutional infirmity. See ante, at
nefit, causes harm, or imposes a burden must not be 2439-2442 (dissenting opinion). Like other top-
based on race. In that sense, the Constitution is col- ranking institutions, the College has many more ap-
or blind. But the Constitution is color conscious to plicants for admission than it can accommodate in
prevent discrimination being perpetuated and to an entering class. App. to Pet. for Cert. 108a. Every
undo the effects of past discrimination.” United applicant admitted under the current plan, petition-
States v. Jefferson County Bd. of Ed., 372 F.2d 836, ers do not here dispute, is qualified to attend the
876 (C.A.5 1966) (Wisdom, J.); see Wechsler, The College. Id., at 111a. The racial and ethnic groups
Nationalization of Civil Liberties and Civil Rights, to which the College accords special consideration
Supp. to 12 Tex. Q. 10, **2445 23 (1968) (Brown (African-Americans, Hispanics, and Native-
may be seen as disallowing racial classifications Americans) historically have been relegated to in-
that “impl[y] an invidious assessment” while allow- ferior status by law and social practice; their mem-

123 S.Ct. 2411 Page 37
Weekly Fed. S 387
(Cite as: 539 U.S. 244, 123 S.Ct. 2411)
bers continue to experience class-based discrimina- see C. Horn & S. Flores, Percent Plans in
tion to this day, see supra, at 2442-2444. There is College Admissions: A Comparative Ana-
no suggestion that the College adopted its current lysis of Three States' Experiences 14-19
policy in order to limit or decrease enrollment by (2003), http://
any particular racial or ethnic group, and no seats www.civilrightsproject.harvard.edu/researc
are reserved on the basis of race. See Brief for Re- h/affirmativeaction/tristate.pdf. Percentage
spondent Bollinger et al. 10; Tr. of Oral Arg. 41-42 plans depend for their effectiveness on
(in the range between 75 and 100 points, the review continued racial segregation at the second-
committee may look at applications individually ary school level: They can ensure signific-
and ignore the points). Nor has there been any ant minority enrollment in universities
demonstration that the College's program unduly only if the majority-minority high school
constricts admissions opportunities for students population is large enough to guarantee
who do not receive special consideration based on that, in many schools, most of the students
race. Cf. Liu, The Causation Fallacy: Bakke and the in the top 10% or 20% are minorities.
Basic Arithmetic of Selective Admissions, 100 Moreover, because such plans link college
Mich. L.Rev. 1045, 1049 (2002) (“In any admis- admission to a single criterion-high school
sions process where applicants greatly outnumber class rank-they create perverse incentives.
admittees, and where white applicants greatly out- They encourage parents to keep their chil-
number minority applicants, substantial preferences dren in low-performing segregated
for minority applicants will not significantly dimin- schools, and discourage students from tak-
ish the odds of admission facing white applic- ing challenging classes that might lower
FN10
ants.”). their grade point averages. See Selingo,
What States Aren't Saying About the
FN10. The United States points to the “X-Percent Solution,” Chronicle of Higher
“percentage plans” used in California, Education, June 2, 2000, p. A31. And even
Florida, and Texas as one example of a if percentage plans could boost the sheer
“race-neutral alternativ [e]” that would numbers of minority enrollees at the under-
permit the College to enroll meaningful graduate level, they do not touch enroll-
numbers of minority students. Brief for ment in graduate and professional schools.
United States as Amicus Curiae 14; see
U.S. Commission on Civil Rights, Beyond **2446 *304 The stain of generations of racial op-
Percentage Plans: The Challenge of Equal pression is still visible in our society, see Krieger,
Opportunity in Higher Education 1 86 Calif. L.Rev., at 1253, and the determination to
(Nov.2002), http:// www.usccr.gov/pubs/ hasten its removal remains vital. One can reason-
percent2/percent2.pdf (percentage plans ably anticipate, therefore, that colleges and uni-
guarantee admission to state universities versities will seek to maintain their minority enroll-
for a fixed percentage of the top students ment-and the networks and opportunities thereby
from high schools in the State). Calling opened to minority graduates-whether or not they
such 10% or 20% plans “race-neutral” can do so in full candor through adoption of affirm-
seems to me disingenuous, for they ative action plans of the kind here at issue. Without
“unquestionably were adopted with the recourse to such plans, institutions of higher educa-
specific purpose of increasing representa- tion may resort to camouflage. For example,
tion of African-Americans and Hispanics schools may encourage applicants to write of their
in the public higher education system.” cultural traditions in the essays they submit, or to
Brief for Respondent Bollinger et al. 44; indicate whether English is their second language.

123 S.Ct. 2411 Page 38
Weekly Fed. S 387
(Cite as: 539 U.S. 244, 123 S.Ct. 2411)
Seeking to improve their chances for admission, ap- S 387

plicants may highlight the minority group associ-
ations to which they belong, or the Hispanic sur- END OF DOCUMENT
names of their mothers or grandparents. In turn,
teachers' recommendations may emphasize who a
student is as much as what he or she has accom-
plished. See, e.g., Steinberg, Using Synonyms for
Race, College Strives for Diversity, *305 N.Y.
Times, Dec. 8, 2002, section 1, p. 1, col. 3
(describing admissions process at Rice University);
cf. Brief for United States as Amicus Curiae 14-15
(suggesting institutions could consider, inter alia,
“a history of overcoming disadvantage,”
“reputation and location of high school,” and
“individual outlook as reflected by essays”). If hon-
esty is the best policy, surely Michigan's accurately
described, fully disclosed College affirmative ac-
tion program is preferable to achieving similar
FN11
numbers through winks, nods, and disguises.
FN11. Contrary to the Court's contention, I

do not suggest “changing the Constitution
so that it conforms to the conduct of the
universities.” Ante, at 2430, n. 22. In my
view, the Constitution, properly inter-
preted, permits government officials to re-
spond openly to the continuing importance
of race. See supra, at 2444-2445. Among
constitutionally permissible options, those
that candidly disclose their consideration
of race seem to me preferable to those that
conceal it.
***
For the reasons stated, I would affirm the judgment

of the District Court.
U.S.,2003.
Gratz v. Bollinger
539 U.S. 244, 123 S.Ct. 2411, 91 Fair Em-
pl.Prac.Cas. (BNA) 1803, 84 Empl. Prac. Dec. P
41,416, 156 L.Ed.2d 257, 71 USLW 4480, 177 Ed.
Law Rep. 851, 03 Cal. Daily Op. Serv. 5362, 2003
Daily Journal D.A.R. 6783, 16 Fla. L. Weekly Fed.

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BUSINESS LAW 2 CHAPTER ONE

Justice O'Connor filed concurring opinion in which

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[6] Constitutional Law 92 3078 guarantee admission, to every single

[7] Colleges and Universities 81 9.15 [9] Civil Rights 78 1041

81 Colleges and Universities 78 Civil Rights

92 Constitutional Law Civil Rights 78 1061

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FN10. The District Court determined that II

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FN18. U.C. Davis set aside 16 of the 100

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It is so ordered. versity instituted in 1999 and continues to use today

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But even on the Court's indulgent standing theory,

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tial segregation); E. Frankenberg, C. Lee, ment on Labor Market Discrimination

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Seeking to improve their chances for admission, ap- S 387

FN11. Contrary to the Court's contention, I

For the reasons stated, I would affirm the judgment

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