OCTOBER TERM, 2002

															Syllabus

															GRUTTER v. BOLLINGER ET AL.

															CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH
CIRCUIT

															No.02-241. Argued April 1, 2003-Decided June 23, 2003

															The University of Michigan Law School (Law School), one of the
Nation's top law schools, follows an official admissions policy
that seeks to achieve student body diversity through compliance
with Regents of Univ. of Cal. v. Bakke , 438 U. S. 265 . Focusing
on students' academic ability coupled with a flexible assessment of
their talents, experiences, and potential, the policy requires
admissions officials to evaluate each applicant based on all the
information available in the file, including a personal statement,
letters of recommendation, an essay describing how the applicant
will contribute to Law School life and diversity, and the
applicant's undergraduate grade point average (GPA) and Law School
Admission Test (LSAT) score. Additionally, officials must look
beyond grades and scores to so-called "soft variables," such as
recommenders' enthusiasm, the quality of the undergraduate
institution and the applicant's essay, and the areas and difficulty
of undergraduate course selection. The policy does not define
diversity solely in terms of racial and ethnic status and does not
restrict the types of diversity contributions eligible for
"substantial weight," but it does reaffirm the Law School's
commitment to diversity with special reference to the inclusion of
African-American, Hispanic, and Native-American students, who
otherwise might not be represented in the student body in
meaningful numbers. By enrolling a "critical mass" of
underrepresented minority students, the policy seeks to ensure
their ability to contribute to the Law School's character and to
the legal profession.

															When the Law School denied admission to petitioner Grutter, a
white Michigan resident with a 3.8 GPA and 161 LSAT score, she
filed this suit, alleging that respondents had discriminated
against her on the basis of race in violation of the Fourteenth
Amendment, Title VI of the Civil Rights Act of 1964, and 42 U. S.
C. § 1981; that she was rejected because the Law School uses race
as a "predominant" factor, giving applicants belonging to certain
minority groups a significantly greater chance of admission than
students with similar credentials from disfavored racial groups;
and that respondents had no compelling interest to justify that use
of race. The District Court found the Law School's use of race as
an admissions factor unlawful. The Sixth Circuit reversed, holding
that Justice Powell's opinion in Bakke was binding
precedent establishing [307] diversity as a compelling state interest, and that the Law
School's use of race was narrowly tailored because race was merely
a "potential 'plus' factor" and because the Law School's program
was virtually identical to the Harvard admissions program described
approvingly by Justice Powell and appended to his Bakke opinion. Held: The Law School's narrowly tailored use of race in
admissions decisions to further a compelling interest in obtaining
the educational benefits that flow from a diverse student body is
not prohibited by the Equal Protection Clause, Title VI, or § 1981.
Pp. 322-344.

															(a) In the landmark Bakke case, this Court reviewed a
medical school's racial set-aside program that reserved 16 out of
100 seats for members of certain minority groups. The decision
produced six separate opinions, none of which commanded a majority.
Four Justices would have upheld the program on the ground that the
government can use race to remedy disadvantages cast on minorities
by past racial prejudice. 438 U. S., at 325. Four other Justices
would have struck the program down on statutory grounds. Id. , at 408. Justice Powell, announcing the Court's
judgment, provided a fifth vote not only for invalidating the
program, but also for reversing the state court's injunction
against any use of race whatsoever. In a part of his opinion that
was joined by no other Justice, Justice Powell expressed his view
that attaining a diverse student body was the only interest
asserted by the university that survived scrutiny. Id. , at
311. Grounding his analysis in the academic freedom that "long has
been viewed as a special concern of the First Amendment," id. , at 312, 314, Justice Powell emphasized that the
"'nation's future depends upon leaders trained through wide
exposure' to the ideas and mores of students as diverse as this
Nation." Id. , at 313. However, he also emphasized that
"[i]t is not an interest in simple ethnic diversity, in which a
specified percentage of the student body is in effect guaranteed to
be members of selected ethnic groups," that can justify using race. Id. , at 315. Rather, "[t]he diversity that furthers a
compelling state interest encompasses a far broader array of
qualifications and characteristics of which racial or ethnic origin
is but a single though important element." Ibid. Since Bakke , Justice Powell's opinion has been the touchstone
for constitutional analysis of race-conscious admissions policies.
Public and private universities across the Nation have modeled
their own admissions programs on Justice Powell's views. Courts,
however, have struggled to discern whether Justice Powell's
diversity rationale is binding precedent. The Court finds it
unnecessary to decide this issue because the Court endorses Justice
Powell's view that student body diversity is a compelling state
interest in the context of university admissions. Pp. 322-325. [308] (b) All government racial classifications must be analyzed by a
reviewing court under strict scrutiny. Adarand Constructors,
Inc. v. Peña , 515 U. S. 200 , 227. But
not all such uses are invalidated by strict scrutiny. Race-based
action necessary to further a compelling governmental interest does
not violate the Equal Protection Clause so long as it is narrowly
tailored to further that interest. E. g., Shaw v. Hunt , 517 U. S. 899 ,
908. Context matters when reviewing such action. See Gomillion
v. Lightfoot , 364 U. S. 339 , 343-344.
Not every decision influenced by race is equally objectionable, and
strict scrutiny is designed to provide a framework for carefully
examining the importance and the sincerity of the government's
reasons for using race in a particular context. Pp. 326-327.

															(c) The Court endorses Justice Powell's view that student body
diversity is a compelling state interest that can justify using
race in university admissions. The Court defers to the Law School's
educational judgment that diversity is essential to its educational
mission. The Court's scrutiny of that interest is no less strict
for taking into account complex educational judgments in an area
that lies primarily within the university's expertise. See, e.
g., Bakke , 438 U. S., at 319, n. 53 (opinion of Powell, J.).
Attaining a diverse student body is at the heart of the Law
School's proper institutional mission, and its "good faith" is
"presumed" absent "a showing to the contrary." Id. , at
318-319. Enrolling a "critical mass" of minority students simply to
assure some specified percentage of a particular group merely
because of its race or ethnic origin would be patently
unconstitutional. E.g., id. , at 307. But the Law School
defines its critical mass concept by reference to the substantial,
important, and laudable educational benefits that diversity is
designed to produce, including cross-racial understanding and the
breaking down of racial stereotypes. The Law School's claim is
further bolstered by numerous expert studies and reports showing
that such diversity promotes learning outcomes and better prepares
students for an increasingly diverse work force, for society, and
for the legal profession. Major American businesses have made clear
that the skills needed in today's increasingly global marketplace
can only be developed through exposure to widely diverse people,
cultures, ideas, and viewpoints. High-ranking retired officers and
civilian military leaders assert that a highly qualified, racially
diverse officer corps is essential to national security. Moreover,
because universities, and in particular, law schools, represent the
training ground for a large number of the Nation's leaders, Sweatt v. Painter , 339 U. S. 629 , 634, the
path to leadership must be visibly open to talented and qualified
individuals of every race and ethnicity. Thus, the Law School has a
compelling interest in attaining a diverse student body. Pp.
327-333. [309] (d) The Law School's admissions program bears the hallmarks of a
narrowly tailored plan. To be narrowly tailored, a race-conscious
admissions program cannot "insulat[e] each category of applicants
with certain desired qualifications from competition with all other
applicants." Bakke , 438 U. S., at 315 (opinion of Powell,
J.). Instead, it may consider race or ethnicity only as a "'plus'
in a particular applicant's file"; i. e. , it must be
"flexible enough to consider all pertinent elements of diversity in
light of the particular qualifications of each applicant, and to
place them on the same footing for consideration, although not
necessarily according them the same weight," id. , at 317.
It follows that universities cannot establish quotas for members of
certain racial or ethnic groups or put them on separate admissions
tracks. See id. , at 315-316. The Law School's admissions
program, like the Harvard plan approved by Justice Powell,
satisfies these requirements. Moreover, the program is flexible
enough to ensure that each applicant is evaluated as an individual
and not in a way that makes race or ethnicity the defining feature
of the application. See id. , at 317. The Law School
engages in a highly individualized, holistic review of each
applicant's file, giving serious consideration to all the ways an
applicant might contribute to a diverse educational environment.
There is no policy, either de jure or de facto ,
of automatic acceptance or rejection based on any single "soft"
variable. Gratz v. Bollinger, ante , p. 244, distinguished.
Also, the program adequately ensures that all factors that may
contribute to diversity are meaningfully considered alongside race.
Moreover, the Law School frequently accepts nonminority applicants
with grades and test scores lower than underrepresented minority
applicants (and other nonminority applicants) who are rejected. The
Court rejects the argument that the Law School should have used
other race-neutral means to obtain the educational benefits of
student body diversity, e.g. , a lottery system or
decreasing the emphasis on GPA and LSAT scores. N arrow tailoring
does not require exhaustion of every conceivable race-neutral
alternative or mandate that a university choose between maintaining
a reputation for excellence or fulfilling a commitment to provide
educational opportunities to members of all racial groups. See, e. g., Wygant v. Jackson Bd. of Ed. , 476 U. S. 267 , 280, n. 6.
The Court is satisfied that the Law School adequately considered
the available alternatives. The Court is also satisfied that, in
the context of individualized consideration of the possible
diversity contributions of each applicant, the Law School's
race-conscious admissions program does not unduly harm nonminority
applicants. Finally, race-conscious admissions policies must be
limited in time. The Court takes the Law School at its word that it
would like nothing better than to find a race-neutral admissions
formula and will terminate its use of racial [310] preferences as soon as practicable. The Court expects that 25
years from now, the use of racial preferences will no longer be
necessary to further the interest approved today. Pp. 333-343.

															(e) Because the Law School's use of race in admissions decisions
is not prohibited by the Equal Protection Clause, petitioner's
statutory claims based on Title VI and § 1981 also fail. See Bakke, supra , at 287 (opinion of Powell, J.); General
Building Contractors Assn., Inc. v. Pennsylvania , 458 U. S. 375 , 389-391.
Pp. 343-344.

															288 F.3d 732, affirmed.

															O'CONNOR, J., delivered the opinion of the Court, in which
STEVENS, SOUTER, GINSBURG, and BREYER, JJ., joined, and in which
SCALIA and THOMAS, JJ., joined in part insofar as it is consistent
with the views expressed in Part VII of the opinion of THOMAS, J.
GINSBURG, J., filed a concurring opinion, in which BREYER, J.,
joined, post , p. 344. SCALIA, J., filed an opinion
concurring in part and dissenting in part, in which THOMAS, J.,
joined, post , p. 346. THOMAS, J., filed an opinion
concurring in part and dissenting in part, in which SCALIA, J.,
joined as to Parts I-VII, post , p. 349. REHNQUIST, C. J.,
filed a dissenting opinion, in which SCALIA, KENNEDY, and THOMAS,
JJ., joined, post , p. 378. KENNEDY, J., filed a dissenting
opinion, post , p. 387.

															Kirk O. Kolbo argued the cause for petitioner. With him on the
briefs were David F. Herr, R. Lawrence Purdy, Michael C. McCarthy,
Michael E. Rosman, Hans Bader, and Kerry L. Morgan.

															Solicitor General Olson argued the cause for the United States
as amicus curiae urging reversal. With him on the brief were
Assistant Attorney General Boyd and Deputy Solicitor General
Clement.

															Maureen E. Mahoney argued the cause for respondent Bollinger et
al. With her on the brief were John H. Pickering, John Payton,
Brigida Benitez, Craig Goldblatt, Terry A. Maroney, Marvin Krislov,
Jonathan Alger, Evan Caminker, Philip J. Kessler, and Leonard M.
Niehoff Miranda K. S. Massie and George B. Washington filed a brief for respondent James et al.[ Footnote * ] [311] JUSTICE O'CONNOR delivered the opinion of the Court. This case
requires us to decide whether the use of race as a factor in
student admissions by the University of Michigan Law School (Law
School) is unlawful. [312] I A

															The Law School ranks among the Nation's top law schools.

															It receives more than 3,500 applications each year for a
class [313] of around 350 students. Seeking to "admit a group of students
who individually and collectively are among the most capable," the
Law School looks for individuals with "sub- [314] stantial promise for success in law school" and "a strong
likelihood of succeeding in the practice of law and contributing in
diverse ways to the well-being of others." App. 110. More broadly,
the Law School seeks "a mix of students with varying backgrounds
and experiences who will respect and learn from each other." Ibid. In 1992, the dean of the Law School charged a
faculty committee with crafting a written admissions policy to
implement these goals. In particular, the Law School sought to
ensure that its efforts to achieve student body diversity complied
with this Court's most recent ruling on the use of race in
university admissions. See Regents of Univ. of Cal. v.
Bakke , 438 U. S.
265 (1978). [315] Upon the unanimous adoption of the committee's report by the Law
School faculty, it became the Law School's official admissions
policy.

															The hallmark of that policy is its focus on academic ability
coupled with a flexible assessment of applicants' talents,
experiences, and potential "to contribute to the learning of those
around them." App.111. The policy requires admissions officials to
evaluate each applicant based on all the information available in
the file, including a personal statement, letters of
recommendation, and an essay describing the ways in which the
applicant will contribute to the life and diversity of the Law
School. Id. , at 83-84, 114-121. In reviewing an
applicant's file, admissions officials must consider the
applicant's undergraduate grade point average (GPA) and Law School
Admission Test (LSAT) score because they are important (if
imperfect) predictors of academic success in law school. Id. , at 112. The policy stresses that "no applicant should
be admitted unless we expect that applicant to do well enough to
graduate with no serious academic problems." Id. , at
111.

															The policy makes clear, however, that even the highest possible
score does not guarantee admission to the Law School. Id. ,
at 113. Nor does a low score automatically disqualify an applicant. Ibid. Rather, the policy requires admissions officials to
look beyond grades and test scores to other criteria that are
important to the Law School's educational objectives. Id. ,
at 114. So-called" 'soft' variables" such as "the enthusiasm of
recommenders, the quality of the undergraduate institution, the
quality of the applicant's essay, and the areas and difficulty of
undergraduate course selection" are all brought to bear in
assessing an "applicant's likely contributions to the intellectual
and social life of the institution." Ibid. The policy aspires to "achieve that diversity which has the
potential to enrich everyone's education and thus make a law school
class stronger than the sum of its parts." Id. , at
118. [316] The policy does not restrict the types of diversity
contributions eligible for "substantial weight" in the admissions
process, but instead recognizes "many possible bases for diversity
admissions." Id. , at 118, 120. The policy does, however,
reaffirm the Law School's longstanding commitment to "one
particular type of diversity," that is, "racial and ethnic
diversity with special reference to the inclusion of students from
groups which have been historically discriminated against, like
African-Americans, Hispanics and Native Americans, who without this
commitment might not be represented in our student body in
meaningful numbers." Id. , at 120. By enrolling a "
'critical mass' of [underrepresented] minority students," the Law
School seeks to "ensur[e] their ability to make unique
contributions to the character of the Law School." Id. , at
120-121.

															The policy does not define diversity "solely in terms of racial
and ethnic status." Id. , at 121. Nor is the policy
"insensitive to the competition among all students for admission to
the [L]aw [S]chool." Ibid. Rather, the policy seeks to
guide admissions officers in "producing classes both diverse and
academically outstanding, classes made up of students who promise
to continue the tradition of outstanding contribution by Michigan
Graduates to the legal profession." Ibid. B

															Petitioner Barbara Grutter is a white Michigan resident who
applied to the Law School in 1996 with a 3.8 GPA and 161 LSAT
score. The Law School initially placed petitioner on a waiting
list, but subsequently rejected her application. In December 1997,
petitioner filed suit in the United States District Court for the
Eastern District of Michigan against the Law School, the Regents of
the University of Michigan, Lee Bollinger (Dean of the Law School
from 1987 to 1994, and President of the University of Michigan from
1996 to 2002), Jeffrey Lehman (Dean of the Law School), and Dennis
Shields (Director of Admissions at the Law School from 1991 [317] until 1998). Petitioner alleged that respondents discriminated
against her on the basis of race in violation of the Fourteenth
Amendment; Title VI of the Civil Rights Act of 1964, 78 Stat. 252,
42 U. S. C. § 2000d; and Rev. Stat. § 1977, as amended, 42 U. S. C.
§ 1981.

															Petitioner further alleged that her application was rejected
because the Law School uses race as a "predominant" factor, giving
applicants who belong to certain minority groups "a significantly
greater chance of admission than students with similar credentials
from disfavored racial groups." App.33-34. Petitioner also alleged
that respondents "had no compelling interest to justify their use
of race in the admissions process." Id. , at 34. Petitioner
requested compensatory and punitive damages, an order requiring the
Law School to offer her admission, and an injunction prohibiting
the Law School from continuing to discriminate on the basis of
race. Id. , at 36. Petitioner clearly has standing to bring
this lawsuit. Northeastern Fla. Chapter, Associated Gen.
Contractors of America v. Jacksonville , 508 U. S. 656 , 666
(1993).

															The District Court granted petitioner's motion for class
certification and for bifurcation of the trial into liability and
damages phases. The class was defined as " 'all persons who (A)
applied for and were not granted admission to the University of
Michigan Law School for the academic years since (and including)
1995 until the time that judgment is entered herein; and (B) were
members of those racial or ethnic groups, including Caucasian, that
Defendants treated less favorably in considering their applications
for admission to the Law School.'" App. to Pet. for Cert.
191a-192a.

															The District Court heard oral argument on the parties'
cross-motions for summary judgment on December 22, 2000. Taking the
motions under advisement, the District Court indicated that it
would decide as a matter of law whether the Law School's asserted
interest in obtaining the educational benefits that flow from a
diverse student body was compel- [318] ling. The District Court also indicated that it would conduct a
bench trial on the extent to which race was a factor in the Law
School's admissions decisions, and whether the Law School's
consideration of race in admissions decisions constituted a
race-based double standard.

															During the 15-day bench trial, the parties introduced extensive
evidence concerning the Law School's use of race in the admissions
process. Dennis Shields, Director of Admissions when petitioner
applied to the Law School, testified that he did not direct his
staff to admit a particular percentage or number of minority
students, but rather to consider an applicant's race along with all
other factors. Id. , at 206a. Shields testified that at the
height of the admissions season, he would frequently consult the
so-called "daily reports" that kept track of the racial and ethnic
composition of the class (along with other information such as
residency status and gender). Id. , at 207a. This was done,
Shields testified, to ensure that a critical mass of
underrepresented minority students would be reached so as to
realize the educational benefits of a diverse student body. Ibid. Shields stressed, however, that he did not seek to
admit any particular number or percentage of underrepresented
minority students. Ibid. Erica Munzel, who succeeded Shields as Director of Admissions,
testified that" 'critical mass'" means" 'meaningful numbers'" or
"'meaningful representation,'" which she understood to mean a
number that encourages underrepresented minority students to
participate in the classroom and not feel isolated. Id. ,
at 208a-209a. Munzel stated there is no number, percentage, or
range of numbers or percentages that constitute critical mass. Id. , at 209a. Munzel also asserted that she must consider
the race of applicants because a critical mass of underrepresented
minority students could not be enrolled if admissions decisions
were based primarily on undergraduate GPAs and LSAT scores. Ibid. The current Dean of the Law School, Jeffrey Lehman, also
testified. Like the other Law School witnesses, Lehman did [319] not quantify critical mass in terms of numbers or percentages. Id. , at 211a. He indicated that critical mass means
numbers such that underrepresented minority students do not feel
isolated or like spokespersons for their race. Ibid. When
asked about the extent to which race is considered in admissions,
Lehman testified that it varies from one applicant to another. Ibid. In some cases, according to Lehman's testimony, an
applicant's race may play no role, while in others it may be a
"'determinative'" factor. Ibid. The District Court heard extensive testimony from Professor
Richard Lempert, who chaired the faculty committee that drafted the
1992 policy. Lempert emphasized that the Law School seeks students
with diverse interests and backgrounds to enhance classroom
discussion and the educational experience both inside and outside
the classroom. Id. , at 213a. When asked about the
policy's" 'commitment to racial and ethnic diversity with special
reference to the inclusion of students from groups which have been
historically discriminated against,'" Lempert explained that this
language did not purport to remedy past discrimination, but rather
to include students who may bring to the Law School a perspective
different from that of members of groups which have not been the
victims of such discrimination. Ibid. Lempert acknowledged
that other groups, such as Asians and Jews, have experienced
discrimination, but explained they were not mentioned in the policy
because individuals who are members of those groups were already
being admitted to the Law School in significant numbers. Ibid. Kent Syverud was the final witness to testify about the Law
School's use of race in admissions decisions. Syverud was a
professor at the Law School when the 1992 admissions policy was
adopted and is now Dean of Vanderbilt Law School. In addition to
his testimony at trial, Syverud submitted several expert reports on
the educational benefits of diversity. Syverud's testimony
indicated that when a critical mass of underrepresented minority
students is pres- [320] ent, racial stereotypes lose their force because nonminority
students learn there is no "'minority viewpoint'" but rather a
variety of viewpoints among minority students. Id. , at
215a.

															In an attempt to quantify the extent to which the Law School
actually considers race in making admissions decisions, the parties
introduced voluminous evidence at trial. Relying on data obtained
from the Law School, petitioner's expert, Dr. Kinley Larntz,
generated and analyzed "admissions grids" for the years in question
(1995-2000). These grids show the number of applicants and the
number of admittees for all combinations of GPAs and LSAT scores.
Dr. Larntz made" 'cell-by-cell'" comparisons between applicants of
different races to determine whether a statistically significant
relationship existed between race and admission rates. He concluded
that membership in certain minority groups "'is an extremely strong
factor in the decision for acceptance,'" and that applicants from
these minority groups "'are given an extremely large allowance for
admission'" as compared to applicants who are members of nonfavored
groups. Id. , at 218a-220a. Dr. Larntz conceded, however,
that race is not the predominant factor in the Law School's
admissions calculus. 12 Tr. 11-13 (Feb. 10, 2001).

															Dr. Stephen Raudenbush, the Law School's expert, focused on the
predicted effect of eliminating race as a factor in the Law
School's admission process. In Dr. Raudenbush's view, a race-blind
admissions system would have a "'very dramatic,'" negative effect
on underrepresented minority admissions. App. to Pet. for Cert.
223a. He testified that in 2000, 35 percent of underrepresented
minority applicants were admitted. Ibid. Dr. Raudenbush
predicted that if race were not considered, only 10 percent of
those applicants would have been admitted. Ibid. Under
this scenario, underrepresented minority students would have
constituted 4 percent of the entering class in 2000 instead of the
actual figure of 14.5 percent. Ibid. [321] In the end, the District Court concluded that the Law School's
use of race as a factor in admissions decisions was unlawful.
Applying strict scrutiny, the District Court determined that the
Law School's asserted interest in assembling a diverse student body
was not compelling because "the attainment of a racially diverse
class . . . was not recognized as such by Bakke and it is not a remedy for past discrimination." Id. , at
246a. The District Court went on to hold that even if diversity
were compelling, the Law School had not narrowly tailored its use
of race to further that interest. The District Court granted
petitioner's request for declaratory relief and enjoined the Law
School from using race as a factor in its admissions decisions. The
Court of Appeals entered a stay of the injunction pending
appeal.

															Sitting en banc, the Court of Appeals reversed the District
Court's judgment and vacated the injunction. The Court of Appeals
first held that Justice Powell's opinion in Bakke was
binding precedent establishing diversity as a compelling state
interest. According to the Court of Appeals, Justice Powell's
opinion with respect to diversity constituted the controlling
rationale for the judgment of this Court under the analysis set
forth in Marks v. United States , 430 U. S. 188 (1977). The
Court of Appeals also held that the Law School's use of race was
narrowly tailored because race was merely a "potential 'plus'
factor" and because the Law School's program was "virtually
identical" to the Harvard admissions program described approvingly
by Justice Powell and appended to his Bakke opinion. 288 F.3d 732 , 746, 749 (CA62002).

															Four dissenting judges would have held the Law School's use of
race unconstitutional. Three of the dissenters, rejecting the
majority's Marks analysis, examined the Law School's
interest in student body diversity on the merits and concluded it
was not compelling. The fourth dissenter, writing separately, found
it unnecessary to decide whether diversity was a compelling
interest because, like the other dissent- [322] ers, he believed that the Law School's use of race was not
narrowly tailored to further that interest.

															We granted certiorari, 537 U. S. 1043 (2002), to resolve the
disagreement among the Courts of Appeals on a question of national
importance: Whether diversity is a compelling interest that can
justify the narrowly tailored use of race in selecting applicants
for admission to public universities. Compare Hopwood v.
Texas , 78 F.3d 932 (CA5 1996) (Hopwood I) (holding
that diversity is not a compelling state interest), with Smith
v. University of Wash. Law School , 233 F.3d 1188 (CA9 2000)
(holding that it is).

															II A

															We last addressed the use of race in public higher education
over 25 years ago. In the landmark Bakke case, we reviewed
a racial set-aside program that reserved 16 out of 100 seats in a
medical school class for members of certain minority groups. 438 U. S. 265 (1978). The decision produced six separate opinions, none of which
commanded a majority of the Court. Four Justices would have upheld
the program against all attack on the ground that the government
can use race to "remedy disadvantages cast on minorities by past
racial prejudice." Id. , at 325 (joint opinion of Brennan,
White, Marshall, and Blackmun, JJ., concurring in judgment in part
and dissenting in part). Four other Justices avoided the
constitutional question altogether and struck down the program on
statutory grounds. Id. , at 408 (opinion of STEVENS, J.,
joined by Burger, C. J., and Stewart and REHNQUIST, JJ., concurring
in judgment in part and dissenting in part). Justice Powell
provided a fifth vote not only for invalidating the set-aside
program, but also for reversing the state court's injunction
against any use of race whatsoever. The only holding for the Court
in Bakke was that a "State has a substantial interest that
legitimately may be served by a properly devised admissions program
involv- [323] ing the competitive consideration of race and ethnic origin." Id. , at 320. Thus, we reversed that part of the lower
court's judgment that enjoined the university "from any
consideration of the race of any applicant." Ibid. Since this Court's splintered decision in Bakke ,
Justice Powell's opinion announcing the judgment of the Court has
served as the touchstone for constitutional analysis of
race-conscious admissions policies. Public and private universities
across the Nation have modeled their own admissions programs on
Justice Powell's views on permissible race-conscious policies. See, e.g. , Brief for Judith Areen et al. as Amici
Curiae 12-13 (law school admissions programs employ "methods
designed from and based on Justice Powell's opinion in Bakke"); Brief for Amherst College et al. as Amici
Curiae 27 ("After Bakke , each of the amici (and undoubtedly other selective colleges and universities as well)
reviewed their admissions procedures in light of Justice Powell's
opinion . . . and set sail accordingly"). We therefore
discuss Justice Powell's opinion in some detail.

															Justice Powell began by stating that "[t]he guarantee of equal
protection cannot mean one thing when applied to one individual and
something else when applied to a person of another color. If both
are not accorded the same protection, then it is not equaL" Bakke , 438 U. S., at 289-290. In Justice Powell's view,
when governmental decisions "touch upon an individual's race or
ethnic background, he is entitled to a judicial determination that
the burden he is asked to bear on that basis is precisely tailored
to serve a compelling governmental interest." Id. , at 299.
Under this exacting standard, only one of the interests asserted by
the university survived Justice Powell's scrutiny.

															First, Justice Powell rejected an interest in "'reducing the
historic deficit of traditionally disfavored minorities in medical
schools and in the medical profession'" as an unlawful interest in
racial balancing. Id. , at 306-307. Second, Justice Powell
rejected an interest in remedying societal dis- [324] crimination because such measures would risk placing unnecessary
burdens on innocent third parties "who bear no responsibility for
whatever harm the beneficiaries of the special admissions program
are thought to have suffered." Id. , at 310. Third, Justice
Powell rejected an interest in "increasing the number of physicians
who will practice in communities currently underserved," concluding
that even if such an interest could be compelling in some
circumstances the program under review was not "geared to promote
that goal." Id. , at 306, 310.

															Justice Powell approved the university's use of race to further
only one interest: "the attainment of a diverse student body." Id. , at 311. With the important proviso that
"constitutional limitations protecting individual rights may not be
disregarded," Justice Powell grounded his analysis in the academic
freedom that "long has been viewed as a special concern of the
First Amendment." Id. , at 312, 314. Justice Powell
emphasized that nothing less than the "'nation's future depends
upon leaders trained through wide exposure' to the ideas and mores
of students as diverse as this Nation of many peoples." Id. , at 313 (quoting Keyishian v. Board of Regents of
Univ. of State of N. Y. , 385 U. S. 589 , 603
(1967)). In seeking the "right to select those students who will
contribute the most to the 'robust exchange of ideas,'" a
university seeks "to achieve a goal that is of paramount importance
in the fulfillment of its mission." 438 U. S., at 313. Both
"tradition and experience lend support to the view that the
contribution of diversity is substantial." Ibid. Justice Powell was, however, careful to emphasize that in his
view race "is only one element in a range of factors a university
properly may consider in attaining the goal of a heterogeneous
student body." Id. , at 314. For Justice Powell, "[i]t is
not an interest in simple ethnic diversity, in which a specified
percentage of the student body is in effect guaranteed to be
members of selected ethnic groups," that [325] can justify the use of race. Id. , at 315. Rather,
"[t]he diversity that furthers a compelling state interest
encompasses a far broader array of qualifications and
characteristics of which racial or ethnic origin is but a single
though important element." Ibid. In the wake of our fractured decision in Bakke , courts
have struggled to discern whether Justice Powell's diversity
rationale, set forth in part of the opinion joined by no other
Justice, is nonetheless binding precedent under Marks. In
that case, we explained that "[w]hen a fragmented Court decides a
case and no single rationale explaining the result enjoys the
assent of five Justices, the holding of the Court may be viewed as
that position taken by those Members who concurred in the judgments
on the narrowest grounds." 430 U. S., at 193 (internal quotation
marks and citation omitted). As the divergent opinions of the lower
courts demonstrate, however, "[t]his test is more easily stated
than applied to the various opinions supporting the result in [Bakke]." Nichols v. United States , 511 U. S. 738 , 745-746
(1994). Compare, e. g., Johnson v. Board of Regents of Univ. of
Ga., 263 F. 3d 1234 (CAll 2001) (Justice Powell's diversity
rationale was not the holding of the Court); Hopwood v. Texas,
236 F. 3d 256, 274-275 (CA5 2000) (Hopwood II) (same); Hopwood I , 78 F.3d 932 (CA5 1996)
(same), with Smith v. University of Wash. Law School , 233
F. 3d, at 1199 (Justice Powell's opinion, including the diversity
rationale, is controlling under Marks). We do not find it necessary to decide whether Justice Powell's
opinion is binding under Marks. It does not seem "useful
to pursue the Marks inquiry to the utmost logical
possibility when it has so obviously baffled and divided the lower
courts that have considered it." Nichols v. United States,
supra , at 745-746. More important, for the reasons set out
below, today we endorse Justice Powell's view that student body
diversity is a compelling state interest that can justify the use
of race in university admissions. [326] B

															The Equal Protection Clause provides that no State shall "deny
to any person within its jurisdiction the equal protection of the
laws." U. S. Const., Amdt. 14, § 2. Because the Fourteenth
Amendment "protect[s] persons , not groups," all
"governmental action based on race-a group classification
long recognized as in most circumstances irrelevant and therefore
prohibited-should be subjected to detailed judicial inquiry to
ensure that the personal right to equal protection of the
laws has not been infringed." Adarand Constructors, Inc. v.
Peña , 515 U. S.
200 , 227 (1995) (emphasis in original; internal quotation marks
and citation omitted). We are a "free people whose institutions are
founded upon the doctrine of equality." Loving v.
Virginia , 388 U.
S. 1 , 11 (1967) (internal quotation marks and citation
omitted). It follows from that principle that "government may treat
people differently because of their race only for the most
compelling reasons." Adarand Constructors, Inc. v. Peña,
515 U. S., at 227.

															We have held that all racial classifications imposed by
government "must be analyzed by a reviewing court under strict
scrutiny." Ibid. This means that such classifications are
constitutional only if they are narrowly tailored to further
compelling governmental interests. "Absent searching judicial
inquiry into the justification for such race-based measures," we
have no way to determine what "classifications are 'benign' or
'remedial' and what classifications are in fact motivated by
illegitimate notions of racial inferiority or simple racial
politics." Richmond v. J. A. Croson Co. , 488 U. S. 469 , 493 (1989)
(plurality opinion). We apply strict scrutiny to all racial
classifications to "'smoke out' illegitimate uses of race by
assuring that [government] is pursuing a goal important enough to
warrant use of a highly suspect tool." Ibid. Strict scrutiny is not "strict in theory, but fatal in
fact." Adarand Constructors, Inc. v. Peña, supra , at 237
(internal quotation marks and citation omitted). Although all
gov- [327] ernmental uses of race are subject to strict scrutiny, not all
are invalidated by it. As we have explained, "whenever the
government treats any person unequally because of his or her race,
that person has suffered an injury that falls squarely within the
language and spirit of the Constitution's guarantee of equal
protection." 515 U. S., at 229-230. But that observation "says
nothing about the ultimate validity of any particular law; that
determination is the job of the court applying strict scrutiny." Id. , at 230. When race-based action is necessary to
further a compelling governmental interest, such action does not
violate the constitutional guarantee of equal protection so long as
the narrow-tailoring requirement is also satisfied.

															Context matters when reviewing race-based governmental action
under the Equal Protection Clause. See Gomillion v.
Lightfoot , 364
U. S. 339 , 343-344 (1960) (admonishing that, "in dealing with
claims under broad provisions of the Constitution, which derive
content by an interpretive process of inclusion and exclusion, it
is imperative that generalizations, based on and qualified by the
concrete situations that gave rise to them, must not be applied out
of context in disregard of variant controlling facts"). In Adarand Constructors , Inc. v. Peña , we made clear
that strict scrutiny must take " 'relevant differences' into
account." 515 U. S., at 228. Indeed, as we explained, that is its
"fundamental purpose." Ibid. Not every decision influenced
by race is equally objectionable, and strict scrutiny is designed
to provide a framework for carefully examining the importance and
the sincerity of the reasons advanced by the governmental
decisionmaker for the use of race in that particular context.

															III

															A

															With these principles in mind, we turn to the question whether
the Law School's use of race is justified by a compelling state
interest. Before this Court, as they have [328] throughout this litigation, respondents assert only one
justification for their use of race in the admissions process:
obtaining "the educational benefits that flow from a diverse
student body." Brief for Respondent Bollinger et al. i. In other
words, the Law School asks us to recognize, in the context of
higher education, a compelling state interest in student body
diversity.

															We first wish to dispel the notion that the Law School's
argument has been foreclosed, either expressly or implicitly, by
our affirmative-action cases decided since Bakke. It is
true that some language in those opinions might be read to suggest
that remedying past discrimination is the only permissible
justification for race-based governmental action. See, e. g.,
Richmond v. J. A. Croson Co., supra , at 493
(plurality opinion) (stating that unless classifications based on
race are "strictly reserved for remedial settings, they may in fact
promote notions of racial inferiority and lead to a politics of
racial hostility"). But we have never held that the only
governmental use of race that can survive strict scrutiny is
remedying past discrimination. Nor, since Bakke , have we
directly addressed the use of race in the context of public higher
education. Today, we hold that the Law School has a compelling
interest in attaining a diverse student body.

															The Law School's educational judgment that such diversity is
essential to its educational mission is one to which we defer. The
Law School's assessment that diversity will, in fact, yield
educational benefits is substantiated by respondents and their amici. Our scrutiny of the interest asserted by the Law
School is no less strict for taking into account complex
educational judgments in an area that lies primarily within the
expertise of the university. Our holding today is in keeping with
our tradition of giving a degree of deference to a university's
academic decisions, within constitutionally prescribed limits. See Regents of Univ. of Mich. v. Ewing , 474 U. S. 214 , 225
(1985); Board of Curators of Univ. of Mo. [329] v. Horowitz , 435 U. S. 78 , 96, n. 6
(1978); Bakke , 438 U. S., at 319, n. 53 (opinion of
Powell, J.).

															We have long recognized that, given the important purpose of
public education and the expansive freedoms of speech and thought
associated with the university environment, universities occupy a
special niche in our constitutional tradition. See, e. g.,
Wieman v. Updegraff , 344 U. S. 183 , 195 (1952)
(Frankfurter, J., concurring); Sweezy v. New Hampshire , 354 U. S. 234 ,
250 (1957); Shelton v. Tucker , 364 U. S. 479 , 487
(1960); Keyishian v. Board of Regents of Univ. of State of N. Y. , 385 U. S., at 603. In announcing the principle of
student body diversity as a compelling state interest, Justice
Powell invoked our cases recognizing a constitutional dimension,
grounded in the First Amendment, of educational autonomy: "The
freedom of a university to make its own judgments as to education
includes the selection of its student body." Bakke, supra ,
at 312. From this premise, Justice Powell reasoned that by claiming
"the right to select those students who will contribute the most to
the 'robust exchange of ideas,'" a university "seek[s] to achieve a
goal that is of paramount importance in the fulfillment of its
mission." 438 U. S., at 313 (quoting Keyishian v. Board of
Regents of Univ. of State of N. Y., supra , at 603).
Our conclusion that the Law School has a compelling interest in a
diverse student body is informed by our view that attaining a
diverse student body is at the heart of the Law School's proper
institutional mission, and that "good faith" on the part of a
university is "presumed" absent "a showing to the contrary." 438 U.
S., at 318-319.

															As part of its goal of "assembling a class that is both
exceptionally academically qualified and broadly diverse," the Law
School seeks to "enroll a 'critical mass' of minority students."
Brief for Respondent Bollinger et al. 13. The Law School's interest
is not simply "to assure within its student body some specified
percentage of a particular group merely because of its race or
ethnic origin." Bakke , 438 U. S., at [330] 307 (opinion of Powell, J.). That would amount to outright
racial balancing, which is patently unconstitutional. Ibid.;
Freeman v. Pitts , 503 U. S. 467 , 494 (1992)
("Racial balance is not to be achieved for its own sake"); Richmond v. J. A. Croson Co. , 488 U. S., at 507.
Rather, the Law School's concept of critical mass is defined by
reference to the educational benefits that diversity is designed to
produce.

															These benefits are substantial. As the District Court
emphasized, the Law School's admissions policy promotes
"cross-racial understanding," helps to break down racial
stereotypes, and "enables [students] to better understand persons
of different races." App. to Pet. for Cert. 246a. These benefits
are "important and laudable," because "classroom discussion is
livelier, more spirited, and simply more enlightening and
interesting" when the students have "the greatest possible variety
of backgrounds." Id. , at 246a, 244a.

															The Law School's claim of a compelling interest is further
bolstered by its amici , who point to the educational
benefits that flow from student body diversity. In addition to the
expert studies and reports entered into evidence at trial, numerous
studies show that student body diversity promotes learning
outcomes, and "better prepares students for an increasingly diverse
workforce and society, and better prepares them as professionals."
Brief for American Educational Research Association et al. as Amici Curiae 3; see, e.g. , W. Bowen & D. Bok,
The Shape of the River (1998); Diversity Challenged: Evidence on
the Impact of Affirmative Action (G. Orfield & M. Kurlaender
eds. 2001); Compelling Interest: Examining the Evidence on Racial
Dynamics in Colleges and Universities (M. Chang, D. Witt, J. Jones,
& K. Hakuta eds. 2003).

															These benefits are not theoretical but real, as major American
businesses have made clear that the skills needed in to day's
increasingly global marketplace can only be developed through
exposure to widely diverse people, cultures, ideas, and viewpoints.
Brief for 3M et al. as Amici Curiae [331] 5; Brief for General Motors Corp. as Amicus Curiae 3-4. What is more, high-ranking retired officers and civilian leaders of
the United States military assert that, "[b]ased on [their] decades
of experience," a "highly qualified, racially diverse officer corps
. . . is essential to the military's ability to fulfill
its principle mission to provide national security." Brief for
Julius W. Becton, Jr., et al. as Amici Curiae 5. The
primary sources for the Nation's officer corps are the service
academies and the Reserve Officers Training Corps (ROTC), the
latter comprising students already admitted to participating
colleges and universities. Ibid. At present, "the military
cannot achieve an officer corps that is both highly
qualified and racially diverse unless the service
academies and the ROTC used limited race-conscious recruiting and
admissions policies." Ibid. (emphasis in original). To
fulfill its mission, the military "must be selective in admissions
for training and education for the officer corps, and it
must train and educate a highly qualified, racially diverse officer
corps in a racially diverse educational setting." Id. , at
29 (emphasis in original). We agree that "[i]t requires only a
small step from this analysis to conclude that our country's other
most selective institutions must remain both diverse and
selective." Ibid. We have repeatedly acknowledged the overriding importance of
preparing students for work and citizenship, describing education
as pivotal to "sustaining our political and cultural heritage" with
a fundamental role in maintaining the fabric of society. Plyler
v. Doe , 457 U.
S. 202 , 221 (1982). This Court has long recognized that
"education . . . is the very foundation of good
citizenship." Brown v. Board of Education , 347 U. S. 483 , 493
(1954). For this reason, the diffusion of knowledge and opportunity
through public institutions of higher education must be accessible
to all individuals regardless of race or ethnicity. The United
States, as amicus curiae , affirms that "[e]nsuring that
public institutions are open and available to all segments of
American [332] society, including people of all races and ethnicities,
represents a paramount government objective." Brief for United
States as Amicus Curiae 13. And, "[n]owhere is the
importance of such openness more acute than in the context of
higher education." Ibid. Effective participation by
members of all racial and ethnic groups in the civic life of our
Nation is essential if the dream of one Nation, indivisible, is to
be realized.

															Moreover, universities, and in particular, law schools,
represent the training ground for a large number of our N ation's
leaders. Sweatt v. Painter , 339 U. S. 629 , 634 (1950)
(describing law school as a "proving ground for legal learning and
practice"). Individuals with law degrees occupy roughly half the
state governorships, more than half the seats in the United States
Senate, and more than a third of the seats in the United States
House of Representatives. See Brief for Association of American Law
Schools as Amicus Curiae 5-6. The pattern is even more
striking when it comes to highly selective law schools. A handful
of these schools accounts for 25 of the 100 United States Senators,
74 United States Courts of Appeals judges, and nearly 200 of the
more than 600 United States District Court judges. Id. , at
6.

															In order to cultivate a set of leaders with legitimacy in the
eyes of the citizenry, it is necessary that the path to leadership
be visibly open to talented and qualified individuals of every race
and ethnicity. All members of our heterogeneous society must have
confidence in the openness and integrity of the educational
institutions that provide this training. As we have recognized, law
schools "cannot be effective in isolation from the individuals and
institutions with which the law interacts." See Sweatt v.
Painter, supra , at 634. Access to legal education (and thus
the legal profession) must be inclusive of talented and qualified
individuals of every race and ethnicity, so that all members of our
heterogeneous society [333] may participate in the educational institutions that provide the
training and education necessary to succeed in America.

															The Law School does not premise its need for critical mass on
"any belief that minority students always (or even consistently)
express some characteristic minority viewpoint on any issue." Brief
for Respondent Bollinger et al. 30. To the contrary, diminishing
the force of such stereotypes is both a crucial part of the Law
School's mission, and one that it cannot accomplish with only token
numbers of minority students. Just as growing up in a particular
region or having particular professional experiences is likely to
affect an individual's views, so too is one's own, unique
experience of being a racial minority in a society, like our own,
in which race unfortunately still matters. The Law School has
determined, based on its experience and expertise, that a "critical
mass" of underrepresented minorities is necessary to further its
compelling interest in securing the educational benefits of a
diverse student body.

															B

															Even in the limited circumstance when drawing racial
distinctions is permissible to further a compelling state interest,
government is still "constrained in how it may pursue that end:
[T]he means chosen to accomplish the [government's] asserted
purpose must be specifically and narrowly framed to accomplish that
purpose." Shaw v. Hunt , 517 U. S. 899 , 908 (1996)
(internal quotation marks and citation omitted). The purpose of the
narrow tailoring requirement is to ensure that "the means chosen
'fit' thee] compelling goal so closely that there is little or no
possibility that the motive for the classification was illegitimate
racial prejudice or stereotype." Richmond v. J. A.
Croson Co. , 488 U. S., at 493 (plurality opinion).

															Since Bakke , we have had no occasion to define the
contours of the narrow-tailoring inquiry with respect to
race-conscious university admissions programs. That inquiry [334] must be calibrated to fit the distinct issues raised by the use
of race to achieve student body diversity in public higher
education. Contrary to JUSTICE KENNEDY'S assertions, we do not
"abando[n] strict scrutiny," see post , at 394 (dissenting
opinion). Rather, as we have already explained, supra , at
327, we adhere to Adarand's teaching that the very purpose
of strict scrutiny is to take such "relevant differences into
account." 515 U. S., at 228 (internal quotation marks omitted).

															To be narrowly tailored, a race-conscious admissions program
cannot use a quota system-it cannot "insulat[e] each category of
applicants with certain desired qualifications from competition
with all other applicants." Bakke, 438 U. S., at 315
(opinion of Powell, J.). Instead, a university may consider race or
ethnicity only as a " 'plus' in a particular applicant's file,"
without "insulat[ing] the individual from comparison with all other
candidates for the available seats." Id. , at 317. In other
words, an admissions program must be "flexible enough to consider
all pertinent elements of diversity in light of the particular
qualifications of each applicant, and to place them on the same
footing for consideration, although not necessarily according them
the same weight." Ibid. We find that the Law School's admissions program bears the
hallmarks of a narrowly tailored plan. As Justice Powell made clear
in Bakke , truly individualized consideration demands that
race be used in a flexible, nonmechanical way. It follows from this
mandate that universities cannot establish quotas for members of
certain racial groups or put members of those groups on separate
admissions tracks. See id. , at 315-316. Nor can
universities insulate applicants who belong to certain racial or
ethnic groups from the competition for admission. Ibid. Universities can, however, consider race or ethnicity more flexibly
as a "plus" factor in the context of individualized consideration
of each and every applicant. Ibid. [335] We are satisfied that the Law School's admissions program, like
the Harvard plan described by Justice Powell, does not operate as a
quota. Properly understood, a "quota" is a program in which a
certain fixed number or proportion of opportunities are "reserved
exclusively for certain minority groups." Richmond v. J. A. Croson Co., supra , at 496 (plurality opinion). Quotas"
'impose a fixed number or percentage which must be attained, or
which cannot be exceeded,'" Sheet Metal Workers v. EEOC , 478 U. S. 421 ,
495 (1986) (O'CONNOR, J., concurring in part and dissenting in
part), and "insulate the individual from comparison with all other
candidates for the available seats," Bakke, supra , at 317
(opinion of Powell, J.). In contrast, "a permissible goal
. . . require[s] only a good-faith effort . . .
to come within a range demarcated by the goal itself," Sheet
Metal Workers v. EEOC, supra , at 495, and permits
consideration of race as a "plus" factor in any given case while
still ensuring that each candidate "compete[s] with all other
qualified applicants," Johnson v. Transportation Agency, Santa
Clara Cty., 480 U. S. 616, 638 (1987).

															Justice Powell's distinction between the medical school's rigid
16-seat quota and Harvard's flexible use of race as a "plus" factor
is instructive. Harvard certainly had minimum goals for
minority enrollment, even if it had no specific number firmly in
mind. See Bakke, supra , at 323 (opinion of Powell, J.)
("10 or 20 black students could not begin to bring to their
classmates and to each other the variety of points of view,
backgrounds and experiences of blacks in the United States"). What
is more, Justice Powell flatly rejected the argument that Harvard's
program was "the functional equivalent of a quota" merely because
it had some " 'plus'" for race, or gave greater "weight" to race
than to some other factors, in order to achieve student body
diversity. 438 U. S., at 317-318.

															The Law School's goal of attaining a critical mass of
underrepresented minority students does not transform its pro- [336] gram into a quota. As the Harvard plan described by Justice
Powell recognized, there is of course "some relationship between
numbers and achieving the benefits to be derived from a diverse
student body, and between numbers and providing a reasonable
environment for those students admitted." Id. , at 323.
"[S]ome attention to numbers," without more, does not transform a
flexible admissions system into a rigid quota. Ibid. Nor,
as JUSTICE KENNEDY posits, does the Law School's consultation of
the "daily reports," which keep track of the racial and ethnic
composition of the class (as well as of residency and gender),
"sugges[t] there was no further attempt at individual review save
for race itself" during the final stages of the admissions process.
See post , at 392 (dissenting opinion). To the contrary,
the Law School's admissions officers testified without
contradiction that they never gave race any more or less weight
based on the information contained in these reports. Brief for
Respondent Bollinger et al. 43, n. 70 (citing App. in Nos. 01-1447
and 01-1516 (CA6), p. 7336). Moreover, as JUSTICE KENNEDY concedes,
see post , at 390, between 1993 and 1998, the number of
African-American, Latino, and Native-American students in each
class at the Law School varied from 13.5 to 20.1 percent, a range
inconsistent with a quota.

															THE CHIEF JUSTICE believes that the Law School's policy conceals
an attempt to achieve racial balancing, and cites admissions data
to contend that the Law School discriminates among different groups
within the critical mass. Post , at 380-386 (dissenting
opinion). But, as THE CHIEF JUSTICE concedes, the number of
underrepresented minority students who ultimately enroll in the Law
School differs substantially from their representation in the
applicant pool and varies considerably for each group from year to
year. See post , at 385 (dissenting opinion).

															That a race-conscious admissions program does not operate as a
quota does not, by itself, satisfy the requirement of
individualized consideration. When using race as a "plus" [337] factor in university admissions, a university's admissions
program must remain flexible enough to ensure that each applicant
is evaluated as an individual and not in a way that makes an
applicant's race or ethnicity the defining feature of his or her
application. The importance of this individualized consideration in
the context of a race-conscious admissions program is paramount.
See Bakke , 438 U. S., at 318, n. 52 (opinion of Powell,
J.) (identifying the "denial . . . of th[e] right to
individualized consideration" as the "principal evil" of the
medical school's admissions program).

															Here, the Law School engages in a highly individualized,
holistic review of each applicant's file, giving serious
consideration to all the ways an applicant might contribute to a
diverse educational environment. The Law School affords this
individualized consideration to applicants of all races. There is
no policy, either de jure or de facto , of
automatic acceptance or rejection based on any single "soft"
variable. Unlike the program at issue in Gratz v. Bollinger,
ante , p. 244, the Law School awards no mechanical,
predetermined diversity "bonuses" based on race or ethnicity. See ante , at 271-272 (distinguishing a race-conscious
admissions program that automatically awards 20 points based on
race from the Harvard plan, which considered race but "did not
contemplate that any single characteristic automatically ensured a
specific and identifiable contribution to a university's
diversity"). Like the Harvard plan, the Law School's admissions
policy "is flexible enough to consider all pertinent elements of
diversity in light of the particular qualifications of each
applicant, and to place them on the same footing for consideration,
although not necessarily according them the same weight." Bakke, supra , at 317 (opinion of Powell, J.).

															We also find that, like the Harvard plan Justice Powell
referenced in Bakke , the Law School's race-conscious
admissions program adequately ensures that all factors that may
contribute to student body diversity are meaningfully considered
alongside race in admissions decisions. With re- [338] spect to the use of race itself, all underrepresented minority
students admitted by the Law School have been deemed qualified. By
virtue of our Nation's struggle with racial inequality, such
students are both likely to have experiences of particular
importance to the Law School's mission, and less likely to be
admitted in meaningful numbers on criteria that ignore those
experiences. See App. 120.

															The Law School does not, however, limit in any way the broad
range of qualities and experiences that may be considered valuable
contributions to student body diversity. To the contrary, the 1992
policy makes clear "[t]here are many possible bases for diversity
admissions," and provides examples of admittees who have lived or
traveled widely abroad, are fluent in several languages, have
overcome personal adversity and family hardship, have exceptional
records of extensive community service, and have had successful
careers in other fields. Id. , at 118-119. The Law School
seriously considers each "applicant's promise of making a notable
contribution to the class by way of a particular strength,
attainment, or characteristic-e. g., an unusual intellectual
achievement, employment experience, nonacademic performance, or
personal background." Id. , at 83-84. All applicants have
the opportunity to highlight their own potential diversity
contributions through the submission of a personal statement,
letters of recommendation, and an essay describing the ways in
which the applicant will contribute to the life and diversity of
the Law School.

															What is more, the Law School actually gives substantial weight
to diversity factors besides race. The Law School frequently
accepts nonminority applicants with grades and test scores lower
than underrepresented minority applicants (and other nonminority
applicants) who are rejected. See Brief for Respondent Bollinger et
al. 10; App. 121-122. This shows that the Law School seriously
weighs many other diversity factors besides race that can make a
real and dispositive difference for nonminority applicants as well.
By this [339] flexible approach, the Law School sufficiently takes into
account, in practice as well as in theory, a wide variety of
characteristics besides race and ethnicity that contribute to a
diverse student body. JUSTICE KENNEDY speculates that "race is
likely outcome determinative for many members of minority groups"
who do not fall within the upper range of LSAT scores and grades. Post , at 389 (dissenting opinion). But the same could be
said of the Harvard plan discussed approvingly by Justice Powell in Bakke , and indeed of any plan that uses race as one of
many factors. See 438 U. S., at 316 (" 'When the Committee on
Admissions reviews the large middle group of applicants who are
"admissible" and deemed capable of doing good work in their
courses, the race of an applicant may tip the balance in his favor'
").

															Petitioner and the United States argue that the Law School's
plan is not narrowly tailored because race-neutral means exist to
obtain the educational benefits of student body diversity that the
Law School seeks. We disagree. N arrow tailoring does not require
exhaustion of every conceivable race-neutral alternative. Nor does
it require a university to choose between maintaining a reputation
for excellence or fulfilling a commitment to provide educational
opportunities to members of all racial groups. See Wygant v.
Jackson Bd. of Ed. , 476 U. S. 267 , 280, n. 6
(1986) (alternatives must serve the interest" 'about as well' "); Richmond v. J. A. Croson Co. , 488 U. S., at
509-510 (plurality opinion) (city had a "whole array of
race-neutral" alternatives because changing requirements "would
have [had] little detrimental effect on the city's interests").
Narrow tailoring does, however, require serious, good faith
consideration of workable race-neutral alternatives that will
achieve the diversity the university seeks. See id. , at
507 (set-aside plan not narrowly tailored where "there does not
appear to have been any consideration of the use of race-neutral
means"); Wygant v. Jackson Bd. of Ed., supra , at 280, n. 6
(narrow tailoring [340] "require[s] consideration" of "lawful alternative and less
restrictive means").

															We agree with the Court of Appeals that the Law School
sufficiently considered workable race-neutral alternatives. The
District Court took the Law School to task for failing to consider
race-neutral alternatives such as "using a lottery system" or
"decreasing the emphasis for all applicants on undergraduate GPA
and LSAT scores." App. to Pet. for Cert. 251a. But these
alternatives would require a dramatic sacrifice of diversity, the
academic quality of all admitted students, or both.

															The Law School's current admissions program considers race as
one factor among many, in an effort to assemble a student body that
is diverse in ways broader than race. Because a lottery would make
that kind of nuanced judgment impossible, it would effectively
sacrifice all other educational values, not to mention every other
kind of diversity. So too with the suggestion that the Law School
simply lower admissions standards for all students, a drastic
remedy that would require the Law School to become a much different
institution and sacrifice a vital component of its educational
mission. The United States advocates "percentage plans," recently
adopted by public undergraduate institutions in Texas, Florida, and
California, to guarantee admission to all students above a certain
class-rank threshold in every high school in the State. Brief for
United States as Amicus Cu riae 14-18. The United States
does not, however, explain how such plans could work for graduate
and professional schools. Moreover, even assuming such plans are
raceneutral, they may preclude the university from conducting the
individualized assessments necessary to assemble a student body
that is not just racially diverse, but diverse along all the
qualities valued by the university. We are satisfied that the Law
School adequately considered race-neutral alternatives currently
capable of producing a critical mass without forcing the Law School
to abandon the academic selectivity that is the cornerstone of its
educational mission. [341] We acknowledge that "there are serious problems of justice
connected with the idea of preference itself." Bakke , 438
U. S., at 298 (opinion of Powell, J.). Narrow tailoring, therefore,
requires that a race-conscious admissions program not unduly harm
members of any racial group. Even remedial race-based governmental
action generally "remains subject to continuing oversight to assure
that it will work the least harm possible to other innocent persons
competing for the benefit." Id. , at 308. To be narrowly
tailored, a race-conscious admissions program must not "unduly
burden individuals who are not members of the favored racial and
ethnic groups." Metro Broadcasting, Inc. v. FCC , 497 U. S. 547 , 630 (1990)
(O'CONNOR, J., dissenting).

															We are satisfied that the Law School's admissions program does
not. Because the Law School considers "all pertinent elements of
diversity," it can (and does) select nonminority applicants who
have greater potential to enhance student body diversity over
underrepresented minority applicants. See Bakke, supra , at
317 (opinion of Powell, J.). As Justice Powell recognized in Bakke , so long as a race-conscious admissions program uses
race as a "plus" factor in the context of individualized
consideration, a rejected applicant "will not have been foreclosed from all consideration for that
seat simply because he was not the right color or had the wrong
surname . . . . His qualifications would have been
weighed fairly and competitively, and he would have no basis to
complain of unequal treatment under the Fourteenth Amendment." 438
U. S., at 318. We agree that, in the context of its individualized inquiry into
the possible diversity contributions of all applicants, the Law
School's race-conscious admissions program does not unduly harm
nonminority applicants.

															We are mindful, however, that "[a] core purpose of the
Fourteenth Amendment was to do away with all governmentally imposed
discrimination based on race." Palmore v. Si- [342] doti , 466
U. S. 429 , 432 (1984). Accordingly, race-conscious admissions
policies must be limited in time. This requirement reflects that
racial classifications, however compelling their goals, are
potentially so dangerous that they may be employed no more broadly
than the interest demands. Enshrining a permanent justification for
racial preferences would offend this fundamental equal protection
principle. We see no reason to exempt race-conscious admissions
programs from the requirement that all governmental use of race
must have a logical end point. The Law School, too, concedes that
all "race-conscious programs must have reasonable
durationallimits." Brief for Respondent Bollinger et al. 32.

															In the context of higher education, the durational requirement
can be met by sunset provisions in race-conscious admissions
policies and periodic reviews to determine whether racial
preferences are still necessary to achieve student body diversity.
Universities in California, Florida, and Washington State, where
racial preferences in admissions are prohibited by state law, are
currently engaged in experimenting with a wide variety of
alternative approaches. Universities in other States can and should
draw on the most promising aspects of these race-neutral
alternatives as they develop. Cf. United States v. Lopez , 514 U. S. 549 ,
581 (1995) (KENNEDY, J., concurring) ("[T]he States may perform
their role as laboratories for experimentation to devise various
solutions where the best solution is far from clear").

															The requirement that all race-conscious admissions programs have
a termination point "assure[s] all citizens that the deviation from
the norm of equal treatment of all racial and ethnic groups is a
temporary matter, a measure taken in the service of the goal of
equality itself." Richmond v. J. A. Croson Co. ,
488 U. S., at 510 (plurality opinion); see also Nathanson &
Bartnik, The Constitutionality of Preferential Treatment for
Minority Applicants to Professional Schools, [343] 58 Chicago Bar Rec. 282, 293 (May-June 1977) ("It would be a sad
day indeed, were America to become a quota-ridden society, with
each identifiable minority assigned proportional representation in
every desirable walk of life. But that is not the rationale for
programs of preferential treatment; the acid test of their
justification will be their efficacy in eliminating the need for
any racial or ethnic preferences at all").

															We take the Law School at its word that it would "like nothing
better than to find a race-neutral admissions formula" and will
terminate its race-conscious admissions program as soon as
practicable. See Brief for Respondent Bollinger et al. 34; Bakke, supra , at 317-318 (opinion of Powell, J.)
(presuming good faith of university officials in the absence of a
showing to the contrary). It has been 25 years since Justice Powell
first approved the use of race to further an interest in student
body diversity in the context of public higher education. Since
that time, the number of minority applicants with high grades and
test scores has indeed increased. See Tr. of Oral Arg. 43. We
expect that 25 years from now, the use of racial preferences will
no longer be necessary to further the interest approved today.

															IV

															In summary, the Equal Protection Clause does not prohibit the
Law School's narrowly tailored use of race in admissions decisions
to further a compelling interest in obtaining the educational
benefits that flow from a diverse student body. Consequently,
petitioner's statutory claims based on Title VI and 42 U. S. C. §
1981 also fail. See Bakke, supra , at 287 (opinion of
Powell, J.) ("Title VI . . . proscribe[s] only those
racial classifications that would violate the Equal Protection
Clause or the Fifth Amendment"); General Building Contractors
Assn., Inc. v. Pennsylvania , 458 U. S. 375 , 389-391
(1982) (the prohibition against discrimination in § 1981 is
coextensive with the Equal Protection Clause). The judgment [344] of the Court of Appeals for the Sixth Circuit, accordingly, is
affirmed.

															It is so ordered.

															JUSTICE GINSBURG, with whom JUSTICE BREYER joins,
concurring.

															The Court's observation that race-conscious programs "must have
a logical end point," ante , at 342, accords with the
international understanding of the office of affirmative action.
The International Convention on the Elimination of All Forms of
Racial Discrimination, ratified by the United States in 1994, see
State Dept., Treaties in Force 422-423 (June 1996), endorses
"special and concrete measures to ensure the adequate development
and protection of certain racial groups or individuals belonging to
them, for the purpose of guaranteeing them the full and equal
enjoyment of human rights and fundamental freedoms." Annex to G. A.
Res. 2106, 20 U. N. GAOR, 20th Sess., Res. Supp. (No. 14), p. 47,
U. N. Doc. A/6014, Art. 2(2) (1965). But such measures, the
Convention instructs, "shall in no case entail as a consequence the
maintenance of unequal or separate rights for different racial
groups after the objectives for which they were taken have been
achieved." Ibid.; see also Art. 1(4) (similarly providing
for temporally limited affirmative action); Convention on the
Elimination of All Forms of Discrimination against Women, Annex to
G. A. Res. 34/180, 34 U. N. GAOR, 34th Sess., Res. Supp. (No. 46),
p. 194, U. N. Doc. A/34/46, Art. 4(1) (1979) (authorizing
"temporary special measures aimed at accelerating de facto equality" that "shall be discontinued when the objectives of
equality of opportunity and treatment have been achieved").

															The Court further observes that "[i]t has been 25 years since
Justice Powell [in Regents of Univ. of Cal. v. Bakke , 438 U. S. 265 (1978)] first approved the use of race to further an interest in
student body diversity in the context of public higher education." Ante , at 343. For at least part of that [345] time, however, the law could not fairly be described as
"settled," and in some regions of the Nation, overtly
race-conscious admissions policies have been proscribed. See Hopwood v. Texas , 78 F.3d 932 (CA5 1996); cf. Wessmann v. Gittens , 160 F.3d 790 (CA1 1998); Tuttle v. Arlington Cty. School Bd. , 195 F.3d 698 (CA4 1999); Johnson v. Board of Regents of Univ. of
Ga. , 263 F.3d 1234 (CAll 2001). Moreover, it was only 25 years
before Bakke that this Court declared public school
segregation unconstitutional, a declaration that, after prolonged
resistance, yielded an end to a law-enforced racial caste system,
itself the legacy of centuries of slavery. See Brown v. Board
of Education , 347 U. S. 483 (1954); cf. Cooper v. Aaron , 358 U. S. 1 (1958).

															It is well documented that conscious and unconscious race bias,
even rank discrimination based on race, remain alive in our land,
impeding realization of our highest values and ideals. See, e.
g., Gratz v. Bollinger, ante , at 298-301 (GINSBURG, J.,
dissenting); Adarand Constructors, Inc. v. Peña , 515 U. S. 200 , 272-274
(1995) (GINSBURG, J., dissenting); Krieger, Civil Rights
Perestroika: Intergroup Relations after Affirmative Action, 86
Calif. L. Rev. 1251, 1276-1291, 1303 (1998). As to public
education, data for the years 20002001 show that 71.6% of
African-American children and 76.3% of Hispanic children attended a
school in which minorities made up a majority of the student body.
See E. Frankenberg, C. Lee, & G. Orfield, A Multiracial Society
with Segregated Schools: Are We Losing the Dream? p. 4 (Jan. 2003),
http://www.civilrightsproject.harvard.edu/research/reseg03/AreWeLosingtheDream.pdf
(as visited June 16, 2003, and available in Clerk of Court's case
file). And schools in predominantly minority communities lag far
behind others measured by the educational resources available to
them. See id. , at 11; Brief for National Urban League et
al. as Amici Curiae 11-12 (citing General Accounting
Office, PerPupil Spending Differences Between Selected Inner City
and Suburban Schools Varied by Metropolitan Area 17 (2002)). [346] However strong the public's desire for improved education
systems may be, see P. Hart & R. Teeter, A National Priority:
Americans Speak on Teacher Quality 2, 11 (2002) (public opinion
research conducted for Educational Testing Service); No Child Left
Behind Act of 2001, Pub. L. 107-110, 115 Stat. 1806, 20 U. S. C. §
7231 (2000 ed., Supp. I), it remains the current reality that many
minority students encounter markedly inadequate and unequal
educational opportunities. Despite these inequalities, some
minority students are able to meet the high threshold requirements
set for admission to the country's finest undergraduate and
graduate educational institutions. As lower school education in
minority communities improves, an increase in the number of such
students may be anticipated. From to day's vantage point, one may
hope, but not firmly forecast, that over the next generation's
span, progress toward nondiscrimination and genuinely equal
opportunity will make it safe to sunset affirmative
action.[ Footnote * ]

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

															I join the opinion of THE CHIEF JUSTICE. As he demonstrates, the
University of Michigan Law School's mystical [347] "critical mass" justification for its discrimination by race
challenges even the most gullible mind. The admissions statistics
show it to be a sham to cover a scheme of racially proportionate
admissions.

															I also join Parts I through VII of JUSTICE THOMAS'S
opinion.[ Footnote * ] I find particularly
unanswerable his central point: that the allegedly "compelling
state interest" at issue here is not the incremental "educational
benefit" that emanates from the fabled "critical mass" of minority
students, but rather Michigan's interest in maintaining a
"prestige" law school whose normal admissions standards
disproportionately exclude blacks and other minorities. If that is
a compelling state interest, everything is.

															I add the following: The "educational benefit" that the
University of Michigan seeks to achieve by racial discrimination
consists, according to the Court, of" 'cross-racial
understanding,'" ante , at 330, and" 'better prepar[ation
of] students for an increasingly diverse workforce and society,'"
ibid., all of which is necessary not only for work, but also for
good "citizenship," ante , at 331. This is not, of course,
an "educational benefit" on which students will be graded on their
law school transcript (Works and Plays Well with Others: B+) or
tested by the bar examiners (Q: Describe in 500 words or less your
cross-racial understanding). For it is a lesson of life rather than
law-essentially the same lesson taught to (or rather learned by,
for it cannot be "taught" in the usual sense) people three feet
shorter and 20 years younger than the fullgrown adults at the
University of Michigan Law School, in institutions ranging from Boy
Scout troops to public-school kindergartens. If properly considered
an "educational benefit" at all, it is surely not one that is
either uniquely relevant to law school or uniquely "teachable" in a
formal educational setting. And therefore: If it is
appropriate for the Univer- [348] sity of Michigan Law School to use racial discrimination for the
purpose of putting together a "critical mass" that will convey
generic lessons in socialization and good citizenship, surely it is
no less appropriate-indeed, particularly appropriate-for
the civil service system of the State of Michigan to do so. There,
also, those exposed to "critical masses" of certain races will
presumably become better Americans, better Michiganders, better
civil servants. And surely private employers cannot be
criticized--indeed, should be praised--if they also "teach" good
citizenship to their adult employees through a patriotic,
all-American system of racial discrimination in hiring. The
nonminority individuals who are deprived of a legal education, a
civil service job, or any job at all by reason of their skin color
will surely understand.

															Unlike a clear constitutional holding that racial preferences in
state educational institutions are impermissible, or even a clear
anticonstitutional holding that racial preferences in state
educational institutions are OK, today's Grutter-Gratz split double header seems perversely designed to prolong the
controversy and the litigation. Some future lawsuits will
presumably focus on whether the discriminatory scheme in question
contains enough evaluation of the applicant "as an individual," ante , at 337, and sufficiently avoids "separate admissions
tracks," ante , at 334, to fall under Grutter rather than Gratz. Some will focus on whether a university
has gone beyond the bounds of a "'good-faith effort'" and has so
zealously pursued its "critical mass" as to make it an
unconstitutional de facto quota system, rather than merely
"'a permissible goal.' " Ante , at 335 (quoting Sheet
Metal Workers v. EEOC , 478 U. S. 421 , 495 (1986)
(O'CONNOR, J., concurring in part and dissenting in part)). Other
lawsuits may focus on whether, in the particular setting at issue,
any educational benefits flow from racial diversity. (That issue
was not contested in Grutter; and while the opinion
accords "a degree of deference to a university's academic
decisions," ante , at 328, "deference does not imply [349] abandonment or abdication of judicial review," Miller-El v.
Cockrell , 537 U.
S. 322 , 340 (2003).) Still other suits may challenge the bona
fides of the institution's expressed commitment to the educational
benefits of diversity that immunize the discriminatory scheme in Grutter. (Tempting targets, one would suppose, will be
those universities that talk the talk of multiculturalism and
racial diversity in the courts but walk the walk of tribalism and
racial segregation on their campuses-through minority-only student
organizations, separate minority housing opportunities, separate
minority student centers, even separate minority-only graduation
ceremonies.) And still other suits may claim that the institution's
racial preferences have gone below or above the mystical
Grutter-approved "critical mass." Finally, litigation can be
expected on behalf of minority groups intentionally short changed
in the institution's composition of its generic minority "critical
mass." I do not look forward to any of these cases. The
Constitution proscribes government discrimination on the basis of
race, and state-provided education is no exception.

															JUSTICE THOMAS, with whom JUSTICE SCALIA joins as to Parts
I-VII, concurring in part and dissenting in part.

															Frederick Douglass, speaking to a group of abolitionists almost
140 years ago, delivered a message lost on to day's majority: "[I]n regard to the colored people, there is always more that is
benevolent, I perceive, than just, manifested towards us. What I
ask for the negro is not benevolence, not pity, not sympathy, but
simply justice. The American people have always been
anxious to know what they shall do with us . . . . I
have had but one answer from the beginning. Do nothing with us!
Your doing with us has already played the mischief with us. Do
nothing with us! If the apples will not remain on the tree of [350] their own strength, if they are worm-eaten at the core, if they
are early ripe and disposed to fall, let them fall! . . .
And if the negro cannot stand on his own legs, let him fall also.
All I ask is, give him a chance to stand on his own legs! Let him
alone! . . . [Y]our interference is doing him positive
injury." What the Black Man Wants: An Address Delivered in Boston,
Massachusetts, on 26 January 1865, reprinted in 4 The Frederick
Douglass Papers 59, 68 (J. Blassingame & J. McKivigan eds.
1991) (emphasis in original). Like Douglass, I believe blacks can achieve in every avenue of
American life without the meddling of university administrators.
Because I wish to see all students succeed whatever their color, I
share, in some respect, the sympathies of those who sponsor the
type of discrimination advanced by the University of Michigan Law
School (Law School). The Constitution does not, however, tolerate
institutional devotion to the status quo in admissions policies
when such devotion ripens into racial discrimination. Nor does the
Constitution countenance the unprecedented deference the Court
gives to the Law School, an approach inconsistent with the very
concept of "strict scrutiny."

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

															The majority upholds the Law School's racial discrimination not
by interpreting the people's Constitution, but by responding to a
faddish slogan of the cognoscenti. Nevertheless, I concur in part
in the Court's opinion. First, I agree with the Court insofar as
its decision, which approves of only [351] one racial classification, confirms that further use of race in
admissions remains unlawful. Second, I agree with the Court's
holding that racial discrimination in higher education admissions
will be illegal in 25 years. See ante , at 343 (stating
that racial discrimination will no longer be narrowly tailored, or
"necessary to further" a compelling state interest, in 25 years). I
respectfully dissent from the remainder of the Court's opinion and
the judgment, however, because I believe that the Law School's
current use of race violates the Equal Protection Clause and that
the Constitution means the same thing today as it will in 300
months.

															I

															The majority agrees that the Law School's racial discrimination
should be subjected to strict scrutiny. Ante , at 326.
Before applying that standard to this case, I will briefly revisit
the Court's treatment of racial classifications.

															The strict scrutiny standard that the Court purports to apply in
this case was first enunciated in Korematsu v. United
States , 323 U.
S. 214 (1944). There the Court held that "[p]ressing public
necessity may sometimes justify the existence of [racial
discrimination]; racial antagonism never can." Id. , at
216. This standard of "pressing public necessity" has more
frequently been termed "compelling governmental interest,"[ Footnote 1 ] see, e. g., Regents of Univ. of Cal. v.
Bakke , 438 U. S.
265 , 299 (1978) (opinion of Powell, J.). A majority of the
Court has validated only two circumstances where "pressing public
necessity" or a "compelling state interest" can possibly justify
racial discrimination by state actors. First, the lesson of Korematsu is that national security constitutes a
"pressing public necessity," though the government's use of race to
advance that objective must be narrowly tailored. Second, the Court
has recognized as a compelling state interest a government's effort
to remedy [352] past discrimination for which it is responsible. Richmond The contours of "pressing public necessity" can be further
discerned from those interests the Court has rejected as bases for
racial discrimination. For example, Wygant v. Jackson Bd. of
Ed. , 476 U. S.
267 (1986), found unconstitutional a collective-bargaining
agreement between a school board and a teachers' union that favored
certain minority races. The school board defended the policy on the
grounds that minority teachers provided "role models" for minority
students and that a racially "diverse" faculty would improve the
education of all students. See Brief for Respondents, O. T. 1984,
No. 84-1340, pp. 27-28; 476 U. S., at 315 (STEVENS, J., dissenting)
("[A]n integrated faculty will be able to provide benefits to the
student body that could not be provided by an all-white, or nearly
all-white, faculty"). Nevertheless, the Court found that the use of
race violated the Equal Protection Clause, deeming both asserted
state interests insufficiently compelling. Id. , at 275-276
(plurality opinion); id. , at 295 (White, J., concurring in
judgment) ("None of the interests asserted by the [school board]
. . . justify this racially discriminatory layoff
policy").[ Footnote 2 ]

															An even greater governmental interest involves the sensitive
role of courts in child custody determinations. In Palmore v.
Sidoti , 466 U.
S. 429 (1984), the Court held that even the best interests of a
child did not constitute a compelling state interest that would
allow a state court to award custody to the father because the
mother was in a mixed-race marriage. Id. , at 433 (finding
the interest "substantial" but [353] holding the custody decision could not be based on the race of
the mother's new husband).

															Finally, the Court has rejected an interest in remedying general
societal discrimination as a justification for race discrimination.
See Wygant, supra , at 276 (plurality opinion); Croson , 488 U. S., at 496-498 (plurality opinion); id. , at 520-521 (SCALIA, J., concurring in judgment).
"Societal discrimination, without more, is too amorphous a basis
for imposing a racially classified remedy" because a "court could
uphold remedies that are ageless in their reach into the past, and
timeless in their ability to affect the future." Wygant,
supra , at 276 (plurality opinion). But see Gratz v.
Bollinger, ante , p. 298 (GINSBURG, J., dissenting).

															Where the Court has accepted only national security, and
rejected even the best interests of a child, as a justification for
racial discrimination, I conclude that only those measures the
State must take to provide a bulwark against anarchy, or to prevent
violence, will constitute a "pressing public necessity." Cf. Lee v. Washington , 390 U. S. 333 , 334 (1968) (per curiam) (Black, J., concurring) (indicating that
protecting prisoners from violence might justify narrowly tailored
racial discrimination); Croson, supra , at 521 (SCALIA, J.,
concurring in judgment) ("At least where state or local action is
at issue, only a social emergency rising to the level of imminent
danger to life and limb . . . can justify [racial
discrimination]").

															The Constitution abhors classifications based on race, not only
because those classifications can harm favored races or are based
on illegitimate motives, but also because every time the government
places citizens on racial registers and makes race relevant to the
provision of burdens or benefits, it demeans us all. "Purchased at
the price of immeasurable human suffering, the equal protection
principle reflects our Nation's understanding that such
classifications ultimately have a destructive impact on the
individual and our society." [354] Adarand Constructors, Inc. v. Peña , 515 U. S. 200 , 240 (1995)
(THOMAS, J., concurring in part and concurring in judgment).

															II

															Unlike the majority, I seek to define with precision the
interest being asserted by the Law School before determining
whether that interest is so compelling as to justify racial
discrimination. The Law School maintains that it wishes to obtain
"educational benefits that flow from student body diversity," Brief
for Respondent Bollinger et al. 14. This statement must be
evaluated carefully, because it implies that both "diversity" and
"educational benefits" are components of the Law School's
compelling state interest. Additionally, the Law School's refusal
to entertain certain changes in its admissions process and status
indicates that the compelling state interest it seeks to validate
is actually broader than might appear at first glance.

															Undoubtedly there are other ways to "better" the education of
law students aside from ensuring that the student body contains a
"critical mass" of underrepresented minority students. Attaining
"diversity," whatever it means,[ Footnote 3 ] is
the [355] mechanism by which the Law School obtains educational benefits,
not an end of itself. The Law School, however, apparently believes
that only a racially mixed student body can lead to the educational
benefits it seeks. How, then, is the Law School's interest in these
allegedly unique educational "benefits" not simply the
forbidden interest in "racial balancing," ante , at 330,
that the majority expressly rejects?

															A distinction between these two ideas (unique educational
benefits based on racial aesthetics and race for its own sake) is
purely sophistic-so much so that the majority uses them
interchangeably. Compare ante , at 328 ("[T]he Law School
has a compelling interest in attaining a diverse student body"),
with ante , at 333 (referring to the "compelling interest
in securing the educational benefits of a diverse student
body" (emphasis added)). The Law School's argument, as facile as it
is, can only be understood in one way: Classroom aesthetics yields
educational benefits, racially discriminatory admissions policies
are required to achieve the right racial mix, and therefore the
policies are required to achieve the educational benefits. It is
the educational benefits that are the end, or allegedly
compelling state interest, not "diversity." But see ante ,
at 332 (citing the need for "openness and integrity of the
educational institutions that provide [legal] training" without
reference to any consequential educational benefits).

															One must also consider the Law School's refusal to entertain
changes to its current admissions system that might produce the
same educational benefits. The Law School adamantly disclaims any
race-neutral alternative that would reduce "academic selectivity,"
which would in turn "require the Law School to become a very
different institution, and to sacrifice a core part of its
educational mission." Brief for Respondent Bollinger et al. 33-36.
In other words, the Law School seeks to improve marginally the
education it offers [356] without sacrificing too much of its exclusivity and elite
status.[ Footnote 4 ]

															The proffered interest that the majority vindicates today, then,
is not simply "diversity." Instead the Court upholds the use of
racial discrimination as a tool to advance the Law School's
interest in offering a marginally superior education while
maintaining an elite institution. Unless each constituent part of
this state interest is of pressing public necessity, the Law
School's use of race is unconstitutional. I find each of them to
fall far short of this standard.

															III

															A

															A close reading of the Court's opinion reveals that all of its
legal work is done through one conclusory statement: The Law School
has a "compelling interest in securing the educational benefits of
a diverse student body." Ante , at 333. No serious effort
is made to explain how these benefits fit with the state interests
the Court has recognized (or rejected) as compelling, see Part I, supra , or to place any theoretical constraints on an
enterprising court's desire to discover still more justifications
for racial discrimination. In the absence of any explanation, one
might expect the Court to fall back on the judicial policy of stare decisis. But the Court eschews even this weak
defense of its holding, shunning an analysis of the extent to which
Justice Powell's opinion in Regents of Univ. of Cal. v.
Bakke , 438 U. S.
265 (1978), [357] is binding, ante , at 325, in favor of an unfounded
wholesale adoption of it.

															Justice Powell's opinion in Bakke and the Court's
decision today rest on the fundamentally flawed proposition that
racial discrimination can be contextualized so that a goal, such as
classroom aesthetics, can be compelling in one context but not in
another. This "we know it when we see it" approach to evaluating
state interests is not capable of judicial application. Today, the
Court insists on radically expanding the range of permissible uses
of race to something as trivial (by comparison) as the assembling
of a law school class. I can only presume that the majority's
failure to justify its decision by reference to any principle
arises from the absence of any such principle. See Part VI, infra. B

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

															1

															While legal education at a public university may be good policy
or otherwise laudable, it is obviously not a pressing public
necessity when the correct legal standard is applied. Additionally,
circumstantial evidence as to whether a state activity is of
pressing public necessity can be obtained by asking whether all
States feel compelled to engage in that activity. Evidence that
States, in general, engage in a certain activity by no means
demonstrates that the activity constitutes a pressing public
necessity, given the expansive role of government in to day's
society. The fact that some fraction of the States reject a
particular enterprise, however, creates a presumption that the
enterprise itself is not a compelling state interest. In this
sense, the absence of a public, American Bar Association (ABA)
accredited, law school in [358] Alaska, Delaware, Massachusetts, New Hampshire, and Rhode
Island, see ABA-LSAC Official Guide to ABAApproved Law Schools (w.
Margolis, B. Gordon, J. Puskarz, & D. Rosenlieb eds. 2004)
(hereinafter ABA-LSAC Guide), provides further evidence that
Michigan's maintenance of the Law School does not constitute a
compelling state interest.

															2

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

															This Court has limited the scope of equal protection review to
interests and activities that occur within that State's
jurisdiction. The Court held in Missouri ex rel. Gaines v.
Canada , 305 U.
S. 337 (1938), that Missouri could not satisfy the demands of
"separate but equal" by paying for legal training of blacks at
neighboring state law schools, while maintaining a segregated law
school within the State. The equal protection "obligation is imposed by the Constitution upon the States
severally as governmental entities,-each responsible for its own
laws establishing the rights and duties of persons within its
borders. It is an obligation the burden of which cannot be cast by
one State upon another, and no State can be excused from
performance by what another State may do or fail to do. That separate responsibility of each State within its own sphere is
of the essence of statehood maintained under our dual system." Id. , at 350 (emphasis added). The Equal Protection Clause, as interpreted by the Court in Gaines , does not permit States to justify racial
discrimination on the basis of what the rest of the Nation "may do
or fail to do." The only interests that can satisfy the Equal [359] Protection Clause's demands are those found within a State's
jurisdiction.

															The only cognizable state interests vindicated by operating a
public law school are, therefore, the education of that State's
citizens and the training of that State's lawyers. James Campbell's
address at the opening of the Law Department at the University of
Michigan on October 3, 1859, makes this clear: "It not only concerns the State that every one should
have all reasonable facilities for preparing himself for any honest
position in life to which he may aspire, but it also concerns the community that the Law should be taught and understood
. . . . There is not an office in the State in which serious legal inquiries may not frequently arise
. . . . In all these matters, public and private
rights are constantly involved and discussed, and ignorance of the
Law has frequently led to results deplorable and alarming
. . . . [I]n the history of this State , in
more than one instance, that ignorance has led to unlawful
violence, and the shedding of innocent blood." E. Brown, Legal
Education at Michigan 1859-1959, pp. 404-406 (1959) (emphasis
added). The Law School today, however, does precious little training of
those attorneys who will serve the citizens of Michigan. In 2002,
graduates of the Law School made up less than 6% of applicants to
the Michigan bar, Michigan Lawyers Weekly, available at
http://www.michiganlawyersweekly.com/barpassers0202.cfm,barpassers0702.cfm
(all Internet materials as visited June 13, 2003, and available in
Clerk of Court's case file), even though the Law School's graduates
constitute nearly 30% of all law students graduating in Michigan. Ibid. Less than 16% of the Law School's graduating class
elects to stay in Michigan after law school. ABA-LSAC Guide 427.
Thus, while a mere 27% of the Law School's 2002 entering class is
from Michigan, see University of [360] Michigan Law School Website, available at
http://www.law.umich.edu/prospectivestudents/Admissions/index.htm,
only half of these, it appears, will stay in Michigan.

															In sum, the Law School trains few Michigan residents and
overwhelmingly serves students, who, as lawyers, leave the State of
Michigan. By contrast, Michigan's other public law school, Wayne
State University Law School, sends 88% of its graduates on to serve
the people of Michigan. ABA-LSAC Guide 775. It does not take a
social scientist to conclude that it is precisely the Law School's
status as an elite institution that causes it to be a waystation
for the rest of the country's lawyers, rather than a training
ground for those who will remain in Michigan. The Law School's
decision to be an elite institution does little to advance the
welfare of the people of Michigan or any cognizable interest of the
State of Michigan.

															Again, the fact that few States choose to maintain elite law
schools raises a strong inference that there is nothing compelling
about elite status. Arguably, only the public law schools of the
University of Texas, the University of California, Berkeley (Boalt
Hall), and the University of Virginia maintain the same reputation
for excellence as the Law School.[ Footnote 5 ] Two
of these States, Texas and California, are so large that they could
reasonably be expected to provide elite legal training at a
separate law school to students who will, in fact, stay in the
State and provide legal services to its citizens. And these two
schools far outshine the Law School in producing in-state lawyers.
The University of Texas, for example, sends over three-fourths of
its graduates on to work in the State of Texas, vindicating the
State's interest (compelling or not) in training Texas' lawyers. Id. , at 691. [361] 3

															Finally, even if the Law School's racial tinkering produces
tangible educational benefits, a marginal improvement in legal
education cannot justify racial discrimination where the Law School
has no compelling interest either in its existence or in its
current educational and admissions policies.

															IV

															The interest in remaining elite and exclusive that the majority
thinks so obviously critical requires the use of admissions
"standards" that, in turn, create the Law School's "need" to
discriminate on the basis of race. The Court validates these
admissions standards by concluding that alternatives that would
require "a dramatic sacrifice of . . . the academic
quality of all admitted students," ante , at 340, need not
be considered before racial discrimination can be
employed.[ Footnote 6 ] In the majority's view,
such methods are not required by the "narrow tailoring" prong of
strict scrutiny because that inquiry demands, in this context, that
any race-neutral alternative work "'about as well.'" Ante ,
at 339 (quoting Wygant , 476 U. S., at 280, n. 6). The
majority errs, however, because race-neutral alternatives must only
be "workable," ante , at 339, and do "about as well" in
vindicating the compelling state interest. The Court never
explicitly holds that the Law School's desire to retain the status
quo in "academic selectivity" is itself a compelling state
interest, and, as I have demonstrated, it is not. See Part III-B, supra. Therefore, the Law School should be forced to
choose between its classroom aesthetic and its exclusionary
admissions system-it cannot have it both ways.

															With the adoption of different admissions methods, such as
accepting all students who meet minimum qualifications, [362] see Brief for United States as Amicus Curiae 13-14, the
Law School could achieve its vision of the racially aesthetic
student body without the use of racial discrimination. The Law
School concedes this, but the Court holds, implicitly and under the
guise of narrow tailoring, that the Law School has a compelling
state interest in doing what it wants to do. I cannot agree. First,
under strict scrutiny, the Law School's assessment of the benefits
of racial discrimination and devotion to the admissions status quo
are not entitled to any sort of deference, grounded in the First
Amendment or anywhere else. Second, even if its "academic
selectivity" must be maintained at all costs along with racial
discrimination, the Court ignores the fact that other top law
schools have succeeded in meeting their aesthetic demands without
racial discrimination.

															A

															The Court bases its unprecedented deference to the Law School-a
deference antithetical to strict scrutiny-on an idea of
"educational autonomy" grounded in the First Amendment. Ante , at 329. In my view, there is no basis for a right of
public universities to do what would otherwise violate the Equal
Protection Clause.

															The constitutionalization of "academic freedom" began with the
concurring opinion of Justice Frankfurter in Sweezy v. New
Hampshire , 354
U. S. 234 (1957). Sweezy, a Marxist economist, was investigated
by the Attorney General of New Hampshire on suspicion of being a
subversive. The prosecution sought, inter alia , the
contents of a lecture Sweezy had given at the University of New
Hampshire. The Court held that the investigation violated due
process. Id. , at 254.

															Justice Frankfurter went further, however, reasoning that the
First Amendment created a right of academic freedom that prohibited
the investigation. Id. , at 256-267 (opinion concurring in
result). Much of the rhetoric in Justice Frankfurter's opinion was
devoted to the personal right of Sweezy to free speech. See, e.g., id. , at 265 ("For a citizen to be [363] made to forego even a part of so basic a liberty as his
political autonomy, the subordinating interest of the State must be
compelling"). Still, claiming that the United States Reports "need
not be burdened with proof," Justice Frankfurter also asserted that
a "free society" depends on "free universities" and "[t]his means
the exclusion of governmental intervention in the intellectual life
of a university." Id. , at 262. According to Justice
Frankfurter: "It is the business of a university to provide that
atmosphere which is most conducive to speculation, experiment and
creation. It is an atmosphere in which there prevail 'the four
essential freedoms' of a university-to determine for itself on
academic grounds who may teach, what may be taught, how it shall be
taught, and who may be admitted to study." Id. , at 263
(citation omitted).

															In my view, "[i]t is the business" of this Court to explain
itself when it cites provisions of the Constitution to invent new
doctrines-including the idea that the First Amendment authorizes a
public university to do what would otherwise violate the Equal
Protection Clause. The majority fails in its summary effort to
prove this point. The only source for the Court's conclusion that
public universities are entitled to deference even within the
confines of strict scrutiny is Justice Powell's opinion in Bakke. Justice Powell, for his part, relied only on
Justice Frankfurter's opinion in Sweezy and the Court's
decision in Keyishian v. Board of Regents of Univ. of State
of N. Y. , 385 U. S. 589 (1967), to
support his view that the First Amendment somehow protected a
public university's use of race in admissions. Bakke , 438
U. S., at 312. Keyishian provides no answer to the
question whether the Fourteenth Amendment's restrictions are
relaxed when applied to public universities. In that case, the
Court held that state statutes and regulations designed to prevent
the "appointment or retention of 'subversive' persons in state
employment," 385 U. S., at 592, violated the First Amendment for
vagueness. The statutes covered all public employees and were not
invalidated only as applied to uni- [364] versity faculty members, although the Court appeared sympathetic
to the notion of academic freedom, calling it a "special concern of
the First Amendment." Id. , at 603. Again, however, the
Court did not relax any independent constitutional restrictions on
public universities.

															I doubt that when Justice Frankfurter spoke of governmental
intrusions into the independence of universities, he was thinking
of the Constitution's ban on racial discrimination. The majority's
broad deference to both the Law School's judgment that racial
aesthetics leads to educational benefits and its stubborn refusal
to alter the status quo in admissions methods finds no basis in the
Constitution or decisions of this Court.

															B 1

															The Court's deference to the Law School's conclusion that its
racial experimentation leads to educational benefits will, if
adhered to, have serious collateral consequences. The Court relies
heavily on social science evidence to justify its deference. See ante , at 330-332; but see also Rothman, Lipset, &
Nevitte, Racial Diversity Reconsidered, 151 Public Interest 25
(2003) (finding that the racial mix of a student body produced by
racial discrimination of the type practiced by the Law School in
fact hinders students' perception of academic quality). The Court
never acknowledges, however, the growing evidence that racial (and
other sorts) of heterogeneity actually impairs learning among black
students. See, e.g. , Flowers & Pascarella, Cognitive
Effects of College Racial Composition on African American Students
After 3 Years of College, 40 J. of College Student Development 669,
674 (1999) (concluding that black students experience superior
cognitive development at Historically Black Colleges (HBCs) and
that, even among blacks, "a substantial diversity moderates the
cognitive effects of attending an HBC"); Allen, The Color of
Success: African-American College Stu- [365] dent Outcomes at Predominantly White and Historically Black
Public Colleges and Universities, 62 Harv. Educ. Rev. 26, 35 (1992)
(finding that black students attending HBCs report higher academic
achievement than those attending predominantly white colleges).

															At oral argument in Gratz v. Bollinger, ante , p. 244,
counsel for respondents stated that "most every single one of [the
HBCs] do have diverse student bodies." Tr. of Oral Arg. in No.
02-516, p. 52. What precisely counsel meant by "diverse" is
indeterminate, but it is reported that in 2000 at Morehouse
College, one of the most distinguished HBCs in the Nation, only
0.1% of the student body was white, and only 0.2% was Hispanic.
College Admissions Data Handbook 2002-2003, p. 613 (43d ed. 2002)
(hereinafter College Admissions Data Handbook). And at Mississippi
Valley State University, a public HBC, only 1.1% of the freshman
class in 2001 was white. Id. , at 603. If there is a
"critical mass" of whites at these institutions, then "critical
mass" is indeed a very small proportion.

															The majority grants deference to the Law School's "assessment
that diversity will, in fact, yield educational benefits," ante , at 328. It follows, therefore, that an HBC's
assessment that racial homogeneity will yield educational benefits
would similarly be given deference.[ Footnote 7 ]
An HBC's rejection of white applicants in order to maintain racial
homogeneity seems permissible, therefore, under the majority's view
of the Equal Protection Clause. But see United States v.
Fordice , 505 U.
S. 717 , 748 (1992) (THOMAS, J., concurring) ("Obviously, a
State cannot maintain . . . traditions by closing
particular institutions, historically white or historically black,
to particular racial groups"). Contained within today's majority
opinion is the seed of a new constitutional [366] justification for a concept I thought long and rightly
rejected-racial segregation.

															2

															Moreover one would think, in light of the Court's decision in United States v. Virginia , 518 U. S. 515 (1996),
that before being given license to use racial discrimination, the
Law School would be required to radically reshape its admissions
process, even to the point of sacrificing some elements of its
character. In Virginia , a majority of the Court, without a
word about academic freedom, accepted the all-male Virginia
Military Institute's (VMI) representation that some changes in its
"adversative" method of education would be required with the
admission of women, id. , at 540, but did not defer to
VMI's judgment that these changes would be too great. Instead, the
Court concluded that they were "manageable." Id. , at 551,
n. 19. That case involved sex discrimination, which is subjected to
intermediate, not strict, scrutiny. Id. , at 533; Craig
v. Boren , 429 U.
S. 190 , 197 (1976). So in Virginia , where the standard
of review dictated that greater flexibility be granted to VMI's
educational policies than the Law School deserves here, this Court
gave no deference. Apparently where the status quo being defended
is that of the elite establishment-here the Law School-rather than
a less fashionable Southern military institution, the Court will
defer without serious inquiry and without regard to the applicable
legal standard.

															C Virginia is also notable for the fact that the Court
relied on the "experience" of formerly single-sex institutions,
such as the service academies, to conclude that admission of women
to VMI would be "manageable." 518 U. S., at 544545. Today, however,
the majority ignores the "experience" of those institutions that
have been forced to abandon explicit racial discrimination in
admissions. [367] The sky has not fallen at Boalt Hall at the University of
California, Berkeley, for example. Prior to Proposition 209's
adoption of Cal. Const., Art. 1, § 31(a), which bars the State from
"grant[ing] preferential treatment . . . on the basis of
race . . . in the operation of . . . public
education,"[ Footnote 8 ] Boalt Hall enrolled 20
blacks and 28 Hispanics in its first-year class for 1996. In 2002,
without deploying express racial discrimination in admissions,
Boalt's entering class enrolled 14 blacks and 36
Hispanics.[ Footnote 9 ] University of California
Law and Medical School Enrollments, available at
http://www.ucop.edu/acadadv/datamgmt/lawmed/law-enrolls-eth2.html.
Total underrepresented minority student enrollment at Boalt Hall
now exceeds 1996 levels. Apparently the Law School cannot be
counted on to be as resourceful. The Court is willfully blind to
the very real experience in California and elsewhere, which raises
the inference that institutions with "reputation[s] for
excellence," ante , at 339, rivaling the Law School's have
satisfied their sense of mission without resorting to prohibited
racial discrimination.

															V

															Putting aside the absence of any legal support for the
majority's reflexive deference, there is much to be said for the
view that the use of tests and other measures to "predict" academic
performance is a poor substitute for a system that gives every
applicant a chance to prove he can succeed in the study of law. The
rallying cry that in the absence of racial discrimination in
admissions there would be a true [368] meritocracy ignores the fact that the entire process is poisoned
by numerous exceptions to "merit." For example, in the national
debate on racial discrimination in higher education admissions,
much has been made of the fact that elite institutions utilize a
so-called "legacy" preference to give the children of alumni an
advantage in admissions. This, and other, exceptions to a "true"
meritocracy give the lie to protestations that merit admissions are
in fact the order of the day at the Nation's universities. The
Equal Protection Clause does not, however, prohibit the use of
unseemly legacy preferences or many other kinds of arbitrary
admissions procedures. What the Equal Protection Clause does
prohibit are classifications made on the basis of race. So while
legacy preferences can stand under the Constitution, racial
discrimination cannot.[ Footnote 10 ] I will not
twist the Constitution to invalidate legacy preferences or
otherwise impose my vision of higher education admissions on the
Nation. The majority should similarly stay its impulse to validate
faddish racial discrimination the Constitution clearly forbids.

															In any event, there is nothing ancient, honorable, or
constitutionally protected about "selective" admissions. The
University of Michigan should be well aware that alternative
methods have historically been used for the admission of students,
for it brought to this country the German certificate system in the
late-19th century. See H. Wechsler, The Qualified Student 16-39
(1977) (hereinafter Qualified Student). Under this system, a
secondary school was certified by a university so that any graduate
who completed the course offered by the school was offered
admission to the university. The certification regime supplemented,
and later virtually replaced (at least in the Midwest), the prior
regime of rigor- [369] ous subject-matter entrance examinations. Id. , at
57-58. The facially race-neutral "percent plans" now used in Texas,
California, and Florida, see ante , at 340, are in many
ways the descendents of the certificate system.

															Certification was replaced by selective admissions in the
beginning of the 20th century, as universities sought to exercise
more control over the composition of their student bodies. Since
its inception, selective admissions has been the vehicle for
racial, ethnic, and religious tinkering and experimentation by
university administrators. The initial driving force for the
relocation of the selective function from the high school to the
universities was the same desire to select racial winners and
losers that the Law School exhibits today. Columbia, Harvard, and
others infamously determined that they had "too many" Jews, just as
today the Law School argues it would have "too many" whites if it
could not discriminate in its admissions process. See Qualified
Student 155-168 (Columbia); H. Broun & G. Britt, Christians
Only: A Study in Prejudice 53-54 (1931) (Harvard).

															Columbia employed intelligence tests precisely because Jewish
applicants, who were predominantly immigrants, scored worse on such
tests. Thus, Columbia could claim (falsely) that" '[w]e have not
eliminated boys because they were Jews and do not propose to do so.
We have honestly attempted to eliminate the lowest grade of
applicant [through the use of intelligence testing] and it turns
out that a good many of the low grade men are New York City
Jews.''' Letter from Herbert E. Hawkes, dean of Columbia College,
to E. B. Wilson, June 16, 1922 (reprinted in Qualified Student
160-161). In other words, the tests were adopted with full
knowledge of their disparate impact. Cf. DeFunis v.
Odegaard , 416 U.
S. 312 , 335 (1974) (per curiam) (Douglas, J.,
dissenting).

															Similarly no modern law school can claim ignorance of the poor
performance of blacks, relatively speaking, on the Law School
Admission Test (LSAT). Nevertheless, law schools [370] continue to use the test and then attempt to "correct" for black
underperformance by using racial discrimination in admissions so as
to obtain their aesthetic student body. The Law School's continued
adherence to measures it knows produce racially skewed results is
not entitled to deference by this Court. See Part IV; supra. The Law School itself admits that the test is
imperfect, as it must, given that it regularly admits students who
score at or below 150 (the national median) on the test. See App.
156-203 (showing that, between 1995 and 2000, the Law School
admitted 37 students-27 of whom were black; 31 of whom were
"underrepresented minorities"-with LSAT scores of 150 or lower).
And the Law School's amici cannot seem to agree on the
fundamental question whether the test itself is useful. Compare
Brief for Law School Admission Council as Amicus Curiae 12
("LSAT scores . . . are an effective predictor of
students' performance in law school") with Brief for Harvard Black
Law Students Association et al. as Amici Curiae 27
("Whether [the LSAT] measure[s] objective merit . . . is
certainly questionable").

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

															The Court will not even deign to make the Law School try other
methods, however, preferring instead to grant a 25-year license to
violate the Constitution. And the same Court that had the courage
to order the desegregation of all public schools in the South now
fears, on the basis of plati- [371] tudes rather than principle, to force the Law School to abandon
a decidedly imperfect admissions regime that provides the basis for
racial discrimination.

															VI

															The absence of any articulated legal principle supporting the
majority's principal holding suggests another rationale. I believe
what lies beneath the Court's decision today are the benighted
notions that one can tell when racial discrimination benefits
(rather than hurts) minority groups, see Adarand , 515 U.
S., at 239 (SCALIA, J., concurring in part and concurring in
judgment), and that racial discrimination is necessary to remedy
general societal ills. This Court's precedents supposedly settled
both issues, but clearly the majority still cannot commit to the
principle that racial classifications are per se harmful
and that almost no amount of benefit in the eye of the beholder can
justify such classifications.

															Putting aside what I take to be the Court's implicit rejection
of Adarand's holding that beneficial and burdensome racial
classifications are equally invalid, I must contest the notion that
the Law School's discrimination benefits those admitted as a result
of it. The Court spends considerable time discussing the impressive
display of amicus support for the Law School in this case
from all corners of society. Ante , at 330-331. But nowhere
in any of the filings in this Court is any evidence that the
purported "beneficiaries" of this racial discrimination prove
themselves by performing at (or even near) the same level as those
students who receive no preferences. Cf. Thernstrom &
Thernstrom, Reflections on the Shape of the River, 46 UCLA L. Rev.
1583, 1605-1608 (1999) (discussing the failure of defenders of
racial discrimination in admissions to consider the fact that its
"beneficiaries" are underperforming in the classroom).

															The silence in this case is deafening to those of us who view
higher education's purpose as imparting knowledge and skills to
students, rather than a communal, rubber-stamp, [372] credentialing process. The Law School is not looking for those
students who, despite a lower LSAT score or undergraduate grade
point average, will succeed in the study of law. The Law School
seeks only a facade-it is sufficient that the class looks right,
even if it does not perform right.

															The Law School tantalizes unprepared students with the promise
of a University of Michigan degree and all of the opportunities
that it offers. These overmatched students take the bait, only to
find that they cannot succeed in the cauldron of competition. And
this mismatch crisis is not restricted to elite institutions. See
T. Sowell, Race and Culture 176-177 (1994) ("Even if most minority
students are able to meet the normal standards at the 'average'
range of colleges and universities, the systematic mismatching of
minority students begun at the top can mean that such students are
generally overmatched throughout all levels of higher education").
Indeed, to cover the tracks of the aestheticists, this cruel farce
of racial discrimination must continuein selection for the Michigan
Law Review, see University of Michigan Law School Student Handbook
2002-2003, pp. 39-40 (noting the presence of a "diversity plan" for
admission to the review), and in hiring at law firms and for
judicial clerks hips-until the "beneficiaries" are no longer
tolerated. While these students may graduate with law degrees,
there is no evidence that they have received a qualitatively better
legal education (or become better lawyers) than if they had gone to
a less "elite" law school for which they were better prepared. And
the aestheticists will never address the real problems facing
"underrepresented minorities,"[ Footnote 11 ]
instead continuing their social experiments on other people's
children. [373] Beyond the harm the Law School's racial discrimination visits
upon its test subjects, no social science has disproved the notion
that this discrimination "engender[s] attitudes of superiority or,
alternatively, provoke[s] resentment among those who believe that
they have been wronged by the government's use of race." Adarand , 515 U. S., at 241 (THOMAS, J., concurring in part
and concurring in judgment). "These programs stamp minorities with
a badge of inferiority and may cause them to develop dependencies
or to adopt an attitude that they are 'entitled' to preferences." Ibid. It is uncontested that each year, the Law School admits a
handful of blacks who would be admitted in the absence of racial
discrimination. See Brief for Respondent Bollinger et al. 6. Who
can differentiate between those who belong and those who do not?
The majority of blacks are admitted to the Law School because of
discrimination, and because of this policy all are tarred as
undeserving. This problem of stigma does not depend on determinacy
as to whether those stigmatized are actually the "beneficiaries" of
racial discrimination. When blacks take positions in the highest
places of government, industry, or academia, it is an open question
today whether their skin color played a part in their advancement.
The question itself is the stigma-because either racial
discrimination did playa role, in which case the person may be
deemed "otherwise unqualified," or it did not, in which case asking
the question itself unfairly marks those blacks who would succeed
without discrimination. Is this what the Court means by "visibly
open"? Ante , at 332.

															Finally, the Court's disturbing reference to the importance of
the country's law schools as training grounds meant to cultivate "a
set of leaders with legitimacy in the eyes of the citizenry," ibid. , through the use of racial discrimination deserves
discussion. As noted earlier, the Court has soundly [374] rejected the remedying of societal discrimination as a
justification for governmental use of race. Wygant , 476 U.
S., at 276 (plurality opinion); Croson , 488 U. S., at 497
(plurality opinion); id. , at 520-521 (SCALIA, J.,
concurring in judgment). For those who believe that every racial
disproportionality in our society is caused by some kind of racial
discrimination, there can be no distinction between remedying
societal discrimination and erasing racial disproportionalities in
the country's leadership caste. And if the lack of proportional
racial representation among our leaders is not caused by societal
discrimination, then "fixing" it is even less of a pressing public
necessity.

															The Court's civics lesson presents yet another example of
judicial selection of a theory of political representation based on
skin color-an endeavor I have previously rejected. See Holder
v. Hall , 512 U.
S. 874 , 899 (1994) (THOMAS, J., concurring in judgment). The
majority appears to believe that broader utopian goals justify the
Law School's use of race, but "[t]he Equal Protection Clause
commands the elimination of racial barriers, not their creation in
order to satisfy our theory as to how society ought to be
organized." DeFunis , 416 U. S., at 342 (Douglas, J.,
dissenting).

															VII

															As the foregoing makes clear, I believe the Court's opinion to
be, in most respects, erroneous. I do, however, find two points on
which I agree.

															A

															First, I note that the issue of unconstitutional racial
discrimination among the groups the Law School prefers is not
presented in this case, because petitioner has never argued that
the Law School engages in such a practice, and the Law School
maintains that it does not. See Brief for Respondent Bollinger et
al. 32, n. 50, and 6-7, n. 7. I join the Court's opinion insofar as
it confirms that this type of racial discrimination remains
unlawful. Ante , at 326-327. Under to day's [375] decision, it is still the case that racial discrimination that
does not help a university to enroll an unspecified number, or
"critical mass," of underrepresented minority students is
unconstitutional. Thus, the Law School may not discriminate in
admissions between similarly situated blacks and Hispanics, or
between whites and Asians. This is so because preferring black to
Hispanic applicants, for instance, does nothing to further the
interest recognized by the majority today.[ Footnote
12 ] Indeed, the majority describes such racial balancing as
"patently unconstitutional." Ante , at 330. Like the Court, ante , at 336, I express no opinion as to whether the Law
School's current admissions program runs afoul of this
prohibition.

															B

															The Court also holds that racial discrimination in admissions
should be given another 25 years before it is deemed no longer
narrowly tailored to the Law School's fabricated compelling state
interest. Ante , at 343. While I agree that in 25 years the
practices of the Law School will be illegal, they are, for the
reasons I have given, illegal now. The majority does not and cannot
rest its time limitation on any evidence that the gap in
credentials between black and white [376] students is shrinking or will be gone in that
timeframe.[ Footnote 13 ] In recent years there
has been virtually no change, for example, in the proportion of law
school applicants with LSAT scores of 165 and higher who are
black.[ Footnote 14 ] In 1993 blacks constituted
1.1% of law school applicants in that score range, though they
represented 11.1% of all applicants. Law School Admission Council,
National Statistical Report (1994) (hereinafter LSAC Statistical
Report). In 2000 the comparable numbers were 1.0% and 11.3%. LSAC
Statistical Report (2001). No one can seriously contend, and the
Court does not, that the racial gap in academic credentials will
disappear in 25 years. Nor is the Court's holding that racial
discrimination will be unconstitutional in 25 years made contingent
on the gap closing in that time.[ Footnote
15 ] [377] Indeed, the very existence of racial discrimination of the type
practiced by the Law School may impede the narrowing of the LSAT
testing gap. An applicant's LSAT score can improve dramatically
with preparation, but such preparation is a cost, and there must be
sufficient benefits attached to an improved score to justify
additional study. Whites scoring between 163 and 167 on the LSAT
are routinely rejected by the Law School, and thus whites aspiring
to admission at the Law School have every incentive to improve
their score to levels above that range. See App. 199 (showing that
in 2000, 209 out of 422 white applicants were rejected in this
scoring range). Blacks, on the other hand, are nearly guaranteed
admission if they score above 155. Id. , at 198 (showing
that 63 out of 77 black applicants are accepted with LSAT scores
above 155). As admission prospects approach certainty, there is no
incentive for the black applicant to continue to prepare for the
LSAT once he is reasonably assured of achieving the requisite
score. It is far from certain that the LSAT test-taker's behavior
is responsive to the Law School's admissions policies.[ Footnote 16 ] Nevertheless, the possibility remains that
this racial discrimination will help fulfill the bigot's prophecy
about black underperformance-just as it confirms the conspiracy
theorist's belief that "institutional racism" is at fault for every
racial disparity in our society.

															I therefore can understand the imposition of a 25-year time
limit only as a holding that the deference the Court pays to the
Law School's educational judgments and refusal to change its
admissions policies will itself expire. At that point these
policies will clearly have failed to "'eliminat[e] [378] the [perceived] need for any racial or ethnic'" discrimination
because the academic credentials gap will still be there. Ante , at 343 (quoting Nathanson & Bartnik, The
Constitutionality of Preferential Treatment for Minority Applicants
to Professional Schools, 58 Chicago Bar Rec. 282, 293 (MayJune
1977)). The Court defines this time limit in terms of narrow
tailoring, see ante , at 343, but I believe this arises
from its refusal to define rigorously the broad state interest
vindicated today. Cf. Part II, supra. With these
observations, I join the last sentence of Part III of the opinion
of the Court.

															***

															For the immediate future, however, the majority has placed its imprimatur on a practice that can only weaken the
principle of equality embodied in the Declaration of Independence
and the Equal Protection Clause. "Our Constitution is color-blind,
and neither knows nor tolerates classes among citizens." Plessy
v. Ferguson , 163
U. S. 537 , 559 (1896) (Harlan, J., dissenting). It has been
nearly 140 years since Frederick Douglass asked the intellectual
ancestors of the Law School to "[d]o nothing with us!" and the
Nation adopted the Fourteenth Amendment. Now we must wait another
25 years to see this principle of equality vindicated. I therefore
respectfully dissent from the remainder of the Court's opinion and
the judgment.

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

															I agree with the Court that, "in the limited circumstance when
drawing racial distinctions is permissible," the government must
ensure that its means are narrowly tailored to achieve a compelling
state interest. Ante , at 333; see also Fullilove v.
Klutznick , 448
U. S. 448 , 498 (1980) (Powell, J., concurring) ("[E]ven if the
government proffers a compelling interest to support reliance upon
a suspect classification, the means selected must be narrowly drawn
to fulfill the govern- [379] mental purpose"). I do not believe, however, that the University
of Michigan Law School's (Law School) means are narrowly tailored
to the interest it asserts. The Law School claims it must take the
steps it does to achieve a "'critical mass'" of underrepresented
minority students. Brief for Respondent Bollinger et al. 13. But
its actual program bears no relation to this asserted goal.
Stripped of its "critical mass" veil, the Law School's program is
revealed as a naked effort to achieve racial balancing.

															As we have explained many times, '" "[a]ny preference based on
racial or ethnic criteria must necessarily receive a most searching
examination."'" Adarand Constructors, Inc. v. Peña , 515 U. S. 200 ,
223 (1995) (quoting Wygant v. Jackson Bd. of Ed. , 476 U. S. 267 , 273 (1986)
(plurality opinion of Powell, J.)). Our cases establish that, in
order to withstand this demanding inquiry, respondents must
demonstrate that their methods of using race "'fit'" a compelling
state interest "with greater precision than any alternative means." Id. , at 280, n. 6; Regents of Univ. of Cal. v.
Bakke , 438 U. S.
265 , 299 (1978) (opinion of Powell, J.) ("When [political
judgments] touch upon an individual's race or ethnic background, he
is entitled to a judicial determination that the burden he is asked
to bear on that basis is precisely tailored to serve a compelling
governmental interest").

															Before the Court's decision today, we consistently applied the
same strict scrutiny analysis regardless of the government's
purported reason for using race and regardless of the setting in
which race was being used. We rejected calls to use more lenient
review in the face of claims that race was being used in "good
faith" because" '[m]ore than good motives should be required when
government seeks to allocate its resources by way of an explicit
racial classification systern.'" Adarand, supra , at 226; Fullilove, supra , at 537 (STEVENS, J., dissenting)
("Racial classifications are simply too pernicious to permit any
but the most exact connection between justification and
classification"). We likewise re- [380] jected calls to apply more lenient review based on the
particular setting in which race is being used. Indeed, even in the
specific context of higher education, we emphasized that
"constitutional limitations protecting individual rights may not be
disregarded." Bakke, supra , at 314.

															Although the Court recites the language of our strict scrutiny
analysis, its application of that review is unprecedented in its
deference.

															Respondents' asserted justification for the Law School's use of
race in the admissions process is "obtaining 'the educational
benefits that flow from a diverse student body.'" Ante , at
328 (quoting Brief for Respondent Bollinger et al. i). They contend
that a "critical mass" of underrepresented minorities is necessary
to further that interest. Ante , at 330. Respondents and
school administrators explain generally that "critical mass" means
a sufficient number of underrepresented minority students to
achieve several objectives:

															To ensure that these minority students do not feel isolated or
like spokespersons for their race; to provide adequate
opportunities for the type of interaction upon which the
educational benefits of diversity depend; and to challenge all
students to think critically and reexamine stereotypes. See App. to
Pet. for Cert. 211a; Brief for Respondent Bollinger et al. 26.
These objectives indicate that "critical mass" relates to the size
of the student body. Id. , at 5 (claiming that the Law
School has enrolled "critical mass," or "enough minority students
to provide meaningful integration of its classrooms and residence
halls"). Respondents further claim that the Law School is achieving
"critical mass." Id. , at 4 (noting that the Law School's
goals have been "greatly furthered by the presence of
. . . a 'critical mass' of" minority students in the
student body).

															In practice, the Law School's program bears little or no
relation to its asserted goal of achieving "critical mass."
Respondents explain that the Law School seeks to accumulate a
"critical mass" of each underrepresented minority [381] group. See, e.g. , id. , at 49, n. 79 ("The Law
School's . . . current policy . . . provide[s]
a special commitment to enrolling a 'critical mass' of 'Hispanics'
"). But the record demonstrates that the Law School's admissions
practices with respect to these groups differ dramatically and
cannot be defended under any consistent use of the term "critical
mass."

															From 1995 through 2000, the Law School admitted between 1,130
and 1,310 students. Of those, between 13 and 19 were Native
American, between 91 and 108 were African-American, and between 47
and 56 were Hispanic. If the Law School is admitting between 91 and
108 AfricanAmericans in order to achieve "critical mass," thereby
preventing African-American students from feeling "isolated or like
spokespersons for their race," one would think that a number of the
same order of magnitude would be necessary to accomplish the same
purpose for Hispanics and Native Americans. Similarly, even if all
of the Native American applicants admitted in a given year
matriculate, which the record demonstrates is not at all the
case,[ Footnote * ] how can this possibly
constitute a "critical mass" of Native Americans in a class of over
350 students? In order for this pattern of admission to be
consistent with the Law School's explanation of "critical mass,"
one would have to believe that the objectives of "critical mass"
offered by respondents are achieved with only half the number of
Hispanics and one-sixth the number of Native Americans as compared
to AfricanAmericans. But respondents offer no race-specific reasons
for such disparities. Instead, they simply emphasize the importance
of achieving "critical mass," without any explanation of why that
concept is applied differently among the three underrepresented
minority groups. [382] These different numbers, moreover, come only as a result of
substantially different treatment among the three underrepresented
minority groups, as is apparent in an example offered by the Law
School and highlighted by the Court:

															The school asserts that it "frequently accepts nonminority
applicants with grades and test scores lower than underrepresented
minority applicants (and other nonminority applicants) who are
rejected." Ante , at 338 (citing Brief for Respondent
Bollinger et al. 10). Specifically, the Law School states that
"[s]ixty-nine minority applicants were rejected between 1995 and
2000 with at least a 3.5 [Grade Point Average (GPA)] and a [score
of] 159 or higher on the [Law School Admission Test (LSAT)]" while
a number of Caucasian and Asian-American applicants with similar or
lower scores were admitted. Ibid. Review of the record reveals only 67 such individuals. Of these
67 individuals, 56 were Hispanic, while only 6 were
African-American, and only 5 were Native American. This discrepancy
reflects a consistent practice. For example, in 2000, 12 Hispanics
who scored between a 159-160 on the LSAT and earned a GPA of 3.00
or higher applied for admission and only 2 were admitted. App.
200-201. Meanwhile, 12 African-Americans in the same range of
qualifications applied for admission and all 12 were admitted. Id. , at 198. Likewise, that same year, 16 Hispanics who
scored between a 151-153 on the LSAT and earned a 3.00 or higher
applied for admission and only 1 of those applicants was admitted. Id. , at 200-201. Twenty-three similarly qualified
AfricanAmericans applied for admission and 14 were admitted. Id. , at 198.

															These statistics have a significant bearing on petitioner's
case. Respondents have never offered any race-specific
arguments explaining why significantly more individuals from one
underrepresented minority group are needed in order to achieve
"critical mass" or further student body diversity. They certainly
have not explained why Hispanics, who they [383] have said are among "the groups most isolated by racial barriers
in our country," should have their admission capped out in this
manner. Brief for Respondent Bollinger et al. 50. True, petitioner
is neither Hispanic nor Native American. But the Law School's
disparate admissions practices with respect to these minority
groups demonstrate that its alleged goal of "critical mass" is
simply a sham. Petitioner may use these statistics to expose this
sham, which is the basis for the Law School's admission of less
qualified underrepresented minorities in preference to her. Surely
strict scrutiny cannot permit these sorts of disparities without at
least some explanation.

															Only when the "critical mass" label is discarded does a likely
explanation for these numbers emerge. The Court states that the Law
School's goal of attaining a "critical mass" of underrepresented
minority students is not an interest in merely" 'assur[ing] within
its student body some specified percentage of a particular group
merely because of its race or ethnic origin.'" Ante , at
329 (quoting Bakke, 438 U. S., at 307 (opinion of Powell,
J.)). The Court recognizes that such an interest "would amount to
outright racial balancing, which is patently unconstitutional." Ante , at 330. The Court concludes, however, that the Law
School's use of race in admissions, consistent with Justice
Powell's opinion in Bakke , only pays" '[s]ome attention to
numbers.'" Ante , at 336 (quoting Bakke, supra , at
323).

															But the correlation between the percentage of the Law School's
pool of applicants who are members of the three minority groups and
the percentage of the admitted applicants who are members of these
same groups is far too precise to be dismissed as merely the result
of the school paying "some attention to [the] numbers." As the
tables below show, from 1995 through 2000 the percentage of
admitted applicants who were members of these minority groups
closely tracked the percentage of individuals in the school's
applicant pool who were from the same groups. [384] Table 1 Year Number of law school applicants Number of African-American applicants % of applicants who were African-American Number of applicants admitted by the law
school Number of African-American applicants
admitted % of admitted applicants who were
African-American 1995 4147 404 9.7% 1130 106 9.4% 1996 3677 342 9.3% 1170 108 9.2% 1997 3429 320 9.3% 1218 101 8.3% 1998 3537 304 8.6% 1310 103 7.9% 1999 3400 247 7.3% 1280 91 7.1% 2000 3432 259 7.5% 1249 91 7.3% Table 2 Year Number of law school applicants Number of Hispanic applicants % of applicants who were Hispanic Number of applicants admitted by the law
school Number of Hispanic applicants admitted % of admitted applicants who were Hispanic 1995 4147 213 5.1% 1130 56 5.0% 1996 3677 186 5.1% 1170 54 4.6% 1997 3429 163 4.8% 1218 47 3.9% 1998 3537 150 4.2% 1310 55 4.2% 1999 3400 152 4.5% 1280 48 3.8% 2000 3432 168 4.9% 1249 53 4.2% Table 3 Year Number of law school applicants Number of Native American applicants % of applicants who were Native American Number of applicants admitted by the law
school Number of Native American applicants
admitted % of admitted applicants who were Native
American 1995 4147 45 1.1% 1130 14 1.2% 1996 3677 31 0.8% 1170 13 1.1% 1997 3429 37 1.1% 1218 19 1.6% 1998 3537 40 1.1% 1310 18 1.4% 1999 3400 25 0.7% 1280 13 1.0% 2000 3432 35 1.0% 1249 14 1.1% [385] For example, in 1995, when 9.7% of the applicant pool was
African-American, 9.4% of the admitted class was African-American.
By 2000, only 7.5% of the applicant pool was African-American, and
7.3% of the admitted class was African-American. This correlation
is striking. Respondents themselves emphasize that the number of
underrepresented minority students admitted to the Law School would
be significantly smaller if the race of each applicant were not
considered. See App. to Pet. for Cert. 223a; Brief for Respondent
Bollinger et al. 6 (quoting App. to Pet. for Cert. 299a). But, as
the examples above illustrate, the measure of the decrease would
differ dramatically among the groups. The tight correlation between
the percentage of applicants and admittees of a given race,
therefore, must result from careful race based planning by the Law
School. It suggests a formula for admission based on the
aspirational assumption that all applicants are equally qualified
academically, and therefore that the proportion of each group
admitted should be the same as the proportion of that group in the
applicant pool. See Brief for Respondent Bollinger et al. 43, n. 70
(discussing admissions officers' use of "periodic reports" to track
"the racial composition of the developing class").

															Not only do respondents fail to explain this phenomenon, they
attempt to obscure it. See id. , at 32, n. 50 ("The Law
School's minority enrollment percentages . . . diverged
from the percentages in the applicant pool by as much as 17.7% from
1995-2000"). But the divergence between the percentages of
underrepresented minorities in the applicant pool and in the enrolled classes is not the only relevant comparison. In
fact, it may not be the most relevant comparison. The Law School
cannot precisely control which of its admitted applicants decide to
attend the university. But it can and, as the numbers demonstrate,
clearly does employ racial preferences in extending offers of
admission. Indeed, the ostensibly flexible nature of the Law
School's admissions program [386] that the Court finds appealing, see ante , at 337-338,
appears to be, in practice, a carefully managed program designed to
ensure proportionate representation of applicants from selected
minority groups.

															I do not believe that the Constitution gives the Law School such
free rein in the use of race. The Law School has offered no
explanation for its actual admissions practices and, unexplained,
we are bound to conclude that the Law School has managed its
admissions program, not to achieve a "critical mass," but to extend
offers of admission to members of selected minority groups in
proportion to their statistical representation in the applicant
pool. But this is precisely the type of racial balancing that the
Court itself calls "patently unconstitutional." Ante , at
330.

															Finally, I believe that the Law School's program fails strict
scrutiny because it is devoid of any reasonably precise time limit
on the Law School's use of race in admissions. We have emphasized
that we will consider "the planned duration of the remedy" in
determining whether a race-conscious program is constitutional. Fullilove , 448 U. S., at 510 (Powell, J., concurring); see
also United States v. Paradise , 480 U. S. 149 ,171 (1987)
("In determining whether race-conscious remedies are appropriate,
we look to several factors, including the . . . duration
of the relief"). Our previous cases have required some limit on the
duration of programs such as this because discrimination on the
basis of race is invidious.

															The Court suggests a possible 25-year limitation on the Law
School's current program. See ante , at 343. Respondents,
on the other hand, remain more ambiguous, explaining that "[t]he
Law School of course recognizes that race-conscious programs must
have reasonable durational limits, and the Sixth Circuit properly
found such a limit in the Law School's resolve to cease considering
race when genuine race-neutral alternatives become available."
Brief for Respondent Bollinger et al. 32. These discussions of a
time [387] limit are the vaguest of assurances. In truth, they permit the
Law School's use of racial preferences on a seemingly permanent
basis. Thus, an important component of strict scrutiny-that a
program be limited in time-is casually subverted.

															The Court, in an unprecedented display of deference under our
strict scrutiny analysis, upholds the Law School's program despite
its obvious flaws. We have said that when it comes to the use of
race, the connection between the ends and the means used to attain
them must be precise. But here the flaw is deeper than that; it is
not merely a question of "fit" between ends and means. Here the
means actually used are forbidden by the Equal Protection Clause of
the Constitution.

															JUSTICE KENNEDY, dissenting.

															The separate opinion by Justice Powell in Regents of Univ.
of Cal. v. Bakke , 438 U. S. 265 , 289-291,
315-318 (1978), is based on the principle that a university
admissions program may take account of race as one, nonpredominant
factor in a system designed to consider each applicant as an
individual, provided the program can meet the test of strict
scrutiny by the judiciary. This is a unitary formulation. If strict
scrutiny is abandoned or manipulated to distort its real and
accepted meaning, the Court lacks authority to approve the use of
race even in this modest, limited way. The opinion by Justice
Powell, in my view, states the correct rule for resolving this
case. The Court, however, does not apply strict scrutiny. By trying
to say otherwise, it undermines both the test and its own
controlling precedents.

															Justice Powell's approval of the use of race in university
admissions reflected a tradition, grounded in the First Amendment,
of acknowledging a university's conception of its educational
mission. Id. , at 312-314; ante , at 329. Our
precedents provide a basis for the Court's acceptance of a
university's considered judgment that racial diversity among [388] students can further its educational task, when supported by
empirical evidence. Ante , at 329-331.

															It is unfortunate, however, that the Court takes the first part
of Justice Powell's rule but abandons the second. Having approved
the use of race as a factor in the admissions process, the majority
proceeds to nullify the essential safeguard Justice Powell insisted
upon as the precondition of the approval. The safeguard was
rigorous judicial review, with strict scrutiny as the controlling
standard. Bakke, supra , at 291 ("Racial and ethnic
distinctions of any sort are inherently suspect and thus call for
the most exacting judicial examination"). This Court has
reaffirmed, subsequent to Bakke , the absolute necessity of
strict scrutiny when the State uses race as an operative category. Adarand Constructors, Inc. v. Peña , 515 U. S. 200 , 224 (1995)
("[A]ny person, of whatever race, has the right to demand that any
governmental actor subject to the Constitution justify any racial
classification subjecting that person to unequal treatment under
the strictest judicial scrutiny"); Richmond v. J. A.
Croson Co. , 488
U. S. 469 , 493-494 (1989); see id. , at 519 (KENNEDY,
J., concurring in part and concurring in judgment) ("[A]ny racial
preference must face the most rigorous scrutiny by the courts").
The Court confuses deference to a university's definition of its
educational objective with deference to the implementation of this
goal. In the context of university admissions the objective of
racial diversity can be accepted based on empirical data known to
us, but deference is not to be given with respect to the methods by
which it is pursued. Preferment by race, when resorted to by the
State, can be the most divisive of all policies, containing within
it the potential to destroy confidence in the Constitution and in
the idea of equality. The majority today refuses to be faithful to
the settled principle of strict review designed to reflect these
concerns.

															The Court, in a review that is nothing short of perfunctory,
accepts the University of Michigan Law School's (Law [389] School) assurances that its admissions process meets with
constitutional requirements. The majority fails to confront the
reality of how the Law School's admissions policy is implemented.
The dissenting opinion by THE CHIEF JUSTICE, which I join in full,
demonstrates beyond question why the concept of critical mass is a
delusion used by the Law School to mask its attempt to make race an
automatic factor in most instances and to achieve numerical goals
indistinguishable from quotas. An effort to achieve racial balance
among the minorities the school seeks to attract is, by the Court's
own admission, "patently unconstitutional." Ante , at 330;
see also Bakke, supra , at 307 (opinion of Powell, J.). It
remains to point out how critical mass becomes inconsistent with
individual consideration in some more specific aspects of the
admissions process.

															About 80% to 85% of the places in the entering class are given
to applicants in the upper range of Law School Admissions Test
scores and grades. An applicant with these credentials likely will
be admitted without consideration of race or ethnicity. With
respect to the remaining 15% to 20% of the seats, race is likely
outcome determinative for many members of minority groups. That is
where the competition becomes tight and where any given applicant's
chance of admission is far smaller if he or she lacks minority
status. At this point the numerical concept of critical mass has
the real potential to compromise individual review.

															The Law School has not demonstrated how individual consideration
is, or can be, preserved at this stage of the application process
given the instruction to attain what it calls critical mass. In
fact the evidence shows otherwise. There was little deviation among
admitted minority students during the years from 1995 to 1998. The
percentage of enrolled minorities fluctuated only by 0.3%, from
13.5% to 13.8%. The number of minority students to whom offers were
extended varied by just a slightly greater magnitude of 2.2%, from
the high of 15.6% in 1995 to the low of 13.4% in 1998. [390] The District Court relied on this uncontested fact to draw an
inference that the Law School's pursuit of critical mass mutated
into the equivalent of a quota. 137 F. Supp. 2d 821, 851 (ED Mich.
2001). Admittedly, there were greater fluctuations among enrolled
minorities in the preceding years, 1987-1994, by as much as 5% or
6%. The percentage of minority offers, however, at no point fell
below 12%, historically defined by the Law School as the bottom of
its critical mass range. The greater variance during the earlier
years, in any event, does not dispel suspicion that the school
engaged in racial balancing. The data would be consistent with an
inference that the Law School modified its target only twice, in
1991 (from 13% to 19%), and then again in 1995 (back from 20% to
13%). The intervening year, 1993, when the percentage dropped to
14.5%, could be an aberration, caused by the school's
miscalculation as to how many applicants with offers would accept
or by its redefinition, made in April 1992, of which minority
groups were entitled to race-based preference. See Brief for
Respondent Bollinger et al. 49, n. 79. Year Percentage of enrolled minority students 1987 12.3% 1988 13.6% 1989 14.4% 1990 13.4% 1991 19.1% 1992 19.8% 1993 14.5% 1994 20.1% 1995 13.5% 1996 13.8% 1997 13.6% 1998 13.8% The narrow fluctuation band raises an inference that the Law
School subverted individual determination, and strict [391] scrutiny requires the Law School to overcome the inference.
Whether the objective of critical mass "is described as a quota or
a goal, it is a line drawn on the basis of race and ethnic status,"
and so risks compromising individual assessment. Bakke ,
438 U. S., at 289 (opinion of Powell, J.). In this respect the Law
School program compares unfavorably with the experience of Little
Ivy League colleges. Amicus Amherst College, for example,
informs us that the offers it extended to students of
African-American background during the period from 1993 to 2002
ranged between 81 and 125 out of 950 offers total, resulting in a
fluctuation from 24 to 49 matriculated students in a class of about
425. See Brief for Amherst College et al. as Amici Curiae 10-11. The Law School insisted upon a much smaller fluctuation,
both in the offers extended and in the students who eventually
enrolled, despite having a comparable class size.

															The Law School has the burden of proving, in conformance with
the standard of strict scrutiny, that it did not utilize race in an
unconstitutional way. Adarand Constructors, 515 U. S., at
224. At the very least, the constancy of admitted minority students
and the close correlation between the racial breakdown of admitted
minorities and the composition of the applicant pool, discussed by
THE CHIEF JUSTICE, ante , at 380-386, require the Law
School either to produce a convincing explanation or to show it has
taken adequate steps to ensure individual assessment. The Law
School does neither.

															The obvious tension between the pursuit of critical mass and the
requirement of individual review increased by the end of the
admissions season. Most of the decisions where race may decide the
outcome are made during this period. See supra , at 389.
The admissions officers consulted the daily reports which indicated
the composition of the incoming class along racial lines. As Dennis
Shields, Director of Admissions from 1991 to 1996, stated, "the
further [he] went into the [admissions] season the more frequently
[he] would [392] want to look at these [reports] and see the change from
dayto-day." These reports would "track exactly where [the Law
School] st[ood] at any given time in assembling the class," and so
would tell the admissions personnel whether they were short of
assembling a critical mass of minority students. Shields generated
these reports because the Law School's admissions policy told him
the racial makeup of the entering class was "something [he]
need[ed] to be concerned about," and so he had "to find a way of
tracking what's going on." Deposition of Dennis Shields in Civ.
Action No. 9775928, pp. 129-130, 141 (ED Mich., Dec. 7, 1998).

															The consultation of daily reports during the last stages in the
admissions process suggests there was no further attempt at
individual review save for race itself. The admissions officers
could use the reports to recalibrate the plus factor given to race
depending on how close they were to achieving the Law School's goal
of critical mass. The bonus factor of race would then become
divorced from individual review; it would be premised instead on
the numerical objective set by the Law School.

															The Law School made no effort to guard against this danger. It
provided no guidelines to its admissions personnel on how to
reconcile individual assessment with the directive to admit a
critical mass of minority students. The admissions program could
have been structured to eliminate at least some of the risk that
the promise of individual evaluation was not being kept. The daily
consideration of racial breakdown of admitted students is not a
feature of affirmative-action programs used by other institutions
of higher learning. The Little Ivy League colleges, for instance,
do not keep ongoing tallies of racial or ethnic composition of
their entering students. See Brief for Amherst College et al. as Amici Curiae 10. To be constitutional, a university's compelling interest in a
diverse student body must be achieved by a system where individual
assessment is safeguarded through the entire process. There is no
constitutional objection to the goal of [393] considering race as one modest factor among many others to
achieve diversity, but an educational institution must ensure,
through sufficient procedures, that each applicant receives
individual consideration and that race does not become a
predominant factor in the admissions decisionmaking. The Law School
failed to comply with this requirement, and by no means has it
carried its burden to show otherwise by the test of strict
scrutiny.

															The Court's refusal to apply meaningful strict scrutiny will
lead to serious consequences. By deferring to the law schools'
choice of minority admissions programs, the courts will lose the
talents and resources of the faculties and administrators in
devising new and fairer ways to ensure individual consideration.
Constant and rigorous judicial review forces the law school
faculties to undertake their responsibilities as state employees in
this most sensitive of areas with utmost fidelity to the mandate of
the Constitution. Dean Allan Stillwagon, who directed the Law
School's Office of Admissions from 1979 to 1990, explained the
difficulties he encountered in defining racial groups entitled to
benefit under the Law School's affirmative action policy. He
testified that faculty members were "breathtakingly cynical" in
deciding who would qualify as a member of underrepresented
minorities. An example he offered was faculty debate as to whether
Cubans should be counted as Hispanics: One professor objected on
the grounds that Cubans were Republicans. Many academics at other
law schools who are "affirmative action's more forthright defenders
readily concede that diversity is merely the current rationale of
convenience for a policy that they prefer to justify on other
grounds." Schuck, Affirmative Action: Past, Present, and Future, 20
Yale L. & Pol'y Rev. 1, 34 (2002) (citing Levinson, Diversity,
2 U. Pa. J. Const. L. 573, 577-578 (2000); Rubenfeld, Affirmative
Action, 107 Yale L. J. 427, 471 (1997)). This is not to suggest the
faculty at Michigan or other law schools do not pursue aspirations
they consider laudable and consistent with our constitutional [394] traditions. It is but further evidence of the necessity for
scrutiny that is real, not feigned, where the corrosive category of
race is a factor in decisionmaking. Prospective students, the
courts, and the public can demand that the State and its law
schools prove their process is fair and constitutional in every
phase of implementation.

															It is difficult to assess the Court's pronouncement that
race-conscious admissions programs will be unnecessary 25 years
from now. Ante , at 341-343. If it is intended to mitigate
the damage the Court does to the concept of strict scrutiny,
neither petitioner nor other rejected law school applicants will
find solace in knowing the basic protection put in place by Justice
Powell will be suspended for a full quarter of a century. Deference
is antithetical to strict scrutiny, not consistent with it.

															As to the interpretation that the opinion contains its own
self-destruct mechanism, the majority's abandonment of strict
scrutiny undermines this objective. Were the courts to apply a
searching standard to race-based admissions schemes, that would
force educational institutions to seriously explore race-neutral
alternatives. The Court, by contrast, is willing to be satisfied by
the Law School's profession of its own good faith. The majority
admits as much: "We take the Law School at its word that it would
'like nothing better than to find a race-neutral admissions
formula' and will terminate its race-conscious admissions program
as soon as practicable." Ante , at 343 (quoting Brief for
Respondent Bollinger et al. 34).

															If universities are given the latitude to administer programs
that are tantamount to quotas, they will have few incentives to
make the existing minority admissions schemes transparent and
protective of individual review. The unhappy consequence will be to
perpetuate the hostilities that proper consideration of race is
designed to avoid. The perpetuation, of course, would be the worst
of all outcomes. Other programs do exist which will be more
effective in [395] bringing about the harmony and mutual respect among all citizens
that our constitutional tradition has always sought. They, and not
the program under review here, should be the model, even if the
Court defaults by not demanding it.

															It is regrettable the Court's important holding allowing racial
minorities to have their special circumstances considered in order
to improve their educational opportunities is accompanied by a
suspension of the strict scrutiny which was the predicate of
allowing race to be considered in the first place. If the Court
abdicates its constitutional duty to give strict scrutiny to the
use of race in university admissions, it negates my authority to
approve the use of race in pursuit of student diversity. The
Constitution cannot confer the right to classify on the basis of
race even in this special context absent searching judicial review.
For these reasons, though I reiterate my approval of giving
appropriate consideration to race in this one context, I must
dissent in the present case.

															[ Footnote * ]

															Briefs of amici curiae urging reversal were filed for
the State of Florida et al. by Charlie Crist , Attorney
General of Florida, Christopher M. Kise , Solicitor
General, Louis F. Hubener , Deputy Solicitor
General, and Daniel Woodring; for the Cato Institute by Robert A. Levy, Timothy Lynch, James L. Swanson , and Samuel Estreicher; for the Center for Equal Opportunity et
al. by Roger Clegg and C. Mark Pickrell; for the
Center for Individual Freedom by Renee L. Giachino; for
the Center for New Black Leadership by Clint Bolick, William H.
Mellor , and Richard D. Komer; for the Center for the
Advancement of Capitalism by David Reed Burton; for the
Claremont Institute Center for Constitutional Jurisprudence by Edwin Meese III; for the Michigan Association of Scholars
by William F. Mohrman; for the National
Association of Scholars by William H. Allen, Oscar M.
Garibaldi , and Keith A. Noreika; for the Pacific
Legal Foundation by John H. Findley; for Law Professor
Larry Alexander et al. by Erik S. Jaffe; and for
the Reason Foundation by Martin S. Kaufman. Briefs of amici curiae urging affirmance were filed for
the State of Maryland et al. by J. Joseph Curran, Jr. ,
Attorney General of Maryland, Andrew H. Baida , Solicitor
General, Mark J. Davis and William F. Brockman , Assistant Attorneys General, Eliot
Spitzer , Attorney General of New York, Caitlin J. Halligan , Solicitor General, Michelle Aronowitz ,
Deputy Solicitor General, and Julie Mathy Sheridan and Sachin S. Pandya , Assistant Solicitors General,
and by the Attorneys General for their respective jurisdictions as
follows: Terry Goddard of Arizona, Bill Lockyer of California, Ken Salazar of Colorado, Richard
Blumenthal of Connecticut, Lisa Madigan of Illinois, Thomas J. Miller of Iowa, G. Steven Rowe of Maine, Thomas F. Reilly of Massachusetts, Mike Hatch of Minnesota, Mike McGrath of Montana, Patricia A. Madrid of New Mexico, Roy Cooper of
North Carolina, W A. Drew Edmondson of Oklahoma, Hardy
Myers of Oregon, Patrick Lynch of Rhode Island, William H. Sorrell of Vermont, Iver A. Stridiron of the Virgin Islands, Christine Q Gregoire of Washington, Darrell V. McGraw, Jr. , of West Virginia, and Peggy A.
Lautenschlager of Wisconsin; for the State of New Jersey by David Samson , Attorney General, Jeffrey Burstein ,
Assistant Attorney General, and Donna Arons and Anne
Marie Kelly , Deputy Attorneys General; for New York City
Council Speaker A. Gifford Miller et al. by Jack Greenberg and Saul B. Shapiro; for the City of Philadelphia,
Pennsylvania, et al. by Victor A. Bolden and Nelson A.
Diaz; for the American Bar Association by Paul M.
Dodyk and Rowan D. Wilson; for the American
Educational Research Association et al. by Angelo N.
Ancheta; for the American Jewish Committee et al. by Stewart D. Aaron, Thomas M. Jancik, Jeffrey P. Sinensky, Kara
H. Stein , and Richard T. Foltin; for the American Law
Deans Association by Samuel Issacharoff; for the American
Psychological Association by Paul R. Friedman, William F. Sheehan , and Nathalie F. P. Gilfoyle; for the American Sociological Association et al. by Bill Lann
Lee and Deborah J. Merritt; for Amherst
College et al. by Charles S. Sims; for the
Arizona State University College of Law by Ralph S. Spritzer and Paul Bender; for the Association of
American Law Schools by Pamela S. Karlan; for the
Association of American Medical Colleges et al. by Robert A.
Burgoyne and Joseph A. Keyes, Jr.; for the Bay Mills
Indian Community et al. by Vanya S. Hogen; for
the Clinical Legal Education Association by Timothy A. Nelsen,
Frances P. Kao , and Eric J. Gorman; for
Columbia University et al. by Floyd Abrams and Susan
Buckley; for the Graduate Management Admission Council et al.
by Stephen M. McNabb; for the Harvard Black Law Students
Association et al. by George W Jones, Jr., William J. Jefferson, Theodore V. Wells, Jr. , and David W
Brown; for Harvard University et al. by Laurence H. Tribe,
Jonathan S. Massey, Beverly Ledbetter, Robert B.
Donin , and Wendy S. White; for the Hispanic
National Bar Association et al. by Gilbert Paul Carrasco; for Howard University by Janell M. Byrd; for Indiana
University by James Fitzpatrick, Lauren K. Robel , and Jeffrey Evans Stake; for the King County Bar Association
by John Warner Widell, John H. Chun , and Melissa
O'Loughlin White; for the Law School Admission Council by Walter Dellinger, Pamela Harris , and Jonathan D.
Hacker; for the Lawyers' Committee for Civil Rights Under Law
et al. by John S. Skilton, David E. Jones, Barbara R.
Arnwine, Thomas J. Henderson, Dennis C. Hayes,
Marcia D. Greenberger , and Judith L. Lichtman; for
the Leadership Conference on Civil Rights et al. by Robert N.
Weiner and William L. Taylor; for the Mexican
American Legal Defense and Educational Fund et al. by Antonia
Hernandez; for the Michigan Black Law Alumni Society by Christopher J. Wright, Timothy J. Simeone , and Kathleen McCree Lewis; for the NAACP
Legal Defense and Educational Fund, Inc., et al. by Theodore M.
Shaw, Norman J. Chachkin, Robert H. Stroup, Elise C. Boddie , and Christopher A. Hansen; for the
National Center for Fair & Open Testing by John T.
Affeldt and Mark Savage; for the National Coalition
of Blacks for Reparations in America et al. by Kevin
Outterson; for the National Education

															Association et al. by Robert H. Chanin, John M. West, Elliot
Mincberg, Larry P. Weinberg , and John C. Dempsey; for the National Urban League et al. by William A. Norris and Michael C. Small; for the New America Alliance by Thomas R. Julin and D.
Patricia Wallace; for the New Mexico Hispanic Bar Association
et al. by Edward Benavidez; for the NOW Legal Defense and
Educational Fund et al. by Wendy R. Weiser and Martha F. Davis; for the School of Law of the
University of North Carolina by John Charles Boger, Julius L.
Chambers , and Charles E. Daye; for the Society of
American Law Teachers by Michael Selmi and Gabriel J. Chin; for the UCLA School of Law
Students of Color by Sonia Mercado; for the United Negro
College Fund et al. by Drew S. Days III and Beth S. Brinkmann; for the University of Michigan
Asian Pacific American Law Students Association et al. by Jerome S. Hirsch; for the University of
Pittsburgh et al. by David C. Frederick and Sean A. Lev; for Judith Areen et al. by Neal
Katyal and Kumiki Gibson; for Lieutenant General
Julius W. Becton, Jr., et al. by Virginia A. Seitz, Joseph R.
Reeder, Robert P. Charrow , and Kevin E. Stern; for
Hillary Browne et al. by Gregory Alan Berry; for Senator
Thomas A. Daschle et al. by David T. Goldberg and Penny Shane; for the Hayden Family by Roy C. Howell; for Glenn C. Loury by Jeffrey F. Liss and James J. Halpert; and for
13,922 Current Law Students at Accredited American Law Schools by Julie R. O'Sullivan and Peter J. Rubin. Briefs of amici curiae were filed for Michigan Governor
Jennifer M. Granholm by John D. Pirich and Mark A.
Goldsmith; for Members and Former Members of the Pennsylvania
General Assembly et al. by Mark B. Cohen and Eric S. Fillman; for the American Council on Education et al.
by Martin Michaelson, Alexander E. Dreier , and Sheldon
E. Steinbach; for the American Federation of Labor and
Congress of Industrial Organizations by Harold Craig Becker,
David J. Strom, Jonathan P. Hiatt , and Daniel W
Sherrick; for the Anti-Defamation League by Martin E.
Karlinsky and Steven M. Freeman; for the Asian
American Legal Foundation by Daniel C. Girard and Gordon M. Fauth, Jr.; for Banks Broadcasting, Inc., by Elizabeth G. Taylor; for the Black Women Lawyers
Association of Greater Chicago, Inc., by Sharon E. Jones; for the Boston Bar Association et al. by Thomas E. Dwyer,
Jr. , and Joseph L. Kociubes; for the Carnegie Mellon
University et al. by W Thomas McGough, Jr., Kathy M. Banke,
Gary L. Kaplan , and Edward N. Stoner II; for the
Coalition for Economic Equity et al. by Eva J. Paterson and Eric K. Yamamoto; for the Committee
of Concerned Black Graduates of ABA Accredited Law Schools et al.
by Mary Mack Adu ; for the Criminal Justice Legal
Foundation by Kent S. Scheidegger ; for the Equal
Employment Advisory Council by Jeffrey A. Norris and Ann Elizabeth Reesman ; for Exxon Mobil Corp. by Richard R. Brann ; for General Motors Corp. by Kenneth
S. Geller , Eileen Penner , and Thomas A.
Gottschalk ; for Human Rights Advocates et al. by Constance
de la Vega ; for the Massachusetts Institute of Technology et
al. by Donald B. Ayer , Elizabeth Rees , Debra
L. Zumwalt , and Stacey J. Mobley ; for the
Massachusetts School of Law by Lawrence R. Velvel ; for the
National Asian Pacific American Legal Consortium et al. by Mark
A. Packman , Karen K. Narasaki , Vincent A.
Eng , and Trang Q. Tran ; for the National School
Boards Association et al. by Julie Underwood and Naomi
Gittins ; for the New York State Black and Puerto Rican
Legislative Caucus by Victor Goode ; for Veterans of the
Southern Civil Rights Movement et al. by Mitchell
Zimmerman ; for 3M et al. by David W DeBruin , Deanne E. Maynard , Daniel Mach , Russell W
Porter, Jr. , Charles R. Wall , Martin J.
Barrington , Deval L. Patrick , William J.
O'Brien , Gary P. Van Graafeiland , Kathryn A.
Oberly , Randall E. Mehrberg , Donald M. Remy , Ben W Heineman, Jr. , Brackett B. Denniston III , Elpidio Villarreal , Wayne A. Budd , J. Richard
Smith , Stewart S. Hudnut , John A. Shutkin , Theodore L. Banks , Kenneth C. Frazier , David
R. Andrews , Jeffrey B. Kinder , Teresa M.
Holland , Charles W Gerdts III , John L.
Sander , Mark P. Klein , and Stephen P.
Sawyer ; for Ward Connerly by Manuel S. Klausner and Patrick J. Manshardt ; for Representative John Conyers,
Jr., et al. by Paul J. Lawrence and Anthony R.
Miles ; and for Representative Richard A. Gephardt et al. by Andrew L. Sandler and Mary L. Smith .

															[ Footnote * ]

															As the Court explains, the admissions policy challenged here
survives review under the standards stated in Adarand
Constructors, Inc. v. Peña , 515 U. S. 200 (1995), Richmond v. J. A. Croson Co. , 488 U. S. 469 (1989), and
Justice Powell's opinion in Regents of Univ. of Cal. v. Bakke,
438 U. S. 265 (1978). This case therefore does not require the
Court to revisit whether all governmental classifications by race,
whether designed to benefit or to burden a historically
disadvantaged group, should be subject to the same standard of
judicial review. Cf. Gratz, ante , at 301-302 (GINSBURG,
J., dissenting); Adarand , 515 U. S., at 274, n. 8
(GINSBURG, J., dissenting). Nor does this case necessitate
reconsideration whether interests other than "student body
diversity," ante , at 325, rank as sufficiently important
to justify a race-conscious government program. Cf. Gratz,
ante , at 301-302 (GINSBURG, J., dissenting); Adarand ,
515 U. S., at 273-274 (GINSBURG, J., dissenting).

															[ Footnote * ]

															Part VII of JUSTICE THOMAS'S opinion describes those portions of
the Court's opinion in which I concur. See post , at
374-378 (opinion concurring in part and dissenting in part).

															[ Footnote 1 ]

															Throughout I will use the two phrases interchangeably.

															[ Footnote 2 ]

															The Court's refusal to address Wygant's rejection of a
state interest virtually indistinguishable from that presented by
the Law School is perplexing. If the Court defers to the Law
School's judgment that a racially mixed student body confers
educational benefits to all, then why would the Wygant Court not defer to the school board's judgment with respect to the
benefits a racially mixed faculty confers?

															[ Footnote 3 ]

															"[D]iversity," for all of its devotees, is more a fashionable
catchphrase than it is a useful term, especially when something as
serious as racial discrimination is at issue. Because the Equal
Protection Clause renders the color of one's skin constitutionally
irrelevant to the Law School's mission, I refer to the Law School's
interest as an "aesthetic." That is, the Law School wants to have a
certain appearance, from the shape of the desks and tables in its
classrooms to the color of the students sitting at them.

															I also use the term "aesthetic" because I believe it underlines
the ineffectiveness of racially discriminatory admissions in
actually helping those who are truly underprivileged. Cf. Orr
v. Orr , 440 U.
S. 268 , 283 (1979) (noting that suspect classifications are
especially impermissible when "the choice made by the State appears
to redound . . . to the benefit of those without need for
special solicitude"). It must be remembered that the Law School's
racial discrimination does nothing for those too poor or uneducated
to participate in elite higher education and therefore presents
only an illusory solution to the challenges facing our Nation.

															[ Footnote 4 ]

															The Law School believes both that the educational benefits of a
racially engineered student body are large and that adjusting its
overall admissions standards to achieve the same racial mix would
require it to sacrifice its elite status. If the Law School is
correct that the educational benefits of "diversity" are so great,
then achieving them by altering admissions standards should not
compromise its elite status. The Law School's reluctance to do this
suggests that the educational benefits it alleges are not
significant or do not exist at all.

															[ Footnote 5 ]

															Cf. U. S. News & World Report, America's Best Graduate
Schools 28 (2004 ed.) (placing these schools in the uppermost 15 in
the Nation).

															[ Footnote 6 ]

															The Court refers to this component of the Law School's
compelling state interest variously as "academic quality," avoiding
"sacrifice [of] a vital component of its educational mission," and
"academic selectivity." Ante , at 340.

															[ Footnote 7 ]

															For example, North Carolina A&T State University, which is
currently 5.4% white, College Admissions Data Handbook 643, could
seek to reduce the representation of whites in order to gain
additional educational benefits.

															[ Footnote 8 ]

															Cal. Const., Art. 1, § 31(a), states in full:

															"The state shall not discriminate against, or grant preferential
treatment to, any individual or group on the basis of race, sex,
color, ethnicity, or national origin in the operation of public
employment, public education, or public contracting." See Coalition for Economic Equity v. Wilson , 122 F.3d 692 (CA9
1997).

															[ Footnote 9 ]

															Given the incredible deference the Law School receives from the
Court, I think it appropriate to indulge in the presumption that
Boalt Hall operates without violating California law.

															[ Footnote 10 ]

															Were this Court to have the courage to forbid the use of racial
discrimination in admissions, legacy preferences (and similar
practices) might quickly become less popular-a possibility not
lost, I am certain, on the elites (both individual and
institutional) supporting the Law School in this case.

															[ Footnote 11 ]

															For example, there is no recognition by the Law School in this
case that even with their racial discrimination in place, black men are "underrepresented" at the Law School. See ABA-LSAC
Guide 426 (reporting that the Law School has 46 black women and 28
black men). Why does the Law School not also discriminate in favor
of black men over black women, given this underrepresentation? The
answer is, again, that all the Law School cares about is its own
image among know-it-all elites, not solving real problems like the
crisis of black male underperformance.

															[ Footnote 12 ]

															That interest depends on enrolling a "critical mass" of
underrepresented minority students, as the majority repeatedly
states. Ante , at 316, 318, 319, 330, 333, 335, 340; cf. ante , at 333 (referring to the unique experience of being
a "racial minority," as opposed to being black, or Native
American); ante , at 335-336 (rejecting argument that the
Law School maintains a disguised quota by referring to the total
number of enrolled underrepresented minority students, not specific
races). As it relates to the Law School's racial discrimination,
the Court clearly approves of only one use of race-the distinction
between underrepresented minority applicants and those of all other
races. A relative preference awarded to a black applicant over, for
example, a similarly situated Native American applicant, does not
lead to the enrollment of even one more underrepresented minority
student, but only balances the races within the "critical
mass."

															[ Footnote 13 ]

															I agree with JUSTICE GINSBURG that the Court's holding that
racial discrimination in admissions will be illegal in 25 years is
not based upon a "forecast," post , at 346 (concurring
opinion). I do not agree with JUSTICE GINSBURG'S characterization
of the Court's holding as an expression of "hope." Ibid. [ Footnote 14 ]

															14 I use a score of 165 as the benchmark here because the Law
School feels it is the relevant score range for applicant
consideration (absent race discrimination). See Brief for
Respondent Bollinger et al. 5; App. to Pet. for Cert. 309a (showing
that the median LSAT score for all accepted applicants from
1995-1998 was 168); id. , at 310a-311a (showing the median
LSAT score for accepted applicants was 167 for the years 1999 and
2000); University of Michigan Law School Website, available at
http://www.law.umich.edu/prospectivestudents/Admissions/index.htm
(showing that the median LSAT score for accepted applicants in 2002
was 166).

															[ Footnote 15 ]

															15 The majority's non sequitur observation that since 1978 the
number of blacks that have scored in these upper ranges on the LSAT
has grown, ante , at 343, says nothing about current
trends. First, black participation in the LSAT until the early
1990's lagged behind black representation in the general
population. For instance, in 1984 only 7.3% of law school
applicants were black, whereas in 2000 11.3% oflaw school
applicants were black. See LSAC Statistical Reports (1984 and
2000). Today, however, unless blacks were to begin applying to law
school in proportions greater than their representation in the
general population, the growth in absolute numbers of high scoring
blacks should be expected to plateau, and it has.

															In 1992, 63 black applicants to law school had LSAT scores above
165. In 2000, that number was 65. See LSAC Statistical Reports
(1992 and 2000).

															[ Footnote 16 ]

															16 I use the LSAT as an example, but the same incentive
structure is in place for any admissions criteria, including
undergraduate grades, on which minorities are consistently admitted
at thresholds significantly lower than whites.

															[ Footnote * ]

															Indeed, during this 5-year time period, enrollment of Native
American students dropped to as low as three such
students. Any assertion that such a small group constituted a
"critical mass" of Native Americans is simply absurd.